Sunday, 19 February 2017

Transcript Round-up. Data Protection. Keeper liability. Employer's Agent

A number of new transcripts are available on The Prankster's web site. Many thanks to all who contributed and made these available

Here is the link to the new transcripts
Old transcripts are still available here

CS042 VCS v Mr M. C9DP2D6C (Data protection breach by VCS as parking charge invalid)

DDJ Britlin rules that a data protection breach occurs if a parking company pursues a parking charge which is not valid, as the data is not used fairly or lawfully. £250 awarded

CS043 Excel v Lamoureux C3DP56Q5 proceedings to judgment. (No keeper liability)

DJ Skalskyj-Reynolds examines Excel's notice to keeper and finds it does not comply with the Protection of Freedoms Act 2012 sch 4 (POFA).

Some interesting quotes

THE    DISTRICT JUDGE:  Has there been any decision on whether this notice complies with—

MR      LAMOUREUX:  Excel admit it doesn’t comply.

MR      PICKUP:  Well, I have done many of these cases, madam, and whilst I appreciate they are all different and they are only persuasive, I have never had a judgment where the judge has said that this notice does not comply. 

It is worrying that for the past 4 years Excel's Notice to Keeper has not complied with POFA, and they have acknowledged this at internal appeals, POPLA, and even the IAS. Now suddenly they appear to be trying to pull the wool over the courts eyes by contesting that their notices are compliant.

THE    DISTRICT JUDGE:  What puzzles me, Mr Pickup, is why Excel argues it does not have to comply with the Protection of Freedoms Act and they do not have to rely on it.  I find that difficult. 

This puzzles everyone except BW Legal and Gladstones.

MR      PICKUP:  But they are not using the Act.  They say they are just using it through—

THE    DISTRICT JUDGE:  Sorry, this company Excel sometimes relies on that?

MR      PICKUP:  No.

THE    DISTRICT JUDGE:  Other companies do?

MR      PICKUP:  Yes.

Ah, the old 'not using it' but 'saying they are using it' ploy. A valiant attempt by Mr Pickup to confuse the judge.

THE    DISTRICT JUDGE:  Yes, helpfully, I do know that there is case law that says the keeper is not the driver and there is no such assumption, but helpfully, Mr Lamoureux has produced part of an extract.  It is R (on the application of Duff) v Secretary of State for Transport [2015] EWHC 1605, but there is other case law to this effect.  There is no reasonable presumption in law that the registered keeper of a vehicle is the driver.  It is trite law.  I do not even need to rely on R (on the application of Duff v Secretary of State for Transport.  Everybody knows that you cannot assume that the keeper is the driver which is why most parking companies, such as Parking Eye, always rely on the Protection of Freedoms Act 2012 and the notice should comply.  Any other points in there that you say do not comply, Mr Lamoureux?

Everyone knows, apart from Excel, Mr Pickup and BW Legal

It is worth noting that Excel and VCS recently redesigned their Notice to Keeper in a new attempt to comply with POFA.

CS044 Excel v Lamoureux C3DP56Q5 judgment (No keeper liability)

DJ Skalskyj-Reynolds judgment explains that there is no liability if the keeper is not the driver and POFA is not used.

CS045 R (on the application of Duff) v Secretary of State for Transport [2015] EWHC 1605 (Admin)

The case law quoted in Excel v Lamoureux C3DP56Q5, although this actually might be a misquote from the POPLA annual report..

This was the ill-fated attempt of Stephen Duff to try and extract keeper details from the DVLA without belonging to an appropriate trade association.

R is presumably Ransomes Park.

CS046 CPS v AJH Films [2015] EWCA Civ 1453

The leave to appeal refusal used by some parking companies to assert that at all times the driver is an agent of the keeper. This argument favoured only by legal minnows is rebuffed by judges who point out that it is not appropriate, while presumably trying to stop laughing and keep a straight face.

Happy Parking

The Parking Prankster


  1. R is regina - The Queen v xxxxxxxxxx.

  2. Replies
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  3. Thanks for the links, some interesting references. Do you have any records of DPA claims, not counterclaims, related to PCNs? I'm about to launch a claim as I am sick of letters from DRP. I get the feeling that I am breaking new ground and so I am trying to get hold of material that I can leverage.

    1. A DPA claim would be very similar to a counterclaim, it's just a convenient way for the courts to hear both parties at the same time and decide one issue, not two.

    2. I have published a piece I've been working on for dealing with spammers, a lot of this is applicable to parking DPA cases too;

  4. I also wonder if Lamoureux would have gone differently had he been the driver. He seemed to be under a lot of pressure to admit that he was. I would have expected that the question shouldn't be allowed at all.

    1. At small claims strict rules of procedure aren't necessarily followed. Sauce for the goose.
      Anyway if you're relying on an alleged fact, it's perfectly proper to suggest you're not telling the truth.