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#Post#: 34597--------------------------------------------------
Re: PCN addressed to me for somewhere I have never been, car in
images is not mine - Smart Parking Ltd
DIR By: b789
Date: August 26, 2024, 7:58 am
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Any complaint must be looked at as an appeal according to their
CoP, so no need to appeal separately. Show us their response.
You won’t be able to make an ICO complaint until you’ve received
their response to your complaint. However, you certainly should
make the ICO complaint, explaining how they’ve obtained your
data unlawfully by breaching the KADOE contract.
The DVLA complaint can be submitted immediately. As well as
SARing Smart, you should also SAR the DVLA to see which
operators and when, obtained your data.
The complaint to Smart should be emailed as a PDF attachment and
you should also CC it to yourself as evidence of it having been
sent.
If they do cancel the PCN but do not offer compensation for
their unlawful access to your data, you can the send them a
Letter of Claim for a specified sum for damages under the Data
Protection Act 2018. As explained earlier, this is a straight
forward process should you want to follow up on and is done
online through the Money Claims On Line (MCOL) website. A claim
for up to £300 costs £35 and if successful, the fee is also paid
back by the defendant.
Whether you follow through with a claim, is up to you. However,
simply sending them an LoC gives them a taste of their own
medicine and they don’t like it.
#Post#: 34604--------------------------------------------------
Re: PCN addressed to me for somewhere I have never been, car in
images is not mine - Smart Parking Ltd
DIR By: DWMB2
Date: August 26, 2024, 9:23 am
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--- Quote ---
> Any complaint must be looked at as an appeal according to
their CoP, so no need to appeal separately.
--- End Quote ---
Whilst this is true, if I were erring on the side of caution, I
would submit an appeal as well via their portal, just so that
the charge is cancelled and the OP can then focus on any
complaints they wish to pursue without the actual charge still
being in play.
I'm mindful of us not losing sight of that amongst the other
(entirely valid) grievances.
#Post#: 34610--------------------------------------------------
Re: PCN addressed to me for somewhere I have never been, car in
images is not mine - Smart Parking Ltd
DIR By: b789
Date: August 26, 2024, 10:31 am
---------------------------------------------------------
I respectfully disagree. BPA CoP section 23.23 specifically
states the following:
--- Quote ---
> Where you receive a complaint that you consider to
> be or include an appeal against the validity of a parking
> charge notice, you must also treat it as an appeal for the
> purposes of applying the timescales in Clause 23.8, and
> should inform the complainant as such unless and until it
> is clear that the complaint is not relevant to an appeal or
> the complainant informs you that they do not wish it to
> be so handled.
>
> It might not be immediately apparent that a complaint
> served as such relates to one or more specific parking
> charge notices, possibly by way of a clarification that
> reveals that an appeal would be worthwhile, hence you
> are advised to record and handle complaints as appeals
> until they are found conclusively not to be so or patently
> refer to matters not relevant to the validity of a parking
> charge notice.
--- End Quote ---
The primary concern in this case is the operator's unlawful
handling of the keepers data. By focusing solely on a complaint
about the misuse of the keepers data under GDPR, it emphasises
the most critical issue: the operator’s breach of legal
obligations by not manually checking the ANPR images and thereby
misidentifying the wrong vehicle.
The operator's breach of the BPA Code of Practice (failure to
manually check ANPR images as required under Section 21.5a) and
the subsequent unlawful request for the keepers data from the
DVLA should be the sole focus. By merging a complaint with an
appeal, the main issue of data misuse could be diluted or lost.
Filing an appeal, even when separate from a complaint, could be
perceived as engaging with the parking charge's legitimacy. This
could inadvertently imply that there is a valid case to answer,
which is contrary to the assertion that the vehicle is not the
keepers.
An appeal suggests that the alleged parking contravention has
some basis for discussion. By appealing, the keeper may
inadvertently signal that there is a legitimate issue to
address, which could weaken their position that the parking
charge is entirely unfounded due to a fundamental identification
error.
Maintaining a consistent stance that the parking charge is
completely irrelevant to the keeper because the vehicle in
question is not theirs is crucial. A separate appeal could
create mixed messages or confusion regarding their position.
To remain consistent, it is important to only address the issue
of unlawful data handling. If the keeper appeals separately, it
could create ambiguity about their position and suggest a
willingness to engage with a process that they believe is
fundamentally flawed due to the misidentification.
Separating a complaint and an appeal could provide the operator
with multiple opportunities to argue their case. They might use
any response to an appeal to bolster their procedural stance,
rather than focusing on their failure to adhere to the BPA Code
of Practice and data protection laws.
A separate appeal could give the operator a chance to frame the
situation as a standard parking dispute rather than addressing
the core issue of their procedural failures and data misuse. By
focusing only on a complaint about unlawful data handling, the
keeper forces the operator to directly address their compliance
failures rather than deflecting to the merits of a parking
charge.
Data protection laws, particularly GDPR, have significant legal
weight. Emphasising a complaint based on GDPR breaches is be
more powerful and more likely to result in meaningful
repercussions for the operator than a standard appeal process.
GDPR violations are taken very seriously and can result in
substantial penalties for the offending party. By focusing the
keepers efforts on a data protection complaint, thy highlight
the operator's severe misconduct and increase the likelihood of
regulatory scrutiny and potential sanctions, which may be more
effective in resolving the matter than an appeal.
This requires a focused strategy on the operator’s significant
breach of data protection laws and procedural failings. By only
complaining and not submitting a separate appeal helps to avoid
any potential confusion or implication of liability on the
keepers part, ensuring that their main concern — unlawful data
handling and compliance failures — remains the priority.
#Post#: 34612--------------------------------------------------
Re: PCN addressed to me for somewhere I have never been, car in
images is not mine - Smart Parking Ltd
DIR By: DWMB2
Date: August 26, 2024, 10:49 am
---------------------------------------------------------
My suggestion is based more on pragmatism, in case the OP is
particularly strapped for time and just needs the charge to go
away with as little time required as possible. I don't think a
dual-pronged approach, worded well, would create any ambiguity.
- Appeal: The charge issued is entirely illegitimate because
it's not my vehicle, and should clearly be cancelled
- Complaint: By failing to manually check the information
generated by the dodgy ANPR system, you have wrongly processed
my personal data, for which I want some sort of recourse.
As a slightly more general aside, I've never bought into the
view that engaging with an appeal process affords legitimacy to
the charge being appealed, especially when the purpose of an
appeal in this case is to point out why the charge is not
legitimate. I've also never seen any cases be negatively
affected by any inference that appealing affords legitimacy to a
charge.
This being Smart Parking, I think there's a fair chance either
of our approaches will lead to the actual charge being
cancelled, as we both know Smart have little appetite for all
but the most simple cases, so with that in mind, we can probably
safely agree to disagree for now.
#Post#: 35798--------------------------------------------------
Re: PCN addressed to me for somewhere I have never been, car in
images is not mine - Smart Parking Ltd
DIR By: strawberrydoll
Date: September 5, 2024, 11:41 am
---------------------------------------------------------
Thank you both so much for your amazing help!
I sent the letter to their complaints inbox and I have just had
the cancellation email from Smart Parking just now which is a
massive relief. Sadly they did just gloss over the compensation
part. I'll send another email asking to be compensated again in
the coming week.
Here's their email.
--- Quote ---
>
> Good afternoon
>
>
>
> Thankyou for your recent communication.
>
>
>
> We would like to apologise for the error, and I can confirm
the PCN has been cancelled. A letter stating so will be sent to
you in due course.
>
>
>
> I can also confirm deletion of your data.
>
>
>
> Kind Regards,
>
--- End Quote ---
#Post#: 35803--------------------------------------------------
Re: PCN addressed to me for somewhere I have never been, car in
images is not mine - Smart Parking Ltd
DIR By: b789
Date: September 5, 2024, 12:06 pm
---------------------------------------------------------
Which letter did you eventually send them? Was it the complaint
one with the three demands, two of which they have complied with
but failed to offer any compensation?
You still have the right to sue them for any distress and
anxiety this has caused you. It just depends on whether you are
up for the fight with our assistance.
I have updated the article on ow and why anyone should sue a PPC
for breach of their GDPR and I repeat it below for your
consideration:
--- Quote ---
> Article 5(1)(d) of the UK GDPR legally requires data
controllers to store and process personal data accurately. If a
data controller, such as a private parking company, unlawfully
obtains the keeper's data from the DVLA and issues an invoice
based on inaccurate information, claiming you parked in breach
of an alleged contract with the landowner (or their agent), this
constitutes processing your personal data inaccurately and
unlawfully under the UK GDPR.
>
> The precedents for claiming damages and compensation for such
unlawful processing of personal data can be found in cases like
Halliday v Creation Consumer Finance Ltd [2013] EWCA Civ 333,
where the court awarded compensation for distress caused by the
inaccurate processing of personal data under the Data Protection
Act 1998. Although this case was decided under the old law,
similar principles apply under the UK GDPR and the Data
Protection Act 2018. Under Article 82 of the UK GDPR and Section
168 of the Data Protection Act 2018, individuals have the right
to compensation if they suffer material or non-material damage
because of a breach of data protection laws.
>
> Additionally, the case of Vidal-Hall v Google Inc [2015] EWCA
Civ 311 confirmed that claimants could recover compensation for
distress alone under the Data Protection Act 1998, a principle
now similarly recognised under the GDPR. This means that even if
you have not suffered tangible financial loss, you may still be
entitled to compensation for distress caused by the unlawful
processing of your data.
>
> Moreover, in Tetragon Financial Group Limited v Revenue and
Customs Commissioners [2020] UKUT 0305 (TCC), the court
reiterated the importance of accurate data handling by public
bodies. This principle can be applied here, as the DVLA, a
public body, must ensure that any data it provides to third
parties, such as private parking companies, is used lawfully and
accurately. If a private parking company unlawfully obtained
your data from the DVLA and processed it inaccurately, you have
grounds to seek compensation.
>
> To seek compensation for the unlawful processing of your
personal data, you should provide 21 days’ notice (the
pre-action protocol typically requires 14 days, but a longer
notice can show goodwill) to the data controller, in this case,
the private parking company, of your intention to claim damages.
You might claim up to £300 for nominal damages under Article 82
of the UK GDPR and Section 168 of the Data Protection Act 2018.
This notice should clearly state that you will file a claim with
the County Court if they do not confirm in writing that all
references to this alleged debt have been deleted within 14
days. Be sure to mark your letter as a "Letter before County
Court proceedings."
>
> As a litigant-in-person, you can file your claim under Part 27
proceedings in the County Court (often referred to as the "Small
Claims Court"). Each party is responsible for their own legal
costs, regardless of the outcome, and the claim can be filed
online for a fee of £35 (for a claim up to £300) via the Money
Claim Online service (moneyclaimonline.gov.uk
HTML https://www.moneyclaim.gov.uk/web/mcol/welcome).
The successful
party can recover their court fees, making the total claim
amount £335.
--- End Quote ---
#Post#: 35808--------------------------------------------------
Re: PCN addressed to me for somewhere I have never been, car in
images is not mine - Smart Parking Ltd
DIR By: strawberrydoll
Date: September 5, 2024, 12:21 pm
---------------------------------------------------------
It was indeed the one with the three demands, and yes they
complied with the first two points and ignored the third point.
Understood, so I just send them a letter of claim with the title
Letter before County Court proceedings asking for a fixed amount
of compensation for the stress they caused and go from there? Or
do I send a letter just claiming without any mention of court?
I'm happy to start a claim if it means I get some compensation
back for the mini heartattack they caused. Thank you.
#Post#: 35812--------------------------------------------------
Re: PCN addressed to me for somewhere I have never been, car in
images is not mine - Smart Parking Ltd
DIR By: b789
Date: September 5, 2024, 12:34 pm
---------------------------------------------------------
Don't rush into this. You have to consider it carefully. By
making a claim using MCOL, if you are unsuccessful, it will have
cost you £35 for a claim of up to £300. Obviously, if you are
successful, you will get the £35 back together with the amount
that the judge agrees they are liable for.
If you do want to go ahead, you will need to issue an LoC which
we can draft for you. Should they not respond or fail to
compensate you, then you will have to file the claim on the MCOL
website yourself. It is a very straightforward process but does
require a bit of an idea of what is involved. The Particulars of
Claim (PoC) will have to be carefully crafted and more likely
than not will require you to send more detailed PoC within 14
days of the claim as the webform on MCOL has severe limitations.
It is not an issue and we are happy to assist but please
remember, we are not lawyers and it is not our £35 that is at
risk. If you feel up to it, let us know.
In the meantime, give smart 7 days to send the letter they
mention. If they haven't sent anything or it does not answer the
question about compensation, then we can proceed with with an
LoC.
#Post#: 35817--------------------------------------------------
Re: PCN addressed to me for somewhere I have never been, car in
images is not mine - Smart Parking Ltd
DIR By: strawberrydoll
Date: September 5, 2024, 12:51 pm
---------------------------------------------------------
Understood, I do appreciate the help very much. I'll think over
it and wait for the letter from them, I'll update this post next
week.
#Post#: 36452--------------------------------------------------
Re: PCN addressed to me for somewhere I have never been, car in
images is not mine - Smart Parking Ltd
DIR By: strawberrydoll
Date: September 11, 2024, 10:02 am
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I have received the letter
HTML https://i.imgur.com/cjZJCJa.png
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