WON !!!! tyke1601 vs BPS - Hearing 1st June - WON COUNTERCLAIM DAMAGES !!!!!!

[Amethyst]

Re: *** tyke1601 vs BritishPassportServices ( defence done 19/2 ) N180 - COUNTERCLAIM

''Hearing fee
The hearing fee is payable by the claimant except where the case is proceeding on a counterclaim alone, when it is payable by the defendant''

so I believe it is only payable by UKS&S - could be worth checking that with the court.

[Amethyst]

Re: *** tyke1601 vs BritishPassportServices ( defence done 19/2 ) N180 - COUNTERCLAIM

So prepare for assessment of damages hearing.

This is the counterclaim - two parts to it -

first is Counterclaim under the 2008 Regulations

The Defendant Counterclaims for the alarm and distress which has been caused by the Claimant’s misleading actions under Regulation 27J of the 2008 Regulations. Specifically, the misleading actions of the Claimant in breach of the 2008 Regulations caused the Defendant to enter into the alleged Agreement, which resulted in:
harassment of the Defendant by the Claimant for payment of monies which are not due; and
the alarm and distress associated with the foreseeable Claim and court proceedings which the Claimant has brought against the Defendant.

so BIS ref CPUT

Damages for distress and inconvenience
60. The Regulations expressly provide that consumers have a right to damages if the consumer has suffered alarm, distress or physical inconvenience or discomfort caused by the misleading or aggressive practice.
61. The amounts awarded for distress and inconvenience should be restrained and modest, in accordance with the general law in England and Wales and Scotland. Only in exceptional circumstances would these exceed £1,000, and in most cases, a nominal award, or an amount below £1,000 would be appropriate.
62. Damages for distress are most likely to be appropriate in respect of aggressive practices.

second is Counterclaim under the Data Protection Act

The Claimant has made the Personal Data of the Defendant freely available through the internet without any controls over who can gain access to that Personal Data. The web address which contains that Personal Data is printed on the Claim Form, and has been submitted to (and disclosed to) Her Majesty’s Court Service through the County Court Bulk Centre. Unidentified third parties can also access the Personal Data without any controls if they can guess the correct web address. All that is required to guess the correct web address is a name, or part of a name.
The Personal Data, as defined by section 1(1) of the Data Protection Act 1998, includes the Defendants:
Full name;
Home address;
Home telephone number;
Mobile phone number;
Personal email address;
Gender;
Date of Birth
Town of Birth
IP Address
Signature

The Defendant did not consent, and does not consent, to that Personal Data having been made, or continuing to be made, freely accessible through the internet.
The Claimant, in making that Personal Data freely available through the internet, has breached the First, Second, Third, Sixth, Seventh, and Eighth Data Protection Principles, as set out in s.4 and Schedule 1 of the Data Protection Act 1998.
The Claimant has failed in its duty to comply with the Data Protection Principles, contrary to s.4(4) of the Data Protection Act 1998.
The disclosure of the Personal Data, which has been disclosed on the Claim Form and has been made freely available through the internet, provides sufficient information to place the Defendant at serious risk of identity fraud. This disclosure of Personal Data and the risk of identity fraud has caused the Defendant distress, which has come about by reason of the Claimant’s contravention of the requirements of the Data Protection Act 1998. The Claimant therefore claims compensation under s.13(1) and 13(2) of the Data Protection Act 1998.
Furthermore, the Defendant seeks an Order of the Court:
requiring the Claimant to remove all Personal Data relating to the Defendant from any servers which are accessible through the internet and without sufficient controls to protect the Defendant’s Personal Data from being disclosed to third parties; and
prohibiting the Claimant from placing any of the Defendant’s Personal Data on any servers which are accessible through the internet and without sufficient controls to protect the Defendant’s Personal Data from being disclosed to third parties.

The Defendant’s Counterclaim for damages under the Data Protection Act 1998 and/or the 2008 Regulations is claimed at such a level that the Court deems appropriate in light of the Defendant’s alarm and distress and the Claimant’s wilful breaches of the Data Protection Act and/or the 2008 Regulations. In any event, the Defendant does not expect the value of the Counterclaim to exceed £300.

[tyke1601]

Re: *** tyke1601 vs BritishPassportServices - Hearing 1st June - won counterclaim

OK, just to give everyone a heads up where this case is at, we're next up on Monday at 12pm (1 hour hearing). Trickie Dickie has paid the Hearing Fee and sent his usual pack of waffle by the due date. Some of this guff was new/unseen by Amethyst but it's all on record now! In return he has been sent two Witness Statements; one for his claim and one for the counter claim we have already won. Not sure if RH has let the counterclaim slip through deliberately for some bizarre reason or that he is not that bright. Phoned the court Tuesday morning just gone to see if he had discontinued but they hadn't had such notice. It could have come in Tuesday afternoon but it doesn't matter as we have to attend for the counterclaim damages assessment.

Tomorrow an amazing skeleton argument is being sent to the court and to RH too. I feel he may have a small trouser accident when he reads it!

Will he turn up on Monday? Who knows. I'd be happy to help him off the train as it arrives in Barnsley station. Hey, I might even wait for the train to stop! All will be revealed in due course and I'll post here as soon as we get back from court.

Massive thanks to Amethyst and Tom and the rest of the Legal Beagles team for their considerable input. Hopefully Monday will be one more (big) nail in this toe-rag's coffin.

[Amethyst]

Re: *** tyke1601 vs BritishPassportServices - Hearing 1st June - won counterclaim

The 'new' bits are letters from a number of solicitors firms arguing the point in the ASA adjudication of what constitutes the average consumer. I'll post them in the Witness Statement thread. They don't really help his argument as in them they argue that people looking to renew their passports would be more careful than people ordering a pizza.... and I'm thinking, well yes, they were, and they were still misled !

Tyke1601 has already won the counterclaim he entered against BPS for damages (counterclaim is a couple of posts back) and part of the hearing is to assess how much those damages are.

Tom has kindly helped with the arguments in the case and we're referencing Foster-Burnell v Lloyds and Durkin v PC World ( orders of around £1000 and £8000 respectively for DPA breaches) The claim was for not expecting to exceed £300, but that can be increased by the judge if he finds it appropriate. If Mr Howard plays his usual trick of discontinuing the day before ( hearing is on Monday, he hasn't discontinued yet) then the damages assessment still continues.

Personally I have absolutely no idea if he is going to attend or not. The hearing is in Barnsley - so quite a trek from Wimbledon - so my guess would be not, but he received the skeleton arguments yesterday so may well decide to hop on a train at 7am Monday Morning.

[Amethyst]

Re: *** tyke1601 vs BritishPassportServices - Hearing 1st June - won counterclaim

Best of luck to you both tomorrow xxx I'll be on tent pegs all day waiting for news .... you are completely 100% in the right and any judge worth a biscuit will see that.

[tyke1601]

Re: *** tyke1601 vs BritishPassportServices - Hearing 1st June - won counterclaim

You're the first call I'll be making (Ethan will be ringing his mum!).

[tyke1601]

Re: *** tyke1601 vs BritishPassportServices - Hearing 1st June - won counterclaim

Just called the court. No Notice of Discontinuance given and no Notice of non-attendance given. Do you think he fancies his chances in Barnsley?

[Amethyst]

Re: *** tyke1601 vs BritishPassportServices - Hearing 1st June - won counterclaim

Maybe.... could be a long day if he does show up.

It's about 3 hours by train so he'll be on his way if he is attending.... cheeky me might consider ringing BPS and asking to speak with him to see if he is there.

If he doesn't attend then there is a small issue of non compliance with CPR and PD 27 - which assist you in the unreasonable behaviour argument for costs. (Para 45 of the skeleton) LIP costs £19 per hour (

Non-attendance of parties at a final hearing

27.9

(1) If a party who does not attend a final hearing–

(a) has given written notice to the court and the other party at least 7 days before the hearing date that he will not attend;

(b) has served on the other party at least 7 days before the hearing date any other documents which he has filed with the court; and

(c) has, in his written notice, requested the court to decide the claim in his absence and has confirmed his compliance with paragraphs (a) and (b) above,

the court will take into account that party’s statement of case and any other documents he has filed and served when it decides the claim.

(2) If a claimant does not –

(a) attend the hearing; and

(b) give the notice referred to in paragraph (1),

the court may strike out(GL) the claim.

(3) If –

(a) a defendant does not –

(i) attend the hearing; or

(ii) give the notice referred to in paragraph (1); and

(b) the claimant either –

(i) does attend the hearing; or

(ii) gives the notice referred to in paragraph (1),

the court may decide the claim on the basis of the evidence of the claimant alone.

(4) If neither party attends or gives the notice referred to in paragraph (1), the court may strike out the claim and any defence and counterclaim.

[Amethyst]

Re: *** tyke1601 vs BritishPassportServices - Hearing 1st June - won counterclaim

Couple extra bits - probably won't come up as its reference the counterclaim and that should already be decided but just for info, as I'm not sure we said much about it in the WS or skels. Really IF he turns up and argues the toss you know everything was public until end of Feb 2015 - thus your details were public for 3 months

The DPA breaches...

Richard claims that he has a unique 25 digit url to access private documents - he does on some but a majority of contacts are on a 5 digit code

eg. http://documentsarchive. org.uk/ machform/pdfs /Agreement-hvfym.pdf if you change the end letters randomly on there you get vast quantities of other peoples details (STILL)

He also argues he has passworded contract details - he only did that on 23rd/24th February - up until that point you could find peoples information simply by typing firstname last initial.passportdetails.co.uk lifting the applicant ID and adding it to the end of firstname lastinitial. signedcontract.org.uk / u - so example is sarahm.passportdetails.co.uk lift the number and styick on sarahp.signedcontract.org.uk/u54720 which NOW takes you to the password log in page but previously took you to a page such as attached screenshots - which contains direct link to the contract and the 'breakdown of charges'

[tyke1601]

Re: *** tyke1601 vs BritishPassportServices - Hearing 1st June - won counterclaim

Thanks for that - we're on our way now to register then stake out the railway station!

[Amethyst]

Re: *** tyke1601 vs BritishPassportServices - Hearing 1st June - won counterclaim

Oooo and you discovered it because a link in your email didn't need any password and you thought that was odd, so tried changing the name and someone elses popped up

Sorry, I'm so pants on court days just sit here thinking of everything we might not have made clear/strong enough in the WS/Skels - though really its completely uneccessary so don't let me stress you xxxxxxx

[Amethyst]

Re: *** tyke1601 vs BritishPassportServices - Hearing 1st June - won counterclaim

pmsl, I can just imagine - all piccies welcome

Train gets in about 11.39 or 12.11 - depending which train he got....

[Amethyst]

Re: *** tyke1601 vs BritishPassportServices - Hearing 1st June - won counterclaim

WON !!!!!!!!!!!!

[Nibbler]

Re: WON !!!! tyke1601 vs BPS - Hearing 1st June - WON COUNTERCLAIM DAMAGES !!!!!!

:bounce::bounce::bounce:

[Amethyst]

Re: WON !!!! tyke1601 vs BPS - Hearing 1st June - WON COUNTERCLAIM DAMAGES !!!!!!

Soooo, here's the (rather brilliant) skeleton arguments used in this case..... full credit to Tom Brennan for this !




IN THE BARNSLEY COUNTY COURT Claim No. B4QZ8135

B E T W E E N:-

UK SERVICES & SUPPORT LTD
Claimant/Part 20 Defendant
and

xxxxxxxxxxxxxxxx
Defendant/Part 20 Claimant

____________________________________________
SKELETON ARGUMENT FOR
THE DEFENCE AND COUNTERCLAIM
_____________________________________________

1. This skeleton argument is divided into two parts; the first part covers the Defence to the Claim, the second the assessment of damages in the Counter-Claim.

defence

1. The Claimant, trading as British Passport Services, operates a “copycat” website which claims to offer access to Government services for which the Claimant is not an official Government provider, specifically in relation to UK Passports. The Claimant used misleading advertising, words, and conduct to induce the Defendant to enter into an alleged Agreement to provide “services” in relation to obtaining a Passport. This cannot be allowed to form the basis of any claim against a consumer.

1. The defence can be summarised thus:
   1. Either there was no contract; or
   2. The Claimant bound the Defendant to terms and conditions which could not be seen in advance, and are therefore unfair, rendering the whole of the agreement non-binding on the Defendant; or
   3. If there was a contract, the Claimant’s failure to provide a copy of the contract in a durable medium allows the Defendant to cancel the contract; or
   4. The Claimant’s misleading actions entitles the Defendant to unwind the contract; or
   5. The Claimant’s misrepresentations entitle the Defendant to rescind the agreement; or
   6. The Claimant used disproportionate charges for breach of the agreement, which amount to unfair terms and are therefore not binding on the Defendant.

1. No formation of contract

1. As set out in the Defendant’s witness statement at paragraphs 8 to 12, the Defendant did not complete the payment page of the Claimant’s online booking process. Instead, noting that the process could be cancelled, the Defendant closed the website and did not pay. It follows that there was no consideration given for the contract, and up until payment was processed there was no intention to create legal relations. This leads to the inevitable conclusion that there was no formation of a contract and the Claimant’s claim must fail.

1. The Claimant bound the Defendant to unfair terms which could not be seen in advance

1. Under the Unfair Terms in Consumer Contracts Regulations 1999 (“the UTCCRs”), any attempt to bind consumer to terms and conditions which cannot be seen in advanced is normally considered ‘unfair’. In particular paragraph 1 of Schedule 2 to the Regulations, which sets out an indicative and non-exhaustive list of terms which may be considered unfair, includes terms:

(i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract;

1. A term is rendered unfair by virtue of Regulation 5:

5.—(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

1. The terms in question in this case are clearly unfair, but further guidance can be obtained from the words of Lord Bingham at paragraph 17 of Director General of Fair Trading v First National Bank Plc [2001] UKHL 52:

The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer. Fair dealing requires that a supplier should not, whether deliberately or unconsciously, take advantage of the consumer’s necessity, indigence, lack of experience, unfamiliarity with the subject matter of the contract, weak bargaining position or any other factor listed in or analogous to those listed in Schedule 2 to the Regulation.

1. In this case, the Claimant clearly took advantage of the Defendant’s lack of experience and unfamiliarity of obtaining a passport, and bound the Defendant to terms which he had no opportunity of viewing in advance, because the Defendant had to “agree” to the terms and conditions prior to going through the booking process and prior to making payment.
2. An unfair term is rendered non-binding on the consumer by virtue of Regulation 8:

8.—(1) An unfair term in a contract concluded with a consumer by a seller or supplier shall not be binding on the consumer.
(2) The contract shall continue to bind the parties if it is capable of continuing in existence without the unfair term

1. If there was an agreement to pay, notwithstanding the lack of consideration and the lack of intention to create legal relations, then it follows that the Defendant was bound to the terms and conditions of the Claimant’s standard terms before having an opportunity to review them. In particular, the Defendant was required to make a payment online using a credit or debit card which the Defendant did not have, in addition to all the other terms which the Claimant asserts are included in the contract. This is clearly unfair, and any terms, including the requirement to make payment for the alleged services, should be ruled as being unfair under the UTCCRs and non-binding on the Defendant.
2. Further, since binding the Defendant to a collection of terms before the Defendant has made the decision to pay for any services is clearly unfair under the UTCCRs. As a result, the entire contract (if there even is one), should be voided or made voidable at the Defendant’s request under regulation 8(2) of the UTCCRs above, since the contract clearly cannot continue without the relevant terms requiring payment.

c. failure to provide a copy of the contract in a durable medium

1. The alleged Agreement was conducted through the Claimant’s website, www.BritishPassportServices.co.uk. The alleged Agreement, if valid, amounts to a Distance Contract as set out in Regulation 5 of the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (“the 2013 Regulations”).
2. The Claimant failed to give confirmation of the alleged Agreement in a Durable Medium, contrary to Regulation 5 and Regulation 16(1) of the 2013 Regulations:

Confirmation of distance contracts
16.—(1) In the case of a distance contract the trader must give the consumer confirmation of the contract on a durable medium.

1. The Department for Business, Innovation and Skills has given Implementing Guidance on the 2013 Regulations.[1] That Guidance states in section G Providing Information:

3. The regulations require confirmations for distance contracts and off-premises contracts to be provided on a durable medium…
4. There are a number of ways in which the trader can meet their obligation to ensure that they provide the relevant information in a durable medium.

• A letter is a durable medium…
• A CD/DVD is a durable medium…
• An email is a durable medium. However, information contained via link to a website which may change, and which is embedded in an email is not.

1. The Claimant did not send a copy of the contract in a durable medium, they merely provided a link to a website. The alleged performance of the alleged “services” under the alleged Agreement took place without such confirmation being sent in a Durable Medium, contrary to Regulation 16(4) of the 2013 Regulations. Any performance of the alleged “services” is in breach of the alleged Agreement, contrary to Regulation 18 of the 2013 Regulations, such that the Defendant is not liable to pay for those alleged “services”.
2. The Defendant exercised his right to cancel the Agreement by closing the “pay now” browser window on his computer, and thereby ending the Agreement (see paragraph 12 of the Defendant’s witness statement). Alternatively, the Defendant was precluded from exercising his right to cancel the alleged Distance Contract under Regulation 29 of the 2013 Regulations, and within the Normal Cancellation Period under Regulation 30 of the 2013 Regulations. This is because the Claimant alleges that it immediately performed the alleged services under the alleged agreement.
3. If follows that the Defendant therefore has no obligations under the alleged Agreement, as set out by Regulation 33 of the 2013 Regulations. The alleged debt is therefore not due to the Claimant.
4. Further or alternatively, the alleged “service” was not completed before the Defendant cancelled the alleged Agreement by closing the browser window and not paying, such that the Defendant can only be liable for those “services” that were actually supplied (of which there are none).
5. Further or alternatively, the Claimant failed to supply information on the right to cancel required by paragraph (l) of Schedule 2 to the 2013 Regulations, such that the Defendant is not liable to pay for any alleged “services” that were in fact carried out prior to the cancellation of the alleged Agreement.

d. The Claimant’s misleading actions entitles the Defendant to unwind the contract

1. Under Consumer Protection from Unfair Trading Regulations 2008 (“the 2008 Regulations”), as amended by The Consumer Protection (Amendment) Regulations 2014, various “unfair commercial practices” against consumers have been prohibited. The 2008 Regulations encompass forms of unfair practice conducted before or when the contract is entered into; unfair practices that lead the consumer, or may lead the average consumer, to make a “transactional decision” other than to enter a contract; and also unfair practices that lead the consumer to make a payment or some other transactional decision at a later stage.
2. The 2008 Regulations (as amended) provide remedies for individual consumers who are the victims of two forms of unfair commercial practice, “misleading actions” and “aggressive practices” and who have entered a contract with or made a payment to the trader as a result. The principal provisions are contained in a new Part 4A of the 2008 Regulations.
3. The Defendant “has a right to redress” if three conditions are satisfied:
   1. a consumer enters into a contract with a trader, or makes a payment to a trader;
   2. the trader or has engaged in a relevant “prohibited practice”; and
   3. the prohibited practice was a significant factor in the consumer's decision to enter into the contract or make the payment.
   
   
4. Assuming that there is even a contract to being with, then all three of these requirements have been satisfied in this case; the Defendant entered into an agreement, the Claimant has engaged in misleading actions; and those misleading actions were a significant factor in the Defendant’s decision to enter into the contract. See in particular paragraphs 7, 13, and 16 to 18 of the Defendant’s witness statement.
5. The Defendant’s evidence is supported by reference to the Advertising Standards Authority (“the ASA”) ruling against the Claimant[2]. In 2014 the ASA conducted an investigation into the Claimant in respect of their online “services” advertised on their principle website, www.ukpassportoffices.co.uk. On 17 September 2014 the ASA made 2 decisions based on its investigation into BPS. The ASA ruled that BPS had:
   1. misleadingly implied that it was the official website for HMPO; and
   2. was misleading because it did not make clear that the fee charged by the BPS was a service charge only, and that an additional fee was payable to HMPO to obtain a passport.
   
   
6. Under the 2008 Regulations, “misleading actions” are prohibited by Regulation 5:

“5. Misleading Actions
(1) A commercial practice is a misleading action if it satisfies the conditions in either paragraph (2) or paragraph (3).
(2) A commercial practice satisfies the conditions of this paragraph-
(a) if it contains false information and is therefore untruthful in relation to any of the matters in paragraph (4) or if it or its overall presentation in any way deceives or is likely to deceive the average consumer in relation to any of the matters in that paragraph, even if the information is factually correct; and
(b) it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.
(3) A commercial practice satisfies the conditions of this paragraph if-
(a) it concerns any marketing of a product (including comparative advertising) which creates confusion with any products, trade marks, trade names or other distinguishing marks of a competitor; or
(b) …
(4) The matters referred to in paragraph (2)(a) are-
(a) the existence or nature of the product;
(b) the main characteristics of the product (as defined in para 5);
(c) the extent of the trader's commitments;
(d) the motives for the commercial practice;
(e) the nature of the sales process;
(f) any statement or symbol relating to direct or indirect sponsorship or approval of the trader or the product;
(g) the price or the manner in which the price is calculated;
(h) the existence of a specific price advantage;
(i) the need for a service, part, replacement or repair;
(j) the nature, attributes and rights of the trader (as defined in para 6);
(k) the consumer's rights or the risks he may face.”

1. As can be seen from Regulation 5, there have been a number of misleading actions on behalf of BPS, including suggestions or inferences that they are authorised by HMPO, that the product they are providing includes the passport fee, and other matters which have been highlighted in the ASA decision. Given the misleading practices highlighted by the ASA, and given the facts set out in the Defendant’s witness statement, it is clear that there have been misleading actions by the Claimant. The Claimant asserts that they are challenging the decision of the ASA; but there is no indication that the appeal will be successful, and the court is entitled to proceed on the basis of facts and decisions as they are at the time of trial. Indeed, in several other cases involving this website and in which this Claimant is a party, the courts have found the Claimant’s website to be misleading and have dismissed the Claimant’s claim with costs.
2. The Court can grant the Defendant the right to unwind the agreement (if there is one) under Regulation 27K of the 2008 Regulations (as amended):

27K.—(1) A consumer with a right to redress under this Part may bring a claim in civil proceedings to enforce that right.
(2) In Scotland, proceedings to enforce the right to unwind may be brought before the sheriff or in the Court of Session.
(3) Paragraph (4) applies if in proceedings under this regulation the consumer establishes that the consumer has—
(a) the right to unwind,
(b) the right to a discount, or
(c) the right to damages.
(4) The court must make an order that gives effect to—
(a) that right, and
(b) any associated obligations of the consumer under this Part.
e. Claimant’s misrepresentations entitle the Defendant to rescind the agreement

1. The ruling against the Claimant by the ASA (set out in paragraph 24 above) is evidence that the Claimant made a number of misrepresentations to the Defendant. The Defendant is entitled to rescind the contract under s.1 of the Misrepresentation Act 1967, or is entitled to damages under s.2 of Misrepresentation Act 1967. This defence only applies if the previous grounds of the defence are unsuccessful.
2. In particular, as set out in the Claimant’s particulars of claim, the Claimant states that they provided the Defendant with a package which included booking the Defendant an appointment at the passport office. However, the alleged appointment made by the Claimant was not for the Defendant, as it was actually made for an individual named Louis Clayton. Stating that an appointment will be made in the name of the consumer, but in fact making it in another person’s name is a clear misrepresentation, or at the very least, a breach of the terms of the agreement. Given that this is the only “service” which the Claimant is said to have actually provided (see paragraph 5.2 of the Claimant’s witness statement), this amounts to a complete failure to provide the alleged “services” under the agreement. Furthermore, the notification text message in relation to the appointment for Louis Clayton is listed as “undelivered”, meaning it was never received, further reinforcing the total failure of consideration by the Claimant in not actually providing the alleged services. The Claimant’s claim must therefore be dismissed.

f. The Claimant used disproportionate charges for breach of the agreement

1. The Claimant has added a number of costs and charges to the Claim, but they are not expressly included in the agreement (assuming that there even is a valid agreement). As such, those charges cannot be applied to the Defendant under the Agreement, and they cannot be recovered in these proceedings without a ruling under CPR27.14(2)(g) that the Defendant has behaved unreasonably in defending this claim.
2. Furthermore, such costs and charges, if they were incorporated into the alleged agreement, would be unfair under the UTCCRs, as set out in paragraphs 15 to 20 of the Defendant’s Defence. Such costs and charges, being unfair under the UTCCRs, are not binding on the Defendant and should be struck out from the claim.

counterclaim

1. The Counterclaim is set out in full in paragraphs 22 to 29 of the Defence and Counterclaim. On 26^th March 2015 District Judge Babbington ordered that the Defendant’s counterclaim was successful (presumably due to a failure on the part of the Claimant to submit a defence to that counterclaim). All that remains to be determined is the level of damages for the Counterclaim under the 2008 Regulations and the Data Protection Act.

The Counterclaim under the 2008 Regulations

1. This counterclaim is for damages for the alarm and distress which has been caused by the Claimant’s misleading actions under Regulation 27J of the 2008 Regulations (as amended). Specifically, the misleading actions of the Claimant in breach of the 2008 Regulations caused the Defendant to enter into the alleged Agreement, which resulted in:
   1. harassment of the Defendant by the Claimant for payment of monies which are not due; and
   2. the alarm and distress associated with the foreseeable Claim and court proceedings which the Claimant has brought against the Defendant.
   
   
2. The Regulations expressly provide that consumers have a right to damages if the consumer has suffered alarm, distress or physical inconvenience or discomfort caused by the misleading or aggressive practice.
3. The Guidance on the Consumer Protection (Amendment) Regulations 2014 from the Department for Business Innovation and Skills[3] states:

Damages for distress and inconvenience
60. The Regulations expressly provide that consumers have a right to damages if the consumer has suffered alarm, distress or physical inconvenience or discomfort caused by the misleading or aggressive practice.
61. The amounts awarded for distress and inconvenience should be restrained and modest, in accordance with the general law in England and Wales and Scotland. Only in exceptional circumstances would these exceed £1,000, and in most cases, a nominal award, or an amount below £1,000 would be appropriate.

1. In this case, the Claimant has mislead and harassed a young student at a particularly sensitive time in his studies. The Claimant has had clear indications from the ASA and the courts that the website is misleading and that such conduct is not acceptable. The Claimant should pay the Defendant the high end of the bracket for distress and inconvenience, namely close to or exactly £1,000. It must be made clear to the Claimant that misleading consumers in this manner and pursuing consumers in the courts in such circumstances will not be tolerated. As yet, the Claimant does not appear to have understood that message. It is submitted that the only way to drive home this message is by hitting the Claimant in the wallet.

Counterclaim under the Data Protection Act

1. This part of the Claim has also been successful, by order of District Judge Babbington on 26^th March 2015; all that needs to be determined is the level of damages.
2. It should be noted that the Claimant has made the Personal Data of the Defendant freely available through the internet without any controls over who can gain access to that Personal Data. The web address which contains that Personal Data is printed on the Claim Form, and has been submitted to (and disclosed to) Her Majesty’s Court Service through the County Court Bulk Centre. Unidentified third parties can also access the Personal Data without any controls (such as a password) if they can guess the correct web address. All that is required to guess the correct web address is a name, or part of a name.
3. The Personal Data, as defined by section 1(1) of the Data Protection Act 1998, includes the Defendant’s:
   1. Full name;
   2. Home address;
   3. Home telephone number;
   4. Mobile phone number;
   5. Personal email address;
   6. Gender;
   7. Date of Birth
   8. Town of Birth
   9. IP Address
   10. Signature
   
   
4. The Defendant did not consent, and does not consent, to that Personal Data having been made, or continuing to be made, freely accessible through the internet. The Claimant, in making that Personal Data freely available through the internet, has breached the First, Second, Third, Sixth, Seventh, and Eighth Data Protection Principles, as set out in s.4 and Schedule 1 of the Data Protection Act 1998. The Claimant has failed in its duty to comply with the Data Protection Principles, contrary to s.4(4) of the Data Protection Act 1998.
5. The disclosure of the Personal Data, which has been disclosed on the Claim Form and has been made freely available through the internet, provides sufficient information to place the Defendant at serious risk of identity fraud for many years to come. This disclosure of Personal Data and the risk of identity fraud has caused the Defendant distress, which has come about by reason of the Claimant’s contravention of the requirements of the Data Protection Act 1998.
6. Although there is currently little guidance on damages under the Data Protection Act, minor breaches which have not lead to any financial loss include: Foster-Burnell v Lloyds (unreported), where damages of £1,000 have been awarded for an inaccurate default of £800 on a consumer’s credit rating; and Durkin v DSG Retail Limited and another [2014] UKSC 21, where a consumer was awarded £8,000 for a serious inaccurately recorded default on his credit rating.
7. The nature of the release of almost all of the Defendant’s personal data onto the internet with absolutely no controls over access must amount to a very serious breach of the Data Protection Act. As such, damages should be awarded more towards the Durkin range of damages (i.e. £8,000) rather than towards the lower end of the scale as in Foster-Burnell (i.e. £1,000).
8. These are just guideline rulings, however, and the Court must obviously impose a level of damages that the Court considers appropriate in light of the serious breaches of both the Data Protection Act 1998 and the 2008 Regulations.

Final Order

1. If successful, the Defendant also seeks an order in the terms set out in paragraph 28 of the Defence and Counterclaim. Furthermore, the Defendant seeks his costs as a litigant in person, which should be awarded on the basis that the Claimant’s behaviour, both in using misleading/unlawful actions, breaching the Data Protection Act, and pursuing this young Defendant in court, amounts to unreasonable behaviour under CPR 27.14(2)(g).

28 May 2015

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[1] https://www.gov.uk/government/upload...s-guidance.pdf

[2] http://asa.org.uk/Rulings/Adjudicati...x#.VNsP5C4sp-V

[3] https://www.gov.uk/government/upload...4-guidance.pdf