Company making threats regarding GDPR

[des8]

Regarding storage charges it's reported that in**Kolfor Plant Hire Limited v Tilbury Plant Hire Limited*Judge Newey QC pointed out that an involuntary bailee has no general right to recover the costs of storing unwanted goods or of removing them to a place of storage. This is because storage charges can only be created by contract. (can't find a transcript)

For a claim under trespass wouldn't the damages be calculated according to the losses flowing directly from the trespass i.e. the cost to the nascent business caused by the delay in refitting due to the refusal to remove the machine?
It is possible the cost of Machinennote's licence would be paltry on the basis the facility is of benefit to the shop.

There is still the possibility of a claim against the vendor of the property to JD01 if it was supposed to be with vacant possession

[jd01]

You can try, but if as Des suggests, storage can't be claimed except for contract that argument falls away and in any event, it might be considered a form double recovery i.e. you are charging storage costs but at the same time would be charging a rate for what you might expect if that space was rented.

Thanks for confirming that, I'll stick with the trespass option then as you and Des8 have both mentioned that storage charge would need a contract, and thanks for the links, I'll read them tonight.

[R0b]

Regarding storage charges it's reported that inKolfor Plant Hire Limited v Tilbury Plant Hire LimitedJudge Newey QC pointed out that an involuntary bailee has no general right to recover the costs of storing unwanted goods or of removing them to a place of storage. This is because storage charges can only be created by contract. (can't find a transcript)

For a claim under trespass wouldn't the damages be calculated according to the losses flowing directly from the trespass i.e. the cost to the nascent business caused by the delay in refitting due to the refusal to remove the machine?
It is possible the cost of Machinennote's licence would be paltry on the basis the facility is of benefit to the shop.

There is still the possibility of a claim against the vendor of the property to JD01 if it was supposed to be with vacant possession

Thanks Des, indeed there's no transcript I can find, it was reported in the Solicitors Journal so the only likely copy will be in the Law Society's library in London. Having said that, the case you've referred to led me to another much earlier authority Nicholson v Chapman (1793) suggesting that recovery could be possible. Couldn't find the judgment but there was a relevant quote I found:



Also, there seems to be an argument on policy grounds based on restitution, that is, if the bailee is not reimbursed for storing/looking after it, then the owner may be unjustly enriched at the expense of the bailee.

Quite right about losses on trespass, but aggravated damages is available trespass where an individual issues a claim in that capacity. I am also fairly confident consequential losses can also be recovered depending on how the trespass is framed - one might say the trespass has caused additional cost and expense causing knock on delays and further resulting in the shop losing out on money, and so the hypothetical negotiation may not be the correct method here.

jd01 You may want to combine your trespass claim with an alternative claim in private nuisance which may very well uplift any right to damages. If you are going down this route and assuming you haven't raised these points before then a fresh letter of claim would be the sensible option, explaining to the company that you are looking to go down this route if they continue to be unreasonable which is likely to cause them to incur much more expense than it is to assist in the removal.

[jd01]

There is still the possibility of a claim against the vendor of the property to JD01 if it was supposed to be with vacant possession

Basically, the ATM company had told the vendor that they'd remove the ATM upon request from the new occupier and we were informed of that. He has actually been quite decent towards me so I don't want to make a claim against him, especially when this ATM company is behaving such an unprofessional manner.

[jd01]

You may want to combine your trespass claim with an alternative claim in private nuisance which may very well uplift any right to damages. If you are going down this route and assuming you haven't raised these points before then a fresh letter of claim would be the sensible option, explaining to the company that you are looking to go down this route if they continue to be unreasonable which is likely to cause them to incur much more expense than it is to assist in the removal.

Thanks for pointing that out. How would I go about putting that into a formal letter? Would I say something along the lines of "Your ATM unit is trespassing on my property and it's causing a nuisance to my business by preventing me from refurbishing the premises"?

[ploddertom]

I've been following what has been said here and don't have anything to add to help. But if you look Notemachine up they do not have a good write up anywhere and tend to be just dismissive of any complaints. Personally I think you are being given the run around by them.

[R0b]

Thanks for pointing that out. How would I go about putting that into a formal letter? Would I say something along the lines of "Your ATM unit is trespassing on my property and it's causing a nuisance to my business by preventing me from refurbishing the premises"?

The ingredients for a letter before action needs to have sufficient detail to put the other side on notice of your intention to issue a claim if the dispute is not resolved, and the legal basis for your claim. So as a starting point you can use the framework below.

1. An introductory paragraph of a few lines to say that the letter before claim is being sent because they have failed to adequately engage with you in the removal of their ATM from your property despite repeated requests to do so. Therefore, unless matters are resolved in accordance with the timescale given in the letter, you will issue legal proceedings and seek both an order from the court for the removal/disposal of the ATM and damages based on trespass and nuisance.

2. This paragraph should be "Relevant facts" and set out essentially a concise timeline of events leading up to now. That doesn't mean you have to detail every email back and forth, but summarise the comments and responses and what action you/they have or haven't done.

3. This paragraph should be headed "Nuisance and Trespass" and this is where you explain how they the ATM machine has trespassed on your property despite you asking for them to come and remove it. You may want to upon the point where they are relying on COVID-19 as an excuse but you can counter that by saying you have already spoken to two companies who would be prepared to do the work, but they have refused outright without any reasonable justification. As for nuisance, explain why in particular this is causing a nuisance to you and perhaps a reference to you being told by the vendor that you had agreed to remove it on request.

4. This heading is "Compensation" and should set out what you are claiming and how it has been calculated. In your case, one way to calculate the compensation is to base it on the cost of the rental of the ATM on your property i.e. the occupation of it. So you might need to find that out first or do some research. Nuisance would be more difficult to quantify and I doubt it would be a large value - plucking something out of thin air £500 sounds like a good starting point, and as I said, if your business is not a company, you could also look to claim aggravated damages based on their conduct in all of this, that could easily start around the £1,000. difficult to put a figure on it but a combination of the losses incurred, duration of it being there together with the inability to make use/enjoyment of your property will all be considered.

5. This paragraph is "Action Required" and is essentially telling them what you want them to do to resolve the dispute. Provide them with a deadline to respond to the letter and would be worth putting in a longstop date for the removal of it e.g. reply within 14 days confirming whether they will take the necessary action or deny responsibility and if so an explanation on what grounds, and then in any event the ATM needs to be removed within 28 days from the date of the letter. If no response is made within 14 days, you will issue legal proceedings without further notice to them.

If you want any feedback suggest you upload a draft for comment before you send it off.

[jd01]

I've been following what has been said here and don't have anything to add to help. But if you look Notemachine up they do not have a good write up anywhere and tend to be just dismissive of any complaints. Personally I think you are being given the run around by them.

They're awful, and incredibly unprofessional, they always slip veiled threats in their communication in an attempt to intimidate, I feel like I'm dealing with the mafia!

[jd01]

The ingredients for a letter before action needs to have sufficient detail to put the other side on notice of your intention to issue a claim if the dispute is not resolved, and the legal basis for your claim. So as a starting point you can use the framework below.

Thank you so much for your detailed response, I really appreciate it, I'm in the process of putting that letter together now.

[teddystella]

They don't have a leg to stand on regards to GDPR case.