Contract between Land Owner and Parking Operator

[Scrumpy11]

You can use whatever evidence you like, so long as it's not considered confidential, legal privilege or restricted by an order of the court.
Â*

I was concerned by the following quote "This information is provided without prejudice and in good faith." I understood anything given 'without Prejudice', could not be used in court.

The royal mail confirmed the operator had nothing set up, therefore, have lied to the court.Â* Not sure how they well take that.Â*

I am currently entering the data into the document you put online. I have made the contract second on list, pointing priority on registered address as this takes away any right to operate their company.Â* l so condensing the information and leaving quite a bit out.

Thanks Rob

[R0b]

I missed that line, but the without prejudice rule is used to enable parties to a dispute speak frankly without having to worry that it will later be used against them. The WP rule applies to genuine attempts to settle a dispute - it can't be slapped on any document and then protected because the communication itself must be a an attempt to settle. However, if the letter forms part of a chain of correspondence which in substance is seen as an attempt to settle the claim, then it will be protected. You can't cherry pick which is and isn't coverd by WP.

Looking at the letter on it's own, I can't see how it is protected and therefore it could be be used as part of your evidence. There's nothing in the communication which indicates an intention to settle. Presumably the other side will object because it says the letter is sent without prejudice but there's plenty of case law on subject if you do some research.

[Scrumpy11]

Hi all,

I have a questions regarding the legality of my Landlords new contract with the Parking operator.


Please see the two contracts which CMS have held with my Landlord. We have already established that CMS moved out of their registered address, '55 St Leonards Road West' on the 23 January 2018. CMS have stated that they never updated the address to which their company was registered to as the new property was only temporary/ shared and unsecure. (This was false as they shared the address with their parent company, 'Adams Signs.')

CMS are continuing to use their previous address on the new contract which is dated by the operator 01 May 2019, then by the landlord, several months later, on the 09 September 2019. CMS moved out of the address on the 23 January 2018, yet failed to update their new address with companies House until the 25 July 2019.

Who are CMServices?* The company has registered its name as Comprehensive Management Services. There is no such company as CMSevices;.


Is this new contract legal?

[Scrumpy11]

Hi all,

I have a questions regarding the legality of my Landlords new contract with the Parking operator.


Please see the two contracts which CMS have held with my Landlord. We have already established that CMS moved out of their registered address, '55 St Leonards Road West' on the 23 January 2018. CMS have stated that they never updated the address to which their company was registered to as the new property was only temporary/ shared and unsecure. (This was false as they shared the address with their parent company, 'Adams Signs.')

CMS are continuing to use their previous address on the new contract which is dated by the operator 01 May 2019, then by the landlord, several months later, on the 09 September 2019. CMS moved out of the address on the 23 January 2018, yet failed to update their new address with companies House until the 25 July 2019.

Who are CMServices? The company has registered its name as Comprehensive Management Services. There is no such company as CMSevices;.


Is this new contract legal?

Can anyone help please?

[Scrumpy11]

I was concerned by the following quote "This information is provided without prejudice and in good faith." I understood anything given 'without Prejudice', could not be used in court.

The royal mail confirmed the operator had nothing set up, therefore, have lied to the court. Not sure how they well take that.

I am currently entering the data into the document you put online. I have made the contract second on list, pointing priority on registered address as this takes away any right to operate their company. l so condensing the information and leaving quite a bit out.

Thanks Rob

Hi Rob,

I really could do with some advice.

Defendant 1 - Landlord and Land Owner
Defendant 2 - Parking Operator

To jog your memory:

I had issued a joint claim against both defendants for Breach of the GDPR18 regulations. The parking operator had no reasonable cause to access my personal data from the DVLA, then process and share my personal data with two separate legal interties, one of which an unlicensed debt collector.

My landlord has already admitted being joint controller, there fore is equally as responsible as the parking operator for my data.

I have proved that there is no valid contract for the parking operator to manage the land where I was parked, their contract gives the wrong site address, it was for this reason the PCN was cancelled by the IPC, (after 33 complaints and a request for disclosure.) Please see attached document, which is the contract both parties hold(personal details removed). Please note, the site address does not give explicit rights for the parking operator to manage Albert Rd.

The parking operator pursued me on two occasions ( sept 2018 and Jan 2019),for not displaying a permit. Close inspection of the permit I was issued in 2017, shows that the permit was for the parking operators previous company which was liquidated in 2015.

The parking operators signs and company did not conform to regulations. The parking operator has now stated that they asked their friend to hold their mail at the depot for over 18 months, in a vain attempt to justify operating their company from their previous address, the same address their company was registered to of which they had no permission to use post January 2018. They eventually updated their companies details with companies House on the 25 July 2019, I believe due to my complaints to the IPC and the DVLA.

.

Dilemma:

The land owner has made an offer, with a gagging order attached. I will get half of what I claimed and no other tenant will be compensated for the fraudulent activities of the parking operator when my landlord let continue to happen for over 12 months.

Should I refuse the offer, would I be right I assuming that only one of the defendants will have the judgment made against them, leaving the other defendant to issue costs against me?

Should the judgment be made against the parking operator, well it is a LTD company with no assets within their name, I would never receive a penny from them. This would leave me open to £1000's of pounds costs from my land lord

Would my assumption be correct?

The landlord stated "We believe that we are in strong position to defend the claim set out in our Defence and witness statement, particularly as the parking charges were rescinded and you have failed to provide any evidence of breaches of the General Data Protection Regulations 2018. Not least you have not informed the Data Commissioner of these alleged breaches. However our client is mindful of the need to attempt to settle and bring this matter to a resolution."

This cannot be correct as if their was no valid contract to manage the land, then the parking operator had breached article 6.1 of the GDPR18 by failing to enter me into a contract. Furthermore not having my permission to access and share my data.

My landlord has shown me utter contempt, not believing me for over 12moths that their agent was operating fraudulently, their signage dod not conform to regulations and they lied on where I was parked.

I would appreciate any assistance you could offer.

Kind regards

Stevieb

[R0b]

If you refuse to agree to their terms of settlement then the claim continues with both defendants unless you have obtained default judgment against one or both of them.

I think you're quite right that if there was no contract to manage the land in the first place then that is a breach in of itself, since they had no lawful right to pursue you. Not sure why they are saying you never reported it to the ICO, there's no legal obligation to do that. On the contrary, Article 33 requires the data controller to report data breaches to the supervisory authority - so the real question is, has the landlord reported it and if not, why not?

Can you share the settlement terms? Gagging order is standard practice by law firms but doesn't mean that you have to agree to it. Also why are they stating that no other tenants can bring a claim, are you the owner of the property or a tenant?

It really depends on how strong you think your case is and whether you think it is worth pursuing it to a hearing. Obviously if the contract shows that the arrangement was for another site then I would think that is almost a slam dunk breach of the GDPR unless there's something else to contradict that evidence.

If you wanted to settle then you could at least try increasing the amount they are prepared to offer. Personally, I would never agree to a confidentiality gagging clause unless they're willing to pay for it. The only reason why a claim was made in the first place because they didn't bother to take you seriously so it it's the landlord's fault you ended up in this situation, not you. Presumably they could have communicated with a view to resolving the problem without the need for court so why should you be gagged from discussing your case? The amount being offered I can understand as they don't want to set a precedent but the whole of the dispute is another thing.

[Scrumpy11]

If you refuse to agree to their terms of settlement then the claim continues with both defendants unless you have obtained default judgment against one or both of them.

I think you're quite right that if there was no contract to manage the land in the first place then that is a breach in of itself, since they had no lawful right to pursue you. Not sure why they are saying you never reported it to the ICO, there's no legal obligation to do that. On the contrary, Article 33 requires the data controller to report data breaches to the supervisory authority - so the real question is, has the landlord reported it and if not, why not?

Can you share the settlement terms? Gagging order is standard practice by law firms but doesn't mean that you have to agree to it. Also why are they stating that no other tenants can bring a claim, are you the owner of the property or a tenant?

It really depends on how strong you think your case is and whether you think it is worth pursuing it to a hearing. Obviously if the contract shows that the arrangement was for another site then I would think that is almost a slam dunk breach of the GDPR unless there's something else to contradict that evidence.

If you wanted to settle then you could at least try increasing the amount they are prepared to offer. Personally, I would never agree to a confidentiality gagging clause unless they're willing to pay for it. The only reason why a claim was made in the first place because they didn't bother to take you seriously so it it's the landlord's fault you ended up in this situation, not you. Presumably they could have communicated with a view to resolving the problem without the need for court so why should you be gagged from discussing your case? The amount being offered I can understand as they don't want to set a precedent but the whole of the dispute is another thing.

Hi Rob, trust you are keeping well,

Thank you for your advice. I think I will proceed with the claim.

Can I request the Court make the judgment against my landlord? as it is them that have the contract with the parking operator. They admitted being joint data controllers, my trail of thought is that they are equally liable.

I am lost, take a look at the parking operators witness statement, it contradicts itself and their evidence does not tally with their defence against my claim. They are deflecting their responsibility, blaming land lord but better still, have stated they had no contract to manager the land, but still maintain I breached their terms and conditions.

I really appreciate advice, thank you

Kind regards

Stevieb

[R0b]

Sorry but I'm lost, you were talking about the landlord but now your going on about the parking operator and their witness statement. I think you need to explain what is the current state of play.

Have both defendants filed a defence and witness statement or if not, what stage are you at with proceedings?

*

[Scrumpy11]

Sorry but I'm lost, you were talking about the landlord but now your going on about the parking operator and their witness statement. I think you need to explain what is the current state of play.

Have both defendants filed a defence and witness statement or if not, what stage are you at with proceedings?

Hi Rob,

I have issued a joint claim against my landlord (Joint Controller) and the Parking Operator (Controller), for breach of the GDPR18. The parking operator had no reasonable cause to access, process and share my personal data with third parties. My landlord by admitting they were joint controllers were also responsible.

For over 12 months I have been fighting my landlord who stated that my argument is with the parking operator not my landlord. I tried to explain that the parking operator have no valid address of service. My mail was either being destroyed by the royal mail or returned.

Both defendants have filed their defence and witness statements. The court has vacated the court date (20 May) due to the cvid19 situation. Requesting they we try to settle, it we cannot reach an agreement, then would we consent to the case being tried on paper. Which I would have no qualms with.

The parking operator are blaming the landlord for the issue with contracts, permits not being issued correctly. Both parties are stating that I breached the parking operators terms and conditions as I was not displaying a permit.

As explained the PCN was cancelled due to the issue with the site address. The defendants contract does not give explicit right for parking operator to manage the carpark where I was park, it does give them right to manage the adjoining carpark which is in a separate geographical location (post code) with no through road.

The permit which residents are displaying onsite are for the parking operators previous company which was liquidated in 2015. The signage the parking operator gave as evidence to the IAS are displayed in the other carpark, which I was not parked in. Bother carparks signage is different which should be irrelevant as contract is not valid.

Sorry, I should have been more clear,


kind regards

Stevieb

[R0b]

Both defendants have filed their defence and witness statements. The court has vacated the court date (20 May) due to the cvid19 situation. Requesting they we try to settle, it we cannot reach an agreement, then would we consent to the case being tried on paper. Which I would have no qualms with.

I had a recent claim in the B'ham CC and the order I received also talks about whether you would consider a remote hearing by telephone or video link, is that not the same one as yours? Should be wary of dealing with it on paper for something like this which is technical and unless you have good drafting skills, you are more likely to have a chance winning if it was by telephone rather than on paper, but of course that's your decision.

The parking operator are blaming the landlord for the issue with contracts, permits not being issued correctly. Both parties are stating that I breached the parking operators terms and conditions as I was not displaying a permit.

Well that's not your problem for the purposes of your claim. The onus is on the contracting parties to ensure what area of land is being managed so it would be up to a court to decide how much blame to apportion between the two defendants.

The Parking Operator's witness statement is very poor in terms of drafting to be honest and doesn't make sense in areas. It is irrelevant that the PCN's were cancelled, it does not negate the fact that they had no lawful basis for processing your data because there was no contractual right to operate on the land and therefore a breach of the GDPR.

In terms of your claim for harassment and data protection breaches, I'm not sure how the signage is relevant. The crux of the issue is whether or not the parking operator has a right to manage the car park, that answer is on and both the landlord and parking operator as joint controllers are liable. That's how your case should be framed as I see it.

So going back to your previous question about asking for judgment against either the parking operator or the landlord, that will be an issue for you to argue at the hearing. The Court may apportion blame and that might reflect the amount of damages either party should be ordered to pay you, or you could argue that the parking operator is unlikely to have any assets based on your research and therefore you should ask the court to order the landlord to pay the full amount awarded.

If you are going to reject the landlord's offer to settle, then you should really send back a robust response explaining why you are rejecting it. The court can make a costs order if you unreasonably reject an offer of settlement although a rejection in itself does not amount to unreasonable conduct so you should be mindful of that.

Also, even if you settled for less than the amount claimed, any settlement agreement should have some wording in to say that the settlement is in respect of the claim against the landlord only and you entitled to pursue the remaining amount claimed against the second defendant. This is because if you accept the landlord's offer in full and final settlement, that could also imply the parking operator's liability has been settled too.

[Scrumpy11]

Hi Rob,

I have issued a joint claim against my landlord (Joint Controller) and the Parking Operator (Controller), for breach of the GDPR18. The parking operator had no reasonable cause to access, process and share my personal data with third parties. My landlord by admitting they were joint controllers were also responsible.

For over 12 months I have been fighting my landlord who stated that my argument is with the parking operator not my landlord. I tried to explain that the parking operator have no valid address of service. My mail was either being destroyed by the royal mail or returned.

Both defendants have filed their defence and witness statements. The court has vacated the court date (20 May) due to the cvid19 situation. Requesting they we try to settle, it we cannot reach an agreement, then would we consent to the case being tried on paper. Which I would have no qualms with.

The parking operator are blaming the landlord for the issue with contracts, permits not being issued correctly. Both parties are stating that I breached the parking operators terms and conditions as I was not displaying a permit.

As explained the PCN was cancelled due to the issue with the site address. The defendants contract does not give explicit right for parking operator to manage the carpark where I was park, it does give them right to manage the adjoining carpark which is in a separate geographical location (post code) with no through road.

The permit which residents are displaying onsite are for the parking operators previous company which was liquidated in 2015. The signage the parking operator gave as evidence to the IAS are displayed in the other carpark, which I was not parked in. Bother carparks signage is different which should be irrelevant as contract is not valid.

Sorry, I should have been more clear,


kind regards

Stevieb

Thank you Rob, you have been a great help as always. I really appreciate your assistance which I have received without this, I would not have made it this far.

Thank you again

Kind regards

Stevieb

[R0b]

No worries, if you want any feedback on draft responses, post them up and will look when I have time, otherwise good luck.

[Scrumpy11]

No worries, if you want any feedback on draft responses, post them up and will look when I have time, otherwise good luck.

Thank you, much appreciated.

[Scrumpy11]

No worries, if you want any feedback on draft responses, post them up and will look when I have time, otherwise good luck.

Hi Rob, I have drafted this email for the parking operator (copying in c housing), with the advice you have given, hope you dont mind, what do you think?

I have received Clarion Housings offer of settlement, as set bellow.

I believe C Housing are mistaken. The crux of the issue is whether CMS had entered me into a Contract with there company. CMS has a right to manage the 'Private Road' in Albert Road, that answer is in CMS contract with Clarion, dated 1st May 2018, which gives CMS permission to manage "WINIFRIDE COURT. 2 WAR LANE - *** 9RN." The fact there was no contract to manage the private Road in Albert Road - *** 0AN, in the first place then that is a breach in of itself, since CMS had no lawful right to pursue me and both the C Housing and CMS as joint controllers are equally liable.




I was parked correctly. CMS ha failed to enter me into any contract for the following reasons:

1. CMS had no valid Contract to manage Alert Road here I was parked.
2. Implied Right to Park: I had parked was a private road on 'Albert Road'. The sign which has been displayed before I took up residency in 1995, is not only the largest in size, but also in text. The sign states, 'Private Road Car Parking for Residents and Visitors Only.' I parked within the parameters of this sign as I am a Resident.
3. Prescription: I had the easement of over 17 years parking without requiring a ‘Permit’ to park.
4. I had never been issued a valid permit. The permit I was issued in 2017, pertained to Mr K's former parking Company which was liquidated in 2015.

It is irrelevant that the PCN's were cancelled, it does not negate the fact that CMS had no lawful basis for processing of my personal data, because there was no contractual right to operate on the land and therefore a breach of the GDPR had occurred, when my data was accessed; processed and then shared with third parties.


There's no legal obligation for me to escalate my complaint to the ICO. On the contrary, Article 33 requires the data controller to report data breaches to the supervisory authority - so the real question is, has the Clarion or CMS reported it and if not, why not? Both parties have known for quite sometime of the breach. I had informed the ICO in 2019 via the 'Resolver' Website, mentioning al parties involved of which I never received any answer.

The only reason why a claim was made in the first place because neither defendants didn't bother to take me seriously. I made both defendants aware of irregularities in Sept 2018, (first breach), which went ignored. I then made both defendants aware in Feb 2019 (second breach), this went ignored with my complaints being dismissed without consideration. I did not notice the irregularity with the Contracts as C Housing refused to supply me with a copy, despite me requesting a copy in a SAR's request. Reason given, the contract contains sensitive information. The only sensitive information I seen within the contract, which neither party would want me to see was the fact that the contract did not give CMS explicit right to manage 'Albert Road. ' Even 'War Lane' is questionable as C Housing do not own "2 War Lane" which is the site address stipulated within the Contract. C Housing own '10' and '12 War Lane'. Therefore, it's the defendants fault we ended up in this situation, not mine. Presumably, either defendant could have communicated with a view to resolving the problem without the need for court, so why should you be gagged from discussing my case with a third party?

My initial claim: with a further costs added:

Pursuant to Section 13(1) of the DPA, our client is entitled to seek damages for the breach. Our client relies upon the binding authority in support of his Claim, of Halliday v Creation Consumer Finance Ltd [2013] EWCA Civ 333. In Halliday, the Court of Appeal held that a compensatory sum of up to £750 was deemed ‘appropriate and sufficient’ (Please note, I lowered the amount claimed by £500, (£250 per breach), also keeping y cost on hours down, which accrued over 15 months.

My schedule of loss and damage is as follows:

Time spent on letters, emails & phone calls to get charge cancelled	£313.10
Legal costs incurred (to date)	£370
£500 Compensatory payment for distress and damage due to Breach of the GDPR18. (Per breach): 14th Sept 2018 30th Jan 2019	£1000.00
Total Claimed	£1683.10

My Proposed settlement:



My question to CMS: Are CMS willing to match the £500 damages as offered by C Housing? Who have been so kind to cover the legal costs:

Defendant:	Details:	Amount:
CMS	Damages	£500
Clarion	Damages	£500
Clarion	Legal Costs	£375
Total:		£1375

Terms to be negotiated if agreed.




Regards



Mr B

Claimant.

[Scrumpy11]

Thank you Rob, you have been a great help as always. I really appreciate your assistance which I have received without this, I would not have made it this far.

Thank you again

Kind regards

Stevieb

C Hosing also sent this yesterday, which I have only just seen. The court order was dated the 28th April, we have three weeks to inform the Court, this takes us upto the 19th May to decide how we would like the court to progress. Whether on paper or by phone. Are C Housing just trying to bully.

Dear Mr B



Further to the court order dated 28 April 2020, in the event that the parties are not able to agree matters then my client would prefer for the court to determine the issues on paper in order to save costs, in accordance with Clause 3(1) of the court order dated 28 April 2020.



If this cannot be agreed, then C Housing shall consider a telephone hearing in accordance with clause 3 (2) of the court order. However C Housing shall need to book counsel to attend the hearing and seek all their legal costs incurred to date from yourself in the event that your claim is successfully defended.



Please confirm your preferred option as early as possible , and in any event no later than 4pm 15 April 2020 in order that the parties can inform the court of their intentions and progress the claim.