Advice re blue badge owner

Redx

A DQ is ALWAYS sent to the other party , as well as the CCBC , that has been the advice in those announcements for many years , especially by Bargepole in his guide , plus by coupon mad , KeithP etc

[Deleted User]

Redx said:

A DQ is ALWAYS sent to the other party , as well as the CCBC , that has been the advice in those announcements for many years , especially by Bargepole in his guide , plus by coupon mad , KeithP etc

OK, I will email the DQ to the claimant now then. Thanks.

KeithP

HotelUniform74 said:

Redx said:

The DQ stage is explained in the defence template post in announcements , in the 12 steps by coupon mad

Normally it is emailed to the ccbcaq email address , then you contact them promptly and pay the counter claim fee by card I believe

I can see that step 9 says: "The completed DQ should be returned by email to the CCBC to the same address and in the same way as your Defence was filed earlier."

So just to confirm, I don't have to send DQ separately to the claimant? I'm assuming i've misunderstood what I posted and by sending it to CCBC it is also sent to claimant?

This really is very simple.
All we ask is that you read the guidance.

You have quoted step 9 on that list.
Now do the obviously logical next thing - read step 10 on that list.

Not sure it can be made any clearer, but of course we're always open to suggestions.

[Deleted User]

KeithP said:

HotelUniform74 said:

I can see that step 9 says: "The completed DQ should be returned by email to the CCBC to the same address and in the same way as your Defence was filed earlier."

So just to confirm, I don't have to send DQ separately to the claimant? I'm assuming i've misunderstood what I posted and by sending it to CCBC it is also sent to claimant?

This really is very simple.
All we ask is that you read the guidance.

You have quoted step 9 on that list.
Now do the obviously logical next thing - read step 10 on that list.

Not sure it can be made any clearer, but of course we're always open to suggestions.

You're quite right, it makes perfect sense in hindsight. The issue I had earlier was that I was reading through the below on the newbies thread and I couldn't see how the link explained how to return the DQ form:

"some days/weeks after filing your defence, the CCBC will send you a DQ N180 form, that must be completed & returned to the claimant and the court, explained here:
https://forums.moneysavingexpert.com/discussion/comment/71763411#Comment_71763411"

I do have some problems processing and understanding information when disability flares up like it has today/ this weekend. 

I do appreciate your support and your patience. Thank you @KeithP

[Deleted User]

I received a lovely letter from bwegal today along with their DQ, telling me how they've make "numerous attempts to contact me and to try and resolve matters amicably." 

They've also said they're willing to proceed to mediation (i've declined on my DQ as per newbies thread).

How can anyone send threatening letters for over a year and then claim they're trying to be amicable? I find their gaslighting absolutely disgraceful. 

They must have no morals whatsoever.

Coupon-mad

Can't disagree.

[Deleted User]

The Claimant has replied to my Defence and Counterclaim, I've copied it below from their letter to me:

BACKGROUND

1. The claim is in relation to an outstanding parking charge.

2. At all material times, the Claimant is authorised by the landowner to manager and enforce parking at Keaton Road, Ivybridge, Devon, PL21 9PF (Car Park).

3. On 22 November 2019 (Contravention Date), the Defendant was the registered keeper and/or the driver of a vehicle, registered XXXXXXX (Vehicle), which was observed breaching the terms and conditions (Terms and Conditions) at the Car Park as their parking session had expired.

4. The Terms and Conditions of the Car Park, which were displayed upon the signage within the Car Park state;

“PAY AND DISPLAY CAR PARK.

ALL VEHICLES MUST DISPLAY A VALID TICKET OR PERMIT IN THE FRONT WINDSCREEN OR ON THE VEHICLE’S DASHBOARD AT ALL TIMES.

FULL PAYMENT MUST BE MADE BEFORE LEAVING THE SITE.

DO NOT PARK IN THIS CAR PARK IF YOU CANNOT GET A TICKET FROM THE MACHINE OR IF YOU CANNOT MAKE ALTERNATIVE PAYMENT.

DISABLED BADGE HOLDERS ARE NOT EXEMPT FROM THE PARKING TARIFF”

5. The Terms and Conditions specifically state that the charge for breaching the Terms and Conditions is £100.00 reduced to £60.00 if paid within 14 days. The Defendant breaching the Terms and Conditions on the Contravention Date as he failed to make payment to cover his entire length of stay.

6. The Defendant admits to the use of the Car Park on the contravention Date and to thereby agreeing to the above Terms and Conditions, including the PCN charge.

7. The claimant seeks their debt recovery costs of £60.00. The signage at the Car Park (displaying the Terms and Conditions) makes provision for these costs and they are also detailed in the Independent Parking Committeee (IPC) Approved Operator Code of Conduct.

REPLY

8. For the avoidance of doubt, unless expressly stated otherwise below, the Claimant denies the contents of the defence.

9. The Defence appears to have been cut and pasted from websites containing parking forums, whose aim appears to be to assist motorists on contesting parking charge notices on a variety of pre-determined technical basis, as witnessed by the Claimain't solicitors on a regular basis. One frequently used forum can be found on www.moneysavingexpert.com

10. The result of the Defendat's use of this internet template Defence is that both the court and the Claimaint's Solicitors have had to review and respond to a large volume of information, most of which is beyond the knowledge of the Defendant and therefore nonsensical and/or irrelevant. This is wholly unreasonable from a resourcing point of view given this is a simple small claims matter for a contractual charge payable for breach of a contractual licence as set out above.

11. Give the sheer volume of irrelevant material, the Defendant's conduct is contrary to the overriding objectives of the Civil Procedure Rules and as such unreasonable. As the internet content has been copied verbatim, the Statement of Turth patently cannot cover the pleading.

12. In response to a simple contract dispute, the Defendant purports to serve and file dis Defence and Counterclaim amounting to: 16 pages, 49 paragraphs

13. HMCTS Chancery Guide (as amended 2020) at P38, Chpt 10 confirms at 10.5 that a Statement of Case/ Deefence 'Must be as brief and concise as possible'. This is confirmed in HMCTS Queen's Bench Guide (2021) P35, Para 5.33, This position is reinforced by case law

14. Hague Plant Ltd v Hague [2015] CP Rep 14 Court of Appeal, Clarke LJ: Defence/Statements of case are intended to help the court and parties. Instead there is ‘interminable length, diffuseness and lack of precision’.

15. Standard Bank Plc v Via Mat International Ltd [2013] 2 All ER (Comm Aitkins LJ: Overlong (defences)… manufactured by parties...only adds to unnecessary costs; it does nothing to clarify and simplify the issues or to shorten the proceedings, which ( is the ) objective of...pleadings.

16. Mcphilemy v Times Newspapers Limited and Others [1999] 2 All ER 775 Lord Woolf’s judgement (on then new CPR): The need for extensive pleadings should be reduced by (requirements to exchange) Witness Statements. Apart from expense, excessive defences achieve directly the opposite result from that intended, obscuring issues rather than clarify.

17. CPR provides the Court with its own remedies under CPR 3 Case Management Powers. CPR 3.4 (2) provides:

The court may strike out a (defence) if it appears to the court -

(a) the defence discloses no reasonable grounds for defending the claim;

(b) the defence is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or

3.4(3) When the court strikes out a defence it may make any consequential order it considers appropriate (judgement for claimant etc) [ the fact a judge has not, doesn’t prejudice right of claimant to apply for such order]

18. Copying and pasting a template defence word-for-word does not constitute conduct which permits of a reasonable explanation, given that the Defendant has signed the same with a statement of truth, despite the information not being within their own knowledge. It is therefore submitted that the Defendant’s use of an internet template based defence is unreasonable behaviour.

THE DEFENDANT’S CAR ENTERED IN THE CAR PARK AT 17:51. SIGNAGE WAS NOT VISIBLE FROM THE CAR AS IT WAS DARK AND THE SIGNAGE WAS NOT LIT. A TICKET WAS PURCHASED FOR ONE HOURS PARKING AT 17:55. THE DEFENDANTS VEHICLE WAS CAPTURED LEAVING THE CAR PARK AT 19:07. THE DEFENDNAT DENIES ANY BREACH OF THE TERMS ON OFFER TO DRIVERS ARRIVING BEFORE 6PM.

19. It is common ground that the Defendant’s vehicle entered the Car Park at 17:51:24 and exited at 19:07:57. The Defendant purchased a ticket for £0.70 to authorise his Vehicle in the Car Park for 1 hour, using the “before 6pm” rates.

20. The Defendant’s Vehicle remained in the Car Park for 1 hour, 16 minutes and 33 seconds on the Contravention Date. 16 minutes and 33 seconds longer than the time he paid for.

21. The signage in the Car Park confirms the tariffs as follows (enclosed for ease):

Between 08.00 to 18.00

a. Up to 1 Hour - £.70

b. Up to 2 Hours - £1.40

Between 18.00 to 08.00

a. Up to 14 Hours - £2.00

22. The correct tariff for the Defendant on the Contravention Date was either £1.40 prior to 6pm or, given the Defendant arrived at 17:51, £2.00 after 6pm

23. For ease, the claimant encloses the transaction logs for the Contravention Date, which evidence the Defendant’s payment. The Court will note that the Defendant’s payment was made at 17:55, only 5 minutes prior to 6pm.

THE DEFENDANTS REFERENCE TO THE GRACE PERIOD

24. The Claimant again relies on the extract showing the Defendant’s payment. The Defendant’s vehicle was captured entering the Carp Park at 17:51:24, the Defendant purchased a ticket approximately 4 minutes after entry.

25. It is submitted that a grace period was not necessary given that the Defendant evidently observed the Terms and Conditions and purchased a ticket within 4 minutes.

[Deleted User]

THE DEFENDANT IS A DISABLED PERSON WITH PROTECTED CHARACTERISTICS

26. Despite the Defendant both appealing the PCN and purporting to file a sixteen page 49 paragraph Defence and counterclaim, the Defendant has failed to provide any factual basis why he overstayed the time he paid for on his ticket, nor has he supplied evidence to support his allegations.

27. The Claimant encloses a copy of the “Blue Badge” provided by the Defendant. The Court will note that the photograph does not provide any identifying features, i.e. the Defendant’s name.

28. The Defendant is required to provide a factual basis why he overstayed the time paid for on the Contravention date, and evidence of valid ownership of the Blue Badge. If, which is denied, this is provided, it cannot detract from his contractual liability for the PCN as paragraph 6 of T&C provides.

THE PARTICULARS OF THE CLAIM ARE NOT SUFFICIENT.

29. The Defence point is denied. CPR 16.4 has been complied with. As the claim was issued online using Money Claim Online (MCOL), under paragraph 4(1) PD 7E – Money Claim Online, Our Client’s claim meets the condition’s for starting a claim using MCOL. Under paragraph 5.2(1) and (2)(b) PD 7E, Our Client’s particulars of claim were included in the online claim form, however, it had to comply with the restrictions of having only 1080 characters to set out its particulars. Paragraph 2.5A PD 7E states:

“The requirement in paragraph 7.3 of Practice Direction 16 for documents to be attached to the particulars of contract claims does not apply to claims started using an online claim form, unless the particulars of claim are served separately in accordance with paragraph 5.2 of this practice direction”.

30. For the reasons set out above, there has been no breach of CPR 16 and the Claimant’s particulars are clear and concise.

THE CONSUMER RIGHTS ACT 2015 IS AGAINST THE CLAIM

31. The Defendant’s arguments are generic and not at all made out.

32. S.62(4) provides that “… a term is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer.”

33. S.62 (5) confirms “Whether a term is fair is to be determined – taking into account the nature of the subject matter of the contract, and – By reference to all the circumstances existing when the term was agreed and to all of the other terms of the contract or of any other contract on which it depends”.

34. As confirmed by His Honor Judge Parkes QC in the appeal judgement of Britannia Parking Group Ltd v Matthew Semark-Jullien [2020] 7 WLUK 443 (Appeal), the Court must properly take into account a claimant’s evidence, before making a determination under this section, otherwise any premature conclusion is likely to be set aside.

35. Therefore, it is submitted that in order for the Court to make a determination under CRA 2015, the Defendant must properly apply its arguments to the claim, and the Claimant’s advocate can then respond.

PARKINGEYE V BEAVIS 2015 IS DISTINGUISHED AND IS AGAINST THE CLAIM IN REGARDS TO THE “EXAGGERATED SUM”. THE CLAIMANTS ARE ATTEMPTING DOUBLE RECOVERY.

36. The parking charge of £100.00 was confirmed as reasonable in Beavus and is supported by the Claimant’s Accredited Trade Association’s Code of Practice.

37. In ParkingEye v Somerfield Stores Limited (2011), a commercial dispute surrounding the provision of parking services at the Defendant’s Supermarkets, HHJ Hegarty made a finding of fact in that particular case that the objective was deterrence rather than compensation. The Claimant is seeking the additional sum, not as part of the parking charge, but as its debt recovery costs. As HHJ Hegarty recognised in para. 419, the Claimant will show that these debt recovery charges (or additional administrative costs as he called them) are reasonable in circumstances where the Defendant has been given the change to pay the parking charge, but declined to do so.

39. On 28th September 2021, HHJ Saffman handed down the judgment in Vehicle Control Services Ltd v Mr Adam Percy (currently unreported) in an appeal in the County Court in Leeds. HHJ Saffman fully considered lengthy skeleton arguments concerning Beavis, the Consumer Rights Act 2015 and that recoverability of debt recovery costs under the parking contract (set out in the signage) where no specific amount was set out. He concluded that:

a. Such costs were not considered in ParkingEye v Beavis [2015] UKSC 67. He said at paragraphs 42-43 “True it is as [the judge below] says in paragraph 15 and 16, that Beavis concerned a motorist who did not pay but it does not touch on the question of recover of an additional charge for Stage 2. It deals only with the lawfulness of the original charge for failing to comply with the contractual terms – not the additional charges for chasing up the motorist who has failed to pay what was owned for failing to comply with the contractual terms.”

b. Such costs are not built into the parking charge, saying at para. 39 “… It is inevitable that further work of some kind is necessary where the motorist does not respond to the PCN. Fundamentally it requires the appellant to undertake the stage 2 activity which would have been avoided if payment had been made at stage 1… it is not double recovery. It is an attempt to recover in respoect of stage 2 work that would not have been incurred if payment had been made at stage 1.” For the same reasons, he found that such costs were not a duplication of post-issue legal costs restricted by CPR, as these costs relate to pre-issue.

c. Such costs were not unfair as against the Consumer Rights Act 2015:

I. Considering examples 10 and 14 of schedule 2 to the Act, he said at para 61 “I do not think that the term, albeit that it seeks an unquantified amount, causes a significant imbalance in the parties’ rights and obligations. As HHJ Maloney QC observed [in Beavis], the motorist is being given the valuable privilege of parking on private land in return for a promise to pay a specified sum in the event event that he/she fails to display a ticket and, in this case, an additional sum if he/she fails to pay the specifed sum.”,

He went on to say at para 64 that “...any imbalance in that case did not arise contrary to the requirements of good faith because ParkingEye and the owners had a legitimate interest in inducing Mr Beavis not to overstay… I do not see why VCS does not have a legitimate interest in inducing motorists to pay on receipt of the PCN so as to avoid… the stage 2 procedure”.

II. Considering example 6 of Schedule 2 to the Act, he said at para 65 & 66. “VCS is governed by a Code of Practice which currently limits the additional charge to £70.00. I fully accept that the Code of Practice does not bind the court but it is clearly a consideration in the context of all the circumstances. The Supreme Court in Beavis had in mind the Code of Practice in the course of its finding that the contract term was fair… It is also appropriate to observe that I do not think that the charge of £60 is excessive or disproportionate. Even if that sum does not represent VCS’ loss, it cannot be said that it is a charge that is higher than is necesssary to achieve VCS’ legitimate objective of inducing motorists to pay at stage 1.” He also concluded at para 57 that previous judgments up and down the country in the County Court had erred in their findings that such a term was unfair.

d. Finally, he also found that such costs were not contrary to paragraph 4(6) provides for “other remedy”.

39. Under the Claimant’s Trade Association’s Code of Practice, where parking charges become overdue, debt recovery charges may be added. This was also endorsed by HHJ Saffman in the above appeal, acknowledging the Supreme Court’s recognition of the same in ParkingEye v Beavis [20150 UKSC 67.

THE DEFENDANTS REFERENCE TO “BRITANNIA V CROSBY

40. As a County Court matter dealt with by the Claimant’s solicitors, this judgment is neither binding nor persuasive. On the contrary, the Appeal successfully challenged an identical order made by District Judge Grand. Part of the reasoning in allowing the appeal was the lower court’s failure to properly consider CRA 2015. As such, the order in Crosby has equally to be regarded as wrong.

SCHEDULE 4 OF THE PROTECTION OF FREEDOMS ACT 2012 IS AGAINST THE CLAIM.

41. Paragraph 4 of Schedule 4 POFA relates solely to the recovery of “parking charges” which is defined as “a relevant obligation arising under the terms of a relevant contract, means a sum in the nature of a fee or a charge”.

42. Debt recovery charges only become payable if the PCN remains unpaid and debt recovered has to be pursued, as explained in the Claimant’s statement under the heading “Debt Recovery Charges”. Such costs are therefore clearly not a parking charge and therefore not within the scope of paragraph 4.

THE SIGNAGE IS NOT SUFFICIENT

43. The Defendant had clearly seen and understood the signing and in (part) compliance with the Terms and Conditions the Defendant purchased a ticket on the Contravention Date (albeit not for his whole length of stay). However he overstayed beyond the authorised period.

44. At the time of the contravention, the Claimant was a member of the IPC. The IPC are an Accredited Trade Association within the parking industry. As the Claimant was an established member of the IPC at the time of the contravention, it had to adhere to the IPC’s Code of Practice for parking on private land. This Code of Practice gives recommendations in regards to the signage within the Car Park.

45. The signs within the Car Park fully comply with the recommendations outlined in the Code of Practice and are therefore deemed reasonable. The signs are clearly displayed, and the Defendant would have had the opportunity to read and understand them on parking at the Car Park. Given that the Defendant purchased a ticket on the Contravention Date (albeit for not his entire length of stay), an objective observer would consider this action to have been done in acceptance of the terms and conditions.

46. The signage at the Car Park clearly incorporates the terms and conditions. For all intents and purposes, the signage is correct, and sufficient attention was brought to the Defendant with regards to the terms and conditions.

REFERENCE TO VAROUS CAS LAW INCLUDING VINE V LONDON BOROUGH OF WALTHAM FOREST 2000

47. Case authority on appeal confirms that the Claimant’s authority need not be proved for the Claimant to pursue the Defendant under its contract with them.

THE CLAIMANT IS PUT TO STRICT PROOF OF ITS AUTHORITY FROM THE LANDOWNER.

48. Case authority on appeal confirms that the Claimant’s authority need not be proved for the Claimant to pursue the Defendant under its contract with them.

49. In Link Parking Limited v Haris [2020], before His Honour Judge Petts, the Defendant challenged the validity of the parking operator’s agreement with the landowner. HHJ Petts said at para. 12: “The defendant has no standing to say that the contract should be declared void and in any event even if it was voidable, the contract has clearly been affirmed or ratified, however one wants to look at it, by [the landowner] through years thereafter of subsequent operation of the parking system by the [claimant].”

50. This position was affirmed by His Honour Judge Simpkiss in the appeal case of One Parking Solution Ltd v Norma Wilshaw [2021] in a judgment dated 1 February 2021 where at paragraph 32, he says (emphasis added): “Therefore, the terms offered the driver a licence to park on the terms and conditions set out in the signage. This is a standard situation which is replicated in car parks across the country. It is not dependent upon proof that the parking company has authority to operate a car park, although if it did not the freeholder would be likely to take issue with it.”

51. Further, at paragraph 51, he says “This is a contract between the Appellant and the freeholder which does not affect the validity of any contract between the Appellant and the Respondent.”

[Deleted User]

DEFENCE TO COUNTERCLAIM

52. The Claimant denies that it is indebted to the Defendant in the sum claimed or at all. The Defendant is required to prove that he has suffered the loss as set out in the counterclaim, or any loss and damage, and the basis on which such loss is purportedly calculated.

53. If, which is denied, the Defendant has suffered loss and damage, it is denied that the same this was caused by or attributable to the Claimant.

54. The counterclaim seeks a liquidated sum of £1,330.00 plus interest for “Distress, Harassment and Disability Discrimination”.

55. The Claimant avers that “distress” is not a valid subject of a counterclaim.

56. The Claimant denies harassment of the Defendant. The Protection from Harassment Act 1997 provides exactly that – protection from harassment. But the simple pursuit of debt could never of itself amount to harassment, since the Claimant’s intention is to recovered the unpaid debt.

57. In Majrowski v Guy’s and St Thomas’s’ NHS Trust [2007] 1 AC 224, Lord Nicholls said at [30] “Where … the quality of the conduct said to constitute harassment is being examined, courts will have in mind that irritations, annoyances, even a measure of upset, arise at times in everybody’s day-to-day dealings with other people. Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. The cross the boundary from the regrettable to the unacceptable the gravity of the misconduct must be of an order which would sustain criminal liability under s.2.”

58. It is therefore not enough for the Defendant to simply argue harassment in response to the Claim, since he must demonstrate that the Claimant’s behaviour has been oppressive and unacceptable, which has simply not been demonstrated.

59. For the avoidance of any doubt, the Claimant encloses the following correspondance;

I. notice to keeper (PCN), ii. Appeal, iii. Appeal response, iv. Letters/emails from BW Legal daterd 24 January 2020, 24 February 2020, 24 March 2020, 1 April 2020, 23 April 2020, 20 September 2020 and 27 September 2020.

60. As evidence by the enclosed, it is submitted that the Claimant has been reasonable in its reasonable pursuit of this simple contract dispute.

61. Paragraph 47 and the bulk of the purported Counterclaim appears to be founded as seeking damages for: anxiety, distress, symptoms of their medical conditions.

62. No medical evidence, Consultant’s Report, Diagnosis or Prognosis has ever been provided, nor has the Defendant complied with the Pre-Action Protocol for Personal Injury Actions. The Court is invited to strike out the (purported) pleading.

63. The Defendant has failed to particularise exactly how the Claimant are in breach of, the Equality Act 2020, the Consumer Rights Act 2015, the Data Protection Act 2018, and the General Data Protection Regulation. The Defendant merely makes the unfounded allegation without explanation or applying the statutes to the Claim.

64. The Defendant is required to provide proof that he has suffered the loss as set out in the counterclaim, or any loss and damage, and the basis on which such loss is allegedly calculated.

65. It is submitted that the Defendant has failed to raise a valid cause of action against the claimant.

66. The Claimant requests that the Counterclaim be struck out.

Coupon-mad

They try hard, don't they?

Nothing unexpected there and much of it is template stuff (ironic, given what they say about you using internet research to help you form your defence!).

There are a number of points to respond to that rubbish but it can all wait till witness statement stage.

You should have shown your blue badge showing the name (both sides) and merely covered your photo.  Put that right now in a short but polite email.