DCBL appeal against order for case to be struck out

jav12

Hi All,
Just for a bit of background I have received a claim form - issue date 6th April 20 following numerous threatening letters from DCB Legal. Today I have made an SAR request from OBServices Parking and submitted an AoS (confirmation has been received that AoS was submitted). I used to (from 2014 to 2018) live on a development of new builds whereby certain flats had allocated bays, but not all (my property did not). The roads around the development were private and so the only option was for residents without a space to park on the road outside their block of flats. I have received a claim form for 17 tickets listed dating back to 2015 and 2016. All include the £60 additional charge for "damages". I have put together a defence using the advice in various threads as detailed below and would be grateful for critique before submission:

16.1 The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

16.2 The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct. 

17.1 It is denied that the Defendant or lawful users of his/her vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above mentioned vehicle to be parked by the occupier and leaseholder of [address], whose leasehold agreement permits the parking of vehicle(s) on land. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms.  

17.2 Under the terms of the Defendant's lease, one reference is made about parking motor vehicles. The reference is simply stating that the overall lease arrangement is not to use or permit any parking space to be used for any purpose other than the parking of one private motorcar which shall be in roadworthy condition.

17.3 There are no terms within the lease requiring lessees to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same.

17.4  The Defendant's vehicle clearly was 'authorised' as per the lease and the Defendant relies on primacy of contract and avers that the Claimant's conduct in aggressive ticketing is in fact a matter of tortious interference, being a private nuisance to residents.

17.5. The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011.

17.6. Accordingly it is denied that:
(i) there was any agreement as between the Defendant or driver of the vehicle and the Claimant
(ii) there was any obligation (at all) to display a permit; and
(iii) the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.


Thank you in advance for your help! 

Coupon-mad

Welcome!

If you are using the template defence and are just editing in some facts for the red bits of the template, then you don't need this because it's already in it:

16.1 The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.
16.2 The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct

Also remove this bit, as 'no loss' is not worth stating, due to the Beavis case (2015):

 and
(iii) the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

There is an OBSERVICES residential thread like yours here:

https://forums.moneysavingexpert.com/discussion/6130194/own-space-defence-please-advise

I suggest you send them a pm and see if you are both local to each other and can support each other with evidence and photos, if this is about the same place.

KeithP

With a Claim Issue Date of 6th April, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 11th May 2020 to file your Defence.

That's three weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.

To file a Defence, follow the guidance in this post:

https://forums.moneysavingexpert.com/discussion/comment/76880595#Comment_76880595

Guidance on creating a Defence is also in that thread - in the first post on that thread.

Don't miss the deadline for filing a Defence.

D_P_Dance

Nine times out of ten these tickets are scams, so consider complaining to your MP., it can cause the scammer extra costs and work, and in some cases, cancellation. 

Parliament is well aware of the MO of these private parking companies, many of whom are former clampers, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, persistent offenders denied access to the DVLA database and unable to operate.

Hopefully life will become impossible for the worst of these scammers, but until this is done you should still complain to your MP, citing the new legislation.

http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.

jav12

Hi All, 

my defence was filed on 20th April and I have confirmation to show this was received on 21st April. I also received a letter from the court stating that it had been received and that DCBL have 28 days to respond or the case will be "stayed". I've checked on MCOL and there are no updates. I've not had any further correspondence, and have requested SARs from both OBServices and DCBL twice now and received no response. Just wondering if I should be doing anything else and what happens next? 

KeithP

Re-read the guidance linked from my earlier post on 20 April at 10:38PM.
It suggests how you might want to download and complete a Directions Questionnaire.

Le_Kirk

If the submission of your SAR was over 30 days ago, complain to the ICO.

jav12

Le_Kirk said:

If the submission of your SAR was over 30 days ago, complain to the ICO.

It was over 30 days yes. They asked for proof of ID and so I sent a copy of a utility bill to confirm my address and have heard no more. if the case is "stayed" does this mean that DBS will need to apply to the court to get the case re-opened? 

Coupon-mad

It is not stayed.

jav12

Hi all just thought I’d give an update - I received a letter from the court on Friday stating that the claim has been struck out due to abuse of process .. didn’t even go to a hearing! One down one to go! Just waiting for the set aside application to be dealt with for the other claim mentioned in my other thread! Thank you for your help in assisting me with these 

Le_Kirk

Wow, well done!