DCBL - Letter of Claim - Defence to be filed

Le_Kirk

Maybelle said:

Hi all, I have been working on my witness statement steadily over the last month. My hearing is on 29th and it says I must deliver everything 14 days before. Is that 14 working days? 

Also I’ve seen some people have had issues with the claimant not paying the court fee - how do I find out if first parking have paid?

is there anything else I need to be doing at this point in time?

It's 14 days.  Call CCBC to see if fee has been paid.

Maybelle

Thanks! So that means if it’s on the 29th I need to submit it by 15th?

I’ll call them on Monday when they reopen!

aside from the witness statement is there anything else I need to prepare/do?

Le_Kirk

Maybelle said:

Thanks! So that means if it’s on the 29th I need to submit it by 15th?

I’ll call them on Monday when they reopen!

aside from the witness statement is there anything else I need to prepare/do?

Evidence to back up your defence and witness statement, summary costs assessment (if you are claiming costs).

Maybelle

Thank you! So just to confirm I need to submit the evidence and witness statement by 15/10/21 if my hearing is on the 29th?

sorry just want to make sure I don’t miss the deadline 

Le_Kirk

Maybelle said:

Thank you! So just to confirm I need to submit the evidence and witness statement by 15/10/21 if my hearing is on the 29th?

sorry just want to make sure I don’t miss the deadline 

That is what I would calculate but just to be sure, I would send on 14th before 16.00.  Anything received after 16.00 is deemed to be received the next day and sometimes courts' e-mail systems have been causing problems by failing to "receive" after the court is shut.

Fruitcake

Unless the court deadline says working days, fourteen days is fourteen days.

You can 'phone the court and ask if the claimant has paid the court hearing fee, but if you have got to the WS stage I'm pretty sure the claimant will have paid it.

Show us your WS when it is complete. Exhibits should have your initials followed by sequential numbers, and you need an index as well as the correct statement of truth.

As soon as you get the claimant's WS, please show it to us. ONLY redact YOUR personal data. Upload it to Dropbox or similar. Make sure it doesn't need a password and doesn't ask permission to use people's personal data in order to access it. Also make sure it is not in your real name and no other personal data such as holiday photos is visible on the account. Believe me it has happened!

Maybelle

Thank you all!

Please see below for my WS. Please let me know what your thoughts are and what I should remove/include

IN THE COUNTY COURT AT (TOWN)

CLAIM No: xxxxxxxxxx

BETWEEN 

XXXX
 and
xxxxxx xxxxxx (Defendant)
 __________
WITNESS STATEMENT OF THE DEFENDANT AND PART 20 CLAIMANT
 __________

1. I, XXX of XXX am the Defendant and Counterclaimant in this matter will say as follows. I have very little legal knowledge regarding court proceedings and no legal training, the defence and witness statement have been created from my own research, so please accept my apologies for anything which does not look normal. The facts below are true to the best of my belief and my account has been prepared based upon my own knowledge.  

2. The facts and matters referred to in my witness statement are within my own knowledge, except where I have stated otherwise. Where the facts are within my knowledge, they are true. Where they are not within my own knowledge, they are true to the best of the information, resources, and belief to be correct.

Sequence of events and signage 

 

3.  As I have maintained throughout this process, it is denied that I was the Driver or the registered keeper at the time of the alleged contravention. However, to be able to provide an accurate witness statement I have asked the Driver to share their version of events with me which I will outline below

4. The Driver has driven through that road on several occasions as evidenced by the ANPR log in Exhibit 1. The driver has entered the location several times in July 2020 but never parked due to the fact they were simply using the road as a ‘cut through’.

5. On this day the Driver was planning to do the same however on this occasion there were a number of cars parked and stopped on the side. Considering the narrow space and the size of the vehicle the driver took 19 mins to manoeuvre through the road. The Claimant claims that the vehicle was parked but you can see in Exhibit 2 the vehicle is not parked in any of the images, rather they are either stuck behind another vehicle or are moving around parked cars or people.

6. The driver had no way of being made aware that they would be sent a parking charge notice for overstaying as it is quite apparent from the images supplied by the Claimant’s ANPR footage in Exhibit 2 that there was never any attempt to park nor stay. The Driver did observe signage at the entry stating that this was pick up and drop off only zone but the signage at the entrance the terms and conditions were not legible and the entrance signage simply said ‘see signs for more details’. The fact that the terms and conditions were not clearly stated at the entrance prevent a driver from entering into an agreement as there is no clarity on what those conditions were. When it became apparent to the Driver that they were stuck behind vehicles they did try to find the ‘signs’ that had more details but these were not easily visible from the driving seat.

7. The Claimant has shared images of the signage following a subject access request made by myself (Exhibit 3). The images they’ve provided are large, clear and legible however if one is to visit the location it is apparent that the signage is not as legible as they claim it is. Exhibit 4 shows pictures taken on site by the Claimant which clearly demonstrate that the location of the signage is not at eye level and therefore not visible from a driver’s vantage point. Whilst the signage at the entry does state ‘Pick Up and Drop Off Only’  the terms and conditions of the duration are at a reduced size and doesn’t state what the terms and conditions are thereby making it virtually impossible for a driver entering the location to know what the timing restrictions are. Upon further investigation the time limit is 5 minutes but as you can see in Exhibit 3 the arch shape of the road plus the narrowness makes it incredibly difficult to adhere to this time frame when there are a number of vehicles in the area.

8. The signage once you enter the area is in awkward locations as evidence by the images provided in Exhibit 4. The signage is not erected at eye level but the Claimant has rather has chosen to place them at a low point meaning that most drivers would struggle to read the signage without pulling over. The fact that the text is a reduced size, the terms and conditions are not outlined at the entry and all signs are not placed at eye level means it is wholly unfair to expect drivers’ to be able to safely read it and agree to the terms and conditions within the allocated 5 minutes.

9. The alleged contravention took place on 14th  July and the ticket was issued 2 days later and was received by the keeper on the 16th. The parking charge notice in Exhibit 5 is difficult to understand as it states the contravention was for a breach of the parking restrictions but namely for overstaying. As mentioned the driver did not park anywhere in that location in the day nor did they pay a toll so it was incredibly confusing to understand how they could have overstayed if they were never invited to park.

10. The registered keeper, XXX, is a disabled man and when he received the notice asked me to appeal on his behalf. The keeper whilst he was not the driver requested, chose to not reveal the driver and therefore I sent the appeal on his behalf as the keeper. After having carried out some research online I decided to use the confusing parking charge notice, excessive payment requested and proprietary interest as the grounds for my appeal. I sent an appeal (Exhibit 6) via email address as the parking charge notice states appeals are considered but did not provide an address or email to send the appeal. I fortunately was able to find an email address for the Claimant online as many others seem to have had a similar challenge. I at no point addressed myself as the driver and whilst my email address contains my full name I don’t recall signing off the appeal with my name as the intention was to send the appeal on behalf of the Keeper. 

11. The Claimant did not address the points highlighted in my claim instead responding that they were BPA compliant and that they would not be cancelling the parking charge notice (Exhibit 7). I wanted to continue appealing but the Keeper became distressed at the line in their rejection that stated they could begin court proceedings. I attempted to make a payment but was informed that this was no longer possible as this claim was now with the debt collectors. I sent another email to the Claimant (Exhibit 8) as I was advised on a phone call with the Claimant that the debt collectors would be pursuing action against me despite the fact that I wasn’t the Keeper nor Driver.

12. I started receiving increasingly threatening letters from DCBL’s non legal arm in which they included intimidating language and referred to their TV appearances in the show ‘can’t pay, we’ll take it away’ in which they act as bailiffs. They chose to use this distressing wording despite the fact this claim hadn’t been escalated to a court case and therefore there could possibly be no bailiff action as this point in time.

13. I became distressed at the fact that these letters were being addressed to me despite the fact I was neither the Keeper nor Driver. I received a Letter Before Claim from DCB legal addressed to me and I replied back stating that there was a mistake on their end as I had never been the keeper nor was I the driver on the day in question. DCB Legal and the Claimant alleged (Exhibit 9) that my details were provided by the DVLA and that I had sent an appeal on 6th August in which I identified myself as the driver; both statements were false as evident in Exhibit 10 and Exhibit 6. Exhibit 10 shows the keeper details that were provided by the DVLA as being a male with a different name whilst Exhibit 6 demonstrates that the driver’s details were never shared or revealed. To further bolster the fact that I could not have been the driver Exhibit 11 shows correspondence from my recruiter which states that I was on shift at XX hospital on the day in question.

14. I tried once more to reason with the Claimant and their legal team by advising them they were attempting to pursue legal action against the wrong individual (Exhibit 12). I reminded them that the driver had not be named and that I felt hounded by the constant threatening letters. I warned that if they continued that I would highlight this to the court as evidence of their failure to undertake due diligence.

15. If the Claimant made a genuine error in which they sincerely believed up that I was the Driver then at this point, then they would have been made aware that through these correspondences that I was neither the driver nor the keeper and therefore they should have halted proceedings. Instead they chose to continue to harass me and use my details which I believe is is a breach of their statutory duty under the Data Protection Act 2018 and General Data Protection Regulation (GDPR).

16. The Claimant and their legal team in their reply to my defence are still maintaining that I was identified by the DVLA as the registered keeper when all the evidence demonstrates this is inaccurate. This is wholly concerning as it shows a lack of due diligence and unlawful processing of my personal data.

 

17. The Claimant’s reply to my defence (Exhibit 13) is inconsistent as in paragraph 7 they state that I was identified as the registered keeper but in paragraph 10 they accept that I was not the registered keeper and instead argue that I accepted that I was the Driver of the vehicle which I have evidenced has not been the case. I would ask the court to draw the logical conclusion that the Claimant is therefore pursuing legal action against the wrong individual. I also invite the court to view this contradiction as evidence of their procedural impropriety and unlawful data processing.

The Beavis case is against this claim 

 

18. This situation can be fully distinguished from ParkingEye Ltd v Beavis [2015] UKSC67, where the Supreme Court found that whilst the £85 was not (and was not pleaded as) a sum in the nature of damages or loss, ParkingEye had a 'legitimate interest' in enforcing the charge where motorists overstay, in order to deter motorists from occupying spaces beyond the time paid for and thus ensure further income for the landowner, by allowing other motorists to occupy the space.  The Court concluded that the £85.00 charge was not out of proportion to the legitimate interest (in that case, based upon the facts and clear signs) and therefore the clause was not a penalty clause. 

 

19. However, there is no such legitimate interest where there is no parking fee to be paid.  As such, I take the point that the requested parking charge in my case is a penalty, and unenforceable.   This is just the sort of 'concealed pitfall or trap' and unsupported penalty that the Supreme Court had in mind when deciding what constitutes a (rare and unique case) 'justified' parking charge as opposed to an unconscionable one. 

Maybelle

Landowner contract

 

20. Following a Subject Access request, the Claimant has shared a redacted copy of the ‘terms and conditions for the supply of parking enforcement services – Landowner’ but this document has little or no probative value as there is nothing to say what the Landowner’s approach is to penalising genuine patrons who had no intention of parking or overstaying. The network of contracts is key in these cases, since the parking charges are argued to be contractual and the authority to sue visitors must flow from the landowner, not an agent. 

 

Abuse of process - the quantum 

 

21. The Claimant has added a sum disingenuously described as 'damages/admin' or 'debt collection costs'.  The added £60 constitutes double recovery and the court is invited to find the quantum claimed is false and an abuse of process - see Exhibit 14–  Approved judgment in Excel Parking Services v Ann Wilkinson (Bradford Court 01.07.20).  Leave to appeal that case was refused and Judge Jackson became a Specialist Civil Circuit Judge last year, soon after handing that judgment down:  ‘I have no doubt they will continue to claim £60 damages/costs etc to profit from undefended cases’.

 

22. Dozens of other cases have been struck out at allocation stage in that court area alone, on the back of (now) HHJ Jackson's considered 'test case' (as Judges are calling it). This is a crucial and very relevant case because it is a forensic consideration about parking firms adding costs on top of a parking charge that the Beavis case already decided, as it covers more than the cost of an average of four automated demands that are fundamental to the business model. The conclusion of this case is being echoed by other judges.

 

23. Whilst it is known that another case that was struck out on the same basis was appealed to Salisbury Court (the Semark-Jullien case), the parking industry did not get any finding one way or the other about the illegality of adding the same costs twice. The Appeal Judge merely pointed out that he felt that insufficient information was known about the Semark-Jullien facts of the case (the Defendant had not engaged with the process and no evidence was in play, unlike in the Britannia Parking v Crosby case (Southampton Court 11.11.19) and so the Judge listed it for a hearing and felt that case (alone) should not have been summarily struck out due to a lack of any facts and evidence.

 

24. The Judge at Salisbury correctly identified as an aside, that costs were not added in the Beavis case.  That is because this had already been addressed in ParkingEye's earlier claim, the preBeavis High Court (endorsed by the Court of Appeal) case ParkingEye v Somerfield (ref para 419):

https://www.bailii.org/ew/cases/EWHC/QB/2011/4023.html ''It seems to me that, in the present case, it would be difficult for ParkingEye to justify, as against any motorist, a claim for payment of the enhanced sum of £135 if the motorist took the point that the additional £60 over and above the original figure of £75 constituted a penalty. It might be possible for ParkingEye to show that the additional administrative costs involved were substantial, though I very much doubt whether they would be able to justify this very large increase on that basis. On the face of it, it seems to me that the predominant contractual function of this additional payment must have been to deter the motorist from breaking his contractual obligation to pay the basic charge of £75 within the time specified, rather than to compensate ParkingEye for late payment. Applying the formula adopted by Colman J. in the Lordsvale case, therefore, the additional £60 would appear to be penal in nature; and it is well established that, in those circumstances, it cannot be recovered, though the other party would have at least a theoretical right to damages for breach of the primary obligation.''    

  

25. This stopped ParkingEye from using that business model again, particularly because HHJ Hegarty had found them to have committed the 'tort of deceit' by their debt demands.  So, the Beavis case only considered an £85 parking charge but was clear at paras 98, 193 and 198 that the rationale of that inflated sum (well over any possible loss/damages) was precisely because it included (the Judges held, three times) 'all the costs of the operation'.   It is an abuse of process to add sums that were not incurred.  Costs must already be included in the parking charge rationale if a parking operator wishes to base their model on the ParkingEye v Beavis case and not a damages/loss model.  This Claimant can't have both.   

  

26. This Claimant knew or should have known, that by adding £60 in costs over and above the purpose of the 'parking charge' to the global sum claimed is unrecoverable, due to the POFA at 4(5), the Beavis case paras 98, 193 and 198 (Exhibit 15), the earlier ParkingEye Ltd v Somerfield High Court case and the Consumer Rights Act 2015 ('CRA') Sch 2, paras 6, 10 and 14.  All of those seem to be breached in my case and the claim is pleaded on an incorrect premise with a complete lack of any legitimate interest.   

 

CPR 44.11 - further costs  

  

27. I am appending with this bundle, a fully detailed costs assessment (Exhibit 16) which also covers my proportionate but unavoidable further costs and I invite the court to consider making an award to include these, pursuant to the court's powers in relation to misconduct (CPR 44.11).  In support of that argument, I remind the court that I appealed and engaged with the Claimant at every step and they knew all along that the tariff has been paid.  Not only could this claim have been avoided and the Claimant has no cause of action, but it is also vexatious to pursue an inflated sum that includes double recovery.  This is compounded by the witness attaching a Lease holder witness statement that could be from anyone instead of the alleged lease. 

  

My fixed witness costs - ref PD 27, 7.3(1) and CPR 27.14  

  

28. As a litigant-in-person I have had to learn relevant law from the ground up and spent a considerable time researching the law online, processing and preparing my defence plus this witness statement.  I ask for my fixed witness costs.  I am advised that costs on the Small Claims track are governed by rule 27.14 of the CPR and (unless a finding of 'wholly unreasonable conduct' is made against the Claimant) the Court may not order a party to pay another party’s costs, except fixed costs such as witness expenses which a party has reasonably incurred in travelling to and from the hearing (including fares and/or parking fees) plus the court may award a set amount allowable for loss of earnings or loss of leave. 

 

29. The fixed sum for loss of earnings/loss of leave apply to any hearing format and are fixed costs at PD 27, 7.3(1) ''The amounts which a party may be ordered to pay under rule 27.14(3)(c) (loss of earnings)... are: (1) for the loss of earnings or loss of leave of each party or witness due to attending a hearing ... a sum not exceeding £95 per day for each person.'' 

 

 

Statement of truth: 

 

I believe that the facts stated in this Witness Statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth. 

 

SIGNATURE 

 

…………

 

DATE

 

Maybelle

 

Exhibit 1

ANPR Entry/Exit Details

 

Exhibit 2

ANPR images

 

Exhibit 3

Signage provided by Claimant in Subject Access Request

 

Exhibit 4

Photographic signage taken by defendant

 

Exhibit 5

Parking charge notice

 

Exhibit 6

Appeal sent by defendant

Exhibit 7

Appeal rejection by Claimant

 

Exhibit 8

Email sent to Claimant

 

Exhibit 9

Letter from DCB Legal stating DVLA had given my details

 

Exhibit 10

Keeper details provided by DVLA

 

Exhibit 11

Email from recruiter confirming I was working on the day

 

Exhibit 12

Final letter sent from me to DCB Legal advising them I wasn’t the keeper or driver

 

Exhibit 13

Excerpt from Claimant’s reply to defence

Exhibit 14 Excel v Wilkinson

Exhibit 15

ParkingEye Limited v Beavis – Paragraphs 98, 193, and 198  

Maybelle

Few questions from me;

• To confirm I send a copy to the court and a copy to the Claimant/their legal team?
• Will I receive a copy of the Claimant's WS? I imagine they have the same deadline as me but who can I chase if I don't receive it by then?
• As I have referred to the distress this has caused me in my defence do I need to have a separate WS for my counterclaim or can I include it in the above WS? I saw that other users have sometimes separated it whilst others have not so would be good to understand what I should do in my case. I have paragraphs typed out so
• I am not the driver but I know who the driver is which is how I was able to put together the first few paragraphs. The keeper didn't reveal the driver as he was happy to handle it but will the fact the driver wasn't revealed count against me
• On the schedule of costs - I have spent a total of 23 hours on and since Sept working on my WS (as evident by MS word) but the loss of earnings and litigant in person rate means my costs would be £536 but I have capped it at £500 as this was the limit if I remember correctly. Is this the right thing to do? 
• I'm feeling very nervous about the upcoming hearing; is there anything I should be doing to further prepare for it? Does the Judge ask questions or is it quite straightforward