PNC Claim from CP Plus via DCB Legal

Firestrumer

Received a County Court Claim from these fine fellows and would like some guidance and eyeballs passed over my defence if possible.

Issue date is 21 April 2021
PCN from June 2015
Claiming £170 + interest, totalling £250, which with fees and legal rep costs brings it to a nice £325

Actions taken so far
- AOS - Completed online

- SAR - Submitted, content below. 

CP Plus Ltd T/A Groupnexus

Dear Sir or Madam

Subject access request ( Data Protection Act 2018 / General Data Protection Regulations (GDPR) )

xxxxxxxxxxxx

Please supply the data about me that I am entitled to under data protection law relating to myself.

Specifically in relation to Your Parking Charge Notice, details are xxxxxxxxxxxxxxxxxxxxxxx

• All photographs taken on the day, including but not limited to, images of the parking fee notification signs as they were on the day in question 
  
• All correspondence sent and received
  
• A PDT machine record from that day, of payments made 
• A copy of the transactional and error logs from that day, for that location, from any 3rd party mobile phone apps that were in use at the time for making payment
• All data held by you regarding this case
• All data and information held on me for this and any other case by your organisation in a human readable form
• All evidence you will rely on
• A full copy of any PCN and NTK associated with me
  
• A list of all PCNs outstanding against me and/or this VRN as any claim must be for all PCNs and not submitted as several separate claims

I have attached proof of ID as required.  If you need any more data from me to confirm my identity, please let me know as soon as possible. I would expect your response within 7 working days, but at most 1 calendar month per data protection legislation.

If you do not normally deal with these requests, please pass this letter to your Data Protection Officer, or relevant staff member. If you need advice on dealing with this request, the Information Commissioner’s Office can assist you. Its website is icoxxxx or it can be contacted on 0303 123 1113.

Yours faithfully

They responded with a form that I was to complete, sign and return.  Totally unnecessary information requested in the form and it would also create an interesting restriction of use for the data (my data) too, so I declined their request.

- Note to DCB Legal sent based on template

Dear Sir / Madam

I am seeking debt advice, but I deny any debt and the case must be put 'on hold' for not less than 30 days under the PAP for debt claims 2017.

I have sent your client a SAR and expect a response within the statutory 30 days.

I would like to confirm my address as xxxxxxxxxxxxxxxxxx

Yours faithfully

xxxxxxxxxxxxx


They've responded asking for the same info again so have provided answers.

- Land owner, Moto Services contacted and in email conversation with their CEO Ken McMeikan and copying their Commercial Director, Paul Comer 

Firestrumer

- Defence

This is my defence (used the template suggested and mildly tweaked for this case), has not been submitted yet, and would be open to any suggestions to improve it please.  

IN THE COUNTY COURT

Claim No.: xxxxxxxx

Between

CP Plus LTD T/A GROUPNEXUS

(Claimant) 

- and -  

xxxxxxxxx

 (Defendant)

____________________

DEFENCE

____________________

1.       The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that a contract was entered into - by conduct or otherwise - whereby it was ‘agreed’ to pay a ‘parking charge’ and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue, nor to form contracts in their own name at the location.

The facts as known to the Defendant:

2.       It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied.  It is not known who was the driver of the vehicle at the time of the alleged incident on xxxxxxx 2015. 

3.  I received first notification of this parking charge on opening a letter on 24th April 2021, nearly 6 years after the alleged incident, stating that I was to be taken to court for being indebted to the Claimant for a Parking Charge.  I am truly troubled and upset by its receipt and the associated implications.  No Letter Before Claim for this PCN was received before the claim itself.

I was the registered keeper of the vehicle at the time of the alleged incident, but the vehicle was insured for use by other family members, and also anyone else with their own correct insurance.  I have no recollection of who was driving on that specific day 6 years ago.

The interest cannot be justified. Not only has it been calculated incorrectly, it is also questionable that it has taken so long for the Claimant to bring a claim to court and is then claiming interest on alleged debt recovery and damages as well.

As such I cannot be held liable due to the Claimant not complying with the ‘keeper liability’ requirements set out in the Protection of Freedoms Act 2012, Schedule 4.

4.  The Particulars of Claim set out an incoherent statement of case and the quantum has been enhanced in excess of any sum hidden in small print on the signage that the Claimant may be relying upon.  

Claiming ‘costs/damages’ on an indemnity basis is stated to be unfair in the Unfair Contract Terms Guidance, CMA37, para 5.14.3.  That is the official Government guidance on the Consumer Rights Act 2015 ('CRA 2015') legislation which must be considered, given the duty in s71. 

The Defendant avers that the CRA 2015 has been breached due to unfair terms and/or unclear notices (signs), pursuant to s62 and with regard to the requirements for transparency and good faith, and paying regard to examples 6, 10, 14 and 18 in Sch2.  NB: this is different from the UTCCRs considered by the Supreme Court, in that there is now a requirement for contract terms and notices to be fair.

5.       It is denied that the exaggerated sum sought is recoverable.  The Defendant's position is that this money claim is in part/wholly a penalty, applying the authority in ParkingEye cases (ref: paras 98, 100, 193, 198) ParkingEye Ltd v Beavis [2015] UKSC 67 and para 419 of HHJ Hegarty’s High Court decision in ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was set at £75 (discounted to £37.50 for prompt payment) then increasing ultimately to £135.  At para 419, HHJ Hegarty found that adding £60 to an already increased parking charge 'would appear to be penal' and unrecoverable.  ParkingEye had dropped this punitive enhancement by the time of Mr Beavis' parking event.

6.       Even if the Claimant had shown the global sum claimed in the largest font on clear and prominent signs - which is not proven - they are attempting double recovery of the cost.  It is denied that the Claimants have expended additional costs for the same letters that the Beavis case decision held were a justification for the (already increased from the discount) parking charge sum of £85.  

7.  The Claimant cannot be heard to base its charge on the Beavis case, then add damages for automated letter costs; not even if letters were issued by unregulated 'debt recovery' third parties.  It is known that parking firms have been misleading the courts with an appeal at Salisbury Court (the Semark-Jullien case) where the Judge merely reset an almost undefended case back for a hearing.  He indicated to Judges for future cases, how to consider the CRA 2015 properly and he rightly remarked that the Beavis case was not one that included additional 'costs' per se, but he made no finding of fact about the illegality of adding the same 'automated letter costs' twice.  He was not taken by either party to Somerfield in point #5 above and in any event it is worth noting that the lead Southampton case of Britannia v Crosby was not appealed.  It is averred that District Judge Grand's rationale remains sound, as long as a court has sufficient facts to properly consider the CRA 2015 s62, 63 and 67 before turning to consider the Protection of Freedoms Act 2012 Sch4 ('the POFA').

8.  Pursuant to Sch4 of the POFA at 4(5), the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a parking firm has complied with its other requirements (denied in this case).  It is worth noting that even though the driver was known in Beavis, the Supreme Court considered the POFA, given that it was the only legislation specifically dealing with parking on private land.  There is now also the Parking (Code of Practice) Act 2019 with a new, more robust and statutory Code of Practice being introduced shortly, which evolved because the two Trade Bodies have failed to properly govern this industry.

The ParkingEye Ltd v Beavis [2015] UKSC 67 case is distinguished

9.       Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 private PCN, which included all operational costs, and they were able to overcome the real possibility of the charge being dismissed as punitive and unrecoverable.  However, their Lordships were very clear that ‘the penalty rule is plainly engaged’ in such cases.  

10.       Their decision was specific to what was stated to be a unique set of facts: the legitimate interest/commercial justification, the car park location and prominent and clear signs with the parking charge itself in the largest/boldest text.  The unintended consequence is that, rather than persuade courts considering other cases that all parking charges are automatically justified, the Beavis case facts and pleadings (and in particular, the brief and very conspicuous yellow/black signs) set a high bar that this Claimant has failed to reach.

11.   Without the Beavis case to support the claim and no alternative calculation of loss/damage, this claim must fail.  Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of an overriding legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach.  

12.   The Supreme Court held that the intention cannot be to punish a motorist - nor to present them with concealed pitfalls, traps, hidden terms or unfair/unexpected obligations - and nor can the operator claim an unconscionable sum. In the present case, the Claimant has fallen foul of the tests in Beavis.

13.       The Claimant’s signs have vague/hidden terms and a mix of small font, such that they would be considered incapable of binding any person reading them under common contract law, and would also be considered void pursuant to Sch2 of the CRA.  Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was seen, known or agreed.

14.   Binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of an onerous parking charge, would include:

(i)                 Spurling v Bradshaw [1956] 1 WLR 461 (the ‘red hand rule’ case) and

(ii)                Thornton v Shoe Lane Parking Ltd  [1970] EWCA Civ 2,

both leading authorities confirming that an unseen/hidden clause cannot be incorporated after a contract has been concluded; and

(ii)                 Vine v London Borough of Waltham Forest: CA 5 Apr 2000,

where the Court of Appeal held that it was unsurprising that the appellant did not see the sign ''in view of the absence of any notice on the wall opposite the southern parking space''.  In many cases where parking firm Claimants have cited Vine in their template witness statements, they have misled courts by quoting out of context from Roch LJ, whose words related to the Respondent’s losing case, and not from the ratio.  To pre-empt that, in fact Miss Vine won because it was held as a fact that she was not afforded a fair opportunity to learn of the terms by which she would be bound.

15.   Fairness and clarity are paramount in the new statutory CoP being finalised by the MHCLG and this stance is supported by the BPA and IPC alike. In the November 2020 issue of Parking Review, solicitor Will Hurley, the Chief Executive of the IPC Trade Body, observed:  'Any regulation or instruction either has clarity or it doesn’t. If it’s clear to one person but not another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive of all parties involved – it’s either fair or it isn’t. The introduction of a new ‘Code of Practice for Parking’ provides a wonderful opportunity to provide clarity and fairness for motorists and landowners alike."   The Defendant's position is that the signs and terms the Claimant is relying upon were not clear, and were in fact, unfair and the Beavis case is fully distinguished.

16.  In the alternative, the Claimant is also put to strict proof, by means of contemporaneous and unredacted evidence, of a chain of authority flowing from the landholder of the relevant land to the Claimant.  It is not accepted that the Claimant has adhered to the landholder's definitions, exemptions, grace period, hours of operation, etc. and any instructions to cancel charges due to complaints.  There is no evidence that the freeholder authorises this Claimant to issue parking charges or what the land enforcement boundary and start/expiry dates are, nor whether this Claimant has standing to enforce such charges by means of civil litigation in their own name rather than a bare licence to act as an agent ‘on behalf of’ the landowner.

In the matter of costs, the Defendant seeks:

17.   

(a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and

(b) that any hearing is not vacated but continues as a costs hearing, in the event of a late Notice of Discontinuance.  The Defendant seeks a finding of unreasonable behaviour in the pre-and post-action phases by this Claimant, and will seek further costs pursuant to CPR 46.5.

(c) Costs for time included in the attached Cost Schedule (Ref xxx – Cost Schedule)

18.   The Defendant invites the court to find that this exaggerated claim is entirely without merit and to dismiss the claim. 

Statement of Truth

I believe that the facts stated in this defence 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.

 

Defendant’s signature:

Date:

 

Do I need something in there specifically to refute their legal representative's costs of £50?

 

My understanding of the process is that I submit (an improved version of) this online then wait for the court date.  

I've collated

- Cost schedule

- Exhibits

Anthony Smith vs Excel Parking

Excel Parking vs Ian Lamourex Judgement

Excel Parking Ref XL09056599

Premier Park vs Jonathan Shaw

Caernarfon Ruling

 

 

So a couple of questions:

- Where does the witness statement come in? I've found one from one of the other forum members so will be using that as a guide rather than template.

- I've asked for pictures of the signage on the date of the alleged incident, as if they can't prove what was there that specific day, then regardless of anything else they can't prove a contract was entered into (just a thought)

- What am I missing?  There's always something!!

 

Cheers - FSTMR

KeithP

Firestrumer said:

Received a County Court Claim...

Issue date is 21 April 2021

Actions taken so far
- AOS - Completed online

Upon what date did you file an Acknowledgment of Service?
Your MCOL Claim History will have definitive answer to that.

Redx

you cannot ask for the alleged debt to be placed on hold is a live court claim is in progress, dcb LEGAL will refuse , that only works at the LBC stage, not MCOL stage

any SAR goes to C P PLUS as Groupnexus , to their DPO, with a copy of the claim form as proof of I D

the witness statement plus exhibits plus summary costs schedule happens in several months time after your local nominated court write to you

the signage should be submitted in their WS + EXHIBITS at the same time as yours, because all 3 parties exchange paperwork (bundles are submitted)

a defence is just a text statement, no extras are submitted, just the emailed defence

answer the question by KeithP above

lastly , please only post the paragraphs you have altered from the coupon mad template , typically 2 to 5 paragraphs at most, but adapted from 2 + 3 of her template, including renumbering

beamerguy

Issue date is 21 April 2021
PCN from June 2015
Claiming £170 + interest, totalling £250, which with fees and legal rep costs brings it to a nice £325

Is this yet another DCBL claim signed as a statement of truth by Yasmin Mia ?

Does she state DAMAGES as part of the £170 ?

1505grandad

"PCN from June 2015"  -  what is the address of the parking place  -  there may be other threads about the same place. Also may be able to "Street View" the place back to June 2015 which hopefully may show the signs (and who the contract is with).

Coupon-mad

Issue date is 21 April 2021
PCN from June 2015

Yet another one just weeks away from the 6 year limitation, that could have been avoided by merely replying to the LBC or previous letter from DCBL Recovery, asking a few questions, doing the SAR then and timing it out.  So frustrating.  No claim would have been possible.

Anyway you are where you are and will beat it anyway, or MOTO will cancel it.  

You've put ''I'' in the defence which is not how the template is written.   Change ''I'' to 'The Defendant'.  

And read other CP Plus and Highview threads because you've missed the bit where you need to point out that the Particulars of Claim include an untruth. I've said this until I'm blue in the face this week with all these tedious Group Nexus claims so I'm not saying here what the untruth is...

Do I need something in there specifically to refute their legal representative's costs of £50?

No, they are allowed to claim that.

 

My understanding of the process is that I submit (an improved version of) this online then wait for the court date.  
I've collated

Anthony Smith vs Excel Parking
Excel Parking vs Ian Lamourex Judgement
Excel Parking Ref XL09056599
Premier Park vs Jonathan Shaw
Caernarfon Ruling

None of that is needed.  Those cases are a bit old, as well.

  

Firestrumer

KeithP said:

Firestrumer said:

Received a County Court Claim...

Issue date is 21 April 2021

Actions taken so far
- AOS - Completed online

Upon what date did you file an Acknowledgment of Service?
Your MCOL Claim History will have definitive answer to that.

Hi KeithP - I waited until the 26th April, so 5 days after the issue date

Firestrumer

Coupon-mad said:

Issue date is 21 April 2021
PCN from June 2015

Yet another one just weeks away from the 6 year limitation, that could have been avoided by merely replying to the LBC or previous letter from DCBL Recovery, asking a few questions, doing the SAR then and timing it out.  So frustrating.  No claim would have been possible.

Anyway you are where you are and will beat it anyway, or MOTO will cancel it.  

You've put ''I'' in the defence which is not how the template is written.   Change ''I'' to 'The Defendant'.  

And read other CP Plus and Highview threads because you've missed the bit where you need to point out that the Particulars of Claim include an untruth. I've said this until I'm blue in the face this week with all these tedious Group Nexus claims so I'm not saying here what the untruth is...

Do I need something in there specifically to refute their legal representative's costs of £50?

No, they are allowed to claim that.

 

My understanding of the process is that I submit (an improved version of) this online then wait for the court date.  
I've collated

Anthony Smith vs Excel Parking
Excel Parking vs Ian Lamourex Judgement
Excel Parking Ref XL09056599
Premier Park vs Jonathan Shaw
Caernarfon Ruling

None of that is needed.  Those cases are a bit old, as well.

  

Thanks Coupon-mad

To your points
- I to Defendant - I'll change that
- Untruth - More research.  Thank you for pointing that out, appreciated
- I'll not include those cases

Thanks for your guidance!

Firestrumer

1505grandad said:

"PCN from June 2015"  -  what is the address of the parking place  -  there may be other threads about the same place. Also may be able to "Street View" the place back to June 2015 which hopefully may show the signs (and who the contract is with).

Hi 1505grandad

Moto services Heston east bound.  I did search somewhat, but was more focused on getting the defence prepared.  I'll loop back and do more digging on other threads from there.

The street view I can find is from July 2015, but not from the date in question.  It's blurry, but looks like CP Plus back then.

Thanks for looking

Firestrumer

beamerguy said:

Issue date is 21 April 2021
PCN from June 2015
Claiming £170 + interest, totalling £250, which with fees and legal rep costs brings it to a nice £325

Is this yet another DCBL claim signed as a statement of truth by Yasmin Mia ?

Does she state DAMAGES as part of the £170 ?

Hi beamerguy

Yes - Yasmin has her name in the signature box

From the Claim - 

"1. £170 being the total of the PCN(s) and damages."

Then it goes on about interest at 8% and daily rate of £0.04 until judgement.