Claim Form Received / Highview Parking / DCB Legal

deezee3k

Thanks everyone. I've now sent the documents to the Court and the Claimant.

deezee3k

Hi everyone.

I have the court hearing this week, unless Highview discontinue (which I'm still keeping my fingers crossed for). I'm just looking for some last bits of advice, please.

I've read the thread about what to expect in court and that the Claimant usually goes first and then the Defendant gives their summary.

Is there opportunity for either party to cross examine? Or is it that both the Claimant and Defendant speak and the Judge makes their decision?

I know all cases have their own specific details but is there an accepted length of time taken to put forward your case?

I sent the WS on time - is there anything else that needs to be sent before the hearing?
I have pasted my 1 sided crib sheet below - do the points make sense? Does this need to be submitted to the court?

Defence Point	Extra Info	Evidence
1.     I was the registered keeper but liability is denied.	The Parking and Traffic Appeals Service and Parking on Private Land Appeals (POPLA) lead adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, “There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and the operators should never suggest anything of the sort” (POPLA report 2015). Claimant has included a clear falsehood in their Particular Of Claim which was signed under a statement of truth by the Claimant's legal representative who should know (as the Claimant undoubtedly does) that it is untrue to state that the Defendant is 'liable as keeper'. In answer to ‘Were they driving?’, I have bank records to show I was likely in work on that day – Tesco and Tram receipts. As I am the registered keeper but not the driver, I feel obliged to defend this case.	XX-07
2.     Parking Charge Notice was not compliant with Protections of Freedom Act (PoFA) 2012.	Not given by the relevant period - paragraph 9. (4) (b) and (5). Failed to give notice of keeper liability - paragraph 9 (2) (f).	XX-05 Claimant para 6 and 7.
3.     Subject Access Request revealed the Landowner said the charge ‘seems harsh’ that it was passed to Debt Collection agency.	The landowner not supporting the additional charges means this case is fully distinguished from the Supreme court case of ParkingEye Ltd v Beavis [2015] UKSC 67 in that there is no commercial justification or legitimate interest in pursuing it	Claimant para 22 XX-03 Claimant 1.
4.     Unclear signs/Terms and conditions.	‘1 hour free parking’, ‘1 hour 30 minutes free parking’ and ’Guide to 2 hours free parking’. Prominent and clear signs in Beavis [2015] which set a high bar the Claimant has failed to reach. ‘Did they overstay?’. Not being the driver, I don’t know the circumstances. Though, if indeed 2 hours terms, overstay could be considered reasonable for this busy car park	XX-08/09 Claimant 2.
5.     Confusing correspondence from the Claimant.	Highview reduced the charge to £95 but DCBL persisted to chase for £165. Case put on hold in Feb but alarmingly Claim Form issued in Apr – sent to wrong address even though records with DVLA up to date	Claimant 5 XX-04 XX-02
6.     The Claimant has added a sum of £70 that is disingenuously described as 'debt recovery costs'.	District Judge Claire Jackson in Excel vs Wilkinson: G4QZ465V - £60 added to a PCN, heard in July 2020. Disallowing that sum and warning parking firms not to waste court time with such spurious claims (now HHJ Jackson, a Specialist Civil Circuit Judge). The Judge concluded that parking operators (such as this Claimant) are seeking to circumvent Civil Procedure Rules 27.14 as well as breaching the Consumer Rights Act 2015.	XX-10
7.     The fairness of terms where no sum is specified, was recently ruled upon by Recorder Cohen QC, in the case of ChevalierFirescu v Ashfords LLP [2021] F83YX432.	Unfair pursuant to s62 of the CRA, as it created imbalance between the parties. Such a ‘contractual indemnity costs’ clause sidesteps the Civil Procedure Rules and cannot be recoverable, absent unreasonable conduct by the Defendant	XX-11
8.     The Claimant provides no evidence that the ‘Client’ is the landowner or their right to operate.	The Claimant has failed to even provide a redacted Contract of their right to operate.	XX-12
9.     Evidence in Claimant 1 cannot – according to the Companies Act – be considered a validly executed contract – as authority must flow from the landowner	The document has not been signed by two Directors, nor by one Director in the presence of attesting witnesses.	Claimant 1
10. In response to wasting the Court’s time with a lengthy defence and templates. I am a litigant in person that had zero prior knowledge of UK parking law.	Reasonable that I researched and adapted templates that are available. Also, the Claimant’s WS uses a template as there is a spelling mistake (sic) which I have seen a number of cases over through my research.	Claimant para 20 and 23 (sic)
11. Effects on me	Threatening letters, Case ‘on hold’, wasted hours/lack of sleep, CCJ Emotional strain, relationship strain	XX-01
12. Further costs	Which covers my proportionate but unavoidable further costs	XX-13

KeithP

Don't forget to file and serve a Costs Assessment.
Must be sent to the Court and Claimant a couple of days before the hearing.

deezee3k

@KeithP I included a Schedule Of Costs as an exhibit with my WS - albeit not very detailed (example below). Is that ok instead of having to send it again? Plus the hearing is Thursday so would it be too late to file and serve a more detailed one  tomorrow?

DEFENDANT’S SCHEDULE OF COSTS

Ordinary Costs

Loss of leave through attendance at court hearing:

£95.00

Further costs for Claimant’s misconduct, pursuant to Civil Procedure Rule 44.11

Research, preparation and drafting documents:

(XX hours at Litigant in Person rate of £19 per hour):

£XXX (XX x £19)

TOTAL COSTS CLAIMED:

£XXX (£XXX + £95)

deezee3k

Good evening everyone. 

I'm going to be printing off all the relevant documents tomorrow as. I'm in court on Thursday. 

Can I ask if anyone has any suggestions for the above crib sheet?

It's a case against Highview. Are the points in it strong enough?

Any help appreciated, as always. 

Coupon-mad

Your crib sheet is a great example of good preparation.

Is there opportunity for either party to cross examine? 

They can cross examine you and might briefly do so, to ask whether you were driving.  You can't cross examine them because it will be a hired legal rep, not Highview themselves, therefore they are not a witness.

The POFA is your strongest point because there is no legal liability for a registered keeper (due to Highview not bothering with the only applicable law).and the law of agency doesn't apply (i.e. consumer keepers are not liable as some sort of agent, for all actions of drivers of their car).  If the rep tries that one, point out that if that were true, there would never have been any need for the POFA 2012 Schedule 4 at all!

deezee3k

Hi everyone. 

The hearing was this morning and the Judge found for the Claimant.

Basically, he was satisfied that the vehicle overstayed and that I was the driver. 

At one stage when summing up, he said the points I put forward were very persuasive.

The judge asked about what I thought of the interest the claimant may add to the costs. 
I asked him to explain as I wasn't sure what all the costings meant. 
From there, he ruled that I should only pay the £95 parking charge plus court fees of £100 (£25 issue fee, £25 hearing fee and £50 fixed solicitor fee). So £195 in total. 
With the interest it could have been closer to £500.

The first I knew about the case was a debt recovery letter of £165, so I'm happy-ish at just paying £30 more to try and fight it. 

One of my exhibits was screenshots of bank transactions, showing I had shopped at a Tesco in a neighbouring city where I work on the day of the parking event - along with a transaction for a monthly travel pass, which is what I used to get to work. The judge said that wasn't proof enough that I wasn't driving.

The judge asked who was insured to drive the car - I didn't want to sound arsey by saying anyone with valid insurance, so I said close family and maybe a couple of friends.

Towards the end of my summary, I started talking about the amount of time I have had to spend on this claim and how the letters and calls from the Claimant were affecting me. 
He interrupted and asked for the relevance.
I said some of it would lead on to how I arrived at the costs but it wasn't looked on favourably. 

I'm disappointed in the ruling but happy no interest was added.
I thought the Tesco transactions were going to be key but the judge said, I could have still been the driver. 

When the tape had stopped recording, I asked the judge about that but he didn't want to pass comment although did tell a story of a friend who once used his card in Italy but had also used it at a UK airport the same day - backing up his judgment. 

He also said that I was the first defendant in a long time in similar cases he has ruled on who didn't just file a template defence and witness statement but made the document relevant to my case and that I understood laws when questioned on them, for which he praised but acknowledged would be little consolation.

I'd like to thank everyone in this forum who has contributed to helping me along the way with this case.

It wasn't the result I wanted but I think the judge acknowledged that the circumstances I put forward did not warrant further costs being added.
So the advice I've received on here definitely saved me from having to pay the extra costs. 

Your knowledge and advice, not to mention the time you volunteer has been amazing and greatly appreciated.

If anyone has any questions about the hearing that you feel may help others, let me know and I'll be happy to try and help. 

Coupon-mad

Good to hear he disallowed interest and the false debt recovery costs.  Which court and Judge, and did he say he always disallows the false costs?

I've no idea how he thought, on the balance of probabilities, that you were driving when you provided evidence suggesting you probably were not!

D_P_Dance

I've no idea how he thought, on the balance of probabilities, that you were driving when you provided evidence suggesting you probably were not!


Do you think that the judge made an error in law?  If so read this

https://www.gov.uk/complain-judge-magistrate-tribunal-coroner

Jenni_D

I had a similar thought but discounted it ... the judge made a judgment based on the evidence presented; I don't think there's a specific law that the judge misunderstood.