DCB Legal on behalf of Highview Parking - Advice on Defence for Claim

Redman2186

Received response from DCB Legal yesterday:

"Having reviewed the content of your defence, we write to inform you that our client intends to proceed with the claim.

In due course, the Court will direct both parties to each file a directions questionnaire. In preperation for that, please find attached a copy of the Claimant's, which we confirm has been filed with the Court.

Without Prejudice to the above, in order to assist the Court in achieving its overriding objective, our client may be prepared to settle this case - in the event you wish to discuss settlement, please call us on 0203 434 0433 within 7 days and make immediate reference to this correspondence."

Looks like they have skim read and missed:

           ii.       The Defendant's vehicle was recorded from ''01/10/2016 11:55 to 02/10/2016 15:48''.  The recorded duration of the stay is stated to be 03:52 (hh:mm), in other words, the PCN states incorrectly that the stay was almost 4 hours. In fact, this spans two days and by the Defendant's calculations that is actually a stay all day and all night for a total of 27:52. The court is invited to come to the same conclusion as the Defendant: something does not add up. The Defendant lives 15 minutes away and this is very likely to have been a family trip to the retail park on two consecutive days over the weekend (could also be two different drivers). The Defendant can definitively say that the family never slept in the car overnight and would have had no reason to leave the car there for two days; this is preposterous and robustly denied. The Claimant's SAR reply divulges a clear and well-known ANPR failure, and the burden was on the Claimant in 2016 to carry out manual checks of ANPR images which span two days, to identify one or both missing 'orphan' images of the vehicle leaving and arriving again the next day.  This is a requirement of the British Parking Association and it is well documented by them that ANPR systems have an inherent flaw of defaulting to the 'first in, last out' camera captures of a vehicle that visits a site twice in a 24 your period. Looking at the PCN and images, it took the Defendant about 1-minute flat to notice this clear and obvious error. This Claimant should have noticed it prior to harvesting data from the DVLA in 2016 and should never have issued a PCN in the first place.  Moreover, they have had nearly 5 years to realise their error and certainly should have done so before unlawfully processing and sharing the Defendant’s data with multiple third parties, preparing pre-action letters and then a claim.

DCB Legal Reply to Defence & their Defence to Counterclaim

IN THE COUNTY COURT AT WATFORD CLAIM NO. xxxxx

HIGHVIEW PARKING LIMITED

CLAIMANT

-V xxxxx

DEFENDANT

REPLY TO DEFENCE AND DEFENCE TO COUNTERCLAIM

1. The Claimant is a Company offering private car park management services to landowners; primarily to manage the way in which motorists are permitted to park whilst on their private land. The Claimant’s services include issuing parking charge notices to any vehicle parked in a way the private landowner does not permit.

2. The Defendant is the recipient of a parking charge notice (“PCN”) issued by the Claimant, the details of which are set out below: -

PCN No. - xxxxx

Location (“Land”) - Waterfields Retail Park, Watford

VRN (“Vehicle”) - xxxxx

Issue Date  - 02/10/2016

Reason for Issue- Vehicle remained on private property

in breach of the prominently displayed

terms and conditions

3. At the time the PCN was issued the Claimant was prominently displaying signs on the Land

stipulating the terms of parking. The signs formed the basis of the contract with the driver of the

Vehicle (“Contract”). Exhibited to this Reply at “EXHIBIT 1” is a copy of the signs which

confirmed that: -

“2 Hours Maximum Stay”

4. In parking the Vehicle on the Land, the driver accepted the Contract, with the ‘parking service’ being the consideration. The Contract provides that a charge is payable by the driver if it is breached; with

payment falling due within 28 days. Pursuant to the Contract, the driver was liable to pay the Charge

within 28 days.

5. In order to issue the Charge, the Claimant applied to the DVLA for details of the Registered Keeper

of the Vehicle. The Defendant was identified by the DVLA as the owner of the Vehicle and Charge

Notices were sent to the Defendant. These Notices ask who the driver was, whether themselves or

someone else, and make payment if they are liable. On the balance of probabilities, it is submitted

that if the Defendant was not the driver, they would explain that or nominate.

6. Upon receipt of the PCN, the Defendant had the option to nominate a driver (if it was not them), or they were afforded a 28-day period in which they could appeal. A driver was not nominated and there was no successful appeal.

The Defence

7. It is denied that the Defendant did not enter into a Contact with the Claimant.

8. It is accepted that the Defendant was served a Claim Form by DCB Legal and it is accepted that it is

for a Parking Charge Notice issued on 02/10/2016.

9. It is accepted that the Defendant was the Registered Keeper of the Vehicle.

10. It cannot be accepted or denied that the Charge Notice went to the Defendant’s previous address, it was sent to the address held by the DVLA.

11. The nature of the Defendant’s visit to the Land cannot be accepted or denied.

12. The Claimant does not seek to rely on the Protection of Freedoms Act 2012.

13. It is denied that the Particulars of Claim set out an incoherent statement of case.

14. It is denied that the Claimant breached the Consumer Rights Act 2015.

15. It is denied that the sum sought is not recoverable.

16. It is denied that the Charge is a penalty.

17. It is denied that the Terms were vague.

18. It is denied that the Claimant is seeking double recovery.

19. It is denied that the Claimant did not have a commercial justification for the Charge.

20. It is denied that the Claimant did not have a legitimate interest in the Land.

21. It is denied that the Claimant has failed to comply with the BPA Code of Practice.

22. It is denied that the Claimant has failed to comply with the Landowner’s definitions. The Defendant

is a third party to the Landowner Agreement, privity of contract applies.

23. For the reasons outlined in this Reply to Defence, the Defendant remains liable for the Charge as;

i. On the balance of probabilities, they were the Driver of the Vehicle;

ii. They breached the Terms of parking on the Land;

iii. Charge Notices were issued to them;

iv. The Charge has not been successfully appealed; and

v. The Charge remains due and owing.

24. For the reasons set out above, the Defendant remains liable.

___________________________________________________________________________________

DEFENCE TO COUNTERCLAIM

___________________________________________________________________________________

25. The Defendant has no cause of action against the Claimant to recover the sums claimed. The

Defendant’s entitlement to the relief claimed is denied in its entirety.

26. The Claimant requests that the Counterclaim be struck out pursuant to CPR 3.4(2) as the Statement of

Case does not:-

a. Comply with Practice Direction 16;

b. Disclose any reasonable grounds for bringing a claim; or

c. Offer any explanation as to how the amount sought has been calculated.

27. Whilst the Claimant maintains the claim should be struck out automatically due to non-compliance

with the CPR, in the event that the Court is not minded to do so, the points raised in the Counterclaim

are responded to as follows:-

Cause of Action

a. It is denied that the Defendant has pleaded anything resembling a viable cause of action;

b. In any event, it is denied there is a viable cause of action available to the Defendant,

whether as pleaded or otherwise;

c. The Defendant makes vague references to ‘distress’ and ‘harassment’. It is denied this

provides any legislative reasoning as to why those allegations would afford the Defendant

a cause of action such that he would be entitled to the relief claimed, or indeed any relief at

all;

Distress

d. The Counterclaim is an injury claim for distress. This is denied;

e. Money Claims Online states in its user guide that you cannot use it for a claim for

compensation. In addition, the Defendant has failed to follow the Pre – Action Protocol for

Personal Injury Claims;

f. Notwithstanding the above, the Defendant is put to proof that:

i. Distress has been suffered;

ii. The distress suffered was a direct result of the Claimant;

iii. The actions of the Claimant were such that would ordinarily cause the level of

distress ‘proven’ at point (i); and

iv. The distress has caused a loss of £500.00.

Data Protection

g. It is denied that the Claimant has breached the Data Protection Act 2018 and GDPR;

h. The Terms of parking on the Land state, “we may contact the DVLA to request the details

of the vehicle’s registered keeper and may send a parking charge notice to the registered

keeper by post”;

i. DCB Legal have confirmed they will respond to the Defendant’s Subject Access Request

within the requisite timeframe;

Harassment

j. It is denied that the Claimant has harassed the Defendant;

k. It is denied that any of the Claimant’s conduct would constitute harassment. There is

nothing to support the Defendant claims that pursuing a debt by utilising debt recovery

companies would be considered harassment;

l. Is it denied there is evidence of the Defendant explicitly asking the Claimant or its agents

to cease sending letters. This would be a requirement in a legitimate claim for harassment;

m. Given the circumstances, it is denied the action taken could be considered unreasonable;

n. It is denied that the incidents complained of amount to a course of conduct capable of

amounting to harassment;

Quantum

o. It is denied the Defendant pleads any grounds capable of resulting in an award of

compensation in the sum claimed, or indeed any sum at all;

p. The Defendant has failed to particularise the amount claimed;

q. The Defendant has failed provide any kind of breakdown of the amount claimed in the sum

of £500.00;

r. The Defendant has failed to provide any legal basis for the counterclaim;

s. The counterclaim is frivolous and vexatious.

4

STATEMENT OF TRUTH

The Claimant believes that the facts stated in this Reply to Defence and Defence to Counterclaim 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.

Signed:

Name: Danielle Johnson

Position: Paralegal

Dated: 11/06/2021

Coupon-mad

What a shame they defended, as some PPCs miss this step. Anyway nothing has changed and as you say, they seem to have overlooked their own evidence that this is clearly a typical ANPR failure, well known to be an issue and something the BPA says that parking firms have to manually check images for, to avoid PCNs being issued inappropriately...

...Just like this one! 

 This case shows how lacking the manual checks are and how these rogue ‘double visit over 24 hrs’ ANPR error PCNs have potential to ruin people’s credit ratings. 

Had you not defended, you’d have got a CCJ for this scam PCN, all because a PPC can’t be bothered to carry out sufficient checks. And they still haven’t bothered.

As they have put you to strict proof of your distress, and as a counterclaim like this depends on your demeanour in court and that you can show the Judge how hard you tried to resolve it and how it affected you, I would respond now even though you don’t have to. 

Respond and point out that their client is compounding the harassment and distress by continuing to ignore the obvious ANPR flaw that led to this 24 hour ‘double visit error’ PCN and by admitting they can’t rely on the POFA yet are still knowingly pursuing the registered keeper anyway.  All this with zero cause of action and zero justification. 

Then go to town with a couple of paragraphs telling them how this has affected you and your family and your peace of mind, your sleep, your work...how it has taken over your life and taken away precious family time you will never get back. 

Point out that pure distress is not dependent upon any loss and the authorities your counterclaim relies upon include Vidal Hall v Google and also Halliday, which support your position. 

State that their client’s actions continue to represent a course of conduct amounting to harassment but also Data abuse because they had no reasonable cause to get your DVLA data at all, from day one x years ago. 

 The fact they continue to abuse your data now is a clear DPA breach and parking firms have been ordered to pay hundreds to victims in similar cases: e.g. Simon Clay v Civil Enforcement and other more recent cases will be adduced in evidence to show the court this sort of remedy is not fanciful nor unusual when parking firms get it wrong.

Finish by saying this letter will be appended as an exhibit with your Witness Statement, as further evidence of the lengths you have had to go to, right up to the wire, to try to make their client understand that not only can a registered keeper not be held liable by this non-POFA-compliant parking firm but also, the entire alleged ‘breach’ is a fabrication. Negligence at best - and that’s no defence against this counterclaim.

Coupon-mad

Do not mention any settlement offer in the above reply and DON’T head it up without prejudice, please...

Redman2186

Coupon-mad said:

Do not mention any settlement offer in the above reply and DON’T head it up without prejudice, please...

Do I respond directly to their email and append when time is appropriate to the witness statement? Or do I also need to send a copy of my response to the court?

I will ensure that I do not have the wording “without prejudice” on my response.

Coupon-mad

Just send an email to them and of course you don’t copy in the court because I said you would be appending this email at WS stage.

Redman2186

Does anyone have a view on rough timelines post N180 Questionnaires being submitted?

Redx

Redman2186 said:

Does anyone have a view on rough timelines post N180 Questionnaires being submitted?

Up to 6 months , typically several weeks as a minimum , even before the pandemic

The wheels of justice turn very slowly

Redman2186

Been a little while - hope all are well.

Was considered on 21st June and allocated to small claims track - Court date 4th November expected to take 1 hour.

The claimant has until 4pm on the 7th October to pat the court trial fee of £55.00, if they don't...

"the claim will be strick out with the effect from 7th October without  further order and , unless the Court orders otherwise, you will also be liable for the cost which the Defendant has incurred."

"If your claim has been struck out, it will no longer exist. The hearing will be vacated, unless a counterclaim survives the claim being struck out."

Question 1. I have counter claimed and paid the fee, would I need to do anything further if the claimant does not pay for the court trial fee?

The following directions apply to this Claim:

"Each party must deliver to the other party and to the court office copies of all documents on which that party intends to relay at the hearing no later than 5th August"

Question 2. Is this just my witness statement with the photographic evidence showing 2 different dates + breakdown of costs incurred etc.? 
I have cited a number of other cases as precedence in the defence - do I need to add anything further on those?

Question 3. I've previously seen someone shared a link to court guidance and getting ready - unable to locate, is anyone able to share?

Thanks All

Coupon-mad

• Question 1. I have counter claimed and paid the fee, would I need to do anything further if the claimant does not pay?
  
  ANSWER:
• Yes, you would have to pay the hearing fee instead. So ring up the day after, and check.
  
  
  Question 2. Is this just my witness statement with the photographic evidence showing 2 different dates + breakdown of costs incurred etc.? 
  I have cited a number of other cases as precedence in the defence - do I need to add anything further on those?
  
  
  
  
  ANSWER:
  Yes, you need to append the relevant transcripts but not the Southampton case as we don’t use it any more. Two other transcripts are needed, as set out and linked in a thread I started last month about the RECORDER COHEN QC judgment and Excel v Wilkinson.
  
  
  There is at least one WS almost finished that includes mention of both judgments on the forum posts today (go look, no idea which username but I replied to them).
  
  
  There is also a good example of the whole bundle (costs, exhibits, headings and what it all looks like) posted by @jrhys but his doesn’t include the new Recorder Cohen case, so you also need to read my thread about that and grab the less blurry version of Excel v Wilkinson that I provided there (again, no link, my aim is for newbies to be told where to look then go and find, because it gives you forum research skills and confidence). 
  
  
  Question 3. I've previously seen someone shared a link to court guidance and getting ready - unable to locate, is anyone able to share?
  
  ANSWER:
• It’s in the NEWBIES thread, all stages are. 
  
  

Redman2186

DCB Witness Statement arrived today

They are now claiming a typo on the 3 hours 52 mins and it should have been that we stayed for 1 day 3 hours and 53 mins.

What does everyone think?

I’ve copied a large portion below:

Contract

         

  Waterfields Retail Park, Watford

    

   02/10/2016

   Vehicle remained on private property in breach of the prominently displayed terms and conditions

  2

10. At the time of issue, my Company was prominently displaying signs on the Land setting out the Terms of parking. A copy of the content of the signs is exhibited to this Statement at “EXHIBIT 2”. The signs formed the basis of the Contract with the driver (“Contract”).

11. The following was a term of the Contract: -

“2 Hours Maximum Stay”.

12. In parking the Vehicle on the Land, the driver accepted the Contract, with the license to park being the Consideration. It is evident from the photographic evidence exhibited within this Statement at “EXHIBIT 3” that the Vehicle entered the Land at 11:55 on 01/10/2016 and exited the Land at 15:48 on 02/10/2016. The Vehicle remained on the Land for 1 day, 3 hours and 53 minutes, thus breaching the Contract. It is noted there is a typographical error within the Notices which state the Vehicle was parked on the Land for 3 hours and 52 minutes.

13. The Contract provides that a charge is payable by the driver upon breach, with payment falling due within 28 days.

14. A plan of the Land (“Plan”) showing the positioning of the signs is exhibited to this Statement at “EXHIBIT 4”.

15. A copy of the Charge Notice is exhibited to this Witness Statement at “EXHIBIT 3”.

Defendant’s Liability

16. Pursuant to the Contract; the Driver was liable to pay the Charge within 28 days of issue.

17. My Company uses Automatic Number Plate Recognition (“ANPR”) technology on the Land to manage the parking. Cameras capable of accurately recording vehicle registration numbers are constantly monitoring the entrance and exit to the Land. A photograph is taken of each vehicle as it enters and exits the Land. Any vehicle found to have breached the Terms of parking will be issued with a PCN.

18. In order to issue a PCN, my Company requests the details of the owner of the Vehicle from the DVLA to send notices. Upon receipt of those details, a Charge Notice is sent to the owner via the post. The Notice asks who the driver was, whether themselves or someone else, and make payment if

 3

they are liable. On the balance of probabilities, it is submitted that if the Defendant was not the driver, they would explain that or nominate.

19. In their regard during cross examination, my Company will request further details without concession on the history or usage of the Vehicle i.e., who was insured to drive the Vehicle.

Defence

20. The case is simple. The Terms on the signs at “EXHIBIT 2” clearly state, “2 Hours Maximum Stay”. It is evident from the images at “EXHIBIT 3” that the Defendant overstayed on the Land, thus breaching the Terms and incurring the Charge. There can be no reason, other than to frustrate the matter, why the Defendant has submitted a 36 paragraph legally complex defence in response to that. The Defendant simply needs to answer the questions that has been avoided throughout the Defence; were they driving? did they overstay? The answer to the latter being, yes, as is evident from the photographs.

21. The Defendant was afforded a 28-day period in which they could appeal, and I am instructed they did not. The potential next step was clearly communicated to the Defendant in notices. It is respectfully submitted that if the Defendant genuinely believed the Charge had been issued incorrectly, they would have engaged with the appeals process further.

22. If there was any doubt regarding their liability, the Defendant has had ample time to challenge the Charge or request evidence in support. Despite correspondence being sent to the Defendant by a debt collection agency and a Letter of Claim being issued in accordance with the Pre-Action Protocol for Debt Claims, no challenges have previously been raised.

23. The Defendant has filed a widely available templated Defence, rather than dealing with the substantive issues. It is submitted the this is disingenuous and a waste of both the Court’s and my Company’s time.

24. Notwithstanding the above, I respond to the issues raised in the Defence by way of sub-headings as follows (as the defence is quite repetitive, I will only deal with each point once, but for the avoidance of doubt nothing within the defence is accepted unless I specifically state otherwise): -

The Contract

  4

i. The Defendant alleges that there is no contract between them and my Company. It is my Company’s position that there is and the details of which are set out above. Parking Eye -v- Beavis established that this form of contract is perfectly workable;

Defendant’s Allegations

ii. The limitation period for bringing this Claim is six years from the date the cause of action arose pursuant to the Limitation Act 1980. No adverse inferences can be drawn from the time taken for my Company to bring this Claim, because court proceedings should only be instigated as a last resort, and my Company has exhausted all other avenues by attempting to communicate with the Defendant;

iii. My Company does not seek to rely on the Protection of Freedoms Act 2012 to recover the Charge. As previously stated, this claim is issued against the Defendant on the basis that they are the owner of the Vehicle and did not nominate. During cross examination, the Defendant will be asked to answer the question ‘were you the driver?’ It is respectfully suggested that the Defendant bear in mind that, under oath, he will need to answer that question truthfully. There is no sensible reason why, if the Defendant was not driving, they did not nominate the person who was. Once it is established, they were the driver, it is clear they entered the Contract and is liable;

iv. I submit that a Charge Notice was sent to the address registered with the DVLA, the onus is upon the Defendant to keep their details up to date with the DVLA. It is respectfully submitted that the Defendant was placed on notice and failed to respond or pay;

v. It is evident from the photographic evidence exhibited within this Statement at “EXHIBIT 3” that the Vehicle entered the Land at 11:55 on 01/10/2016 and exited the Land at 15:48 on 02/10/2016. The Vehicle remained on the Land for 1 day, 3 hours and 53 minutes, thus breaching the Contract. It is noted there is a typographical error within the Notices which state the Vehicle was parked on the Land for 3 hours and 52 minutes. No prejudice has been caused to the Defendant as a result of this simple error as the Defendant outlined the same within their Defence. A copy of the email from my Company confirming the error is exhibited at “EXHIBIT 5”;

vi. It is respectfully submitted that if the Defendant had not left their Vehicle parked on the Land overnight, there would be two more images of the Vehicle which there is not;