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

Redx

If I remember the case correctly , this is the bare bones of what I think about the claim and counter claim

Ownership is irrelevant , but keeper liability might be , but only if POFA was complied with

The claimant has failed POFA , so a keeper has no legal liability under POFA
Not revealing the driver is irrelevant , no precedent in law to name the driver and no legal requirement to make any appeal at all

If the keeper was not the driver , then the keeper has no liability anyway , due to POFA non compliance
Their invoice issues and lack of pictures is their problem , anpr is flawed and is well known

This was 2 short visits , not one long visit , no proof that the vehicle remained onsite throughout , double dip

The extra charges are spurious , as recent judgments prove , Cohen , Wilkinson etc

So it's a widely obtained internet template , so what ?

How am I doing ?

Redman2186

Yep that is most of it - I’m just annoyed that that they have chosen to point blank lie and suggest that we now stayed for 27hours instead of owning up to a mistake. 

We have found banks statements showing purchases at 2 different stores Boots and Next on the consecutive dates in question - seems reasonable that we would have chosen to remain in the car park for 24 hours and sleep in the car….. rather than drive the 10minutes home and return the next day! 

They are just point blank lying now to fit their rhetoric - it’s disgusting 

Coupon-mad

You need to work on a VERY detailed WS with all the evidence and case law to support the counterclaim and you only have a few days.  

Look at the WS by @Nosy if it was posted on his thread. He won the counterclaim.

Umkomaas

They are just point blank lying now to fit their rhetoric - it’s disgusting 

Provide a synopsis of your case when you respond to the MHCLG consultation as outlined in @Coupon-mad's thread below please

https://forums.moneysavingexpert.com/discussion/6286801/government-consultation-re-level-of-private-parking-charges-now-open#latest

Redman2186

Remainder of their WS:

CPR Compliance

 vii. The Defendant questions whether the Particulars of Claim comply with the Civil Procedure Rules. I submit that the Claim was issued via the County Court Business Centre and in this regard, I refer to Practice Direction 7E (“the PD”) which specifically provides the guidelines for doing so. I respectfully submit that the Particulars of Claim (“the Particulars”) are in keeping with the PD. The following sections are of relevance: -

5.2(1) provides a limited character count for the Particulars of Claim; and

5.2A stipulates that the requirement in paragraph 7.3 of Practice Direction 16 for documents to be attached to the particulars of contract claims does not apply to claims started using an online claim form.

viii. It is my Company’s position that the Particulars were sufficient to allow the Defendant to identify the subject matter of the Claim. The Defendant could not have submitted a Defence with the detail it contains if the Particulars were so insufficient as to prevent them from understanding the claim. Further, with respect, if the Defendant were of the genuine belief that the Particulars of Claim were insufficient, the correct procedure would have been to make an Application to the Court. The Defendant has chosen not to do so;

ix. In addition to the above, I also refer to CPR 1 and respectfully remind the Defendant of their obligation to deal with the case justly and at proportionate cost. Bearing in mind the claim amount, my Company has taken proportionate steps to recover the debt;

Terms / Signs

x. The Terms on the signs were adequate in respect of overall size, font size, plain English, location and content. The Plan demonstrates where the signs were located and it is submitted they are adequate to constitute notice of the Terms to the Driver. If the Defendant did not understand the Terms on the signs, they should have exited the land and found alternative parking;

xi. The signs clearly outlined the Terms of parking and the Defendant was on notice of the Terms upon entering the Land. By parking on the Land, the Defendant accepted the Terms. These Terms state that if breached, the Defendant agrees to pay within 28 days of issue;

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xii. In respect of the ‘rules’, as per Schedule 2 of the Consumer Right Act 2015, specifically referred to: -

Rule 6 – It is submitted the sum is not disproportionate for the reasons set out within the ‘amount claimed’ section of this Statement, nor is it ‘compensation’.

Rule 10 – As is evident from the Plan, signs were displayed throughout the Land. The Driver was aware of the fact that parking was managed from the point of entering the Land and could leave if they did not agree to the Terms. It is not unreasonable for the Driver to need to potentially walk no more than 10 meters to fully familiarise themselves with the full Terms. This would have all happened before the conclusion of the contract.

Rule 14 – The price is stated on the sign.

Rule 18 – The fact the Driver was able to park means my Company fulfilled its obligations.

xiii. The phrase ‘double recovery’ suggests the same amount is being recovered twice. This is not what is claimed, as explained later in this Statement;

xiv. The Terms clearly stated what would happen if a vehicle overstayed on the Land:

“Failure to comply with these terms and conditions may result in a parking charge of £85”

With no concession made in this regard, if a Driver ever does not understand the Terms on the signs, they can exit the land and find alternative parking. They are under no obligation to park on the Land.

Penalty / Amount Claimed

xv. In respect of the Defendant’s allegation that the claim is a penalty, my Company is not seeking more than the original charge as the core debt. The core charge remains the same for each PCN (i.e. £85.00); however, my Company is now also seeking further costs/damages;

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xvi. My Company is instructed to manage the Land, the Landowner agreement previously referred to in this statement confirms this. My Company’s legitimate interest is to fulfil this obligation. The Landowner’s legitimate interest in managing the Land is because it is a shopping centre, and the flow of traffic is key. If the same vehicles remain on the land for more than 2 hour or use the parking for purposes other than shopping at that shopping centre, then it directly effects the business of the shopping centre. Because there is a clear legitimate interest/commercial justification, the same as that established in ParkingEye -v- Beavis [2015], this case does not fall foul of the penalty rules established in that case;

xvii. The amount charged is in line with the guidelines given by the ATA. Part 20.5 of the BPA COP states “We would not expect this amount to be more than £100. If the charge is more than this, operators must be able to justify the amount in advance”. It is my Company’s position there is no requirement for the amount of the charge to bear any relevance to the actual or potential cost of parking. The PCNs are a fee charged by my Company for providing the service and it stays within the guidelines given by the ATA. As with many other ‘services’; the service provider is entitled to charge as they deem appropriate;

xviii. The PCN was not paid within the prescribed 28 days or indeed at all. In view of this the sum of £70 is also claimed as a debt recovery cost. The Defendant was on notice of the fact that the outstanding amount may increase as a result of any necessary debt recovery action. In support I draw the Court’s attention to paragraph 45 of Chaplair Limited v Kumari [2015] EWCA Civ 798 whereby, when considering contractual indemnity costs, it was stated: -

“There is nothing ... which enable[s] the rules to exclude or override that contractual entitlement and I therefore agree with Arden LJ that the judge had the jurisdiction to assess the costs free from any restraints imposed by CPR 27.14”

xix. The sum added is a contribution to the actual costs incurred by my Company as a result of the Defendant’s non-payment. My Company’s employees have spent time and material attempting to recover the debt. This is not my Company’s usual business and the resources could have been better spent in other areas of the business, generating profit. Had the Defendant of paid as per the Contract, there would have been no need for recovery action so the amount due would not have increased;

xx. With respect of Parking Eye -v- Beavis [2015], whilst it is accepted the original charge is

designed to include the ‘operational costs’; this was with reference to maintaining the land,

taking payment or sending the relevant notices. It was never intended to include the need to

pursue the debt in Court to recover it. If that were the case, it would override the Civil

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Procedure Rules (allowing fixed costs and recovery of court fees) which of course is not the case. The Defendant has misunderstood the phrasing ‘operational costs’;

xxi. The Defendant’s suggestion that this case can be distinguished from Parking Eye -v- Beavis is nonsensical. This case is in fact based on identical circumstances (i.e. a retail park where the legitimate interest is to ensure the free flow of traffic to ensure a stream of customers);

xxii. Within paragraph 18 of the Defence, the Defendant alleges my Company has failed to adhere to the Landowner's definitions, exemptions, grace period, hours of operation and instructions to cancel charges due to complaints. The Defendant is a third party to the Landowner Agreement. Privity of contract applies;

Strike Out / Dismissal of Claim

xxiii. The recent successful appeal in Britannia Parking Group Ltd v Semark-Jullien [2020] EW Misc 12 (CC) (29 July 2020) found that the inclusion of the debt recovery charge in the claim does not fall foul of the decision of Parking Eye Ltd v Beavis [2015] UKSC 67, because that was not the point in discussion in that case. The appeal also concluded that the inclusion of such a charge in a claim of this type does not constitute an abuse of process that would allow for the entire claim to be struck out.

25. In view of the above, it is my Company’s position that the Defendant breached the Contract as set out in this Statement and as such the Defendant is liable.

Conclusion

26. The Defendant has no cause of action against my Company to recover the sums claimed. The Defendant’s entitlement to the relief claimed is denied in its entirety.

27. My Company requests that the Counterclaim be struck out pursuant to CPR 3.4(2) as the Statement of Case does not:-

i. Comply with Practice Direction 16;

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

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

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28. Whilst my Company 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

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

ii. In any event, it is denied there is a viable cause of action available to the Defendant, whether as pleaded or otherwise;

iii. 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

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

v. 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;

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

i. Distress has been suffered;

ii. The distress suffered was a direct result of my Company;

iii. The actions of my Company 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

vii. It is denied that my Company has breached the Data Protection Act 2018 and GDPR;

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viii. 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”;

ix. DCB Legal have confirmed they will respond to the Defendant’s Subject Access Request within the requisite timeframe;

Harassment

x. It is denied that my Company has harassed the Defendant;

xi. It is denied that any of my Company’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;

xii. Is it denied there is evidence of the Defendant explicitly asking my Company or its agents to cease sending letters. This would be a requirement in a legitimate claim for harassment;

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

xiv. It is denied that the incidents complained of amount to a course of conduct capable of amounting to harassment;

Quantum

xv. 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;

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

xvii.The Defendant has failed provide any kind of breakdown of the amount claimed in the sum of £500.00;

xviii. The Defendant has failed to provide any legal basis for the counterclaim; xix. The counterclaim is frivolous and vexatious.

Conclusion

   CPR Costs

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29. My Company claims the claim issue fee, fixed costs pursuant to CPR 45, and the hearing fee in any event.

30. In the alternative to the contractual costs set out above, my Company reserves the right to claim additional costs pursuant to CPR 27.14(2)(g). This claim was issued as a last resort, and given the robust appeals procedure in place, should not have been necessary. It is my Company’s position that this is unreasonable behaviour and it is respectfully requested that the Court considers whether they conclude the same.

31. It is my respectful submission that the Defence is entirely without merit and as such it is requested that the Defence is struck out and Judgment awarded in favour of my Company, payable forthwith.

32. I may not be able to attend the hearing. Should this be the case, I will instruct an advocate to attend on my behalf and ask that the Court accepts this as my written notice given pursuant to CPR 27.9(1). Should I be unable to attend, I request the Court decides the claim in my absence, taking into account this Statement and any other evidence I may file. This paragraph demonstrates my compliance with paragraphs (a) and (b) of CPR 27.9(1).

33. In the event an advocate does attend the hearing, I request their fee be added to the amount sought.

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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.

 Signed

Yvette Yates on behalf of the Claimant

Dated 13th July 2021

DCB Legal Limited Direct House Greenwood Drive Manor Park Runcorn WA7 1UG

Ref: 101185.1740D Solicitors for the Claimant

Redman2186

I’ve posted the rest of their WS above, is it interesting that Yvette suggests she may not be attending?

Redx

Redman2186 said:

I’ve posted the rest of their WS above, is it interesting that Yvette suggests she may not be attending?

Not really !!

If you come off this thread and read others , you would know that it's nearly ALWAYS a badly prepped legal gun for hire that attends for the claimant , never b w legal , or dcb legal , or Gladstone's either

Concentrate on what coupon mad said

Ps , I fell asleep halfway through that waffle , more like philibustering by Rees Mogg than interesting

You should be aware that these statements are always padded out and boring for the most part

Coupon-mad

This is nothing new and they always send a rep. 

Same as every case except you have work to do as your WS includes supporting a legally argued counterclaim.  You only have a few days for what is a fairly massive task to get this WS right.

Redman2186

Coupon-mad said:

 You only have a few days foe what is a fairly massive task to get this WS right.

I'll get first draft worked on tomorrow evening with aim to finalise by Tuesday.

Redman2186

I have intro with name & address etc. just not copied below and intend to add next section tomorrow; Beavis, Signage,  Abuse of Process (Excel vs Wilkinson & Reporter QC), Landowner Contract (It's a Witness Statement from an Unknown Character), Costs seeked.

Question - Do I need to include full transcripts for the following under Signage section which I mentioned in Defence?

  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,

 iii.  Vine v London Borough of Waltham Forest: CA 5 Apr 2000,

Question - Under Costs seeked do include the following (and is it full transcripts)?:     

(i) Ferguson v British Gas Trading Ltd [2009] EWCA Civ 46 

(ii) Harrison v Link Financial Ltd [2011] EWHC B3 (Mercantile)

(iii) Vidal-Hall v Google Inc [2015] EWCA 311   

Witness Statement So Far - Any thoughts please, much appreciated?

1.           In my statement I shall refer to exhibits within the evidence supplied with this statement, referring to page and reference numbers where appropriate. My defence is repeated, and I will say as follows:

 

Background & Sequence of events:

 

2.           The PCN was issued for the alleged offence on 2nd October 2016 at Waterfields Retail Park, Watford. The PCN is exhibited to this Statement at “Exhibit 1” which show my vehicle entering and exiting as follows:

Date and Time of Entry – 1st October 2016 11:55

Date and Time of Exit – 2nd October 2016 15:48

 

3.           I only became aware of the PCN sometime after the fact when letters from various debt collection agencies started to arrive. This was due to my address at DVLA being changed during the same time period. This did not afford me an opportunity to appeal via the normal process as I missed all windows.

 

4.           At this time I was 7.5months pregnant with my 2nd Son who was born in December 2016 – I will further reference this point later in my witness statement.

 

5.           I am extremely familiar with Waterfields Retail Park and frequent there multiple times on any given month, as such I am fully aware that there is a “2 Hours Maximum Stay”. Which neither I nor anyone with access to my vehicle would exceed.

 

6.           On the 1st October 2016, I visited Waterfields Retail Park with my Husband and 1 year old son. My vehicle entered the Car Park at 11:55. We visited Boots chemist. My bank statement covering the 1st October 2016 is exhibited to this Statement at “Exhibit 2” and shows a purchase at Boots chemist.

                              i.         Boots for £8.58 – Small toiletries purchase

 

7.           We then exited the Car Park, this was prior to 13:55, which would have been significantly before the 2 Hour Maximum Stay. The claimant has conveniently failed to locate the image showing my vehicle leaving.

 

8.           After visiting Boots Chemist, we drove to Tesco Car Park in Watford which is on the adjacent complex to Waterfields Retail Park. A plan of the Land (“Plan”) showing a portion of Tesco’s Car Park in the upper right of the image is exhibited to this Statement at “Exhibit 3”

 

9.           My Husband’s Credit Card statement covering the 1st October 2016 is exhibited to this Statement at “Exhibit 4” and shows 2 purchases:

                              i.         Giraffe 51, Watford for £25.19 – Restaurant where we had lunch

                            ii.         Tesco Stores, 3372 for £7.94 – Small grocery purchase

 

10.        On the 2st October 2016 around midday, prior to arriving at Waterfields Retail Park, I visited Delisserie in Mill Hill. My bank statement covering the 2nd October 2016 is exhibited to this Statement at “Exhibit 2” and shows a purchase at Delisserie.

                        i.         Delisserie for £13.06

 

11.        After lunch on the 2nd October 2016, we once again visited Waterfields Retail Park. My vehicle entered the Car Park between 13:48 & 15:48 ensuring we would not have breached the 2 Hour Maximum Stay. The claimant has conveniently failed to locate the image showing my vehicle entering. My bank statement covering the 2nd October 2016 is exhibited to this Statement at “Exhibit 2” and shows a purchase at Next.

                        i.         Next, 532 for £9 – Small Instore purchase, however, the intent of this trip was to decide on a bed for my 1 year old son.

 

12.        After visiting Next, we exited the Car Park at 15:48 and returned home where my husband then purchase the Bed we had seen online. My Husband’s Credit Card statement covering the 1st October 2016 is exhibited to this Statement at “Exhibit 4” and shows:

                        i.         Next Directory.co.uk for £395.38

 

13.        In Paragraph 20 of the Yvette’s Witness Statement, she poses two questions, which I will respond to in turn in Paragraphs 15 & 16:

                              i.         “were they driving?”

                            ii.         “did they overstay?”

 

14.        In response to “were they driving” – As outlined in Paragraph 4, I was heavily pregnant at this time and on the balance of probabilities, I was likely not the driver on the 1st October when my Husband was with me. However, on the 2nd October, I likely was the driver as lunch appears to be quite cheap and thus could reasonably be expected to be for one person. Once again illustrating that this was two separate visits

 

15.        In response to “did they overstay? – The answer is No, I have outlined above in paragraphs 7 through 13 that the trips to Waterfields Retail Park were on consecutive days with visit and corresponding purchases at other locations away from the site in between. Furthermore, I was 7.5 months pregnant at the time, to suggest I would choose to drive my Car to Waterfields Retail Car Park on Saturday 1st October, make purchases there, then leave my Car all night whilst I went elsewhere to make purchases and return the following day to then make additional purchases on the Sunday 2nd October before finally leaving the Car Park is frankly ludicrous.

 

16.        To further illustrate the situation, a Google Maps view showing distance between Waterfields Retail Park and my house is exhibited to this Statement at “Exhibit 5” – By suggesting that the Car remained on site across the two-days Yvette seems to be suggesting I either (I fail to see many other options):

                        i.         I chose to walk the 3.4 miles home and make the return trip of 3.4 miles the next day just to collect the car, when my house is a 9 minute drive away. Or,

                       ii.         Chose to spend the night sleeping in the car at a Retail Car Park, when my house is a 9 minute drive away.

 

Changes to recorded duration

 

17.        I have tried on multiple occasions throughout the process to point out to DCB Legal and the Claimant that the PCN was issued in error due to an ANPR failure where my vehicle was recorded at Waterfields Retail Park on 2 consecutive days.

 

18.        During my defence and in further correspondence with DCB Legal (Email to DCB Legal exhibited to this Statement at “Exhibit 5” and RESPONSE TO CLAIMANT’S “REPLY TO DEFENCE AND DEFENCE TO COUNTERCLAIM” exhibited to this Statement at “Exhibit 6”). I have appealed to them to consider that they had in fact made and error and have clearly pointed out that this is simply a case of a well-known inherent flaw with the ANPR system. Where 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 this 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. 

 

19.        Rather than own up to a mistake, Yvette & the Claimant have taken an opportunity to now suggesting that there is a “typographical error within the Notices which state the Vehicle was parked on the Land for 3 hours and 52 minutes” and that “The Vehicle remained on the Land for 1 day, 3 hours and 53 minutes”. This is untrue & quite frankly ludicrous as I’ve outlined through Paragraphs 7-13, 15-17 above).

 

20.        Yvette has appended an email on her Witness Statement “A copy of the email from my Company confirming the error is exhibited at “EXHIBIT 5” which I have exhibited to this statement at “Exhibit 7”. This email has little or no probative value and which offends against the rules of evidence. I find it strange that the email chain has not been provided, given that I’ve suggested on numerous occasions that this appears to be an ANPR flaw I would reasonably expect that the email to Renata (Group Nexus – The Claimant) would have requested that they search for the orphan images as the defendant is suggesting an ANPR issue. In response I could reasonably expect that Renata confirms that orphan images could or could not be located, however, the email provided appears to be very pointed. Furthermore, there are some completely unknown characters that come to light in this email.

                        i.         The email is addressed to Gemma. I have no idea who Gemma is, will she be available for cross examination

                       ii.         ‘Claimant’ signatory of the ‘email’ is Renata Sakirova. I have no idea who Renata is, will she be available for cross examination

 

21.        It is my position that since correspondence began I have tried on multiple occasions to demonstrate to DCB Legal and the Claimant that this PCN was issued in error due to the ANPR flaws and that this whole circumstance could have been concluded weeks ago without the need to waste my time or the courts time. I am of the conclusion that this is unreasonable behaviour and it is respectfully requested that the Court considers whether they conclude the same.