DCBL/ I Park court papers

Alanthebear

Hi
Received court papers for a parking invoice I hoped had gone away. Issue date was the 19th of April and acknowledgement of service completed on 7th May (not currently at my usual address so relying on others to open my mail and relay anything important, hence the delay in responding). Am I right in thinking I have until the 22nd to send in my defence?
Long story short NTK received with ANPR footage of driver parking for 12 minutes without buying a ticket. This looks to be POFA compliant but I'd argue signage isn't easy to read and no proper lighting etc. 
I Park and DCBL given address in Scotland for service, no response from I Park but DCBL refused to acknowledge this (hence court papers sent to English address). SAR sent to I Park, and given copies of NTK, reminder etc.
Appealing on the basis that both my parents and brother have access to my car and no-one knows who was driving that day. Also additional excessive costs added. Original £100 charge increased to £174.67 claimed, £25 court fee and £50 legal costs, altogether £249.67.
Can someone check what I've added below and tell me if I'm way off or need to add/ change anything. 

Thanks for anything you can help me with.

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. Multiple members of the Defendant’s family had access to the vehicle in question. The Defendant does not know who the driver was from the evidence supplied. 

3.  The Defendant first heard about this charge by post, months later. The Defendant was living and working in Scotland at the time and supplied this address to the Claimant. Despite this, correspondence was still sent to the Defendant’s address in England. This caused an unnecessary delay in the Defendant receiving correspondence. Both the Defendant and household members who had to assist with passing on correspondence felt harassed by the bombardment of  multiple ‘debt recovery’ letters.

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 moneyclaim 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.  Much like the situation in this claim, the business model involved sending a series of automated demands to the keeper.  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' famous parking event.

6.       Even if the Claimant had shown the global sum claimed in the largest font on clear and prominent signs - which is denied - they are attempting double recovery of the cost of their standard automated letter-chain.  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.

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.

KeithP

Alanthebear said:

Received court papers for a parking invoice I hoped had gone away. Issue date was the 19th of April and acknowledgement of service completed on 7th May. Am I right in thinking I have until the 22nd to send in my defence?

You are almost right with your Defence filing deadline, but that deadline is never going to be on a Saturday.

With a Claim Issue Date of 19th April, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 24th May 2021 to file your Defence.

Not long now. Plenty of time to produce a Defence.

To create a Defence, and then file a Defence by email, look at the second post in the NEWBIES thread.

Don't miss the deadline for filing a Defence.

Coupon-mad

Defence is OK but too sparse on facts about the car park, or (if true) a statement in #3 saying you have no idea what this is about and put the C to strict proof of all allegations and also ask that the court orders further and better particulars.

Umkomaas

I Park and DCBL given address in Scotland for service, no response from I Park but DCBL refused to acknowledge this (hence court papers sent to English address)

Where exactly is your home address?

What address is showing on your V5C (logbook)?

Where did the parking event take place - England or Scotland?

Alanthebear

Where exactly is your home address?

England technically but been in Scotland with same address since March 2020 for work and barely been back since due to Covid
What address is showing on your V5C (logbook)?
England 
Where did the parking event take place - England or Scotland?
England 

Replied above, only mentioned the address as I park seem to have acknowledged the one in Scotland but dcbl refuse to

Alanthebear

Coupon-mad said:

Defence is OK but too sparse on facts about the car park, or (if true) a statement in #3 saying you have no idea what this is about and put the C to strict proof of all allegations and also ask that the court orders further and better particulars.

Should I elaborate on signage size etc? I have photos but didn't take any with anything for scale so it's hard to prove exactly how small the lettering is. Don't think I can argue I don't know what is going on as been in contact with I park about SAR and address issues

Coupon-mad

The template already covers signage.  If you have a SAR reply there then you can certainly add facts to the point #3 because you can see their hand.  You must answer to their evidence and allegations.

Alanthebear

Coupon-mad said:

The template already covers signage.  If you have a SAR reply there then you can certainly add facts to the point #3 because you can see their hand.  You must answer to their evidence and allegations.

They did send the SAR to my Scottish address. There was nothing new in the SAR, I even complained to the ICO for them demanding signed forms and photo ID and not supplying some other info about me but the ICO said they had complied as much as they could

D_P_Dance

Have you complained to your MP?

Coupon-mad

You are missing the point, I didn't say there was anything new in the SAR.  I am saying you know some facts about the car park and what the allegation is, so talk about it and why you didn't appeal it or whatever your facts are (briefly).

beamerguy

Alanthebear said:

Coupon-mad said:

The template already covers signage.  If you have a SAR reply there then you can certainly add facts to the point #3 because you can see their hand.  You must answer to their evidence and allegations.

They did send the SAR to my Scottish address. There was nothing new in the SAR, I even complained to the ICO for them demanding signed forms and photo ID and not supplying some other info about me but the ICO said they had complied as much as they could

So the ICO who are supposed to protect our personal data say that Photo ID is OK to send to an unknown entity ???  There is no purpose for photo ID, it will not confirm who you are as they never had a picture of you in the first place

Your MP must take this up with the ICO because once scammers in general get to hear of this such information .... drivers licence 's and passports will be cloned all over the place.
DON'T THE ICO FULLY UNDERSTAND THIS