I desperately need help writing a defence for a £750 county court claim from DCBL (First Parking)

Fruitcake

Who provided you with a copy of the parking contract, and who made the redactions?

Le_Kirk

You are supposed to read the template defence and, if you had, you would see that the double recovery is already included in there. In your paragraph #3 you refute everything that the POC claims and set the scene for the judge by using a short punchy defence (one for each different PCN) comprising technical/legal arguments.  Read some other defence on the forum, don't just stick to your own thread.  That contract is worthless, it is not signed in accordance with the companies act.

Umkomaas

That contract is worthless, it is not signed in accordance with the companies act.

Nor is it a contract with the landowner, in fact it's called a 'Non-Landowner Parking Enforcement Agreement', and signed by some security firm. It would have about the same status as had it been signed by the janitor or the cook?

Fruitcake

Not the landowner/no landowner authority is already included in the defence template I believe, but you could add to that specific paragraph that the claimant's contract to operate is neither with nor flowing from the landowner, but with a completely different company altogether.

As for para 3 of the template, the judge will have no idea about this car park. You need to explain what type of car park it is/was, (pay and display, permit only, multi-story), how the car came to be there, why signs were missed etcetera. If a permit was needed, was one on display or was it an e-permit, what steps the driver/keeper took to obtain a permit, how this was frustrated?
Anything at all to describe the car park and the problems encountered.

We get dozens of threads a day asking for help, and dozens of them are court claims so you need to read several of those to see what others have put in their defence that you can copy and amend to suit your case.

Redx

As above , but bear in mind that

No landowner authority is already in the defence template
Poor signage is in the defence template
Spurious charges is already in the Defence template
If there was no defence template you would have maybe 20 paragraphs to write , instead of just 2 to 5 paragraphs after adapting 2 & 3 from the template

You have until June 2nd , not may 2nd !!!

It's your Defence , not ours , so put some effort into it , get a grip , show us your adapted paragraphs asap

Coupon-mad

I'm really stuck about what to write in paragraph 3 to defend myself 

Which is why I told you, very clearly:

Coupon-mad said:

Why not just read any other defence/claim thread, and see how easily everyone else manages to add some facts into para 3?

It is not reading other threads that causes a problem for some newbies.  Read around and learn from others.

ridjuan98

Thank you so much for all of your help. I have now finally formed my defence against this claim. I have edited section 3 and I have added some extra information to the end of the section 16 template about the flaws in the contract. Please let me know what you guys think, and thank you all again. Here it is below:

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. 

 

3. The defendant  states that signs about inputting VRM were not conspicuous to users of the car park, the machine used to pay for parking via pay and display is often in terrible condition whereby the keypad and screen of the machine are damaged which fails to provide confidence to the defendant that this service is working. The defendant also  states that due to the poor condition of the pay machine, a daily parking permit charge of £3.50 allows users of the car park to pay for their parking for up to 6 hours or £5 which allows for up to 10 hours stay, the defendant pays for parking regularly via the RingGo mobile application using a designated code allocated to each car park concerning the PCN’s within  this claim. The defendant explicitly remembers paying for parking via the RingGo mobile application with matching location codes for each designated car park concerning each PCN within this claim. The defendant states that the RingGo application had been proven unreliable in the past at the locations concerning the PCN’s within this claim. In one instance, parking had been paid for in 2018 via the RingGo application for one of the car parks stated in this current claim, whereby a PCN was wrongly charged as parking was paid for via the RingGo mobile application which incurred a system failure, resulting in failure of notification of a valid parking permit to the claimant. This PCN was then successfully appealed and the charges were removed. The defendant states that they remember paying for parking for the PCN’s within this claim and are confident in the occurrence of another technical fault in the communication between the third-party parking payment service and claimant.

The defendant also states that there was no receipt of any of the four PCN’s and has no recollection of receiving any of the four PCN’s involved within this claim. The defendant became aware once a letter before claim was sent by the claimant’s solicitors DCBL. The defendant states that contact with DCBL was made via postal of letter. To which DCBL replied to via email, as the defendant contacted DCBL via post, the defendant expected reply by post also. However, contact was made via email by DCBL to the defendant, which was automatically sent to junk mail, which led the defendant to assume charges were dropped by DCBL. The defendant only realised the receipt of such email after 28 days when an N1 claim form was received in the post.

 

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. The contract binding the parking enforcement services agreement is explicitly titled as “Non-landowner”, proving that there is no official contract between the claimant and actual landowner, which nullifies the authority of the claimant to issue parking charges on the land. The contract itself has also not been signed in accordance to the companies act 2006.

 

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.

Le_Kirk

If you are going to leave your paragraph #3 that long, you need to add a number for the orphan paragraph.  It reads more like a witness statement (WS) than a defence.  Defences should be short, punchy and use technical/legal arguments, leaving the narrative (story) with evidence for the WS.  It is sufficient to open the door in the defence - for example the PDT is/was faulty, the pay by phone application does/did not work - and then back it up in the WS.

Redx

Also , 2 should state if the defendant was keeper and Driver , or keeper but not the driver , or doesn't know or cannot recall who the driver was in an unremarkable day nn years ago

Otherwise it's one of the first questions asked in Court , Mr or Mrs or Ms Ridjuan , were you the Driver on the day in question ? Yes or know of don't know/ cannot recall !! To which you must answer truthfully.

Or avoid it by ensuring that P2 has the answer , meaning that you shouldn't leave doors open that can be exploited and make you squirm

Ensure that paragraphs are no longer than say 6 lines , renumbering as required

3 should be concise , most of the information contained within it should be saved for the WS in a few months time. Just state that the PDT machine is often faulty etc and the Ringo alternative can be used , etc

As for any charges , it is the claimant First Parking who is making them , not dcbl or dcb ltd , dcbl are just debt collectors for the claimant , with dcb Legal who are acting as the legal team for the claimant ?  , a major difference even though the names and initials are similar

No names should be used , it's defendant and claimant , nothing else

Rewrite P2 and P3 , renumber if more paragraphs are used , the publish those changed paragraphs below for checking , do not post the complete defence yet , just what you have altered

P2 will take you 2 minutes to alter

P3 is only a concise whittling down exercise so is maybe 10 minutes work at most

Jenni_D

e.g. on the point regarding unreliable PDT and RingGo ... The Defendant avers that the Pay & Display Terminals (PDTs) were unreliable due to lack of maintenance at the noted locations, leading many to use the RingGo app, but also that online payments using the RingGo app were similarly unreliable. The Claimant is put to strict proof that the PDTs were properly functional on the noted dates at the noted locations, and that the RingGo app was working correctly on the noted dates at the noted locations. The Defendant will provide evidence to demonstrate historical issues with the RingGo app.