DCB Legal & UKPC - Remnant PCN

patient_dream

IndigoMondayToyota said:

Thanks CM. Re-reading their email after reading your comment, I can see what you mean.

Let me know if I should send a response along the lines of:

What do you mean by “we are not instructed to act in relation to that claim nimber”? That has nothing to do with this.

Thanks,
IMT

Ha, just be patient until DCBL figure it out 

IndigoMondayToyota

Aye aye PD. Quite the aptronym

Will hold fire until unless I get a nice surprise Christmas present from them!

Thanks,
IMT

IndigoMondayToyota

Good evening to you all,

Belated Christmas and New Years Greetings!

Unfortunately, I have received the CCBC from DCB Legal…

Few things to note:

Issue Date is 11-01-2022

1) My address wasn’t filled in properly, as in it didn’t include the house name and/or door number and could’ve been lost had it not been for our concierge dropping it off personally - I can correct this via MCOL.

2) Claimant has claimed double the total amount of what the PCN originally was!!!
They say its;
1- £160 being the total of the PCN and damages.
2- Interest at a rate if 8% per annum pursuant to s.69 of the County Courts Act 1984 from the date hereof at a daily rate of £0.02 until judgement or sooner payment.
3- Costs and court fees

I believe I understand my next steps are:

1) Respond to this Claim Form online via MCOL tomorrow (15th Jan) using the “Guide to MCOL, how to acknowledge service (AOS)”, as the acknowledgment gives me 33 total days from Issue Date until defence should be submitted:
11/01/2022 - Issue Date;

15/01/2022 - 5 days for service days;
29/01/2022 - 14 days to acknowledge;
12/02/2022 - further 14 for AOS

2) In the meantime, draft up a defence, reading up on recent posts, articles and other forums, then send to yourselves for some much needed scrutiny;

2a) Would I be able to use the points from my previous defence 5.5 years ago considering the particulars of the claim all are the same?

3) If you’d like the Claimants Particulars of Claim from this form, please let me know and I’ll type it up.

Thanks and looking forward to hearing from you all.

Regards,
IMT

KeithP

IndigoMondayToyota said:

I have received the CCBC from DCB Legal…

Issue Date is 11-01-2022

I believe I understand my next steps are:

1) Respond to this Claim Form online via MCOL tomorrow (15th Jan) using the “Guide to MCOL, how to acknowledge service (AOS)”, as the acknowledgment gives me 33 total days from Issue Date until defence should be submitted:
11/01/2022 - Issue Date;

15/01/2022 - 5 days for service days;
29/01/2022 - 14 days to acknowledge;
12/02/2022 - further 14 for AOS

Almost right but no court deadline will ever be a Saturday or Sunday.

With a Claim Issue Date of 11th January, you have until Monday 31st January to file an Acknowledgment of Service but there is nothing to be gained by delaying it. 

To file an AoS, follow the guidance in the Dropbox file linked from the second post in the NEWBIES thread.

Having filed an AoS in a timely manner, you have until 4pm on Monday 14th February 2022 to file your Defence.

That's over four weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.

To create a Defence, and then file a Defence by email, look again at the second post on the NEWBIES thread - immediately following where you found the Acknowledgment of Service instructions.

Don't miss the deadline for filing an Acknowledgment of Service, nor that for filing a Defence.

Do not try and file a Defence via the MoneyClaimOnline website. Once an Acknowledgment of Service has been filed, the MCOL website should be treated as 'read only'.

IndigoMondayToyota

Helpful as always, KeithP.

Indeed, I’ll be using the Dropbox guide as stated to file the AOS by COP 15th Jan.

And I most certainly will not delay in doing the defence - the earlier I get it in draft, reviewed, and sent off - the better off I’ll be mentally!

Have a good evening all.

Thanks,
IMT

Umkomaas

2a) Would I be able to use the points from my previous defence 5.5 years ago considering the particulars of the claim all are the same?

I've no idea what points you used all those years ago, but I suspect things might have moved on since then. Apart from a couple of paragraphs in which you set the scene, there is a template defence (one of the 5 Announcements at the top of the forum thread list) already written and for you to use. 

Redx

I would extract any useful paragraphs from the old defence , sharpen them up to suit today's topics , plus relevant to any changes in that long period of time , then slot them into paragraphs 2 and 3 of the defence template post by coupon mad , renumbering as required , keeping them as concise and on point as is possible

IndigoMondayToyota

Thanks Umkomaas & Redx.

I'll combine the base defence template from CM, along with any useful points from my previous defence in between para 2 & 3, ending with the statement of truth.

Then save & print, sign & date, and finally send it off to CCBCAQ email address.

Sorry If I'm repeating things - just helps me keep track of it all in writing!

Thanks,

IMT

IndigoMondayToyota

Good afternoon all,

Please let me know where my points need trimming down and I'll happily oblige. I also managed to find my old paperwork and some old pictures I took, esp of the different signages with different pricing. Thank goodness for paper trail!

Here is a draft of my Defence, using the base template, some valid points from my other defence and general wording from viewing others from MSE (a lot of tabs being opened..)

Points I added were: 3 - 9 (as this surrounds the circumstances of the PCN), 15 & 16 (let me know if I should move this after point 9)

Thank you very much in advance,

IMT

_____________________________________________________________________________________

UK PARKING CONTROL LIMITED

(Claimant)

- and -

INDIGOMONDAYTOYOTA

(Defendant)

____________________

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 signage displayed clearly only makes an offer of parking to permit holders, and therefore only permit holders can be bound by the contractual terms conveyed.

4.       It is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner. UK Parking Control cannot overrule the elements of the lease or introduce them subsequently. Strict proof is required that there is a chain of contracts leading from the landowner to UKPC.

5.       The Claimant rejects any 'legal fee' per PCN which UKPC have randomly added, which is a penalty in itself. 

6.       Accordingly, the Claimant is put to strict proof the additional fees and costs added to the value shown on signages for the £90/£100 charges was ever in fact incurred per PCN, at all.

7.       UK Parking Control are not the lawful occupier of the land.

(i)       UKPC is not the lawful occupier of the land.

(ii)       absent contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no locus standi to bring this case.

8.       The signage at the location shows two different sums - £90 in one place, £100 in another - so it would be impossible to assume which sign (if any) the driver(s) of the vehicle on each occasion saw, or did not see. Each sign is pale, unlit, unremarkable and placed so high that the £90/£100 charge among the wordy small print is incapable of being read, cannot form a contract and is ambiguous due to the sum differing. The doctrine of contra proferentem applies and the interpretation that most favours a consumer must prevail; that being that the driver(s) did not see or accept the sum the claimant says they did.

9.       The signage on the site in question is unclear and was not prominent on site/around those bays at the time the PCN was issued so no contract has been formed with driver(s) to pay £90/£100, or any additional fee charged if unpaid in 14 days.

10.       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.

11.       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.

12.       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.  

13.       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').

14.       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.

15.       It is believed that this Claimant has not adhered to the British Parking Association (BPA) Code of Practice (CoP) and is put to strict proof of full compliance. This Claimant has been exposed in the national press - and was investigated by the BPA - for falsifying photo evidence, which was admitted by the Claimant. It is submitted that this is not a parking company which complies with the strict rules of their Trade Body, which were held as a vital regulatory feature in ParkingEye v Beavis.

16.       The Claimant is put to strict proof that none of the photos taken of the vehicle at the time the PCN was issued were not similarly altered.

 

The ParkingEye Ltd v Beavis [2015] UKSC 67 case is distinguished

17.       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.  

18.       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.

19.       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.  

20.       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.

21.       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.

22.       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.

23.       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.

24.       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:

25.        (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.

26.       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.

 

Defendant’s signature: IndigoMondayToyota

Date: Today

_____________________________________________________________________________________

Redx

2) says nothing about the driver , omission or deliberate ?

If deliberate , it invites the claimant or the judge to ask the following question

Mr ( or Mrs , or Ms ) indigo Monday Toyota , were you the driver on the day in question ? Yes or no ?

Think carefully about what your honest answer would be , after reading what Bargepole posted about Keeper but not the driver arguments in defences , versus keeper and driver defences

Saying nothing just opens the door to inviting the question in the hearing , and can detract from the thrust of the defence