DCB Legal & UKPC - Remnant PCN

IndigoMondayToyota · 18 January 2022 at 7:18PM

Evening, and thanks Redx & Le_Kirk.

Apologies for the delayed response.

Taking onboard your feedback, this is the reiteration of my Defence (up to ParkingEye v Beavis case). I've noticed a few other duplications, and reordered some points, so let me know you're thoughts on the order:

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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 and driver of the vehicle in question but liability is denied.

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

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

(i) UKPC are 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.

5. 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, unclear 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.

6. 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 for the PCN, at all.

7. The Defendant was not provided sufficient and adequate timing for reading the signage, as well as obtaining and displaying a valid permit which breaches the mandatory British Parking Association's Code of Practice regarding fair grace periods.

8. 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.

9. 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.

10. 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.

11. 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 #9 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').

12. 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.

13. It is believed that this Claimant has not adhered to the BPA Code of Practice 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.

14. 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.......

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Thanks,

IMT

Coupon-mad · 19 January 2022 at 2:31AM

I think I'd tidy this up as shown, and move ot down to be point 7. I think it is less important than the signs showing different sums:

4. UK Parking Control are not the lawful occupier of the land. Absent a relevant 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, the Defendant has 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.

IndigoMondayToyota · 19 January 2022 at 12:09PM

Wow - didn't expect a response at 1:31am! Thanks CM!

I've amended my local copy to accomdate the above.

_____________________________________________________________________________________

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 and driver of the vehicle in question but liability is denied.

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

4. 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, unclear 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.

5. 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 for the PCN, at all.

6. The Defendant was not provided sufficient and adequate timing for reading the signage, as well as obtaining and displaying a valid permit which breaches the mandatory British Parking Association's Code of Practice regarding fair grace periods.

7. UK Parking Control are not the lawful occupier of the land. Absent a relevant 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, the Defendant has 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.