Help! DCBLegal Claim form received from Northampton CCBC

HumberAdam

Just thought I'd write to warn others that there seems to be two DCB Legals around.
After emailing DCB Legal at dpo@dcbltd.com for the second time I have been told that they have nothing to do with this but I should contact DCBlegal.co.uk and not the dcbltd.com
Very long small print privacy policy on their site provides the email address for their DPO as dpocontact@dcblegal.co.uk
I also copied info@dcblegal.co.uk and got a template response from that address saying they will respond within 10 working days.

Coupon-mad

We know they have different 'arms'.  There are three:

- DCB Ltd (debt crawlers with aggressive demands pre-court 'pay up or else!')

- DCBLegal (law firm, aggressive roboclaims for horrific parking firms)

- DCBL bailiff arm, to whack on even more money, after the first two have hung someone out to dry by filing defective claims to old addresses and getting default CCJs.

HumberAdam

Just a quick update;
I still have not received anything from DCB Legal since my SAR apart from a standard response that they will send it "in the required time frame".
I have also written to both my MP Andrew Percy and to Diana Johnson who both seem to know about this chap Del Grosso and his methods. 
Andrew Percy's office has written to DVLA to enquire how Autosec has managed to get hold of our personal data but only to receive a standard response.

I have also prepared my defence, which i will put in the next post.

Le_Kirk

When did you submit the SAR?  Anyone has one calendar month to respond.  If they are outside this timescale report them to the ICO.

HumberAdam

Hello again everyone, thank you for all your help so far. This has been quite stressful but I really couldn't have done it without you. Please let me have your comments. Here is my defence so far:

IN THE COUNTY COURT

Claim No.: XXXXXXXX

Between

(full name of parking firm, not the solicitor!) 

(Claimant) 

- and -  

Defendant’s name from N1 claim (can’t be changed to someone else now)                        

 (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.

On the date the PCN was issued (29/12/2019) all council car parks and street parking was free of charge in Hull for the Christmas and New year period. Proof of this can be found in the attached newspaper article.

Saville Court Car park did not have sufficient signage to warn users that it was any different to any other car park in the city. Also I remember the signs being very similar to any council car park, written in the same style and using the same yellow/white/black colourway. It appears the car park was operated by an Autosec at the time but recently changed to Baysentry which have installed new signs in a much more differentiating green and white colourway. The current signage on the site is much more noticeable than it was before.

 

3.          I vaguely remember seeing only one sign on a wall at an obscure angle as you enter the car park between two buildings, which was well above eye level. I believe it would be more noticeable as you are leaving the car park as opposed to entering it. I believe it was only on one side and not both.

During 2020 we have been bombarded by a debt recovery letters, threatening with legal action and added costs and demands mentioning bailiffs and collection agencies which have been extremely distressing throughout the lockdowns when both myself and my partner who is a cancer patient have been strictly isolating ourselves.

During this period we were both tested positive for Covid and in particular my partner had a very difficult time dealing with this illness whilst I was looking after her. To say that these letters have caused us a great deal of anxiety and stress throughout a totally unprecedented time would be an understatement.

Our attempts to contact Autosec and their CEO Mr Del Grosso have been ignored. I have also sent an SAR to Baysentry which has also been ignored and finally the same request to their solicitors DCB Legal limited have been acknowledged on the 1st October with a response that they will respond “within the required time frame” without any further information about what the time frame was, however up to now I haven’t received anything from them.

We have complained about Autosec and Mr Del Grosso to our MP Andrew Percy and to Hull MP Diana Johnson who both seem to have received many other complaints about this person and his intimidating methods of charges.

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.

Defendant’s signature:

Date:

 

 

Le_Kirk

Defences should be written in the third person, therefore no "I" but "the defendant"  Evidence goes later with the witness statement.  Be wary of turning your defence into a witness statement by telling the story.  Defences should be short, punchy legal/technical arguments that can be supported and fleshed out in the WS.

HumberAdam

Le_Kirk said:

Defences should be written in the third person, therefore no "I" but "the defendant"  Evidence goes later with the witness statement.  Be wary of turning your defence into a witness statement by telling the story.  Defences should be short, punchy legal/technical arguments that can be supported and fleshed out in the WS.

Thank you Le_Kirk, will change all references to I to the defendant. 
As for the rest of the defence (paras 2 and 3) doe you think I should try and shorten it?

Le_Kirk

Try to differentiate between legal/technical points and the narrative, the story of what happened on the day and subsequently.  Provided you introduce your main points you can expand with evidence in your witness statement.  Signage is already included in the template so try to keep similar points together.  Look at some other defences and see how they are structured.

HumberAdam

Le_Kirk said:

Try to differentiate between legal/technical points and the narrative, the story of what happened on the day and subsequently.  Provided you introduce your main points you can expand with evidence in your witness statement.  Signage is already included in the template so try to keep similar points together.  Look at some other defences and see how they are structured.

I have now tried to stick to main points and taken out some of the narrative.
Any comment will be appreciated. Thank you.

2.       It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied.

On the date the PCN was issued (29/12/2019) all council car parks and street parking was free of charge in Hull city centre for Christmas and New year period. Evidence to prove this free period is submitted.

The only sign that was visible to the defendant at Saville Court car park was designed in the same style as any council car park sign, using the same yellow/white/black colourway.

Saville Court car park was operated by Autosec at the time but recently changed to Baysentry which have installed new signs in a much more differentiating green and white colourway. Current signage on site is much more noticeable than before.

 3.         The defendant has been bombarded by debt recovery letters, threatening with legal action and added costs and demands mentioning bailiffs and collection agencies which have been extremely distressing throughout the lockdowns of 2020 when both the defendant and their partner who is a cancer patient have been strictly self isolating.

The Defendant’s attempts to contact Autosec and their CEO Mr Del Grosso have been ignored. The defendant has also sent an SAR to Baysentry which has also been ignored and finally the same request to their solicitors DCB Legal limited have been acknowledged on the 1st October with a response that they will respond “within the required time frame” without any further information about what the time frame was. The defendant has not received anything since.

The defendant has complained about Autosec and Mr Del Grosso to their MP Andrew Percy and to Hull MP Diana Johnson who both seem to have received many other complaints about this person and his intimidating methods of charges.

Le_Kirk

Every paragraph requires a number.  Are you defending as keeper/non-driver or keeper/driver; you should say so either way in point 2.  No evidence goes with the defence, it comes later at witness statement stage.  You should follow up your comment about the other (council) car parks and on-street parking being free by stating that any reasonably minded motorist could believe by inference that this car park was also free.  You could add in your point 3, that you tried to contact those people "with a view to narrowing the issues" and so not waste the court's time, otherwise they are not defence points per se.