DCB Legal Highview Parking Claim

KeithP

rose2807 said:

Hi everyone, I hope you are all well. 

i just want to be sure before i click send.. am i able to send the directions questionnaire form N180 to this email; ccbcaq@hmcts.gsi.gov.uk 

Thanks in advance. 

No, that's the wrong email address.

Why have you abandoned that list you were following when you filed a Defence?

Item 9 on that list is...

Items 8, 10 and 11 are also pertinent.

rose2807

I followed, and copied and pasted what bargepole wrote under 'what to do and when' as posted in the NEWBIES thread which I have been pointed to look at many times, and has been very helpful hence why i thought that was the email. 

Could you please tell me where i can find the list you refer to?

Many Thanks

KeithP

rose2807 said:

Could you please tell me where i can find the list you refer to?

Many Thanks

It's the list you were following when you filed your Defence - in the first post on the template Defence thread.

Apart from that, you know where you emailed your Defence - have a look at that email in your email 'sent' folder.

rose2807

Hello All, long time no speak. I have received a court date and now need to do my WS. 
The basis of my defence and case was that I cannot remember who was driving the car that day, and added in like everybody else about the extra money the company puts on the fines. 
The WS that have been recommended often speak alot about the signage, apart from the extra fines that they do not state, I don't think the signs particularly relate to my case?

Could someone point me in the direction of other WS to read?

Many Thank

Umkomaas

Could someone point me in the direction of other WS to read?

Look at the thread with the WS we think the best there is currently - that by @aphex007.  Read right to the end of that thread because the final version used is v3 towards the end.  Use the areas covered in the WS as the ones you should cover (where appropriate), but obviously tailored to your parking charge. It is not a copy and paste template. 

You might also want to read the following thread that records just how many court cases DCB Legal are currently discontinuing, provided all the necessary steps required by the court process are followed by the motorist. 

https://forums.moneysavingexpert.com/discussion/6377263/dcb-legal-record-of-private-parking-court-claim-discontinuations/p1

rose2807

Thank you for your reply. I have read the WS, also some others that have been recommended. I can see that the paragraphs that would apply to my case are the non PoFA compliant wording RE keeper liability, the signage that does not disclose the excess some demanded on the PCNs (Beavis case) and my own account of what happened. 

What I am struggling with is all of these WS sound very legal. I understand I can modify some of the paragraphs, but most of the content is so above my knowledge. If this is to go to court I feel like i would struggle to explain most of it? 

Coupon-mad

What parts specifically would you struggle to understand? I wrote that part and I am not legally qualified.  I don't see it as legalese?

rose2807

This is my first draft of my WS. Any feedback would be greatly appreciated. Will add the exhibits onto the end once it is all completed. 

Many Thanks

1.     I am Miss xxxxxx of xxxxxxxxxxx, and I am the defendant against whom this claim is made. The facts below are true to the best of my belief and my account has been prepared based upon my own knowledge. 

 

2.     In my statement I shall refer to exhibits within the evidence supplied with this statement, referring to page and reference numbers where appropriate.  My defence is repeated, and I will say as follows:

  

Background

3.     As stated in my defence, the date in question is unremarkable and I am unable to recall who was driving on the two separate occasions more than 4 years ago given that the vehicle was insured with more than one named driver; my mother, stepfather and boyfriend.

 

4.     I am the registered keeper of the vehicle in this case; however, I do not believe I was the driver in these instances. I do not know the identity of the driver, and charge liability cannot be transferred from the driver to the registered keeper on a non-compliant PoFA PCN.  

 

5.     I recall receiving letters in the post from the claimant, they were ignored them as we thought they were scam letters due to sudden excessive amounts being claimed. A further letter was received from Debt Recovery Plus (DRP) with immensely threatening language and court action being touted rather freely, with once again an inflated fine attached, myself and my parents believed this to be an elaborate scam and ignored them. I moved out of my parents’ house on 17th March 2019 and consequently changed my address with DVLA but received no contact until 25/11/2021 from DCB legal to my registered address.  

 

Non-Compliance with PoFA

6.     I believe the Notice to Keeper was not compliant with the Protection of Freedoms Act 2012 (‘PoFA’), and therefore incapable of holding the keeper liable with the ‘keeper liability’ requirements set out in the ('PoFA'), Schedule 4 (reference to Exhibit 01).

 

 

Para 9 (2) states

       The notice must –

(f) warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given.

       This is not stated on the PCN. The PCN states:

"If payment is not received within 28 days, an initial debt recovery charge of £40.00 will be incurred"

        The wording on the PCN is not as per PoFA therefore is non-compliant.

(i) the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full.

(ii) the creditor does not know both the name of the driver and a current address for service for the driver.

the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid.

        They do not know the identity of the driver as per PoFA therefore the PCN is noncompliant.

7.     As the Notice to Keeper is not POFA 2012 compliant, the charge liability cannot transfer from the driver to the registered keeper because the Notice to Keeper does not warn the keeper that, if after a period of 28 days, Highview Parking Ltd. has the right to claim unpaid parking charges as specified under sub-paragraph 9 (2) (f) of the Protection of Freedoms Act 2012. Highview Parking Ltd. (now Nexus DPO Ranger) (or their legal team, DCB Legal limited) need to pursue the driver for the charge, not the registered keeper.

 

8.     Through individual research I have found that the Claimant, Highview Parking Limited is a parking firm which has chosen never to use 'keeper liability' wording (Paragraph 9 of Schedule 4) and whilst that is allowable by the DVLA, the registered keeper's data is only supplied for the limited purpose of a parking firm trying to ascertain who was driving. The driver is the only liable party with a 'non-POFA' PCN like this one and the Claimant has no lawful business issuing claims to registered keepers with no evidence whatsoever of a driver's identity.

 

9.     It is important to note similar cases where ‘non-PoFA’ PCNs were discussed, and the case struck out due to the parking company failing to comply with PoFA 2012 and attempting to hold the registered keeper liable as opposed to the driver.

 

10.    In the recent appeal case to the Circuit Judge; Excel Parking Services v Smith (Appeal) 08/06/2017 C0DP9C4E (Exhibit 02) HHJ Smith sitting at Manchester County Court overturned a mistake made by the Deputy District Judge from the original case, where the identity of the person who was driving the vehicle was not known, being persuaded to rule as such that the registered keeper could not be held liable. The case was dismissed.

 

“There is, of course, a specific regime within the Protection of Freedoms Act 2012, schedule 4, to allow a parking company in precisely these circumstances to take proceedings against a registered keeper of a vehicle in circumstances where the identity of the driver is not known. Excel did not choose to take such proceedings and instead rely today on the general law of agency.”

 

11.    The Parking and Traffic Appeals Service (PATAS) and Parking on Private Land Appeals (POPLA) lead adjudicator and expert parking law barrister, Henry Michael Greenslade, clarified that with regards to keeper liability:

“…there is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort”

“…a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time.”

“…a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver.”

 as quoted from the POPLA Annual Report 2015, Page 13 (reference to Exhibit 03).

 

12.    As the Claimant has chosen not to comply with the 'keeper liability' requirements set out in PoFA, the Claimant has included a clear falsehood in their POC which were signed under a statement of truth by the Claimant's legal representative who should know, (as the Claimant undoubtedly does), that it is untrue to state that the Defendant is 'liable as keeper'. This can never be the case with a Highview Parking Limited claim because this parking firm, same as any Group Nexus company, have never used the POFA 2012 wording, of their own choice. Not only does the POC include this misleading untruth, but the Claimant has also added an unidentified sum in false 'damages' to enhance the claims. So sparse is their statement of case, that the Claimant has failed to even state any facts about the alleged breach or the amount of the parking charge that was on the signage, because after checking myself, it was not over £70. Which then leads to the question of how they arrive at the Amount Demanded: a total of £446.12

 

ParkingEye v Beavis is Distinguished

 

13.   As the Claimant makes clear, the ANPR camera noted on 08/09/2018 that the driver had spent 2 hours 42 minutes in the car park. 2 hours and 30 minutes of this time was free parking. Furthermore, on 03/12/2018 the driver had spent 2 hours 41 minutes in the car park. 2 hours and 30 minutes of this time was free parking. If 10 minutes of the remaining period constitutes a grace period, as laid out in paragraph 13.2 of the International Parking Committee’s Code of Practice (Reference to Exhibit 04) of which the claimant was a member, then it is the remaining 2 minutes and 1 minute retrospectively that were unaccounted for.

 

14.   I suggest that a combined penalty of £346.12 for this 2- and 1-minute period constitutes ‘Consequences which are out of all proportion to any legitimate interests’ of the claimant, distinguished from the charge levied in the Beavis case. (Reference to Exhibit 05)

 

15.    The Supreme Court held that the objective cannot be to punish a motorist, or to present them with concealed pitfalls, traps, hidden terms, or unfair/unexpected obligations, or can a firm claim an inacceptable sum. In the present case, the Claimant has fallen foul of those tests.

 

POFA and Consumer Right Act breaches

16.     Pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 ('the POFA') the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a firm may have complied with other POFA requirements (adequate signage, Notice to Keeper wording/dates, and a properly communicated 'relevant contract/relevant obligation').

 

17.    Claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3), the Government guidance on the Consumer Rights Act 2015 ('CRA').  The CRA introduced new requirements for 'prominence' of both contract terms and 'consumer notices'.  In a parking context, this includes signage and all notices, letters and other communications intended to be read by the consumer.

 

Signage

 

18.  The claimant’s signage is at the entrance to the car park but is excessively wordy and the print size excessively small in which there is no mention of additional charges or costs above the £70 stated therefore, it is denied that it can create a legally binding contract. (Reference to Exhibit 05)

 

19.  The IPC’s CoP states that text size must be such that signs are ‘clearly readable’ by a motorist, I believe that the claimant’s signs do not adhere to this guidance. (Ex 6)

 

20.   Furthermore, the sign states ‘Additional charges will be added’, an ambiguous statement that appears to contradict the precedent set by the Supreme Court in ParkingEye v Beavis, that the main reason for the parking charge was to meet the costs of enforcing the parking rules.

 

Abuse of process - the quantum

 

21.    This Claimant continues to pursue a hugely disproportionate fixed sum (routinely added per PCN) despite knowing that this is now banned. It is denied that the quantum sought is recoverable (authorities: two well-known ParkingEye cases where modern penalty law rationale was applied).  Attention is drawn to paras 98, 100, 193, 198 of ParkingEye Ltd v Beavis [2015] UKSC67.  Also, ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was £75, discounted to £37.50 for prompt payment.  Whilst £75 was reasonable, HHJ Hegarty (sitting at the High Court; later ratified by the CoA) held in paras 419-428 that unspecified 'admin costs' inflating it to £135 'would appear to be penal', i.e. unrecoverable.

 

22.    In addition to this, the ‘additional charge’ constitutes a double recovery, and the court is invited to find the quantum claimed is false and an abuse of process as found by HHJ Jackson in Excel v Wilkinson in which £60 had been added to a parking charge. (Ex 7)

 

23.    This is now underpinned by the Government intervention and regulation.  The Department for Levelling Up, Housing and Communities ('DLUHC') published in February 2022, a statutory Code of Practice, found here: https://www.gov.uk/government/publications/private-parking-code-of-practice.  

 

24.   Adding debt recovery/costs/damages/fees onto a parking charge is now banned. In a section called 'Escalation of costs' the incoming statutory Code of Practice says: "The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued."  

 

25.   This Claimant’s legal team routinely continues to pursue a sum on top of each PCN, despite undeniably knowing that these are banned costs.  The claim is exaggerated by inclusion of a false, wholly disproportionate, and fabricated 'damages' enhancement of £90 upon which the Claimant seems to have also added interest at 8% calculated from the date of parking.  Clearly an abuse of the court process.

 

26.   The Code's Ministerial Foreword is unequivocal about abusive existing cases such as the present claim: "Private firms issue roughly 22,000 parking tickets every day, often adopting a labyrinthine system of misleading and confusing signage, opaque appeals services, aggressive debt collection and unreasonable fees designed to extort money from motorists."

 

27.   The DLUHC consulted for over two years and considered evidence from a wide range of stakeholders.  Almost a fifth of all respondents to the 2021 Technical Consultation called for false fees to be scrapped altogether: this despite the parking industry flooding both public consultations, some even masquerading as consumers.  The DLUHC saw through this and in a published Response (also in February 2022), they identified that some respondents were 'parking firms posing as motorists'.  Genuine consumer replies pointed out that successful debt recovery does not trigger court proceedings and the debt recovery/law firms operate on a 'no win, no fee' basis, and are effectively Trade Body Board member colleagues passing motorists' data around electronically to share inflated sums of money.

 

28.   This Claimant has not incurred any additional costs (not even for reminder letters) because the full parking charge itself more than covers what the Supreme Court in Beavis called a 'letter chain' business model that generates a healthy profit.

 

29.   The driver did not agree to pay a parking charge, let alone unknown costs, which were not quantified in prominent text on alleged signage. It comes too late when purported debt recovery fees are only quantified after the event.

 

30.    These are now banned costs which the Claimant has neither paid nor incurred and were not quantified in prominent lettering on alleged signage. Introducing the purported 'costs' add-on in later debt demands is a moneymaking exercise to extract a high fixed sum from weaker motorists.

 

31.   Whilst the new Code and Act is not retrospective, it was enacted due to the failure of the self-serving BPA & IPC Codes of Practice.  The Minister is unquestionably talking about existing (not future) cases when declaring that 'recovery' fees were 'designed to extort money'. A clear steer for the Courts.

  

32.   This overrides mistakes made in the appeal cases that the parking industry try to rely upon (Britannia v Semark-Jullien, One Parking Solution v Wilshaw, Vehicle Control Services v Ward and Vehicle Control Services v Percy). Far from being persuasive, regrettably these one-sided appeals were findings by Circuit Judges who appeared to be inexperienced in the nuances of private parking law and were led in one direction by Counsel for parking firms, and the litigant-in-person consumers lacked the wherewithal to appeal further.

 

33.   Where this Claimant tries to rely upon those old cases, significant errors were made.  Evidence - including unclear signage and Codes of Practice - was either ignored, even when in evidence at both hearings (Wilshaw, where the Judge was also oblivious to regulatory DVLA KADOE rules requiring landowner authority) or the judgment referred to the wrong rules, with one Judge seeking out the inapplicable BPA Code after the hearing and using it erroneously (Percy).  In Ward, a few seconds' emergency stop out of the control of the driver, was inexplicably aligned with Beavis. The learned Judges were led in one direction by Counsel for parking firms and were not in possession of the same level of facts and evidence as the DLUHC.

 

rose2807

Did not have enough words in the box. Here is the last paragraph and then statement of truth. 
Thanks again 

Aggressive Debt Collection

1.     The Code's Ministerial Foreword is unequivocal about abusive existing cases such as the present claim: "Private firms issue roughly 22,000 parking tickets every day, often adopting a labyrinthine system of misleading and confusing signage, opaque appeals services, aggressive debt collection and unreasonable fees designed to extort money from motorists."

 

2.     This foreword seems particularly pertinent in the case of this Claimant’s debt collectors, whose tactics are particularly aggressive and trying to beseech money out of weak motorists. Not having the benefit of being in the legal profession and working in the NHS during Covid-19 and the current pressures this situation has had a huge toll on my mental health and I have sought to research and represent myself to the best of my ability.

rose2807

Coupon-mad said:

What parts specifically would you struggle to understand? I wrote that part and I am not legally qualified.  I don't see it as legalese?

I have been reading a bit more and understand it slightly more now. 
It just all of the previous cases 
Beavis, excel v wilkinson, excel v smith- am i meant to know these cases inside out? This is very far from my knowledge so would struggle to articulate myself in a legal way in court. But i can try my best.