DCB Legal Highview Parking Claim

Coupon-mad

Why does #25 say £90 was added? Surely it's +£70 per PCN?

Remove this from #12:

"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."

That's covered lower down.

Do not say adding fake fees is 'now banned' because it isn't. 

Why is there nothing querying 'no landowner authority'?  Pretty sure aphex007 had that in his WS.

Pretty sure he also had a paragraph that points out that it is known that the statutory code is 'on hold' but that Judges should still pay regard to it because it sets out the will of Parliament to ban the false admin fee enrichment.

rose2807

Coupon-mad said: 

Why is there nothing querying 'no landowner authority'?  Pretty sure aphex007 had that in his WS.

Pretty sure he also had a paragraph that points out that it is known that the statutory code is 'on hold' but that Judges should still pay regard to it because it sets out the will of Parliament to ban the false admin fee enrichment.

DVLA data is only supplied to pursue parking charges if there is an agreement flowing from the landholder
(ref: KADOE rules). It is not accepted that the Claimant has adhered to a defined enforcement boundary, grace period or exemptions (whatever the landowner's definitions were) nor that this Claimant has authority from the landowner to issue charges in this specific area. The Claimant is put to strict proof of all of this, and that they have standing to make contracts with drivers and litigate in their own name, rather than merely acting as agents.

Is this this paragraph?

I will have a look. I did not include this because i do not understand it at all. and am struggling to see how it is credible to include something i do not fully understand as ive mentioned in previous comments. 

1505grandad

The claimant (Highview) are BPA AoS members NOT IPC  -  therefore should be using/quoting relevant BPA CoP.

Coupon-mad

rose2807 said:

Coupon-mad said: 

Why is there nothing querying 'no landowner authority'?  Pretty sure aphex007 had that in his WS.

Pretty sure he also had a paragraph that points out that it is known that the statutory code is 'on hold' but that Judges should still pay regard to it because it sets out the will of Parliament to ban the false admin fee enrichment.

DVLA data is only supplied to pursue parking charges if there is an agreement flowing from the landholder
(ref: KADOE rules). It is not accepted that the Claimant has adhered to a defined enforcement boundary, grace period or exemptions (whatever the landowner's definitions were) nor that this Claimant has authority from the landowner to issue charges in this specific area. The Claimant is put to strict proof of all of this, and that they have standing to make contracts with drivers and litigate in their own name, rather than merely acting as agents.

Is this this paragraph?

Yes that's fine. It is saying that DVLA  registered keeper data is only supplied on condition that a PPC has the written authority if the landowner.

You are saying: "prove it."  Well worth including.

You do need to adjust the wording about the aded fake 'DRA fees' being 'banned' because they are not (yet).  Surely aphex's final version of his WS mentions the fact that this legislation is stalled?

And you need to change any Code of Practice references to the BPA CoP instead, as Highview are not in the IPC.

rose2807

Coupon-mad said:

Yes that's fine. It is saying that DVLA  registered keeper data is only supplied on condition that a PPC has the written authority if the landowner.

You are saying: "prove it."  Well worth including.

You do need to adjust the wording about the aded fake 'DRA fees' being 'banned' because they are not (yet).  Surely aphex's final version of his WS mentions the fact that this legislation is stalled?

And you need to change any Code of Practice references to the BPA CoP instead, as Highview are not in the IPC.

Yes aphex's final WS said about the legislation being stalled so ive got that in there now. But he still says about the added fake fees being banned, but i can change this wording for mine. 

Ok, I will change the code of practice references. thank you for this. 


Also it says to send to the claimant and court 14 days before the court hearing, is this regular days or working days as it does not say on my letter?

Many thanks

Coupon-mad

14 days is not less than 14 days before!

Does that sentence mean or say 'working' days. No. It doesn't. 14 working days would be weird...

rose2807

ok.. I was just asking.. 

is it ok to put this in about ADR, could someone please explain what the trade bodies is so i can look it up?

 I further maintain that the Claimant failed to offer a genuine independent Alternative Dispute Resolution (ADR). The Appeals Annex in the new Code shows that genuine disputes such as this- would have seen the charge cancelled, had a fair ADR existed. Whether or not a person engaged with it, the Claimant’s consumer blame culture and a reliance on the industry’s own ‘appeal service’ should not sway the court into believing a fair ADR was ever on offer. The rival Trade Bodies’ time-limited and opaque appeals service fails to consider the facts or rules of law and would have rejected almost any dispute.

Coupon-mad

Maybe sit down tonight and watch this, which covers the fact there are two trade bodies which has caused some of the issues:
https://www.channel5.com/show/parking-the-big-con

I'm the lady on the beach in that programme and in it, I explain the conflicting Trade Body parking Associations.  As does the MP that they interview in a car.  He's good.  Bargepole from this forum is also interviewed at his kitchen table, talking about what he does.

It also mentions the new law and Statutory Code coming in to regulate the rogue industry.  I think that programme will enlighten you.

rose2807

1.     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.

2.     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.  

3.     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

4.     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.

5.     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.

 

6.     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.

 

7.     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.

 

8.      In the recent appeal case to the Circuit Judge; Excel Parking Services v Smith (Appeal) 08/06/2017 C0DP9C4E (Reference to 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.”

 

9.      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).

 

10.    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.

ParkingEye v Beavis is Distinguished

 

11.   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. This leaves the remaining 2 minutes and 1 minute retrospectively unaccounted for. The British Parking Association (BPA) Code of Practice in 2017 (Reference to Exhibit 04) allowed an unspecified consideration period ‘because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability’ plus a mandatory grace period at the end, of at least 10 minutes. Therefore, arguably there was no overstay based on the mandatory consideration and grace periods.

 

12.   Additionally, this is supported by BPA statement in 2017 (Reference to Exhibit 05) before this parking event occurred whereby Kelvin Reynolds Director of Corporate and Public Affairs, confirms there is a difference between ‘grace’ periods and ‘observation’ periods in parking and ‘good practice’ allows for both.

 

13.   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)

 

14.   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

15.     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').

 

16.   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.

 

Lack of Landowner Authority Evidence

17.   DVLA registered keeper data is only supplied to pursue parking charges if there is an agreement from the landholder. (Ref: KADOE rules). It is not accepted that the Claimant has adhered to a defined enforcement boundary, grace period or exemptions (whatever the landholders’ definitions were) nor that the Claimant has authority from the landowner to issue such charges in this area. The Claimant is to put strict proof of this and that they have authorisation to make contracts with drivers and litigate in their own name, rather than acting as agents.

 

18.   I further maintain that the Claimant failed to offer a genuine independent Alternative Dispute Resolution (ADR). The Appeals Annex in the new Code shows that genuine disputes such as this- would have seen the charge cancelled, had a fair ADR existed. Whether or not a person engaged with it, the Claimant’s consumer blame culture and a reliance on the industry’s own ‘appeal service’ should not sway the court into believing a fair ADR was ever on offer. The rival Trade Bodies’ time-limited and opaque appeals service fails to consider the facts or rules of law and would have rejected almost any dispute.

Signage

19.   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 06)

 

20.   The BPA’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. (Reference to Exhibit 06)

 

21.   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.

rose2807

Abuse of process - the quantum

 

1.      This Claimant continues to pursue a hugely disproportionate fixed sum (routinely added per PCN). 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.

 

2.      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. (Reference to Exhibit 07)

 

3.      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.

 

4.      Whilst it is widely known that the rogue parking industry have filed Judicial Reviews and have delayed the new Code of Practice (as per paragraph 23), the government are pressing ahead and has conceded to undertake a final Public Consultation and Impact Assessment, as the latter was missing from their rationale. Going by the unfavourable words of the minister, and the fact that two consultations and an industry and consumer represented by Steering Group have already informed the DLUHC’s decision over the last two year. I believe there is no reason to think that the Governments view with significantly change about adding unconfigurable costs that were not incurred and which merely exist as a mechanism to enhanced already inflated parking charges, to fuel the roboclaim race to court and sidestep the £50 legal fees cap set in the Small Claims Track.

 

5.     Adding debt recovery/costs/damages/fees onto a parking charge aims to be 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."  

 

6.     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 £70 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.

 

7.     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."

 

8.     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.

 

9.     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.

 

10.   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.

 

11.    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.

 

12.   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.

  

13.   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.

 

14.   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.

 

Aggressive Debt Collection

15.   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."

 

16.   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.

Conclusion

17.   The claimant is to put strict proof of it’s compliance with the ‘signage’ and ‘entrance signs’ sections of the BPA Code of Practice on the original claim therefore it is incapable of forming a legally binding contract. The Notice to Keeper was not compliant with the Protection of Freedoms Act 2012 (PoFA) and therefore incapable of holding the keeper liable. Furthermore, with a ‘non-PoFA- PCN that have been issued the claimant has no lawful business issuing claims to registered keepers with not evidence whatsoever of the driver’s identity. The claimant is to put strict proof that they have standing to make contracts with drivers and litigate in their own name, rather than merely acting as agents for a principal. The sum claimed for is regarded to be highly unfair with the ‘additional charge’ which constitutes to ‘double recovery’. The court is invited to find the quantum claimed to be false and an abuse of process; adding costs/ damages/ fees onto a parking charge. The tactics employed by the claimant and their representatives were aggressive, threatening and along with an inflated cost model all constituted to harassment and bullying.