HELP! UKPC & DCBL Court claim

JAYARR26

Good afternoon,

Firstly I have read the NEWBIES thread and followed all the steps Thus far. 

I received a LBC from DCB Legal on the 08th October 2021. Requested SAR from the PPC and requested extra 30 days from DCB.
I received Claim form on the 7th Dec 2021 and completed the AOS on the 13th Dec 2021. I am now in the process of writing my defence. 

The main body of my defence is around the inflated claims 'Double recovery' the DCBL are trying to do. They are claiming 2 x £160 for 2 PCN's I received in August 2016. I was parked outside my work on both days where I believe I had authority to park. I had parked there every day for months whilst I was working there. This LBC was the first correspondence I had. 

Please can someone give me some feedback regarding my first draft on my defence?

Many thanks!

____________________ 

DEFENCE 

____________________ 

1.       The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all. The points below are within the scope of the Defendant’s own knowledge and honest belief. Whilst parts of this defence may be familiar to the Claimant and/or their legal representatives, it would not be right for a litigant-in-person to be criticised for using all relevant resources available. It is noted in any case, that these Claimants use third party pre-written templates as standard. This statement was prepared by the Defendant specifically for this matter and unlike the Claimant’s case, it deals properly and individually with the facts, the alleged contract, and the quantum. The contents of this defence represent hours of research by the Defendant, in order to grasp some knowledge of alien concepts of law, codes of practice and procedures relating to the specific area of Parking Charge Notices (‘private PCNs’). 

 
 

2.       In relation to parking on private land, it is settled law that for any penalty to escape being struck out under the penalty rule, it must be set at a level which already includes recovery of the costs of operating the scheme. However, this Claimant routinely claims (as in this case) a global sum of £160 per alleged PCN. This figure is a penalty, far exceeding the charge in the ParkingEye Ltd v Beavis [2015] UKSC 67 case and falling foul of the binding authority in ParkingEye Ltd v Somerfield Stores [2012] EWCA Civ 1338. In the 2012 case, the Court of Appeal held that £135 would be an unrecoverable penalty but a claim for the PCN itself would not [ref: para 419]. Thereafter, ParkingEye quietly dropped their ‘PCN plus indemnity costs’ double recovery business model and pursued £85 in the Beavis case, where it was determined by the Supreme Court that a significant justification for that private PCN was that it already included all operational costs [ref: paragraphs 98, 193 and 198]. 

  

3.  It is an abuse of process for a Claimant to issue an inflated claim for a sum which it is not entitled to recover. The above authorities could not be clearer. Parking firms must choose between a ‘Beavis-level’ charge calculation or loss-based damages. A parking firm cannot seek to plead their claim in both but this Claimant routinely does - and has done in this case. 
 

4.  Where it is clear as a matter of law at the outset that even if a Claimant were to succeed in proving all the facts that he offers to prove he will not be entitled to the remedy that he seeks, a trial of the facts would be a waste of time and money, and the Defendant submits that it is proper that this action should be taken out of court as soon as possible. 

5.      When considering the Claimant’s case to the extent that is necessary at allocation or local directions stage, the court is invited to determine as a matter of law that the Claimant is not entitled to the remedy sought. An exaggerated claim such as this will always constitute an abuse of process that can be determined by a glance at the Particulars (before any facts and evidence are even scrutinised) and by applying the court’s duty under s71 of the Consumer Rights Act 2015 (‘the CRA’) at the earliest opportunity. For the avoidance of doubt and to demonstrate that this claim is unfair from the outset, the official CMA Guidance on the CRA clarifies under ‘Disproportionate financial sanctions’ and ‘Indemnities against risk’ ] ‘‘Other kinds of penal provisions which may be unfair are clauses saying that the business can:  claim all its costs and expenses, not just its net costs resulting directly from the breach;  claim both its costs and its loss of profit where this would lead to being compensated twice over for the same loss; and  claim its legal costs on an ‘indemnity’ basis, that is all costs, not just costs reasonably incurred. The words ‘indemnity’ and ‘indemnify’ are also objectionable as legal jargon – see the section on transparency in part 2 of the guidance...’’ (p87 - 5.14.3); ‘‘Terms under which the trader must be ‘indemnified’ for costs which could arise through no fault of the consumer are open to comparable objections, particularly where the business could itself be at fault. The word ‘indemnify’ itself is legal jargon which, if understood at all by a consumer, is liable to be taken as a threat to pass on legal and other costs incurred without regard to reasonableness.’’ (p119 - 5.31.7). 

6.       The Claimant’s claim is entirely tainted by their ‘forum-shopping’ business model which relies on routine abuse of process and disregard for the protections in the CRA. The Defendant avers that parking firm claims which add a duplicitous ‘costs’ sum to the private PCN are easily identified to be unlawful from the outset, without any need for a hearing to determine where the truth lies in terms of evidence. The Court is, therefore, invited to strike out the claim ab initio as an abuse of process, using its case management powers pursuant to CPR 3.4 and also give serious consideration to Practice Direction 3C, as to whether the level of similar abusive (and thus, wholly without merit) claims cluttering up the courts may provide grounds for issuing an Extended Civil Restraint Order to protect consumers in future from this Claimant and to save the courts time and money. 
 

7.  The Claimant’s notices/demands vaguely allude to unidentified sums being claimed ‘on an indemnity basis’. Such imprecise terms would be considered incapable of binding any person reading them under common contract law, and would also be considered void pursuant to Schedule 2 of the CRA. Claims pleaded on this basis by multiple parking firms have routinely been struck out ab initio in various County Court areas. Recent examples include multiple Orders from District Judge Fay Wright sitting at Skipton County Court, with similar Orders seen in the public domain from Deputy District Judge Josephs sitting at Warwick County Court, District Judge Taylor at the Isle of Wight and Deputy District Judge Colquhoun sitting at Luton County court in March 2020. All were summarily struck out, solely due to parking firms falsely adding £60 to inflate the claim. 

 

 

 

8.  This matter was recently determined by District Judge Grand, sitting at Southampton County Court on 11 November 2019, where the Claimants sought to have multiple strike out Orders set aside. The application was dismissed, and a copy of the Approved Judgment is appended to this defence. No appeal was made in that case, where the learned Judge found that £160 parking claims represented an abuse of process that ‘tainted’ each case. It was not in the public interest for courts to allow exaggerated claims to proceed and merely disallow the added £60 at trial on a case-by-case basis. To continue to do so would restrict the proper protections only to those relatively few consumers robust enough to reach hearing stage. 

 
 

9.       That hearing was attended by BW Legal’s barrister, acting for an AOS member of the British Parking Association (‘the BPA’) but in February 2020, Skipton County Court refused a similar application from a barrister for Excel Parking Services Ltd (members of the rival Trade Body, the International Parking Community -‘the IPC’). Whilst these cases are not precedents, it is only right that Defendants should use them and expect no less protection and proactive sanctions against parking firms whose claims happen to fall to other courts. 

10.     In this situation, it ought not to be left to hardy individuals to raise this issue time and again at trial, yet other disputing consumers are being so intimidated by the threats in a barrage of debt demands and the possibility of facing court, that they pay a legally unrecoverable sum to make it go away. Such conduct has no proper function in the recovery of alleged consumer debt. To use the words of HHJ Chambers QC [ref: Harrison v Link Financial Ltd [2011] EWHC B3 (Mercantile) - ]: ‘‘Whatever the strength of the suggestion that the courts should only be a last resort, there can be no excuse for conduct of which the sole purpose must have been to make [...] life so difficult that they would come to heel. In a society that is otherwise so sensitive of a consumer's position, this is surely conduct that should not be countenanced’’ 

11.   The quantum claimed is unconscionable and the falsely added sum not there at all (or was buried in small print) on the sparsely-placed car park signs. As such, the Defendant avers that the charge offends against Schedule 2 of the CRA, where s71(2) creates a duty on the Court to consider the fairness of a consumer contract. The court’s attention is drawn (but not limited to) parts 6, 10, 14 and 18 of the list of terms that are likely to be unfair and the CMA Guidance linked earlier, and the Defendant invites the court to find this Claimant in breach  

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 costs. The sum also exceeds the maximum amount which can be recovered from a registered keeper as prescribed in Schedule 4, Section 4(5) of the Protection of Freedoms Act 2012 (‘the POFA’). It is worth noting that in the Beavis case, even though the driver was known, the Supreme Court considered and referred more than once to the POFA because it was only right that the intentions of Parliament regarding private PCNs were considered. 

13.       Should this claim continue, the Claimant will no doubt try to mislead the court by pointing to their Trade Association ‘ATA’ Code of Practice (‘CoP’) that now includes a clause 'allowing' added costs/damages. The CoP is a self-serving document, written in the parking firms’ interests. Further, the ‘admin fee’ model was reportedly the proud invention of a member of the BPA Board, Gary Osner, owner of ZZPS and whose previous firm, Roxburghe (UK) Limited, folded after being declared ‘unfit’ by the Office of Fair Trading who refused to renew their consumer credit licence due to ‘unfair and misleading’ business practices. 

14.   The BPA’s Mr Osner states in an article in the public domain since 2018:  ''I created the model of ‘admin fees’ for debt recovery because ticket value was so low that nobody would make any money. Parking is business and business is about money, after all.'' The Defendant avers that it is clear that the competing ‘race to the bottom’ ATAs are sanctioning double recovery and both the BPA and the IPC/Gladstones (who had shared Directors) have engineered a veil of legitimacy to protect this industry for years. The ATAs operate more like a cartel, not ‘regulators’ and the conflicting CoPs have failed consumers so badly that the Secretary of State is overseeing a new regulatory Code, following the enactment of the Parking (Code of Practice) Act 2019. In contrast to the BPA Board member’s mindset, the will of Parliament as set out in the new 2019 Act is very much consumer-focussed, aiming for: ''good practice...in the operation or management of private parking facilities as appears to the Secretary of State to be desirable having regard to the interests of persons using such facilities.'' 

 

Pre-action protocol breach and nonsensical Particulars of Claim 

15.   In the alternative, the defence is prejudiced and the court is invited to note that, contrary to the Pre-Action Protocol for Debt Claims, the Letter Before Claim omitted evidence of any breach and failed to append the wording of the sign or consumer notice. Further, the stylised Particulars of Claim are embarrassing and incoherent, lacking specificity re the status of the contracting parties and failing to detail any contract, conduct or liability that could give rise to a cause of action. There is insufficient detail to ascertain the nature, basis and facts of the claim and even the exaggerated quantum has fluctuated, changing with each debt demand and/or letter of claim over the preceding months. 

 
The facts - lack of prominently displayed contract and no agreement on the charge 

16.  Should this poorly pleaded claim not be summarily struck out for any/all of the reasons stated above, it is the Defendant’s position that no contract was entered into with the Claimant, whether express, implied, or by conduct. Therefore, as a matter of contract as well as consumer law, the Defendant cannot be held liable to the Claimant for any charge or damages arising from any alleged breach of the purported terms. Whilst there is a lack of evidence from the Claimant, the Defendant sets out this defence as clearly as possible in the circumstances, insofar as the facts below are known. 

  

17.   The defendant was working for ‘Head masters’ hair salon during the period she received the PCN’s and was parked outside the salon. The defendant believed she was authorised to park alongside the fenced area outside her place of work.  The only parking sign in the vicinity is located on a unlit post near to this area. It is not clear that this sign relates to where the defendant parked her vehicle. The defendant argues that it is reasonable to assume that the sign was intended to prevent vehicles from parking inside the fenced area, where parking might obstruct the building entrance or the lined parking spaces. Therefore it is reasonable that any driver would not be expected to read this sign before parking a vehicle and therefore no contract can have been formed between the defendant and the claimant. 

 

18.   The defendant has not received any parking charge documentation and her attention regarding the alleged breach of contract was upon receipt of court papers. As a result the defendant has not been afforded the right to appeal the ticket.  

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: XXXXXX 

Date:20/12/2021 
 

 

 

D_P_Dance

. They are claiming 2 x £160 for 2 PCN's

They have added what appears to be an extra unlawful amount for debt collection. This amounts to double recovery and Judges all over the country are dismissing these spurious additions. Indeed some judges have dismissed entire claims because of this. Read this and complain to Trading Standards and your MP,

Excel v Wilkinson

At the Bradford County Court, District Judge Claire Jackson (now HHJ Jackson, a Specialist Civil Circuit Judge) decided to hear a 'test case' a few months ago, where £60 had been added to a parking charge despite Judges up and down the country repeatedly disallowing that sum and warning parking firms not to waste court time with such spurious claims.   That case was Excel v Wilkinson: G4QZ465V, heard in July 2020 and leave to appeal was refused and that route was not pursued.  The Judge concluded that such claims are proceedings with 'an improper collateral purpose'.   This Judge - and others who have since copied her words and struck dozens of cases out in late 2020 and into 2021 - went into significant detail and concluded that parking operators (such as this Claimant) are seeking to circumvent CPR 27.14 as well as breaching the Consumer Rights Act 2015.   DJ Hickinbottom has recently struck more cases out in that court area, stating: ''I find that striking out this claim is the only appropriate manner in which the disapproval of the court can be shown''.

https://www.dropbox.com/s/16qovzulab1szem/G4QZ465V%20Excel%20v%20Wilkinson.pdf?dl=0

However, VCS appealed this so it may not apply in all cases, read this

https://www.dropbox.com/s/ntksx9g7177ahyg/VCS v Percy v1 Amendments (2).pdf?dl=0Also read this

https://forums.moneysavingexpert.com/discussion/6279348/witness-statements-2-transcripts-re-parking-firms-false-costs-recorder-cohen-qc-judgment-2021/p1

Also consider complaining to The SRA about the solicitor, if one is involved They are fully aware of the unlawful nature of most of thse additions yet persist in adding them..

https://www.sra.org.uk/consumers/problems/

KeithP

JAYARR26 said:

I received Claim form on the 7th Dec 2021 and completed the AOS on the 13th Dec 2021. 

Hello and welcome.

You have told us when you received your Claim Form, but can you now please tell us the Issue Date on it?

Redx

The defence above looks nothing like the defence template by coupon mad , where we only want to see 2 to 6 adapted paragraphs only , starting at 2 , like in this new example

https://forums.moneysavingexpert.com/discussion/6319286/ukpc-pcn-county-court-claim-24-nov-2021-defence-statement-help-needed#latest

And in this one

https://forums.moneysavingexpert.com/discussion/6321057/count-court-claim-ukpc-defence-counterclaim#latest

Please don't expect us to read long defences and comment , especially any that do not fit in with the defence template , few people here will read a 200 word Defence

Post your proposed paragraphs 2 and 3 below for critique , when drafted , plus answer the issue date question too

bargepole

Your Defence appears to be almost entirely centred around the added £60.

It's not until you get to paras. 16 and 17 that it contains any facts about the actual parking incident, and why you believe that the signage was unclear.

Those should be the opening paras. of the Defence,

Most Judges will not want to read a load of quasi-legal waffle before getting to the facts. Establish the facts first, then the legal arguments follow. That's how it works.

JAYARR26

KeithP said:

JAYARR26 said:

I received Claim form on the 7th Dec 2021 and completed the AOS on the 13th Dec 2021. 

Hello and welcome.

You have told us when you received your Claim Form, but can you now please tell us the Issue Date on it?

Hi Sorry, The date of issue was 07/12/2021/ I received the letter on 09/12/2021.

JAYARR26

Redx said:

The defence above looks nothing like the defence template by coupon mad , where we only want to see 2 to 6 adapted paragraphs only , starting at 2 , like in this new example

https://forums.moneysavingexpert.com/discussion/6319286/ukpc-pcn-county-court-claim-24-nov-2021-defence-statement-help-needed#latest

And in this one

https://forums.moneysavingexpert.com/discussion/6321057/count-court-claim-ukpc-defence-counterclaim#latest

Please don't expect us to read long defences and comment , especially any that do not fit in with the defence template , few people here will read a 200 word Defence

Post your proposed paragraphs 2 and 3 below for critique , when drafted , plus answer the issue date question too

Hi, Thanks for this. I have scrapped my old defence and used the suggested template created by Coupon mad. I have adapted my paras as per your suggestion:

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. 

  

3.  The defendant was employed as a hairdresser for ‘Head masters’ hair salon during the period she received the PCN’s and was parked outside the salon. The defendant believed she was authorised to park alongside the fenced area outside her place of work.  The only parking sign in the vicinity is located on a unlit post near to this area. It is not clear that this sign relates to where the defendant parked her vehicle. The defendant argues that it is reasonable to assume that the sign was intended to prevent vehicles from parking inside the fenced area, where parking might obstruct the building entrance or the lined parking spaces. Therefore it is reasonable that any driver would not be expected to read this sign before parking a vehicle and therefore no contract can have been formed between the defendant and the claimant.  The defendant has not received any parking charge documentation and her attention regarding the alleged breach of contract was upon receipt of court papers. As a result the defendant has not been afforded the right to appeal the ticket. 

KeithP

JAYARR26 said:

KeithP said:

JAYARR26 said:

I received Claim form on the 7th Dec 2021 and completed the AOS on the 13th Dec 2021. 

Hello and welcome.

You have told us when you received your Claim Form, but can you now please tell us the Issue Date on it?

Hi Sorry, The date of issue was 07/12/2021/ I received the letter on 09/12/2021.

With a Claim Issue Date of 7th December, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 10th January 2022 to file your Defence.

That's three 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 at the second post in the NEWBIES thread.

Don't miss the deadline 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'.

Redx

So , UKPC LTD will have obtained keeper details from the DVLA and will have posted out the PCN s to the keeper which is all they were required to do , so why has the defendant not received them ? Keeper error in not updating the V5C is the usual reason , meaning keeper error , not a UKPC error ! The DVLA can fine people up to £1000 for failing to do so

That was the first question in my mind having read paragraph 3 , so I would assume it would to the judge , begging the question !

ie , the keeper was afforded the chance to appeal , but probably couldn't due to not updating the V5C , so UKPC will have given out those chances , under the correct legal circumstances

So why did the keeper not receive the NTK PCN ??

JAYARR26

Redx said:

So , UKPC LTD will have obtained keeper details from the DVLA and will have posted out the PCN s to the keeper which is all they were required to do , so why has the defendant not received them ? Keeper error in not updating the V5C is the usual reason , meaning keeper error , not a UKPC error ! The DVLA can fine people up to £1000 for failing to do so

That was the first question in my mind having read paragraph 3 , so I would assume it would to the judge , begging the question !

ie , the keeper was afforded the chance to appeal , but probably couldn't due to not updating the V5C , so UKPC will have given out those chances , under the correct legal circumstances

So why did the keeper not receive the NTK PCN ??

Yes it was V5C error. My partner moved house about 2 weeks before hand and didn't change her V5C. I think I will remove the part about not being able to appeal as it will look bad on her. I have decided to add more detail about signage etc also.

3.  The defendant was employed as a hairdresser for ‘Head masters’ hair salon during the period she received the PCN’s and was parked outside the salon. The defendant believed she was authorised to park alongside the fenced area outside her place of work.  The only parking sign in the vicinity is located on a unlit post near to this area. The only signage that is visible is  It is not clear that this sign relates to where the defendant parked her vehicle. The defendant argues that it is reasonable to assume that any sign was intended to prevent vehicles from parking inside the fenced area, where parking might obstruct the building entrance or the lined parking spaces. Therefore it is reasonable that any driver would not be expected to read this sign before parking a vehicle and therefore no contract can have been formed between the defendant and the claimant. The defendant was not parked in any marked bays or within the fenced area of the adjacent building.

4. The parking sign on a nearby post states “No Unauthorised Parking”. This is forbidding in nature and therefore cannot form a contract. In a recent case brought by this same Claimant, Parking Control Uk Ltd vs Sean Masterson, Case B6QZ4H3R, Deputy District Judge Ellington found that this Claimant’s signs of extremely similar wording “clearly only made an offer of parking to permit holders, and therefore only permit holders could be bound by the contractual terms conveyed". He went on to conclude that “any remedy for parking without a permit could only lie with the freeholder, under a tort of trespass” and as this was not being claimed here, the claim was dismissed. The case today is not of trespass and the Claimant has no right to sue for this as they are not the landowner.