DCB Legal/UKPC - court claim issued

Coupon-mad

Looks good to me.

You could add a new paragraph:

Accordingly, it is denied that the Defendant was 'unauthorised' due to the Defendant's honest reliance on an invitation to park from a resident, having seen no information whatsoever, to suggest any relevant obligation or relevant contract applied to visitors.

aded65

Thank you Coupon-mad, brilliant suggestion which I've added in! I've updated my draft below - can I ask if anybody has any other suggestions or does this seem to be a good defence to submit now? I really appreciate any support or advice, as I'm feeling nervous about submitting this. 

IN THE COUNTY COURT

Claim No.: XXXXXXX

Between

UK Parking Control Limited

(Claimant) 

- and -

XXXXXXX

 (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 - 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.          On the date in question, the Defendant had arrived the evening before around 10:30pm to visit a friend at their home of residence on XXXXX, XXXXXX. Upon arrival the Defendant entered the car park from the main street, whereby no barriers or signs were displayed at the entrance to the car park to indicate it was permit parking. The Defendant parked the vehicle within a car parking space close to the entrance of the building where similarly, the Defendant did not see any visible signs within the perimeter of the car park nor placed around the building exterior to indicate to visitors that a permit was required to park within the premises.

4.           The Defendant is aware that the closest sign displayed by UK Parking Control Ltd within their evidence is placed at a considerable height off the floor, causing extreme difficulty for the sign to be noticed, nevertheless read by a motorist. The font size and excessive amount of text makes this difficult to read – particularly late at night in a poorly lit area.

5.           The Defendant arrived at 10:30pm the evening prior to the date in question, whereby it was dark and very poorly lit within the car park premises due to a lack of lighting. The sign displayed by UK Parking Control Ltd is attached to a lamppost, whereby the lighting is angled in the opposite direction. The Defendant was therefore unable to see the sign in such conditions due to lack of due diligence by UK Parking Control Ltd to ensure their sign was placed in a visibly lit area; it is argued that UK Parking Control Ltd neglected to take the necessary steps to ensure all motorists entering the car park were not deceived and able to see their signs clearly and visibly.

6.           Accordingly, it is denied that the Defendant was 'unauthorised' due to the Defendant's honest reliance on an invitation to park from a resident, having seen no information whatsoever, to suggest any relevant obligation or relevant contract applied to visitors.

7.          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.

8.       It is denied that the exaggerated sum sought is recoverable.  The Defendant's position is that this money claim 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.

9.       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.  

10.        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 #8 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').

11.  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

12.       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.  

13.       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.

14.   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.  

15.   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.

16.       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.

17.   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.

18.   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.

 

19.  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:

20.   (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.

21.   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.

Coupon-mad

Don't be nervous.  That's ready to sign, date and save as a PDF and attach to an email!

Only send it in working hours to the CCBC and not from a gmail address, and make sure you get an acknowledgement back. Also copy in the solicitors, even though you don't have to, because it prevents any shenanigans.

aded65

Morning all! So it’s been many months but I’ve finally had a court date come through - I have also yesterday received a voicemail from DCB Legal asking me to give them a call back urgently. What do you advise, do I call to see what they say?

Umkomaas

aded65 said:

Morning all! So it’s been many months but I’ve finally had a court date come through - I have also yesterday received a voicemail from DCB Legal asking me to give them a call back urgently. What do you advise, do I call to see what they say?

Never phone, no paper record of a phone call. They won't be trying to help you, in any case!

In the letter of allocation notifying you of your court date, have you be given a date or timescale by when you need to submit your Witness Statement (check both sides of letter, if appropriate)?

aded65

Umkomaas said:

aded65 said:

Morning all! So it’s been many months but I’ve finally had a court date come through - I have also yesterday received a voicemail from DCB Legal asking me to give them a call back urgently. What do you advise, do I call to see what they say?

Never phone, no paper record of a phone call. They won't be trying to help you, in any case!

In the letter of allocation notifying you of your court date, have you be given a date or timescale by when you need to submit your Witness Statement (check both sides of letter, if appropriate)?

Thanks, they’ve emailed me too just looking for a settlement of half of the costs outside of Court! Yes I need to submit my witness statement by 2nd August, so I best get to work.

Coupon-mad

aded65 said:

Umkomaas said:

aded65 said:

Morning all! So it’s been many months but I’ve finally had a court date come through - I have also yesterday received a voicemail from DCB Legal asking me to give them a call back urgently. What do you advise, do I call to see what they say?

Never phone, no paper record of a phone call. They won't be trying to help you, in any case!

In the letter of allocation notifying you of your court date, have you be given a date or timescale by when you need to submit your Witness Statement (check both sides of letter, if appropriate)?

Thanks, they’ve emailed me too just looking for a settlement of half of the costs outside of Court! Yes I need to submit my witness statement by 2nd August, so I best get to work.

Read the NEWBIES thread section about WS and evidence tips but don't use the example there by RobertCox (at all).

Look at the WS bundles from:

@aphex007
@Daiapolon2021

aded65

Hello I have some good Sunday news to update with! The day DCBL called me was coincidently the same day we needed to submit info to the Courts by 4pm (contact number for hearing etc) so I’m not sure if that coincides with when they would’ve needed to pay their fees?

Anyway I of told them where to go, 3:45pm I received an email from DCBL to say their client has instructed to discontinue Court proceedings and close the file! woooo

Just wanted to say thank you all for the advice and support you give on here, without it I wouldn’t have had the confidence to fight them to the end 

Coupon-mad

aded65 said:

Hello I have some good Sunday news to update with! The day DCBL called me was coincidently the same day we needed to submit info to the Courts by 4pm (contact number for hearing etc) so I’m not sure if that coincides with when they would’ve needed to pay their fees?

Anyway I of told them where to go, 3:45pm I received an email from DCBL to say their client has instructed to discontinue Court proceedings and close the file! woooo

Just wanted to say thank you all for the advice and support you give on here, without it I wouldn’t have had the confidence to fight them to the end 

Well done - that's a win!

ANOTHER ONE BITES THE DUST!

Now after winning that battle, join us to win the war:

Hope you are au fait with the need to respond to the final Govt Public Consultation later this year, once the new Ministers at the DLUHC are in place?

Hopefully it will be open in the Autumn as early as October.

We all need to ram that nail in the coffin of the proposed and excessive £130 'London level' that nobody asked for, and the false £70 'DRA fee' add-on, that actually funds the court claim and CCJ culture, as well as the DRA gaslighting of people, pre-action.

If PPCs manage to turn around the decision on banning the gaslighting/claim-funding 'fees' then the DLUHC will be rubber-stamping £200 parking charges and if that happens, they (Government) and the PPCs will wreck high streets and people's lives - whoever is responsible if that happens (and it very nearly did in 2021) must hang their heads in shame.

Just checking you are among those ready to respond to the questions as you have personal experience of how this crap feels.

We intend to use this sticky thread (below) as the vehicle to announce the commencement of the consultation so please read the latest posts there and bookmark it, and set your posting profile to get email alerts for new posts on bookmarked threads:

https://forums.moneysavingexpert.com/discussion/6333989/mse-parking-ticket-appeals-guide-feedback/p1

You won't want to miss out. Be heard!