County Court Claim Form received (UKPC / DCB Legal)

Gettingrippedoff

Hello to all.

I have received a County Court Business Centre Claim Form for a unpaid parking ticket from January 2018.

Long story short. I parked in a disabled bay at a retail park in Milton Keynes as I had friend with me who had a sciatica problem at the time. It was after 5pm and close to closing time and most car were leaving rather than arriving. Popped into one of the stores for no more that 10 mins and when I returned there a ticket displayed on my windscreen. The ticket did not state clearly the amount of the fine. (I understand i should not have parked in a disabled bay without a badge and only have myself to blame for this)

At the time I was in very bad financial situation with huge outstanding debts therefore a parking ticket was the last of my concerns.

Around a month later I received a letter from UKPC advising a total of £100 was now due. After a few more letters from UKPC which I ignored I started receiving letters from Debt Recovery Plus and Zenith Collections for the next 4-5 month chasing the payment which had now gone up to £160. 

After no letters for 2 and a half years from January 2021 I started receiving letters from DCB Legal chasing a payment of £160 which I continued to ignore.

I received a Letter of Claim from DCB Legal dated 8th December 2021 which i only found today as it had been misplaced therefore have not had a chance to respond as been over 28 days. Again they requested payment of £160.

After ignoring all these letters I have now received a County Court Business Centre Claim Form dated 19th January. From my understanding reading the newbies thread this is not to be ignored. I wish I had seeked advise here at MSE instead of taking advise from other sources online advising me to ignore as I now find myself in this situation of a Court Claim.

The Claim Form states UKPC / DCB Legal are seeking a payment of £303.48 (a rather large jump from £100 and £160)
Amount Claimed: £218.48
Court Fee: £35
Legal representatives costs: £50

The claim form also states "The driver agreed to pay within 28 days" which i have never agreed to.

So here I am seeking some advise on what I do next. I've read the newbies thread but am not really getting a gasp of what I need to do next other than I have a very short period of time to respond. 

Can someone kindly assist me as if they were assisting a dummy user as i find it difficult to understand these processes if i'm honest. 

Do I have a chance of defending this? My financial situation has improved from when this ticket was first issued and last thing I need is a CCJ on my credit report which I have worked so hard to improve these last few years.

Thanks

D_P_Dance

Please read  this, and complain to your MP.

https://www.equalityhumanrights.com/en/equality-act/protected-characteristics

As you parked while transporting someone with walking difficulties they migh struggle if they took this to court

Le_Kirk

When you read the NEWBIE sticky (I assume you did) did you see the second post which tells you what to do when you receive the N1 court claim?  You need to go there now and read it.  What is the issue date of the claim form, the one written one the form not the date you received it?  If you give that information, one of the regulars @KeithP will be along to give you your deadlines and some useful info on how to compile a defence.

KeithP

Gettingrippedoff said:

I have now received a County Court Business Centre Claim Form dated 19th January. From my understanding reading the newbies thread this is not to be ignored.

Hello and welcome.

With a Claim Issue Date of 19th January, you have until Monday 7th February to file an Acknowledgment of Service but there is nothing to be gained by delaying it. 

To file an AoS, follow the guidance in the Dropbox file linked from the second post in the NEWBIES thread.

Having filed an AoS in a timely manner, you have until 4pm on Monday 21st February 2022 to file your Defence.

That's nearly four 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 again at the second post on the NEWBIES thread - immediately following where you found the Acknowledgment of Service instructions.

Don't miss the deadline for filing an Acknowledgment of Service, nor that 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'.

Gettingrippedoff said:

The claim form also states "The driver agreed to pay within 28 days" which i have never agreed to.

The allegation is that by parking the driver agreed to the terms of the contract.

Those contract terms are the terms on the signs.

Almost certainly there is a term on the signs stating something like "if the driver doesn't park in accordance with the rules then he agrees to pay £nn within 28 days...".

Le_Kirk

KeithP said:

Hello and welcome.

There you are, I said he would!

Gettingrippedoff

Thank you all for your replies.

@KeithP I have filed an Acknowledgement of Service as you advised.

Am I correct in saying the next step for me now is to file my defence and to then send it to CCBCAQ@Justice.gov.uk by 21st February?

Also from experience do think I stand a chance of defending this claim when I've clearly parked in a disabled spot when I should have not despite my reasons for doing so?

Coupon-mad

Sciatica is a protected characteristic under the Equality Act 2010 and if it was causing mobility issues for the passenger then you could argue the space was being correctly used.

If that's true.  Only state the truth.

What pics do they have and what does the sign at the disabled bays actually say?  Some are very sparse near disabled bays.

KeithP

Gettingrippedoff said:

Am I correct in saying the next step for me now is to file my defence and to then send it to CCBCAQ@Justice.gov.uk by 21st February?

Yes, your next step is to file a Defence with the CCBC by 4pm on that date.

Gettingrippedoff

Hi All, thanks for all the support to date.

I have been to the car park where the ticket was issued and have found the car park has been redeveloped slightly and the signage is somewhat concealed inside crane like pillars. I have taken photos of the car park and its signs which I have mentioned in my defence. Below is my draft defence. is this OK to be sent to CCBC or does more need to be added?

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. 

3.  The car park in question has been re-developed since the ticket was issued over 4 years ago. Even now some of the signage is concealed between pillars and not clearly visible during daylight hours and would be difficult to see during the dark. If the signage is this poor now, we can only assume what it was like 4 years ago. This is a free retail car park where no payment is required. No financial loss was made to the Retail Park Owner or its retailers because of my parking. Parking in a disabled bay was solely due to a passenger having a temporary disability at the time which is what a disabled bay would be used for.

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.

Le_Kirk

Gettingrippedoff said:

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. 

3.  The car park in question has been re-developed since the ticket was issued over 4 years ago. Even now some of the signage is concealed between pillars and not clearly visible during daylight hours and would be difficult to see during the dark. If the signage is this poor now, we can only assume what it was like 4 years ago. This is a free retail car park where no payment is required. No financial loss was made to the Retail Park Owner or its retailers because of my parking. Parking in a disabled bay was solely due to a passenger having a temporary disability at the time which is what a disabled bay would be used for.

I'll assume you only edited paragraphs 2 & 3 (we don't need to see the rest of the defence as it is a template) just remember to add it in before sending to CCBC.  You might also want to look at the recent posts about the new code from Government and add in the new paragraph 6 which deals with the so-called "admin" or "debt costs"
Are you defending as keeper but not driver or keeper and driver?  Either way this should be stated in paragraph 2.
Is your main defence that signage is poor or is it that the driver had a legitimate reason for using the disabled bay?  Whichever it is needs to put first.  Signage is already in the standard defence template so just make sure that you do not duplicate it.
Financial loss is a non-starter so take that out.
Defences are written in the third person so take out "we" and put "the defendant".

6. The Department for Levelling Up, Housing and Communities ('DLUHC') has published, as of 7 February 2022, a statutory Code of Practice which all private parking Operators are required to comply with. This states, as Section 9, that "The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued".  In the present case, the Claimant has added a sum of £60/£70*, described as 'damages', which is clearly contrary to the intention of the Code. Whilst it is accepted that the new statutory Code does not take full effect immediately, it clearly sets out the Government's intentions regarding private parking and the Court is invited to strike out this element of the claim, irrespective of the determination of any other element.

*Adjust as appropriate

Gettingrippedoff

@Le_Kirk thanks for your feedback.

So I have taken out paragraph 6 of the defence i posted on 14th February and replaced with one you have suggested.

Please see below my updated draft defence with the paragraphs I have updated. Is this ok to send or is there anything else you suggest.

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

3.  The car park in question has been re-developed since the ticket was issued over 4 years? Even now some of the signage is hidden between pillars and not clearly visible during daylight hours and would be difficult to see during the dark. If the signage is this poor now, can only assume what it was like 4 years ago. Parking in a disabled bay was solely due to a passenger having a temporary disability at the time which is what a disabled bay would be used for.

6. The Department for Levelling Up, Housing and Communities ('DLUHC') has published, as of 7 February 2022, a statutory Code of Practice which all private parking Operators are required to comply with. This states, as Section 9, that "The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued".  In the present case, the Claimant has added a sum of £60, described as 'damages', which is clearly contrary to the intention of the Code. Whilst it is accepted that the new statutory Code does not take full effect immediately, it clearly sets out the Government's intentions regarding private parking and the Court is invited to strike out this element of the claim, irrespective of the determination of any other element.