UKPC / DCB Legal

IloveElephants

Is this reference "somerfield in paragraph 7 above and in any event it is worth noting that the lead" ? Do I change the number 7 ? if so to which number do you suggest I change it to? 

Thank you 

IloveElephants

I have my final defence statement and I think it is ready for me to email it. If I could ask you to please take a look before I send this off.  I have highlighted the word "para" and would ask please if I need to reference or change anything?

Also are my points 2,3,4,5 strong enough? I have read this is the most important aspect of the defence. 


This has taken me way to long to put together and I take full responsibility due to my lack of understanding. Thank you to coupon-mad Le Kirk, Granddad, RedX, Keith and the others that have helped and patient dealing with this. 

IN THE COUNTY COURT 

 

Claim No.: XXXXXXXX 

 

Between 

 

UK PARKING CONTROL LIMITED 

 

- and -   

 

Mr John Smith (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 - 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.  Misleading signage and markings - it is denied that a contract was agreed. There was a lack of clear/conspicuous signage in the car park, which the Defendant will evidence.  The Claimant is put to strict proof to the contrary.  The Defendant also states that no surface markings were on the ground to suggest 'no parking' if this is the allegation, which is incoherent from the particulars. 

 

4.  No grace period given.  Despite the industry Code of Practice at the time requiring a mandatory consideration or 'observation' period before issuing a parking charge, the Defendant believes that predatory ticketing took place within minutes.  The Claimant is put to strict proof to the contrary along with notes/a statement from the ticketer. 

 

5.  Consumer notices (letters) were not given or served to the Defendant, this being a failure by the Claimant to provide the necessary information about the alleged contractual breach and parking charge.  The Defendant avers this was a material breach of the test of fairness (transparency and prominence of consumer notices) ref the Consumer Rights Act 2015.  The court has a duty in s62 to consider the test of fairness of not just terms but consumer notices (includes all communications - signage and the letters intended to be given).  It is believed that, beyond relying on unreliable DVLA data, UKPC did not make any attempt to trace the defendant in a timely manner to serve the required information and avoid court. 

 

 

 

6.  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. 

 

7.       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. 

 

8.       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.   

 

9.  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 paragraph 7 above and in any event it is worth noting that the lead Southampton case of Brittania v Crosby was not appealed. 

 

 It is averred that District 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'). 

 

10.  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 

 

11.       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.   

 

12.       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. 

 

13.   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.   

 

14.   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. 

 

15.       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. 

 

16.   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. 

 

17.   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. 

 

18.  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: 

 

19.   (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. 

 

20.   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. 

 

Defendant’s signature: 

Mr John Smith   - (paste signature here) 

 

Date: 30/01/2022 

Le_Kirk

IloveElephants said:

if someone could kindly tell me were I make the necessary changes please.
1) I have pasted it below, removed the paragraph about no papers being served. I have underlined some comments just to confirm shall I delete all the underlined paragraph between 9 and 10? Thank you
2) adjust that one reference to a paragraph number that has taken so many people so much time to try and explain.

1) Leave those underlined words in; they should be part of your paragraph 9. 
2) You have correctly made the adjustment to paragraph 9 regarding changing the number 5 to 7.  Well done, I think we are there.

IloveElephants

Le_Kirk said:

IloveElephants said:

if someone could kindly tell me were I make the necessary changes please.
1) I have pasted it below, removed the paragraph about no papers being served. I have underlined some comments just to confirm shall I delete all the underlined paragraph between 9 and 10? Thank you
2) adjust that one reference to a paragraph number that has taken so many people so much time to try and explain.

1) Leave those underlined words in; they should be part of your paragraph 9. 
2) You have correctly made the adjustment to paragraph 9 regarding changing the number 5 to 7.  Well done, I think we are there.

Thank you so much Le Kirk, when I get home I will email it off, save it as a pdf document and mail it off, you are a very nice and kind person. Thanks to everyone on here that helped, I am sorry for annoying some of you, I will keep you all updated on the progress 

1505grandad

Are you defending as both RK and driver?  -  if so (I believe that paras 3 and 4 suggest you were the driver) 

add "and driver" after "registered keeper" in para 2 so that you are denying liability as driver also.

IloveElephants

1505grandad said:

Are you defending as both RK and driver?  -  if so (I believe that paras 3 and 4 suggest you were the driver) 

add "and driver" after "registered keeper" in para 2 so that you are denying liability as driver also.

Hi Granddad, thanks for your comment, yes I am defending as the registered keeper at the time and driver but accept no liability. 


I will add "and driver after registered keeper" in paragraph 2. Thanks for pointing that out

When I get home I will do it on my home computer on my master copy.

Once I do that do you think I am ready to email the pdf ?

Thanks for your helpful advice.

IloveElephants

I have sent my PDF Defence copy via email. Thank you everyone for all the help. I will keep you updated. Do I have to do anything else now or just wait to hear back from Northampton business centre? I have not logged back in MCOL and did not submit my defence on that portal, just read only. 



edit... I just read what coupon-mad wrote regarding after you email your defence pdf.

1. Wait for your own Directions Questionnaire from the CCBC, or download one from the internet - https://www.gov.uk/government/publications/form-n180-directions-questionnaire-small-claims-track , and then complete it as described by bargepole in his 'what happens when' post linked from post #2 of the NEWBIES thread - https://forums.moneysavingexpert.com/discussion/comment/64350585#Comment_64350585
2. The completed DQ should be returned by email to the CCBC to the same address and in the same way as your Defence was filed earlier.  
   
3. Send a copy of your completed DQ to the Claimant (or their solicitor if they are using one).  Their postal address is on your Claim Form but you can find an email for them by searching this forum, or Google it, because a DQ sent by email is OK and then you know/can prove it's been sent.   

So Shall I wait or do you suggest complete the questionnaire now? Once I have completed the questionnaire I will mail it to the same email address CCBCAQ. 

In terms of sending a copy of my completed DQ to the claimant. On the claim form it says DCB LEGAL LTD DIRECT HOUSE GREENWOOD DRIVE RUNCORN AW7 IUG. So do I send this printed DQ form with my answers to them? Does it have to be postal or can we not email it? I will do both. I will send a physical letter to them and find an email address and email them with my DQ. 

Thank you everyone

Coupon-mad

You wait for the court to send it to you then you EMAIL it back to both CCBC and solicitor, as the 12 steps tell you.

Did you get an auto response from the CCBC for your defence?  If not, re-send it in working hours.

IloveElephants

Coupon-mad said:

You wait for the court to send it to you then you EMAIL it back to both CCBC and solicitor, as the 12 steps tell you.

Did you get an auto response from the CCBC for your defence?  If not, re-send it in working hours.

Hi Coupon-mad, Yes I did get an automated response to my email; thank you so much for your reassurance. I will keep everyone updated. Thank you to all. 

COVID- 19 Update;

Due to COVID-19, we may take longer to answer your calls and correspondence and to process claims. We are sorry but, to prioritise urgent work, we cannot provide updates on how your case is progressing.

The County Court Business Centre are currently working a 50/50 split of available staff resource, a week on, week off system to safeguard our team and to comply with social distancing, in our commitment to delivering an ongoing service to our customers.

 

If you should have any queries please forward to CCBC@JUSTICE.GOV.UK

 

Thank you for emailing the County Court Business Centre, please accept this as a receipt of your email.  Where a response is required we will endeavour to respond to your email within 10 working days (please do not re-send duplicate messages)

 If you’ve submitted a complaint, please note that the Court will aim to reply within 10 working days. (please do not duplicate complaints)

IloveElephants

Just a quick update and heads up on my case.

I logged into MCOL 

My claim history status says:


Your acknowledgement of service was submitted on 26/1/2022
your defence was received on 02/02/2022


Thank you to everyone helping me with this case. I am now waiting to hear back from Northampton business centre to send me the questionnaire.