PCN Claim from 2020

Coupon-mad

Remove this, the Judge knows you got a claim!  You don't have to state that.  And they are allowed to add court fees and fixed legal costs.  That's not the objectionable add-on:

 The Defendant was issued with a Claim Form by DCB Legal Limited acting on behalf of the Claimant Highview Parking Limited for a Total amount of £9xx.xx (inclusive of £70 Court Fee & £70 Legal representative's costs).

And remove this as it is dealt with lower down the template:

Which then leads to the question, how does the Claimant arrive at the Amount Claimed for a Total of £768.60. The Defendant has excluded the £70 Court Fee & £70 Legal representative's costs from the Total amount for the purposes of this defence point. 

Bargepole's suggested added point about the add-on where you need to insert the right sum, is obviously the sum they've added on the left of the claim (in the Particulars) for 'damages/debt recovery'.  If you've read bargepole's thread from yesterday about the new Code, and read the Code (as you must, because it really helps your case!) you would know it's +£70 per PCN that was banned by the Govt.

You will also find a couple of great quotes in the statutory Code that will help as a steer for the courts in non-POFA cases like yours. One has the word 'forfeits' in it and one says something about not assuming a keeper was the driver, when issuing or pursuing a parking charge.

Mrscompliant

Received my SAR from DPO Nexus




https://ibb.co/Jcx0YzT
https://ibb.co/xMR7xYB
https://ibb.co/9s427wt
https://ibb.co/NY0gDC5

Mrscompliant

Updated draft

The facts as known to the Defendant:

2.       The Defendant was issued with a Claim Form by DCB Legal Limited acting on behalf of the Claimant Highview Parking Limited. Through research the Defendant has come to understand that this relates to four PCN(s) that was issued against the Defendant’s vehicle xxxx over 2 years ago on 13, 15, 16 and 17 January 2020 at xxxx RETAIL PARK.

3.       It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied. The identity of the driver at the material time is unknown to the Defendant. The Defendant is unable to recall who was or was not driving on random days over 2 years ago.

4.       The Defendant believes that the Notice to Keeper does not hold the registered keeper liable using the only law available to the Claimant, 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.

5.       Even if the claimant is trying to hold the keeper liable, as stated in the Particulars of Claim, then this is denied as the Notice to Keeper fails to meet the strict requirements of PoFA, most notably by failing to 'warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given', as set out in Schedule 4, Paragraph 9(2)(f).

6.       Following on from [4] where it is noted that the Claimant has elected not to comply with the 'keeper liability' requirements set out in the PoFA, 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'.  The Defendant is averting that the Claimant knows or should have known the keeper can only be liable if the defendant was the driver. 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 volition.  Not only does the Particulars of Claim (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 it cannot have been over £100.

7. 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 £280, 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.

8.       The Parking and Traffic Appeals Service (PATAS) and Parking on Private Land Appeals (POPLA) lead adjudicator and 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 and the operators should never suggest anything of the sort” (POPLA report 2015).

Mrscompliant

Seeking advise on my draft before submitting my final defence

Thanks

1505grandad

Para 6  -  "The Defendant (is averting) that the Claimant knows or should have known.......)

Should this be "avers"?

Also  -  a heads-up:-

Hopefully you have read and understood the Template Defence and therefore realise that the existing para 7 in the Template states -  "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."
As you now have more than paras 2 and 3 - and therefore have to renumber the subsequent paras - you have altered the reference to point 5 accordingly.

Mrscompliant

Para 6  -  "The Defendant (is averting) that the Claimant knows or should have known.......)

Should this be "avers"?

Thanks updated accordingly

Hopefully you have read and understood the Template Defence and therefore realise that the existing para 7 in the Template states -  "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."

As you now have more than paras 2 and 3 - and therefore have to renumber the subsequent paras - you have altered the reference to point 5 accordingly.

Yes this is para 12 and referenced it to point 10

Thanks

9. 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.

10. 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 case (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.

11. 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.

12. 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 know that parking firms have been misleading the courts with an appeal at Salisbury Court (the Semark-Julien case) where the Judge merely reset an almost undefended case back for hearing. He indicated to judges for future cases, how to consider the CRA 20015 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 [10] 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').

Mrscompliant

Submitted my defence around an hour ago and didn’t receive an automated email.

Has anything changed or has my defence been received?

Le_Kirk

Well it is within the times we normally suggest to submit it; two other possible problems, you used the wrong e-mail address or you used a Gmail address to send it.

Mrscompliant

Yes I submitted within the time, I copied and pasted the email from here. I also used a gmail.

However this is all sorted now as i have resent the email again and got a response.

Thanks to everyone who helped me along the way so far. 

Mrscompliant

I have just received the directions questionnaire from the claimants legal team as the intent to proceed with the claim. They have also attached a letter saying 

"Without Prejudice to the above, in order to assist the court in achieving its overriding objective, our client may be prepared to settle this case etc........"

Is it worth contacting them telling them to dismiss the case and pursue the driver? As I've seen other similar posts where defendant contacted legal team and the case was dropped.

Thanks