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DCBL County Court claim on behalf of Highview Parking PCN 2016

Hi, I wonder if anybody can help me with this claim, and if so thank you so much in advance for any assistance.

I have received a county court claim form (issue date 16 Feb 2022) regarding parking charges from Highview parking dating back to September 2016 in the amount of £298.80.
I don't believe I replied to any correspondence from Highview Parking at the time, as I was not living full time at the address the car was registered to back in 2016 but I have managed to recover from my previous address some old DRP (debt recovery plus) letters, which appear to relate to the same PCN but with a different amount dated in Oct/Nov of 2016. Approx 1yr later I sold the car and also changed my driving licence to my updated address.  I have since moved completely out of the area and and I believe the DVLA have supplied my address to dcbl (Direct Collection Bailiffs Ltd) as I started to receive Final Reminder letters last year out of the blue (with a larger fee claimed but with no explanation. I think the day in question I may not have been the only person driving the car and think It was taken home from the car park by another insured driver but obviously cannot be totally sure as it was a long time ago. 
I have since read all through the newbies thread and decided to defend the claim and have got so far as follows;
  • completed the acknowledgement of service online (on  02/03/2022)
  • Sent a SAR to Group Nexus and received acknowledgment
  • have drafted a defence and believe the deadline for submission is 21/3/2022?
I have read through numerous Highview threads and have adapted an others' defence as well as the 2020 template, based on a similar previous posters thread. Would it be possible to check if I have correctly understood the instructions etc and the defence is the best possible for me to submit and if there is anything else I need to do now after submission of the defence to the [email protected] as described by keithP until I receive the CCBC?

Thank you so much in advance.

IN THE COUNTY COURT

Claim No.: xxxx

Between

(Highview Parking Ltd) 

(Claimant) 

- and -  

xxxxx

 (Defendant)

____________________

DEFENCE

____________________

The facts as known to the Defendant:

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.

2.          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 was not the only insured driver of the vehicle in question and is unable to recall who was driving on that unremarkable day over 4 and a half years ago.

 3. The Defendant was issued with a Claim Form by DCB Legal acting on behalf of the Claimant Highview Parking Limited for a Total amount of £298.80 (inclusive of £35 Court Fee & £50 Legal representative's costs). Through research the Defendant has come to understand the PCN(s) relates to a PCN(s) that was issued against the Defendant’s vehicle XXX over 5 and a half years ago on 06/09/2016 at xxxx.

4). 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.

5). In the Particulars of Claim ('POC') it is stated that the Defendant is liable as the driver or keeper but the Claimant has failed to provide any evidence that Defendant was also the driver. The Defendant cannot be held liable for the charges as the keeper of the vehicle. The Claimant did not properly serve a compliant notice to keeper in strict accordance with Paragraph 9, sub-paragraphs 4 and 5 of the PoFA, which states that notice to keeper must be delivered within the relevant period. Where the relevant period is defined as the period of 14 days beginning with the day after that on which the specified period of parking ended.

6). Following on from [4] & [5], where it is noted that the Claimant has elected not to comply with the 'keeper liability' requirements set out in 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'.  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 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 ancts about the alleged breach or the amount of the parking charge that was on the signage, because it cannot have been over £100. Which then leads to the question, how does the Claimant arrive at the Amount Claimed for a Total of £213.80. The Defendant has excluded the £35 Court Fee & £50 Legal representative's costs from the Total amount for the purposes of this defence point. 

7). 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

8.  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.

9.      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.

10.       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.  

11.  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').

12.  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

the futher text is as the 2020 template but has too many characters to include in my question.

 



«1345

Replies

  • edited 6 March 2022 at 8:25PM
    KeithPKeithP Forumite
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    edited 6 March 2022 at 8:25PM
    hostess2 said:
    I have received a county court claim form (issue date 16 Feb 2022).

    completed the acknowledgement of service online (on  02/03/2022)

    have drafted a defence and believe the deadline for submission is 21/3/2022?

    ...if there is anything else I need to do now after submission of the defence to the [email protected] as described by KeithP?

    You are right with your Defence filing deadline, but there might be something useful here...

    With a Claim Issue Date of 16th February, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 21st March 2022 to file your Defence.

    That's over two 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'.


    After having filed your Defence you need to continue following the check list in the opening post on the template Defence thread. And of course the guidance in the second post of the NEWBIES thread contains lots of good stuff about subsequent stages of the process.
  • hostess2hostess2 Forumite
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    Ah thank you so much for that. I posted a copy of my defence on the bottom of my question, are you able to tell me if this is  correct and a suitable defence please before I submit it. Thank you. 
  • KeithPKeithP Forumite
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    I'm not usually one for studying the detail in Defences, but your paragraph 7 seems to end rather abruptly.
  • hostess2hostess2 Forumite
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    Oh no, Thank you so much, I hadn't even noticed that error. I've corrected it now though. Thanks once again.
  • 1505grandad1505grandad Forumite
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    @Coupon-mad has written a very new defence on the following thread  (4th March)  -  you can be one of the first to use it:-


    "Yes, here's the first attempt a poster made and I've tweaked it to try to create a possible new template."

  • edited 6 March 2022 at 11:14PM
    Coupon-madCoupon-mad
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    edited 6 March 2022 at 11:14PM
    Yes use the new one - it replaces the rest of the template.  So new I haven't even replaced it in the Template Defence thread yet (next week I will).

    I believe the DVLA have supplied my address to dcbl (Direct Collection Bailiffs Ltd) as I started to receive Final Reminder letters last year out of the blue (with a larger fee claimed but with no explanation.
    The DVLA are not involved and could only be contacted once (by the parking firm) at the time of the event.

    DCBLtd got your new address from a soft trace, which is a good thing, otherwise a claim would have gone to an old address and you'd have been oblivious, until you discovered a secret default CCJ too late.  Luckily you got the claim and found us!
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top of this/any page where it says:
    Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • hostess2hostess2 Forumite
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    Hello again, further to my defence being submitted I have received a letter from dcb legal telling me their clients intend proceeding with the claim and have enclosed a completed directions questionnaire. They also say that "without prejudice and to assist the court in achieving its overriding objective, our client may be prepared to settle this case. Therefore, in the event you wish to discuss settlement, please call us on XXX  within 7 days and make immediate reference to this correspondence.  The letter is dated 13th April but I have been away and didn't receive it until I got back. Could you please advise if I should respond to this letter, and use their completed DQ to return as I don't want to make any missteps?
    Any advice would be gratefully received.
  • Coupon-madCoupon-mad
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    This is fully expected. and listed in the 12 numbered steps in the first post of the Template Defence thread.

    Every early stage is covered there, and the later stages are explained in detail, in the 2nd post of the NEWBIES thread underneath the red heading about 'What Happens When'.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top of this/any page where it says:
    Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • hostess2hostess2 Forumite
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    My apologies, on reading the mail from dcb legal mentioned above, it is a copy of their DQ that they have enclosed, not a copy for me to complete. Can I therefore ask if I should wait to receive my own questionnaire from the court? I have been following MCOL entries but there is no further updates after the record of receipt of my defence?

    Thank you once again.
  • edited 27 April 2022 at 12:53PM
    Coupon-madCoupon-mad
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    edited 27 April 2022 at 12:53PM
    Yes - this is in the 12 steps and you are best reading them because there are more stages too.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top of this/any page where it says:
    Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
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