CCBC Defence against UKPC

aa_lady

I received a CCBC claim form from UKPC. They have used DCB Legal as their representative.
The PoC contains the PCN details (which I did not receive).
The claim states that:
- The PCN(s) was issued on private land owned or managed by C. The vehicle was parked in breach of the Terms on Cs signs (the Contract), thus incurring the PCN(s).
- The driver agreed to pay within 28 days but did not. D is liable as the driver or keeper. Despite requests, the PCN(s) is outstanding. The Contract entitles C to damages.
AND THE CLAIMANT CLAIMS
- £170 being total of the PCN and damages
- Interest 
- Costs and court fees

I have read and searched the forum posts which has been really helpful. Thanks everyone.

I have completed the AoS and I believe my defence is due by 4pm on the 7th of June, since the issue date is on the 5th of May. 

I have requested SAR from UKPC but since they have 30 days to respond, they may not get back to me early enough.

PoC is not clear about the breach, so I'm not sure of what to add in my defence. Is it enough to only defend the claim based on
- False Admin cost: https://forums.moneysavingexpert.com/discussion/6108153/suggested-template-defence-to-adapt-for-all-parking-charge-cases-where-they-add-false-admin-costs#latest
- Abuse of process: https://forums.moneysavingexpert.com/discussion/6185114/a-name-change-abuse-of-process-is-now-double-recovery/p1?new=1

Please advise. Thanks.

patient_dream

You defend the calim with facts such as the signs, their location, can they be read etc etc
Who is the landowner, doubtful UKPC are. Have you complained to the landowner ?

UKPC signs are rubbish so you need to get some pictures.

DCBL are faking it again with their favourite word ... "damages"
DCBL are going against the Parking Eye v Beavis case in the Supreme Court where it was ruled that the charge of the parking ticket was inclusive of collection 
DCBL are collecting from you (or trying) and if any damages exist, which they don't, it would belong to the landowner who is not part of the claim.

UKPC will be employed only to manage the car park which includes parking tickets.
So, one would imagine that in the rare case they win, we must assume that they will pay the landowner the £70.  Does the landowner even know about this "damages" farce ?

Of course you know that government has banned these fake add-ons yet here we have DCBL still adding the fake and disguising the fake to mislead you and the court. Not only that, they sign a statement of truth about the fake.

Most judges will dismiss the fake and interest @ 8%

So, the fake add-on is a major part for you, there are other facts involved for the story you will tell the judge

Assume you already know that UKPC were caught doctoring pictures which hit the press big time

What is the date of the ticket and was it sent by post or a windscreen ticket ??

aa_lady

According to the PoC, the incident was in Jan 2020. I did not receive a PCN for this. I have probably received a letter from DBR which I did not bother with. Now this. 

Coupon-mad

It's an aside, but does your car logbook show the right address?

If you moved house in recent years before 2020 and changed your driving licence address, that doesn't change the car reg address and means you will miss all tax reminders and any speeding tickets or PCNs, which is a hole you do not want to stay in, if so.

aa_lady

I did move house late 2019 due to domestic violence and updated the car reg address late Jan 2020.

Does this change anything?

KeithP

aa_lady said:

I received a CCBC claim form from UKPC. They have used DCB Legal as their representative.

I have completed the AoS and I believe my defence is due by 4pm on the 7th of June, since the issue date is on the 5th of May. 

If you filed an Acknowledgment of Service sometime after 10th May and before 25th May, then you are right with your Defence filing deadline.
However, there might be something useful here...

With a Claim Issue Date of 5th May, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Tuesday 7th June 2022 to file your Defence.

That's just a week 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'.

Coupon-mad

aa_lady said:

I did move house late 2019 due to domestic violence and updated the car reg address late Jan 2020.

Does this change anything?

No but it explains why the PCN never arrived.  Good that you updated the logbook, I was worried it was still wrong now.

aa_lady

Thank you for all your advise and contributions. I hope the long weekend was spent in good health

I received a response to the SAR this morning from UKPC and they have shared the information they hold about my car reg.

@Coupon-mad yes, both the PCN and final notice never arrived as they were sent to my previous address. Since it was updated in the same month, this will no longer be an issue. Thanks for your concern

@patient_dream you were also right about the fake timestamps on the pictures.


The picture shows my car at a location(s) in these timestamps. 

1. The location in the ticket is McDonalds - Harpurhey - 786 , Walter Street , Rochdale Road. These pictures do not show my car in that location.
2. On a Thursday morning between the hours of 9am and 3pm, my car is either at home on the day that I'm working from home or parked at a car park near my work place. (Unfortunately, I am not able to find an evidence to prove this, if requested).

I am now drafting my defence which I will be sharing as soon as it's ready for further guidance. Thanks.

D_P_Dance

Have you read this?

https://www.dailymail.co.uk/news/article-3229165/Is-PROOF-private-parking-firms-scamming-motorists-Drivers-say-timings-photos-doctored-legally-parked-cars-issued-fines.html 

Have you complained to your MP?

Fruitcake

aa_lady said:

Thank you for all your advise and contributions. I hope the long weekend was spent in good health

I received a response to the SAR this morning from UKPC and they have shared the information they hold about my car reg.

@Coupon-mad yes, both the PCN and final notice never arrived as they were sent to my previous address. Since it was updated in the same month, this will no longer be an issue. Thanks for your concern

@patient_dream you were also right about the fake timestamps on the pictures.


The picture shows my car at a location(s) in these timestamps. 

1. The location in the ticket is McDonalds - Harpurhey - 786 , Walter Street , Rochdale Road. These pictures do not show my car in that location.
2. On a Thursday morning between the hours of 9am and 3pm, my car is either at home on the day that I'm working from home or parked at a car park near my work place. (Unfortunately, I am not able to find an evidence to prove this, if requested).

I am now drafting my defence which I will be sharing as soon as it's ready for further guidance. Thanks.

Does you car have a built in GPS, or do you have a portable GPS that you can interrogate?
Do you have a smartphone with location tracking enabled?
Do you have security cameras?
Can you check your employee records to see if you were at work that day?

aa_lady

________________

DEFENCE

1.     As in defence template.

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 facts in this defence come from the Defendant's own knowledge and honest belief. The Defendant should not be criticised for using some pre-written wording from a reliable source. The Claimant is urged not to patronise the Defendant with (ironically template) unfounded accusations of not understanding their defence. This Defendant signed it after a great deal of research, after adding facts and reading the defence through several times because the court process is outside of their life experience and this claim was an unexpected shock.

4.     Regarding template statements, the Defendant observes after researching other parking charge cases, that the Particulars of Claim (POC) set out a generic and incoherent statement of case. Prior to this and in breach of the pre-action protocol for 'Debt' Claims, there were no photos, nor a copy of the contract (sign) enclosed with any Letter of Claim. The POC is sparse on detail or facts about the alleged breach, making it difficult to respond in depth.

5.     The POC states that the Defendant is the registered keeper and/or the driver of the vehicle. These assertions indicate that the Claimant has failed to identify a Cause of Action and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, para. 7.3 to para. 7.5. Further, the POC do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

6.     It is uncertain that the vehicle in question, with registration number [VRN] used the location of [address] at the date /time alleged by the Claimant. It has been reported multiple times in the news: *attached URLs* of doctored timestamps by the Claimant. The Defendant hereby contests the validity of any photo timestamp provided as evidence of ‘breach of contract’ by the Claimant.

7.     The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case should be £100 (discounted to £50 for prompt payment). This claim includes an additional £70 for damages, which appears to be an attempt at double recovery.

8.     The quantum and interest have therefore been enhanced. It is denied that the sum sought is recoverable and a significant chunk of this claim represents a penalty, per the authority from two well-known ParkingEye cases. Attention is drawn to paras 98, 100, 193, 198 of ParkingEye Ltd v Beavis [2015] UKSC 67. Also, ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the same modern penalty law rationale was applied, yet here, the learned Judge also considered added 'costs'. The parking charge was set at £75 (discounted to £37.50 for prompt payment) then 'admin costs' inflated it to £135. At paras 419-428, HHJ Hegarty sitting at the High Court (decision ratified by the CoA) found that adding £60 to enhance the sum sought to £135 'would appear to be penal', i.e., unrecoverable.

9.     The Defendant's stance regarding this punitive add-on is now underpinned by Government intervention and regulation. The Department for Levelling Up, Housing and Communities ('DLUHC') published on 7 February 2022, a statutory Code of Practice which all private parking operators must comply with, found here: *attached URL*

10.  Adding 'debt recovery' costs, damages, or fees (however described) on top of a parking charge is banned. In a very short section called 'Escalation of costs' the new statutory Code of Practice now being implemented says: "The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued."

11.  The Claimant's legal team are pursuing a sum on top of the PCN, despite indisputably knowing that these are banned costs. The claim is exaggerated by inclusion of a false, wholly disproportionate, and unincurred 'damages' enhancement of £70 upon which the Claimant seems to have also added interest at 8% calculated from the date of parking. Clearly an abuse of the court process.

12.  The DLUHC considered evidence and took over two years to consult a wide mix of stakeholders before deciding this contentious issue. According to the DLUHC, almost a fifth of all respondents in 2021 'called for the proposal to be scrapped and debt collection to be banned altogether'. This despite the parking industry flooding both public consultations, some even masquerading as consumers. The DLUHC saw through this and exposed as fact, in its published Response to the Technical Consultation (also on 7/2/22) that some respondents were 'parking firms posing as motorists'. Genuine consumer replies pointed out that successful debt recovery does not trigger court proceedings and the debt recovery/robo-claim law firms operate on a 'no win, no fee' basis and are effectively Trade Body Board member colleagues passing motorists' data around electronically and inflating parking charges. This Claimant has not incurred any additional costs (not even for reminder letters) because the full parking charge itself more than covers what the Supreme Court in Beavis called a 'letter chain' business model that generates a healthy profit.

13.  The standard wording for parking charge/debt recovery contracts is on the Debt Recovery Plus website - ''no recovery/no fee'', thus establishing an argument that the Claimant is breaching the indemnity principle - claiming reimbursement for a cost which has never, in fact, been incurred. This is true, whether or not they used a third-party debt collector during the process.

14.  In fact, it is averred that the Claimant has not paid or incurred such damages/costs or 'legal fees' at all. Any debt collection letters were a standard feature of a low-cost business model and are already counted within the parking charge itself and there has been no legal advice or personal involvement by any solicitor in churning out this template claim.

15.  The Ministerial Foreword to the new Code is unequivocal about abusive existing cases such as the present claim: "Private firms issue roughly 22,000 parking tickets every day, often adopting a labyrinthine system of misleading and confusing signage, opaque appeals services, aggressive debt collection and unreasonable fees designed to extort money from motorists."

16.  These are now banned costs which the Claimant has neither paid nor incurred and were not quantified in prominent lettering on signage. Introducing the purported 'costs' add-on in later debt demands is a moneymaking exercise to extract a high fixed sum from weaker motorists and came far too late. The driver did not agree to it.

17.  This overrides the mistakes and presumptions in the appeal cases that the parking industry had been relying upon (Britannia v Semark-Jullien, One Parking Solution v Wilshaw, Vehicle Control Services v Ward and Vehicle Control Services v Percy) where the litigant-in-person consumers could not appeal further.

18.  In case this Claimant tries to rely upon those old cases, significant errors were made. Evidence - including unclear signage and Codes of Practice -was either ignored, even when in evidence at both hearings (Wilshaw, where the Judge was also oblivious to regulatory DVLA KADOE rules requiring landowner authority) or the judgment referred to the wrong rules, with one Judge seeking out the inapplicable BPA Code after the hearing and using it erroneously (Percy). In Ward, a few seconds' emergency stop out of the control of the driver, was inexplicably aligned with Beavis. The learned Judges were led in one direction by Counsel for parking firms and were not in possession of the same level of facts and evidence as the DLUHC.

Protection of Freedoms Act (POFA) and Consumer Rights Act (CRA) breaches

19.  As in defence template.

20.  As in defence template.

21.  As in defence template.

ParkingEye v Beavis is distinguished

22.  As in defence template.

23.  As in defence template.

24.  As in defence template.

25.  The Claimant’s small signs have vague/hidden terms and a mix of small font and are considered incapable of binding any person reading them.  Consequently, it remains the Defendant’s position that no contract to pay an onerous penalty was seen, known, or agreed.

26.  According to Ladak v DRC Locums Ltd UKEAT/0488/13/LA, a claimant can only recover the direct and provable costs of the time spent preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated administrative staff.

27.  The Protection of Freedoms Act 2012, Schedule 4 (POFA) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (and the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the claimant has failed on all counts and the Claimant is aware their artificially inflated claim, as pleaded, constitutes double recovery.

28.  Judges have disallowed all added parking firm 'costs' in County courts up and down the Country. In Claim number F0DP201T on 10th June 2019, District Judge Taylor sitting at the County Court at Southampton, echoed earlier General Judgment or Orders of DJ Grand, who (when sitting at the Newport (IOW) County Court in 2018 and 2019) has struck out several parking firm claims. These include a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) yet the Orders have been identical in striking out both claims without a hearing, with the Judge stating: ''It is ordered that The claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...''

29.  That is not an isolated judgment striking a parking claim out for repeatedly adding sums they are not entitled to recover. In the Caernarfon Court in Case number FTQZ4W28 (Vehicle Control Services Ltd v Davies) on 4th September 2019, District Judge Jones-Evans stated: ''Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court v Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process.''

Lack of landowner authority evidence

30.  The Claimant is 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.

31.  It is averred that the landowner contract, if there is one that was in existence at the material time, is likely to define and provide that the Claimant can issue 'parking charge notices' (or CNs) to cars - following the procedure set out in paragraph 8 of the POFA - or alternatively, postal PCNs where there was no opportunity to serve a CN (e.g. in non-manned ANPR camera car parks, and as set out in paragraph 9 of the POFA). The Claimant is put to strict proof of its authority to issue hybrid non-CNs, which are neither one thing nor the other, and create no certainty of contract or charge whatsoever.

32.  In the matter of costs, the Defendant asks:

(a) for standard witness costs for attendance at Court, pursuant to CPR 27.14, and

(b) that, in the event of a late Notice of Discontinuance (which the Defendant is aware happens where parking firms use and abuse the court process as a cheap form of debt collection) any paid-for hearing is not vacated but continues as a costs hearing. The Defendant may seek a finding of unreasonable conduct by this Claimant and may seek costs pursuant to CPR 46.5. CPR r.38.6 states that the claimant is liable for the defendant's costs after discontinuance (r.38.6(1)) but this does not normally apply to claims allocated to the small claims track (r.38.6(3)). However, the White Book states (annotation 38.6.1): "Note that the normal rule as to costs does not apply if a claimant in a case allocated to the small claims track serves a notice of discontinuance although it might be contended that costs should be awarded if a party has behaved unreasonably (r.27.14(2) (dg))."

33.  In summary, there are several options available within the Courts' case management powers to prevent vexatious litigants pursuing a wide range of individuals for matters which are near-identical, with meritless claims and artificially inflated costs. The Defendant is of the view that private parking firms operate as vexatious litigants and that relief from sanctions should be refused.

34.  The Court is invited to make an Order of its own initiative, dismissing this claim in its entirety and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14 on the indemnity basis, taking judicial note of the wholly unreasonable conduct of this Claimant.

35.  It is the Defendant's position that the claim is entirely without merit and the Claimant is urged to discontinue now, to avoid incurring costs and wasting the court's time and that of the Defendant. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

Statement of Truth

As per defence templates: https://forums.moneysavingexpert.com/discussion/comment/79031299/#Comment_79031299 and  https://forums.moneysavingexpert.com/discussion/comment/76880595/#Comment_76880595

Please advise if corrections are needed. Thanks in advance.