Spring Parking & DCBL LEGAL - I won in court!!!

Pat_Burger

Received the following in response to me message to DCBL today as well:

Dear XXXXXXXX,

 

We write further to your email dated 23/10/2024 and note the contents.

 

To clarify, our Client has not discontinued their Claim and will be proceeding to the Hearing which has been listed for XXXXXXX at XXXXXXXX.

 Should you be unsure of your position, your may wish to seek independant legal advice.

Pat_Burger

When inputting employment contract into the witness statement, where it says about being able to use a parking space, should I use the whole contract as an exhibit of just up to where it says about a parking space? I'm just aware of page constraints etc

Coupon-mad

Pat_Burger said:

Received the following in response to me message to DCBL today as well:

Dear XXXXXXXX,

 

We write further to your email dated 23/10/2024 and note the contents.

 

To clarify, our Client has not discontinued their Claim and will be proceeding to the Hearing which has been listed for XXXXXXX at XXXXXXXX.

 Should you be unsure of your position, your may wish to seek independant legal advice.

Dear xxxxxx

I'm not unsure of my position. 

However, should you be unsure of how to spell the word independent, perhaps you 'could of' sought grammar advice from a grown-up.

yours sincerely

Le_Kirk

Coupon-mad said:

Pat_Burger said:

Dear XXXXXXXX,

 We write further to your email dated 23/10/2024 and note the contents.

 To clarify, our Client has not discontinued their Claim and will be proceeding to the Hearing which has been listed for XXXXXXX at XXXXXXXX.

 Should you be unsure of your position, your may wish to seek independant legal advice.

Dear xxxxxx

I'm not unsure of my position. 

However, should you be unsure of how to spell the word independent, perhaps you 'could of' sought grammar advice from a grown-up.

yours sincerely

I bet you had to grit your teeth when you typed that!

Pat_Burger

Haha brilliant!

I must resist sending though! 

What are people's thoughts r.e. the whole employment contract as evidence, or just part?

Coupon-mad

No I was deadly serious.

LDast

Pat_Burger said:

Haha brilliant!

I must resist sending though! 

What are people's thoughts r.e. the whole employment contract as evidence, or just part?

Why on earth would you "resist sending" that? Of course you send it. Are you imagining a world with unicorns, rainbows and stardust? You are dealing with utter vermin. Send it exactly as advised!

Pat_Burger

Fair play! Have sent, interesting to see if I actually get a response!

Pat_Burger

Good afternoon All,

I have put together my first draft of witness statement here -

https://docs.google.com/document/d/1Sb7wbsd5vse1svrq5gZgPGFZoiuNRyaZ/edit?usp=sharing&ouid=115896370209626773673&rtpof=true&sd=true

Any thoughts and feedback is much appreciated thank you

Pat_Burger

I have just recieved DCBL's Witness Statement:

I, Alan Vorhand, of Po Box 77282, London, NW4 9LR, state as follows: -

1. I am an employee, employed by Spring Parking Ltd (“my Company”). I am duly authorised to make

this Statement on my Company’s behalf.

2. I make this Statement in support of the Claimant’s Claim and in response to the Defence.

3. The facts and matters set out in this statement are within my own knowledge unless I state otherwise.

I believe them to be true. Where I refer to information supplied by others, the source is identified.

Facts and matters derived from other sources are true to the best of my knowledge and belief.

Parties

4. My Company provides private car park management services to private landowners, to manage the

way motorists are permitted to park on their private land. My Company does so by issuing Parking

Charge Notices (“PCN”) to any vehicle parked in a way the landowner does not permit.

5. The Defendant is the recipient of a Parking Charge Notice issued by my Company. The details are set

out herein.

Accreditation

6. At all material times, my Company was accredited by the Accredited Trade Association (“ATA”)

known as the British Parking Association (“BPA”). The BPA has a Code of Practice (“Code”) that its

members are expected to adhere to, or otherwise face potential sanctions. My Company operates in

accordance with the Code.

7. In order to obtain Registered Keeper details from the Driver and Vehicle Licensing Agency

(“DVLA”) my Company must be a member of an ATA. It is therefore essential for my Company to

comply with the Code.

Background

8. My Company issued a PCN (“Charge”) to the Vehicle (“Vehicle”) with details listed below:

9. At the time of issue, my Company was instructed by the owner of the Land (“Landowner”) to

manage parking on the Land. A copy of my Company’s agreement with the Landowner (“Landowner

Agreement”) is exhibited to this Statement at “EXHIBIT 1”.

10. I confirm that the term of the Landowner Agreement has been extended by mutual consent of the

parties.

Contract

11. At the time of issue, my Company was prominently displaying signs on the Land setting out the

Terms of parking. A copy of the content of the signs is exhibited to this Statement at “EXHIBIT 2”.

The signs formed the basis of the Contract with the driver (“Contract”).

12. The following was a term of the Contract: -

“A VALID PARKING PERMIT MUST BE CLEARLY DISPLAYED AT ALL TIMES”

13. In parking the Vehicle on the Land, the driver accepted the Contract, with the license to park being

the Consideration. It is evident from the photographic evidence exhibited to this Statement at

“EXHIBIT 3” that the driver failed to adhere to the terms of the Contract by parking as they did,

thus breaching the Contract.

14. The Contract provides that a Charge is payable by the driver upon breach, with payment falling due

within 28 days.

15. A copy of the Notice to Keeper is exhibited to this Witness Statement at “EXHIBIT 4”.

Defendant’s Liability

16. Pursuant to the Contract; the Driver was liable to pay the Charge within 28 days of issue.

17. To make the driver aware, a PCN was affixed to the Vehicle in accordance with Section 7 of

Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”). Exhibited to this Statement at

“EXHIBIT 5” is a copy of what was affixed.

18. The driver failed to make payment and as such my Company applied to the DVLA for the details of

the Registered Keeper and sent Notice to the Keeper compliant with Section 8 of POFA (see

“EXHIBIT 4”). Paragraph 1 of POFA states that the Registered Keeper is presumed to be the

‘Keeper’ unless proven otherwise. Paragraph 4 of POFA gives my Company the right to recover

from the ‘Keeper’.

19. The Defendant confirms within their Defence that they were the Registered Keeper and Driver of the

Vehicle. In any event, my Company has complied with POFA and can pursue the Defendant as

Keeper in the alternative.

Defence

20. The Defendant was afforded a 28-day period in which they could appeal, and I am instructed they did

not. The potential next step was clearly communicated to the Defendant in notices. It is respectfully

submitted that if the Defendant genuinely believed the Charge had been issued incorrectly, they

would have engaged with the appeals process further.

21. The Court ought to note that the Defendant has filed a widely available templated Defence, rather

than dealing with the substantive issues. It is submitted the this is disingenuous and a waste of both

the Court’s and my Company’s time.

22. Notwithstanding the above, I respond to the issues raised in the Defence by way of sub-headings as

follows (as the Defence is quite repetitive, I will only deal with each point once, but for the

avoidance of doubt, nothing within the Defence is accepted unless I specifically state otherwise):-

The Contract

i. The Defendant denies breaching any Terms. The Terms are exhibited at “EXHIBIT 2”

make it clear that Vehicles must have a valid permit on display, of they will be issued with

a PCN. The Defendant agreed to the Terms by parking on the Land. As seen at “EXHIBIT

3”, the Vehicle was parked without a valid permit on display. Thus, it is my Company’s

position that the PCN was issued correctly as the Terms of the Contract were breached;

ii. The Terms on the signs, exhibited at “EXHIBIT 2” were adequate in respect of the overall

size, font size, plain English, location and content. It is respectfully submitted that the

signs are adequate to constitute notice of the Terms to the Driver. In the event that a Driver

parks their Vehicle on the Land in which they do not own nor have prior authority to park,

it is incumbent on the Driver to ascertain whether there is a remedy to prevent their

unauthorised parking. It is reasonable to suggest that the Defendant should have sought out

the signage. If they were unsure of the Terms of Parking on the Land;

iii. In respect of the rules as per Schedule 2 of the Consumer Rights Act 2015, specifically

referred to:-

Rule 6 – It is submitted that the sum is not disproportionate for the reasons set out within

the “Amount Claimed” section of this Statement, nor is it “compensation”.

Rule 10 – Signs were displayed throughout the Land. The Driver was aware of the fact that

parking was managed from the point of entering the Land and could leave if they did not

agree to the Terms. It is not unreasonable for the Driver to need to potentially walk no

more than 10 meters to fully familiarise themselves with the full Terms. This would have

all happened before the conclusion of the Contract.

Rule 14 – The price is stated on the sign.

Rule 18 – The fact the Driver was able to park means my Company fulfilled its

obligations.

Civil Procedure Rules Compliance

i. The Defendant suggest that the Particulars of Claim (“POC”) are in breach of the Civil

Procedure Rules (“CPRs”). I submit that the Claim was issued via the Civil National

Business Centre and in this regard, I refer to Practice Direction 7C (“the PD”) which

specifically provides the guidance for doing so. I respectfully submit that the POC are in

keeping with the PD. The following sections are of relevance.:-

5.2(1) provides a limited character count for the Particulars of Claim; and

5.2A stipulates that the requirement in paragraph 7.3 of Practice Direction 16 for

documents to be attached to the particulars of contract claims does not apply to claims

started using an online claim form.

ii. It is my Company’s position that the POC were sufficient to allow the Defendant to

identify the subject matter of the Claim. The Defendant could not have submitted the

Defence with the detail it contains if the POC were so insufficient as to prevent them from

understanding the Claim. Further, with respect if the Defendant were of the genuine belief

that the POC were sufficient, the correct procedure would have been to make an

Application to the Court. The Defendant has chosen not to do so;

iii. In addition to the above, I also refer to CPR 1 and respectfully remind the Defendant of

their obligation to deal with the case justly and at proportionate cost. Bearing in mind the

Claim amount, the Claimant has taken proportionate steps to recover the debt;

Defendant’s Liability

iv. Within their Defence, the Defendant suggest that they were employed by XXXXXX on

05/08/2015 and has been parking at the Location since the beginning of employment. The

Defendant states that their employment contract stipulates that employees can use the car

park and will be provided with a security code to access the car park. The Terms and

Conditions of parking on the Land make it clear that a valid permit needs to be displayed

at all times. This was the same regardless of whether the Defendant was employed by a

Company utilising the Land. The Defendant therefore benefited from the parking

management service. They could not reasonably expect to access the benefit of the service,

but at the same time refuse to comply with the requirements of it. If the Defendant was

unable to comply with the Terms, they should have sought alternative parking until a

permit was obtained;

Penalty/Amount Claimed

v. In respect of the Defendant’s allegation that the Claim is a penalty, my Company is not

seeking more than the original Charge as the core debt. The core Charge remains the same

for each PCN (i.e. £95.00), however, my Company is now also seeking further

costs/damages;

vi. My Company is instructed to manage the Land, the Landowner Agreement previously

referred to in this statement confirms this. My Company’s legitimate interest is to fulfil

this obligation. Because there is a clear legitimate interest/commercial justification, the

same as that established in ParkingEye -v- Beavis [2015], this case does not fall foul of the

penalty rules established in that case;

vii. The amount charged is in line with the guidelines give by the ATA. Part 20.5 of the BPA

COP states “We would not expect this amount to be more than £100. If the charge is more

than this, operators must be able to justify the amount in advance”. It is my Company’s

position that there is no requirement for the amount of the charge to bear any relevant to

the actual potential cost of parking. The PCN is a fee charged by my Company for

providing the service and it stays within the guidelines given by the ATA. As with many

other ‘services’, the serviced provider is entitled to charge as they deem appropriate;

viii. The amount charged is set at a rate that covers the operational costs of the parking

management scheme and acts as a deterrent, as was found to be appropriate in Parking Eye

-v- Beavis [2015];

ix. As payment was not made within the prescribed time, or indeed at all, the additional sum if

claimed as a contractual cost pursuant to the Contract which states:-

“Unpaid PCNs may be passed on to a debt recovery team and additional costs may be incurred”

x. As set out above, the PCN is intended to include ‘operational costs’. It is submitted that

debt recovery action is not an operational cost and as such claiming the cost of doing so

would not fall foul of the 2015 decision;

xi. The sum added is a nominal contribution to the actual costs incurred by my Company as a

result of the Defendant’s non-payment and capped at the amount permitted under the ATA

Code. My Company’s employees spent time and resources attempting to recover the debt,

as well as instruction external debt recovery providers, all at a cost to the Company. This is

not my Company’s usual business and, but for the Defendant’s refusal to pay, would not

have been necessary;

xii. When considering the recoverability of this element of the claim, I respectfully draw the

Court’s attention to Paragraph 45 of Paragraph 45 of Chaplair Limited v Kumari [2015]

EWCA Civ 798 whereby, when considering contractual indemnity costs, it was stated:-

“There is nothing ... which enable[s] the rules to exclude or override that contractual

entitlement and I therefore agree with Arden LJ that the Judge had the jurisdiction to

assess the costs free from any restraints imposed by CPR 27.14”;

xiii. The successful appeal in Britannia Parking Group Ltd v Semark-Jullien [2020] EW Misc 12

(CC) (29 July 2020) found that the inclusion of the debt recovery charge in the Claim does

not fall foul of the decision of Parking Eye Ltd v Beavis [2015] UKSC 67, because that was

not the point in discussion in that case. The appeal also concluded that the inclusion of such

a charge in a Claim of this type does not constitute an abuse of process that would allow for

the entire Claim to be struck out;

New Code of Practice (“COP”)

xiv. The Defendant makes reference to the Department for Levelling Up, Housing and

Communities (“DLUHC”) and the ‘new’ parking code of practice originally published in

February 2022 within their Defence. With respect, it is submitted that this bears no

relevance to the matter at hand as the code has not yet been enacted with the current status

of the code being ‘withdrawn’ as of June 2022;

xv. Further to the above, the Defendant’s opinion of the industry being regulated by the

Independent Parking Committee and British Parking Association bears no relevance to the

Defendant’s liability. With respect, nothing has currently been implemented by the

Government for my Company to adhere to (although this is of course pending). I

respectfully ask the question: would the Defendant have deemed it more appropriate for

my Company to not adhere to the COP(?). Referring to that Code is not ‘misleading’ – it is

(at the present time) entirely relevant and section 111 of Parking Eye -v- Beavis [2015]

confirmed that;

The Protection of Freedom Act 2012 (“POFA”)

xvi. The Defendant implies that my Company must prove POFA compliance, My Company

has complied with the requirements of POFA to pursue the Defendant as the Registered

Keeper.

xvii. As the Defendant failed to respond to the affixed PCN, Notices were sent to the address

the DVLA confirmed was that of the Registered Keeper. The Notices were sent to the

same address the defendant has confirmed as their correct address for service. Copies of

the Notices can be seen at “EXHIBIT 4”. The Notices afforded the Defendant the

opportunity to appeal the charge or nominate an alternative driver, which they failed to do.

It is respectfully submitted that the Defendant was put on notice of the Charge and failed to

respond or pay;

Landowner Authority

iv. The Landowner Agreement is a Contract between the Landowner and my Company which

permits my Company to operate the parking scheme on behalf of the Landowner. Thus,

my Company is authorised to issue Parking Charges to any motorist that have breached the

Terms and Conditions of parking;

v. I refer to the decision in One Parking Solution Ltd v Wilshaw [2021] (Wilshaw) whereby it

was found that it is not necessary for the Claimant to prove the Landowner’s authority to

constitute a valid cause of action to recover the PCN, what is required is proof that there is

a binding Contract between the Claimant and the Defendant. Further it was found in

Wilshaw that the Contract between the Claimant and the Freeholder (Landowner) does not

affect the validity of any Contract between the Claimant and the Defendant;

vi. The Defendant alleges that my Company has no authority to bring the Claim. The

Landowner instructed my Company to manage the parking on the Land and issue Parking

Charges to any Vehicle found to be in breach of the Terms of parking. A copy of the

agreement can be seen at “EXHIBIT 1”. It is respectfully submitted that my Company has

the relevant authority to issue Parking Charges and bring Claims for such in the event the

charges remain outstanding. In any event, the Defendant is a third part to the Landowner

Agreement and privity and Contract applies;

vii. The Defendant alleges that my Company has failed to adhere to the Landowner

definitions, exemptions, grace period, hours of operation and instructions to cancel charges

due to complaints. The Defendant is a third party to the Landowner Agreement. Privity

and Contract applies;