Bailiff Knocked on the door yesterday

Coupon-mad

Which is correct. They did it right.

You needed to do a WS in support of your defence.  You didn't.

Trouble is, you've got your hearing on Monday so it's too late to put right unless you do a quick WS (a proper one about your defence against the PCNs) tonight and email it to the court and DCB Legal in the morning with an apology that you attached the wrong one last week.

We don't even know what your defence said and you didn't show us that wrong WS either. We had no chance to help you.

Show us the defence you put in. 

JacksSon

this is the wrong WS:

JacksSon

I,******** , will say as follows:  

1. I am the Defendant in this matter and I make this witness statement in support of my response pack previously registered as the County Court Judgment (CCJ) entered against me on 20 October 2022, in default due to a defective service of Claim.  

2. The Claimant served the claim to an old address. The Claimant's representative had traced and indisputably held my new address, because they had used it for multiple Letters before action in 2022. To then revert to a known to be out of date address is a clear breach of  both the CPRs and the industry Code of Practice.  These facts and issues are explained further, below. 

3. The Claimant had a duty to take reasonable steps to check for the correct address, in accordance with the IPC Code of Practice 22.1 and CPR 6.9.  

4. I have not received any claim form or detailed particulars of the claim regarding this matter until I became aware as per paragraph 2 above.  

5. I believe that I have a strong defence to the claim, and should it not be dismissed despite the wealth of case law below that supports the claim being dismissed at  County Court hearing, I should (at the very least) have the opportunity to defend it properly.  My application relies upon the declaring the unserved claim to be expired and thus, time barred and as such, I am disputing the jurisdiction of the court to dispense with service and allow the claim to continue, this application also relies upon CPR 11 (but due to the lack of service, I cannot also acknowledge service, which that rule assumes a defendant can). In addition, I further rely upon CPR 16.4(1)(e) and 16PD3 and 16PD7, because I say that the expired POC fail to "state all facts necessary for the purpose of formulating a complete cause of action".  More detail follows below. 

6. The Claimant inexplicably doubled the original costs and court time wasted, despite the fact that County Court at ******* has cancelled the Judgement by order dated with 16th October 2023.

 

THE CLAIMANT FAILED TO SERVE THE CLAIM  

7. I understand that the Claimant has filed a Claim against me as the Defendant. I am aware that the Claimant is Highview Parking Limited and that the assumed claim is in respect of 3 unpaid Parking Charge Notices.  

8. CPR 6.9 stipulates that an "Individual" should be served at their "Usual or last known residence."  As I have had multiple correspondence in relation to a different case, I am unsure of the specific dates that the claim was made. Nonetheless, it is clear that the Claimant, having obtained a previous address from the DVLA and having received no response, did not perform the requisite "reasonable diligence" required to find my correct address to serve the claim form in. Had reasonable diligence been taken, my personal details are found in multiple public sources, such as the electoral register, DVLA, HMRC. The claimant did not have any contact with the defendant, and thus should have considered they had obtained incorrect details. It appears that the claimant continued to issue correspondence to the incorrect address intentionally, in line with the concerns raised by the government regarding this abhorrent industry

9. According to publicly available information, my circumstances are far from unique. The industry’s persistent failure to use correct and current addresses of results is an unnecessary burden for individuals and the justice system across the country.  

10. The Claimant has failed to serve the claim against me the defendant ordered by Judge ****** at County Court at ********* dated with 16th October 2023. The claim exceeded the time limit for the claim and particulars of claim to be served to Defendant within 7 days from Court Order (paragraph 4 of County Court at ******** Order “EXIBIT 1” and Correspondence in “electronic bundle”)

 

THE INTERNATIONAL PARKING COMMUNITY CODE WAS NOT FOLLOWED  

11. International Parking Community (IPC) Code of Practice which requires a soft trace to be undertaken was not followed. The IPC Code of Practice 2019 - Version 7, November 2019, clause 22.1 states;

 

12. Operators must take reasonable steps to ensure that the motorist’s details are still correct if 12 months have passed from the Parking Event before issuing court proceedings”  

DVLA ADDRESS DATA MAY NOT BE RELIABLE  

13. DVLA data is provided for a single (very limited) reason, so a parking operator can invite the registered keeper to name the driver or pay the invoice or inform the registered keeper they will be liable if not, and notify of appeal rights.  

14. The system, called 'KADOE' (Keeper On Date of Event), is a brief 'snapshot in time' address to enable a parking firm to send a Notice to the registered keeper. Operators are only allowed to ask the DVLA once, hence the code of practice requires reasonable steps are taken to check address details are current before litigation. Even if a motorist later updates a VC5 logbook with a new address (or if the DVLA fails to process a change in a timely manner, which is reportedly common) a parking operator will not know, nor be able to find that out.  

15. There is no safe presumption that a DVLA vehicle address is a valid address where a Defendant can be served. The KADOE address is not provided as a 'court claim service address' and should not be relied upon, as it is only an address where the vehicle was kept at a historical point in time (which may not be where the keeper lives; it is where the car was 'kept').  

16. There is a wealth of case law making reference to the failures of parking companies to correctly ascertain the addresses of defendants. Of note:  

17. In Collier v Williams [2006] 1 WLR 1945 (CA) LJ Dyson said:  
  "What state of mind in the server is connoted by the words "last known"? … As we have said, there is an important distinction between belief and knowledge. It is a distinction particularly well understood in the criminal law, but elsewhere too. The draftsman of the rules deliberately chose the word "known". In our view, knowledge in this context refers to the serving party's actual knowledge or what might be called his constructive knowledge, i.e. knowledge which he could have acquired exercising reasonable diligence. We arrive at this conclusion on the basis of what we understand the words to mean. We do not believe that there are any policy reasons which require us to give the words a strained or unusual meaning. The risk of satellite litigation is inherent in whatever interpretation is adopted. It is true that a defendant who has not in fact received the claim form should have no difficulty in setting aside a default judgment. But it is not desirable that defendants should be put to the trouble and expense of making applications to set aside default judgments."  
  
18. The same sentiment was echoed by:    
HHJ Hacon in MB Garden Buildings Ltd v Mark Burton Construction Ltd & Anor [2014] EWHC 431 (IPEC) (28 February 2014)  and
HHJ Behrens in Broadside Colours And Chemicals Ltd, Re (No 2) [2012] EWHC 195 (Ch) (20 February 2012) , it would appear that obtaining the information from a source that an individual is required by law to keep updated is adequate knowledge. However, i would submit that it is incumbent to have recent knowledge and not outdated knowledge as HHJ Hacon put it in MB Garden Buildings Ltd v Mark Burton Construction Ltd & Anor [2014] EWHC 431 (IPEC) (28 February 2014).

 As it was put in Dubai Financial Group Llc v National Private Air Transport Services Company (National Air Services) Ltd [2016] EWCA Civ 71 (09 February 2016) by LJ McCombe : 
   “If a defendant has never become under a valid obligation to acknowledge service, either as specified under the rules or by order of the court, I do not see how it can be that a judgment can be entered against him in default of such acknowledgment. He is simply not in default at all."  

  

 

 

 

THE CLAIM HAS EXPIRED UNSERVED

I HEREBY CHALLENGE THE JURISDICTION OF THE COURT TO HEAR IT NOW (EFFECTIVELY THAT WOULD MEAN DISPENSING WITH SERVICE). THERE ARE NO EXCEPTIONAL CIRCUMSTANCES TO SUPPORT THE VERY LIMITED COURT DISCRETION TO RETROSPECTIVELY VALIDATE DEFECTIVE SERVICE BY RESURRECTING AN EXPIRED AND UNSERVED (AND HOPELESS) CLAIM.

19. Service of the claim form on an old address constitutes defective service and the claim has expired unserved.   The Claimant currently has no claim because it was not properly served within the timeframe specified by County Court at *******.

20. Continuing an expired unserved claim more than 11 months after it was raised (but never properly served) is impossible under any rule of law or practice (CPR 7.5 and as a result this claim has expired unserved). 

21. The Claimant should not be given extra opportunities to waste the Court’s time after failing to follow pre-action protocols for debt claims, breaching the IPC code of practice and the CPRs about taking 'reasonable steps' (CPR 6.9) to check a Defendant's address.  

22. This claim should be struck out as more than 11 months have passed (CPR 7.5 refers) from issue of proceedings [date] and service of the claim was defective (i.e. it was never served).  

23. A Court's discretionary power to validate a defectively served claim is very limited, and only applies where there is ‘good reason’ for the court to exercise the power so conferred.  There is no ‘good reason’ to retrospectively validate the claimants’ service under Rule 6.15.  Further, whilst Rule 6.16 does create a power for a court to dispense with service of the claim form, this only applies in 'exceptional circumstances' and this does not apply in my case.

24. In IDEAL SHOPPING DIRECT LTD & ORS V MASTERCARD INCORPORATED & ORS [2022] EWCA CIV 14, the Court of Appeal upheld a High Court decision that the claimant had not validly served proceedings and there were no good reasons or exceptional circumstances for the court to indulge the erring Claimant by granting a retrospective order validating the attempted service.

 

25. Held: CPR 3.10 (General power to rectify following error of procedure) did not enable the court to rectify ineffective service of the claim form and remedy the claimants’ error. That rule should not be used to get around service requirements and the claimants also did not satisfy the requirements under CPR 6.15 or 6.16. Following the approach in Piepenbrock v Associated Newspapers Ltd [2020] EWHC 1708 (QB) ([69]), having considered all the circumstances under rule 6.15, and finding no ‘good reason’, in Ideal Shopping Direct there were similarly no grounds to find the ‘exceptional circumstances’ required under rule 6.16. , correct the requirements of CPR 12.3(1)(b) have not been satisfied.

 

 

 

CLAIMS SHOULD BE STRUCK OUT  

26. In the alternative: the claim should be struck out regardless of the above other abusive conduct, because the POC fail to comply with Civil Procedure Rule 16.4(1)(e) and Practice Direction Part 16.7.5.

27. The Claimant inexplicably doubled the costs and court time wasted, despite the County Court at ***** Order.

 

28.The Claimant failed to Serve the Claim and particulars within 7 days given by Judge **** on 16th October 2023

 

 

 

Statement of truth:  

I believe that the facts stated in this Witness Statement 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.  

JacksSon

• Defence
  1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at

  all. It is denied that any conduct by the driver was in breach of any term. Further, it is

  denied that this Claimant (understood to have a bare licence as agents) has standing to

  sue or form contracts in their own name. Liability is denied, whether or not the Claimant

  is claiming 'keeper liability', which is unclear from the boilerplate text in the Particulars of

  Claim ('the POC').

  The facts known to the Defendant:

  2. The facts in this defence come from the Defendant's own knowledge and honest

  belief. Conversely, the Claimant sets out a cut-and-paste incoherent and sparse

  statement of case. The POC appear to be in breach of CPR 16.4, 16PD3 and 16PD7,

  and fail to "state all facts necessary for the purpose of formulating a complete cause of

  action". The Defendant is unable, on the basis of the POC, to understand with certainty

  what case, allegation(s) and what heads of cost are being pursued, making it difficult to

  respond. However, the vehicle is recognised and it is admitted that the Defendant was

  the registered keeper. The defendant is unaware of who was operating the vehicle at the

  time.

  3. The Claimant will concede that no financial loss has arisen and that in order to impose

  an inflated parking charge, as well as proving a term was breached, there must be:

  - a strong 'legitimate interest' extending beyond mere compensation for loss, and

  - 'adequate notice' of the 'penalty clause' charge which, in the case of a car park,

  requires prominent signs and lines.

  4. The Defendant denies stated clauses have been met. A recent persuasive appeal

  judgment in another private parking case: Civil Enforcement Limited v Chan (Ref.

  E7GM9W44). This case confirms that where the POC fails to comply with Civil

  Procedure Rule 16.4 and the Practice direction to Part 16, the claim should be struck

  out, the CCJ set aside and costs awarded to the Applicant/Defendant. On the 15th

  August 2023, in the cited case, HHJ Murch held that 'the particulars of the claim as filed

  and served did not set out the 'conduct which amounted to the breach' in reliance upon

  which the claimant would be able to bring a claim for breach of contract'. The same is

  true in this case and in view of the Chan judgment, the Court should strike out the claim,
• 

  using its powers pursuant to CPR 3.4 and award my costs in full, as happened in Chan

  appeal case.

JacksSon

• Exaggerated Claim and 'market failure' currently being addressed by UK Government

  5. This claim is unfair and inflated and it is denied that any sum is due in debt or

  damages. This Claimant routinely pursues an unconscionable fixed sum added per

  PCN, despite knowing that the will of Parliament is to ban it.

  6. This is a classic example where adding exaggerated fees funds bulk litigation of weak

  and/or archive parking cases. No checks and balances are likely to have been made to

  ensure facts, merit or a cause of action (given away by the woefully inadequate POC).

  7. The Department for Levelling Up, Housing and Communities ('the DLUHC') published

  a statutory Parking Code of Practice in February

  2022: https://www.gov.uk/government/publications/private-parking-code-of-practice.

  The Ministerial Foreword is damning: "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."

  8. Despite legal challenges delaying the Code (temporarily withdrawn) it is now 'live'

  after a draft Impact Assessment (IA) was published on 30th July 2023. The

  Government's analysis is found

  here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_d

  ata/file/1171438/Draft_IA_-_Private_Parking_Code_of_Practice_.pdf

  9. Paragraphs 4.31 and 5.19 state that the parking industry has shown the DLUHC that

  the true minor cost of pre-action stage totals a mere £8.42 per case (not per PCN).

  10. This claim has been enhanced by a disproportionate sum, believed to enrich the

  litigating legal team. It appears to be double recovery, duplicating the intended 'legal

  fees' cap set by small claims track rules.

  11. The draft IA shows that the intimidating letter-chains endured by Defendants cost

  'eight times less' than the fixed +£70 per PCN. This causes immense consumer harm in

  the form of some half a million wrongly-enhanced CCJs each year, that Judges are

  powerless to prevent. MoJ statistics reveal several hundred thousand parking claims

  per annum, with c90% causing default CCJs totalling hundreds of millions of pounds. The

  false fee was enabled by the self-serving Codes of Practice of the rival parking Trade

  Bodies who aligned in 2021 to allow +£70, each led by a Board comprising the parking

  and debt firms who stood to gain from it.

  12. The alleged 'core debt' from any parking charge cannot exceed £100 (the industry

  cap). It is denied that the added damages/fee sought was incurred or is recoverable.

  Attention is drawn to paras 98, 100, 193, 198 of Beavis. Also ParkingEye Ltd v Somerfield

  Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was £75, discounted

  to £37.50 for prompt payment. Whilst £75 was reasonable, HHJ Hegarty (decision

  ratified by the CoA) held in paras 419-428 that 'admin costs' inflating a PCN to £135

  exaggerated the cost of template letters and 'would appear to be penal'.

  13. This Claimant has not incurred costs. A PCN model already includes what the

  Supreme Court called an 'automated letter-chain' and it generates a healthy profit.

  In “Beavis”, there were 4 pre-action letters/reminders and £85 was held to more than

  cover the minor costs of the operation (NB: debt collectors charge nothing in failed

  collection cases).
• 

  14. Whilst the new Code is not retrospective, all non-monetary clauses went

  unchallenged. It will replace the self-serving BPA & IPC Codes, which are not regulation

  and carry limited weight. It is surely a clear steer for the Courts that the DLUHC said in

  2023 that it is addressing 'market failure'.

  15. At last, the DLUHC's analysis overrides plainly wrong findings by Circuit Judges

  steered by Counsel in weak appeal cases that the parking industry steamrollered

  through. In Vehicle Control Services v Percy, HHJ Saffman took a diametrically opposed

  position to that taken by DJ Hickinbottom, DJ Jackson (as Her Honour Judge Jackson

  then was), and other District Judges on the North Eastern Circuit, including DJ Skalskyj-

  Reynolds and DJ Wright (Skipton) all of whom have consistently dismissed extortionate

  added 'fees/damages'. District Judges deal with private parking claims on a daily basis,

  whereas cases of this nature come before Circuit Judges infrequently. The Judgments of

  HHJ Parkes in Britannia v Semark-Jullien, and HHJ Simpkiss in One Parking Solution v

  Wilshaw were flawed. These supposedly persuasive judgments included a universal

  failure to consider the court's duty under s71 of the CRA 2015 and factual errors.

  In Wilshaw: a badly outdated reliance on 'ticket cases' which allowed poor signage to

  escape fair scrutiny and a wrong presumption that landowner authority 'is not required'

  (DVLA rules make it mandatory). In Percy, HHJ Saffman made an incorrect assumption

  about pre-action costs and even sought out the wrong Code of Practice of his own

  volition after the hearing, and used it to inform his judgment.

  16. In addition, pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act

  2012 ('the POFA') the sum claimed exceeds the maximum potentially recoverable from a

  registered keeper. The Claimant is put to strict proof of POFA compliance if seeking

  'keeper liability'.

  Lack of standing or landowner authority, and lack of ADR

  17. DVLA data is only supplied if there is an agreement flowing from the landholder

  (ref: KADOE rules). It is not accepted that this Claimant (an agent of a principal) has

  authority to form contracts at this site in their name. The Claimant is put to strict proof of

  their standing to litigate.

  18. The Claimant failed to offer a genuinely independent Alternative Dispute Resolution

  (ADR). The DLUHC Code shows that genuine disputes such as this should see PCNs

  cancelled, had a fair ADR existed. The rival Trade Bodies' time-limited and opaque

  'appeals' services fail to properly consider facts or rules of law and reject most disputes:

  e.g. the IAS upheld appeals in a woeful 4% of decided cases (ref: Annual Report). This

  consumer blame culture and reliance upon their own 'appeals service' (described by

  MPs as a kangaroo court and about to be replaced by the Government) should satisfy

  Judges that a fair appeal was never on offer.

  Conclusion

  19. There is now evidence to support the view - long held by many District Judges - that

  these are knowingly exaggerated claims that are causing consumer harm. The July 2023

  DLUHC IA analysis shows that the usual letter-chain costs eight times less than the sum

  claimed for it. The claim is entirely without merit and the POC embarrassing. The

  Defendant believes that it is in the public interest that poorly pleaded claims like this

  should be struck out.

  20. In the matter of costs, the Defendant seeks:

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

  (b) a finding of unreasonable conduct by this Claimant, and further costs pursuant to

  CPR 46.5.

  21. Attention is drawn to the (often-seen) distinct possibility of an unreasonably late

  Notice of Discontinuance. Whilst CPR r.38.6 states that the Claimant is liable for the

  Defendant's costs after discontinuance (r.38.6(1)) 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))."

  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.

JacksSon

that is all that i have

JacksSon

i thought that the case will be automatically dismissed since dcb did not met the deadlines

JacksSon

nevermind, is there anywhere a WS that i could curb according to my case?

Coupon-mad

Yes. The one below your thread on the first page of the forum right now is good.

My goodness you need some facts and your defence facts were nothing at all.  You can't just say you don't know who was driving.

JacksSon

Coupon-mad said:

Yes. The one below your thread on the first page of the forum right now is good.

My goodness you need some facts and your defence facts were nothing at all.  You can't just say you don't know who was driving.

"horizon parking rejected appeal" - is this one ?