DCB Legal Claim form - private parking ticket issued at main residence

schmuel

Hello,

I have been issued with a CCBC claim form from DCB Legal, for a ticket received on the windscreen while parked on my estate in June 2019. I am a leaseholder and have share of freehold on the estate, and was resident at the time the ticket was issued. 

The issue date is 16 Nov 22 and I have done the MCOL acknowledgment of service, so I believe I have until 19 Dec to submit my defence which I have started working on and will post in due course. I have some initial questions however about some of the terms of my lease, and whether others believe they may afford me primacy of contract to park on the estate.

There are two parking areas on the estate; one at the front of the building which has access open to the street and one in the basement which has key fob access. The building managers introduced a permit scheme for the area at the front of the building (but not the area in the basement) and appointed UK Parking Control Ltd (the Claimant) to operate it. After a few months of non-operation (I believe due to a change in parking operator) the permit scheme resumed on 13 Jun 2019, and I received a ticket at around 4am that day.

I have been checking some of the terms of my lease and would welcome any advice on whether they offer any right to park for leaseholders, e.g.:

The Second Schedule
(Rights appurtenant to the Flat)
1.a... the right to pass and repass with or without vehicles over the roadways forming part of the estate

2. the right (in common as aforesaid) to use such facilities (if any) that may from time to time be designated by the Landlord for use by the tenants of the Block   

4. All rights of support and protection and other easements or quasi-easements and all rights and benefots of a similar nature now enjoyed or intended to be enjoyed by the Flat

5. The right in common with the Landlord and such lessees and occupiers of other flats in the Block as aforesaid and all other persons having the like right 
a) to pass and repass over and along the paths roads ways and grounds leading to and from the block and to use the common facilities (if any) available for use by the lessees of the Block in general                                                                         

Would be very grateful for any advice please, 

Sam

Mouse007

I think you are home and dry, I'm on a bottle of whisky at the moment - I'll be back when I'm sober in the morning. Tomorrow you will still be home and dry.

Said who?

http://parking-prankster.blogspot.com/2016/11/residential-parking.html

KeithP

schmuel said:

I have been issued with a CCBC claim form from DCB Legal...

The issue date is 16 Nov 22 and I have done the MCOL acknowledgment of service, so I believe I have until 19 Dec to submit my defence...

If you filed an Acknowledgment of Service sometime after 18th November and before 6th December, then you are right with your Defence filing deadline.

But there might be something useful here...

With a Claim Issue Date of 16th November, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 19th December 2022 to file your Defence.

That's nearly 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

Were you parked out the front where the pointless scheme had been inflicted on you all?   Or in the basement area that wasn't included in the little scheme?

Did you.vote for this and agree to this interference with your freehold and leasehold rights? Were you even asked?

Have the residents got UKPC kicked out yet?

You do NOT need any PPC infesting your car park and blighting the estate and adversely affecting property 'peaceful enjoyment' as well as property values.

schmuel

Thanks all for the speedy responses.

To respond to your initial points:

- I filed the Acknowledgment of Service on 29 Nov so I believe I have until 4pm on Monday 19 Dec to file my defence. I have already started adapting the template linked to in the newbies thread but wanted to see if anyone here was able to advise on the strength (or otherwise) of the relevant provisions in my lease before sharing a draft. 

- re where I was parked, yes it was out front where the scheme was in operation.

- building decisions are generally taken by a right-to-manage company made up of leaseholders, most of whom also have share of freehold. There was quite a bit of discussion about it at residents' meetings in the run-up to the introduction of the scheme and at the time a majority of leaseholders were in favour of it. UKPC are still operating there as far as I'm aware.


I've been digging through old emails from around the time the parking scheme was first being discussed, and have found a lease clause put forward by one of the RTM directors that he interprets as giving the Landlord the right to introduce a parking scheme. However, this clause doesn't appear in my lease... I have no idea why it doesn't. Here is the wording in the RTM director's lease:

Fifth schedule
(obligations of the leaseholder)

12: Without prejudice to the generality of clause 11 hereof to comply with all regulations which the landlord may from time to time make a publish in respect of the use of car parking spaces within the Estate

The fifth schedule in my lease (which is subtitled 'Tenant's Covenants' rather than 'obligations of the leaseholder') ends at Clause 11 which reads as follows:
11. To comply with all regulations which the Landlord may from time to time make and publish for the detailed administration of the Block and/or Estate or for maintaining the character and amenities thereof whether in relation to the flats and their occupation or to the Retained Parts and their communal use or to the Estate

Coupon-mad

Your case is the same as all other residential defences.

Your facts paragraphs 3, 4, 5 etc. (because you will need to add more than one para) will be based on the residential defence examples linked in the NEWBIES thread. I seem to recall one is written by bargepole and one written by Johnersh.  Both are legally qualified posters.

But use the Template Defence as your base because it has up to date info added and the new statement of truth.

 There was quite a bit of discussion about it at residents' meetings in the run-up to the introduction of the scheme and at the time a majority of leaseholders were in favour of it. UKPC are still operating there as far as I'm aware.

Wow...seriously did no-one realise that you residents would be the targets?

What on earth did everyone think a firm like UKPC would do except blight the location and attack residents' peace of mind?

That's what these firms do and UKPC are among the worst ex-clampers.  You don't want aggressive money-grabbing bullyboys near your cars.  Did no-one think to Google them?

https://www.bbc.co.uk/news/uk-england-35253759.amp

They've been banned twice by the DVLA in recent years.

Those who agreed to this aggressive attack on residents were like clueless turkeys voting for Christmas and it will continue until someone is bright enough to end the contract - and not replace them.

Residential car parks do not need a PPC.

If passers-by parking at the front was causing a bit of an issue, the RTM group needed to put in a couple of £50 rising parking posts or a barrier/gate.  Job done.

Far better than being held to ransom for daring to park at your own freehold or leasehold property, then dragged to court - and you won't be the only one.

Umkomaas

I thought I'd draw your attention to this fairly recent thread which you might have not yet seen. You must keep going through all the necessary court procedure phases, but the hope is that your case will follow the same pattern as all those detailed in the thread. 

https://forums.moneysavingexpert.com/discussion/6377263/dcb-legal-record-of-private-parking-court-claim-discontinuations/p1

Mouse007

Were you parked? or had you just stopped to load or unload before moving your car to the underground car park to park?

Your right to pass and repass includes the right to stop - don't call it parking

Read this

Jopson v Homeguard

Castle

schmuel said:

- building decisions are generally taken by a right-to-manage company made up of leaseholders, most of whom also have share of freehold. There was quite a bit of discussion about it at residents' meetings in the run-up to the introduction of the scheme and at the time a majority of leaseholders were in favour of it. UKPC are still operating there as far as I'm aware.

Unlike "Brexit", they will need not just a majority but at least 75% to vote in favour and less than 10% to oppose any variations; did they met these thresholds?

schmuel

Hi all, and thanks again for the comments, really helpful. I have attempted to incorporate your observations into my draft defence, which I'm sharing below. 

Again, really grateful for any comments or suggestions on where I've got to so far. It's adapted mostly from the Bargepole and Johnersh defences linked to in the newbies thread (thanks to those who pointed me in that direction). 

Thanks all,

Sam

ps - I've deleted all the template text from "POFA and CRA breaches" onwards as the post was too long for the forum rules, I will of course make sure to add this back in without amendment when I submit the actual defence.

IN THE COUNTY COURT

Claim No.:  J2XXXX

Between

UK Parking Control Limited

(Claimant) 

- and -  

Sam XXX

 (Defendant)

_________________

DEFENCE

 

1.     The parking charges referred to in this claim did not arise from any agreement of terms. The charge and the claim was an unexpected shock. 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 a breach of any prominent term and it is denied that this Claimant (understood to have a bare licence as managers) 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 Particulars.

The facts as known to the Defendant:

2.     It is admitted that the Defendant is the registered keeper of the vehicle in question. The vehicle was insured on the date in question with two named drivers permitted to use it.

3.     It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA")

4.     Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that: there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and, that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper. It is not admitted that the Claimant has complied with the relevant statutory requirements.

5.     To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

6.     The Particulars refer to the material location as 'XXXXX, XXXXX’.  The Defendant has, since mid-2005, held legal title under the terms of a lease, to Flat No. 3A at that location. At some point, the managing agents contracted with the Claimant company to enforce parking conditions at the estate.

7.     The ground-level parking area to the front of the building contains 12 unallocated parking spaces. It is this location where the Claimant or one of their agents affixed a “Parking Charge” notice to the vehicle in question on 13 June 2019. It is admitted that on this date the Defendant’s vehicle was stopped at this location for the purposes of loading the vehicle.

8.     Under the terms of the Defendant’s lease, a number of references are made to conditions of access of vehicles to the Estate for leaseholders.

a.     The Second Schedule, paragraph 1.(a), affords leaseholders the right from time to time to pass and repass with or without vehicles over the roadways forming part of the Estate.

b.     The Second Schedule, paragraph 2., affords leaseholders the right to use such facilities (if any) that may from time to time be designated by the Landlord for use by the tenants of the Block or of properties within the Estate.

c.     The Second Schedule, paragraph 5.(b), affords leaseholders the right in common with the Landlord and such lessees and occupiers of other flats in the Block as aforesaid and all other persons having the like right to pass and repass over and along the paths roads ways and grounds leading to and from the block and to use the common facilities (if any) available for use by the lessees of the Block in general.

9.     There are no terms within the lease requiring lessees to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same.

10.  The Defendant, at all material times, stopped their vehicle in accordance with the terms granted by the lease. The erection of the Claimant's signage, and the purported contractual terms conveyed therein, are incapable of binding the Defendant in any way, and their existence does not constitute a legally valid variation of the terms of the lease. Accordingly, the Defendant denies having breached any contractual terms whether express, implied, or by conduct.

11.  The Claimant, or Managing Agent, in order to establish a right to impose unilateral terms which vary the terms of the lease, must have such variation approved by at least 75% of the leaseholders, pursuant to s37 of the Landlord & Tenant Act 1987, and the Defendant is unaware of any such vote having been passed by the residents.

12.  Further and in the alternative, the signs refer to ‘No Unauthorised Parking/Terms of Parking Apply at All Times’, and suggest that by parking without authorisation, motorists are contractually agreeing to a parking charge of £100. This is clearly a nonsense, since if there is no authorisation, there is no offer, and therefore no contract. The Defendant's vehicle clearly was 'authorised' as per the lease and the Defendant relies on primacy of contract and avers that the Claimant's conduct in aggressive ticketing is in fact a matter of tortious interference, being a private nuisance to residents.

13.  In this case the Claimant has taken over the location and runs a business as if the site were a public car park, offering terms with £100 penalty on the same basis to residents, as is on offer to the general public and trespassers. However, residents are granted a right to park/rights of way and to peaceful enjoyment, and parking terms under a new and onerous 'permit/licence' cannot be re-offered as a contract by a third party. This interferes with the terms of leases and tenancy agreements, none of which is this parking firm a party to, and neither have they bothered to check for any rights or easements that their regime will interfere with (the Claimant is put to strict proof). This causes a substantial and unreasonable interference with the Defendant's land/property, or his/her use or enjoyment of that land/property.

14.  The Claimant, or their legal representatives, has added an additional sum of £108.92 to the original £100 parking charge, for which no explanation or justification has been provided. Schedule 4 of the Protection Of Freedoms Act, at 4(5), states that the maximum sum which can be recovered is that specified in the Notice to Keeper, which is £100 in this instance. It is submitted that this is an attempt at double recovery by the Claimant, which the Court should not uphold, even in the event that Judgment for Claimant is awarded.

15.  For all or any of the reasons stated above, the Court is invited to dismiss the Claim in its entirety, and to award the Defendant such costs as are allowable on the small claims track, pursuant to Civil Procedure Rule 27.14. Given that the claim is based on an alleged contractual parking charge of £100 - already significantly inflated and mostly representing profit, as was found in Beavis - but the amount claimed on the claim form is inexplicably £208.92, the Defendant avers that this inflation of the considered amount is a gross abuse of process.

16.  The facts in this defence come from the Defendant's own knowledge and honest belief.  To pre-empt the usual template responses from this serial litigator: the court process is outside of the Defendant's life experience and they cannot be criticised for adapting some pre-written wording from a reliable advice resource. The Claimant is urged not to patronise the Defendant with (ironically template) unfounded accusations of not understanding their defence. 

17.  With regard to template statements, the Defendant observes after researching other parking claims, that the Particulars of Claim ('POC') set out a cut-and-paste incoherent statement of case.  Prior to this - and in breach of the pre-action protocol for 'Debt' Claims - no copy of the contract (sign) accompanied any Letter of Claim.  The POC is sparse on facts about the allegation which makes it difficult to respond in depth at this time; however, the claim is unfair, objectionable, generic and inflated.  

18.  This Claimant continues to pursue a hugely disproportionate fixed sum (routinely added per PCN) despite knowing that this is now banned. It is denied that the quantum sought is recoverable (authorities: two well-known ParkingEye cases where modern penalty law rationale was applied).  Attention is drawn to paras 98, 100, 193, 198 of ParkingEye Ltd v Beavis [2015] UKSC67.  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 (sitting at the High Court; later ratified by the CoA) held in paras 419-428 that unspecified 'admin costs' inflating it to £135 'would appear to be penal'.

19.  This finding is underpinned by the Government, who have now stated that attempts to gild the lily by adding 'debt recovery costs' were 'extorting money'.  The Department for Levelling Up, Housing and Communities ('DLUHC') published in February 2022, a statutory Code of Practice, found here: https://www.gov.uk/government/publications/private-parking-code-of-practice

20.  Adding costs/damages/fees (however described) onto a parking charge is now banned. In a section called 'Escalation of costs' the incoming statutory Code of Practice says: "The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued." 

21.  The Code's Ministerial Foreword 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." 

22.  The DLUHC consulted for over two years and considered evidence from a wide range of stakeholders.  Almost a fifth of all respondents to the 2021 Technical Consultation called for false fees to be scrapped altogether; this despite the parking industry flooding both public consultations, some even masquerading as consumers. The DLUHC saw through this and in a published Response, they identified 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, seeking to inflate the sum of the parking charge, which in itself is already sufficiently enhanced.  

23.  This Claimant has not incurred any additional costs (not even for reminder letters) because the (already high) parking charge more than covers what the Supreme Court in Beavis called an automated letter-chain business model that generates a healthy profit.

24.  The driver did not agree to pay a parking charge, let alone unknown costs, which were not quantified in prominent text on signage. It comes too late when purported debt recovery fees are only quantified after the event. 

25.  Whilst the new Code and Act is not retrospective, it was enacted due to the failure of the self-serving BPA & IPC Codes of Practice.  The Minister is indisputably talking about existing (not future) cases when declaring that 'recovery' fees were 'designed to extort money'.  A clear steer for the Courts.

26.  This overrides mistakes made in the appeal cases that the parking industry try to rely upon (Britannia v Semark-Jullien, One Parking Solution v Wilshaw, Vehicle Control Services v Ward and Vehicle Control Services v Percy).  Far from being persuasive, regrettably these one-sided appeals were findings by Circuit Judges who appeared to be inexperienced in the nuances of private parking law and were led in one direction by Counsel for parking firms, and the litigant-in-person consumers lacked the wherewithal to appeal further.  In case this Claimant tries to rely upon those cases, the Defendant avers that significant errors were made.  Evidence was either overlooked (including inconspicuous signage in Wilshaw, where the Judge was also oblivious to the BPA Code of Practice, including rules for surveillance cameras and the DVLA KADOE requirement for landowner authority) or the Judge inexplicably sought out and quoted from the wrong Code altogether (Percy).  In Ward, a few seconds' emergency stop out of the control of the driver was unfairly aligned with the admitted contract in Beavis. Those learned Judges were not in possession of the same level of facts and evidence as the DLUHC, whose Code now clarifies all such matters.

Coupon-mad

UKPC normally do comply with the POFA.  So a lot of that added text (3, 4 and 5) is irrelevant - unless you've established this was a non-POFA NTK and you were not driving.

Is it true that you weren't driving?

You cannot 'deny' being the driver if you were.