Parking Charge Court Claim

coraljo1

Hello
  
Have received the Directions Questionnaire today.   Completion is quite straight forward I think, but just struggling to resist the temptation to produce the driver from Sweden as a witness (who was identified to UKPC back in March 2018)  which will involve travel from Sweden (and loss of earnings).   

Being sensible about the facts in this case, it should be unnecessary, but as UKPC are still pursuing this case after over 5 years and continuing to ignore the facts one has to wonder?  

Any sensible thoughts will be appreciated.

Coupon-mad

I think just do the DQ as normal but when you email DCBLegal their copy of your DQ, give them a prod to actually read the defence, stop wasting the court's time and discontinue because the driver's details were supplied in 2018.  Where driver's contact details are held, UKPC had no cause of action against the keeper (so says the POFA and the BPA CoP too).  Cease and desist and crawl back under your stone.

B789

UKPC/DCB Legal farce duo? You are aware that if you have robustly defended this Claim that it will never get to court. Have you read this thread yet:

DCB LEGAL RECORD OF PRIVATE PARKING COURT CLAIM DISCONTINUATIONS

coraljo1

The claim has been allocated to the small claims track with the hearing scheduled on 21st July.  This means the Witness bundle will need to be with the Court by the 7th July.  Did politely suggest that DCBL consider the facts and not waste the Courts time as suggested by Coupon-mad,  but it seems they still want to proceed.

As the Defendant was not the driver of the vehicle, or present at the location, is it reasonable to think that the only Witness Statement that could be made by the Defendant, is to refer to the Defence already submitted?

The driver lives in Sweden, and it is not possible for him to attend the Court.  It is possible that we could ask him to send a letter/witness statement by email confirming that he was the driver.   Would this be acceptable?

The disabled passenger on that date could possibly attend the Court (has progressive MS and visual imparement) but would not be able to produce a blue badge valid in December 2017, although can provide a current valid blue badge.  Would that be advisable?  

As for documents obviously all the correspondence with UKPC from 2018 giving the facts of the case, but is there any purpose or value in including all the collection agency letters (all of whom received a copy of the correspondence with UKPC transferring liability including DCBL)?  

Coupon-mad

As the Defendant was not the driver of the vehicle, or present at the location, is it reasonable to think that the only Witness Statement that could be made by the Defendant, is to refer to the Defence already submitted?

No, the D needs a thorough WS and needs to refer to Schedule 4 of the POFA to show the Judge that it's not legally possible for a parking firm to pursue a registered keeper when the driver's name and address was provided 'before legal action commenced' (you will have to evidence that this was communicated to the Claimant or their agents).

DO NOT EXPECT A JUDGE TO KNOW THIS NICHE AREA OF LAW.  YOU MUST BE THE TEACHER!

This must be an Exhibit too - prove it:

"The driver of the car was visiting over the xmas period. We had added him to our car insurance for 1 month."

I think I would also append the other two WS (driver in Sweden, and the disabled passenger) and ideally have the latter person attend with the keeper...

...if DCBLegal don't discontinue.  I think they will!  But you must file & serve all this and your evidence, by next week!

Expect a phone call, text or desperate emails from DCBLegal trying to persuade you to settle.  OBVIOUSLY IGNORE THAT. They'll discontinue.

coraljo1

Does anyone know where I can find a link for the transcript of Excel v Greenwood. Have searched for it and find reference to it but not the actual court  case even when search with case number.  Could do with some sort of reference for Court bundle.

Coupon-mad

There isn't one.  He didn't obtain one.

coraljo1

I see you're burning the midnight oil again.
Thanks for that. I'll still reference it in the Witness Statement. It's very relevant to the case I think.  

coraljo1

Help please.  Almost have witness statement done but would appreciate a review if that's possible before completion.  Uploading it in bite size chunks because I remember having a problem previously. 

WITNESS STATEMENT

 

1. I am the defendant against whom this claim is made. I have very little legal knowledge regarding court proceedings and no legal training. The defence and witness statement have been created from my own research, so please accept my apologies for anything which does not look as the Court might expect. The facts below are true to the best of my belief and knowledge.

 

  In my statement I shall refer to exhibits within the evidence supplied with this statement.

  My defence is repeated, and I will say as follows:

 

2. I deny any liability in respect of the claim. Whilst I admit to being the registered keeper of this vehicle in December 2017, I deny being the driver on the date of the alleged parking infringement and did not drive the vehicle anywhere at any time on 26th December 2017. I could therefore not have entered into any parking contract with UK Parking Control Limited.

 

3. I had loaned the vehicle to visitors over the Christmas and New Year period. The driver had been added to the vehicle insurance for the period of 22 December 2017 until 6th January 2018. A copy of the certificate is included in evidence.

 

4. I received the Claimants Notice to Keeper on 28th January 2018 claiming a charge of £100.00, I replied to them on 4th February 2018,and advised them that I was not the driver, and that one of the passengers in the vehicle on that day has Progressive Multiple Sclerosis and is disabled with that condition. That is why the driver had parked in a disabled bay.(copy included in evidence)

 

5. On 27th February 2018 I received a further letter from the Claimant rejecting what they refered to as my “appeal”, and demanding payment of a charge of £60.00 with the threat to increase it to £100.00 if I were to make a POPLA appeal. I can honestly say this left me somewhat confused having never had experience of the parking charges companies before.

 

6. The Claimant took no account of the fact that I was not the driver, and that the vehicle had been parked in a disabled bay with justifiable cause, and that they were in breach of the Equality Act 2010.

 

7. Under the Equality Act 2010, a disabled person has 'Protected Characteristics' which extends to them the unequivocal right to use any 'reasonable adjustment' provided by any landholder/client/operator when visiting a customer-facing environment, including car parks. 

 

8. In short, the Act says that protected people and their carers can legally use any disability provision applicable to them, and in the case of a disabled bay this would be with or without a Blue Badge (the Act has nothing to say about permits and badges because the legal right is established by need). 

 

 

9. I wrote to the Claimant again on 23rd March once I’d done my own research. The drivers details were supplied to the Claimant in that letter(he has moved address since 2017) (copy included)

 

 

10. In that letter I also referenced to the Claimant Excel v Greenwood Case Number 3QT60496 4/10/2013).

 

  ” I refer you to Excel v Greenwood Case Number 3QT60496 (4/10/2013), where a driver with MS (the same condition...) forgot to display his Blue Badge due to forgetfulness being a feature of his condition. The Judge threw the case out because Excel had a duty to make a reasonable adjustment as soon as they knew about his condition, and had no lawful excuse to harass the disabled person by continuing to demand money. Excel could not legally offer any contract to make a disabled bay available to a person with protected characteristics at a price, given the facts of his MS and the fact they already knew about it from his appeal (as in this case).”

 

  Keeper Liability

11. Implying that a keeper could be ‘assumed’ liable/responsible for the actions of a driver was identified by the DVLA as a ‘signiifiicant breach’ of the Trade Body Code Of Practice. It is contended that this is exactly what the claimants are now doing in this vexatious and wholly unreasonable claim.

 

  In Excel Parking Services Ltd v Mr Lamoureux, claim number C3DP56Q5 at Skipton on 17/11/2016 the Judge made it clear that without proof of the drivers identity (the burden of proof resting with the Claimant) and without invoking Keeper Liability under the POFA, there can be no claim against the Keeper.

 

  This is also confirmed by wording from barrister and parking law expert, Henry Greenslade, the erstwhile 'Parking on Private Land Appeals' (POPLA) Lead Adjudicator, on ‘Understanding Keeper Liability’ where he stated that there is no lawful presumption that a car’s keeper was the driver. This is confirmed in the POPLA Annual Report 2015.

 

12. By processing my personal data that it was never entitled to have, to demand monies it was never entitled to seek, for an unconscionable five years after receiving and ignoring my appeals, the Claimant stands in breach of their statutory duty under the Data Protection Act 1998 ('the 1998 Act') now repealed, and the Data Protection Act 2018.  The Claimants were thereby under a statutory duty to process my data only in strict accordance with a) the Data Protection Principles as set out in the 1998 Act Schedule 1, in particular Data Protection Principles 1, 2 and 5; and b) the GDPR Articles 5 (1)(a) and (b) and 6 (1)(f)).  

coraljo1

13. Should the Claimant attempt to claim five years interest, the court is urged to disallow that possibility entirely, since the delay in proceeding to court in this instance is the Claimant's alone. Old, unclaimed 'parking charges' are now being relentlessly and suddenly resurrected by this Claimant using DCB Legal to file scattergun copy & paste 'robo-claims'

14. This Claimant continues to pursue a disproportionate fixed sum (routinely added per PCN) despite knowing that this is now likely to be confirmed as banned by the Government this year. It is denied that the purported 'damages' or 'debt fee' sought was incurred or is recoverable. 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'.

  15. This finding is underpinned by the Government, who stated in 2022 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

       Whilst the new Code is temporarily stalled for a final Impact Assessment, it is anticipated that adding false costs/damages or 'fees' to enhance a parking charge claim is likely to remain banned. In a section called 'Escalation of costs' the (stalled but incoming in 2023) 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." 

 

  Pofa and CRA breaches

16. 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, even in cases where a firm may have complied with other POFA requirements (adequate signage, Notice to Keeper wording/dates, and a properly communicated 'relevant contract/relevant obligation'). If seeking keeper/hirer liability - unclear from the POC - the Claimant is put to strict proof of full compliance and liability transferred. 

17. Claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3), the Government guidance on the Consumer Rights Act 2015 ('CRA'). The CRA introduced new requirements for 'prominence' of both contract terms and 'consumer notices'. In a parking context, this includes signage and all notices, letters and other communications intended to be read by the consumer.

  Lack of standing or landowner authority, and lack of ADR

 18. DVLA data is only supplied to pursue parking charges 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 from the landowner to issue charges in this place in their own name. The Claimant is put to strict proof that they have standing to make contracts with drivers and litigate in their own name

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

  (a) at the very least, for standard witness costs for attendance at Court, pursuant to CPR 27.14,

  and

  (b) for a finding of unreasonable conduct by this Claimant, seeking costs pursuant to CPR 46.5. 

  Attention is drawn specifically to the (often-seen from this industry) 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))."