DCB Legal Letter of Claim - UKPC

Boat_to_Bolivia

Coupon-mad said:

I don't think the OP should have no application in.

Apologies CM I misunderstood.

Ignore my post @preloved1416.

Coupon-mad

It's fine!  I was thinking if there is no Writ in play yet then having a CCJ set aside application in is far better than nothing.

But I think it's just a matter of time and DCB will be all over this.

preloved1416

Okay thank you, will leave the application as it is

preloved1416

I received a letter to say my application to set aside has been transferred to my local court, was still no writ last week will continue calling (should I now call my local court to stay the writ?)

preloved1416

I received a letter from my local court with details for a hearing of my application to set aside judgement in 3 weeks. I feel very unprepared is there anything I should do ahead of this date? Thanks in advance 

Coupon-mad

Re-read how it went for:

@Brokenchief (ONLY read his set aside thread)

@Jack5656

@parkingpains1

preloved1416

I have the following Witness Statement:

I am the Defendant against whom this claim is made. The facts stated below are true to the best of my belief and my account has been prepared based upon my own knowledge. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that the Defendant ever ‘agreed to pay within 28 days’, the Defendant denies all liability. The Defendant submitted a SAR to the Claimant that was never actioned and despite this, submitted an AOS to the court that was not acknowledged and/ or received. 

I make this Witness Statement in support of the application for an order that the judgment in this case to: 

1. Be set aside the Default Judgment dated 13/March/2023 as the Defendant submitted a SAR to the Claimant that was never actioned and submitted an AOS on 23/February/2023 that was never acknowledged and/ or received. 

1. Order for the Claimant to pay the Defendant £275 as reimbursement for the set aside fee. 

1. Order for the original claim to be dismissed 

  

1. SET ASIDE THE DEFAULT JUDGMENT 

1.1. I was the registered keeper of the vehicle at the time of the alleged offence. 

1.2. I understand that the Claimant obtained a Default Judgement against me as the Defendant on 13/March/2023. I am aware that the Claimant is UKPC Limited, and that the assumed claim is in respect of unpaid Parking Charge Notices from 22/02/2018, 25/02/2018, 02/03/2018, 10/03/2018, 11/03/2018 at xxx I contest this charge for the reasons outlined in Part 2 of this defence.  

1.3. Prior to this submission, I conducted my own research to the best of my ability. I would like to bring to the court’s attention that the Defendant isn’t a lawyer or solicitor and any research or work completed is done to the best of the Defendant’s ability. 

1.4. I received a Default Judgement on 16-March-2023 following a letter through the post, dated 13-March-2023 from the County Court Business Centre. As an AOS was submitted within the allotted time frame, I thus was not aware a Judgement could be made by default. 

1.5. Following this on the same day,16-March-2023, the Defendant immediately called the County Court Business Centre (by the time the Defendant was home from work to receive the letter and make the call, the phone line was closed). The Defendant called again at 8:30am on 17-March-2023 to obtain any relevant information regarding this Default Judgement. From here, the Defendant managed to confirm the validity of the claim. The Court also confirmed that this was a real Default Judgement and not a scam or a false one. I called to get a grasp of the situation and to understand how the default judgement was made despite the omission of SAR provided by the Claimant, and the submission of an AOS. The defence explained how the defendant never received a response to her SAR, severely limiting her ability to defend the claim. Also, to know what action I needed to take to ensure my credit file was not affected. They advised me to submit a N244 and include this information. 

1.6. On 17-March-2023, the defendant completed the N244 and started to write up her witness statement. 

1.7. The Defendant submits that by the virtue of the Claimant requesting and not receiving an SAR, this omission prevented the Defendant from being able to properly defend her claim. Despite this, an AOS was submitted, though not received, or acknowledged. The AOS was submitted using the physical form included in the Claim Form letter, as advised by the Claim Form, and sent via Royal Mail. If the Defendant had access to the evidence relating to the claim, she could have acted more efficiently to deal with such complaints and cancel charges. The Court suggested that Royal Mail strikes could be to blame for the AOS not reaching the Court files. 

1.8. On the basis provided above the Defendant would suggest that the Claimant did not fulfil their duty to provide sufficient evidence when bringing the claim. The court must set aside the claim. 

1.9. The Defendant believes that the Default Judgement against her was issued incorrectly and thus should be set aside. 

The Defendant have a real prospect of defending this claim because: - 

2. ORDER DISMISSING THE CLAIM 

2.1 On discovering this Default judgement and after promptly contacting the County Court Business Centre on the 17-march-2023 to find out details of the Default Judgement. The Defendant understands that the Claimant is a Parking Company which seeks to claim for ‘Parking Charge Notices’ which the Claimant believes are due as a result of an alleged breach of contract for parking by a motorist. 

2.4 If the Claimant has obtained details of the vehicle for which the Defendant is the Registered Keeper, and used those details to make a claim for a ‘Parking Charge Notice’, the Defendant thus dispute the claim in its entirety as she does not know the wording of the contract nor does She know the means by which the contract was alleged to come into force. 

2.6  The Defendant understands Parking Control Management Ltd to be a Private Parking Company that uses ‘Parking Attendants’ in order to issue ‘Parking Charge Notices’. Any Notice to Keeper served by the Claimant would have needed to comply with the requirements of Schedule 4 of the Protection of Freedoms Act 2012. This includes the requirement to issue the Notice to Keeper within 14 days of the alleged incident. If the Claimant has not complied with the requirements of the Act they cannot claim this charge against the Defendant as the Registered Keeper in any case and where said keeper is unable to identify the driver. 

2.8 Due to the length of time, the Defendant has little to no recollection of the day in question. It would not be reasonable to expect a registered keeper to be able to recall the potential driver(s) of the car after over 12 months later, in this case over 3 years later. In any case, there is no such obligation in law and this was confirmed in the POPLA Annual Report 2015 by parking expert barrister and Lead Adjudicator, Henry Greenslade, who also clarified the fact that registered keeper can only be held liable under the POFA Schedule 4 and not by presumption or any other legal argument. 

2.9 For the Claimant to have obliged the Defendant to provide the drivers details at the time of said breach the Claimant would be required to apply for a ‘Norwich Pharmacal Order’, the Defendant is not aware of any such order being made upon her. 

2.10 Furthermore, given the time delay of approximately more than 12 months from the alleged breach of contract, it is unreasonable to expect the Defendant to have a record of who was driving the vehicle at the time of the offence. 

2.11 The Defendant further submits that the Claimant’s claim is without merit due to substantial issues in law. This is for the following main reasons: 

2.11.1. Lack of Standing by Claimant: The Claimant is unlikely to be the landowner of the car parking street in question and will have no proprietary interest in it. This means that the Claimant, as a matter of law, will have no locus standi to litigate in their own name. Any consideration will have been provided by the landholder, and only they would have been able sue for any damages or trespass. 

2.11.2. No contract with the Claimant: Any contract must have offer, acceptance and consideration both ways. There would not have been consideration from the Claimant to the motorist; the fee for parking benefits the landowners, not the Claimant. Therefore, there is no consideration from the motorist to Civil Enforcement Ltd. 

2.12 On this basis the Defendant believes that the Claimant has not provided any reasonable cause of action and thus the claim should be dismissed in its entirety. 

2.13 Alternatively, if the Claimant disagrees with the above, the Defendant asks that the Claimant is required to file Particulars which comply with Practice Directions and include at least all of the following information: 

2.13.1. Whether the matter is being brought for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge 

2.13.2. A copy of any contract it is alleged was in place (e.g. copies of signage) 

2.13.3. How any contract was concluded (if by performance, then copies of signage maps in place at the time) 

2.13.4. Whether keeper liability is being claimed, and if so copies of any Notice to Driver / Notice to Keeper 

2.13.5. Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter 

2.13.6. If charges over and above the initial charge are being claimed, the basis on which this is being claimed 

2.13.7. If Interest charges are being claimed, the basis on which this is being claimed. 

2.13.8. Evidence how a parking charge which the BPA Code of Practice sets a ceiling for, of not more than £100, has escalated to a brazen attempt at triple 'recovery' reaching over £800 despite the POFA also stating that a keeper can only be pursued for the sum on the Notice to Keeper (double recovery not being allowed). 

2.13.9. Show evidence that they have complied with the POFA or alternatively, show evidence of the driver's identity, to prove that this is the right defendant. 

2.14. Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence. 

2.15. In order to make informed decisions and statements in my defence as keeper of a vehicle, I will require copies of all paperwork and pictures of all signs from the Claimant. 

2.18. On this basis I believe that the Claimant has not provided any reasonable cause of action and absent the above being produced in short order, the Defendant asks the court of its own volition to strike out this claim and to order the Claimant to refund the Defendant's costs for attending, namely the £275 Court fee in bringing this set aside case , despite not being shown to be liable for any parking charge at all. 

The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success. 

preloved1416

And Defence:

The facts as known to the Defendant: 

1. The parking charges referred to in this claim did not arise from any agreement of terms. The charge and the claim were 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 on the material date the Defendant was the registered keeper of the vehicle in question. 

3. The allegations of 'leaving the site' are allegations which the Defendant is having to guess due to the Particulars of Claim failing to plead any contractual breach detail at all). The fact is that the Defendant never left the location, let alone knew of any so-called parking terms affecting him as a staff member, nor knowingly breached any rule.  Contractual breach is denied. The Claimant is put to strict proof. 

4. The Particulars of Claim ('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”.  

5. The Defendant is unable, on the basis of the POC, to understand with certainty what case is being pursued.  

6. The POC are entirely inadequate, in that they fail to particularise (a) the contractual term(s) relied upon; (b) the specifics of any alleged breach of contract; and (c) how the purported and unspecified 'damages' arose and the breakdown of the exaggerated quantum.  

7.. The claim is subject to a Particulars of Claim section of the Claim Form.  The fact that generic wording appears to have been applied has obstructed any semblance of clarity.  The Defendant trusts that the court will agree that a claim pleaded in such generic terms lacks the required details and requires proper particularisation in a detailed document within 14 days, per 16PD.3  

8. No further particulars have been filed and to the Defendant's knowledge, no application asking the court service for more time to serve and/or relief from sanctions has been filed either.  

9. In view of it having been entirely within the Claimant's Solicitors' gift to properly plead the claim at the outset and the claim being for a sum, well within the small claims limit, such that the Defendant considers it disproportionate and at odds with the overriding objective (in the context of a failure by the Claimant to properly comply with rules and practice directions) for a Judge to throw the erring Claimant a lifeline by ordering further particulars (to which a further defence might be filed, followed by further referral to a Judge for directions and allocation) the court is respectfully invited to strike this claim out.  

10. 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.   

11. 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.    

12.  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'.  

13. 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 

14. 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."  

15. The Code's Ministerial Foreword is unequivocal about abusive existing cases such as this 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. The DLUHC consulted for over two years, considering 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.  Genuine consumer replies pointed out that successful debt recovery does not trigger court proceedings and the debt/robo-claim firms operate on a 'no win, no fee' basis, seeking to inflate these claims with 'costs/damages' in addition to the strictly capped legal fees the small claims track allows.   

17. This Claimant has not incurred any additional costs (not even for reminder letters) because the parking charge more than covers what the Supreme Court in Beavis called an 'automated letter-chain' business model that generates a healthy profit.  In Beavis, there were 4 or 5 letters including reminders.  The parking charge was held to cover that work. 

18. The driver did not agree to pay a parking charge, let alone these unknown costs, which were not quantified in prominent text on signage. 

19. 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 which it is hoped overrides mistakes made in a few appeal cases that the parking industry desperately rely upon (Britannia v Semark-Jullien, One Parking Solution v Wilshaw, Vehicle Control Services v Ward and Vehicle Control Services v Percy). 

20.  Far from being persuasive, regrettably these one-sided appeals saw Circuit Judges led in one direction by Counsel for parking firms, and the litigant-in-person consumers lacked the wherewithal to appeal. In case this Claimant tries to rely upon these, the Defendant avers that errors were made in every case.  Evidence was either overlooked (including signage discrepancies in Wilshaw, where the Judge was also oblivious to the BPA Code of Practice 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 parking contract in Beavis. Those learned Judges were not in possession of the same level of information as the DLUHC, whose incoming statutory Code of Practice now clarifies such matters as a definition of 'parking' as well as consideration and grace periods and minor matters such as 'keying errors' or 'fluttering tickets/permits' where a PCN should not have been issued at all, or should have been cancelled in the pre-action dispute phase. 

 

POFA and CRA breaches 

21. 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.  

22. 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. 

23. Section 71 creates a duty upon courts to consider the test of fairness, including (but not limited to) whether all terms/notices were unambiguously and conspicuously brought to the attention of a consumer.  Signage must be prominent, plentiful, well placed and lit, and all terms unambiguous and obligations clear. The Defendant avers that the CRA has been breached due to unfair/unclear terms and notices, pursuant to s62 and paying due regard to examples 6, 10, 14 & 18 of Schedule 2 and the requirements for fair/open dealing and good faith.  

 

ParkingEye v Beavis is distinguished (lack of legitimate interest/prominence of terms) 

24. ParkingEye overcame the possibility of their £85 charge being dismissed as punitive, however the Supreme Court clarified that ‘the penalty rule is plainly engaged’ in parking cases, which must each be determined on their own facts.  That 'unique' case met a commercial justification test, and took into account the prominent yellow/black uncluttered signs with £85 in the largest/boldest text.  Rather than causing other parking charges to be automatically justified, the Beavis case facts set a high bar that this Claimant has failed to reach. 

25. Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of a 'legitimate interest' in performance extending beyond the prospect of compensation flowing directly from the alleged breach.  The intention cannot be to punish a driver, nor to present them with hidden terms, unexpected/cumbersome obligations nor 'concealed pitfalls or traps'. 

26.  In the present case, the Claimant has fallen foul of those tests. The Claimant’s small signs have vague/hidden terms and a mix of small font, and are considered incapable of binding a driver.  Consequently, it remains the Defendant’s position that no contract to pay an onerous 'penalty' was seen or agreed.  Binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of a parking charge, include: 

(i) Spurling v Bradshaw [1956] 1 WLR 461 (‘red hand rule’) and 

(ii) Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ2, 

both leading authorities confirming that a clause cannot be incorporated after a contract has been concluded; and 

(ii) Vine v London Borough of Waltham Forest: CA 5 Apr 2000, where Ms Vine won because it was held that she had not seen the terms by which she would later be bound, due to "the absence of any notice on the wall opposite the parking space'' (NB: when parking operator Claimants cite Vine, they often mislead courts by quoting out of context, Roch LJ's words about the Respondent’s losing case, and not from the ratio).   

27. Fairness and clarity of terms and notices are paramount in the statutory Code and this is supported by the BPA & IPC Trade Bodies.  In November 2020's Parking Review, solicitor Will Hurley, CEO of the IPC, observed: "Any regulation or instruction either has clarity or it doesn’t. If it’s clear to one person but not another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive of all parties involved – it’s either fair or it isn’t. The introduction of a new ‘Code of Practice for Parking’ provides a wonderful opportunity to provide clarity and fairness for motorists and landowners alike."  

 

Lack of standing or landowner authority, and lack of ADR 

28. 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. 

29.  The Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR). The Appeals Annex in the new incoming statutory Code shows that genuine disputes such as this would see the charge cancelled, had a fair ADR existed.  Whether or not a person engaged with it, the Claimant's consumer blame culture and reliance upon the industry's own 'appeals service' should not sway the court into a belief that a fair appeal was ever on offer. The rival Trade Bodies' time-limited and opaque 'appeals' services fail to properly consider facts or rules of law and reject almost any dispute: e.g. the IAS upheld appeals in a woeful 4% of decided cases (IPC's 2020 Annual Report).   

 

preloved1416

Conclusion 

30. The claim is entirely without merit. The Defendant believes that it is in the public interest that claims like this should be struck out because knowingly enhanced parking claims like this one cause consumer harm on a grand scale. 

31. There is ample evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims.  For HMCTS to only disallow those costs in the tiny percentage of cases that reach hearings whilst other claims to continue to flood the courts unabated, is to fail hundreds of thousands of consumers who suffer CCJs or pay inflated amounts, in fear of intimidating pre-action threats. 

32. 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.  

33.  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))."    

 

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. 

I have today received the claimants witness statement including images of the car at the time- this is the first time I have seen these images. I also realised in the letters they first sent I was a student at university not living at the address they were sent too (my parents address) - does this matter?

I included both of the above in my application to set aside - 

Do I need to send both of these to the claimant and the court the hearing will be held at? 

Do I need a skeleton argument?

preloved1416

Sorry a couple more questions: (thank you in advance!)

I sent my N244 application, witness statement and defence to the court.
I have today received the claimants witness statement that has been filed with the court. 

Do I need to submit anything else to the court or the claimant? 

I will take copies of my defence and WS to the hearing, do I need anything else? 

(I did not include the below in my initial WS, can I add this anywhere:

I posted my AOS on XX, in an envelope sealed and with a first class stamp, posted at xxxxx Post Office to the CCBC at Northampton. I have since reported this letter missing to Royal Mail, claim no XX

I am prepared to swear this on oath if required, but in any event, under the Interpretation Act 1978 the letter enclosing my completed Acknowledgement of Service is deemed delivered two working days later.  There were no postal strikes at the time and no suggestion of a lack of normal service by Royal Mail.

The CCBC was telephoned on DATE and despite being 3 or 4 weeks behind on paperwork, the staff member was unable to find the letter in their piles of work.  This suggests they have either mislaid or misfiled it, or just not found it yet in the outstanding piles of papers, and this unfortunate oversight by the CCBC does not rebut the interpretation afforded on deemed delivery under the above Act.