DCB Legal Letter of Claim - UKPC

Coupon-mad

Coupon-mad said:

Stop.

I say you do this:

ON MONDAY, go to your local county court and file a printed/signed N244 to STAY THE WRIT AND SET ASIDE THE DEFAULT JUDGMENT (as I suggested) or you will have HCEOs knocking and wanting to seize your goods.

This is your priority and it costs peanuts (fee for an application to stay a writ is just £12 or £14) and can be done and paid for at your local court on Monday.

https://stopthebailiffs.uk/apply-to-stay-the-writ-and-set-aside-the-judgment.html

In your WS to support this application, state who you are and your postal address and that this witness statement supports an urgent application to prevent, stay or stop any Writ of Control relating to a claim that was acknowledged and for which a defence (attached) has been prepared and was ready to file in time.

State that you met all deadlines and have good prospects of defending the claim.

You need to give sufficient detail, i.e. state that you DID post your acknowledgement of service of the Claim Form on DATE, in an envelope sealed and with a first class stamp, posted at xxxxx Post Office to the CCBC at Northampton.

State that you are prepared to swear this on oath if required, but in any event, under the Interpretation Act 1978 the letter enclosing your 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.

Attach your signed & dated defence.

Ask your local court to ensure that any High Court Writ is immediately stayed and that the Defence be filed accordingly, taking into account the Overriding Objective by acting justly for a Defendant who has not missed any step and has shown good prospects of defending the claim they acknowledged in good faith.

(You could even phone Royal Mail and report the item missing.   This gives you an extra sentence to add to your WS to show what you've done to resolve all this promptly).  For this amount of money at risk, in your shoes I'd report the item missing to Royal Mail - Google how - because that makes your WS all the stronger and more compelling to the Judge reading it.

Did you do the above, with a WS word for word?

Did your local court refuse to do it & channelled you off to the CCBC who then wanted £275?  There is NO WAY you should have paid £275 for the CCBC losing the post.

All you needed was to stay the writ and get a Judge to look at it.  I didn't tell you to apply to the CCBC nor to waste £275.

preloved1416

I did call my local county court and ask they email me the application - they never did. I called the CCBC direct to question the default judgement and ask if they received my AOS, they said they did not and my only option would be to file N244. I asked multiple times what my options were and they repeated this was all I could do. Am I too late to also apply to stay the writ given my N244 has not been actioned - was made aware of a major delay.

Coupon-mad

Did you use my wording?

You are about to have bailiffs knocking this week or next.  This is why I spelt it out exactly what to do.

You never needed an application emailing.  I told you which form to use and what to put in the boxes and where to send it.  The form was downloadable online after Googling it.  You didn't need to ring anyone.

You were meant to spend £14 to URGENTLY stay a writ.  Not spend £275 on a slow application that you didn't check with us first and will take weeks/months to even list a hearing and doesn't stop the writ.

By that time the HCEOs will be on your doorstep.  Hopefully that won't be this weekend and on Monday morning you will have to replace that application with a new one with the right wording (AND THE WITNESS STATEMENT I ADVISED ALREADY) and get a refund and pay £14 instead. 

Tell the CCBC you were misadvised by the CCBC staff on the phone and were wrongly told to apply to set aside the CCJ instead of paying £14 to urgently STAY THE WRIT OF CONTROL, so you need them to reverse/bin that one and start again please.

Eek you have now wasted a whole week.  I am so concerned you are about to open the door to HCEOs one morning or find your car clamped.

preloved1416

Noted, will do exactly as the above. Can the stay the writ result in the judgement being cancelled? 

Coupon-mad

Yes it can, that's the point.  That was why I wrote you chapter and verse of what to put in your WS, and told you to apply at your local court in person.  So it would be done urgently and properly.

You were meant to urgently reverse all this and stop the bailiffs for fourteen quid.  I don't think my advice could have been clearer and the application form is the same one.

Move your car into a garage. Not round the corner.  Get it off the driveway or the road outside.  HCEOs will clamp it one morning at the crack of dawn THEN ring your doorbell.

You were meant to stop this a week ago...

preloved1416

I will phone the CCBC and say the following:
I called the CCBC on XX andwas misadvised by the CCBC staff on the phone and wrongly told to apply to set aside the CCJ at a cost of £275 instead of paying £14 to urgently STAY THE WRIT OF CONTROL, I need them to reverse/bin that one and start again please. (all calls are recorded so they will know I requested to know if I had any other option, since they did no receive my AOS) and I was told the £275 N244 was my only option. 

As part of the application I will: 
I will state my name and address..
The following witness statement supports an urgent application to prevent, stay or stop any Writ of Control relating to a claim that was acknowledged and for which a defence (attached) has been prepared and was ready to file in time.

I met all deadlines as set out in the claim and I know I have good prospects of defending the claim.

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.

(Attach your signed & dated defence) - I will (and will share this with you now I have a couple of days until Monday)

Please ensure / I request that any High Court Writ is immediately stayed and that the Defence be filed accordingly, taking into account the Overriding Objective by acting justly for a Defendant who has not missed any step and has shown good prospects of defending the claim they acknowledged in good faith.

preloved1416

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, but liability is denied. 

3.1. There have been multiple other similar claims filed by the Claimant to the defendant all relating to PCN's at the defendant's address. A full list of claims are as follows:

    a. Claim-XYZ

    b. Claim-XYZ-2 etc 

- Do I include here all PCNs from this specific claim, should I include all other PCN references from the more recent letter of claim I recieved?

3.2. It is my strong belief that the Claimant is purposefully abusing the court process to their own ends by submitting multiple claims for same circumstance PCN’s all of which they would have been aware. The defendant believes they do this to bombard any defendant with multiple claim forms to have to acknowledge service, submit defence statements, witness statements and prepare cases for, in the hope that defendants, who mostly have no knowledge of civil law, will give up or that claims will ‘slip through the net’.

3.3. Authorities to support the Defendant's position that the subsequent claims are all estopped are:

a. Arnold V National Westminster Bank PLC [1991] 3 ALL ER 41. The court noted that ‘....cause of action estoppel applies where a cause of action in a second action is identical to a cause of action in the first, the latter having been between the same parties, or their privies and involving the same subject matter’. This case involves the same Claimant and Defendant, The same vehicle, The same Car Park and the same manner in which the PCN was issued.

b. In Henderson v Henderson [1843]67 ER 313 The court noted the following…’when a matter becomes subject to litigation, i) the parties are required to advance their whole case, ii) the Court will not permit the same parties to reopen the same subject of litigation regarding matters which should have been advanced in the earlier litigation, but were not owing to negligence, inadvertence or error

3.4. By filing the first claim and failing to advance the whole case at that time, any cause of action was immediately extinguished for any other similar fact Parking Charges against the defendant. The courts may estop further claims beyond the first where the cause of action is substantially the same. 

4. 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.

5. 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”. 

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

7. 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. 

8. The claim has been issued via Money Claims Online and, as a result, is subject to a character limit for the 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 

9. The guidance for completing Money Claims Online confirms this and clearly states: "If you do not have enough space to explain your claim online and you need to serve extra, more detailed particulars on the defendant, tick the box that appears after the statement 'you may also send detailed particulars direct to the defendant.'" 

10. 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. 

11. 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. 

12. 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.  

13. 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.   

14.  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'. 

15. 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 

16. 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."  
 

17. 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."  

18. 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.   

19. 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. 

20. 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.  

21. 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. 

22. 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. 

POFA and CRA breaches 

23. 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.  24. 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. 

25. 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.  In the case of a 'PCN', this must have been served to the driver whilst the vehicle was stationary or, at sites remotely monitored by ANPR/CCTV, served to the keeper so that the motorist learns about it quickly. 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 dealing and good faith.  

 
 

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

26. 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 be determined on their own facts.  That 'unique' case met a commercial justification test, given the location and clear signs with the parking charge in the largest/boldest text.  Rather than causing other parking charges to be automatically justified, the Beavis case facts (in particular, the brief, conspicuous yellow & black warning signs) set a high bar that this Claimant has failed to reach. 

27. Without the Beavis case to support the claim and no alternative calculation of loss/damage, this claim must fail.  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 any 'concealed pitfalls or traps'. 

28.  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.  It was unsurprising that she did not see the sign, 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).   

29. 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."  

 
 

preloved1416

Lack of landowner authority evidence and lack of ADR 

30. 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 the Claimant has adhered to a defined enforcement boundary, grace period or exemptions (whatever the landowner's definitions were) nor that this Claimant has authority from the landowner to issue charges in this specific area.  The Claimant is put to strict proof of all of this, and that they have standing to make contracts with drivers and litigate in their own name, rather than merely acting as agents. 

31.  The Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR). The Appeals Annex in the new Code shows that genuine disputes such as this - even if the facts were narrowed later - would have seen 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 ADR was ever on offer. The rival Trade Bodies' time-limited and opaque 'appeals' services fail to properly consider facts or rules of law and would have rejected almost any dispute: e.g. the IAS upheld appeals in a woeful 4% of decided cases (IPC's 2020 Annual Report).   

 
 

Conclusion 
 

32. The claim is entirely without merit and the Claimant is urged to discontinue now, to avoid incurring costs and wasting the court's time and that of the Defendant.  

33. With the DLUHC's ban on the false 'costs' 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 the intimidating pre-action demands. 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. 
 

 

34. 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.  

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

Coupon-mad

That second half of defence is based on the version last month that said the added costs are now 'banned' (which they are not, yet).

I edited it the other week to say 'likely to be banned' and that the new DLUHC Code is only temporarily 'stalled' so go get that second half instead.

It's obviously in the Template Defence sticky.

- Do I include here all PCNs from this specific claim, should I include all other PCN references from the more recent letter of claim I recieved?

No.

Actual CCBC court claims ONLY and also state what stage each claim is at (how many claims were or are there?  I mean actual court claims ... NOT PCNs).

If this one was the only claim filed via MCOL so far, then you can't use that paragraph saying there's been 'more than one claim' of course.  Not in THIS defence.   Obviously you would if they file a second claim.

preloved1416

Thank you, will locate the second half! 

Only a letter of claim from DCB, nothing further so will remove that part (there are 2 but only 1 with CCBC). Thank you again.