DCBL parking charge UKPCL county court claim received

KeithP

Your paragraph 2 states that the Defendant was the driver, but in paragraph 3 you say...
The identity of the driver at the material time is unknown to the defendant. The Defendant was not the only insured driver of the vehicle in question and is unable to recall who was driving on those unremarkable days nearly six years ago.

This sentence isn't needed because all that information is on the Claim Form...
The Defendant was issued with a Claim Form by DCB Legal acting on behalf of the Claimant UK Parking Control Limited for a Total amount of £381.86 (inclusive of a £50 Court Fee & £50 Legal representative's costs).

And I am not sure what message the next sentence is trying to get across...
Through research the Defendant has come to understand the PCN(s) relates to a PCN(s) that was issued against the Defendant’s vehicle Y*** **K, nearly six years ago on 14/04/2017 and 03/06/2017.

From the last sentence... why should the court be interested in the fact that the Defendant didn't visit the vehicle's registered address for seven months?

dcblhater

Can any one help with the defence of the following: they have provided a statement to court pretty much rebutting everything in the standard defence template - any help would be very much appreciated - i know its a long read! Sorry

IN THE COUNTY COURT
BETWEEN: -
 
On behalf of the Claimant
 
CLAIM NO:
 
UK PARKING CONTROL LIMITED
CLAIMANT
 
DEFENDANT
 
THE FIRST WITNESS STATEMENT OF JOEL LITTLE
 
I, Joel ......, of Union House, I I I New Union Street, Coventry, CVI 2NT9 state as follows: -

1.    I am an employee, employed by UK Parking Control Limited ("my Company"). I am duly authorised to make this Statement on my Company's behalf.

2.    I make this Statement in support of the Claimant's Claim and in response to the Defence.

3.    The facts and matters set out in this statement are within my own knowledge unless I state otherwise. I believe them to be frue. Where I refer to information supplied by others, the source is identified.

Facts and matters derived from other sources are time to the best of my knowledge and belief.

Parties
4.    My Company provides private car park management services to private landowners, to manage the way motorists are permitted to park on their private land. My Company does so by issuing parking charge notices to any vehicle parked in a way the landowner does not permit.

5.    I refer to the recent decision in One Parking Solution Ltd v Wilshaw [2021] (Wilshaw) whereby it was found that it is not necessary for the Claimant to prove the Landowner's authority to constitute a valid cause of action to recover the PCN, what is required is proof that there is a binding Contract between the Claimant and the Defendant. Further, it was found in Wilshaw that the Contract between the Claimant and the Freeholder (Landowner) does not affect the validity of any Contrast between the Claimant and the Defendant.

6.    The Defendant is the recipient of parking charge notices ("PCNs") issued by my Company. The details are set out herein.
Accreditation

7.    At all material times, my Company was accredited by the Accredited Trade Association ("ATA") known as the British Parking Association ("BPA"). The BPA has a Code of Practice ("Code") that its members are expected to adhere to, or otherwise face potential sanctions. My Company operates in accordance with the Code.

8.    In order to obtain Registered Keeper details from the Driver and Vehicle Licensing Agency ("DVLA") my Company must be a member of an ATA. It is therefore essential for my Company to  comply with the Code.
Background

9.    My Company issued PCNs ("Charges") to the Vehicle ("Vehicle") with details listed below:
PCN No.    Location
("Land")        Issue Date    Reason for Issue
               04/2017    Parked In A Disabled Person's Space Without Clearly Displaying a Valid Disabled Person's Badge.
               


10.    At the time of issue, my Company was instructed by the owner of the Land ("Landowner") to manage parking on the Land. A copy of my Company's agreement with the Landowner ("Landowner Agreement") is exhibited to this Statement at "EXHIBIT 1".

11.    I confirm that the term of the Landowner Agreement has been extended by mutual consent of the parties.
Contract

12.    At the time of issue, my Company was prominently displaying signs on the Land setting out the Terms of parking. A copy of the content of the signs is exhibited to this Statement at "EXHIBIT 2". The signs formed the basis of the Contract with the driver ("Contract").

13.    The following was a term of the Contract: 
"Disabled badge holders only in disabled bays. Valid disabled badge must be clearly displayed at all times

14, In parking the Vehicle on the Land, the driver accepted the Contract, with the license to park being  the Consideration. It is evident from the photographic evidence exhibited to this Statement at "EXHIBIT 3" that the driver failed to adhere to the terms of the Contract by parking as they did, thus breaching the Contract.

15.    The Contract provides that a charge is payable by the driver upon breach, with payment falling due within 28 days.

16.    A plan of the Land ("Plan") showing the land managed is exhibited to this Statement at "EXHIBIT 4".
of 49.
 
17.    Copies of the Notices to Keeper are exhibited to this Witness Statement at "EXHIBIT 5".
Defendant's Liabilitv

18.    Pursuant to the Contract; the Driver was liable to pay the Charge within 28 days of issue.

19.    To make the driver aware, a PCN was affixed to the Vehicle in accordance with Section 7 of Schedule 4 of the Protection of Freedoms Act 2012 ("POFA"). Exhibited to this Statement at "EXHIBIT 6" is a copy of what was affixed.

20.    The driver failed to make payment and as such my Company applied to the DVLA for the details of the Registered Keeper and sent Notice to the Keeper compliant with Section 8 of POFA (see "EXHIBIT Paragraph 1 of POFA states that the Registered Keeper is presumed to be the 'Keeper' unless proven othenvise. Paragraph 4 of POFA gives my Company the right to recover from the 'Keeper'.

21.    The Defendant does not dispute being the Driver or Keeper of the Vehicle. My Company reasonably believes that the Defendant was the Driver because they would othe:wise have nominated a driver, and therefore the Defendant is pursued on that basis. My Company has complied with POFA and can pursue the Defendant as Keeper in the alternative.
Defence

22.    The Defendant was afforded a 28-day period in which they could appeal, and I am insüucted they did not. The potential next step was clearly communicated to the Defendant in notices. It is respectfully submitted that if the Defendant genuinely believed the Charges had been issued incorrectly, they would have engaged with the appeals process further.

23.    If there was any doubt regarding their liability, the Defendant has had ample time to challenge the Charges or request evidence in support. Despite correspondence being sent to the Defendant by a debt collection agency and a Letter of Claim being issued in accordance with the Pre-Action Protocol for Debt Claims, no challenges have previously been raised.

24.    Notwithstanding the above, I respond to the issues raised in the Defence as follows: -

i.    The Defendant refers to the Claim as an 'unexpected shock'. For clarity, the Defendant has been sent numerous correspondence throughout proceedings making them aware that a Claim would be issued;

ii.    The Defendant refers to keeper liability. For clarity, my Company applied to the DVLA for the details of the Registered Keeper of the Vehicle. The Defendant's name and address were provided. My Company therefore has the right to recover the Parking Charge from the Defendant as the Keeper;

iii.    The Defendant denies receiving any correspondence. Notices were sent to the address the DVLA confirmed was that of the Registered Keeper. It is the Defendant's responsibility and legal obligation as the Registered Keeper of the Vehicle to ensure that the DVLA are kept up to date at all times. Copies of the Notices can be seen at "EXHIBIT 5". The Notices afforded the Defendant the opportunity to appeal the Charge or nominate an alternative driver, which they failed to do. It is respectfully submitted that the Defendant was put on notice of the Charge and failed to respond or pay;

iv.    Further to the above, DCB Legal also sent a 'Letter of Claim' compliant with the Pre-Action Protocol for Debt Claims to the same address provided by the DVLA. A copy can be seen at "EXHIBIT 7". The 'Letter of Claim' afforded the Defendant 30 days to either dispute the matter or make payment, As no response was received, a Claim was issued. If the Defendant believed they were wrongfully pursued, they would have made a greater effort to communicate this to my Company;

v.    The Defendant alleges that there is no contract between them and my Company. It is my Company's position that there is and the details of which are set out above. Parking Eye -vBeavis established that this forn of contract is perfectly workable;

vi.    The signs clearly outlined the Terms of parking, and the Defendant was on notice of the Terms upon entering the Land. By parking on the Land, the Defendant accepted the Terms. These Terms state that if breached, the Defendant agrees to pay a Parking Charge of El 00.00. The Vehicle remained on the Land without clearly displaying a valid blue badge, therefore, the Defendant breach the Terms and agreed to pay a Parking Charge;

vii.    The Defendant refers to the Amount Claimed as a 'hugely disproportionate fixed sum'. This is not accepted, and such is addressed within the 'Amount Claimed' sub-heading;

viii.    I am advised the Defendant refers to the new Parking 'Code of Practice'. It is the Claimant's position they have complied with all current legislation and regulations. It would be unreasonable for the Defendant to expect the Defendant to comply with legislation not in place and currently under review. With respect, I would ask the Defendant would they prefer the Claimant not comply with the current legislation?

ix.    Furthermore, it is the Claimant's position the new Parking 'Code of Practice' cannot overrule current legislation or case law;

x.    The Defendant states that the Claimant has not incurred 'any additional costs'. For clarity, this is not the Claimant's usual course of business, and the Defendant was made aware of such within the signage as outlined below under the sub-heading 'Amount Claimed' ;

xi.    In respect of the 'terms', as per Schedule 2 of the Consumer Right Act 2015, specifically referred to: -
Tenn 6 It is submitted the sum is not disproportionate for the reasons set out within the 'amount claimed' section of this Statement, nor is it 'compensation'.

Term 10 As is evident from the Plan, signs were displayed throughout the Land. The Driver was aware of the fact that parking was managed from the point of entering the

Land and could leave if they did not agree to the Terms. It is not unreasonable for the Driver to need to potentially walk no more than 10 meters to fully familiarise themselves with the full Terms. This would have all happened before the conclusion of the contract.

Term 14 The price is stated on the sign.

Term 18 — The fact the Driver was able to park means my Company fulfilled its obligations;

xii.    The recent successful appeal in Britannia Parking Group Ltd v Semark-Jullien [2020] EW Misc 12 (CC) (29 July 2020) found that the inclusion of the debt recovery charge in the claim does not fall foul of the decision of Parking Eye Ltd v Beavis [2015] UKSC 67, because that was not the point in discussion in that case. The appeal also concluded that the inclusion of such a charge in a claim of this type does not constitute an abuse of process that would allow for the entire claim to be struck out;

xiii.    The 'Genuine pre-estimate of loss' argument was often advanced in parking ticket claims prior to Parking Eye -v- Beavis [2015]. This issue was settled in that case. My Company has a legitimate interest. Further, my Company is not seeking more than the original charge as the core debt, however my Company is now also seeking further costs;

xiv.    My Company's legitimate interest is to fulfil its obligations to the Landowner. Because there is a clear legitimate interest/commercial justification, the same as that established in ParkingEye -v- Beavis [2015], this case does not fall foul of the penalty rules established in that case The issue of 'loss' is further dealt with in the 'amount claimed' section below;

25. In view of the above, it is my Company's position that the Defendant breached the Contract as set out in this Statement and as such the Defendant is liable.
Amount Claimed
The PCN Amount

26.    The amount of the parking charge falls within the "between E50 to {100" bracket quoted at paragraph
1 1 1 ofParking Eye -v- Beavis [2015]. It is also in keeping with the guidelines given by the ATA: -
"Part 20.5 ofthe BPA COP states "We would not expect this amount to be more than EIOO. Ifthe charge is more than this, operators must be able tojustify the amount in advance "

27.    The amount charged is set at a rate that covers the operational costs of the parking management scheme and acts as a deterrent, as was found to be appropriate in Parking Eye -v- Beavis [20151.
Contractual Costs

28.    As payment was not made within the prescribed time, or indeed at all, the additional sum is claimed  as a contractual cost pursuant to the Contract which states: -
"Unpaid Parking Charges will be passed to our debt recovery agent at which point and additional Charge of{60 will apply

29.    As set out above, the PCN amount is intended to include the 'operational costs'. It is submitted that debt recovery action is not an operational cost and as such claiming the costs of doing so would not fall foul of the 2015 decision.

30.    The sum added is a nominal contribution to the actual costs incurred by my Company as a result of the Defendant's non-payment and capped at the amount permitted under the ATA Code. My Company's employees spent time and resource attempting to recover the debt, as well as instructing extemal debt recovery providers* all at a cost to the Company. This is not my Company's usual business and, but for the Defendant's refusal to pay, would not have been necessary.

31.    When consider the recoverability of this element of the claim, I respectfully draw the Court's attention to paragraph 45 of Chaplair Limited v Kumari [2015] EWCA Civ 798 whereby, when considering contractual indemnity costs, it was stated: -
"There is nothing ... which enable[s] the rules to exclude or override that contractual entitlement and I therefore agree with Arden LJ that the judge had the jurisdiction to assess the costs free from any restraints imposed by CPR 27.14. "
CPR Costs

32.    My Company claims the claim issue fee, fixed costs pursuant to CPR 45, and the hearing fee in any event.

33.    In the alternative to the contractual costs set out above, my Company reserves the right to claim additional costs pursuant to CPR 27.14(2)(g). This claim was issued as a last resort, and given the robust appeals procedure in place, should not have been necessary. It is my Company's position that this is unreasonable behaviour, and it is respectfully requested that the Court considers whether they conclude the same.

Conclusion

34.    It is my respectful submission that the Defence is entirely without merit and as such it is requested that the Defence is struck out and Judgment awarded in favour of my Company, payable forthwith.

35.    I may not be able to attend the forthcoming hearing. Should this bc so, an advocate will attend on my behalf. I ask that the Court accepts this as written notice pursuant to CPR 27.9(1 ). If I am unable to attend, please decide the claim in my absence, considering the advocate's submissions, this Statement, and any other evidence filed. This paragraph demonstrates my compliance with CPR
 
36, In the event an advocate does attend the hearing, I request their fee be added to the amount sought.

STATEMENT OF TRUTH
I believe that the facts stated in this Witness Statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Signed     
........on behalf ofthe Claimant
Dated 06/2023
DCB Legal Limited Direct House
Greenwood Drive Manor Park
Runcom
WAI IUG
 

KeithP

You appear not to have noticed my previous attempt to help you so I'll leave it to someone else this time.

dcblhater

KeithP said:

You appear not to have noticed my previous attempt to help you so I'll leave it to someone else this time.

ACTUAL DEFENCE STATEMENT

 

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 was the registered keeper of the vehicle in question but liability is denied. The identity of the driver at the material time is unknown to the defendant. The Defendant was not the only insured driver of the vehicle in question and is unable to recall who was driving on those unremarkable days nearly six years ago.

 

3.  Through research the Defendant has come to understand the PCN(s) relates to a PCN(s) that was issued against the Defendant’s vehicle YH13 ORK, nearly six years ago on 14/04/2017 and 03/06/2017.

The defendant can confirm that no Notice to Keeper or PCN reminders were received by the defendant who was not at the vehicle’s registered address between 03/2017 and 10/2017 and as such the DCBL letter of claim came as a complete shock when received in December 2022 almost 6 years later.

The defendant responded to the claimants solicitors within the required time frame but did not receive a reply until after the date a county court claim had been issued thus giving no recourse to resolve the matter out of court.

 

4. 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. 

B789

Is that all you entered for your defence? Four numbered paragraphs?

dcblhater

B789 said:

Is that all you entered for your defence? Four numbered paragraphs?

No that was followed by the template defence

Coupon-mad

OK.  Good!

We don't need to read UKPC's WS because it's a template - seen in every case where they bother to do a WS.  Means nothing, fails to rebut anything! 

What we really need to see is your WS bundle. 

You know your deadline to file & serve that because it was on your Hearing Order second page (and the NEWBIES thread tells everyone about this vital stage and that you cannot rely on a defence alone). The fact that UKPC has sent theirs, suggests your WS & evidence deadline is about now?

dcblhater

Coupon-mad said:

OK.  Good!

We don't need to read UKPC's WS because it's a template - seen in every case where they bother to do a WS.  Means nothing, fails to rebut anything! 

What we really need to see is your WS bundle. 

You know your deadline to file & serve that because it was on your Hearing Order second page (and the NEWBIES thread tells everyone about this vital stage and that you cannot rely on a defence alone). The fact that UKPC has sent theirs, suggests your WS & evidence deadline is about now?

Hi I only submitted the defence statement within the required date of the court - I have not submitted anything else since then and the hearing is next tuesday - the matter has been passed from the business centre to a local court who then decided to transfer it to the county court in my nearest city - they then listed it on a date I was on holiday (having been previously informed) and have now brought it forward a week - no request for another witness statement has been received by me in the 'notice of trial date'

B789

Did you not follow the advice that you also need to do a WS which normally has to be submitted to the court and the claimant no less than 14 days before the hearing?

Probably too late but get one put together immediately. Shouldn't take you more than an hour and get it sent to the other parties and hope that it is accepted, even though the claimant will point out to the court that you have not followed instructions and you don't lose and get costs against you for unreasonable behaviour.

FUBAR

KeithP

Look again at your Notice of Allocation. The Notice that gives the hearing date.

Is there not a paragraph something like:

Each party must deliver to every other party and to the court office copies of all documents on which he intends to rely at the hearing no later than [ . . . ] [14 days before the hearing].

Might be on the back.

Those 'documents on which you intend to rely' are your Witness Statement and evidence.