DCB Legal / UKPC County Court Claim Received

patient_dream

fryster said:

Good Morning. On Friday I received a copy of DCB Legal's witness statement. Looks like they're willing to go all the way or scare me into submission. I'm about to complete my witness statement, please could I be pointed in the direction of the latest example of a good one to start with. I've taken some pictures of the signage myself, one thing I have noticed is that the maximum time they allow you to park for has now been increased from 2 hours to 3 hours. I don't know if that's of any relevance in helping me with my case as the driver would have been well within this revised limit. Part of their witness statement includes some pictures of the actual signage in the car park - in the pictures they have included it is impossible to read any of the smaller terms and conditions. Many thanks.

Yes, the scare tactics of DCBL, shiver shiver.

Get your own WS to them and the advice must be to DCBL IS TO SIT ON THE TOILET WHEN THEY READ IT.      We can all see the reason for that, don't want little accidents in the office ??

The ball is then in their court. Do they want a court spanking because the courts know all about UKPC signs as much as they know that DCBL is a serial court timewaster.
DCBL do NOT have a good CV to put in front of a judge

DISCONTINUE IS THE WORD DCBL LOVE TO USE

Coupon-mad

Yes include those photos.

If you (Defendant) were the driver then say so.  If it was not you then say that but DO NOT name the person; you don't have to.

Le_Kirk

Your witness statement should back up and support what you wrote in your defence.

fryster

I think I'm done with my draft witness statement. I used the Citizen_K example and just changed the bits unique to my case. Rather than pasting the whole thing, here are the bits I've changed:

09. Date and Time of the Incidents: Thursday, 23rd December 2021 and Friday, 24th December 2021. 

On the date of the alleged parking events, I was the registered keeper of the vehicle but was not the driver.  

10. Lack of Prominent Signage on Entrance to Car Park: As I wasn’t the driver of the vehicle on the dates in question, I revisited the car park to see the signage for myself. Upon turning right into the car park, I could see no visible signage upon entry. It was only on closer inspection after parking my vehicle and walking back to the entrance that I could see the sign referenced in point 12 of the Claimants witness statement. Point 12 of the Claimants witness statement states that ‘my company was prominently displaying signs on the Land setting out the Terms of parking’. This is not the case as this sign was hidden behind a much larger ‘Horizon Farnborough Entrance Sign’. It’s highly unlikely that any person turning right into the car park would see this sign given that they would be looking to the left to give way to oncoming traffic and then forwards when entering the car park. It should also be noted that this entrance sign now states a maximum of 3 hours stay. (See Exhibit 05). 

 

11. Lack of Prominent Signage Within the Car Park: Point 12 of the Claimants witness statement draws reference to “EXHIBIT 2” which includes images taken of parking signs within the car park where the text is illegible. Whilst revisiting the car park I also took photos of one of these signs from various distances and can confirm the signs are illegible as shown in the Claimants witness statement. Bearing in mind it was late December with shorter days, lower light levels and inclement weather, trying to decipher the small text on the signs would have been even harder. (See Exhibit 06). 

Coupon-mad

If you were not the driver, then the right word is visited not 'revisited'!

If you were not the driver, are you using VCS v Edward and Excel v Smith to challenge keeper liability? Was UKPC's NTK POFA compliant?

fryster

Coupon-mad said:

If you were not the driver, then the right word is visited not 'revisited'!

If you were not the driver, are you using VCS v Edward and Excel v Smith to challenge keeper liability? Was UKPC's NTK POFA compliant?

Good Morning.

I will change the wording as I wasn't the driver. I will include VCS v Edward and Excel v Smith. As far as I can tell the ticket was POFA compliant (was issued by post 14 days after alleged incident / states over max time / reduced from £100 to £40 if paid within 14 days).

Debszzzz2

fryster said:

 As far as I can tell the ticket was POFA compliant (was issued by post 14 days after alleged incident / states over max time / reduced from £100 to £40 if paid within 14 days).

You need to be more diligent with your inspection of the NtK. "Issued by post 14 days after..." is NOT compliant with anything. The NtK MUST be "deemed" to have been delivered within 14 days of the contravention. In other words, the date of issue of the NtK must allow for delivery two working days after issue/sent. If there are no weekend/bank holidays between the issue date and two days after that, then it has deemed delivered on the second day. If there are weekend or bank holidays within two days after the issue date, then you need to count the working days.

If day 14 after the contravention date, for example, is a Monday, the issue date cannot be later than the previous Wednesday in order to be deemed to have been delivered by day 14.

fryster

Debszzzz2 said:

fryster said:

 As far as I can tell the ticket was POFA compliant (was issued by post 14 days after alleged incident / states over max time / reduced from £100 to £40 if paid within 14 days).

You need to be more diligent with your inspection of the NtK. "Issued by post 14 days after..." is NOT compliant with anything. The NtK MUST be "deemed" to have been delivered within 14 days of the contravention. In other words, the date of issue of the NtK must allow for delivery two working days after issue/sent. If there are no weekend/bank holidays between the issue date and two days after that, then it has deemed delivered on the second day. If there are weekend or bank holidays within two days after the issue date, then you need to count the working days.

If day 14 after the contravention date, for example, is a Monday, the issue date cannot be later than the previous Wednesday in order to be deemed to have been delivered by day 14.

Was a clumsy post by me and not worded very well. Alleged incidents took place on 23rd and 24 December 2021. Both notice to keepers have a parking charge date of 30/12/2021. Both state the recorded duration was in excess of the maximum stay time of 2 Hours 0 Minutes. That's why I concluded that they were POFA compliant. 

I've spotted a mistake in their witness statement that claims that 'the Defendant appealed the charge admitting to being the Driver'. They've provided a copy of this in one of their exhibits, however this clearly shows that I appealed as the registered keeper. I will add this to my witness statement. 

fryster

Please could somebody have a look over my draft witness statement please

   UK Parking Control Ltd                                                                          (Claimant)

                                                                           V

   x                                                                               (Defendant)

 

Witness Statement of Defendant

1.      I am xxx, (xxx) and I am the defendant against whom this claim is made. The facts below are true to the best of my belief and my account has been prepared based upon my own knowledge.

 

2.      In my statement I shall refer to (Exhibits 1-11) within the evidence supplied with this statement, referring to page and reference numbers where appropriate. My defence is repeated and I will say as follows:

 

Preliminary matter: The claim should be struck out

3.      The Defendant draws to the attention of the court that there is now a persuasive Appeal judgment to support striking out the claim (in these exact circumstances of typically poorly pleaded private parking claims, and the extant PoC seen here are far worse than the one seen on Appeal).  The Defendant believes that dismissing this meritless claim is the correct course, with the Overriding Objective in mind.  Bulk litigators (legal firms) should know better than to make little or no attempt to comply with the Practice Direction.  By continuing to plead cases with generic auto-fill unspecific wording, private parking firms should not be surprised when courts strike out their claims based in the following persuasive authority.

 

4.      A recent persuasive appeal judgment in Civil Enforcement Limited v Chan (Ref. E7GM9W44) would indicate the POC fails to comply with Civil Procedure Rule 16.4 and Practice Direction Part 16.  On the 15th August 2023, in the cited case, HHJ Murch held that 'the particulars of the claim as filed and served did not set out the conduct which amounted to the breach in reliance upon which the claimant would be able to bring a claim for breach of contract'. The same is true in this case and in view of the Chan judgment, the Court should strike out the claim, using its powers pursuant to CPR 3.4 (See Exhibit 01).

 

5.      Similarly, at the Wakefield County Court on 8th September 2023, District Judge Robinson considered mirror image POC in claim K3GF9183 (Parallel Parking v anon) and struck the Claim out without a hearing. (See Exhibit 02).

 

6.      Likewise, in January 2023 (also without a hearing) District Judge Sprague, sitting at the County Court at Luton, struck out a similarly badly-pleaded parking claim with a full explanation of his reasoning. (See Exhibit 03).

 

7.      Furthermore, at Manchester District Judge McMurtrie and District Judge Ranson also struck out a claim (again without a hearing) on the grounds of POC’s lacking clarity, detail, and precision. As stated in the final image below, the Claimant’s solicitors confirmed they would not file an amended POC, demonstrating again the reliance of a number of firms on robo-letters and illegitimate practices. (See Exhibit 04).

 

8.      The Defendant believes the Claim should be struck out and should not have been accepted by the CNBC due to a represented parking firm Claimant knowingly breaching basic CPRs.  The specifics of this case lack clarity, as no explicit statement has been provided to indicate which specific term of the alleged contract was purportedly breached.

 

 

Facts and Sequence of events

9.      Date and Time of the Incident: Thursday, 23rd December and Friday, 24th December 2021. On the date of the alleged parking events, I was the registered keeper of the vehicle but not the driver.                                                                                                                                                  

10.   Lack of Prominent Signage on Entrance to Car Park: As I wasn’t the driver of the vehicle on the dates in question, I visited the car park to see the signage for myself. Upon turning right into the car park, I could see no visible signage upon entry. It was only on closer inspection after parking my vehicle and walking back to the entrance that I could see the sign referenced in point 12 of the Claimants witness statement. Point 12 of the Claimants witness statement states that ‘my company was prominently displaying signs on the Land setting out the Terms of parking’. This is not the case as this sign was hidden behind a much larger ‘Horizon Farnborough Entrance Sign’. It’s highly unlikely that any person turning right into the car park would see this sign given that they would be looking to the left to give way to oncoming traffic and then forwards when entering the car park. It should also be noted that this entrance sign now states a maximum of 3 hours stay. (See Exhibit 05).

 

11.   Lack of Prominent Signage Within the Car Park: Point 12 of the Claimants witness statement draws reference to “EXHIBIT 2” which includes images taken of parking signs within the car park where the text is illegible. Whilst visiting the car park I also took photos of one of these signs from various distances and can confirm the signs are illegible as shown in the Claimants witness statement. Bearing in mind it was late December with shorter days, lower light levels and inclement weather, trying to decipher the small text on the signs would have been even harder. (See Exhibit 06).                                                                      

 

12.  The Claimant has stated in Point 21 of their Witness Statement ‘The Defendant does not dispute being the Keeper of the Vehicle. My Company reasonably believes that the Defendant was the Driver, because they would otherwise 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’. As multiple individuals were authorised by me to use the vehicle at the time, and given the PCNs in question relate back to 2021, I am unable to nominate a driver given the length of time that has surpassed since the alleged contraventions.                       

 

13.  The Claimant has stated in Point 24.iii of their Witness Statement ‘In any event, the Defendant appealed the charge admitting to being the Driver. A copy of the same is exhibited to this statement at “EXHIBIT 6”.’ Exhibit 6 of the Claimants Witness Statement clearly shows appeals to both PCN’s stating ‘Relationship To Vehicle – Registered Keeper’.                                                                                                                       

14.  The Defendant does not recall being served with a compliant Notice to Keeper for these charges, that complied with the Protection of Freedoms Act ('POFA') 2012 wording prescribed in Schedule 4.  Outwith the POFA, parking firms cannot invoke 'keeper liability'. This legal point has already been tested on appeal (twice) in private parking cases and the transcripts will be adduced in evidence:

 

(i). In the case of Excel Parking Services Ltd v Anthony Smith at Manchester Court, on appeal re claim number C0DP9C4E, His Honour Judge Smith overturned an error by a District Judge and pointed out that, where the registered keeper was not shown to have been driving (or was not driving) such a Defendant cannot be held liable outwith the POFA.  Nor is there any merit in a twisted interpretation of the law of agency (if that was a remedy then the POFA Schedule 4 legislation would not have been needed at all).  HHJ Smith admonished Excel for attempting to rely on a bare assumption that the Defendant was driving or that the driver was acting 'on behalf of' the keeper, which was without merit. Excel could have used the POFA but dd not. Mr Smith's appeal was allowed and Excel's claim was dismissed (See Exhibit 07).

 

(ii). In April 2023, His Honour Judge Mark Gargan sitting at Teesside Combined Court (on appeal re claim H0KF6C9C) held in Vehicle Control Services Ltd v Ian Edward that a registered keeper cannot be assumed to have been driving. Nor could any adverse inference be drawn if a keeper is unable or unwilling (or indeed too late, post litigation) to nominate the driver, because the POFA does not invoke any such obligation.  HHJ Gargan concluded at 35.2 and 35.3. "my decision preserves and respects the important general freedom from being required to give information, absent a legal duty upon you to do so; and it is consistent with the appropriate probability analysis whereby simply because somebody is a registered keeper, it does not mean on the balance of probability they were driving on this occasion..." Mr Edward's appeal succeeded and the Claim was dismissed (See Exhibit 08).

 

           

Exaggerated Claim and 'market failure' currently examined by the Government

 

 

15.   The alleged 'core debt' from any parking charge cannot have exceeded £100 (the industry cap set out in the applicable Code of Practice at the time). I have seen no evidence that the added damages/fees are genuine.

 

16.   I say that fees were not paid out or incurred by this Claimant, who is to put strict proof of:

(i) the alleged breach, and

(ii)  a breakdown of how they arrived at the enhanced quantum claimed, including how interest has been calculated, which appears to have been applied improperly on the entire inflated sum, as if that figure was immediately overdue on the day of an alleged parking event.

17.   This Claimant routinely pursues a disproportionate additional fixed sum (inexplicably added per PCN) despite knowing that the will of Parliament is to ban or substantially reduce the disproportionate ‘Debt Fees’. This case is a classic example where the unjust enrichment of exaggerated fees encourages the ‘numbers game’ of inappropriate and out of control bulk litigation of weak/archive parking cases. No pre-action checks and balances are likely to have been made to ensure facts, merit, position of signs/the vehicle, or a proper cause of action.

18.   The Department for Levelling Up, Housing and Communities (the DLUHC) first published its statutory Parking Code of Practice on 7th February 2022, here:

https://www.gov.uk/government/publications/private-parking-code-of-practice

“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.”

19.   Despite legal challenges delaying the Code’s implementation (marking it as temporarily ‘withdrawn’ as shown in the link above) a draft Impact Assessment (IA) to finalise the DLUHC Code was recently published on 30th July 2023, which has exposed some industry-gleaned facts about supposed ‘Debt Fees’. This is revealed in the Government’s analysis, found here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1171438/Draft_IA_-_Private_Parking_Code_of_Practice_.pdf

 

fryster

20.   Paragraphs 4.31 and 5.19 reveal that the parking industry has informed the DLUHC that the true minor cost of what the parking industry likes to call debt recovery or ‘enforcement’ (pre-action) stage totals a mere £8.42 per recovery case.

 

 

21.   With that sum in mind, it is clear that the extant claim has been enhanced by an excessive amount, disingenuously added as an extra ‘fee’. This is believed to be routinely retained by the litigating legal team and has been claimed in addition to the intended ‘legal representatives fees’ cap set within the small claims track rules. This conduct has been examined and found – including in a notably detailed judgment by Her Honour Judge Jackson, now a specialist Civil High Court Judge on the Leeds/Bradford circuit – to constitute ‘double recovery’ and the Defendant takes that position.

 

 

22.   The new draft IA now demonstrates that the unnecessarily intimidating stage of pre-action letter-chains actually costs ‘eight times less’ (says the DLUHC analysis) than the price-fixed £70 per PCN routinely added. This has caused consumer harm in the form of hundreds of thousands of inflated CCJs each year that District Judges have been powerless to prevent. This abusively enhanced ‘industry standard’ Debt Fee was enabled only by virtue of the self- serving Codes of Practice of the rival parking Trade Bodies, influenced by a Board of parking operators and debt firms who stood to gain from it.

 

 

23.   In support of my contention that the sum sought is unconscionably exaggerated and thus unrecoverable, attention is drawn to paras 98, 100, 193, 198 of ParkingEye Ltd v Beavis [2015] UKSC67 (‘the Beavis case’). 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 (decision later ratified by the CoA) held in paras 419-428 that unspecified ‘admin costs’ inflating a parking charge to £135 was not a true reflection of the cost of a template letter and 'would appear to be penal.

 

 

24.   This Claimant has not incurred any additional costs because the full parking charge (after expiry of discount) is already high and more than covers what the Supreme Court called an ‘automated letter-chain’ business model that generates a healthy profit. In Beavis, there were 4 or 5 letters in total, including pre-action phase reminders. The £85 parking charge was held to cover the ‘costs of the operation’ and the DLUHC’s IA suggests it should still be the case that the parking charge itself more than covers the minor costs of pre-action stage, even if and when the Government reduces the level of parking charges.

 

 

25.   Whilst the new Code is not retrospective, the majority of the clauses went unchallenged by the parking industry and it stands to become a creature of statute due to the failure of the self-serving BPA & IPC Codes. The DLUHC’s Secretary of State mentions they are addressing ‘market failure’ more than once in the draft IA, a phrase which should be a clear steer for Courts in 2023 to scrutinise every aspect of claims like this one.

 

 

26.   In addition, pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 (‘the POFA’) the sum claimed exceeds the maximum potentially recoverable. It is also disproportionate and in breach of the Consumer Rights Act 2015 (CRA).

 

CRA Breaches

27.   Claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3), the Government guidance on the CRA which introduced new requirements for ‘prominence’ of both contract terms and ‘consumer notices’. In a parking context, this includes a test of fairness and clarity of signage and all notices, letters and other communications intended to be read by the consumer.

 

28.   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 in hours of darkness/dusk) and all terms must be unambiguous and contractual obligations clear.

 

 

29.   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 (NB: this does not necessarily mean there has to be a finding of bad faith).

 

 

30.   Now for the first time, the DLUHC’s draft IA exposes that template ‘debt chaser’ stage costs less than £9. This shows that HHJ Jackson was right all along in Excel v Wilkinson. (See Exhibit 09)

 

 

The Beavis case is against this claim

31.   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 charges in the largest/boldest text. Rather than causing other parking charges to be automatically justified, that case, in particular, the brief, conspicuous yellow & black warning signs – (See Exhibit 10) – set a high bar that this Claimant has failed to reach.

 

32.   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’. (See Exhibit 11) for paragraphs from ParkingEye v Beavis).

 

 

33.   In the present case, the Claimant has fallen foul of those tests. There is one main issue that render this parking charge to be purely penal (i.e. no legitimate interest saves it) and thus, it is unenforceable:

 

(i). Hidden Terms:

The £100 penalty clause is positively buried in small print, as seen on the signs in evidence.  The purported added (false) ‘costs’ are even more hidden and are also unspecified as a sum.  Their (unlawful, due to the CRA Schedule 2 grey list of unfair terms) suggestion is that they can hide a vague sentence within a wordy sign, in the smallest possible print, then add whatever their trade body lets them, until the DLUHC bans it in 2024. And the driver has no idea about any risk nor even how much they might layer on top.  None of this was agreed by me, let alone known or even seen as I attempted to gain entry to the store. Court of Appeal authorities which are on all fours with a case involving a lack of ‘adequate notice’ of a charge, include:

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

 

(ii)             Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ2both leading authorities confirming that a clause cannot be incorporated after a contract has been concluded; and

 

 

(iii)           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”.

 

 

Conclusion

 

34.   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.

 

35.   The Defendant asks the judge to read the persuasive Judgment from His Honour Judge Murch (August 2023) in the Civil Enforcement v Chan case, and deliver the same outcome given this Claimant has submitted a similarly vague POC.  It is worth noting that in the Civil Enforcement v Chan case the POC, while still ambiguous, did contain a subtle indication of the alleged contravention, specifically regarding the duration of the defendant’s parking on the premises. In contrast, the POC in this case lacks even a minimal effort to hint at the nature of the alleged violation.  In the Civil Enforcement v Chan case, full costs were awarded to the motorist and the claim was struck out.

 

 

36.   There is now ample evidence to support the view – long held by many District Judges – that these are knowingly exaggerated claims. The July 2023 DLUHC IA analysis surely makes that clear because it is now a matter of record that the industry has told the Government that ‘debt recovery’ costs eight times less than they have been claiming in almost every case.

 

 

37.   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.

 

 

38. two

 

(a) The previously reserved costs of £315, and

(b) standard witness costs for attendance at Court, pursuant to CPR 27.14, and

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

 

39.   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 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.

 

Defendant’s signature:

 

 

Date: xxx