Defence Claim for Input

bms0921

Hi!

I received a Claim Form from CCBC on March 27th 2023 regarding a 16 minute overstay in a Retail car park on July 8th 2021. The car park is free for two hours. There is no option to pay. It's a busy retail car park where there is a gym, McDonalds, Costa etc. The overstay is based on ANPR images showing the  assumed time my vehicle entered the car-park and the assumed time it exited. I acknowledged the claim on April 2nd 2023 so if I understand correctly I have till April 30th to submit my defence. I have drafted this below and was hoping someone could take a look and offer any feedback (I've left out the initial paragraphs that are copied from the Defence template for the purpose of sharing on this forum to try and keep things short but will include when I submit).

The facts as known to the defendant:

1.     It is admitted that the Defendant was the registered keeper and driver of the vehicle.

2.     The allegation appears to be based on images by the Claimant’s ANPR cameras at the entrance and exit to the site. These are merely images of the vehicle in transit, entering and leaving the car park in question.

 

3.     The facts are, on July, 8th 2021, the defendant attended XXX. The driver was a valid patron of the site, utilising multiple retail services offered on site. To the best of the Defendant’s knowledge, they fully complied with the car park’s rules allowing for time to find a parking space, the initial ‘observation period’ allowed by the British Parking Association’s (BPA) Code of Practice and left within the minimum ten minutes ‘grace period’ allowed by the BPA CoP at the end of the parking period.

4.     The Defendant denies the contravention due to the alleged overstay being within a reasonable period of time allowed for observation, locating a parking space, parking and leaving the car park.

5.     The Defendant further wishes to acknowledge the circumstances of prolonged observation of any signage due to a diagnosis of Dyslexia in 2010. Dyslexia as covered by the Equality Act 2010 is recognised as an impairment which has a substantial and long-term adverse effect on an individual’s ability to carry out normal day-to-day activities.

6.     A BPA article by Kelvin Reynolds, BPA Director of Corporate Affairs, recognises the distinction between ‘grace periods’ and ‘observation periods’ in parking. BPA guidance specifically highlights that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket. No time limit is specified. This is because it might take one person five minutes, but another ten minutes depending on various factors, not limited to disability. The BPA’s guidance on the ‘grace period’ is time allowed after permitted or paid for parking. The Claimant has ignored this guidance and therefore not abided by it’s own BPA’s Code of Practice.

7.     Furthermore, the Claim of an alleged debt arising from the driver’s alleged breach of contract, is denied. It is further denied that there was any agreement to pay the Claimant a punitive £100 ‘parking charge notice’ (PCN) for the lawful conduct described in this defence.

8.     In a 2019 Court of Appeal decision, in the case between NCP (Appellant) and HMRC (Respondent) it was made clear that the offer and acceptance of a parking contract can only take place once the payer has inserted payment into the machine and pressed the green button to obtain a ticket.

9.     It is clear from this decision, that a contract cannot possibly begin upon driving into the car park, not least because at that point the driver has not has the opportunity to read the terms and conditions that may or may not be entered into.

Denial of Contract and of any breach or liability

10.  Due to the sparseness of the POC, it is unclear as to what legal basis the claim is bought, whether for breach of contract, contractual liability or trespass. However, it is denied that the Defendant breached any contractual agreement with the Claimant, whether express, implied or by conduct.

No standing or authority to form contracts and/or litigate

11.  The Claimant is not the landowner and is merely an agent acting on behalf of the landowner.  The Claimant has failed to demonstrate their legal standing to form a contract.

12.  The Claimant has not suffered any loss resulting from the vehicle parking in the location in question.

13.  The Claimant is put to strict proof that is has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices and to pursue payment by means of litigation.

14.  In relation to parking on private land, it is settled law that for any penalty to escape being struck out under the penalty rule, it must be set at a level which already includes recovery of the costs of operating the scheme. However, this Claimant routinely claims (as in this case) a global sum of £170 per alleged PCN. This figure is a penalty, far exceeding the charge in the ParkingEye Ltd v Beavis [2015] UKSC 67 case and falling foul of the binding authority in ParkingEye Ltd v Somerfield Stores [2012] EWCA Civ 1338.

Excess Charges

15.  In addition to the original parking charge, for which liability is denied, the Claimant has artificially inflated the value of the claim by adding purported Solicitor’s costs of £50.00 which have not actually been incurred by the Claimant.

16.  Whilst £50.00 may be recoverable in an instant where a Claimant has used a legal firm to prepare a claim, no such expenditure has occurred in this case. The Claimant has a Legal Team with salaried in-house solicitors and does hundreds of similar ‘cut and paste’ claims per month, not incurring any charges per cost. The Defendant puts the Claimant to strict proof of the contrary

17.  According to Ladak V DRC Locums UKEAR/0488/13/LA a Claimant can only recover the direct and provable costs of the time spent preparing a claim in a legal capacity, not any administrative costs allegedly incurred by already renumerated clerical staff.

In Summary

18.  The Claimant’s particulars disclose no legal basis for the sum claimed and the court is invited to dismiss the claim in it’s entirety and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.

Statement of Truth

I believe that the facts stated in this Defence are true. 

KeithP

bms0921 said:

I received a Claim Form from CCBC on March 27th 2023...
I acknowledged the claim on April 2nd 2023 so if I understand correctly I have till April 30th to submit my defence.

Hello and welcome.

You are close with your Defence filing deadline, but the deadline will never be on a Sunday (or Bank Holiday).

With a Claim Issue Date of 27th March, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Tuesday 2nd May 2023 to file your Defence.

That's over two weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.

To create a Defence, and then file a Defence by email, look at the second post in the NEWBIES thread.

Don't miss the deadline for filing a Defence.

Do not try and file a Defence via the MoneyClaimOnline website. Once an Acknowledgment of Service has been filed, the MCOL website should be treated as 'read only'.

KeithP

Your Statement of Truth is several years out of date.

Why are you admitting being the driver?
Do you understand that a keeper has more protection in law than an admitted driver?

bms0921

Indeed. But the thread also said: 

Continue here in your words, by either also admitting to being the driver, or hirer/lessee, if you were.   Alternatively, deny being the driver in #2, but ONLY IF TRUE.  If you DON'T KNOW, say so. 

Based on your feedback should I correct to say; 

It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied. 

In terms of submission date, I will submit on the weekday before the date. I've read the Court Claim Procedure in detail and very clear that it needs to be in working hours with an immediate response. 

1505grandad

Who is the claimant.
You are including court case that has not been used for years.
Are you using the template defence sticky?

Le_Kirk

That looks like an old template, you need  this one: -
https://forums.moneysavingexpert.com/discussion/6108153/template-defence-to-adapt-for-all-parking-cases-where-they-add-false-admin-costs-edited-march-2022/p2

Coupon-mad

I think you are right to admit driving in this case.

And if it is DCBLegal who filed the claim then avoid saying what you think the allegation is and add paras 5 - 11 from the defence by @Johny86

bms0921

Hi!

Sorry - it looks like I'm using the wrong template. I was trying to use similar defence claims that I could found but just clicked about the edited version in the post above (thank you @Le_Kirk). I'll re-edit and make the changes suggested. 

It is DCB Legal Ltd on behalf of UKPCL. 

Big thanks!

bms0921

Also just found Johny86s Defence - thank you Coupon-mad. I will edit and correct (hopefully)

bms0921

Hi!

I've edited the defence and essentially used the template of Johny86s. But have changed the relevant paragraphs to the below. After Para 4, I've used the template from Johny as recommended.  

I've also removed reference to the Government's Code of Practice since it's been withdrawn indefinitely. I assume that means it can't be referenced anymore but please do correct me if I'm mistaken? 

I've also included reference to disability as I read on the NEWBIES thread to include all relevant points in the Defence and I think this is relevant but again, happy to be corrected if I'm mistaken. 

The facts as known to the defendant:

1.     It is admitted that on the material date the Defendant was the registered keeper of the vehicle in question, but liability is denied.

2.     The facts are, on July, 8th 2021, the Defendant attended Maylands Avenue Retail Park, HP2 4NW. The driver was a valid patron of the site, utilising multiple retail services offered on site. To the best of the Defendant’s knowledge, they fully complied with the car park’s rules allowing for time to find a parking space, the initial ‘observation period’ allowed by the British Parking Association’s (BPA) Code of Practice and left within the minimum ten minutes ‘grace period’ allowed by the BPA CoP at the end of the parking period.

3.     The Defendant denies the contravention, all parking was, to the Defendants best knowledge, within a reasonable period of time allowed for observation, locating a parking space, parking, and leaving the car park.

4.     The Defendant further wishes to acknowledge the circumstances of prolonged observation of any signage due to a diagnosis of Dyslexia in 2010. Dyslexia as covered by the Equality Act 2010 is recognised as an impairment which has a substantial and long-term adverse effect on an individual’s ability to carry out normal day-to-day activities.

B789

bms0921 said:

2.     The facts are, on July, 8th 2021, the Defendant attended Maylands Avenue Retail Park, HP2 4NW. The driver was a valid patron of the site, utilising multiple retail services offered on site. To the best of the Defendant’s knowledge, they the driver fully complied with the car park’s rules allowing for time to find a parking space, the initial ‘observation period’ allowed by the British Parking Association’s (BPA) Code of Practice and left within the minimum ten minutes ‘grace period’ allowed by the BPA CoP at the end of the parking period.

3.     The Defendant denies the contravention, all parking was, to the Defendants best knowledge, within a reasonable period of time allowed for observation, locating a parking space, parking, and leaving the car park.

4.     The Defendant further wishes to acknowledge the circumstances of prolonged observation of any signage due to a diagnosis of Dyslexia in 2010. Dyslexia as covered by the Equality Act 2010 is recognised as an impairment which has a substantial and long-term adverse effect on an individual’s ability to carry out normal day-to-day activities.

In #2, using "they" could imply that you, "the Defendant", were the driver. However, if you are relying on #4 and the EA 2010, you are giving away the fact that "the Defendant" was also the "driver". It would need to be worded differently or just admit to being the driver and enhance the liability of UKPC under the EA.

It is probably all very academic anyway, as you are dealing with the intellectually malnourished duo of UKPC and DCB Legal. To predict the probable outcome of this claim, if your defence is robust, read this thread:

DCB LEGAL RECORD OF PRIVATE PARKING COURT CLAIM DISCONTINUATIONS