UKPC - Have I missed Deadline / is this defence ok

maria212

My date on court claim form is 24th April
I did AOS on 4 th May to extend to 28 days?

- Do I still have time to submit this defence? 

Background - Blue badge slipped off dashboard was in a disabled bay, havent responded to any previous letters ( i work away) and this is my first response to them. The blue badge is my grandfathers who was a passenger. 

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 and driver 

 

3. The Defendant was correctly parked in a disabled bay as they were driving with a disabled passenger that held a blue badge; the disabled user needed to use the bathroom with urgency, and it is suggested then when leaving the car in such haste the blue badge slipped off the dashboard and landed on the car seat subsequently. Proof of this blue badge is available on request.

 

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 using, in part, pre-written wording suggested by a reliable online help resource. The Claimant is urged not to patronise the Defendant with (ironically template) unfounded accusations of not understanding their defence. 

5. 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.  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 and specific breach allegations, which makes it difficult to respond in depth at this time; however this claim is unfair, generic and inflated.  

6.  This Claimant continues to pursue a disproportionate fixed sum (routinely added per PCN) despite knowing that this is now likely to be confirmed as banned by the Government this year. It is denied that the purported 'damages' or 'debt fee' sought was incurred or is recoverable. 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'.

7. 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

8. 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." 

9. 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." 

10. 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.  

11. 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.

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

13. 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).

14.  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

15. 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. 

16. 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.

17. 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)

18. 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.

19. 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'.

20.  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

(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'' (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).  

21. 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

22. 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.

23.  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).  

 

Conclusion

24. 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.

25. 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.

26. 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. 

27.  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.

 

KeithP

maria212 said:

My date on court claim form is 24th April
I did AOS on 4 th May to extend to 28 days?

- Do I still have time to submit this defence? 

The simple answer to your question is  - yes.

In more detail...

With a Claim Issue Date of 24th April, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Tuesday 30th May 2023 to file your Defence.

That's over a week 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'.


How much of that lengthy Defence you have shown us is your own work and how much of it is lifted directly from the template defence thread?
It really is unfair to ask people here to check stuff that has already been checked many times.
Perhaps you could show us just those paragraphs you have amended?

maria212

Phew thanks, I used the whole template and just edited the parts it said to edit, 

so part 2 and 3 are written by myself 

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

 

3. The Defendant was correctly parked in a disabled bay as they were driving with a disabled passenger that held a blue badge; the disabled user needed to use the bathroom with urgency, and it is suggested then when leaving the car in such haste the blue badge slipped off the dashboard and landed on the car seat subsequently. Proof of this blue badge is available on request.

- is this enough would i add a picture of the badge?

I added the rest just to check if it was relevant to my case, apologies if it was too much.

B789

Wich PPC/solicitors? Which location? Have you tried Plan A, a complaint to the landowner and to your MP? Have you written to the PPC with a copy of the BB and a warning that if they continue to pursue then you will be invoking the Equalities Act which has severe implications for them as they have now been notified?

maria212

UK Parking control, DCB legal solicitors - It’s a large retail park with a McDonald’s, b&q and next . . I was parked in front of one of the closed down stores

I haven’t tried writing to land owners/ I wont comment on how useful the MP is
- only learnt about this on this forum now andI thought it would be too late as they have already issued a court claim and I was conscious to reply in time.

Umkomaas

UK Parking control, DCB legal solicitors

Then you need to read this:
https://forums.moneysavingexpert.com/discussion/6377263/dcb-legal-record-of-private-parking-court-claim-discontinuations/p1 

I notice that we gave you extensive help and support on the following (now closed) thread, but you didn't seem to take the time to update it. Any update on it now?
https://forums.moneysavingexpert.com/discussion/5705032/court-claim-deadline-tomorrow/p1

maria212

Umkomaas said:

UK Parking control, DCB legal solicitors

Then you need to read this:
https://forums.moneysavingexpert.com/discussion/6377263/dcb-legal-record-of-private-parking-court-claim-discontinuations/p1 


Sorry I’ve had a look, and not sure what I’m supposed to be looking out for on that thread, lots of replies? 


I notice that we gave you extensive help and support on the following (now closed) thread, but you didn't seem to take the time to update it. Any update on it now?

1. Sorry I’ve had a look, and not sure what I’m supposed to be looking out for on that thread, lots of replies? 


2. Tbh I didnt realise I hadn’t updated, I forgot I had this account, was around 6 years ago and I got a court date and everything, being heavily pregnant at the time was hoping it didnt go on too long but thankfully they cancelled it last minute, however my new case is different in the sense there is proper signage all around and it was a different reason so I’m seeking help again

Coupon-mad

KeithP said:

maria212 said:

My date on court claim form is 24th April
I did AOS on 4 th May to extend to 28 days?

- Do I still have time to submit this defence? 

The simple answer to your question is  - yes.

In more detail...

With a Claim Issue Date of 24th April, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Tuesday 30th May 2023 to file your Defence.

That's over a week 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'.


How much of that lengthy Defence you have shown us is your own work and how much of it is lifted directly from the template defence thread?
It really is unfair to ask people here to check stuff that has already been checked many times.
Perhaps you could show us just those paragraphs you have amended?

As above.  Shows you what to do.

And the later link given by others, shows you that your case will end up discontinued by DCBLegal.  That is all you are meant to take from that thread - that knowledge and confidence.

What you put as para 3 looks fine so far, but no attachments are submitted until Witness Statement & Evidence stage.  Later!

Have you also added the extra paras 5-11 seen in the example by @GolfR12 ?

Le_Kirk

maria212 said:

Phew thanks, I used the whole template and just edited the parts it said to edit, 

so part 2 and 3 are written by myself 

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

3. The Defendant was correctly parked in a disabled bay as they were driving with a disabled passenger that held a blue badge; the disabled user needed to use the bathroom with urgency, and it is suggested then when leaving the car in such haste the blue badge slipped off the dashboard and landed on the car seat subsequently. Proof of this blue badge is available on request.

- is this enough would i add a picture of the badge?

I added the rest just to check if it was relevant to my case, apologies if it was too much.

You do, of course,  add the rest of the template before you submit it to CCBC. You don't send evidence with the defence.  That goes later with the witness statement. 

B789

This is the template defence you should be using for a UKPC/DCB Legal claim:

https://www.dropbox.com/s/5r7vbqttho3q948/2023 defence.pdf?dl=0

maria212

Coupon-mad said:

KeithP said:

maria212 said:

My date on court claim form is 24th April
I did AOS on 4 th May to extend to 28 days?

- Do I still have time to submit this defence? 

The simple answer to your question is  - yes.

In more detail...

With a Claim Issue Date of 24th April, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Tuesday 30th May 2023 to file your Defence.

That's over a week 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'.


How much of that lengthy Defence you have shown us is your own work and how much of it is lifted directly from the template defence thread?
It really is unfair to ask people here to check stuff that has already been checked many times.
Perhaps you could show us just those paragraphs you have amended?

As above.  Shows you what to do.

And the later link given by others, shows you that your case will end up discontinued by DCBLegal.  That is all you are meant to take from that thread - that knowledge and confidence.

What you put as para 3 looks fine so far, but no attachments are submitted until Witness Statement & Evidence stage.  Later!

Have you also added the extra paras 5-11 seen in the example by @GolfR12 ?

Thanks, apologies for late response,  my phone stopped working - technology issues! 

I’m not sure about those extra paragraphs will try find