Filing a defence following CCJ put aside. PCN dated March 2018. DCB legal!

skoobimum

Actual response 

Coupon-mad

You should edit out your name (top & bottom).

skoobimum

Okay. Done 👍🏻

skoobimum

So, I have received a notice of allocation to small claims track (hearing) for a telephone hearing on the 27th March. I was expecting to attend a hearing in person so was quite surprised it would over a video call, is this normal? 

Anyway I have to submit my witness statement by this coming Friday, I was half expecting to receive a notice of discontinuation to be honest, as it’s DCB legal & is often their MO but it seems I’m not that fortunate & they’re taking it all the way. I have just received their witness statement from Spring Parking & it has been submitted to court. I’m actually really stressed out about it now & suddenly doubting my defence/chance of win. My Mum has just been diagnosed with terminal cancer & this is added pressure I don’t need & it’s getting me even more down, just wish it would go away! 

I would really love some advice/help in how to respond to the specific points they have made against my defence, how to refute/counter etc (please see their redacted witness statement attached) as I’m just completely despondent right now…they’ve basically said my defence is very repetitive, used a template! (Rich!)& has no merit. So I’m reluctant to again copy/paste & amend a witness statement from newbies thread & would like to dispute their points specifically, just unsure how to go about it & what will bolster my statement.
Any help, advice, pointers etc will be gratefully received. 😌

https://www.dropbox.com/scl/fi/ui450k5okszy6849ihoaz/Spring-parking-Witness-Statement-redacted.pdf?rlkey=b9a9od9sifks86yokts5vbpzy&dl=0

Debszzzz2

There are many issues with the SWS. Just looking at the statement in #9 that SPL were instructed by the "landowner" to manage the land and that exhibit #1 is a copy of the "landowner agreement" is flawed. The exhibit is not a "landowner agreement" but it is a "car park management agreement".

IANAL and I am sure the more experienced regulars will point out any errors in my thinking... However, in the agreement shown in exhibit #1, the absence of explicit evidence of an agreement between the landowner and its agent (Foden Estates Ltd) authorising the agent to make contracts with third parties (SPL) should be raised as a concern. As far as I am aware, the burden of proof typically falls on the party seeking to rely on the contract (SPL) to enforce their right to issue a claim and so need to provide evidence of Foden Estates Ltd authority to enter into the contract on behalf of the landowner.

The signatories to the agreement are anonymous. The party seeking to rely on the contract to give them authority to bring a claim (SPL) bears the burden of proof that the contract is valid and that the signatories had the authority to enter into it on behalf of the respective companies. If the validity of the contract is challenged, SPL must provide evidence to support their assertion that the agreement is indeed valid. Just saying they have authority from the land owners is not evidence of such authority.

SPL are claiming that the exhibited agreement gives them authority to bring the claim against the keeper. However, they have not provided sufficient evidence to establish the validity of the agreement and their authority to act under it. The agreement cannot be valid if it fails to evidence the authority allegedly given by the landowner and it has not evidenced in what capacity the signatories to the agreement are authorised to do so.

I stand by to be corrected...

As for the rest of the SWS, I'll live it to others to highlight the flaws in it, including the false claim that they can somehow hold the keeper liable, the terrible signage, the pointless accusation of using a template defence and so on.

skoobimum

Thankyou, that is definitely helpful if I can raise it as an issue. They had originally provided me with the ‘landowner agreement’ below which is what I referred to in my defence as being wholly inadmissible as the dates on this copy (which was sent to me following SAR) are dated in Sept/Oct 2018 after the alleged contravention which was in March 2018. They have obviously taken heed of this & now provided an earlier dated copy.

Debszzzz2

They obviously sent you copy of the wrong agreement and have attempted to correct that error in the SWS. However, my argument about the validity of the agreement still stands, subject to any correction by others with more experience of this.

Coupon-mad

Question:

does their exhibit list not show the windscreen PCN or the Notice to Keeper?  Even if it does, do they show any debt recovery / reminders?


Your Exhibits:

I'm just listing a few things to definitely append as exhibits:

- your marriage cert, if found (in which case, to this WS in your correct married name and mention this at the start) AND admit to driving if it was you, because that NTK is compliant with para 8 of POFA 2012 schedule 4 so there's no point defending only as keeper (easier to just say what happened without admitting fault);

- append as another exhibit, the email from DCB Legal at claim form stage, where they said the case was 'on hold' and told you not to take any action.  State that although they eventually provided a Consent Order and called the CCJ 'an administrative error' this caused immense distress and has been just part of a course of conduct amounting to harassment of a motorist who the Claimant knew from the outset, HAD displayed a free 'ticket' (the NTK and pleadings are wrong; this was not a 'pay & display' car park, it has always been free);

- that photo of the P sign saying 'free' parking should be another exhibit, and a pic of the free ticket (did you keep it or a photo of it?);

- the usual exhibits seen in the recent exemplar WS linked by username in the NEWBIES thread.  There are 5 there, with the most recent by Citizen_K I think.  

You should be saying the following after the above points (these para numbers are not right, they are merely here for structure to help you):


1.  I deny a failure to display 'a pay & display ticket', not that the generic Particulars of Claim ('POC') even pleaded any allegation at all. It was hard to know from the woeful POC what I was being expected to respond to in my defence and as stated above, DCB Legal at first told me that I did not even have to defend the claim (causing a CCJ due to their own negligent error die to the automatic 'roboclaim' model).  I made reasonable endeavours to display the piece of paper that the Claimant is calling a 'receipt' (a misnomer).  And I can tell the court that it was both 'valid' and 'displayed'.  Those two words are on the sign. The sign does not dictate how (or even where, or indeed which way up) this so-called 'receipt' must be displayed.  The sign, as drafted, does not in fact create a relevant obligation to 'pay and display' (despite the allegation in the PCN) because this was not a 'pay' machine car park.  It's free. 

2.  Consumer contractual terms must be interpreted using the natural meaning of each word. I am thinking in particular of the words: 'receipt' 'valid' 'display' and the phrases: 'free parking' and 'pay & display'. I invite the court to assess and interpret the meaning and fairness (clarity, without ambiguity) of those words and phrases. Where the meaning of wording is ambiguous (so there is more than one possible meaning), there is a requirement that it should be given the meaning that is most favourable to the consumer.  This rule is intended to benefit consumers in any private disputes they may have with businesses and is set out in the Consumer Rights Act 2015 ('the CRA')  Section 69: 'Contract terms that may have different meanings' and the interpretation that is most beneficial to the consumer, rather than the trader, is the interpretation that must be used. It is my position that the term was unfair, and I further rely upon the CRA Schedule 2 (thd 'grey list' examples of terms that are likely to be unfair) and Section 67: 'Effect of an unfair term on the rest of a contract': a court can find a particular term to be unfair, which renders it unenforceable. 

2.  I have no idea when and why the 'receipt' slipped a little way forward on the dashboard, and I deny causing that and deny it could not be clearly seen.  When I parked I displayed the flimsy piece of paper.  I deny breaching any term.  Moreover, if the Claimant had looked from the passenger side on, or taken photos from a better angle than directly in front of the bonnet (as per their 'evidence') they would have been able to see the whole 'receipt'.  On the balance of probabilities and from my own first hand witness view, as I came back to my car and found the unwarranted Parking Charge Notice, I say it was there to be seen.  The angle of the photos deliberately taken from a straight-on position at the front of the car - the ticketer clearly knowing the 'receipt' was there - is deceptive and unreasonable conduct.  It speaks volumes that there are no photos taken from the position of the front wing, at the passenger side of the car, which one would expect from a professional parking operator working within the required doctrines of 'good faith' and 'open dealing' with consumers.

3.  In the alternative, I made efforts to comply with the sign but I also suggest that the vague single word 'display' element of the contract was frustrated by the Claimants themselves, who provided a flimsy piece of paper that was not fit for purpose to stay in position on a dashboard.  So many complaints of this nature were made on social media and in the reviews of this shopping centre, that the Claimants contract was apparently not renewed in the end, because I can tell the court that this car park is now 'receipt free' again and targeted shoppers have returned with renewed confidence.

4.  This looks like a claim designed to extract the last possible sums from a contract that was lost (it might be called a 'revenge claim' and as such, there is no legitimate interest in pursuing me).  The temporary operation 5 or 6 years ago run by this Claimant at the time, was offered 'free' to the landowner (rather like a protection racket, an average person might observe) and unless they could catch people out, this Claimant made no money from the free car park.  The whole set-up seems to have relied upon a 'concealed pitfall or trap'. Those are the exact words used by the Supreme Court in ParkingEye v Beavis when their learned Lordships discussed unfair operations in car parks that would have fallen foul of the penalty rule, which they made clear 'remains engaged' in all private parking cases, which will all turn on their own circumstances. In Beavis, no flimsy 'receipt' had to be displayed to claim the free parking at that retail park and the signs and obligations on drivers were deemed clear, in that case.  Not in this one, where I am being punished for doing everything required of me and the charge is nothing but punitive.

5.  The Supreme Court held that when considering whether a contractual clause is a penalty:

• “The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest [...] in the enforcement of the primary obligation. The innocent party can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance.”

5.  Considering that authority and all the facts of this case, this parking charge is unconscionable, not contractually agreed nor a breach of the terms as drafted. The total sum claimed is disproportionate, unspecified on the signs or letters and is blatantly unfair in circumstances of skewed photo angles and flimsy pieces of paper.  There is no overriding 'legitimate interest' or 'commercial justification' (as there was in Beavis) for punishing a driver in the way that this Claimant has targeted me.   

6.  Further and in the alternative, addressing the matter of the imaginary (never incurred nor paid by this Claimant) '£60 debt recovery fee' I have found from research that this is kept by the bulk litigator, not the Claimant.  This sum bears no relation to outstanding 'parking charges' purportedly owed to the creditor (Spring Parking).  Being a third party 'debt recovery fee' (unlike the PCN element) VAT is due on the added fee, but HMRC have held that the VAT element of such a fee must not be paid by the consumer. I get nothing from the 'service' and I am confused why this claim adds £50 capped 'legal fees' AND £60 'damages/fees', both of which are retained by the legal firm not the creditor named on the signs.  This undoubtedly constitutes double recovery (for the unjust enrichment of the bulk litigator) when HMCTS clearly intends their fees to be capped at £50.

7.  Moreover, the sign quantifies no actual sum to be added as 'debt recovery fees' and leaves the driver at the car park with no way of knowing or calculating how much that might be (an obviously unfair term; a clear breach of the CRA: see Schedule 2 'the grey list').

8.  Then, the Notice to Keeper (the 'NTK') eventually arrived in the post, some six weeks after the event.  It is trite law that this is too late to form part of the contract - ref Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ 2 which is one of several authorities which provides the rule that a clause cannot be incorporated after a contract has been concluded.

9.  Further, I see that this NTK stated that the £95 PCN could increase to £145.  There is no evidence of any debt recovery or reminder letter efforts made since 2018, so there is nothing to explain why this Claimant and their notorious bulk litigator think (between them) that they can add both the capped (Fixed Recoverable Fees) of £50 and an extra £60.  The latter looks like a sum plucked out of thin air and supposedly 'justified' only by reference to the self-serving BPA Code of Practice. Yet DCB Legal are behind that Code, being on the BPA's Council of Representatives, driving the current 'rules' for parking on private land.  In other words, it seems that they helped to write and/or set the very BPA Code clause that they say means they 'can' add a disproportionate sum on top of an already increased Parking Charge.

10.  This is why the Government called this element 'extorting money from motorists' when introducing the statutory Code and regime in 2022.  That plus adding 8% interest backdated for six years - as if it is some sort of reward for sitting on their hands for the first 5 years - looks like an abusive inflated claim, to me.

skoobimum

Thanks for that, really helpful. They have included a picture of the PCN attached to windscreen but I do not recall getting this which also makes me question if I was driving, I honestly have no recollection of who was driving as it was nrly 6 years ago & at that time I had 2 children under 3 so was usually harassed in the extreme!!  & it is a car park I use regularly 1-3 times per week so it was an otherwise unremarkable date & could have been my Mum or partner, now husband as we only ever use it to drop stuff off or browse in charity shop there & as such the stay is never longer than 15minutes so I was hoping to include a paragraph about the actual grace period provided by the landowner as the PCN has been issued within 12 minutes!
 The signage is actually terrible & very misleading as the first sign you see when entering is a council erected free parking sign & part of the car park is council owned land/parking bays with no ticket required & there is no barrier/visible signage or demarcation between these 2 areas so would be extremely confusing & I feel this point needs raising but I agree that I sound contradictory saying this & also saying that the driver bought a ticket which had slipped down but these are 2 different scenarios if I was driving & if someone else was driving. 

With regards to the money, the NTK says it can increase to £145 & then the letter of claim is for £155 (with no explanation as to where this mystery £10 increase has arisen) with the actual claim being for £290.79! Can I use this to argue unfair fees. £300 ‘fine’ to park in a free car park is ludicrous in the extreme.

Do Debszzz comments above about the landowner agreement hold any water? 

Thank you 😊 

Coupon-mad

Just do as I advised and show us the full draft. All of what you said above is already in what I've written for you to copy.

Please can you answer my first question? This is important. I wasn't asking if there was a photo of a yellow envelope on the car.