dcb legal

Cody_09

1505grandad said:

"5. The alleged contravention occurred in February 2018."

"9. I refer to British Parking Association (BPA) Approved Operator Scheme (AoS) - Code of Practice Version 6 - October 2015 section 18.3"

A heads-up  -  you should be using/quoting BPA CoP V7 dated January 2018

Noted, thanks.

Cody_09

Coupon-mad said:

Remove this heading:
"The facts as known to the Defendant:"

...and please now re-post the missing bit that is headed 'abuse of process' because we can't tell if you've removed all the outdated stuff about the Southampton case et al, and have you now got the more relevant Excel v Wilkinson as an exhibit?

Yes, I have Excel v Wilkinson as an exhibit.

------------

Abuse of process - the quantum

 

21. This Claimant continues to pursue a hugely disproportionate fixed sum (routinely added per PCN) despite knowing that this is now banned. It is denied that the quantum sought is recoverable (authorities: two well-known ParkingEye cases where modern penalty law rationale was applied). 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', i.e. unrecoverable.

22. My position regarding this punitive add-ons in now underpinned by the Government, who have now stated 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

23. Adding costs/damages/fees (however described) onto a parking charge is now banned. In a section called 'Escalation of costs' the incoming 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."

24. The Code's Ministerial Foreword is unequivocal about abusive existing cases such as the present 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."

25. The DLUHC consulted for over two years and considered 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. The DLUHC saw through this and in a published Response, they identified that some respondents were 'parking firms posing as motorists'. Genuine consumer replies pointed out that successful debt recovery does not trigger court proceedings and the debt recovery/robo-claim law firms operate on a 'no win, no fee' basis, seeking to inflate the sum of the parking charge, which in itself is already sufficiently enhanced.

26. This Claimant has not incurred any additional costs (not even for reminder letters) because the (already high) parking charge more than covers what the Supreme Court in Beavis called an automated letter-chain business model that generates a healthy profit.

27. The driver did not agree to pay a parking charge, let alone unknown costs, which were not quantified in prominent text on signage. It comes too late when purported debt recovery fees are only quantified after the event.

28. 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.

29. This overrides mistakes made in the appeal cases that the parking industry try to rely upon (Britannia v Semark-Jullien, One Parking Solution v Wilshaw, Vehicle Control Services v Ward and Vehicle Control Services v Percy). Far from being persuasive, regrettably these one-sided appeals were findings by Circuit Judges who appeared to be inexperienced in the nuances of private parking law and were led in one direction by Counsel for parking firms, and the litigant-in-person consumers lacked the wherewithal to appeal further.

30. In case this Claimant tries to rely upon those cases, significant errors were made. Evidence was either overlooked (including inconspicuous signage in Wilshaw, where the Judge was also oblivious to the BPA Code of Practice, including rules for surveillance cameras 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 contract in Beavis. Those learned Judges were not in possession of the same level of facts and evidence as the DLUHC, whose Code now clarifies all such matters.

31. This Claimant knew or should have known, that by adding extra costs over and above the purpose of the 'parking charge' to the global sum claimed is unrecoverable, due to the POFA at 4(5), the Beavis case paras 98, 193 and 198 (exhibit – EX-4), the earlier ParkingEye Ltd v Somerfield High Court case and the Consumer Rights Act 2015 ('CRA') Sch 2, paras 6, 10 and 14. All of those seem to be breached in my case and the claim is pleaded on an incorrect premise with a complete lack of any legitimate interest.

32. Not drawing onerous terms to the attention of a consumer breaches Lord Denning's 'red hand rule' and in addition the global sum on the particulars of claim is unfair under the CRA. Consumer notices are never exempt from the test of fairness and the court has a duty under s71 of the CRA to consider the terms and the signs to identify the breaches of the CRA. Not only is the added vague sum not stated on the notices at all, but the official CMA guidance to the CRA covers this and makes it clear that words like 'indemnity' are objectionable in themselves and any term trying to allow a trader to recover costs twice would (of course) be void, even if the added sum was on the signs.

 

 

 

 

 

Coupon-mad

 "23. Adding costs/damages/fees (however described) onto a parking charge is now banned." 

Ok, I see you have the above which isn't quite true (as we speak) but let's wait till Monday, as there could be some Government words to replace/update this.

Cody_09

Cody_09 said:

10. A key factor in the leading authority from the Supreme Court, was that ParkingEye were found to have operated in line with the relevant parking operator’s code of practice and that there were signs that were clear and obvious and 'bound to be seen'. I have included a copy of this sign in exhibit EX-2 for comparison. In this case, the signage (Exhibit EX-1), fails to adhere to the standards laid out by the British Parking Association (BPA). The BPA code of Practice says, “Signs must be conspicuous and legible and written in intelligible language so that they are easy to see, read and understand”. It also states that “Signs play an important part in establishing a parking contract” with the driver.

 

[It also states that “Signs play an important part in establishing a parking contract” with the driver.]



Is this right? I couldn't see it in the Code of Practice.

Cody_09

Coupon-mad said:

 "23. Adding costs/damages/fees (however described) onto a parking charge is now banned." 

Ok, I see you have the above which isn't quite true (as we speak) but let's wait till Monday, as there could be some Government words to replace/update this.

Yes. Thanks. I will keep an eye cos my deadline is Monday.

Coupon-mad

Don't know.  It would either be in the main part of the CoP or in the relevant Appendix.

Cody_09

Ok, I should leave as it is then. Thanks a lot Coupon-mad and all you guys here. Well done.

Coupon-mad

Yes it's fine as it is but check back Monday morning to see about any last minute DLUHC -related changes.

Cody_09

Coupon-mad said:

Yes it's fine as it is but check back Monday morning to see about any last minute DLUHC -related changes.

Any news about the DLUHC related changes, if any.

Le_Kirk

Cody_09 said:

Coupon-mad said:

Yes it's fine as it is but check back Monday morning to see about any last minute DLUHC -related changes.

Any news about the DLUHC related changes, if any.

@Coupon-mad has modified the template defence and, whilst it is a defence not a WS she does say that parts of it could be adapted for use in a WS.  It is on the dedicated thread here: -
https://forums.moneysavingexpert.com/discussion/comment/80205077#Comment_80205077