Small claims track letter for PCN, Help appreciated for 1st timer

dilby

Hello -

I’ve received a ‘Notice of Proposed Allocation to the Small Claims Track’ for a PCN back in 2021 from the N*xus Group.

This PCN involved a bit of back and forward between us, but my memory is a little hazy as we were going through a family tragedy at the time. While I try to dig out what correspondence I have, I was hoping some kind folks could help me on what might be the right next steps to have and with some of my questions below.

In short, here is what happened:

Parked for 3 hours and 13 minutes. I assume they are suggesting the parking is limited at 3 hours there, however the signs have said 4 for some time, as early as me going to check soon after this ticket was given.

I complained to the owner of the retail company there as I was there on business and they emailed back to say they were talking with the group to have it canceled. However it seems they did not as I had letters from them after.

I have been offered mediation, is that generally something that is recommended?

Is there a way anyone knows, such as public records where I can prove that it was 4 hours limit at the time the pcn was issued?

Is there any merit to complaining further to the company who said they were cancelling it for me, or has that time now past and should my focus be on the small claims procedure?

Thanks

Umkomaas

1. I have been offered mediation, is that generally something that is recommended?

2. Is there a way anyone knows, such as public records where I can prove that it was 4 hours limit at the time the pcn was issued?

3. Is there any merit to complaining further to the company who said they were cancelling it for me, or has that time now past and should my focus be on the small claims procedure?

1. No, you'll not have a positive experience. Please read the NEWBIES FAQ Announcement, second post, about this part of the process. 

2. No public records per se, this is a totally unregulated sector, but you could check Google Street View to see if that helps. You can go back and forward by dates to look at any helpful images.

3. Absolutely go back to them and tell them how disappointed you are in them not fulfilling their promise to you, now resulting in being sued by their parking agent. But you also need to concentrate on the claim against you. 

I note you've had an Allocation notification, so you must have submitted a Defence. Can we please see that?

I guess DCB Legal is involved in issuing the claim for Nexus?  Are you aware that by ensuring you go through all the court procedures by deadlines, DCB Legal will discontinue their claim. Stick with it. 

https://forums.moneysavingexpert.com/discussion/6377263/dcb-legal-record-of-private-parking-court-claim-discontinuations/p1

Coupon-mad

Did you use our Template Defence?

dilby

Umkomaas said:

1. I have been offered mediation, is that generally something that is recommended?

2. Is there a way anyone knows, such as public records where I can prove that it was 4 hours limit at the time the pcn was issued?

3. Is there any merit to complaining further to the company who said they were cancelling it for me, or has that time now past and should my focus be on the small claims procedure?

1. No, you'll not have a positive experience. Please read the NEWBIES FAQ Announcement, second post, about this part of the process. 

2. No public records per se, this is a totally unregulated sector, but you could check Google Street View to see if that helps. You can go back and forward by dates to look at any helpful images.

3. Absolutely go back to them and tell them how disappointed you are in them not fulfilling their promise to you, now resulting in being sued by their parking agent. But you also need to concentrate on the claim against you. 

I note you've had an Allocation notification, so you must have submitted a Defence. Can we please see that?

I guess DCB Legal is involved in issuing the claim for Nexus?  Are you aware that by ensuring you go through all the court procedures by deadlines, DCB Legal will discontinue their claim. Stick with it. 

https://forums.moneysavingexpert.com/discussion/6377263/dcb-legal-record-of-private-parking-court-claim-discontinuations/p1

Thanks yes its been DCB legal although I'm struggling to find all paperwork at the moment (tiny baby has recently arrived so I'm not at my best at the moment!)

I did submit a defence, which i have an online copy here which I assume was informed by this forum (name and ref removed):

IN THE COUNTY COURT

Claim No.: LRJKU5X

Between

CP PLUS LTD T/A GROUPNEXUS

(Claimant) 

- and -  

John Doe                  

 (Defendant)

____________________

DEFENCE

____________________

1.       The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that a contract was entered into - by conduct or otherwise - whereby it was ‘agreed’ to pay a ‘parking charge’ and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue, nor to form contracts in their own name at the location.

The facts as known to the Defendant:

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

3.    The claimant has breached the requirements for a consideration and grace period as stated in the British Parking Association Approved Operator Scheme Code of Practice (version 2018).

4.     The Particulars of Claim set out an incoherent statement of case and the quantum has been enhanced in excess of any sum hidden in small print on the signage that the Claimant may be relying upon.  Claiming ‘costs/damages’ on an indemnity basis is stated to be unfair in the Unfair Contract Terms Guidance, CMA37, para 5.14.3.  That is the official Government guidance on the Consumer Rights Act 2015 ('CRA 2015') legislation which must be considered, given the duty in s71.  The Defendant avers that the CRA 2015 has been breached due to unfair terms and/or unclear notices (signs), pursuant to s62 and with regard to the requirements for transparency and good faith, and paying regard to examples 6, 10, 14 and 18 in Sch2.  NB: this is different from the UTCCRs considered by the Supreme Court, in that there is now a requirement for contract terms and notices to be fair.

5.       It is denied that the exaggerated sum sought is recoverable.  The Defendant's position is that this moneyclaim is in part/wholly a penalty, applying the authority in ParkingEye cases (ref: paras 98, 100, 193, 198) ParkingEye Ltd v Beavis [2015] UKSC 67 and para 419 of HHJ Hegarty’s High Court decision in ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was set at £75 (discounted to £37.50 for prompt payment) then increasing ultimately to £135.  Much like the situation in this claim, the business model involved sending a series of automated demands to the keeper.  At para 419, HHJ Hegarty found that adding £60 to an already increased parking charge 'would appear to be penal' and unrecoverable.  ParkingEye had dropped this punitive enhancement by the time of Mr Beavis' famous parking event.

6.       Even if the Claimant had shown the global sum claimed in the largest font on clear and prominent signs - which is denied - they are attempting double recovery of the cost of their standard automated letter-chain.  It is denied that the Claimants have expended additional costs for the same letters that the Beavis case decision held were a justification for the (already increased from the discount) parking charge sum of £85.  

7.  The Claimant cannot be heard to base its charge on the Beavis case, then add damages for automated letter costs; not even if letters were issued by unregulated 'debt recovery' third parties.  It is known that parking firms have been misleading the courts with an appeal at Salisbury Court (the Semark-Jullien case) where the Judge merely reset an almost undefended case back for a hearing.  He indicated to Judges for future cases, how to consider the CRA 2015 properly and he rightly remarked that the Beavis case was not one that included additional 'costs' per se, but he made no finding of fact about the illegality of adding the same 'automated letter costs' twice.  He was not taken by either party to Somerfield in point #5 above and in any event it is worth noting that the lead Southampton case of Britannia v Crosby was not appealed.  It is averred that District Judge Grand's rationale remains sound, as long as a court has sufficient facts to properly consider the CRA 2015 s62, 63 and 67 before turning to consider the Protection of Freedoms Act 2012 Sch4 ('the POFA').

8.  Pursuant to Sch4 of the POFA at 4(5), the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a parking firm has complied with its other requirements (denied in this case).  It is worth noting that even though the driver was known in Beavis, the Supreme Court considered the POFA, given that it was the only legislation specifically dealing with parking on private land.  There is now also the Parking (Code of Practice) Act 2019 with a new, more robust and statutory Code of Practice being introduced shortly, which evolved because the two Trade Bodies have failed to properly govern this industry.

The ParkingEye Ltd v Beavis [2015] UKSC 67 case is distinguished

9.       Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 private PCN, which included all operational costs, and they were able to overcome the real possibility of the charge being dismissed as punitive and unrecoverable.  However, their Lordships were very clear that ‘the penalty rule is plainly engaged’ in such cases.  

10.       Their decision was specific to what was stated to be a unique set of facts: the legitimate interest/commercial justification, the car park location and prominent and clear signs with the parking charge itself in the largest/boldest text.  The unintended consequence is that, rather than persuade courts considering other cases that all parking charges are automatically justified, the Beavis case facts and pleadings (and in particular, the brief and very conspicuous yellow/black signs) set a high bar that this Claimant has failed to reach.

11.   Without the Beavis case to support the claim and no alternative calculation of loss/damage, this claim must fail.  Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of an overriding legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach.  

12.   The Supreme Court held that the intention cannot be to punish a motorist - nor to present them with concealed pitfalls, traps, hidden terms or unfair/unexpected obligations - and nor can the operator claim an unconscionable sum. In the present case, the Claimant has fallen foul of the tests in Beavis.

13.       The Claimant’s signs have vague/hidden terms and a mix of small font, such that they would be considered incapable of binding any person reading them under common contract law, and would also be considered void pursuant to Sch2 of the CRA.  Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was seen, known or agreed.

14.   Binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of an onerous parking charge, would include:

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

(ii)                Thornton v Shoe Lane Parking Ltd  [1970] EWCA Civ 2,

both leading authorities confirming that an unseen/hidden clause cannot be incorporated after a contract has been concluded; and

(ii)                 Vine v London Borough of Waltham Forest: CA 5 Apr 2000,

where the Court of Appeal held that it was unsurprising that the appellant did not see the sign ''in view of the absence of any notice on the wall opposite the southern parking space''.  In many cases where parking firm Claimants have cited Vine in their template witness statements, they have misled courts by quoting out of context from Roch LJ, whose words related to the Respondent’s losing case, and not from the ratio.  To pre-empt that, in fact Miss Vine won because it was held as a fact that she was not afforded a fair opportunity to learn of the terms by which she would be bound.

15.   Fairness and clarity are paramount in the new statutory CoP being finalised by the MHCLG and this stance is supported by the BPA and IPC alike. In the November 2020 issue of Parking Review, solicitor Will Hurley, the Chief Executive of the IPC Trade Body, 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."   The Defendant's position is that the signs and terms the Claimant is relying upon were not clear, and were in fact, unfair and the Beavis case is fully distinguished.

16.  In the alternative, the Claimant is also put to strict proof, by means of contemporaneous and unredacted evidence, of a chain of authority flowing from the landholder of the relevant land to the Claimant.  It is not accepted that the Claimant has adhered to the landholder's definitions, exemptions, grace period, hours of operation, etc. and any instructions to cancel charges due to complaints.  There is no evidence that the freeholder authorises this Claimant to issue parking charges or what the land enforcement boundary and start/expiry dates are, nor whether this Claimant has standing to enforce such charges by means of civil litigation in their own name rather than a bare licence to act as an agent ‘on behalf of’ the landowner.

 

In the matter of costs, the Defendant seeks:

17.   (a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and

(b) that any hearing is not vacated but continues as a costs hearing, in the event of a late Notice of Discontinuance.  The Defendant seeks a finding of unreasonable behaviour in the pre-and post-action phases by this Claimant, and will seek further costs pursuant to CPR 46.5.

18.   The Defendant invites the court to find that this exaggerated claim is entirely without merit and to dismiss the claim. 

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.

Defendant’s signature:

Date:

dilby

Coupon-mad said:

Did you use our Template Defence?

Yes I believe so, please see above.

dilby

Okay thanks for bearing with me so far @Coupon-mad & @Umkomaas - I've managed to find some time to do some digging and jog my hazy memory. This probably comes naturally to some people but for me, with it being a few chaotic years since the incident and chronic ADHD it's quite overwhelming and tricky for me, so thanks for your patience.

From what I can tell I filed a defence as per above; what is confusing is there isn't much in there that's detailed at all to my case, even though I remember looking into various aspects including being told by the proprietor they were pursuing cancellation and the car park being 4 hours not 3, but there must have been a reason I didn't include that. Either way for whatever reason I haven't. 

After sending that I've only now received the claim form, which is what I assume is also the 'directions questionnaire' that bargpole mentions in the court claim procedure post. I'm going to fill this document in as per the instructions here, very helpful post.

At this point I suppose I'm then waiting for a court date, and I can put a bit more substance to any on-the-day defence in meantime. But as pointed out by @Umkomaas here it might not get that far.

In that post the trend with DCB Legal suggests they 'Phone call from DCB Legal to defendant'. Does that mean they are likely to literally call me up to try to settle?

I also chased up the proprietor again, and they have simply responded by saying those people you dealt with no longer work here but they were clearly unable to cancel, take up your issue with the car park operator. At the time I was helping head up a team that met there for weekly meetings; after that we cancelled our meetings there and they lost a lot of custom, so I guess they no longer had skin to lose.

Umkomaas

After sending that I've only now received the claim form, which is what I assume is also the 'directions questionnaire' that bargpole mentions in the court claim procedure post. I'm going to fill this document in as per the instructions here, very helpful post.

The 'claim form' is form N1. The 'directions questionnaire' is form N180. So not the same. Can you please confirm exactly what you have in your hand, and, importantly, who did you receive that from?

In that post the trend with DCB Legal suggests they 'Phone call from DCB Legal to defendant'. Does that mean they are likely to literally call me up to try to settle?

Quite possibly. If they do, politely refuse to settle, then, block their phone number, they have nothing further to offer you.  Alternatively, you might get an offer to settle by mail, you can just ignore that. Just the process, I'm afraid, you will have to go through to get you (them) to the point of discontinuation. Be resilient, be patient, it might not be far off .....

Coupon-mad

 there isn't much in there that's detailed at all to my case, even though I remember looking into various aspects including being told by the proprietor they were pursuing cancellation and the car park being 4 hours not 3, but there must have been a reason I didn't include that. Either way for whatever reason I haven't. 

No worries; you already know from reading the NEWBIES thread 2nd post, about "what happens when" and what a witness statement and evidence bundle looks like.  You add more detail at that stage.

dilby

Umkomaas said:

After sending that I've only now received the claim form, which is what I assume is also the 'directions questionnaire' that bargpole mentions in the court claim procedure post. I'm going to fill this document in as per the instructions here, very helpful post.

The 'claim form' is form N1. The 'directions questionnaire' is form N180. So not the same. Can you please confirm exactly what you have in your hand, and, importantly, who did you receive that from?

In that post the trend with DCB Legal suggests they 'Phone call from DCB Legal to defendant'. Does that mean they are likely to literally call me up to try to settle?

Quite possibly. If they do, politely refuse to settle, then, block their phone number, they have nothing further to offer you.  Alternatively, you might get an offer to settle by mail, you can just ignore that. Just the process, I'm afraid, you will have to go through to get you (them) to the point of discontinuation. Be resilient, be patient, it might not be far off .....

Thanks for your help. In that case yes I have the 'Claim form' (it doesn't state N1 but does say Claim Form) which is frm the county court business center and from 24th Sep 2021. Now what I have is the 'ntocie of proposed allocation to the small claims track' which is from the same place.

Coupon-mad

After sending that I've only now received the claim form, which is what I assume is also the 'directions questionnaire'.

You can't have done if the Claim Form issue date was two years ago: you say 24th Sep 2021?

Unless the case has been stayed for 2 years?

Le_Kirk

dilby said:

Thanks for your help. In that case yes I have the 'Claim form' (it doesn't state N1 but does say Claim Form) which is frm from the county court business center and from 24th Sep 2021. Now what I have is the 'ntocie notice of proposed allocation to the small claims track' which is from the same place.

It is confusing but can we assume that you received the N1 Claim Form sometime in Sept/Oct 2021, you submitted that defence from upthread sometime after that and the Claimant must have advised the CCBC that they are going ahead with the case.  If you now have a notice of allocation does it have a date of a hearing and a court name?  What date did you receive the NoA?  Have you received a blank N180 form from the CCBC and have you completed and returned it with a copy to the claimant?