Kicking the hornets nest

Saverule

@Umkomaas - Thanks for link, that's kind of you. 
I'm quite lucky in that the court is a 10 minute drive away, most probably will save me the time of uploading the video anyway. Have sent DCB Legal the witness statement, happy days!

Saverule

They responded to my witness statement with this:

1. I am a case manager, employed by UK Parking Control Limited (“my Company”). I am duly authorised to make this Statement on my Company’s behalf.

2. I make this Supplementary Statement in support of the Claimant’s Claim and in response to the Defendant’s Witness Statement.

3. The facts and matters set out in this statement are within my own knowledge unless I state otherwise. I believe them to be true. Where I refer to information supplied by others, the source is identified. Facts and matters derived from other sources are true to the best of my knowledge and belief.

4. I respond to the issues raised only in the Defendant’s Witness Statement as follows: -

i. The Defendant alleges that they entered the Land an assumed the sign stated, “3 Hours Free Parking”. I respectfully refer you to “EXHIBIT 2” of the ‘First Witness Statement of Joel1

Little’, whilst the signs do provide state that there is a “3 Hour maximum stay” on the Land, in this instance the period of parking is not relevant. The Defendant was issued with the PCN for remaining on the Land in a disabled bay without displaying a valid permit and not for a stay in excess of the permitted time. The Defendant remain liable for the PCN.

ii. The Defendant has stated that their daughter was undergoing an assessment for a Blue Badge and that she has since been granted this. It is my Company's position that this Statement bears no relevance to the matter as on the date of the contravention, the Defendant failed to display a valid disabled badge, as exhibited at "EXHIBIT 3" of the First Witness Statement of Joel Little, thus breaching the Terms.

iii. Further to this point the Defendant states that they were looking for a ‘Parent and Child’ parking space and as they could not find one, they knowingly parked in a bay ‘designated as a disabled badge holder only’ space. The Defendant alleges that they believed that the signs which stipulated this Terms was merely ‘advise’ and did not form part of the Contract Terms and Conditions. It is respectfully submitted that the signs clearly state 'TERMS OF PARKING APPLY AT ALL TIMES'; it is unreasonable for the Defendant to suggest that they believed the signs were merely advisory for Drivers to follow. If the Defendant was unable to comply with the Terms, they should have exited the Land and sought alternative parking.

iv. The Defendant refers to the BPA Code of Practice quoting that ‘providers of services to the public must make reasonable adjustments to remove barriers that may discriminate against disabled people’. I submit that my Company has complied with the Conditions under the BPA Code of Practice, providing bays for disabled Drivers only, which the Defendant does already know as they do admit that they parked in one.

v. The Defendant states that they believed that the blue badge scheme was not enforceable on Private Land. We refer the Court to The Department for Transport Blue Badge Handbook which states ‘off-street park operators should provide parking spaces for disabled people. However, it is up to the car park owner to decide whether badge holders can park free of charge’. I submit again, that my Company provides spaces for disabled people, and it is reasonable for a disabled badge to be required to be displayed as this ensures that the spaces are only used by disabled persons.

vi. The Defendant’s reference to not enforcing Parent and Child bays is unclear and, in any event, irrelevant. the Defendant was correctly issued with the PCN as their Vehicle remained in a

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disabled bay without displayed a valid disabled badge, therefore breaching the Terms of the Contract. It is my Company's position that the Charge remains outstanding.

vii. The Defendant alleges that my Company has been discriminative under the Equality Act 2010. This is denied in its entirety. My Company provides provisions for persons with a disability wanting to park on the Land. I will not repeat the points I have explained above.

viii. The Defendant’s allegation in regard to the signs have been addressed in the ‘First Witness Statement of Joel Little’. There are numerous signs situated around the Land including in proximity to the disabled bays. To address ‘Exhibit L’ of the Defendant’s Witness Statement, my Company fails to see the relevance of persons inspecting the signs as a defence. This clearly confirms that people are able to see the signs and are considering them correctly, which the Defendant ought to have done before remaining on the Land.

ix. The Defendant alleges that they are confused regarding the signage as my Company's signs state, ‘disabled badge holders only’, however, the Local Authority refers to it ‘blue badge holders only’. I submit that it is reasonable to suggest that the average person would know that the statements are the same.

x. In respect of the ‘terms’, as per Schedule 2 of the Consumer Right Act 2015, specifically referred to: -

Term 6 – It is submitted the sum is not disproportionate for the reasons set out within the ‘amount claimed’ section of this Statement, nor is it ‘compensation’.

Term 10 – As is evident from the Plan, signs were displayed throughout the Land. The Driver was aware of the fact that parking was managed from the point of entering the Land and could leave if they did not agree to the Terms. It is not unreasonable for the Driver to need to potentially walk no more than 10 meters to fully familiarise themselves with the full Terms. This would have all happened before the conclusion of the contract.

Term 14 – The price is stated on the sign.

Term 18 – The fact the Driver was able to park means my Company fulfilled its obligations.

xi. The Defendant’s reference to only remaining on the Land for 10 minutes is irrelevant. The Defendant was issued with the PCN for remaining on the Land in a disabled bay without3

displaying a valid permit and not for a stay in excess of the permitted time. The Defendant remains liable for the PCN.

xii. The recent successful appeal in Britannia Parking Group Ltd v Semark-Jullien [2020] EW Misc 12 (CC) (29 July 2020) found that the inclusion of the debt recovery charge in the claim does not fall foul of the decision of Parking Eye Ltd v Beavis [2015] UKSC 67, because that was not the point in discussion in that case. The appeal also concluded that the inclusion of such a charge in a claim of this type does not constitute an abuse of process that would allow for the entire claim to be struck out.

xiii. The ‘Genuine pre-estimate of loss’ argument was often advanced in parking ticket claims prior to Parking Eye -v- Beavis [2015]. This issue was settled in that case. My Company has a legitimate interest. Further, my Company is not seeking more than the original charge as the core debt, however my Company is now also seeking further costs.

xiv. My Company’s legitimate interest is to fulfil its obligations to the Landowner. The Landowner’s legitimate interest in managing the Land. As there is a clear legitimate interest/commercial justification, the same as that established in ParkingEye -v- Beavis [2015], this case does not fall foul of the penalty rules established in that case The issue of ‘loss’ is further dealt with in the ‘amount claimed’ section below.

xv. The Defendant states they should have had a right to cancel under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 ("the Regulations"). In this regard, I submit the following: -

a. The definition of a “service contract” is “a contract, other than a sales contract, under which a trader supplies or agrees to supply a service to a consumer and the consumer pays or agrees to pay the price”. The Defendant did not pay or agree to pay a price, because it was a disabled badge holder site. The charge was only payable upon breach of the Contract as a penalty. It is therefore argued that this type of contract is not a “service contract” and therefore the Regulations are not applicable.

b. In the alternative, if the Court considers the Regulations are applicable, I draw attention to Section 36 of the Regulations which states that the consumer ceases to have a right to cancel once the service has been fully 'performed'. In choosing to park on the Land as they did, the Defendant benefitted from the entire parking ‘service' and as such forfeited the right to cancel. By remaining on the Land, it is evident that they

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wanted the service to begin immediately. It simply cannot be the case that a motorist can accept the full benefit of the parking service, and then ‘cancel’ the Contract thereafter. The Defendant would need to pay what had been ‘provided so far’ in any event.

c. In the alternative, if the Court is not minded agreeing with the above and considers that the Defendant was able to cancel within 14 days, it is submitted that the Defendant did not cancel the Contract. There is no evidence of any attempted cancellation within 14 days, or indeed at all.

5. The Defendant has made further points in relation to their Counterclaim within their Witness Statement. I submit that the Defendant’s Counterclaim has already been addressed within both the Claimant’s Reply to Defence and Response to Counterclaim and the First Witness Statement of Joel Little and I do not intent to repeat these matters.

6. In view of the above, it is my Company’s position that the Defendant breached the Contract and as such the defendant is liable. 

Saverule

They think signage is irrelevant and are trying to quote BPA guidance I’ve quoted out of context. They also think a woman with a walking stick looking at the signage means that I should’ve done a better job, despite BPA guidance saying I shouldn’t have to leave the vehicle. 

Did not realise they could add to WS after the deadline. Have to say I laughed at these responses. Now about to go away and enter the signage from the other site they provided me signage plans for- shows best practice signage, compared to where I was parked. Will be a fun comparison in court. 

Coupon-mad

I am not so confident; they appear to be proceeding (no doubt due to the Counterclaim) and say you parked knowingly in a disabled bay.

A Judge will take a dim view of that.  Uphill struggle for you, I think.

Also they mention that your submissions included really old stuff like 'no GPEOL' and 'The Defendant states they should have had a right to cancel under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 ("the Regulations").'

All of that is several years old and never used nowadays as it has no legs.  Is that what was in your Defence or WS?

Have you read the draft Impact Assessment where the DLUHC expose the 'market failure' they are addressing and that debt recovery stage only costs eight quid?  That is something to gen up on before the hearing.

Without a Counterclaim, all single UKPC PCN cases are discontinued, if the legal firm is DCBLegal.  Yours seems to be going to court for a Judge to look at pics of your car in a disabled bay, which might prove an uncomfortable hearing unless I missed something?

This might save you:

They've sent the wrong signage plans (for the site across the road, not where I parked). 

And if you told UKPC pre-action that occupants of the car were disabled that would make your case stronger. If you didn't appeal saying that, or reply before court action with evidence of disability, how could UKPC have known?

Just playing Devil's advocate because I think your Judge will...

Saverule

Thanks @coupon-mad

I emailed DCB Legal 4 months prior to them submitting court proceedings; to say that my kid and I are disabled and under the equalities act have the right to reasonable adjustments.

Kid has no awareness of danger, and has a habit of running in roads. Hence, why I felt it necessary to park in a disabled bay. 

This is all documented, and outlined in WS. Backed up with medical reports, DLA, and their BB. I’ve also provided copies of my emails to DCB Legal. 

- To be clear, at this point it’s about the principle of the matter, I’m not worried about £300 going down the pan.

My point is simply that kid’s condition was as bad as it is today, only difference is they now have a BB. They should’ve had the right to access that spot at the time of contravention. They do not enforce parent & child bays. Hence why I’m tackling the Equality Act aspect as the contract should be unenforceable if it it constitutes, promotes or provides treatment of that or another person that is of a description prohibited by this act…. I’ve copied and pasted EA chapter 15 section 3.41 to 3.55, this is in my WS. 

Secondary to that the T&C signage isn’t fit for purpose. I’ve highlighted that in WS. The signage plan they’ve given me isn’t for the site I parked at, the plan they’ve given me refers to across the road- where they’ve implemented best practices; lower T&Cs and right by the BB bays, visible from the vehicle. 

- I’m going to get a document together and get the pictures to highlight the stark contrast. I’d like to ask why at 2 sites they manage why they conform to BPA guidance, but the one I got ticketed at doesn’t. 

Saverule

@Coupon-mad

“ Also they mention that your submissions included really old stuff like 'no GPEOL' and 'The Defendant states they should have had a right to cancel under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 ("the Regulations").'

All of that is several years old and never used nowadays as it has no legs.  Is that what was in your Defence or WS?”

- I referred to it briefly in my Counterclaim, I C&P it in the thread somewhere. 

Saverule

9. 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

Therefore the Defendant wishes to claim damages for distress caused by the Claimants’ breach of statutory duty and misleading actions within the meaning of the Consumer Protection from Unfair Trading Regulations 2008, as amended by the Consumer Protection Regulations (Amendment) Regulations 2014 (“the Regulations”); b) damages for distress caused by the Claimants’ breach of statutory duty arising from violations of the Consumer Rights Act 2015 ('the CRA'); c) damages for distress caused by harassment contrary to the Protection from Harassment Act 1997 ('the PFHA') ref section 3; d) damages for discrimination, distress and harassment of a person with protected characteristics, pursuant to multiple sections of the Equality Act 2010.


^ Those are the only times I've referred to CRA

Coupon-mad

Good - particularly that you supplied your info before court!  DCB Legal like to tell the DLUHC that pre-action stage is for cancelling unjustified cases and considering vulnerability...

Please can you supply your email exchange with DCBLegal to the DLUHC as evidence in answering one of their questions for all respondents?

The Government's Call for Evidence is only open until 24th September.

I think your evidence is key that DCBLegal pressed on with a claim anyway, despite all the info you supplied, so they ignored everything (even the Equality Act 2010) and it is disingenuous of them to say they 'need' a massive £70 fee in order to provide a 'court buffer'. What they do isn't a court buffer and you would have been better off speaking to the parking firm reasonably, if they took the final reminder and template LBC stage in-house, which a ban on fees would rightly encourage.

Please please use your evidence to debunk that.
Also attach for the DLUHC a copy of the claim form too, in order to prove that DCBLegal added the £70 AND the £50 supposedly 'capped' legal fees.

Saverule

@Coupon-mad - I’m not sure anyone will want to see my stroppy email tbh. I have a feeling the judge is going to be annoyed about it. 

If the judge doesn’t have a fit, I will happily supply evidence WS and court notices etc to the call for evidence thread. 

I’ll keep you updated as the case progresses. *fingers crossed* 

Ps do you think the judge will care if I cry? I was thinking about my reasoning for digging my heels in; and it’s definitely about my kid’s rights and protections- as it will impact them in the future, should private companies be able to penalise disabled people for not “proving” their disability(ies) on the spot. I know when I explain this I’ll be crying like a sap. 

Coupon-mad

You can cry.  This is emotive stuff.