DCB Legal / ParkingEye

cheme7676

Thanks all.

Sorry, I've tried to read the comments above but not fully understanding the terminology being used.

Just to be sure, am I still OK using the normal defence template underneath the 12-point checklist and add in the points (2 & 3) provided by @UncleThomasCobley along with the transcript?

I will also add in my own points also. Once done I will post my parts here.

Coupon-mad

Yes.  Look at this one:

https://forums.moneysavingexpert.com/discussion/comment/80343627/#Comment_80343627

cheme7676

Perfect, thanks.

I have pretty much done the backbone of the defence. Everything is in shape just working on the part where I explain my own point of view.

Just wanted to confirm if the following is okay:

• From the SAR, I can see that the event occurred on 28/02/2022 and the PCN was issued on 19/04/2022. Just under 2 months after the event occurred. It was captured via ANPR
• I wasn't the driver, it was somebody else. I am just the registered keeper
• The PCN was issued for a 21 min stop. Speaking to the driver, they vaguely remember being there for loading during an event. They do not recall any clear signage.

I was hoping that the fact I wasn't driver, in combination with the fact the PCN was issued so late might work in my favour? If so, I can include this before posting my first defence draft here

Thanks in advance

Coupon-mad

Oh yes, include this quite near the start, after the stuff about the CEL v Chan case & images.  Need paragraph numbers of course: 

- It is denied that the Defendant was the driver of the vehicle on the date in question.  The Claimant is put to strict proof to explain the basis of the Defendant's alleged liability, given that they cannot rely on the the Protection of Freedoms Act 2012 ("POFA").

-  From the Claimant's reply to the Subject Access Request, it can be seen that the event occurred on 28/02/2022 and the postal Notice to Keeper ('NTK') was not issued until 19/04/2022, some eight weeks after the alleged event occurred. It was captured via ANPR and the driver (who will not be named but was legitimately loading, not parked) and the SAR evidence both confirm that there was no Notice to Driver served on the day.  This timeline and the wording of the NTK means the Claimant cannot invoke 'keeper liability' and have simply aimed a speculative claim at a registered keeper which is wholly unreasonable conduct in a case where they know they did not use the provisions of the POFA. 

- The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the keeper was the driver, and will not be able to because the Defendant was not. The Claimant knows or should know, that it was limited to pursuing the Defendant for this parking charge, only under circumstances where they had complied with the provisions set out by statute in the POFA.  Before seeking to rely on keeper liability, the Claimant must demonstrate that:

(a).  there was adequate notice of the parking charge and

(b).  a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort was breached and that the vehicle was actually parked, not loading; and

(c). it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper. 

- It is not admitted that the Claimant has complied with the relevant statutory requirements.  None of the above applies. The Defendant does not recall being served with a compliant Notice to Keeper for these charges, that complied with the mandatory POFA wording and timeline prescribed in Schedule 4.  Outwith the POFA, parking firms cannot invoke 'keeper liability'. This legal point has already been tested on appeal (twice) in private parking cases and the transcripts will be adduced in evidence later:

(i). In the case of Excel Parking Services Ltd v Anthony Smith at Manchester Court, on appeal re claim number C0DP9C4E in June 2017, His Honour Judge Smith overturned an error by a District Judge and pointed out that, where the registered keeper was not shown to have been driving (or was not driving) such a Defendant cannot be held liable outwith the POFA.  Nor is there any merit in a twisted interpretation of the law of agency (if that was a remedy then the POFA Schedule 4 legislation would not have been needed at all).  HHJ Smith admonished Excel for attempting to rely on a bare assumption that the Defendant was driving or that the driver was acting 'on behalf of' the keeper, which was without merit. Excel could have used the POFA but did not. Mr Smith's appeal was allowed and Excel's claim was dismissed.

(ii). In April 2023, His Honour Judge Mark Gargan sitting at Teesside Combined Court (on appeal re claim H0KF6C9C) held in Vehicle Control Services Ltd v Ian Edward that a registered keeper cannot be assumed to have been driving. Nor could any adverse inference be drawn if a keeper is unable or unwilling (or indeed too late, post litigation) to nominate the driver, because the POFA does not invoke any such obligation.  HHJ Gargan held:

35.1. "The finding I make is consistent with the underlying purpose of Schedule 4 to the Protection of Freedoms Act, namely, that it was necessary to bring in keeper liability pursuant to that legislation, because liability could not be established.  If this were not the case car parking companies could simply have obtained the details of the registered keeper, launched proceedings and waited to see whether or not there was a positive defence put forward, and in the absence of a positive defence they would have succeeded. If the court took such an approach, it would have been imposing a duty on the registered keeper, to identify the driver or at least set out a positive case in order to avoid responsibility himself. In my judgment that was not the position before ... [the POFA] ... was in force; 

35.2.  my decision preserves and respects the important general freedom from being required to give information, absent a legal duty upon you to do so; and 

35.3.  it is consistent with the appropriate probability analysis whereby simply because somebody is a registered keeper, it does not mean on the balance of probability they were driving on this occasion..."

- Mr Edward's appeal succeeded and the Claim was dismissed.  In the extant case, this Claimant - knowing full well that they could not rely on the POFA and had chosen not to comply with that legislation - has launched proceedings and waited to see if the registered keeper has the nous to research the POFA and to meaningfully defend, or if they could gain a default CCJ (as happens in 90% of small claims).  It is a lucrative gamble with the odds of wrongful success heavily weighted in the parking operators' favour, but this is plainly an abuse of the court process.  This baseless roboclaim demonstrates precisely the behaviour that HHJ Gargan identified in 35.1. This claim has no basis in law and neither the court nor the Defendant should be troubled with a hearing.

cheme7676

Thanks Coupon. 

Please find my defence below, piecing it together from the resources. Hopefully the ordering is all correct.

1. 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 in breach of any term.  Further, it is denied that this Claimant (understood to have a bare licence as agents) 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 boilerplate text in the Particulars of Claim ('the POC').

The facts as known to the Defendant:

2. The facts in this defence come from the Defendant's own knowledge and honest belief.  Conversely, the Claimant sets out a cut-and-paste incoherent and sparse statement of case. The POC appear to be in breach of CPR 16.4, 16PD3 and 16PD7, and fail to "state all facts necessary for the purpose of formulating a complete cause of action". The Defendant is unable, on the basis of the POC, to understand with certainty what case, allegation(s) and what heads of cost are being pursued, making it difficult to respond. However, the vehicle is recognised and it is admitted that the Defendant was the registered keeper.

3. It is denied that the Defendant was the driver of the vehicle on the date in question.  The Claimant is put to strict proof to explain the basis of the Defendant's alleged liability, given that they cannot rely on the the Protection of Freedoms Act 2012 ("POFA").

4. From the Claimant's reply to the Subject Access Request, it can be seen that the event occurred on 28/02/2022 and the postal Notice to Keeper ('NTK') was not issued until 19/04/2022, some eight weeks after the alleged event occurred. It was captured via ANPR and the driver (who will not be named but was legitimately loading, not parked) and the SAR evidence both confirm that there was no Notice to Driver served on the day.  This timeline and the wording of the NTK means the Claimant cannot invoke 'keeper liability' and have simply aimed a speculative claim at a registered keeper which is wholly unreasonable conduct in a case where they know they did not use the provisions of the POFA.

5. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the keeper was the driver, and will not be able to because the Defendant was not. The Claimant knows or should know, that it was limited to pursuing the Defendant for this parking charge, only under circumstances where they had complied with the provisions set out by statute in the POFA.  Before seeking to rely on keeper liability, the Claimant must demonstrate that:

(a)   there was adequate notice of the parking charge and

(b)   a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort was breached and that the vehicle was actually parked, not loading; and

(c)   it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.

6. It is not admitted that the Claimant has complied with the relevant statutory requirements.  None of the above applies. The Defendant does not recall being served with a compliant Notice to Keeper for these charges, that complied with the mandatory POFA wording and timeline prescribed in Schedule 4.  Outwith the POFA, parking firms cannot invoke 'keeper liability'. This legal point has already been tested on appeal (twice) in private parking cases and the transcripts will be adduced in evidence later:

(i)    In the case of Excel Parking Services Ltd v Anthony Smith at Manchester Court, on appeal re claim number C0DP9C4E in June 2017, His Honour Judge Smith overturned an error by a District Judge and pointed out that, where the registered keeper was not shown to have been driving (or was not driving) such a Defendant cannot be held liable outwith the POFA.  Nor is there any merit in a twisted interpretation of the law of agency (if that was a remedy then the POFA Schedule 4 legislation would not have been needed at all).  HHJ Smith admonished Excel for attempting to rely on a bare assumption that the Defendant was driving or that the driver was acting 'on behalf of' the keeper, which was without merit. Excel could have used the POFA but did not. Mr Smith's appeal was allowed and Excel's claim was dismissed.

(ii)   In April 2023, His Honour Judge Mark Gargan sitting at Teesside Combined Court (on appeal re claim H0KF6C9C) held in Vehicle Control Services Ltd v Ian Edward that a registered keeper cannot be assumed to have been driving. Nor could any adverse inference be drawn if a keeper is unable or unwilling (or indeed too late, post litigation) to nominate the driver, because the POFA does not invoke any such obligation.  HHJ Gargan held:

35.1. "The finding I make is consistent with the underlying purpose of Schedule 4 to the Protection of Freedoms Act, namely, that it was necessary to bring in keeper liability pursuant to that legislation, because liability could not be established.  If this were not the case car parking companies could simply have obtained the details of the registered keeper, launched proceedings and waited to see whether or not there was a positive defence put forward, and in the absence of a positive defence they would have succeeded. If the court took such an approach, it would have been imposing a duty on the registered keeper, to identify the driver or at least set out a positive case in order to avoid responsibility himself. In my judgment that was not the position before ... [the POFA] ... was in force;

35.2.  my decision preserves and respects the important general freedom from being required to give information, absent a legal duty upon you to do so; and

35.3.  it is consistent with the appropriate probability analysis whereby simply because somebody is a registered keeper, it does not mean on the balance of probability they were driving on this occasion..."

35.1. "The finding I make is consistent with the underlying purpose of Schedule 4 to the Protection of Freedoms Act, namely, that it was necessary to bring in keeper liability pursuant to that legislation, because liability could not be established.  If this were not the case car parking companies could simply have obtained the details of the registered keeper, launched proceedings and waited to see whether or not there was a positive defence put forward, and in the absence of a positive defence they would have succeeded. If the court took such an approach, it would have been imposing a duty on the registered keeper, to identify the driver or at least set out a positive case in order to avoid responsibility himself. In my judgment that was not the position before ... [the POFA] ... was in force;

35.2.  my decision preserves and respects the important general freedom from being required to give information, absent a legal duty upon you to do so; and

35.3.  it is consistent with the appropriate probability analysis whereby simply because somebody is a registered keeper, it does not mean on the balance of probability they were driving on this occasion..."

7. Mr Edward's appeal succeeded and the Claim was dismissed.  In the extant case, this Claimant - knowing full well that they could not rely on the POFA and had chosen not to comply with that legislation - has launched proceedings and waited to see if the registered keeper has the nous to research the POFA and to meaningfully defend, or if they could gain a default CCJ (as happens in 90% of small claims).  It is a lucrative gamble with the odds of wrongful success heavily weighted in the parking operators' favour, but this is plainly an abuse of the court process.  This baseless roboclaim demonstrates precisely the behaviour that HHJ Gargan identified in 35.1. This claim has no basis in law and neither the court nor the Defendant should be troubled with a hearing.

 

Preliminary matter: The claim should be struck out

8. The Defendant draws to the attention of the allocating Judge that there is now a persuasive Appeal judgment to support striking out the claim (in these exact circumstances of typically poorly pleaded private parking claims, and the extant PoC seen here are far worse than the one seen on Appeal).  The Defendant believes that dismissing this meritless claim is the correct course, with the Overriding Objective in mind.  Bulk litigators (legal firms) should know better than to make little or no attempt to comply with the Practice Direction.  By continuing to plead cases with generic auto-fill unspecific wording, private parking firms should not be surprised when courts strike out their claims based in the following persuasive authority.

9. A recent persuasive appeal judgment in Civil Enforcement Limited v Chan (Ref. E7GM9W44) would indicate the POC fails to comply with Civil Procedure Rule 16.4 and Practice Direction Part 16. On the 15th August 2023, in the cited case, HHJ Murch held that 'the particulars of the claim as filed and served did not set out the conduct which amounted to the breach in reliance upon which the claimant would be able to bring a claim for breach of contract'. The same is true in this case and in view of the Chan judgment, the Court should strike out the claim, using its powers pursuant to CPR 3.4

[4-page transcript goes here]

 

10. The claim has been issued via Money Claims Online and, as a result, is subject to a character limit for the Particulars of Claim section of the Claim Form.  The fact that generic wording appears to have been applied has obstructed any semblance of clarity.  The Defendant trusts that the court will agree that a claim pleaded in such generic terms lacks the required details and would have required proper particularisation in a detailed document within 14 days, per 16PD.3.  No such document has been served.

11. The Claimant will concede that no financial loss has arisen and that in order to impose an inflated parking charge, as well as proving a term was breached, there must be:

      i.        A strong 'legitimate interest' extending beyond mere compensation for loss, and

     ii.        'Adequate notice' of the 'penalty clause' charge which, in the case of a car park, requires prominent signs and lines.

12. The Defendant denies (i) or (ii) have been met. The charge imposed, in all the circumstances is a penalty, not saved by ParkingEye Ltd v Beavis [2015] UKSC67 ('the Beavis case'), which is fully distinguished.

 

Exaggerated Claim and 'market failure' currently being addressed by UK Government

13. The alleged 'core debt' from any parking charge cannot exceed £100 (the industry cap).  It is denied that any 'Debt Fees' or damages were actually paid or incurred.

etc... template continues as per Coupon-mad's template defence located via the NEWBIE forums.

Coupon-mad

That'll do except you have repeated HHJ Gargan's words which appear twice.

cheme7676

Well spotted! Thanks @Coupon-mad. Corrected it and in the process of signing and submitting the defence.

Thank you for your help so for, will keep you updated.

UncleThomasCobley

The preliminary matter, is precisely that. It should be your paras #2 and #3. So, paras #8 and #9 should become paras #2 and #3 which will then definitely make it a preliminary matter.

cheme7676

Hi all,

Hope you're keeping well.

Forgot to update here that I submitted the defence and MCOL updated to reflect this.

On a side note, I submitted the DQ via email in the same way the other ticket I have 3 weeks before this and MCOL still hasn't updated on that one to reflect anything - it's still stuck on "DQ filed by claimant on 02/10/2023". I did receive the email acknowledgement though.

I know it's probably okay since the court is being swamped at the moment but it was unusual given it's been nearly 2 months since I submitted the DQ - thought I'd see if that's OK.

KeithP

You're right. Nothing to worry about. The CNBC seem to be taking a couple of months over this step at the moment.