claim form for parking - DCB legal

greatsag

please see paragraph 9 for POFA schedule 4

KeithP

greatsag said:

please see paragraph 9 for POFA schedule 4

err... you have two paragraphs numbered '9' - one has double spaced lines.

Your first para 9 starts "9. I also believe the Failure to meet conditions for POFA Schedule 4 paragraph 9...", but there is no explanation of how it fails to meet those conditions.

Coupon-mad

You don't seem to have sorted out the issues.  You still have this that I told you that you can't say.  You MUST attach all evidence now:

"the defendant is more than happy to produce a witness statement from the organisation "

And in this latest draft there's still no quoting of the POFA Sch 4 clause 4 about the 'right to keeper liability' and why the fact you named the driver to DCB Ltd in 2022 (not DCB Legal in my view) means there can be no keeper liability.

It's a really easy legal concept but you do have to point these things out to some Judges as they are solicitors, not POFA experts.

Le_Kirk

.......... and you are using "the defendant" whereas it should be "I"; defences are third person, witness statements are first person.

greatsag

I removed the paragraph regarding the driver because the driver was my wife so I don't want her to be in trouble. 

greatsag

  Table of Content 

 

 

 

Witness Statement of Defendant                                                                                      2  

Exhibit xx-01 - Civil Enforcement v Ming Tak Chan Judgment                                       09  

Exhibit xx-02 - Parallel Parking v Anon.                                                                             13

 Exhibit xx-03 - Another Badly Pleaded Parking Claim 1.                                                14

 Exhibit xx-04 - Another Badly Pleaded Parking Claim 2.                                                15

 Exhibit xx-05 – Excel v Wilkinson Case Transcript                                                              17

Exhibit xx-06 - The Beavis case sign for comparison.                                                           27

 Exhibit xx-07 - ParkingEye Limited v Beavis.                                                                       28  

 Exhibit xx-08 - VCS v Edwards Transcript                                                                            30  

Exhibit xx-09 - Excel v Smith Transcript                                                                               39

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Parking eye  Ltd (Claimant)

V

XXX XXX (Defendant)

           Claim number : 

 

Witness Statement of Defendant

 

1.       I am XXX, (ADDRESS) and I am the defendant against whom this claim is made. The facts below are true to the best of my belief and my account has been prepared based upon my own knowledge.

 

2.       In my statement, I shall refer to (Exhibits 1-9) within the evidence supplied with this statement, referring to page and reference numbers where appropriate. My defence is repeated and I will say as follows:

 

Preliminary matter: The claim should be struck out

3.       The Defendant draws to the attention of the court 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.

4.       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. (See  Exhibit xx-01)

 

5.       Similarly, at the Wakefield County Court on 8th September 2023, District Judge Robinson considered mirror image POC in claim K3GF9183 (Parallel Parking v anon) and struck the Claim out without a hearing. (See Exhibit xx-02)

 

6.       Likewise, in January 2023 (also without a hearing) District Judge Sprague, sitting at the County Court at Luton, struck out a similarly badly-pleaded parking claim with a full explanation of his reasoning. (See Exhibit xx-03)

 

7.       Furthermore, at Manchester District Judge McMurtrie and District Judge Ranson also struck out a claim (again without a hearing) on the grounds of POC’s lacking clarity, detail, and precision. As stated in the final image below, the Claimant’s solicitors confirmed they would not file an amended POC, demonstrating again the reliance of a number of firms on robo-letters and illegitimate practices. (See Exhibit xx-04)

 

8.       I believe the Claim should be struck out and should not have been accepted by the CNBC due to a represented parking firm Claimant knowingly breaching basic CPRs.  The specifics of this case lack clarity, as no explicit statement has been provided to indicate which specific term of the alleged contract was purportedly breached. This lack of specificity places me, the Defendant, at a distinct disadvantage, as I find myself in the position of having to mount a defence without a clear understanding of the precise nature of the alleged violation.

 

 

Facts and Sequence of events

9 It is admitted that I was the vehicle's registered keeper in question. I was not the driver of the vehicle on the date.  I was working that day in the usual place of work which is 25 miles from the place where the claimant mentioned, please find the witness statement from the organisation that will illustrate that I was working at the usual place of work on the mentioned date.

 

10.   On 09/12/2022 at 13:47, I made a telephone call to the Claimant/Solicitors (DCB legal) I  know the name of the person who received the call – I am not sure can write the name here ) and informed them that  I was not the driver for that day. I requested to record the calls as it would be useful in case the case goes to court. They informed me that the calls are recorded and will be available at any time.

 

 

 

 

 

 

 

 

Exaggerated Claim and 'market failure' currently examined by the Government

 

11.    The alleged 'core debt' from any parking charge cannot have exceeded £100 (the industry cap set out in the applicable Code of Practice at the time). I have seen no evidence that the added damages/fees are genuine.

 

12.    I say that fees were not paid out or incurred by this Claimant, who is to put strict proof of:

(i) the alleged breach, and

(ii)  a breakdown of how they arrived at the enhanced quantum claimed, including how interest has been calculated, which appears to have been applied improperly on the entire inflated sum, as if that figure was immediately overdue on the day of an alleged parking event.

13.             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.

(iii).  Interest appears to be miscalculated on the whole enhanced sum from day one as if the entire sum was 'overdue' on the day of parking;

14.    This Claimant routinely pursues a disproportionate additional fixed sum(inexplicably added per PCN) despite knowing that the will of Parliament is to ban or substantially reduce the disproportionate 'Debt Fees'. This case is a classic example where the unjust enrichment of exaggerated fees encourages the 'numbers game' of inappropriate and out of control bulk litigation of weak/archive parking cases. No pre-action checks and balances are likely to have been made to ensure facts, merit, position of signs/the vehicle, or a proper cause of action.

 

15.    The Department for Levelling Up, Housing and Communities (the DLUHC) first published its statutory Parking Code of Practice on 7thFebruary 2022, here: 

https://www.gov.uk/government/publications/private-parking-code-of-practice

"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."

16.    Despite legal challenges delaying the Code's implementation (marking it as temporarily 'withdrawn' as shown in the link above) a draft Impact Assessment (IA) to finalise the DLUHC Code was recently published on 30th July 2023, which has exposed some industry-gleaned facts about supposed 'Debt Fees'. This is revealed in the Government's analysis, found here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1171438/Draft_IA_-_Private_Parking_Code_of_Practice_.pdf

 

17.    Paragraphs 4.31 and 5.19 reveal that the parking industry has informed the DLUHC that the true minor cost of what the parking industry likes to call debt recovery or 'enforcement' (pre-action) stage totals a mere £8.42 per recovery case.

 

18.    With that sum in mind, it is clear that the extant claim has been enhanced by an excessive amount, disingenuously added as an extra 'fee'. This is believed to be routinely retained by the litigating legal team and has been claimed in addition to the intended 'legal representatives fees' cap set within the small claims track rules. This conduct has been examined and found - including in a notably detailed judgment by Her Honour Judge Jackson, now a specialist Civil High Court Judge on the Leeds/Bradford circuit - to constitute 'double recovery' and the Defendant takes that position.

 

19.    The new draft IA now demonstrates that the unnecessarily intimidating stage of pre-action letter-chains actually costs 'eight times less' (says the DLUHC analysis) than the price-fixed £70 per PCN routinely added. This has caused consumer harm in the form of hundreds of thousands of inflated CCJs each year that District Judges have been powerless to prevent. This abusively enhanced 'industry standard' Debt Fee was enabled only by virtue of the self- serving Codes of Practice of the rival parking Trade Bodies, influenced by a Board of parking operators and debt firms who stood to gain from it.

 

20.    In support of my contention that the sum sought is unconscionably exaggerated and thus unrecoverable, attention is drawn to paras 98, 100, 193, 198 of ParkingEye Ltd v Beavis [2015] UKSC67 ('the Beavis case'). 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 (decision later ratified by the CoA) held in paras 419-428 that unspecified 'admin costs' inflating a parking charge to £135 was not a true reflection of the cost of a template letter and 'would appear to be penal.

 

21.    This Claimant has not incurred any additional costs because the full parking charge (after expiry of discount) is already high and more than covers what the Supreme Court called an 'automated letter-chain' business model that generates a healthy profit. In Beavis, there were 4 or 5 letters in total, including pre-action phase reminders. The £85 parking charge was held to cover the 'costs of the operation' and the DLUHC's IA suggests it should still be the case that the parking charge itself more than covers the minor costs of pre-action stage, even if and when the Government reduces the level of parking charges.

 

22.    Whilst the new Code is not retrospective, the majority of the clauses went unchallenged by the parking industry and it stands to become a creature of statute due to the failure of the self-serving BPA & IPC Codes. The DLUHC's Secretary of State mentions they are addressing 'market failure' more than once in the draft IA, a phrase which should be a clear steer for Courts in 2023 to scrutinise every aspect of claims like this one.

 

23.    In addition, pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 ('the POFA') the sum claimed exceeds the maximum potentially recoverable. It is also disproportionate and in breach of the Consumer Rights Act 2015 (CRA).

greatsag

so please let me know this is ok

Coupon-mad

You've removed the winning point that you named the driver in 2022.  This will not get your wife in trouble. 

greatsag

ok i will add it

Coupon-mad

Yes, plus the legal argument I said already in two replies... plus reading clause 4 of Schedule 4 and quoting it.