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Received a letter of claim - ParkingEye via DCB Legal Ltd

Kooxr
Kooxr Posts: 6
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edited 28 October 2023 at 11:31PM in Parking tickets, fines & parking
After a long chain for threatening letters, Final reminders and Notice of Intended Legal Action - received my Letter of Claim dated 26 Sep 2023
As per forum advice I filed AOS (Acknowledgment of Service) via Moneyclaim.gov.uk


I have also prepared a Defence letter, wanted someones opinion on it if possible, i have just added the paragraphs related to my case, the rest is the template kindly provided in the forum:

  1. The Defendant's vehicle was parked for a duration of 39 minutes while awaiting the preparation of a takeaway order. The Defendant resides nearby and has customarily utilised the car park for short durations while shopping at the neighbouring Morrisons supermarket. The Defendant was under the understanding that there was free parking for up to 2 hours, a rule which was commonly adhered to during daylight hours. The event occurred around 22:00, at which time the lighting was very poor, if present at all, making any parking restrictions signage not visible during the evening hours at the time of the incident
  2. The vehicle was leased through a company called Onto, and the Defendant received an email from them containing the charge letter on the 17th of May 2022, which is more than a month after the event. This delay made it impossible to appeal the charge, as the letter stated that only 28 days are given for appeal, which had already elapsed by the time the Defendant was made aware of the charge.
  3. The claim basis provided in the Parking Charge Information is incorrect. The Hallsville Quarter, London - Basement and Surface car park is not a paid parking car park as stated, but a free 2-hour car park. The Defendant asserts that the claim of a required tariff payment is erroneous as the car park has been known to provide free parking for up to 2 hours, and there was no visible signage indicating otherwise at the time of the event
My questions:
  1. Do i still need to send a SAR to Parking EYE via their Privacy page form, also what i should request apart form the photos and letters/emails?
  2. Do i try to approach their litigation team at [email protected] and ask for the case to be struck? whats the best approach?
In my defence i have proof of the take away order i made at this time and also the letter from leasing company, informing me of the pcn, which i received more than a month after the event
The carpark is no longer there but here is the google street view timeline photo of the sign:


Thanks for reading this and if anyone can share their thoughts i would appreciate it
I am also happy to inform everyone about the progress of this case for others

Best. 
«1

Comments

  • KeithP
    KeithP Posts: 37,035
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    edited 11 October 2023 at 9:20PM
    Kooxr said:
    After a long chain for threatening letters, Final reminders and Notice of Intended Legal Action - received my Letter of Claim dated 26 Sep 2023
    Hello and welcome.

    I think you received a Letter of Claim back in August.
    You have shown us a MCOL screen print indicating that a County Court Claim was issued against you on 26 September 2023.

    With a Claim Issue Date of 26th September, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 30th October 2023 to file your Defence.

    That's over two weeks away. Plenty of time to produce a Defence and it is good to see that you are not leaving it to the last minute.
    To create a Defence, and then file a Defence by email, look at the second post in the NEWBIES thread.
    Don't miss the deadline for filing a Defence.

    Do not try and file a Defence via the MoneyClaimOnline website. Once an Acknowledgment of Service has been filed, the MCOL website should be treated as 'read only'.

    You mention that you don't care about the vehicle's registration number being seen because you have sold the vehicle. But that VRM uniquely identifies the vehicle and indeed you. PE and BWL now know exactly which parking incident is being discussed here.
  • Kooxr
    Kooxr Posts: 6
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    Thanks for the reply, do you suggest i remove any specific data? The car is owned by leasing company so cannot be traced to me but of course can be to a specific event.. 
  • Coupon-mad
    Coupon-mad Posts: 129,032
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    edited 11 October 2023 at 11:35PM
    I say you should state this as paragraphs 2, 3 & 4 and remove the usual subheading  'The facts known to the Defendant':


    2. It is admitted that the Defendant leased this vehicle via a company called Onto, and heard nothing about the issue until a month later. This delay made it impossible to appeal the charge, as the letter stated that only 28 days are given for appeal, which had already elapsed. It was unclear what the allegation was and no evidence has ever been supplied.

    2,1. No compliant Notice to Hirer (which must have included the enclosures prescribed in paragraphs 13 & 14 of Schedule 4 of the Protection of Freedoms Act 2012) was ever served to the Defendant.  Thus it is denied that this Claimant is able to hold the lessee liable, even if there was a breach, which the Defendant neither admits nor denies due to the lack of information and evidence. 

    3.  The Particulars of Claim ('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 is being pursued.  The POC are entirely inadequate, in that they fail to particularise:

    (a) the contractual term(s) relied upon; 
    (b) the details of any alleged breach of contract;
    (c) the time when the alleged conduct occurred
    and
    (d) how the purported added £70 'damages' arose - a sum which never features on any ParkingEye sign, so is not based upon contract.  It is loosely described as damages but the woeful POC fail to make any case to support it. 

    3.1.  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.

    3.2.  The Defendant draws to the attention of the allocating Judge that there is now a persuasive Appeal judgment to support striking out boilerplate parking claims.  The Defendant believes that dismissing this meritless claim is the correct course, with the Overriding Objective in mind.  Bulk litigators - which includes ParkingEye and DCB Legal - 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 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 the Practice direction to 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

    (Here you put a full image of the CEL v Chan transcript - obviously this is new and is literally everywhere on the forum this month...please look)

    Then amalgamate the usual 4 and 5 from the Template Defence into a single para 5 and you are done.

    DO NOT TALK ABOUT WHAT THE PCN SAYS THE CONTRAVENTION WAS. THE POINT IS THAT THE POC DOESN'T TELL YOU.

    Make sure you email this signed defence AFTER the expiry of at least 14 days past the issuance of the Claim Form.  Then they can't quickly send better POC! 

    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top of this/any page where it says:
    Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • Kooxr
    Kooxr Posts: 6
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    Many thanks for the reply @Coupon-mad - will follow it and do the update later
  • Kooxr
    Kooxr Posts: 6
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    I say you should state this as paragraphs 2, 3 & 4 and remove the usual subheading  'The facts known to the Defendant':


    2. It is admitted that the Defendant leased this vehicle via a company called Onto, and heard nothing about the issue until a month later. This delay made it impossible to appeal the charge, as the letter stated that only 28 days are given for appeal, which had already elapsed. It was unclear what the allegation was and no evidence has ever been supplied.

    2,1. No compliant Notice to Hirer (which must have included the enclosures prescribed in paragraphs 13 & 14 of Schedule 4 of the Protection of Freedoms Act 2012) was ever served to the Defendant.  Thus it is denied that this Claimant is able to hold the lessee liable, even if there was a breach, which the Defendant neither admits nor denies due to the lack of information and evidence. 

    3.  The Particulars of Claim ('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 is being pursued.  The POC are entirely inadequate, in that they fail to particularise:

    (a) the contractual term(s) relied upon; 
    (b) the details of any alleged breach of contract;
    (c) the time when the alleged conduct occurred
    and
    (d) how the purported added £70 'damages' arose - a sum which never features on any ParkingEye sign, so is not based upon contract.  It is loosely described as damages but the woeful POC fail to make any case to support it. 

    3.1.  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.

    3.2.  The Defendant draws to the attention of the allocating Judge that there is now a persuasive Appeal judgment to support striking out boilerplate parking claims.  The Defendant believes that dismissing this meritless claim is the correct course, with the Overriding Objective in mind.  Bulk litigators - which includes ParkingEye and DCB Legal - 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 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 the Practice direction to 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

    (Here you put a full image of the CEL v Chan transcript - obviously this is new and is literally everywhere on the forum this month...please look)

    Then amalgamate the usual 4 and 5 from the Template Defence into a single para 5 and you are done.

    DO NOT TALK ABOUT WHAT THE PCN SAYS THE CONTRAVENTION WAS. THE POINT IS THAT THE POC DOESN'T TELL YOU.

    Make sure you email this signed defence AFTER the expiry of at least 14 days past the issuance of the Claim Form.  Then they can't quickly send better POC! 

    Last question - do i need to copy the rest of the text in the template defence after amalgamating 4 and 5 into single paragraph 5?

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

    Followed by Paragraphs 6..30?"

    Or just jump to statement of Truth ?

  • KeithP
    KeithP Posts: 37,035
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    You need all the rest of the template Defence.
  • Kooxr
    Kooxr Posts: 6
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    KeithP said:
    You need all the rest of the template Defence.
    much appreciated for a fast reply @KeithP
  • Coupon-mad
    Coupon-mad Posts: 129,032
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    edited 28 October 2023 at 11:22PM
    And of course the Chan transcript must be shown too. As I said in the above reply.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top of this/any page where it says:
    Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • Kooxr
    Kooxr Posts: 6
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    And of course the Chan transcript must be shown too. As I said in the above reply.
    Yes, certainly. Thanks for your reply @Coupon-mad !
  • Hello all, happy NY!  I have recently referenced the CEL v Chan case in a defence against CIL which used an identical PoC.  I completed the defence through the Money Claim website which did not provide me the opportunity to attach the Chan transcript.  My defence is below, comments are welcome but it's already been submitted. 

    My question is, if the allocating judge does not strike out the claim because I failed to include the transcript or they just miss the prelim matter, which I unfortunately placed at the end of my defence, can I apply again to have the claim struck out on the same grounds at a later stage in proceedings?  

    "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 or that Civil Enforcement Limited (the claimant) have authority to levy any charges on the defendant.

    The defendant was a customer of (details omitted), their son having a pre-booked (details omitted) which started 1 minute before entering the car park and finished 6 minutes before leaving (details omitted). The (details omitted) website clearly states that parking is free for customers. The defendant was therefore permitted to park for free by the land owner (details omitted). The claimant (Civil Enforcement Limited) has an agreement with the land owner that allows them to charge a tariff to non-customers using the car park. They do not have authority to charge customers of (details omitted).

    Terms & Conditions are not displayed on entry to the car park. There are three terms stated in small print on signs in the car park, only readable by zooming in with a camera, which are stated to be applicable only to non-customers of (details omitted). The claimant has not provided any indication of which of these terms they believe the defendant was in violation of. Nevertheless, the defendant asserts that none of these are applicable in the present case, as the defendant was permitted to park for free by the land owner.

    Notwithstanding the above, the amount claimed is not consistent with the amount indicated for violation of terms: on car park signage, on the land owner’s website, or in any communications between Civil Enforcement Limited and the defendant and is exorbitant in the context of a low value car park in a residential area where parking on the surrounding streets is free and in plentiful supply.

    While the common law penalty doctrine and related considerations within the Unfair Terms in Consumer Contracts Regulations 1999 have been redefined by the Supreme Court in the Bevis v. Parking Eye ruling (2015 UKSC 67), this does not provide free rein for parking companies to act with wilful disregard of the requirement for fair and equitable dealing or to impose penalties that are excessive or unconscionable. Penalty charges must still be commercially necessary for the operation of a scheme which provides a commercially justifiable service in the context of the
    specific car park. Notwithstanding the defendant's assertion that no applicable contractual terms have been violated, the defendant notes that the penalty charges for failing to comply with the terms of the scheme at (details omitted) are unconscionable and cannot be upheld.

    Preliminary matter: The claim should be struck out

    The claim should be struck out as the particulars of the claim, as filed, do not comply with the Practice Directions. Specifically, Direction 16, paragraph 7.5:

    “Where a claim is based upon an agreement by conduct, the particulars of claim must specify the conduct relied on and state by whom, when and where the acts constituting the conduct were done.”

    The defendant draws the attention of the court to a persuasive appeal judgment that supports striking out the claim in these exact circumstances, indeed related to an identical claim brought by the same company as the present case. The Particulars of Claim (PoC) provided by Civil Enforcement Limited in the present case are identical in every material sense to the PoC provided in the Civil Enforcement Limited v. MT Chan case (Ref. E7GM9W44), in
    which HHJ March held that the particulars of the claim did not set out the conduct which amounted to a breach of contract (contrary to the Practice Directions) and therefore the claim should be struck out.

    Furthermore, in the present case, the claimant was given ample opportunity to detail the conduct that they believed constituted a breach of contract prior to making a claim through the courts. The defendant requested details via the claimant’s web systems which was responded to on the (details omitted) with no effort made by the claimant to answer any of the queries raised. Further letters were sent by the defendant on the (details omitted) and (details omitted) which received no response. These letters were enclosed again in a letter from the defendant on the (details omitted). This time a response was provided but again the claimant failed to detail the specific conduct that they believed represented a breach of contract.

    The claimant has already received a ruling against them in a similar case with clear direction from HHJ March that it is
    incumbent on them (as the claimant) to set out how it is that the entitlement to charge arises within the particulars of the claim. The claimant was also asked to explain their entitlement to charge on a number of occasions by the defendant prior to court action. Therefore, the claim demonstrates a flagrant disregard for the Practice Directions, previous decisions and direction from the court, and reasonable commercial behaviour. On this basis the claim should be struck out."
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