Help with Defence for claim by Met Parking + DCB Legal

Ohmy_123

I received Claim form recently, acknowledged it and am working on defence now.
I have a few days left until deadline, so I'd appreciate help / feedback on my defence draft.

I started with the recommended template. In my case claimed "parking" was measured by ANPR located on entrance and exit of BP filling station. There is also a car wash onsite, which is also behind those cameras. Therefore entrance and exit photos from ANPR cameras don't measure parking, they don't even prove there was parking at all, since the time onsite could've been taken by using car wash, filling up and queue for those.
I am actually quite surprised they decided to sue, but whatever.

The closest I found to my case was this thread:  gatwick-north-petrol-station/p4 (sorry, can't post links).

I was thinking on borrowing points about ANPR being flawed. However I am wondering if I should do that, because PoC did not mention anything about evidence and were just super generic. Should I just skip ANPR thing for now and leave if for when they share actual evidence? Or should I mention it in the defence to maximise chance of throwing the claim out at early stages?

I am also wondering if there are other threads that I didn't find that have stronger emphasis on the fact that they put up cameras in front of a filling station and record that as "parking". That just sounds crazy to me and it sounds like the claim should be thrown out by judge right away. Maybe someone can help me finding / coming up with such wording? (English is not my native language, let alone the language used in courts..)

Here's my draft of defence (points 5-8 added, the rest taken from the template):

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').

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 and driver.

Preliminary matter: The claim should be struck out

3. The Defendant draws to the attention of the allocating Judge that there is now a persuasive Appeal judgement 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 judgement in Civil Enforcement Limited v Chan (Ref. E7GM9W44) would indicate the POC fail 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 judgement, the Court should strike out the claim, using its powers pursuant to CPR 3.4

The facts known to the Defendant:

5. The Claimant uses ANPR technology to measure "parking". The accuracy and reliability of such a system is questionable. In the case of ParkingEye v Fox-Jones on 8 Nov 2013 the case was dismissed when the judge said the evidence from the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

6. The Claimant measures "parking" using ANPR cameras on entrance and exit of a site, where a car wash and a filling station are situated. This is a fundamental flaw of the enforcement implementation as such measurements cannot reasonably estimate the actual parking or even demonstrate that there was parking at all.

7. The Claimant states the car was parked in breach of terms, but they did not provide any proof of the car being parked. They merely provided photos of the car entering and leaving the site, which is shared between a car park, a filling station and a car wash. Using or queueing for neither filling station nor carwash can reasonably be considered parking.

8. The site had insufficient signage. As can be later shown by evidence from Google Maps service, there were no signs opposite to many parking lots in a row. At the same time, there were several signs with marketing information, which means there clearly was sufficient space to place signs with terms, but the Claimant did not prioritise placing this crucial information.

9. 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.

10. 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

11. 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.

12. This claim is unfair and inflated and it is denied that any sum is due in debt or damages. This Claimant routinely pursues an unconscionable fixed sum added per PCN, despite knowing that the will of Parliament is to ban it.

13. This is a classic example where adding exaggerated fees funds bulk litigation of weak and/or archive parking cases. No checks and balances are likely to have been made to ensure facts, merit or a cause of action (given away by the woefully inadequate POC).

14. The Department for Levelling Up, Housing and Communities ('the DLUHC') published a statutory Parking Code of Practice in February 2022: [LINK]

The Ministerial Foreword is damning: "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." 

15. Despite legal challenges delaying the Code (temporarily withdrawn) it is now 'live' after a draft Impact Assessment (IA) was published on 30th July 2023. The Government's analysis is found here: [LINK]

16. Paragraphs 4.31 and 5.19 state that the parking industry has shown the DLUHC that the true minor cost of pre-action stage totals a mere £8.42 per case (not per PCN).

17. This claim has been enhanced by a disproportionate sum, believed to enrich the litigating legal team. It appears to be double recovery, duplicating the intended 'legal fees' cap set by small claims track rules.

18. The draft IA shows that the intimidating letter-chains endured by Defendants cost 'eight times less' than the fixed +£70 per PCN. This causes immense consumer harm in the form of some half a million wrongly-enhanced CCJs each year, that Judges are powerless to prevent. MoJ statistics reveal several hundred thousand parking claims per annum, with c90% causing default CCJs totalling hundreds of millions of pounds. The false fee was enabled by the self-serving Codes of Practice of the rival parking Trade Bodies who aligned in 2021 to allow +£70, each led by a Board comprising the parking and debt firms who stood to gain from it. 

19. It is denied that the added damages/fee sought was incurred or is recoverable. Attention is drawn to paras 98, 100, 193, 198 of Beavis. 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 ratified by the CoA) held in paras 419-428 that 'admin costs' inflating a PCN to £135 exaggerated the cost of template letters and 'would appear to be penal'.

20. This Claimant has not incurred costs. A PCN model already includes what the Supreme Court called an 'automated letter-chain' and it generates a healthy profit. In Beavis, there were 4 pre-action letters/reminders and £85 was held to more than cover the minor costs of the operation (NB: debt collectors charge nothing in failed collection cases).

21. Whilst the new Code is not retrospective, all non-monetary clauses went unchallenged. It will replace the self-serving BPA & IPC Codes, which are not regulation and carry limited weight. It is surely a clear steer for the Courts that the DLUHC said in 2023 that it is addressing 'market failure'.

22. At last, the DLUHC's analysis overrides plainly wrong findings by Circuit Judges steered by Counsel in weak appeal cases that the parking industry steamrollered through. In Vehicle Control Services v Percy, HHJ Saffman took a diametrically opposed position to that taken by DJ Hickinbottom, DJ Jackson (as Her Honour Judge Jackson then was), and other District Judges on the North Eastern Circuit, including DJ Skalskyj-Reynolds and DJ Wright (Skipton) all of whom have consistently dismissed extortionate added 'fees/damages'. District Judges deal with private parking claims on a daily basis, whereas cases of this nature come before Circuit Judges infrequently. The Judgments of HHJ Parkes in Britannia v Semark-Jullien, and HHJ Simpkiss in One Parking Solution v Wilshaw were flawed. These supposedly persuasive judgments included a universal failure to consider the court's duty under s71 of the CRA 2015 and factual errors. In Wilshaw: a badly outdated reliance on 'ticket cases' which allowed poor signage to escape fair scrutiny and a wrong presumption that landowner authority 'is not required' (DVLA rules make it mandatory). In Percy, HHJ Saffman made an incorrect assumption about pre-action costs and even sought out the wrong Code of Practice of his own volition after the hearing, and used it to inform his judgment.

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 from a registered keeper. The Claimant is put to strict proof of POFA compliance if seeking 'keeper liability'.

24. The Defendant avers that there was no agreement to pay a parking charge or added 'damages' which were not even incurred, let alone quantified in bold, prominent text. This Claimant's lack of large, readable signs are nothing like the yellow & black warnings seen in Beavis, nor do they meet the signage requirements in the DLUHC Code which reflects the already statutory requirement for 'prominence' (Consumer Rights Act 2015 - the 'CRA').

CRA breaches

25. Section 71 CRA creates a statutory duty upon Courts to consider the test of fairness whether a party raises it or not. Further, claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3): [LINK]

26. The CRA introduced new requirements for 'prominence' of both terms and 'consumer notices'. In a parking context, this includes a test of fairness and clarity of 'signs & lines' and all communications (written or otherwise). Signs must be prominent (lit in hours of darkness/dusk) and all terms must be unambiguous and contractual obligations clear.

27. The Defendant avers that the CRA has been breached due to unfair/unclear terms and notices, pursuant to s62 and paying regard to examples 6, 10, 14 & 18 of Schedule 2 and the duties of fair/open dealing and good faith (NB: this does not necessarily mean there has to be a finding of bad faith). 

ParkingEye v Beavis is distinguished

28. Unlike in Beavis, the penalty rule remains engaged. The CRA covers disproportionate sums, which are not exempt from being assessed for fairness because a 'fee' is not the core price term and neither was it prominently proclaimed on the signs. 

29. The Supreme Court held that deterrence is likely to be penal if there is a lack of a 'legitimate interest' in performance extending beyond the prospect of compensation flowing directly from alleged breach. The intention cannot be to punish a driver, nor to present them with hidden terms or cumbersome obligations ('concealed pitfalls or traps'). This Claimant has failed those tests, with small signs, hidden terms and minuscule small print that is incapable of binding a driver. Court of Appeal authorities about a lack of ‘adequate notice’ of a parking charge include:

(i) Spurling v Bradshaw [1956] 1 WLR 461 (Lord Denning's ‘red hand rule’) and

(ii) Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ2,

both leading authorities that a clause cannot be incorporated after a contract has been concluded; and

(iii) Vine v London Borough of Waltham Forest: CA 5 Apr 2000, where Ms Vine won because it was held that she had not seen the terms by which she would later be bound, due to "the absence of any notice on the wall opposite the parking space''. 

30. Fairness and clarity of terms and notices are paramount in the DLUHC Code and these clauses are supported by the BPA & IPC. In Parking Review, solicitor Will Hurley, CEO of the IPC, 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." 

Lack of standing or landowner authority, and lack of ADR

31. DVLA data is only supplied if there is an agreement flowing from the landholder (ref: KADOE rules). It is not accepted that this Claimant (an agent of a principal) has authority to form contracts at this site in their name. The Claimant is put to strict proof of their standing to litigate.

32. The Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR). The DLUHC Code shows that genuine disputes such as this should see PCNs cancelled, had a fair ADR existed. The rival Trade Bodies' time-limited and opaque 'appeals' services fail to properly consider facts or rules of law and reject most disputes: e.g. the IAS upheld appeals in a woeful 4% of decided cases (ref: Annual Report). This consumer blame culture and reliance upon their own 'appeals service' (described by MPs as a kangaroo court and about to be replaced by the Government) should satisfy Judges that a fair appeal was never on offer.

Conclusion

33. There is now evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims that are causing consumer harm. The July 2023 DLUHC IA analysis shows that the usual letter-chain costs eight times less than the sum claimed for it. The claim is entirely without merit and the POC embarrassing. The Defendant believes that it is in the public interest that poorly pleaded claims like this should be struck out.

34. In the matter of costs, the Defendant seeks:

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

(b) a finding of unreasonable conduct by this Claimant, and further costs pursuant to CPR 46.5. 

35. Attention is drawn to the (often-seen) distinct possibility of an unreasonably late Notice of Discontinuance. Whilst CPR r.38.6 states that the Claimant is liable for the Defendant's costs after discontinuance (r.38.6(1)) this does not 'normally' apply to claims allocated to the small claims track (r.38.6(3)). However, the White Book states (annotation 38.6.1): "Note that the normal rule as to costs does not apply if a claimant in a case allocated to the small claims track serves a notice of discontinuance although it might be contended that costs should be awarded if a party has behaved unreasonably (r.27.14(2)(dg))."

KeithP

Hello and welcome.

What is the Issue Date  on your County Court Claim Form?

Upon what date did you file an Acknowledgment of Service?
Your MCOL Claim History will have the definitive answer to that.

UncleThomasCobley

The "preliminary matter" should be paras #2 and #3. Your current para #2 should then become para #4 and the rest as is.

You must embed the CEL v Chan transcript as JPEG images after para #3.

Coupon-mad

And then get rid of 5 and 6 which add nothing.

Job done for now! Read the first 12 steps in the Template Defence thread to be ready for the first letters without needing help.

In the meantime please take a moment this month, to provide your court case evidence to this Justice Committee (we all are):
https://committees.parliament.uk/work/7972/work-of-the-county-court/

Please also state that private parking firms and their bulk litigators are the problem as far as small claims are concerned.

Parking claim numbers are rising every year and will make up about a third of all small claims in 2023, based on the 2022 figures that the MoJ divulged in the DLUHC's recent Parking Code of Practice Call for Evidence:
https://www.gov.uk/government/calls-for-evidence/private-parking-code-of-practice-call-for-evidence#:~:text=The%20call%20for%20evidence%20is,help%20the%20decision%2Dmaking%20process.

About half a million parking claims are made every year and it MUST STOP.

These generic roboclaims churn through the system, clogging up court time over meritless rip-off PCNs where the POC are boilerplate and lack even the most basic details of the alleged breach (please show your own Claim Form as evidence) and attach CEL v Chan and say parking claim bulk litigators should be banned from the county court system as vexatious litigants.

They are inviting evidence not rants or opinion so we need people like you to respond, who are currently caught up in a PPC claim and can attach the above evidence.

Closes in just 3 weeks or so.

Please do it to push for parking cases to be taken out of this system.

You want to change things? This Committee is your voice.  The Government is already regulating the private parking industry, so they are listening and are aware of the scourge of unfair PCNs from rogues and bulk litigators.

Ohmy_123

KeithP said:

Hello and welcome.

What is the Issue Date  on your County Court Claim Form?

Upon what date did you file an Acknowledgment of Service?
Your MCOL Claim History will have the definitive answer to that.

I'm not sure it'll add much value, but the exact dates will make the case more identifiable. In terms of timeline I have about 3-5 days left to submit the defense.

KeithP

Ohmy_123 said:

KeithP said:

Hello and welcome.

What is the Issue Date  on your County Court Claim Form?

Upon what date did you file an Acknowledgment of Service?
Your MCOL Claim History will have the definitive answer to that.

I'm not sure it'll add much value, but the exact dates will make the case more identifiable. In terms of timeline I have about 3-5 days left to submit the defense.

OK. Your choice.

By the way, there is no letter 's' in the word defence.  

Ohmy_123

And then get rid of 5 and 6 which add nothing

So ANPR flaws do not help at this stage? And the fact that ANPR cameras are located at the entrance of a shared site is also not helpful?

UncleThomasCobley

Ohmy_123 said:

I'm not sure it'll add much value, but the exact dates will make the case more identifiable. In terms of timeline I have about 3-5 days left to submit the defense.

If you honestly believe that there is some dark room staffed by yoofs in hoodies scouring the interweb for anything that can identify one of their many thousands of ongoing roboclaims, then you perhaps should also wear a tin foil hat. 99.9% of posters on here who have a claim tell us the issue date of their claim so that they can receive accurate advice on timings.

I've just had a scour of your IP address and I bet your claim form was signed by Yasmin Mia.   

Coupon-mad

No and the Fox-Jones case is and always was useless.  No idea where you dug it up from.  It's a 10 year old case with no transcript and isn't persuasive anyway.

the entrance of a shared site is also not helpful?

I'd mention that (only) but you'll win anyway.

Ohmy_123

Thanks everyone! I sent my defence via email. I'm a bit worried that there are no updates on moneyclaim.gov.uk. Should I track it there and make sure status is updated to something like "Defence submitted"? Or is it good enough that I got an automatic reply from CCBCAQ@Justice.gov.uk?

KeithP

Ohmy_123 said:

Thanks everyone! I sent my defence via email. I'm a bit worried that there are no updates on moneyclaim.gov.uk. Should I track it there and make sure status is updated to something like "Defence submitted"? Or is it good enough that I got an automatic reply from CCBCAQ@Justice.gov.uk?

The fact that you have an automatic email receipt is good enough for the moment.
In the next few days your MCOL Claim History will be updated to reflect that.