DCB Legal Claim form - defence help

kamiru

UPDATED BELOW

5. The Defendant acknowledges that he parked in Waterfields Retail Park Watford on this day to go shopping in the stores on site. The Defendant entered, parked and subsequently left the car park when he finished shopping. No parking contract was seen on the premises and therefore no agreement was made to any terms and conditions. The Defendant, based on the particulars of claim outlined, is unable to deduce what terms were breached, if any. 

Coupon-mad

Very good!

kamiru

Hi, quick update on the case and a question.

DCB Legal emailed me on 11th January 2024 with their completed DQ N180 attached. Their client intends to proceed with the case and they invited me discuss early settlement within 7 days. As per guidance on the forum, I will ignore this invitation and instead make an early start to complete my own DQ N180 in readiness for when CNBC emails requesting this. 

FYI this is DCB Legal's comment in section D1 on the form:
"There are factual disputes that will need to be heard by the judge directly and the Claimant will need the opportunity to cross examine the Defendant and test any evidence put forward by the Defendant. There are also complex issues of fact and law that will be best argued orally."

My answers to the form below:

• A1 = NO to mediation
• B = My contact details
• C1 = YES to small claims
• D1 = NO to determination without a hearing = "Determination without hearing seems to give a disproportionate advantage to the legally represented Claimant, whose entire business is issuing cut and paste parking case paperwork, and using misleading tactics to ensure payment of inflated charges. I feel strongly that I need a voice at an attended hearing. I wish to question the Claimant about their evidence, and to expose omissions and any misleading or incorrect evidence or assertion."
• E1 = Local County Court address for hearing venue
• E2 = NO to expert evidence
• E3 = 1 witness
• E4 = Pre-booked holidays included
• E5 = NO to vulnerable quesiton

Question: Would I gain/lose anything by including my girlfriend as a second witness or should I proceed alone?

Coupon-mad

You can add your gf as a second witness if she was there.

This is hilarious, given DCB Legal don't attend hearings and always discontinue!

FYI this is DCB Legal's comment in section D1 on the form:
"There are factual disputes that will need to be heard by the judge directly and the Claimant will need the opportunity to cross examine the Defendant and test any evidence put forward by the Defendant. There are also complex issues of fact and law that will be best argued orally."

kamiru

Hi, just a quick update that I’ve now received a “notice of transfer of proceedings” to my local county court for allocation. I’ll post another update when there’s movement on the case (or better yet when they decide to discontinue )

kamiru

Hi, I’ve now received notice of allocation to the small claims track letter. I’m in the middle of moving home so apologies in advance if i haven’t had the proper time to do my homework on this. A quick read on the forum, and the letter, indicates next steps are to produce a WS and file by 12th June. I haven’t got a clue if there are standard templates to follow but I have read through Citizen_K’s thread and found a link to their WS. Am I okay to follow this? Is there anything else I should be aware of (and may have missed)? 

Le_Kirk

There are some exemplars of witness statements in the second post of the NEWBIE sticky,  just pick the one most closely aligned with what you put in your defence, remembering that the WS serves to back up and support your defence with evidence. 

kamiru

Hi again,

Please see my draft WS below (and attached via link in this post). Advice and comments are much appreciated. I have also included a costs assessment in the exhibit section (at the end) as follows below - thanks to @AbbatheHorse for their example.

link to draft ws - https://drive.google.com/file/d/10yvCGYXBSc5lsjRZSWO35AzkDoApZhSP/view?usp=sharing

Defendant’s Schedule of Costs

Ordinary Costs

Loss of earnings through attendance at court hearing on xx/xx/2024: £95

 

Further costs for Claimant’s misconduct, pursuant to Civil Procedure Rule 44.11

Research, preparation and drafting documents (16 hours at Litigant in Person rate of £19 per hour): £304

 

TOTAL COSTS CLAIMED: £399

kamiru

Paragraphs (numbered on my end but formatting here has messed this up)

HIGHVIEW PARKING LIMITED

(Claimant)

- and -  

REDACTED            

 (Defendant)

____________________________

WITNESS STATEMENT

 

1. I am REDACTED, (REDACTED) 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.

1. In my statement, I shall refer to (Exhibits x-x) 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

1. 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.

1. 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(1)(e) and Practice Direction Part 16.7.5. 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).

1. 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).

1. 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).

1. 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).

1. The Defendant believes 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

1. 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.

1. I acknowledge that I parked in Waterfields Retail Park Watford on 30/04/2023 to go shopping in the stores on site. I entered, parked and subsequently left the car park when I finished shopping. No parking contract was seen on the premises and therefore no agreement was made to any terms and conditions. I, based on the particulars of claim outlined, am unable to deduce what terms were breached, if any.

1.  Images on Google Street View show the entrance to the car park and signage in place in xx 2020. Exhibit xx-05 shows the entrance to the car park as the second exit off the roundabout when approaching Tesco from the Waterfields Way slip road, with no parking signs visible as you first turn into the approach ramp (Exhibit xx-06).

1. Exhibit xx-07 shows that upon approaching to enter the car park, there is one small parking sign visible. In this image, it can clearly be seen that this sign states “xx—I need to double check wording—xx,” however any small print is clearly illegible, even when zooming in. For the driver, this sign is placed ahead as making a left turn to enter the parking bays.

1. Exhibit xx-08 shows the view from the vehicle as they arrive at the first parking space. It is clear that there are no further parking signs in the immediate vicinity, with only one visible in the distance in the second image.

1. At the time of alleged breach of contract, this was a free-to-use car park.  As such, there was no requirement to display any ticket and there were no payment machines in place in the car park. Therefore, there was no reason for any driver to specifically seek out any T&Cs that were not clearly displayed to the driver.
2. Exhibit xx-09 shows signage at Waterfields Retail Park Watford taken on 06/06/2024; however, I am unaware if this was the specific signage that was in place at the time of the alleged breach of contract.

1. Given the lack of clarity in the POC in relation to the alleged breach of contract, I consider that the onus is on the Claimant to prove that the signage in place at the time of the alleged offence was adequate and constituted an agreement of terms and provide evidence that these terms were breached by the myself, the Defendant.

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

1. 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.

1. 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.

1. 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;

1. 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.

1. 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."

1. 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

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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).

kamiru

CRA Breaches

1. Claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3), the Government guidance on the CRA which introduced new requirements for 'prominence' of both contract terms and 'consumer notices'. In a parking context, this includes a test of fairness and clarity of signage and all notices, letters and other communications intended to be read by the consumer.

1. Section 71 creates a duty upon courts to consider the test of fairness, including (but not limited to) whether all terms/notices were unambiguously and conspicuously brought to the attention of a consumer. Signage must be prominent, plentiful, well-placed (and lit in hours of darkness/dusk) and all terms must be unambiguous and contractual obligations clear.

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

1. Now for the first time, the DLUHC's draft IA exposes that template 'debt chaser' stage costs less than £9. This shows that HHJ Jackson was right all along in Excel v Wilkinson (See Exhibit  xx-10).

The Beavis case is against this claim

1. The Supreme Court clarified that ‘the penalty rule is plainly engaged’ in parking cases, which must be determined on their own facts. That 'unique' case met a commercial justification test, given the location and clear signs with the charges in the largest/boldest text. Rather than causing other parking charges to be automatically justified, that case, in particular, the brief, conspicuous yellow & black warning signs — (See Exhibit xx-11) — set a high bar that this Claimant has failed to reach.

1. Paraphrasing from the Supreme Court, 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 the alleged breach. The intention cannot be to punish a driver, nor to present them with hidden terms, unexpected/cumbersome obligations nor 'concealed pitfalls or traps'. (See Exhibit xx-12) for paragraphs from ParkingEye v Beavis).

1. In the present case, the Claimant has fallen foul of those tests. There are two main issues that render this parking charge to be purely penal (i.e. no legitimate interest saves it) and thus, it is unenforceable:

(i). Concealed pitfall or trap:

The signage in this case required customers to enter their vehicle registration number at a kiosk inside the store. Unfortunately, this kiosk was inaccessible to me as the store was closed, rendering compliance impossible.  I also wish to highlight the presence of a sign in the parking area that mentioned clamping. The use of clamping as a penalty for parking violations was made illegal under the Protection of Freedoms Act 2012. The inclusion of such outdated language on a parking sign raises questions about the relevance and validity of the signage in the parking area.  This sign, which suggested that 'Others will be clamped,' directly contradicts current parking regulations and creates further confusion regarding the penalties associated with parking violations. It is reasonable to assume that the parking operators responsible for the signage failed to update their notices to reflect the changes in the law.  Given this discrepancy and the fact that clamping is no longer a legally permissible penalty, it further underscores the uncertainty surrounding the parking terms at the location in question. I believe this is another critical factor that should be considered by the court when evaluating the legitimacy of this case.

 

(ii). Hidden Terms:

The £100 penalty clause is positively buried in small print, as seen on the signs in evidence.  The purported added (false) 'costs' are even more hidden and are also unspecified as a sum.  Their (unlawful, due to the CRA Schedule 2 grey list of unfair terms) suggestion is that they can hide a vague sentence within a wordy sign, in the smallest possible print, then add whatever their trade body lets them, until the DLUHC bans it in 2024. And the driver has no idea about any risk nor even how much they might layer on top. Court of Appeal authorities which are on all fours with a case involving a lack of ‘adequate notice’ of a charge, include:

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

 

(ii)              Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ2both leading authorities confirming 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”.

Conclusion

1. The claim is entirely without merit and the Claimant is urged to discontinue now, to avoid incurring costs and wasting the court's time and that of the Defendant.

1. The Defendant asks the judge to read the persuasive Judgment from His Honour Judge Murch (August 2023) in the Civil Enforcement v Chan case, and deliver the same outcome given this Claimant has submitted a similarly vague POC.  It is worth noting that in the Civil Enforcement v Chan case the POC, while still ambiguous, did contain a subtle indication of the alleged contravention, specifically regarding the duration of the defendant's parking on the premises. In contrast, the POC in this case lacks even a minimal effort to hint at the nature of the alleged violation.  In the Civil Enforcement v Chan case, full costs were awarded to the motorist and the claim was struck out.

1. There is now ample evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims. The July 2023 DLUHC IA analysis surely makes that clear because it is now a matter of record that the industry has told the Government that 'debt recovery' costs eight times less than they have been claiming in almost every case.

1. With the DLUHC's ban on the false 'costs' there is ample evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims.  For HMCTS to only disallow those costs in the tiny percentage of cases that reach hearings whilst other claims to continue to flood the courts unabated, is to fail hundreds of thousands of consumers who suffer CCJs or pay inflated amounts, in fear of the intimidating pre-action demands. The Defendant believes that it is in the public interest that claims like this should be struck out because knowingly enhanced parking claims like this one cause consumer harm on a grand scale.

My fixed witness costs - ref PD 27, 7.3(1) and CPR 27.14

1. In the matter of costs, I ask for the following, (which are outlined in my Defendant’s Statement of Costs on page xx of this bundle):

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

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

1. Attention is drawn specifically to the (often-seen from this industry) 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)).”

Statement of truth:

I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

 

Defendant’s signature:

 

Date: 6 June 2024