SUCCESS DCB Legal Claim Form/Spring Parking

Coupon-mad

I'm just trying to save you work but won't repeat my advice.

  

paddyposh

Coupon-mad said:

I'm just trying to save you work but won't repeat my advice.

  

No that's fair enough. I did wonder if it was worth it, but was wary of poking the bear so to speak.

Thanks and I will send the email across  

paddyposh

In case I don't hear about a NoD and have to submit my WS, can it be emailed rather than posted?

Found enquiries.northampton.crowncourt@justice.gov.uk online for the one my hearing is set for.

Gr1pr

Yes it can be emailed to both parties, but keep it under 50 sides of A4 , so under 50 pages, under 25 sheets. )

So one bundle to your local civil court, the one you nominated, plus a copy to the Claimants solicitors too

paddyposh

Thanks. I’ll wait until Thursday 10th and check with the court I’ve they’ve had anything if I don’t hear myself and submit then

would be good to get some feedback on the draft WS on the previous page just in case if possible please 

KeithP

paddyposh said:

In case I don't hear about a NoD and have to submit my WS, can it be emailed rather than posted?

Found enquiries.northampton.crowncourt@justice.gov.uk online for the one my hearing is set for.

Surely you case isn't set to be heard in a crown court?

paddyposh

KeithP said:

paddyposh said:

In case I don't hear about a NoD and have to submit my WS, can it be emailed rather than posted?

Found enquiries.northampton.crowncourt@justice.gov.uk online for the one my hearing is set for.

Surely you case isn't set to be heard in a crown court?

Copied wrong one... meant to be enquiries.northampton.countycourt@justice.gov.uk

paddyposh

Ok so update @Coupon-mad  I have just received a WS by email from DCB... gutting. Was very hopeful they would discontinue. 

They have included many photos of the signs and the one where my car is parked near a sign but not in the residential parking. One thing i noticed is that the letters (Notice to Keeper, which they attached to the WS) they sent were not to my correct address. It was my previous address which I moved out of a year before the PCN. I assume the DVLA was updated to my current address though I can't be 100% sure. EDIT spoke to DVLA, it was registered to the correct address 13/11/2018 after the PCN




They also added the PCN as well

paddyposh

WS from DCB/Spring...

I am employed by Spring Parking Ltd (“my Company”). I am duly authorised to make this Statement on my Company’s behalf.

1. I make this Statement in support of the Claimant’s Claim and in response to the Defendant’s Defence.
2. The facts and matters set out in this statement are within my own knowledge unless I state otherwise. I believe them to be true. Where I refer to information supplied by others, the source is identified. Facts and matters derived from other sources are true to the best of my knowledge and belief.

Parties

1. My Company provides private car park management services to private Landowners, to manage the way motorists are permitted to park on their private Land. My Company does so by issuing Parking Charge Notices to any Vehicle parked in a way the Landowner does not permit.
2. The Defendant is the recipient of a Parking Charge Notice (“PCN”) issued by my Company. The details are set out herein.

Accreditation

1. At all material times, my Company was accredited by the Accredited Trade Association (“ATA”) known as the British Parking Association (“BPA”). The BPA has a Code of Practice (“Code”) that its members are expected to adhere to, or otherwise face potential sanctions. My Company operates in accordance with the Code.
2. In order to obtain Registered Keeper details from the Driver and Vehicle Licensing Agency (“DVLA”) my Company must be a member of an ATA. It is therefore essential for my Company to comply with the Code.

Background

8. My Company issued a PCN (“Charge”) to the Vehicle (“Vehicle”) with details listed below: -

PCN No. Location (“Land”)

912311122 Palace Gate, Irthlingborough, Wellingborough, NN9 5FD

VRN Issue Date

XXXXXX 07/06/2018

Reason for Issue

Not clearly displaying a valid permit 

1. At the time of issue, my Company was instructed by the owner of the Land (“Landowner”) to manage parking on the Land. A copy of my Company’s agreement with the Landowner (“Landowner Agreement”) is exhibited to this Statement at “EXHIBIT 1”.
2. I confirm that the term of the Landowner Agreement has been extended by mutual consent of the parties.

11. I refer to the decision in One Parking Solution Ltd v Wilshaw [2021] (Wilshaw) whereby it was found that it is not necessary for the Claimant to prove the Landowner’s authority to constitute a valid cause of action to recover the PCN, what is required is proof that there is a binding Contract between the Claimant and the Defendant. Further, it was found in Wilshaw that the Contract between the Claimant and the Freeholder (Landowner) does not affect the validity of any Contract between the Claimant and the Defendant.

Contract

1. At the time of issue, my Company was prominently displaying signs on the Land setting out the Terms of parking. A copy of the content of the signs is exhibited to this Statement at “EXHIBIT 2”. The signs formed the basis of the Contract with the Driver (“Contract”).
2. The following was a term of the Contract: - “AUTHORISED VEHICLES ONLY

A VALID PARKING PERMIT MUST BE CLEARLY DISPLAYED AT ALL TIMES”

1. In parking the Vehicle on the Land, the Driver accepted the Contract, with the license to park being the Consideration. It is evident from the photographic evidence exhibited to this Statement at “EXHIBIT 3” that the Driver failed to adhere to the terms of the Contract by parking as they did, thus breaching the Contract.
2. The Contract provides that a charge is payable by the Driver upon breach, with payment falling due within 28 days.
3. A copy of the affixed PCN is exhibited to this Witness Statement at “EXHIBIT 4”, and a copy of the Notice to Keeper is exhibited at “EXHIBIT 5”.

Defendant’s Liability

1. Pursuant to the Contract; the Driver was liable to pay the Charge within 28 days of issue.
2. To make the Driver aware, a PCN was affixed to the Vehicle in accordance with Section 7 of Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”). Exhibited to this Statement at “EXHIBIT 4” is a copy of what was affixed.

1. The Driver failed to make payment and as such my Company applied to the DVLA for the details of the Registered Keeper and sent Notice to the Keeper compliant with Section 8 of POFA (see “EXHIBIT 5”). Paragraph 1 of POFA states that the Registered Keeper is presumed to be the ‘Keeper’ unless proven otherwise. Paragraph 4 of POFA gives my Company the right to recover from the ‘Keeper’.
2. The Defendant does not dispute being the Keeper of the Vehicle. My Company reasonably believes that the Defendant was the Driver, because they would otherwise have nominated a Driver, and therefore the Defendant is pursued on that basis. My Company has complied with POFA and can pursue the Defendant as Keeper in the alternative.

Defence

1. The Defendant was afforded a 28-day period in which they could appeal and I am instructed they did not. The potential next step was clearly communicated to the Defendant in notices. It is respectfully submitted that if the Defendant genuinely believed the Charge had been issued incorrectly, they would have engaged with the appeals process further.
2. If there was any doubt regarding their liability, the Defendant has had ample time to challenge the Charge or request evidence in support. Despite correspondence being sent to the Defendant by a debt collection agency, and a ‘Letter of Claim’ being issued in accordance with the Pre-Action Protocol for Debt Claims, no challenges have previously been raised.
3. The Defendant has filed a widely available templated Defence, rather than dealing with the substantive issues. It is submitted the this is disingenuous and a waste of both the Court’s and my Company’s time.
4. Notwithstanding the above, I respond to the issues raised in the Defence by way of sub-headings as follows (as the Defence is quite repetitive, I will only deal with each point once, but for the avoidance of doubt nothing within the Defence is accepted unless I specifically state otherwise): -

The Contract

i. The Defendant alleges that there is no Contract between them and my Company. It is my Company’s position that there is and the details of which are set out above; Parking Eye -v- Beavis established that this form of Contract is perfectly workable;

ii. Further to the above, the Defendant suggests that my Company has no authority to bring the Claim. The Landowner instructed my Company to manage the parking on the Land and issue Parking Charges to any Vehicle found to be in breach of the Terms of parking. A copy of the agreement can be seen at “EXHIBIT 1”. It is respectfully submitted that my Company has the relevant authority to issue Parking Charges and bring Claims for such in the event the charges remain outstanding. In any event, the Defendant is a third party to the Landowner Agreement and privity of Contract applies;

CPR Compliance

1. The Defendant questions whether the Particulars of Claim comply with the Civil Procedure Rules. I submit that the Claim was issued via the County Court Business Centre and in this regard, I refer to Practice Direction 7C (“the PD”) which specifically provides the guidelines for doing so. I respectfully submit that the Particulars of Claim (“the Particulars”) are in keeping with the PD. The following sections are of relevance: -

5.2(1) provides a limited character count for the Particulars of Claim; and

5.2A stipulates that the requirement in paragraph 7.3 of Practice Direction 16 for documents to be attached to the particulars of Contract claims does not apply to claims started using an online Claim form;

1. It is my Company’s position that the Particulars were sufficient to allow the Defendant to identify the subject matter of the Claim. The Defendant could not have submitted a Defence with the detail it contains if the Particulars were so insufficient as to prevent them from understanding the Claim. Further, with respect, if the Defendant were of the genuine belief that that the Particulars of Claim were insufficient, the correct procedure would have been to make an Application to the Court. The Defendant has chosen not to do so;
2. In addition to the above, I also refer to CPR 1 and respectfully remind the Defendant of their obligation to deal with the case justly and at proportionate cost. Bearing in mind the Claim amount, the Claimant has taken proportionate steps to recover the debt;

The Defendant’s Allegations

1. The Defendant refers to the length of time passed between the contravention and the Claim being issued. The limitation period for bringing this Claim is six years from the date the cause of action arose pursuant to the Limitation Act 1980. No adverse inferences can be drawn from the time taken for my Company to bring this Claim, because Court proceedings should only be instigated as a last resort, and my Company have exhausted all other avenues by attempting to communicate with the Defendant;
2. In response to paragraph 3 of the Defendant’s Defence, it is denied that my Company hold no evidence of the signage being sufficient on the Land, and it is further denied that my Company hold no evidence of the Vehicle being parked in breach of the Terms as implied by the Defendant. The signs at “EXHIBIT 2” clearly outlined the Terms of parking and the Defendant was on notice of the Terms upon entering the Land. By parking on the Land, the Defendant accepted the Terms. These Terms state that a valid parking permit must be clearly displayed at all times, and that if the Terms are breached, the Defendant agrees to pay a Parking Charge of £95.00. As evidenced within “EXHIBIT 3”, the Vehicle remained on the Land without clearly displaying a valid permit, therefore; the Defendant breached the terms and agreed to pay a Parking Charge. Furthermore, it is evident from “EXHIBIT 3” that the Vehicle was parked directly next to a sign at the time of issue, as such; it is respectfully submitted the Defendant cannot reasonably allege that there were no signs outlining the terms of parking. The issues surrounding the signage are further addressed within the ‘Signs / Unfair Contract Terms’ section below;
3. Within their Defence, the Defendant claims to be unaware of who was driving the Vehicle at the time of issue, and the Defendant suggests that they cannot be pursued as the Registered Keeper as my Company has failed to comply with the Protection of Freedoms Act 2012 (“POFA”). This is denied. My Company have complied with the requirements of POFA to pursue the Defendant as the Registered Keeper;
4. As evidenced within “EXHIBIT 3”, a PCN was affixed to the Vehicle at the time of issue, putting the Driver on notice that the charge had been issued. A copy of the affixed PCN is exhibited at “EXHIBIT 4”. A Notice to Keeper was then sent to the address the DVLA confirmed was that of the Registered Keeper. It is the Defendant’s responsibility and legal obligation as the Registered Keeper of the Vehicle to ensure that the DVLA are kept up to date at all times. A copy of the Notice to Keeper can be seen at “EXHIBIT 5”. The Notice to

Keeper afforded the Defendant the opportunity to appeal the charge or nominate an alternative Driver, which they failed to do. It is respectfully submitted that the Defendant was put on notice of the charge and failed to respond or pay;

paddyposh

continued..

Amount Claimed

1. In respect of the Defendant’s allegation that the Claim is a penalty, my Company is not seeking more than the original charge as the core debt. The core charge remains the same for the PCN (i.e. £95.00); however, my Company is now also seeking further costs/damages;
2. My Company are instructed to manage the Land, the Landowner agreement previously referred to in this statement confirms this. My Company’s legitimate interest is to fulfil this obligation. The Landowner’s legitimate interest in managing the Land is because it is a residential area. Because there is a clear legitimate interest/commercial justification, the same as that established in ParkingEye -v- Beavis [2015], this case does not fall foul of the penalty rules established in that case;
3. The amount charged is in line with the guidelines given by the ATA. Part 20.5 of the BPA COP states “We would not expect this amount to be more than £100. If the charge is more than this, operators must be able to justify the amount in advance”. It is my Company’s position that there is no requirement for the amount of the charge to bear any relevance to the actual or potential cost of parking. The PCN is a fee charged by my Company for providing the service and it stays within the guidelines given by the ATA. As with many other ‘services’; the service provider is entitled to charge as they deem appropriate;
4. The PCN was not paid within the prescribed 28 days or indeed at all. In view of this, the sum of £70.00 is also claimed as a contractual cost pursuant to the Contract which states “Unpaid PCN’s may be passed on to a debt recovery team and additional costs may be incurred”. The Defendant was on notice of the fact that the outstanding amount may increase as a result of any necessary debt recovery action. In support I draw the Court’s attention to paragraph 45 of Chaplair Limited v Kumari [2015] EWCA Civ 798 whereby, when considering contractual indemnity costs, it was stated: -

“There is nothing ... which enable[s] the rules to exclude or override that contractual entitlement and I therefore agree with Arden LJ that the Judge had the jurisdiction to assess the costs free from any restraints imposed by CPR 27.14”;

1. The sum added is a contribution to the actual costs incurred by my Company as a result of the Defendant’s non-payment. My Company’s employees have spent time and material attempting to recover the debt. This is not my Company’s usual business and the resources could have been better spent in other areas of the business, generating profit. Had the Defendant of paid as per the Contract, there would have been no need for recovery action so the amount due would not have increased;
2. With respect of Parking Eye -v- Beavis [2015], whilst it is accepted the original charge is designed to include the ‘operational costs’; this was with reference to maintaining the Land, taking payment or sending the relevant notices. It was never intended to include the need to pursue the debt in Court to recover it. If that were the case, it would override the Civil Procedure Rules (allowing fixed costs and recovery of Court fees) which of course is not the case. The Defendant has misunderstood the phrasing ‘operational costs’;
3. The successful appeal in Britannia Parking Group Ltd v Semark-Jullien [2020] EW Misc 12 (CC) (29 July 2020) found that the inclusion of the debt recovery charge in the Claim does not fall foul of the decision of Parking Eye Ltd v Beavis [2015] UKSC 67, because that was not the point in discussion in that case. The appeal also concluded that the inclusion of such a charge in a Claim of this type does not constitute an abuse of process that would allow for the entire Claim to be struck out;

New Code of Practice (“COP”)

1. The Defendant makes reference to the Department for Levelling Up, Housing and Communities (“DLUHC”) and the ‘new’ parking code of practice originally published in February 2022 within their Defence. With respect, it is submitted that this bears no relevance to the matter at hand as the code has not yet been enacted with the current status of the code being ‘withdrawn’ as of June 2022;
2. Further to the above, the Defendant’s opinion of the industry being regulated by the Independent Parking Committee and British Parking Association bears no relevance to the Defendant’s liability. With respect, nothing has currently been implemented by the Government for my Company to adhere to (although this is of course pending). I respectfully ask the question; would the Defendant have deemed it more appropriate for my Company to not adhere to the COP(?). Referring to that Code is not ‘misleading’ – it is (at the present time) entirely relevant and section 111 of Parking Eye -v- Beavis [2015] confirmed that;

Signs / Unfair Contract Terms

1. The Defendant alleges that the signage is insufficient. The Terms on the signs at “EXHIBIT 2” were adequate in respect of overall size, font size, plain English, location, and content, and it is submitted they are adequate to constitute notice of the Terms to the Driver. Furthermore, it is evident that the Defendant parked within close proximity to the sign, as such; it is my Company’s position that the Defendant ought to have been aware of the Terms. If the Defendant did not understand the Terms on the signs, they should have exited the Land and found alternative parking;
2. In the event that a Driver parks their Vehicle on Land in which they do not own nor have prior authority to park, it is incumbent upon the Driver to ascertain whether there is a remedy to prevent their unauthorised parking. It is reasonable to suggest that the Defendant should have sought out the signage on the Land in any case if they were unsure of the Terms of parking;
3. In respect of the ‘terms’, as per Schedule 2 of the Consumer Right Act 2015, specifically referred to: -

Term 6 – It is submitted the sum is not disproportionate for the reasons set out within the ‘amount claimed’ section of this Statement, nor is it ‘compensation’;

Term 10 – As is evident at “EXHIBIT 2”, signs were displayed throughout the Land. The Driver was aware of the fact that parking was managed from the point of entering the Land and could leave if they did not agree to the Terms. It is not unreasonable for the Driver to need to potentially walk no more than 10 meters to fully familiarise themselves with the full Terms, especially given that the Vehicle was parked within close proximity to a sign as seen within “EXHIBIT 3”. This would have all happened before the conclusion of the Contract;

Term 14 – The price is stated on the sign;

Term 18 – The fact the Driver was able to park means my Company fulfilled their obligations;

1. The Terms clearly stated what would happen if payment was not made: -

“Unpaid PCN’s may be passed on to a debt recovery team and additional costs may be incurred”.

With no concession made in this regard, if a Driver ever does not understand the Terms on the signs, they can exit the Land and find alternative parking. They are under no obligation to park on the Land;

Alternative Dispute Resolution (“ADR”)

xxiii. The Defendant alleges that my Company have failed to offer an Alternative Dispute Resolution (“ADR”). This is denied in its entirety, and paragraph 24.ix of this Witness Statement is repeated in this regard. Additionally, DCB Legal sent a ‘Letter of Claim’ compliant with the Pre-Action Protocol for Debt Claims to the same address that the Claim Form was served to. The ‘Letter of Claim’ afforded the Defendant 30 days to either dispute the matter or make payment. The Defendant responded to the ‘Letter of Claim’ requesting a 30 day hold. The matter was subsequently placed on hold for 30 days, following which DCB Legal contacted the Defendant outlining my Company’s position and that payment was due. As no response was received, a Claim was issued. If the Defendant genuinely wished to participate in ADR, they would have made a greater effort to communicate this to my Company;

The Defendant’s Costs

1. The Defendant is requesting standard Witness costs for attendance at Court. The Defendant’s entitlement to the relief claimed is denied in its entirety. The Defendant’s Claim is not supported by any documentation to evidence the costs incurred. Costs are to be decided after the determination of liability. Pursuant to CPR 27.14, costs are not ordinarily applicable to small Claims. Notwithstanding the above, and without concession, the Defendant is put to proof that the costs claimed are true;
2. It is denied that the Defendant is entitled to the cost of their time. My Company is pursuing what is, in their opinion, a legally owed debt. The Defendant would not have needed to incur any such costs if they had not breached the Terms or simply made payment upon receipt of the PCNs;

xxvi. It is denied that my Company have acted unreasonably, and the Defendant has failed to explain their reasons for alleging such

25. In view of the above, it is my Company’s position that the Defendant breached the Contract as set out in this Statement and as such the Defendant is liable.

CPR Costs

1. My Company claims the Claim issue fee, fixed costs pursuant to CPR 45, and the Hearing fee in any event.
2. In the alternative to the contractual costs set out above, my Company reserves the right to claim additional costs pursuant to CPR 27.14(2)(g). This Claim was issued as a last resort, and given the robust appeals procedure in place, should not have been necessary. It is my Company’s position that this is unreasonable behaviour and it is respectfully requested that the Court considers whether they conclude the same.

Conclusion

1. It is my respectful submission that the Defence is entirely without merit and as such it is requested that the Defence is struck out and Judgment awarded in favour of my Company, payable forthwith.
2. I may not be able to attend the forthcoming Hearing. Should this be so, an advocate will attend on my behalf. I ask that the Court accepts this as written notice pursuant to CPR 27.9(1). If I am unable to attend, please decide the Claim in my absence, taking into account the advocate’s submissions, this Statement, and any other evidence filed. This paragraph demonstrates my compliance with CPR 27.9(1)(a)-(b).
3. In the event an advocate does attend the Hearing, I request their fee be added to the amount sought.