DCB Legal N1SDT for parking over the line in a disabled space

Necron79

I've received a N1SDT claim form for a parking ticket issued on 20/11/2019. Its currently 15/02/2024. Its addressed to me as the registered keeper but I was not the driver at the time. My disabled wife was driving. She apparently parked in a disabled bay, she had a blue badge and it was on display. They claim she was over the line but I've not seen any evidence.  

The car park is a pay on exit car park and if she parked over the line it would have been by a few centimetres and would not have blocked the next bay (disabled bay has extra space). So in my mind they have lost no money.

I plan on defending the claim but has anybody else had a similar situation am I likely to win this? What's the best defence approach to take?

KeithP

What is the Issue Date on your Claim Form?

Have you filed an Acknowledgment of Service?
If so, upon what date did you do so?
Your MCOL Claim History will have the definitive answer to that.

Coupon-mad

Necron79 said:

I've received a N1SDT claim form for a parking ticket issued on 20/11/2019. Its currently 15/02/2024. Its addressed to me as the registered keeper but I was not the driver at the time. My disabled wife was driving. She apparently parked in a disabled bay, she had a blue badge and it was on display. They claim she was over the line but I've not seen any evidence.  

The car park is a pay on exit car park and if she parked over the line it would have been by a few centimetres and would not have blocked the next bay (disabled bay has extra space). So in my mind they have lost no money.

I plan on defending the claim but has anybody else had a similar situation am I likely to win this? What's the best defence approach to take?

1.  Which PPC?

2.  Which Solicitor?

3.  What's the Date of Issue of the Claim form?

4.  On what date did you do the AOS online, as the NEWBIES thread coaches you to do?

And when answering, please show us the POC.

Necron79

I've not completed the AOS yet I will do shortly.

KeithP

With a Claim Issue Date of 8th February, you have until Tuesday 27th February to file an Acknowledgment of Service but there is nothing to be gained by delaying it. 

To file an Acknowledgment of Service, follow the guidance in the Dropbox file linked from the second post in the NEWBIES thread.

Having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Tuesday 12th March 2024 to file your Defence.

That's over three weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute. 

To create a Defence, and then file a Defence by email, look again at the second post on the NEWBIES thread - immediately following where you found the Acknowledgment of Service guidance.

Don't miss the deadline for filing an Acknowledgment of Service, nor that 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'.

Umkomaas

Defend this fully, jumping through all the necessary hoops, following forum advice and you will find your case listed in the thread linked below in a few months time. 

https://forums.moneysavingexpert.com/discussion/6377263/dcb-legal-record-of-private-parking-court-claim-discontinuations/p1.

Necron79

I've looked at the template defence and do I need to send in the whole document. Its a lot of word salad and legal speak?

This is what I have so far, I've dropped some paragraphs as they seemed unrelated.
Example:

WITNESS STATEMENT OF DEFENDANT

 

1.     I am Dxx of xxx, 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 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:

 

Facts and sequence of events

3.     The defendant admits to being the registered keeper of the vehicle but denies being the driver of the vehicle at the time of the alleged parking charge. The defendant denies liability.

4.     Due to the length of time, the Defendant has little to no recollection of the days in question, which were unremarkable. The identity of the driver at the material time is unknown to the Defendant. The Defendant was not the only insured driver of the vehicle in question and is unable to recall who was or was not driving on that unremarkable day over 4 years ago. It would not be reasonable to expect a registered keeper to be able to recall the potential driver(s) of the car some years later. In any case, there is no such obligation in law and this was confirmed in the POPLA Annual Report 2015 by parking expert barrister and Lead Adjudicator, Henry Greenslade, who also clarified the fact that registered keeper can only be held liable under the POFA Schedule 4 and not by presumption or any other legal argument.

 

Exaggerated claim

5.     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.


6.     I say that fees were not paid out or incurred by this Claimant, who is put to 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.

 

7.  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.


8.  The Department for Levelling Up, Housing and Communities ('the DLUHC') first published its statutory Parking Code of Practice on 7th February 2022, here: https://www.gov.uk/government/publications/private-parking-code-of-practice in which The Code's Ministerial Foreword was 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."

 

9.  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/a ttachment_data/file/1171438/Draft_IA_-_Private_Parking_Code_of_Practice_.pdf

 

10.       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.


11.       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.


 

12. 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.


13. 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'.


14. 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.


15. 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.


16. 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 breaches

 

17. 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.


18. 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.


19. 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).

 

Conclusion

 

20. The claim is entirely without merit. 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.


21. 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.


22. In the matter of costs, the Defendant asks:

 

a)              at the very least, for 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.

 

23. Attention is drawn specifically 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))."

 

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:

KeithP

But... but... but... you have shown us a Witness Statement instead of a Defence.   

Le_Kirk

If you are writing about a defence, then you use ALL of the template having adjusted the paragraphs 2 & 3 to suit your situation.  Do NOT remove any.  Show us ONLY your paragraphs 2 & 3, we don't need to check the whole template.

Necron79

Sorry for the confusion, its all legal jargon to me.

Here is my revised paragraph 2 and 3.

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. The defendant was not the driver at the time of the alleged parking offence.

3. Due to the length of time, the Defendant has little to no recollection of the days in question over 4 years ago, which were unremarkable. The identity of the driver at the time is unknown to the Defendant. The Defendant was not the only insured driver of the vehicle at that time. It would not be reasonable to expect a registered keeper to be able to recall the potential driver(s) of the car some years later. In any case, there is no such obligation in law and this was confirmed in the POPLA Annual Report 2015 by parking expert barrister and Lead Adjudicator, Henry Greenslade, who also clarified the fact that registered keeper can only be held liable under the POFA Schedule 4 and not by presumption or any other legal argument.

Fruitcake

You state in your defence, which you will sign under a declaration of truth, that you do not know the identity of the driver, yet in your opening post you tell the world that you do know who it was. PPCs monitor this forum and have been known to quote posts in court. Were the PPC to do that, you could be in deep doo-doo for committing perjury.

In my opinion, you do not need to hide the identity of the driver.

Your defence should state that the vehicle was parked in an accessible bay, therefore the PoC that simply states, "out of bay" are incorrect, and put the claimant to strict proof that the contrary is true.
You need to mention that the driver was disabled, and displayed a disabled person's blur badge as a curtesy, even though the BB scheme does not apply on private land.
The driver has protected characteristics and as defined by the Equality Act 2010, and therefore entitled to reasonable adjustments that may include, but not be limited to, needing more time, or more room to enter and exit the vehicle. Service providers are required to anticipate the needs of motorists and make reasonable adjustments to accommodate their needs. Failing to do so is indirect discrimination, a breach of the above Act, and a criminal offence.
Failing to make reasonable adjustments once the service provider has been made aware of a person's disability is direct discrimination, a further breach of the Act, and a further criminal offence.
The driver at the material time required more time to use the on site facilities, and more room to park the vehicle than was available. By failing to anticipate these needs, and by continuing to pursue the motorist once they were made aware of the driver's needs is both discrimination and a criminal offence.

Put that in your own words and include it in your defence, then repost your draft.