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I Park Services/DCB Legal defence
Debszzzz2
Posts: 248 Forumite
Just looking for an expert review/critique of this defence that is being submitted for a claim from I Park Services through DCB Legal. No IAS appeal was made. The location is Mere Green, Sutton Coldfield.
It was at night and the defendant (RK) was dropped off at the location with a friend and the defendants husband drove the car away. The car was on site for 3 minutes and 10 seconds based on the ANPR. The signage at the location is almost non existent and certainly not visible at night.
The PCN was non-PoFA although they tried to claim keeper liability in the reminder.
Below are the operators photos (which show lack of signs)
Here are some of the defendants photos taken later to show lack of signage
The PoC in the claim specify the breach so CEL v Chan not included
Here are the relevant paragraphs from the template defence (whole template is used)
Facts known to the defendant
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.
3. The Defendant and a friend were dropped off as they were going to visit the Olive Garden restaurant which is directly across the road from the location. The driver, the Defendants husband, says that the key-fob fell apart which electronically blocks the ignition. He had to get out of the car and look for the key-fob components which had fallen on the floor. It took him a minute to find the components and reassemble them before he could re-start the car and drive off.
4. At no point was the car “parked”. It was at the location for three minutes to offload passengers as evidenced by the Claimants own time stamped photographs. The Defendant will rely on the persuasive appeal court findings in Jopson v Homeguard [2016] B9GF0A9E which determined that dropping off, picking up, loading and unloading or stopping for a short duration due to some small vicissitude is not parking.
5. The Defendant was never served with a Notice to Keeper (NtK) that complied with the Protection of Freedoms Act 2012 (PoFA). The NtK was in fact headed as “Non POFA”. There was no wording as prescribed in Schedule 4. The Claimant cannot simply invoke ‘keeper liability’ at a later stage as can be evidenced by their ‘Reminder’ letter on 12/04/2023. This legal point has already been tested on appeal (twice) in private parking cases and these transcripts will be adduced in evidence:
i. In the case of Excel Parking Services Ltd v Anthony Smith at Manchester Court, on appeal re claim number C0DP9C4E in June 2017, His Honour Judge Smith overturned an error by a District Judge and pointed out that, where the registered keeper was not shown to have been driving (or was not driving) such a Defendant cannot be held liable outwith the PoFA. Nor is there any merit in a twisted interpretation of the law of agency (if that was a remedy then the PoFA Schedule 4 legislation would not have been needed at all). HHJ Smith admonished Excel for attempting to rely on a bare assumption that the Defendant was driving or that the driver was acting ‘on behalf of’ the keeper, which was without merit. Excel could have used the PoFA but did not. Mr Smith’s appeal was allowed and Excel’s claim was dismissed.
ii. In April 2023, His Honour Judge Mark Gargan sitting at Teesside Combined Court (on appeal re claim H0KF6C9C) held in Vehicle Control Services Ltd v Ian Edward that a registered keeper cannot be assumed to have been driving. Nor could any adverse inference be drawn if a keeper is unable or unwilling (or indeed too late, post litigation) to nominate the driver, because the PoFA does not invoke any such obligation. HHJ Gargan concluded at 35.2 and 35.3. “my decision preserves and respects the important general freedom from being required to give information, absent a legal duty upon you to do so; and it is consistent with the appropriate probability analysis whereby simply because somebody is a registered keeper, it does not mean on the balance of probability they were driving on this occasion…” Mr Edward’s appeal succeeded and the Claim was dismissed.
6. The Claimant is a member of the Independent Parking Community (IPC) which is a DVLA Accredited Trade Association (ATA). Members of the IPC are required to strictly adhere to the ATAs Approved Operator Scheme (AOS) Code of Practice (CoP). Whilst not regulatory, the CoP does carry weight and is binding on its members. The current IPC CoP, 9th edition, schedule 7, states that at a pay & display (PD) car park, such as at this location, the operator must allow a “minimum consideration period” of 5 minutes before they are allowed to issue a parking charge. As will be evidenced, the car was on the relevant land, according to the Claimants own time-stamped photographs, from 17:20:59 to 17:24:09, a total duration of 3 minutes and 10 seconds. By issuing a Parking Charge Notice (PCN) before the obligatory consideration period has been concluded, the Claimant is clearly in breach of the IPC CoP.
7. It will also be evidenced from the Claimants own and the Defendants subsequent photographs that no contract could have been offered or made that could bind the driver due to the lack of any prominent or obvious signs in the poorly lit conditions at the location. No signs with any terms were visible and the location lacked any prominent warning that this was private land when entering, which is another breach of the IPC CoP.
8. The Claimant is put to strict proof that they have a valid agreement flowing from the landowner giving them authority to regulate parking and initiate court proceedings in their own name on the land in question.
It was at night and the defendant (RK) was dropped off at the location with a friend and the defendants husband drove the car away. The car was on site for 3 minutes and 10 seconds based on the ANPR. The signage at the location is almost non existent and certainly not visible at night.
The PCN was non-PoFA although they tried to claim keeper liability in the reminder.
Below are the operators photos (which show lack of signs)
Here are some of the defendants photos taken later to show lack of signage
The PoC in the claim specify the breach so CEL v Chan not included
Here are the relevant paragraphs from the template defence (whole template is used)
Facts known to the defendant
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.
3. The Defendant and a friend were dropped off as they were going to visit the Olive Garden restaurant which is directly across the road from the location. The driver, the Defendants husband, says that the key-fob fell apart which electronically blocks the ignition. He had to get out of the car and look for the key-fob components which had fallen on the floor. It took him a minute to find the components and reassemble them before he could re-start the car and drive off.
4. At no point was the car “parked”. It was at the location for three minutes to offload passengers as evidenced by the Claimants own time stamped photographs. The Defendant will rely on the persuasive appeal court findings in Jopson v Homeguard [2016] B9GF0A9E which determined that dropping off, picking up, loading and unloading or stopping for a short duration due to some small vicissitude is not parking.
5. The Defendant was never served with a Notice to Keeper (NtK) that complied with the Protection of Freedoms Act 2012 (PoFA). The NtK was in fact headed as “Non POFA”. There was no wording as prescribed in Schedule 4. The Claimant cannot simply invoke ‘keeper liability’ at a later stage as can be evidenced by their ‘Reminder’ letter on 12/04/2023. This legal point has already been tested on appeal (twice) in private parking cases and these transcripts will be adduced in evidence:
i. In the case of Excel Parking Services Ltd v Anthony Smith at Manchester Court, on appeal re claim number C0DP9C4E in June 2017, His Honour Judge Smith overturned an error by a District Judge and pointed out that, where the registered keeper was not shown to have been driving (or was not driving) such a Defendant cannot be held liable outwith the PoFA. Nor is there any merit in a twisted interpretation of the law of agency (if that was a remedy then the PoFA Schedule 4 legislation would not have been needed at all). HHJ Smith admonished Excel for attempting to rely on a bare assumption that the Defendant was driving or that the driver was acting ‘on behalf of’ the keeper, which was without merit. Excel could have used the PoFA but did not. Mr Smith’s appeal was allowed and Excel’s claim was dismissed.
ii. In April 2023, His Honour Judge Mark Gargan sitting at Teesside Combined Court (on appeal re claim H0KF6C9C) held in Vehicle Control Services Ltd v Ian Edward that a registered keeper cannot be assumed to have been driving. Nor could any adverse inference be drawn if a keeper is unable or unwilling (or indeed too late, post litigation) to nominate the driver, because the PoFA does not invoke any such obligation. HHJ Gargan concluded at 35.2 and 35.3. “my decision preserves and respects the important general freedom from being required to give information, absent a legal duty upon you to do so; and it is consistent with the appropriate probability analysis whereby simply because somebody is a registered keeper, it does not mean on the balance of probability they were driving on this occasion…” Mr Edward’s appeal succeeded and the Claim was dismissed.
6. The Claimant is a member of the Independent Parking Community (IPC) which is a DVLA Accredited Trade Association (ATA). Members of the IPC are required to strictly adhere to the ATAs Approved Operator Scheme (AOS) Code of Practice (CoP). Whilst not regulatory, the CoP does carry weight and is binding on its members. The current IPC CoP, 9th edition, schedule 7, states that at a pay & display (PD) car park, such as at this location, the operator must allow a “minimum consideration period” of 5 minutes before they are allowed to issue a parking charge. As will be evidenced, the car was on the relevant land, according to the Claimants own time-stamped photographs, from 17:20:59 to 17:24:09, a total duration of 3 minutes and 10 seconds. By issuing a Parking Charge Notice (PCN) before the obligatory consideration period has been concluded, the Claimant is clearly in breach of the IPC CoP.
7. It will also be evidenced from the Claimants own and the Defendants subsequent photographs that no contract could have been offered or made that could bind the driver due to the lack of any prominent or obvious signs in the poorly lit conditions at the location. No signs with any terms were visible and the location lacked any prominent warning that this was private land when entering, which is another breach of the IPC CoP.
8. The Claimant is put to strict proof that they have a valid agreement flowing from the landowner giving them authority to regulate parking and initiate court proceedings in their own name on the land in question.
2
Comments
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Perfect. As expected from you!
I'd add the 'parking period' DLUHC definition as it excludes dropping off/picking up passengers.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD2 -
Thanks CM. I'll add this:
9. The Claimant has ignored the The Parking (Code of Practice) Act 2019 (PCoPA) guidelines which state that the publication of this Code marks the start of an adjustment period in which parking companies will be expected to follow as many of the new rules as possible. The Code will come into full force in 2024, when the single appeals service is expected to be in operation. The PCoPA definition of a 'parking period' specifically excludes dropping off/picking up passengers. The PCoPA section 2.24 defines the length of time that a vehicle has been parked, i.e. left stationary otherwise than in the course of driving, after any relevant consideration period has expired (excluding instances where the driver has stopped to enable passengers to leave or enter the vehicle). This is not the period between a vehicle being recorded as entering and departing controlled land.2 -
Hi All,
I have also received a PCN from the same car park under very similar circumstances. I am in the process of getting the default judgement set aside. I will be following this closely! Have you already wrote to Mr Mitchell? I intend to whatever the outcome.
I have looked under the new IPC code 9th edit (p38) states that 'predatory tactics' and if the 'breach affects several people' is the highest starting point and higher degree of harm on the sanction scale. Perhaps, we can coordinate our efforts to lend a little more gravitas to the complaint?
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I don't think @Debszzzz2 is with us any longer on this forum. However, I know her very well and will make sure that this is followed up, as and when a response to the defence is received.TonydePony said:Hi All,
I have also received a PCN from the same car park under very similar circumstances. I am in the process of getting the default judgement set aside. I will be following this closely! Have you already wrote to Mr Mitchell? I intend to whatever the outcome.
I have looked under the new IPC code 9th edit (p38) states that 'predatory tactics' and if the 'breach affects several people' is the highest starting point and higher degree of harm on the sanction scale. Perhaps, we can coordinate our efforts to lend a little more gravitas to the complaint?
Who is Mr Mitchell? This even occurred under the old IPC CoP so the 9th edition doesn't apply.2 -
@Debszzzz2 wants to know how to proceed if the defendant is going to be away from third week of April for 3-4 weeks due to a family bereavement abroad. They are still waiting for the N180 DQ and there is a possibility that it could arrive on the day they leave which would mean missing the deadline for responding to it. I'm not sure that the defendant still has access to their MCOL so may not be able to check to see if it has been sent or not.
Is it worth send an N180 DQ early with the expected dates they will be away?
They have not yet received the defence response and copy of DCB Legal DQ yet and it has been over 7 weeks since the Defence was submitted.0 -
@Debszzzz2 could check the status page (now before leaving to go abroad) and see what the situation is regarding defence/DQ and could also download and complete a DQ ready for sending when CNBC issue it. Is there going to be anyone who can check the post at @Debszzzz2's house whilst they are away? It could be sent now but I have read instances on here when CNBC send them back with a snottogram and slap on wrist!1
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@Debszzzz2 is helping a friend out. The friend doesn't think they can access their MCOL any more. There will not be anyone to check for post whilst they are away.
I'll suggest they send their N180 now anyway. It is just seems a bit of a long time to not have received the confirmation from DCB Legal that they intend to continue and the copy of their N180. Trying to preempt any complications.2 -
Why, too many errors with password, lost password etc. Have they tried "forgot my password" on MCOL? Could try phoning CNBC if they have a morning to waste hanging on listening to hold music.nopcns said:@Debszzzz2 is helping a friend out. The friend doesn't think they can access their MCOL any more. There will not be anyone to check for post whilst they are away.
I'll suggest they send their N180 now anyway. It is just seems a bit of a long time to not have received the confirmation from DCB Legal that they intend to continue and the copy of their N180. Trying to preempt any complications.3 -
I have managed to get into the MCOL. Nothing new. Defendant will be out of country from 21/4 until 13/5 with no one to access post. I have suggested sending DQ now with covering explanation in email that they will not be available of service of N180 DQ until after return. If rejected, so be it. Should still be enough time for submission (second chance) should it be missed.
MCOL shows:
I've advised that they check their MCOL once a week and they have a completed N180 available for sending should it be required.2 -
As a matter of interest, is there any limit on the time that the Claimant should respond to the defence? Whilst we don't know when the Claimant received the notification of the defence from the CNBC, does anyone think it is a bit unusual not to have received a response after well over 2 months?0
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