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UKPC DCB Legal claim

I'm at the stage where I have received a claim from DCB Legal and have followed the steps to Complete the Acknowledgement of service. I am now at the point of drafting my defence document to email across and need some advice on paragraph 3 of the defence.

The particulars of the claim are:

3. The defendant is pursued as the driver of the vehicle for breach of the terms on the signs (the contract). Reason: Remained On Site In Excess Of The Free 2 Hour Period Without Paying for Parking.
4. In the alternative the defendant is pursued as the keeper pursuant to POFA 2012, Schedule 4.

I was the driver and I overstayed the 2 hour free parking at a motorway services and didn't pay for a ticket.

Could someone give me some advice on the best defence to write in paragraph 3 please. Is it lack of visibility of signage or something else or combination of factors?

Thanks

Comments

  • Coupon-mad
    Coupon-mad Posts: 131,165 Forumite
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    Search the forum for:

    motorway services parking defence

    or add in the word 'rest' or 'sleep' to narrow the results down.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top of this/any page where it says:
    Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • KeithP
    KeithP Posts: 37,497 Forumite
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    What is the Issue Date on your Claim Form?

    Upon what date did you file an Acknowledgment of Service?
    Your MCOL Claim History will have the definitive answer to that.
  • caszar
    caszar Posts: 5 Forumite
    First Post
    Thanks for the responses. Claim issue date was 12/02 and I filed the AOS on 21/02
  • KeithP
    KeithP Posts: 37,497 Forumite
    Name Dropper First Post First Anniversary
    With a Claim Issue Date of 12th February, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 18th March 2024 to file your Defence.

    That's over two 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 at the second post in the NEWBIES thread.
    Don't miss the deadline 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'.
  • caszar
    caszar Posts: 5 Forumite
    First Post
    Draft Defence Statement below. I have had to remove the links in the defence doc under paragraphs 9, 10 and 20 as I don't have enough posts I think. I have replaced these with comments in bold "Link Removed"

    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').

     

    The 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, it is admitted that the defendant was the registered keeper and driver of the vehicle in question, but liability is denied.


    3. On the material date the defendant was returning from a long trip in the middle of the night. Whilst on the journey, the defendant felt dangerously tired so stopped at Roadchef Chester motorway service to rest in accordance with the government’s Tiredness Kills and Take a Break campaign, warning motorists not to drive when tired.

    The defendant pulled into a parking bay close to the entrance of the carpark, locked the door and fell asleep for several hours. On waking, the defendant continued his journey home.

    No signs with parking contractual terms limiting the time a motorist should rest when tired were present where the defendant’s vehicle was parked, and the claimant is put to strict proof that the contrary is true.

    The defendant was surprised later to receive a parking charge notice (PCN) from a company called Group Nexus, but did not respond because they believed this to be a scam since forcing a tired motorist to drive whilst tired directly contradicted the Department for Transport’s “THINK! Fatigue” driving campaign encourage motorists to “take breaks and rest rather than drive when tired” and to “Make time for a break”.

     

    4. 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.

    5. 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

    6. 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.

    7. 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.

    8. 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).

    9. The Department for Levelling Up, Housing and Communities ('the DLUHC') published a statutory Parking Code of Practice in February 2022: Link Removed

    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." 

    10. 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 Removed

    11. 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).

    12. 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.

    13. 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. 

    14. 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'.

    15. 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).

    16. 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'.

    17. 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.

    18. 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'.

    19. 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

    20. 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 Removed

    21. 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.

    22.  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

    23.  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.  

    24. 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''. 

    25.  Fairness and clarity of terms and notices are paramount in the DLUHC Code and these clauses are supported by the BPA & IPC. In the official publication 'Parking Review' the IPC's CEO 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

    26. 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.

    27. 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

    28. 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.

    29. 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. 

    30.  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))."   

     

    Statement of Truth

    I believe that the facts stated in this defence 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.


  • Coupon-mad
    Coupon-mad Posts: 131,165 Forumite
    Name Dropper First Post Photogenic First Anniversary
    You don't need to show us the template, only the bits you added.  That's fine but all paragraphs need a number.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top of this/any page where it says:
    Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • Debszzzz2
    Debszzzz2 Posts: 248 Forumite
    First Post Name Dropper
    Para #1 already has "liability is denied" but for some reason you have added it again to the end of para #2.
  • caszar
    caszar Posts: 5 Forumite
    First Post
    Defence submitted on the 13th March and confirmation email received from the claims response email address. Will post here with updates. Thanks for all the support thus far.
  • caszar
    caszar Posts: 5 Forumite
    First Post
    I have received a letter from HM Courts & Tribunals Service acknowledging receipt of my defence. This was soon followed by an email from DCB stating that they intend to proceed with the claim but in the next paragraph offering to discuss a settlement in order to assist the Court in achieving its overriding objective!
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