Directions Questionnaire not received from Claimant

moonstone97

Hi, sorry if this question has been answered before, but I couldn’t find anything relevant to my specific question on here.

I’m at the stage where CEL have put in a claim with the court, I’ve done the AOS, defence and DQ submitted by email to the court and CEL (thanks to all the useful advice on here!).

Unfortunately I only received my DQ dated 2nd April on 15th and deadline was 19th. I submitted it in time on 18th. I can see on the money claims website that the court filed CEL’s DQ on 2nd April, however I have not received a copy of this myself.

In theory, could I ask the court to strike out the claim due to CEL failing to serve the DQ to me? Any advice would be greatly appreciated.

Coupon-mad

No, it means nothing and will carry on.

moonstone97

Okay thanks. Should I request them to send it? 

Coupon-mad

No.  Not useful to you.

moonstone97

Hello, reposting on here for context to the above PCN. Thank you in advance for any replies!

 I am just hoping for a bit of advice from anyone who has had a similar situation. I am now going through the small claims part of the process of fighting this PPC. I received a letter from a court about 2 hours from me saying the claim it had been allocated there. After writing in they said they would ask the judge to reallocate to a court closer to home. Now I’ve received a letter from a court just as far saying it’s been allocated there. I’ve been given a date but honestly the costs involved such as loss of income and travel will hugely exceed the cost of the PPC. I always thought as an individual and the defendant it would be a local court. My worry is, if I attend and lose I will have to pay  the PPC, their fees, lose a days income and travel. Does anyone have any advice please?

Also for further context I did have to resent the DQ and defence paperwork to the first allocated court which specified my preferred location (after they claimed to have not received by the business centre).

Le_Kirk

For context, see this post also: -
16 September at 3:44PM

Coupon-mad

Send an email to the NEW Court with a copy of your DQ and say you live nowhere near this court and as a litigant in person it should be heard at your own local court. You believe a second allocation mistake has been made and ask for them to review the error and refer to a Judge to reallocate it appropriately to XXXXX court which is nearest to the Defendant.

Copy in the CEL (or DCB Legal if the claim wasn't filed by CEL in-house). You must.

Also please show us the claim form (redacted) and your defence, verbatim.

moonstone97

Coupon-mad said:

Send an email to the NEW Court with a copy of your DQ and say you live nowhere near this court and as a litigant in person it should be heard at your own local court. You believe a second allocation mistake has been made and ask for them to review the error and refer to a Judge to reallocate it appropriately to XXXXX court which is nearest to the Defendant.

Copy in the CEL (or DCB Legal if the claim wasn't filed by CEL in-house). You must.

Also please show us the claim form (redacted) and your defence, verbatim.

Thank you for your reply and advice. I will do that. I’ve attached the claim form with any identifiable information removed and pasted in my defence below. Also, just to add the original amount they were asking for which was over £100 (around £180 I believe once they’d added their “debt recovery fees”) has now been reduced down to £60, which I am hoping they may just discontinue? 

moonstone97

IN THE COUNTY COURT

Claim No.: 

Between

(Claimant)

- and -

(Defendant)

_________________

DEFENCE

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, the vehicle is

recognised and it is admitted that the Defendant was the registered keeper and driver.

3. The Defendant had gone shopping in the (redacted) store and parked in the customer

car park on site. The Defendant had no knowledge of the private parking fine nor did the

Defendant receive any notification from the Claimant of the PCN until over a year later. The

on site parking was designated for customers of (redacted) and the Defendant was not in any

breach. The Claimant states the “due date” being (redacted) on the POC, however the

Defendant was not aware of any alleged claim at that time, of which the Defendant has

informed the Claimant of this fact. Despite this, the Claimant has calculated further added

interest from this date on the POC.

4. The Defendant had not noticed any signage close to the where the Defendant parked,

showing the terms and conditions for use. Furthermore, the Claimant has not specified the

terms and conditions in which they claim the Defendant was in breach of. The Defendant was

not aware of any restrictions that applied in the car park due to obscure signage which was

impossible to read from where the Defendant had parked. The small signage was not suitable

to alert motorists of any terms and conditions. Due to the age of the alleged offense, which is

(redacted), the Defendant is unable to recall the exact particulars on the day.

5. With regard to template statements, the Defendant observes after researching other parking

claims, that the Particulars of Claim ('POC') set out a cut-and-paste incoherent statement of

the case. Prior to this - and in breach of the pre-action protocol for 'Debt' Claims - no copy of

the contract (sign) accompanied any Letter of Claim. The POC is sparse on facts about the

allegation which makes it difficult to respond in depth at this time; however the claim is

unfair, objectionable, generic and inflated.

6. Furthermore, it was requested by the Defendant in writing to the Claimant, in line with the

Pre-Action Protocol (‘PAP’) to provide clear information on how the amount being claimed

was calculated, and details of any essential documents the Claimant would intend to rely on

in Court. Correspondence received from the Claimant did not address the requested

information.

Failure to comply with Civil Procedure Rules

7. 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 and the

Practice direction to Part 16. 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

Defendant asserts that this Claim is based upon an agreement by conduct. The Defendant

asserts that the Claimant has failed to specify how Contract terms have been breached by the

conduct of the Defendant in the PoC.

8. The Defendant believes the Claim should be struck out at Allocation stage and should not

have been accepted by the CNBC due to a represented parking firm Claimant knowingly

breaching basic CPRs.

9. 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.

10. 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

11. 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.

12. 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.

13. 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).

14. The Department for Levelling Up, Housing and Communities ('the DLUHC') published a

statutory Parking Code of Practice in February

2022: https://www.gov.uk/government/publications/private-parking-code-of-practice.

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."

15. 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: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attac

hment_data/file/1171438/Draft_IA_-_Private_Parking_Code_of_Practice_.pdf

16. 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).

17. 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.

18. 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.

19. 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'.

20. 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).

21. 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'.

22. 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.

23. 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'.

24. 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

25. 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):

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachmen

t_data/file/450440/Unfair_Terms_Main_Guidance.pdf

26. 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.

27. 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

28. 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.

29. 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''.

30. 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

31. 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.

32. 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

33. 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.

34. 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.

35. 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

Please show a less redacted claim form.

Only cover up:

Claim number

MCOL Password

Your name, address & the QR Code

Your VRM.

We need to see the full POC and who is making/claiming the sum and how much.

moonstone97

@Coupon-mad
Sorry, I have reattached a less redacted copy. I’ve covered the times in and out in case they were able to identify the case by this, and the location of the PCN being issued. However, the duration I was there was approx 30 mins and the car park has a 15 minute grace period for those using the ATM, for example.