Secure Parking Solutions / DCB Legal Claim x 2

Hamish_123

Coupon-mad said:

In most current defences v DCB Legal claims, paragraph 3 looks similar to the thread below by @shahib_02  ... just change the incident date:

https://forums.moneysavingexpert.com/discussion/6576011/cel-dcb-legal-pcn-cnbc-claim-defence-assistance-required-please

No need for more detail, except in your case just add an extra paragraph 3.1 stating the claim number of the other case (first claim) and copying the Henderson v Henderson wording seen in lots of defences when you search. 

Thanks @Coupon-mad, my drafted defence was going to be the below (taken from other threads on the forum);

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. Defendant denies the allegations, save that it is admitted that they were the keeper and driver.  In particular it is denied that a contract was formed with the Claimant and that their signage was adequate. There was no clear signage or markings to indicate which bays are “authorised” and “unauthorised”.  

4. The Defendant’s vehicle (XXXXXXXX) was at King Street, Dudley, DY2 8PX on 14/02/2022. Referring to the POC: Paragraph 2 references the wrong date. No PCN(s) were "issued on 14/02/2022" (That is merely the date of the alleged parking event). The Defendant is not liable and has seen no evidence of a breach of prominent terms. The quantum is hugely exaggerated (no PCN can be £170 on private land), and no damages were incurred whatsoever. The Claimant is put to strict proof of all their allegations. 

5. 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. 
 
6. 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. 
 

Cause of action estoppel 

7. The Defendant respectfully submits that this claim should be struck out under CPR 3.4(2)(b) on the grounds of cause of action estoppel, as the facts, details and alleged contractual terms are identical to those in the prior claim. 

8. Authorities to support the Defendant's position that the subsequent claims are all estopped are: 

8.a. Arnold V National Westminster Bank PLC [1991] 3 ALL ER 41. The court noted that ‘....cause of action estoppel applies where a cause of action in a second action is identical to a cause of action in the first, the latter having been between the same parties, or their privies and involving the same subject matter’. This case involves the same Claimant and Defendant, the same Car Park and the same manner in which the PCN was issued. 

8.b. In Henderson v Henderson [1843]67 ER 313 The court noted the following…’when a matter becomes subject to litigation, i) the parties are required to advance their whole case, ii) the Court will not permit the same parties to reopen the same subject of litigation regarding matters which should have been advanced in the earlier litigation, but were not owing to negligence, inadvertence or error. 

8.c The decision is still good law, and has been cited with approval numerous times, including Aldi Stores v WSP Group plc [2008] 1 WLR 748 and Henley v Bloom [2010] 1 WLR 1770. The Court is invited to strike out the second claim due to cause of action estoppel and to apply appropriate sanctions against the Claimants for filing two abusive and exaggerated claims.  

Too much?

Coupon-mad

No but you've omitted the usual intro para to the Henderson point. The vital one that actually tells the Judge that there are two claims.

We assume you will also add the rest of the Template (don't show us that though!).

Hamish_123

Thanks @Coupon-mad, i've added the opening paragraph stating the other claim details.

Full defence submitted and automatic reply received 👍

Hamish_123

Morning all,

"Notice of Proposed Allocation to the Small Claims Track" has arrived accompanied by the N180 form. I'll complete as per the guidance in the Newbies and return via email. Is the info@dcblegal.co.uk the best email to use to CC the claimant? 

Le_Kirk

That email address has been reported as working for dcb legal.

Hamish_123

Mediation appointment has come through for 7th March between 09:30-12:30. I'll be at work on this day and although I get signal whilst at my desk, there are many areas of the building that will not receive signal and the nature of my job I often find myself away from my desk. It states on the email about not taking the call - would they try more than once if it was to go straight to voicemail? 

Coupon-mad

Hamish_123 said:

Mediation appointment has come through for 7th March between 09:30-12:30. I'll be at work on this day and although I get signal whilst at my desk, there are many areas of the building that will not receive signal and the nature of my job I often find myself away from my desk. It states on the email about not taking the call - would they try more than once if it was to go straight to voicemail? 

Nominate a friend to take it on your behalf and offer £zero.  Thr call will be three minutes.

Hamish_123

Call lasted exactly 2 mins, with 1 minute being the advisor explaining the process. 

She said they were willing to settle at £200 and asked what my position was, I said the signage etc was totally inadequate and the penalty notice had been issued without justification and that I wanted to defend in court, so would be offering zero. She thanked me for my time and then ended the call. 

Hamish_123

The second of my mediation calls took place this morning. Claimant offered £235 to settle today. I offered zero. They then called back and offered £100. I rejected and said I'm happy to defend in court. Call ended.

The only difference in this one compared to the first was that the call handler seemed to go back to the claimant and report back to me, when on my first call at the beginning of the month as soon as I said my position was to offer zero, the call was wrapped up then.

Today I briefly stated my reason for offering zero as the charge was non compliant, and poor signage. The claimant came back - via the mediator - that several signs were visible at eye level, lighting was good etc etc… Which is not accurate for this call but would have been accurate for the case on the first call (the signs now have been vandalised, damaged and heavily faded - but they would have been legible when they were installed many years ago!) Still, in this case it is not reasonable for anyone to be expected to see the signs as they were positioned.

Interesting to see the different tactics used and hopefully this information may be useful for anyone expecting their mediation call. Amazing to me that in the space of literally 3 mins on the phone, they feel they have enough evidence to warrant the charge being issued but then immediately reduce the charge by almost 66% 

Hamish_123

Hi all,

I'm trying to get ahead and make a start on my witness statement so it can be submitted ASAP upon confirmation of a hearing date.

The exhibits I intend to use are; 

- Photos of the site showing the poor signage 
- Chan transcript due to the Claim Form not stating the breach.

Few questions;
- Can I use a photo already provided to me by the parking firm which shows the signage, in relation to my vehicle, being in a place that is not reasonable for someone to be able to notice or read? 
- Is the Beavis transcript relevant to be used also?

I'll post my first draft of my statement below without my exhibit list (which will be applicable to both cases when required barring a few minor tweaks). It has been adapted from a witness statement previously posted by another user.