Review of defence from DCB legal/UKPC claim form

parkingnewbie01

@DE_612183

I have an email receipt of when I sent it  to Claim responses yes. 

Gr1pr

I think that they did get it, handed over the case to Brighton court,  who have decided that no defence was made against the issuing of the PCN,  so didn't address the POC 

The recent numbered template rebuttal of the POC mentions incorrect date,  plus refutes the rest of the POC 

I suppose that it needs pointing out by issuing an amended defence,  sent to Brighton court, plus a copy to dcb legal by Monday 

If this is a continuation of the previous thread,  the OP should report it and ask for them to be merged

parkingnewbie01

@Gn1pr

What part of my defence should I amend? 

So they are taking issue with the fact that I didn’t challenge the issuing of the PCN when it actually happened? 

parkingnewbie01

I am in the process of trying the merge the two threads. 

Coupon-mad

parkingnewbie01 said:

Hello, I received this letter from the court and I am a bit confused on what they are expecting of me going forward and where I have went wrong.

Please may you have a read and help me out. I used the template defence 

My local court has been chosen. I was expecting to get a date but they have come back with this.

I’m not sure if this is them wanting another edited defence or not. 

parkingnewbie01 said:

What part of my defence should I amend? 

So they are taking issue with the fact that I didn’t challenge the issuing of the PCN when it actually happened? 

Brighton court has some good and some bad Judges and a bad or naive Deputy (local solicitor & part time Judge) has allocated this case and taken issue with the perfectly good template defence. Almost unheard of!

What a (tone-deaf to boilerplate parking POC) idiot. Yawn. But you must play the game.

OK I think the best thing to email to Brighton court and DCB Legal is an amended defence, which means crossing out some of your old one with strike throughs and adding something which explains more simply why you are not liable and challenge the PCN.

Can you now show us:

1. UKPC's NTK if you still have it? Both sides.

2. A link to the location to show us the two adjacent parking areas. NCP and UKPC.

3. Your whole defence copied and pasted here in a reply (not as a link).  Redact your data and claim number, name, etc.

I'll try to do a revision for you.

Coupon-mad

parkingnewbie01 said:

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 observes that at the time of the alleged breach the signage and road

lines were misleading. The location in question; 1 to 21 The Marletts Crawley, West

Sussex, RH10 1ER shares the same entrance with an NCP owed car park.

The entrance is covered with a large yellow sign with bold NCP signage. There is no

barrier or signage that separates the two car parks from one another clearly. Due to the

poor and misleading signage the defendant was under the assumption they were in a

NCP owned area. The defendant parked in the area briefly to go shopping. The

defendant bought a NCP ticket through the NCP app which the defendant was credited a

receipt for.

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:

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.

"

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:

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

data/file/1171438/Draft

IA

-

Private

_

_

_

_

_

Parking_

Code

of

Practice

_

_

_

.pdf

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 T erms Guidance (CMA37, para 5.14.3):

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

data/file/450440/Unfair

T erms

Main

_

_

_

_

Guidance.pdf

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).

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)

 Thanks.

No idea why the Deputy District Judge couldn't see front and centre, that you are clearly disputing the clarity of the signage for starters. The court has a LEGAL DUTY in s71 of the CRA 2015 to look at the prominence of terms and notices whether a Defendant or any party raises it or not (and you did!).

I'll hold this post to work in it for you this week.

parkingnewbie01

Below is the copy of the URL to the NCP car park on google maps and a screenshot of a Birds Eye view of it. 

On the left hand side is the UKPC owned permit holders only parking and on the right side the NCP. All part of the same big car park, only separated by a drain which you can vaguely see in the Birds Eye view. In the next thread I will post other photos of it that show how the poor signage make it hard to tell. 

https://maps.app.goo.gl/vKb2UMKvDYQdw4ny5?g_st=com.google.maps.preview.copy

parkingnewbie01

@Coupon-mad Thank you so much I really appreciate your help !!!! 

Just want to give you a rough idea of what my defence was through pictures. 

Here is a URL which leads to my other thread from last year (sorry I am trying to merge them). The second post has all of the photos from the car park itself and shows how misleading the signage and road lines are. 

I did also want to say I have an email receipt of the parking ticket I paid for with NCP at the time of parking there. It covers the time in which I got the windscreen PCN. 

I bought the ticket at 13:04 and was back to my car to get the windscreen PCN in a 20 minute period.  

I’m sorry but I cannot find the NTK anywhere. 

If there’s anything else you need let me know. 

https://forums.moneysavingexpert.com/discussion/6528042/review-of-defence-from-dcb-legal-ukpc-claim-form#latest

Coupon-mad

OK - I'll look tomorrow. It has annoyed me - as a Sussex lady born and bred - that a Sussex Court Deputy Judge has wrongly decided that 'my' flipping defence isn't good enough!

Utter naivety just because the defence is long. Pm me which Judge?

parkingnewbie01

@Coupon-mad

I was very suprised when I got the letter! Looks like they are nitpicking. 

Looks like the two threads have now been merged. 

Yeah sure thing I’ll private message you now.