Review of defence from DCB legal/UKPC claim form

1505grandad

The letter requiring Defence states two pcn dates  -  18/1/22 and 18/11/22

Coupon-mad

Coupon-mad said:

parkingnewbie01 said:

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? 

Unless @Johnersh or anyone else thinks that an 'amended defence' is needed (hard to judge from the DDJ's words above and I'm loath to strike out the template points just because this new allocating DDJ thinks there's no defence here) I would create a fresh supplementary signed document.

Which is basically what she's asked for.

Same headings as your defence had (claim no.,parties, etc., except at the top left, it should say IN THE COUNTY COURT AT BRIGHTON) and head it up:


Further Particulars in support
of the Defence, as ordered by Deputy District Judge Jennings

1. The Defendant hereby files and serves this document as further Defence Particulars to assist the court and explain why he challenges the parking charge notice dated 18/1/2022.

2. The Defendant did not intend to cause any delay or extra work for the court and was ready to supply the detail and images below in his Witness Statement, in due course, and will supply the same once the hearing date is set.

3. The Defendant trusts that the below additional information and images explain the main basis of defence.  The primary challenge to the enforceability of this parking charge invoice is summarised in paragraph 3 of the defence and relates to a lack of signs and lines.

4. Specifically, there is no clear delineation of the parking bays, which sit within a single site with no barriers between and no UK Parking Control entrance sign. These are mandatory in the Entrance Signs Appendix of the British Parking Association Code of Practice, 2020 version, which applied on the date in question.

5. The appearance of all parking bays is very similar throughout the site and there was a distinct lack of prominent terms and consumer notices from this Claimant. In fact, the Defendant saw nothing from this Claimant and believed the parking contract was offered by NCP, whose signs are prominent on site. The Defendant is an observant driver but no contractual terms/signs from this Claimant were seen at all. The Claimant is put to strict proof of the position and prominence of their terms and notices on the material date.

6.  Inadequate signage breaches not only the industry Code of Practice but also fails to meet the statutory fairness requirement for prominence of terms and 'consumer notices' (ref: the Consumer Rights Act 2015 - the 'CRA'). As is stated in paragraph 20 of the Defence, Section 71 of the CRA creates a statutory duty upon Courts to consider the test of fairness (including prominence of terms and notices) whether a party raises it or not. However, the Defendant does take that point.

7. By way of further explanation, the parking charge in question is from a car park in Crawley. As a driver enters the site, there is a big yellow NCP car park sign at the entrance. The Defendant parked up and walked to the nearest sign (NCP) and bought an e-ticket. After around 20 minutes of shopping the Defendant was shocked on returning to the car to find a windscreen 'PCN' from UKPC for 'parking without a permit'.

8.  It was not clear at all that some bays were apparently permit spaces. No sign communicating any 'relevant obligation' to display a permit was seen. No term communicated a risk of a £100 UKPC parking charge and/or a further £70 in costs/damages. The Defendant is having to surmise that £100/£70 breakdown of quantum based on the vague Particulars of Claim and upon reading the Code of Practice. To this day, the Defendant has not seen the purported contract offered by UKPC.

9.  Even if it is shown in evidence by the Claimant that some bays were on offer to 'permit holders only' this would still present the Claimant with two seemingly insurmountable problems:

(a)  the signs & lines were not conspicuous or prominent and thus were unfair, per the CRA 2015 which states that unfair terms and consumer notices are unenforceable;

(b) further and in the alternative, signs which state that they offer something of value to permit holders only (in this case a purported licence to park) fail to make a valid contractual offer to other drivers. No consideration flowed from UKPC to the Defendant.  There was no meeting of minds and no contract capable of being performed.

10. The situation was unclear and misleading with retail cages covering the walls where this Claimant may have had a sign. If they did - and they are put to strict proof - it was unable to be seen on the day. The Defendant shows below some Google images to assist the court's understanding of the location.

EMBED IMAGES HERE INCLUDING THE ONE FROM ABOVE AND THE YELLOW NCP SIGN AT THE ENTRANCE

11. Unless the court orders otherwise (or requests an amended defence) the Defendant respectfully intends and understands that their Defence stands, with this Further Particulars document supporting the pleading rather than replacing it. This is because there are other issues challenging the validity of the exaggerated claim which are covered by later parts of the Defence, including a challenge regarding landowner authority in what appears to be an NCP car park and a challenge to the quantum, purported costs/damages and interest. Paragraph 28 of the Defence also draws attention to the White Book which 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)." The Defendant raised this in the knowledge that this Claimant and their legal representatives (the latter issuing over 100,000 boilerplate parking claims per annum) routinely discontinues defended cases very late.

12.  The Claimant's legal representatives have been served with a copy of this Further Particulars defence addendum as required by the Order of the Court.

Statement of Truth

I believe that the facts stated in this Further Particulars addendum to the 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.

Signature:

Date:

Coupon-mad

See what others think.

But it - or similar - needs emailing as a PDF attachment tomorrow morning to ensure the court staff see & handle it before their Xmas break (you could phone them after emailing it to put your mind at rest):

https://www.escis.org.uk/advice-and-support/brighton-county-court-family-centre/

Make sure you sign & date it.

Make sure the email subject line has the right claim number and is marked FTAO DDJ Jennings re her Order dated xx/xx/24

Brighton court's email is this (copy it, don't type it in case of a vital mistake):

hearings.brighton.countycourt@justice.gov.uk


cc DCB Legal:

info@dcblegal.co.uk

and

paul@dcblegal.co.uk

Johnersh

I'd do an amended defence for a handful of reasons, but that's my take only. The o/p must make their own call. I think we can all agree the order is not ideal and unspecific.

My rationale:

1. It's much easier to direct the court to a single document, rather than to juggle two.
2. The Defendant in effect has permission to serve a new defence without costs penalty.
3. The DJ dislikes the defence as drafted. Why press a bad position by hanging on to it?

With the PoC being so brief it's easy enough to do short targeted points that cross refer to each numbered para.

The defendant is always permitted to argue law and to adduce case authorities at trial. The defendant will also get to do a witness statement, so there's not necessarily a need to panic.

The defence can still be punchy in pointing out full terms of the contract are omitted from the PoC etc.

Coupon-mad

I'm glad you replied @Johnersh.

DDJ Jennings has left it very vague!  This is a youngish DDJ and I looked her up. She might not yet get that the first problem is the POC, not the defence, in parking cases.

So to the OP:

If you choose instead to send an Amended Defence, as Johnersh thinks is best, I believe you start with the first defence, strike through parts of it that you wish to remove/replace, and add your replacement words in red.

You can crib some paragraphs from my suggestion above but don't call it 'Further Particulars' or an 'addendum' and you won't need my suggested para 11 at all nor the stuff referring to your first defence.

So, I would start by striking out your entire paras 1 and 2 and begin instead with this as paragraph 1 in red:

1.  Referring to the Particulars of Claim ('POC'): paragraph 1 is denied. The Defendant is not indebted to the Claimant. Paragraph 2 is admitted insofar as a parking charge notice was indeed affixed to the windscreen on 18/1/2022.  Whilst it is admitted that the Defendant was the driver, the liability claimed in the POC paragraphs 3 and 4 are denied. 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 there were no damages incurred whatsoever. The Claimant is put to strict proof of all of their allegations.

Then add in red, new paragraphs 2 and 3 summarising your facts and showing the images of the site, embedded into the document.

KEEP paras 4-7 of the Template defence. If keeping stuff, leave that paragraph text untouched unless you have to change paragraph numbering.

STRIKE OUT all of paras 8-13 of the template.

KEEP paras 14 and 15 of the template but re-number them, so that the amended defence numbering is sequential.

STRIKE OUT paras 16, 17, 18 (and 25 if you had it, can't see it in your version?) and strike out your para 27 about lack of ADR.

I'd keep the rest and re-number everything, sequentially.

And the Statement of Truth at the end would read like this with the word 'Amended' in red because it's an addition:

I believe that the facts stated in this Amended 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.

Signature:

Date:

Coupon-mad

Hope you emailed it off already, @parkingnewbie01

  

parkingnewbie01

What a hectic day! Yes I sent it off this morning during my break at work. Started early this morning so didn’t have time to respond on here until now. I didn’t do an amended defence, I did an additional signed document with the particulars of defence against the PCN. All sent off and I’ve received confirmation of that so all okay on that end. 

I would like to thank everyone for the contributions they were really helpful and a big thank you to @coupon-mad you have been brilliant. 

I will keep you posted on how it goes and fingers crossed DCB legal discontinue so I can put this to bed finally 🤣 

Coupon-mad

Very good. And cc'd in DCB Legal too?

parkingnewbie01

Yes I did.