DCBL - CCC

34LH89

Hi all

Another DCBL claim, at CCC stage, as the keeper was unable to use POPLA due to IAS being the only option.

I already had some success with DCB in 2022, where they discontinued, so I'm hopeful for the same result.

The crux of what happened was, the driver parked in a car park administered by I Park Services, back in 2023. The driver always paid on the online service, and can demonstrate having done so, however on this occasion payment wasn't taken for whatever reason.

I'll follow the thread and keep you posted as normal.

34LH89

Quick question - this has come in the keeper's name, however the driver wants to defend it. is there a way now to have it reissued or otherwise to say who was driving, whether that be in the defence or something?

DE_612183

can't you just defend it on the basis that the defendant was not the driver on that day.

34LH89

Can the keeper explain what the driver did - IE the online system wasn't working?

Umkomaas

Too late to switch horses now court proceedings have commenced. The keeper will have to defend. But, as you know, given that DCB Legal are fronting this, the prospect of it ever reaching a hearing is extremely remote. 

https://forums.moneysavingexpert.com/discussion/6377263/dcb-legal-record-of-private-parking-court-claim-discontinuations/p1

Use the NEWBIES FAQ Announcement, second post, and Template Defence Announcement threads to work up your Defence - 95% of the work is done for you. 

Have you acknowledged receipt (AOS) of the claim?  If so, on what date. Forum regular @KeithP will be along shortly to advise you on critical dates and give you some advice on the first steps you need to take. 

Gr1pr

The keeper MUST defend it due to being the named defendant, passing the drivers details to the parking company was always an option until deadline day, the deadline day being the issue date on the claim form, too late now 

The defendant can defend on the basis of not being the driver, plus that the driver informed the keeper defendant that the online system wasn't working etc , or that online payment was made, with proof, but it wasn't taken by the claimant 

I hope that the defendant has already logged into MCOL and done the AOS. ?

34LH89

Hi there

Yes, AoS completed on the 23rd May. 

LDast

With an issue date of 16th May and having filed the AoS, you have until 4pm Tuesday 18th June to submit the defence.

As already stated above, only the named defendant can defend the claim. Without having seen the NtK that was received, it is possible that it is better that the keeper is the defendant as IPark Services do often send non-PoFA NtKs which are a "golden ticket" as long as the keeper wasn't the driver and does not identify them.

The second post of the Newbies/FAQ and Template Defence threads have all the info you need to continue with this. You can add the following "Preliminary Matter" to the defence after para #1 with a sub heading:

Preliminary Matter. The claim should be struck out

2. The Claim should be struck out on the basis that it contravenes Schedule 4, Paragraph 4(5) of the Protection of Freedoms Act 2012 (PoFA). PoFA clearly stipulates that a creditor may not make a claim against the keeper of a vehicle for more than the amount of the unpaid parking charges as they stood when the notice to the driver was issued. The original Parking Charge Notice (PCN) issued by the claimant was for £100. The claimant's current claim is for £170, which exceeds the amount of the unpaid parking charges as stated in the original notice. The claimant’s attempt to claim an unlawful amount constitutes an abuse of process and should not be allowed to proceed. I respectfully request the allocating judge to dismiss the claim on the basis of the claimant’s contravention of Schedule 4, Paragraph 4(5) of PoFA and thereby CPR 1.1, CPR 3.4(2)(a) and (b) and CPR 27.14 and to award costs to the defendant for having to defend against this improper claim.

Then the rest of the template defence with sub heading: "The facts as known to the Defendant" from para #3 and renumbering all the paras as necessary.

34LH89

I've written the defence which I think I'm happy with. I can't quite remember how to have it checked. Do I just post it on here with details removed, or do you send someone a link by PM?

Thanks again!

Coupon-mad

Post only the first 8 paragraphs because we don't want to see the rest of the template (which remains unchanged).

34LH89

 

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').

Preliminary Matter. The claim should be struck out

2. The Claim should be struck out on the basis that it contravenes Schedule 4, Paragraph 4(5) of the Protection of Freedoms Act 2012 (PoFA). PoFA clearly stipulates that a creditor may not make a claim against the keeper of a vehicle for more than the amount of the unpaid parking charges as they stood when the notice to the driver was issued. The original Parking Charge Notice (PCN) issued by the claimant was for £100. The claimant's current claim is for £170, which exceeds the amount of the unpaid parking charges as stated in the original notice. The claimant’s attempt to claim an unlawful amount constitutes an abuse of process and should not be allowed to proceed. I respectfully request the allocating judge to dismiss the claim on the basis of the claimant’s contravention of Schedule 4, Paragraph 4(5) of PoFA and thereby CPR 1.1, CPR 3.4(2)(a) and (b) and CPR 27.14 and to award costs to the defendant for having to defend against this improper claim.

3.  A 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 Practice Direction Part 16. On the 15th August 2023, 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 same is true in this case and in view of the Chan judgment, the Court should strike out the claim, using its powers pursuant to CPR 3.4

CHAN CASE IMAGES

The facts known to the Defendant:

4. 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, although not the driver.

4. The car was parked by the driver, while attending their place of work. The driver attempted to pay by the online system, as they always did, however on this occasion the payment didn’t go through. The website crashed, and after several attempts, no payment was taken.

 

Unfortunately, as the website crashed, it was not clear whether any payment was being taken, and so the driver stopped trying in order to avoid multiple payments.

 

On returning to the car, a completely unfair parking charge notice had been issued, where there was no fault of the driver or indeed the keeper.

 

5. Signage on site was completely inadequate, as confirmed by Google images taken just one month before the supposed contravention.

 

Please see appendix for more signage.

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.

Appendix:

1.      Signage

This is the main sign which catches the eye on approach to the parking site. As can be seen, there are no terms and conditions listed. It is also unclear what this relates to, as beneath this sign is a seemingly separate car park, as seen by this wider image:

 

As you can see, not only is there no sign on arrival, but the sign above is also located over the car park to the left, so it is completely unclear what this relates to.

 

Another view of the approach to the car park is below:

 

The only visible sign is that of the orange square on the low fence, utterly too small to notice, and depending on the size of the vehicle, positioned to be out of view of the driver. On the unlikely change you do notice the sign, it appears to relate to the car park behind it, rather than in front.

 

One final image is below to show the parking of the car:

From advice of the driver, the car was parked in one of the bays in this photo, either the very end or the one next to it. As you can see, there are no signs whatsoever to warn the driver of any potential contract. This completely contravenes all parking regulations, further confirming the case should be thrown out.