Court Case - Claim form received from UKPC Ltd / DCB Legal - 14 days has surpassed

davie185

Hi there,

So I received a PCN back in May 2023. I recently received a claim form regarding this with date issued 17th June 2024. I have the following questions:

- as the 14 days have passed, what are my options? Can I still appeal? Is the best option now to just pay (it appears online I can still pay the amount of £269.16 in total that is stated on the letter). I understand it's stupid of me to have waited until after this time to take action on this, and frankly I have no good excuse.
- I soon hope to buy a house so don't want anything to affect my chances of getting a mortgage. Will payment of this or appeal of this (if I lose appeal) affect this? I believe the answer is no, it wont affect it in any way as long as I pay up if I lose appeal within 28 days.
- Do I have good grounds of appeal? Essentially, I was parked in a residents car park for the building I lived in at the time. Someone was parked in my marked bay, so I was parked in another bay that was unmarked but not assigned to me. I did not have my permit displayed at the time (I had misplaced it), but I did have a tenancy agreement which said I was entitled to a space but made no mention of any permit requirement.
- If I appeal and lose, will costs increase beyond the £269.16?

I apologise if these are questions asked a lot, but there seems to be so many avenues of info to explore and I don't know where to start.

Any help or advice would be greatly appreciated, thank you.

KeithP

davie185 said:

I recently received a claim form regarding this with date issued 17th June 2024. 
I don't know where to start.

With a Claim Issue Date of 17th June, you have until Monday 8th July to file an Acknowledgment of Service, but there is nothing to be gained by delaying it. 

To file an Acknowledgment of Service, follow the guidance in the Dropbox file linked from the second post in the NEWBIES thread.

Having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 22nd July 2024 to file a Defence.

That's nearly three weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.

To create a Defence, and then file a Defence by email, look again at the second post on the NEWBIES thread - immediately following where you found the Acknowledgment of Service guidance.

Don't miss the deadline for filing an Acknowledgment of Service, nor that for filing a Defence.

Do not try and file a Defence via the MoneyClaimOnline website. Once an Acknowledgment of Service has been filed, the MCOL website should be treated as 'read only'.

Coupon-mad

You aren't late.

It isn't an 'appeal'. It's a defence.

It would be madness to pay any PPC Claim.

This won't affect your mortgage because you are going to defend the claim with our help. Surely nobody thinks we put people's credit ratings at risk here?

Of course we don't.

davie185

Coupon-mad said:

You aren't late.

It isn't an 'appeal'. It's a defence.

It would be madness to pay any PPC Claim.

This won't affect your mortgage because you are going to defend the claim with our help. Surely nobody thinks we put people's credit ratings at risk here?

Of course we don't.

KeithP said:

davie185 said:

I recently received a claim form regarding this with date issued 17th June 2024. 
I don't know where to start.

With a Claim Issue Date of 17th June, you have until Monday 8th July to file an Acknowledgment of Service, but there is nothing to be gained by delaying it. 

To file an Acknowledgment of Service, follow the guidance in the Dropbox file linked from the second post in the NEWBIES thread.

Having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 22nd July 2024 to file a Defence.

That's nearly three weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.

To create a Defence, and then file a Defence by email, look again at the second post on the NEWBIES thread - immediately following where you found the Acknowledgment of Service guidance.

Don't miss the deadline for filing an Acknowledgment of Service, nor that for filing a Defence.

Do not try and file a Defence via the MoneyClaimOnline website. Once an Acknowledgment of Service has been filed, the MCOL website should be treated as 'read only'.

Thank you to both. I submitted the acknowledgement yesterday and will read through your link so I can prepare a defense over the weekend to submit in the coming days. Greatly appreciate the reply and guidance.

Gr1pr

DEFENCE, no s

If you lost in court the typical loss after the spurious charges are removed is about £200 , not the amount on the claim form 

No it doesn't go up, but it will probably be about £70 less, meaning that it should go down 

Yes, pay it off , IN FULL, within the 30 days grace period, but preferably ASAP, to avoid future credit issues 

if you win or the case is discontinued, you pay nothing 

Coupon-mad

To clarify, nobody is telling you to pay it.  @Gr1pr was merely saying that it's not a problem if the odd case is lost in the end.

But yours won't be. Easy to defend.

Coupon-mad

No evidence goes yet. Read the IMPORTANT: KNOW WHAT HAPPENS WHEN section of the 2nd post of the NEWBIES thread.

The above shows is that you have abandoned the template defence. Lots of it is missing.

davie185

Coupon-mad said:

No evidence goes yet. Read the IMPORTANT: KNOW WHAT HAPPENS WHEN section of the 2nd post of the NEWBIES thread.

The above shows is that you have abandoned the template defence. Lots of it is missing.

Okay thanks for the feedback. I was only trying to include sections from the template that I felt were relevant, but from your comment I assume I’ve left out a lot from it that actually is relevant, so I’ll go through it all again and re evaluate. Thank you. 

Le_Kirk

Nothing should be removed from the template defence. 

davie185

Le_Kirk said:

Nothing should be removed from the template defence. 

Okay thanks, so is something like this more appropriate, just a relativley brief statement of the defense? (header to be changed to suit of course)

IN THE COUNTY COURT

Claim No.:  xxxxxx

Between

Full name of parking firm Ltd, not the solicitor!

(Claimant) 

- and -  

Defendant named on claim (can’t be changed to driver now)                        

_________________

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 was parked in a car park designated for residents only, and the Defendant was a resident at the building that the car park was for, specifically in flat 229. On the date in question, the Defendant's allocated parking spot was occupied by another vehicle. Consequently, the Defendant parked in an alternative spot within the same residential car park, that they had never seen been occupied in all the time they lived there.

3.1. The Claimant's signs state that a permit must be displayed. However, the Defendant did not have a permit on display at this particular time because it had been lost. The permit was shared between the Defendant and the Defendant's flatmate and had been misplaced within the flat. The Defendant's contract with the landlord stipulates the right to a parking space but does not state anywhere that a permit must be displayed to use it.

3.2. The car park is accessible only by key fob or by ringing a phone number that automatically opens the door, providing the phone number is registered with the service to have access. The Defendant had access through both methods, demonstrating authorized use of the parking facilities.

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 Terms Guidance (CMA37, para 5.14.3):

 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/450440/Unfair_Terms_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).  

ParkingEye v Beavis is distinguished

23.  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.  

24. 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''. 

25.  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

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))."   

 

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.

Signature:

Date:

 

LDast

Without having seen the PoC but knowing the form of these roboclaim issued cases, I have been advised by a long serving district judge that the template defence we have been using is often a concern to some judges as it is too long and that simply using one boilerplate defence against another boilerplate claim does not make it right.

Judges want an easy life and we should be making it easier for them. A suggested simple defence that would force the claimant to actually do some work and submit amended PoC is attached and includes a draft order for the allocating judge to use. As far as we are aware, no claimant has ever managed not to breach the order and all claims that have been subject to the order have been struck out and none have had applications to set the order aside:

1. The Defendant denies any liability for this claim.

2. There is a lack of precise detail in the Particulars of Claim (PoC) in respect of the factual and legal allegations made against the Defendant such that the PoC do not comply with CPR 16.4(1)(a).

3. The Defendant is unable to plead properly to the PoC because: 

  (i) The contract referred to is not attached to the PoC in accordance with CPR PD 16.7.3;

  (ii) The PoC do not state the exact wording of the clause (or clauses) of the terms and conditions of the contract (or contracts) which is/are relied on;

  (iii) The PoC do not set out the reason (or reasons) why the claimant asserts the defendant has breached the contract (or contracts);

  (iv) The PoC do not state with sufficient particularity exactly where the breach occurred, the exact time when the breach occurred and how long it is alleged that the vehicle was parked before the parking charge was allegedly incurred;

  (v) The PoC do not state exactly how the claim for statutory interest is calculated.

  (vi) The PoC do not state what proportion of the claim is the parking charge and what proportion is damages.

  (vii) The PoC states that the Claimant is suing the defendant as the driver or the keeper. The claimant obviously knows whether the defendant is being sued as the driver or the keeper and should not be permitted to plead alternative causes of action. 

4. The Defendant has attached to this defence a copy of an order made at another court which the allocating judge ought make at this stage so that the Defendant can then know and understand the case which he/she/it faces and can then respond properly to the claim.

And this is the draft order:

Before District Judge [Name] on [Date]

Of the Court's own initiative and upon reading the particulars of claim and the defence

AND the court being of the view that there is a lack of precise detail in the particulars of claim in respect of the factual and legal allegations made against the defendant such that the particulars of claim do not comply with CPR 16.4(1)(a)

Order

1. Unless the Claimant do by 4pm on (insert a date here 14 days from typing the order) file at court a further particulars of claim which complies with CPR 16.4(1)(a) and which sets out:

(i) the precise and concise factual allegations it makes against the Defendant and

(ii) the factual or legal [or both] basis of its claim and

(iii) exactly how its claim is calculated (if there is a claim for a fixed sum)

then the claim shall be struck out.

1.   For the avoidance of doubt the further particulars of claim must refer to and have attached to them the contract (or contracts) between the claimant and defendant relied on [marked "A"] and must set out the exact wording of the clause (or clauses) of the terms and conditions of the contract (or contracts) which is/are relied on.
2.   For the avoidance of doubt the further particulars of claim must, in respect of each and every alleged breach of contract, set out the reason (or reasons) why the claimant asserts that the defendant was in breach of contract.
3.   For the avoidance of doubt the further particulars of claim must, in respect of each and every alleged breach of contract, set out the full postal address of where the breach took place, the precise date and time of the alleged breach, and exactly how long it is alleged that the defendant had parked his/her/its/their vehicle before the parking charge was incurred
4.   For the avoidance of doubt the further particulars of claim must set out a precise calculation of any claim for statutory interest up to the date of issue to include the date when it is said that interest started running.
5.   Permission to either party to apply to set aside, vary or stay this order by an application on notice which must be filed at this Court not more than 5 days after service of this order, failing which no such application may be made.