PCN on Residential Parking and now LOC

LDast

Check the PoC against the DVLA for the date of "event" and the date of "PCN issue". The PCN cannot be issued on the same date as the event as the DVLA data has to be requested first and cannot happen on the same day. So, DCB Legal are not telling the truth in the PoC.

Coupon-mad

Cancel_Them said:

Why only 3 PCNs on that claim?

Cancel_Them

KeithP said:

With a Claim Issue Date of 8th October, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 11th November 2024 to file a Defence.

That's nearly four 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 at the second post in the NEWBIES thread.

Don't miss the deadline 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'.

Thanks. I'll get started on the defence this week

Cancel_Them

LDast said:

Check the PoC against the DVLA for the date of "event" and the date of "PCN issue". The PCN cannot be issued on the same date as the event as the DVLA data has to be requested first and cannot happen on the same day. So, DCB Legal are not telling the truth in the PoC.

I see what you're saying.
The PoC says PCN were issued on 12th, 13th and 15th Dec.

The DVLA response shows date of request for all 3 were 5th January. And date of event as 12th, 13th and 15th Dec.

The 3 PCNs have a "Date of Notice" of 8th January

Cancel_Them

Coupon-mad said:

Cancel_Them said:

Why only 3 PCNs on that claim?

I'm not sure why really. My guess is maybe cos of the amount I already paid before I came to my senses.

Also they had only sent debt collection letters and one LoC for these 3.

Coupon-mad

Cancel_Them said:

LDast said:

Check the PoC against the DVLA for the date of "event" and the date of "PCN issue". The PCN cannot be issued on the same date as the event as the DVLA data has to be requested first and cannot happen on the same day. So, DCB Legal are not telling the truth in the PoC.

I see what you're saying.
The PoC says PCN were issued on 12th, 13th and 15th Dec.

The DVLA response shows date of request for all 3 were 5th January. And date of event as 12th, 13th and 15th Dec.

The 3 PCNs have a "Date of Notice" of 8th January

All non-POFA then. No keeper liability.

As long as you never admitted to driving (in an early appeal) then search the forum for:

Excel Smith VCS Edward Gargan defence

Cancel_Them

Coupon-mad said:

Cancel_Them said:

LDast said:

Check the PoC against the DVLA for the date of "event" and the date of "PCN issue". The PCN cannot be issued on the same date as the event as the DVLA data has to be requested first and cannot happen on the same day. So, DCB Legal are not telling the truth in the PoC.

I see what you're saying.
The PoC says PCN were issued on 12th, 13th and 15th Dec.

The DVLA response shows date of request for all 3 were 5th January. And date of event as 12th, 13th and 15th Dec.

The 3 PCNs have a "Date of Notice" of 8th January

All non-POFA then. No keeper liability.

As long as you never admitted to driving (in an early appeal) then search the forum for:

Excel Smith VCS Edward Gargan defence

Yes, I never appealed any of these 3. Thanks

Cancel_Them

Good evening, 
I've put together a draft defence, please help review and let me know what changes are needed, if any. Many thanks for all your help.

I've got a couple of questions:
- Where I've added the Excel Smith VCS Edward Gargan defence, is it fine in the preliminary matter section, and does it conflict with '6', where I've mentioned defendant was keeper and driver?
- If mentioning my friend/co-resident like I have is alright?

I also added in 13 about the wrong issue dates on the PCNs and how that makes the entire claim false. Let me know if not valid.


Draft 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').

Preliminary matter: The claim should be struck out

2. The Defendant draws to the attention of the allocating Judge that there is now a persuasive Appeal judgement to support striking out the claim (in these exact circumstances of typically poorly pleaded private parking claims, and the extant PoC seen here are far worse than the one seen on Appeal).  The Defendant believes that dismissing this meritless claim is the correct course, with the Overriding Objective in mind.  Bulk litigators (legal firms) should know better than to make little or no attempt to comply with the Practice Direction.  By continuing to plead cases with generic auto-fill unspecific wording, private parking firms should not be surprised when courts strike out their claims based on the following persuasive authority.

3. A recent persuasive appeal judgement in Civil Enforcement Limited v Chan (Ref. E7GM9W44) would indicate the POC fails to comply with Civil Procedure Rule 16.4(1)(e) and Practice Direction Part 16.7.5. 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 judgement (transcript below) the Court should strike out the claim, using its powers pursuant to CPR 3.4.

<I'll add the pictures of the transcripts here>

4. Outwith the POFA, parking firms cannot invoke 'keeper liability'. This legal point has already been tested on appeal (twice) in private parking cases and the transcripts will be adduced in evidence:

           I. In the case of Excel Parking Services Ltd v Anthony Smith at Manchester Court, on appeal re claim number C0DP9C4E in June 2017, His Honour Judge Smith overturned an error by a District Judge and pointed out that, where the registered keeper was not shown to have been driving such a Defendant cannot be held liable outwith the POFA.  Nor is there any merit in a twisted interpretation of the law of agency (if that was a remedy then the POFA Schedule 4 legislation would not have been needed at all).  HHJ Smith admonished Excel for attempting to rely on a bare assumption that the Defendant was driving or that the driver was acting 'on behalf of' the keeper, which was without merit. Excel could have used the POFA but did not. Mr Smith's appeal was allowed and Excel's claim was dismissed.

           II. In April 2023, His Honour Judge Mark Gargan sitting at Teesside Combined Court (on appeal re claim H0KF6C9C) held in Vehicle Control Services Ltd v Ian Edward that a registered keeper cannot be assumed to have been driving. Nor could any adverse inference be drawn if a keeper is unable or unwilling (or indeed too late, post litigation) to nominate the driver, because the POFA does not invoke any such obligation.  HHJ Gargan held:

           35.1. "The finding I make is consistent with the underlying purpose of Schedule 4 to the Protection of Freedoms Act, namely, that it was necessary to bring in keeper liability pursuant to that legislation, because liability could not be established. If this were not the case car parking companies could simply have obtained the details of the registered keeper, launched proceedings and waited to see whether or not there was a positive defence put forward, and in the absence of a positive defence they would have succeeded. If the court took such an approach, it would have been imposing a duty on the registered keeper, to identify the driver or at least set out a positive case in order to avoid responsibility himself. In my judgement that was not the position before ... [the POFA] ... was in force; 

           35.2.  my decision preserves and respects the important general freedom from being required to give information, absent a legal duty upon you to do so; and

           35.3.  it is consistent with the appropriate probability analysis whereby simply because somebody is a registered keeper, it does not mean on the balance of probability they were driving on this occasion..."

5. Mr Edward's appeal succeeded and the Claim was dismissed.  In the extant case, this Claimant has launched 'roboclaim' cut & paste proceedings saying vaguely that the Defendant was 'driver and/or keeper' and waited to see if the registered keeper has the nous to research the POFA and to meaningfully defend, or if they could gain a default CCJ (as happens in 90% of small claims).  It is a lucrative gamble with the odds of wrongful success heavily weighted in parking operators' favour, but this is plainly an abuse of the court process.  This baseless claim demonstrates precisely the behaviour that HHJ Gargan identified in 35.1. This claim has no basis in law and neither the court nor the Defendant should be troubled with a hearing.

The facts known to the Defendant:

6. 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.

7. The Particulars refer to the material location as (I’ll add building address). The Defendant has held an AST agreement to (Apartment number) at (building address) since 20th October, 2022. At some point, the managing agents contracted with the Claimant company to enforce parking conditions at the estate. 

8. The parking area contains allocated parking spaces demised to some residents.. Entry to the parking area is by means of a key fob, of a type only issued to residents. Any vehicles parked therein are, therefore, de facto authorised to be there.

9. The Defendant, a resident at the aforementioned estate, has been using a parking space allocated to a co-resident and friend. Neither party's tenancy agreements contain terms requiring authorisation for such use, nor do they stipulate any specific parking conditions or restrictions, or the need to pay penalties to third parties, such as the Claimant, for non-compliance. Both the managing agents and their agent are strangers to the lease (not signatories) and have no right to amend or alter the rental agreements with the landlord.

10. The Defendant, at all material times, parked in accordance with the terms granted by the agreements. The erection of the Claimant's signage, and the purported contractual terms conveyed therein, are incapable of binding the Defendant in any way, and their existence does not constitute a legally valid variation of the terms of the agreements. Accordingly, the Defendant denies having breached any contractual terms whether express, implied, or by conduct.

11. The Claimant, or Managing Agent, in order to establish a right to impose unilateral terms which vary the terms of the lease, must have such variation approved by at least 75% of the leaseholders, pursuant to s37 of the Landlord & Tenant Act 1987, and the Defendant is unaware of any such vote having been passed by the residents. 

11.1. Indeed, the landlord’s agent for both the Defendant and co-resident has stated, “...we have been completely cut out of the Car Park Management system and have absolutely no say or influence in anything to do with it, much to our frustration,” indicating that the Claimant or Managing Agent has not conducted proper consultation or obtained agreement to justify any variation of parking terms. As a result, the Claimant or Managing Agent lacks the legal authority to unilaterally impose new parking terms or penalties.

12. Further and in the alternative, the signs refer to 'Pre-Authorised Vehicles & Permit Holders Only/Vehicles Displaying a Valid Permit’', and suggest that by parking without permission, motorists are contractually agreeing to a parking charge of £100. This is clearly nonsense, since if there is no permission, there is no offer, and therefore no contract.

12.1. The Defendant's vehicle clearly was 'authorised' as per the agreement and the Defendant relies on primacy of contract and avers that the Claimant's conduct in aggressive ticketing is in fact a matter of tortious interference, being a private nuisance to residents.

12.2. In this case the Claimant has taken over the location and operating a business as if the site were a public car park. They offer terms, including a £100 penalty, to residents similar to those available to the general public and trespassers. However, residents have inherent rights to park, rights of way, and peaceful enjoyment of their homes. Imposing new, onerous terms under a 'permit/licence' by a third party cannot be re-offered as a contract. This action interferes with the terms of leases and tenancy agreements, to which the parking firm is not a party and has not bothered to check for any rights or easements that their regime may violate (the Claimant is put to strict proof). This causes substantial and unreasonable interference with the Defendant’s land/property and their use or enjoyment of that land/property.

13. The Claimant states in the Particulars of Claim (POC) that the Parking Charge Notices (PCNs) were issued on 12 December 2023, 13 December 2023, and 15 December 2023. However, a Subject Access Request (SAR) to the DVLA reveals that the request for registered keeper information related to these PCNs was not made until 5 January 2024.

13.1. Consequently, it would not have been possible for the Claimant to issue PCNs on the dates specified in the POC, unless in doing so, the Claimant concedes to a breach of UK GDPR / Data Protection Act 2018.

13.2. As the dates provided by the Claimant in the POC are demonstrably false, supported by the corresponding PCNs, the Defendant invites the Court to dismiss the Claim in its entirety due to this misrepresentation of material facts. Furthermore, should the Claimant attempt to continue with the case on this basis, they may be at risk of a finding of Contempt of Court.

14. The Claimant may rely on the case of ParkingEye v Beavis [2015] UKSC 67 as a binding precedent on the lower court. However, that only assists the Claimant if the facts of the case are the same, or broadly the same. In Beavis, it was common ground between the parties that the terms of a contract had been breached, whereas it is the Defendant's position that no such breach occurred in this case, because there was no valid contract, and also because the 'legitimate interest' in enforcing parking rules for retailers and shoppers in Beavis does not apply to these circumstances. Therefore, this case can be distinguished from Beavis on the facts and circumstances.

15. The Claimant, or their legal representatives, has added additional sums to the original £100 parking charge, for which no explanation or justification has been provided. Schedule 4 of the Protection Of Freedoms Act, at 4(5), states that the maximum sum which can be recovered is that specified in the Notice to Keeper, which is £100 in this instance. It is submitted that this is an attempt at double recovery by the Claimant, which the Court should not uphold, even in the event that Judgment for Claimant is awarded. Also the defendant objects to Claimant’s legal representative’s attempt at adding interest at 8% which is extortionate.

16. For all or any of the reasons stated above, the Court is invited to dismiss the Claim in its entirety. Given that the claim is based on 3 alleged contractual parking charges of £100 - already significantly inflated and mostly representing profit, as was found in Beavis - but the amount claimed on the claim form is inexplicably £542.48, the Defendant avers that this inflation of the considered amount is a gross abuse of process.

<I'll add the rest of the defence template after this and re-number accordingly>

Coupon-mad

"and driver"

Eh?

Clearly you  can't use Smith or Edward if you say that!

Cancel_Them

Oops! I'll take both out then.