UKPC DCB LEGAL Defence

Fairguy861

Hi All 

I have been reading some very valuable advice on here regarding UKPC and DCB claims. Looking at the newbies thread and advice. 

The incident occurred on 9th March and has now hit the stage of CNBC in Northampton. Some background. I unknowingly parked in a royal mail car park space directly outside of a soft play centre in Milton Keynes. Signage was certainly not clear, and the separation between the 2 car parks was non existent.  I did not receive any PCN upon returning to my car. I then got a letter in the post a week later. I contacted the soft play centre who said they could not do anything due to not their car park - typical. So i received a number of 

I did AOS by the website, but did not receive any notification or when i have to submit my defence by. Does anyone know how i find that out please? 

I have put together by defence using the template below. I would like feedback / anything i am missing please. Really appreciate any help. 

UK PARKING CONTROL LIMITED

(Claimant) 

- and -  

MY NAME 

 (Defendant)

_________________

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 acknowledges that they parked their vehicle at the car park in question on the date and time specified in the Particulars of Claim to attend the soft play centre named MK Safari Play with their children. Upon entering the car park, the Defendant observed no indication that the area was a regulated private car park owned by the claimant. The Defendant believed they were parking at their intended location MK Safari Play. The Defendant did not observe any signage specific to the claimant. Consequently, the Defendant did not have reasonable opportunity to review the claimant’s car park terms and conditions before parking their vehicle, and thus was unable to knowingly agree to any contractual obligations. Upon returning to the vehicle, the Defendant discovered no Penalty Charge Notice (PCN) affixed to their windscreen.

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: 

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: 

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):

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:

KeithP

Fairguy861 said:

I did AOS by the website, but did not receive any notification or when i have to submit my defence by. Does anyone know how i find that out please? 

Hello and welcome.

What is the Issue Date on your Claim Form?

Can you please show us a picture of the Particulars of Claim - with personal detail hidden of course.

Upon what date did you file an Acknowledgment of Service?
Your MCOL Claim History will have the definitive answer to that.

Coupon-mad

Please delete (from here but obviously NOT from your document!) the Template Defence para 5 onwards.  We really don't need to see the whole thing several times per day!

We only want to look at your bit.

Change:

The Defendant did not observe any signage specific to the claimant. 

to

The signage across the various parking areas for the adjacent units was wholly inadequate. The Defendant had never heard of this Claimant, let alone supposedly entered into a parking contract. No terms nor risk of £100 charge was bound to be seen on the day.

1505grandad

"Upon entering the car park, the Defendant observed no indication that the area was a regulated private car park owned by the claimant."

They do not "own" the cp  -  suggest operated for bold words instead.

Coupon-mad

It's not 'regulated' either.

Fairguy861

KeithP said:

Fairguy861 said:

I did AOS by the website, but did not receive any notification or when i have to submit my defence by. Does anyone know how i find that out please? 

Hello and welcome.

What is the Issue Date on your Claim Form?

Can you please show us a picture of the Particulars of Claim - with personal detail hidden of course.

Upon what date did you file an Acknowledgment of Service?
Your MCOL Claim History will have the definitive answer to that.

Issue date was 6th August. 

AOS was submitted on 16th August 

Fairguy861

KeithP said:

Fairguy861 said:

I did AOS by the website, but did not receive any notification or when i have to submit my defence by. Does anyone know how i find that out please? 

Hello and welcome.

What is the Issue Date on your Claim Form?

Can you please show us a picture of the Particulars of Claim - with personal detail hidden of course.

Upon what date did you file an Acknowledgment of Service?
Your MCOL Claim History will have the definitive answer to that.

Thanks, see below. 

Fairguy861

would really appreciate help regarding dates to submit defence - i am concerned i have missed it...or getting very close to missing it. Thanks 

Coupon-mad

You haven't missed it. KeithP will be back with your dates and info.

KeithP

Fairguy861 said:

KeithP said:

Fairguy861 said:

I did AOS by the website, but did not receive any notification or when i have to submit my defence by. Does anyone know how i find that out please? 

Hello and welcome.

What is the Issue Date on your Claim Form?

Can you please show us a picture of the Particulars of Claim - with personal detail hidden of course.

Upon what date did you file an Acknowledgment of Service?
Your MCOL Claim History will have the definitive answer to that.

Issue date was 6th August. 

AOS was submitted on 16th August 

With a Claim Issue Date of 6th August, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 9th September 2024 to file a Defence.

That's over a week 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'.

Fairguy861

Thanks Coupon-mad and KeithP. 

This is my revised wording, with your recommendations. Anything else to amend or you believe is not correct now you have seen the details of the claim? 

3. The Defendant acknowledges that they parked their vehicle at the car park in question on the date and time specified in the Particulars of Claim to attend the soft play centre named MK Safari Play with their children. Upon entering the car park, the Defendant observed no indication that the area was a private car park operated by the claimant. The Defendant believed they were parking at their intended location MK Safari Play. The signage across the various parking areas for the adjacent units was wholly inadequate. The Defendant had never heard of this Claimant, let alone supposedly entered into a parking contract. No terms nor risk of £100 charge was bound to be seen on the day. Consequently, the Defendant did not have reasonable opportunity to review the claimant’s car park terms and conditions before parking their vehicle, and thus was unable to knowingly agree to any contractual obligations. Upon returning to the vehicle, the Defendant discovered no Penalty Charge Notice (PCN) affixed to their windscreen.