Euro Car Parks - Claim Form received (from DCB Legal)

Gr1pr

Its a reasonable assumption 

Motty2014

Received a “without prejudice save as to costs” letter from DCB Legal today asking me to call them to discuss an offer their client is prepared to make to settle the matter… guessing I just ignore this?

Coupon-mad

Yep.      

Motty2014

Hi, just a quick update. I am working through my witness statement to submit this week but I am having a couple of issues... the driver (who wasn't me) is accused of not purchasing a valid P&D ticket, given this happened in 2020 I cannot prove now whether they did or not, given it is a car park they use daily I would suggest they did but guess I need to prove that? Secondly, the car park has changed hands (twice I think) since 2020 and the signage has been changed with cameras now having being installed too so getting photographs of what the signage was like back in 2020 isn't possible either, I am not too sure what the best way to proceed is. Any advice would be greatly appreciated.

Coupon-mad

guess I need to prove that?

Nope. Not your burden.

This is the Claimant's claim to prove.

Just state your facts & attach your exhibits as seen in the evidence list in the NEWBIES thread and by reading other recent WS. I'd be stating that the driver wasn't you and always paid to park, so this must have been a system failure or a mere VRM typo or a '5 minute rule' unfair PCN (now banned). None of those scenarios have the required (Beavis case, Supreme Court) 'legitimate interest' to escape falling foul of the penalty rule. 

Le_Kirk

Your WS will need to back up and support, with evidence, what you wrote in your defence.

Motty2014

Hi all, thank you for all your help so far. The below is my current drafted WS, is there anything further to add/remove? I have only included the key sections below with headings where I have included further information from other WS I have read on here. Again any help/guidance is appreciated.

WITNESS STATEMENT OF DEFENDANT

Sequence of events

Given the alleged breach of contract took place over 4 years ago it is difficult to confirm whether the vehicle was parked at Rodney Street or how long it was parked there for. I can confirm that I was the registered keeper of the vehicle XXXXXX at the time but categorically deny being the driver on the day in question.

The driver used the car park regularly when parking for work and always ensured payment was made to cover the length of stay. The only explanation for this alleged breach is either a system error or a mere VRM typo made when purchasing the ticket. A quick online search for “Rodney Street car park” highlights this is a consistent issue with that particular car park (See Exhibit 1).

It is noted that the Particulars of Claim (POC) states that "The defendant is pursued as the driver of the vehicle for breach of the terms on the signs. In the alternative the defendant is pursued as the keeper". The Defendant categorically denies being the driver and the Claimant is put to strict proof otherwise.

Even if the POFA conditions had been met, the keeper cannot be assumed to be the driver. Vehicle Control Services (VCS) v Edward (HOKF6C9C) is the current authority, a persuasive appeal case stating you cannot lawfully "assume" the keeper was the driver.  Since VCS lost this appeal case in 2023, precedent has been set claiming it is improper for the claimant to plead that they may 'assume the keeper was the driver'. Outwith the POFA, parking firms cannot invoke 'keeper liability'. This legal point has already been tested on appeal (twice) in private parking cases involving VCS and its sister firm, Excel Parking Services Ltd and the following 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 (or was not 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 Edwards 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 at 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 judgment that was not the position before ... [the POFA] ... was in force;"

HHJ Gargan continued at 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.  [...]. 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..."

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 'keeper and/or driver' 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.

Inadequate signage: I have observed a lack of clear and visible signage regarding parking regulations. The only signs that are visible at the entrance to the car park, which is otherwise unmarked, give no information whatsoever as to the nature of the Terms and Conditions, merely that Terms and Conditions apply. Even the text which provides this limited information is very small and not clearly legible from inside a vehicle. (See Exhibit 2).

The only sign which does provide information relating to the Terms and Conditions is located off to the left of the entrance, obscured from view behind parked cars, and printed in such small type as to be illegible unless very close (see Exhibit 02). The poor placement and legibility of these signs made it extremely difficult for anybody to be aware of or to comply with the parking rules. This is in stark contrast to the highly visible, clear and legible signs seen in ParkingEye v Beavis [2015] UKSC67 (“the Beavis case”). (See Exhibit 3).

 Exaggerated Claim and “market failure” currently examined by UK Government

 CRA breaches

 The Beavis case is against this Claim

 Conclusion

In conclusion, the claim is entirely without merit and the Claimant is urged to discontinue now, to avoid incurring costs and wasting the court's time and that of the Defendant.

There is now ample evidence to support the view – long held by many District Judges – that these are knowingly inflated claims. The July 2023 DLUHC IA analysis surely makes that clear, because it is now a matter of record that the industry has told the Government that “debt recovery” costs eight times less than they have been claiming in almost every case. For HMCTS to only disallow those costs in the tiny percentage of cases that reach hearings whilst other claims continue to flood the courts unabated, is to fail hundreds of thousands of consumers who suffer CCJs or pay inflated amounts, in fear of the intimidating pre-action demands. I strongly believe that it is in the public interest that claims like this should be struck out, because knowingly enhanced parking claims like this one cause consumer harm on a grand scale.

 Attention is drawn specifically to the (often seen from this industry) 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)).”

 Costs Assessment

 Statement of Truth

Motty2014

As an aside, the exhibits I have included are as follows:

1. Extract of carpark reviews highlighting hundreds of similar cases where people have paid but are being chased for fines etc.
2. Photographs of the poor signage on the car park
3. Signage from Beavis case
4. Excerpt from ParkingEye v Beavis (paras 98, 193 and 198)
5. Excel v Wilkinson judgement

Coupon-mad

Change 'the Defendant' to "I"

But I think just start again and bin the rest as that's just repeating your defence.

You don't need the template blurb again.

Just say it like it is; you said you weren't driving so is that true? Say how you know this. Say whether you are confident that the driver always paid & displayed. 

Add the words I gave you.

Read up on the banning of the 5 minute rule.

Find the news article about Euro Car Parks with the video of Lynda Eagan showing how their machines don't record number-plates properly.

Motty2014

Thanks Coupon-Mad your help is massively appreciated, this is an area I have zero knowledge in! (which is probably very apparent!)

I have tried to ensure no repetition between the defence document and the WS so now updated based on the comments above, is this closer to what you would expect?

Given the alleged breach of contract took place over 4 years ago it is difficult to confirm whether the vehicle was parked at Rodney Street or how long it was parked there for. I can confirm that I was the registered keeper of the vehicle XXXXXX at the time but categorically deny being the driver on the date in question.

I am the registered keeper for two different vehicles, the vehicle I use daily is not the one involved in the alleged claim. I also work in XXXXXX and my car was on the work car park all day on the date in question.

The driver who used this vehicle did use the car park regularly when parking for work and I am confident that they always ensured payment was made to cover the length of stay. The only explanation for this alleged breach is either a system error, a mere VRM typo made when purchasing the ticket or a ‘5 minute rule’ unfair PCN. A quick online search for “Rodney Street car park” highlights this is a consistent issue with that particular car park (See Exhibit 1).

A news article included on the BBC website (https://www.bbc.co.uk/news/articles/cdeln2ly1z0o) further backs up the claim of system errors being commonplace at car parks managed by the claimant. The machines only allow partial car registration numbers to be entered before printing, leading to PCNs being wrongly issued.

The recent scrapping of the ‘5 minute rule’ highlights that parking operators were issuing PCNs for drivers not purchasing valid tickets 5 minutes after arriving. This may have been the case on the date of the alleged incident but as previously stated I am confident that the driver always paid and displayed as required during their stay.

It is noted that the Particulars of Claim (POC) states that "The defendant is pursued as the driver of the vehicle for breach of the terms on the signs. In the alternative the defendant is pursued as the keeper". I categorically deny being the driver and the Claimant is put to strict proof otherwise.

Even if the POFA conditions had been met, the keeper cannot be assumed to be the driver. Vehicle Control Services (VCS) v Edward (HOKF6C9C) is the current authority, a persuasive appeal case stating you cannot lawfully "assume" the keeper was the driver.  Since VCS lost this appeal case in 2023, precedent has been set claiming it is improper for the claimant to plead that they may 'assume the keeper was the driver'. Outwith the POFA, parking firms cannot invoke 'keeper liability'. This legal point has already been tested on appeal (twice) in private parking cases involving VCS and its sister firm, Excel Parking Services Ltd and the following 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 (or was not 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 Edwards 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 at 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 judgment that was not the position before ... [the POFA] ... was in force;"

HHJ Gargan continued at 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.  [...]. 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..."

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 'keeper and/or driver' 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.

Inadequate signage: I have observed a lack of clear and visible signage regarding parking regulations. The only signs that are visible at the entrance to the car park, which is otherwise unmarked, give no information whatsoever as to the nature of the Terms and Conditions, merely that Terms and Conditions apply. Even the text which provides this limited information is very small and not clearly legible from inside a vehicle. (See Exhibit 2).

The only sign which does provide information relating to the Terms and Conditions is located off to the left of the entrance, obscured from view behind parked cars, and printed in such small type as to be illegible unless very close (see Exhibit 02). The poor placement and legibility of these signs made it extremely difficult for anybody to be aware of or to comply with the parking rules. This is in stark contrast to the highly visible, clear and legible signs seen in ParkingEye v Beavis [2015] UKSC67 (“the Beavis case”). (See Exhibit 3).

In support of my contention that the sum sought is unconscionably exaggerated and thus unrecoverable, attention is drawn to paras 98, 100, 193, 198 of Beavis (see Exhibit 4).

The DLUHC’s draft IA exposes that the template “debt chaser” stage costs less than £9. This shows that HHJ Jackson was right all along in Excel v Wilkinson. (See Exhibit 5).

In the present case, the Claimant has fallen foul of the tests set out in the ParkingEye v Beavis case. There is one main issue that renders this parking charge to be purely penal (i.e. no legitimate interest saves it) and thus, it is unenforceable:

i)  Hidden Terms: The £100 penalty clause is positively buried in small print, as seen on the signs in evidence. The purported added (false) “costs” are even more hidden and are also unspecified as a sum. Their (unlawful, due to the CRA Schedule 2 grey list of unfair terms) suggestion is that they can hide a vague sentence within a wordy sign, in the smallest possible print, then add whatever their Trade Body lets them, until the Government bans it. The driver thus has no idea about any risk, nor even how much may be added on top. Court of Appeal authorities which are on all fours with a case involving a lack of “adequate notice” of a charge include:

ii) Spurling v Bradshaw [1956] 1 WLR 461 (“red hand rule”) and

iii) Thornton v Shoe Lane Parking Ltd. [1970] EWCA Civ2, both leading authorities confirming that a clause cannot be incorporated after a contract has been concluded; and

iv) 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”.

Conclusion
Costs Assessment
Statement of Truth