Euro Car Parks/DCB Legal Claim - Incorrect VRN Defense submission (Edit - case discontinued by DCB)

uksmudge

Hello all. I have read a number of other posts (very helpful) and have used the template and then mostly plagiarised other forum users work to draft a defense as detailed below. I would be grateful if this could be checked and welcome any suggestions for improvement. 

For background, the machine at the time was playing up so wife (driver) did her best to input as close to her VRN as possible - (input ended up as V07 - not even close to actual VRN). Appealed to ECP as still had the ticket and they confirmed that they could see that a payment was made that would have covered the ANPR period, but still rejected appeal and requested an admin payment instead of PCN. Long and short of it, is that as registered keeper have now joined the ranks of others in receiving a notice from the county court with DCB legal acting on their behalf. 

Have already submitted an acknowledgement via the MCOL portal, so next stage is the submission of defense. I've cut out the standard template text and just left my bits. Also have to break the links otherwise I cannot post as a newbie

Thanks all in advance

The facts known to the Defendant:

2. The facts in this defense 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, but denies being the driver.

3. At the time of the alleged offence, the driver of the vehicle visited Walsall Waterfront ANPR car park to view a film at The Light Cinema. An attempt was made by the driver to purchase a valid ticket to cover the period required but found the ticket machine to be faulty. The driver paid the correct parking fee and there was no breach by conduct. There is no cause of action. This charge attempts to penalise the Defendant, who bought a ticket but the machine was playing up and would only accept limited characters.

4.  The Defendant asserts that the ticket machine was faulty at that time, causing a discrepancy between the purchased ticket and the vehicle registration mark (VRM). Despite the Defendant's best endeavors, a repeated malfunction in the machine led to the parking charge and this fault lies with the Claimant.

5. In response to the Parking Charge Notice (PCN), the Defendant promptly initiated the Claimant's appeals process. Despite the compelling evidence submitted by the Defendant, confirmation of payment in the rejection notification and the fact that it is common ground that full payment was made, the appeal was unjustly rejected by the Claimant. The Defendant contends that the rejection was unfair and failed to acknowledge the circumstances surrounding the ticketing machine malfunction.  Placing an impossible burden in a consumer which leads to a penalty or other detriment is unfair in law.

6.  There is a statutory test of fairness that courts must apply (s71 Consumer Rights Act 2015).  There are issues that render this parking charge to be unfair, out of all proportion and purely penal (i.e. no legitimate interest saves it) and thus, it is unenforceable:

(a). Placing the burden on the driver to input a full VRM on a faulty keypad (at a site where the system has already recorded the correct VRM via ANPR, thus the system is capable of presenting the driver with the full VRM as soon as he or she starts to type) is unfairly weighted against consumers.  This is just the type of 'concealed pitfall or trap' that the Supreme Court held would not save a claim from falling foul of the penalty rule, which was said to be 'engaged' in all parking cases.

(b). This unfairness specifically breaches the CRA 2015 and it is why (in the incoming statutory Code of Practice) the DLUHC has banned parking charges from being pursued for 'keypad errors' and also requires human checks to avoid unfair PCNs.  The Government takes the view that the machine should be linked to the ANPR so that it is impossible to buy a ticket without the full registration. There is no commercial justification, fairness or justice in knowingly issuing PCNs for VRM 'errors' which actually arise from system glitches that print error codes or partial VRMs instead of the information drivers try to type into a (typically old and sticky) keypad.

(c). The ticket/receipt has only printed three digits, as seen in other cases that another notorious ex-wheelclamper Claimant has lost in court.  Examples include:

(i). Claim no. C8DP11F9 – Excel v Mrs S – 09/09/2016, Oldham Court: Excel's machine failure caused a ticket to print an error code 'QQ' as discussed here (this case is not news to this serial bulk litigator): (Link broken to post on forum as newbie..) parking-prankster.blogspot.com/2016/09/excel-parking-get-gladstonedby-bw-legal.html?m=1

(ii). Then there was another one - involving Excel Parking Services Ltd - Excel v Ms H at Stockport Court, with the meritless case relying upon a ticket printed by the machine showing as a single letter 'P'.  The claim was of course dismissed by the Judge: (Link broken to post on forum as newbie...) parking-prankster.blogspot.com/2016/10/bw-legal-how-to-winlose-claim.html?m=1

(d) This Claimant has seen the P&D ticket attached to the Defendant's appeal email at the time. As a professional parking operator, even if they initially missed it, they should have admitted that this was caused by their own keypad failure.  Given this state of affairs, there was no just or 'reasonable cause' for this Claimant to have applied for the keeper data from the DVLA. They had the payment logs to check against all along, and their machine failure (the Defendant would never have just typed three letters) is their own responsibility and does not excuse them from this course of unjustified harassment that has lasted months and has ruined the Defendant's peace of mind.

7.  It is further denied that there were any prominent additional 'contractual costs' which - like the amount of the parking charge - are not quantified in the POC.  Neither sum (whatever those sums might be) was agreed by conduct.  The Defendant denies breaching any 'relevant obligation or contract' and notes that the POC fail to state the breakdown of the various amount(s) sought, nor even the basis/dates/rate for the vague mention of 'interest'.  This bare statement in the generic POC - which quantifies nothing - is no way to properly plead a Moneyclaim: "The Claimant seeks the recovery of the parking charge notice, contractual costs and interest.". The Claimant is not entitled to any sum at all.  the POC state no quantum breakdown at all.  A parking charge cannot be £170 yet that is the sum claimed.  There were no contractual damages or costs incurred because DCB Legal LTD are already claiming the maximum £50 legal costs that the MOJ has set as a cap (despite the fact that DCB have done minimal work, having only sent a LBC & boilerplate POC. There are no fees or costs for debt recovery incurred by this Claimant over and above the £50 cap.

Rest as per template, with paragraph numbering adjusted

Fruitcake

Defence with a "c", not an s. I am not being picky. The law is a pedant, so you must be as well and use the correct "legal" term. 

It is not an offence, so don't use that word. 

Has the driver's identity been revealed at any point?
If not, was the NTK PoFA compliant, and is the location covered by byelaws? Depending on the answers, you may want to include no keeper liability in your defence.

Please show us the PoC from the claim form, but redact all personal data.

You could include the term, "frustration of contract" regarding the machine's failure to allow the motorist to enter the correct VRM.

Have you exhausted Plan A, a complaint to the landowner and tour MP?

Umkomaas

Stay with the process, taking in forum advice, meet all court action and deadline requirements and the case against you will be discontinued - a few months away, but you will prevail. Have a read of the first few posts and some more recent random ones in the following thread. 

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

uksmudge

Thanks so far - I had actually changed the spelling on my word doc, so that spelling of defense/defence slipped through thanks to the american dictionary. I'll swop out offence for a different term too.

I'll just edit out personal details and post the court doc, ECP board and the ECP appeal response too

uksmudge

For information: 

uksmudge

Appeal rejection letter

uksmudge

Car park board - but may have changed since the original date? 

uksmudge

Update  - The Light Cinema don't want to assist as its nothing to do with them

Fruitcake

The driver entered their full VRM via the keypad, thus they complied with the Ts and Cs displayed on the signs, (the contract).

There is no mention on said contract that the ticket must contain the full VRM, nor that not having the full VRM on the ticket/permit is a breach of Ts and Cs.

The term "valid" is not defined. 

uksmudge

Fruitcake said:

The driver entered their full VRM via the keypad, thus they complied with the Ts and Cs displayed on the signs, (the contract).

There is no mention on said contract that the ticket must contain the full VRM, nor that not having the full VRM on the ticket/permit is a breach of Ts and Cs.

The term "valid" is not defined. 

Good spot - appreciated

1505grandad

"However, the vehicle is recognised, and it is admitted that the Defendant was the registered keeper, but denies being the driver."

Para 3  -  " An attempt was made by the driver to purchase a valid ticket......."
             -  "This charge attempts to penalise the Defendant, who bought a ticket but the machine was playing up and would only accept limited characters."
There are other anomalies.

Are you defending as RK only?