Claim for DBL (UKPC) for parking in unmarked bays

LunaraEcho86

Hi All,
First of all just wanted to say what a great resource this forum is! 

My partner received 3 x PCN from UKPC last December for parking in a football complex car park in an unmarked bay due to lack of space. He was driving our son to a football match and the car park was full so he parked in a an unmarked bay where they kept a large rubbish bin at the times. This happened on two consecutive weekends and on a third he parked on double yellow line (within the car park). The football complex was approx. 1hr drive away from where we live and he was not familiar with the area and therefore was not able to look for an alternative place to park. For one of the instances we didn't receive the original notice - just the final reminder. We have ignored all of the letters we received from them and shortly after the letters from DCBL started to come with an increased charge of £170/each. Eventually we received a letter of calim from them dated 26/06/24. At this point we started to look online and found your forum. We have sent them (DCBL) a reply email as per the Newbies advice to which they have responded the following: "We write in response to your correspondence received in our office dated 26/07/2024.

 

We now respond to the same as follows.

 

The HMRC ‘VAT Supply and Consideration manual’ (VATSC06140), which was last updated on 02 September 2020, confirmed that parking charge notices falls out of the scope of VAT. There is no requirement for a VAT invoice to be issued to you.

The sum added is a contribution to the actual costs incurred by our client as a result of your non-payment. Our client’s employees have spent time and material attempting to recover the debt. This is not our client’s usual business, and the resources could have been better spent in other areas of the business. Had you of paid as per the Contract, there would have been no need for recovery action so the amount due would not have increased.

In accordance with the British Parking Association (BPA) Code of Practice, where the Parking Charge Notice (PCN) becomes overdue and before Court proceedings have commenced, a reasonable sum may be added for the debt recovery fees. BPA - 24.1b “Where a Parking Charge becomes overdue and before Court Proceedings have commenced, a reasonable sum (which covers the cost of recovering debt) may be added for the debt recovery fees. This sum must not exceed £70 unless prior approval from the BPA has been granted”. The correct recovery fees have been added and will not be removed

 You now have 14 days from the date of this email to make payment of £510.00. Failure to make payment will result in a Claim being issued against you without any further reference.

 Payment can be made via bank transfer to our designated client account: -..."

We also complained to the Football complex but they got back to us saying that because the of the time elapsed they won't be able to support the claim: "This is challenging as CCTV is only kept on file for a period of time and this usually supports any claims made, as to available parking, this period of data capture has now passed and has been subsequently deleted. There is also a point where we have only so much time to state reasons for a retraction, before it gets fed up the collection chain, and again I fear this may already be with a collection agency, in which our powers to overturn are very limited. With the above I will try and see what I can do.". 

Following that we received a claim form with issue date of 22/08/24 to which we completed the AOS on MCOL on 29/08/2024. 

We are now drafting the defence letter for submission and struggling to word the section 2 and 3 of it. I have tried looking at the forum but couldn't see anything that was very similar to our case and was wondering if anyone was able to help on this.

My apologies in advance if anything in the above is not clear or there are mistakes but English is not our first language.

 

KeithP

LunaraEcho86 said:

...we received a claim form with issue date of 22/08/24 to which we completed the AOS on MCOL on 29/08/2024.  

Hello and welcome.

With a Claim Issue Date of 22nd August, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Tuesday 24th September 2024 to file a Defence.

That's a little 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'.

Coupon-mad

You are doing great, especially as English is not your first language.

I have tried looking at the forum but couldn't see anything that was very similar to our case.

All DCB Legal claims are exactly like your case. You need to respond to the particulars of claim so please show us a photo of the POC.  Cover the VRM. Don't show the whole claim form. 

LunaraEcho86

@Coupon-mad - many thanks for your quick response. I attached the POC below

Coupon-mad

Was it dark when parking? 

LunaraEcho86

@Coupon-mad no it was midday

LunaraEcho86

These are the pics from the letters

Coupon-mad

The Defence is that the car was only captured in photographs for x minutes, whilst the Defendant was unloading kit and dropping off a child who needed escorting to the football field area.  This activity is known as 'assisted alighting' and is not part of any 'parking period' as defined in statute.  There were no hatched markings nor double red lines, nor signs prohibiting loading/unloading, therefore unloading and setting down a passenger at a quiet corner kerb was reasonable. The ticketer must have witnessed this and was lurking deliberately to catch out parents dropping off children at football practice/matches, taking quick, covert surveillance photos to upload behind the Defendant's back. No traffic or pedestrians were obstructed, and no PCN was found on the windscreen. This type of covert operation breaches the Data Protection Act 2018, Surveillance camera Code of Practice and the MHCLG incoming statutory Code (see definition of a parking period).

LunaraEcho86

Does the below look ok for a defence? 

_________________

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, at the times of alleged breach, was visiting Stoneham Lane Football Complex whilst dropping off Defendant’s child that required escorting to the football field. The Defendant’s permanent place of residence is located over 35 miles from the Football Complex, thus Defendant was not familiar with the area and therefore was not able to locate an alternative place to drop off. On all three of the occasions the car park was full. The Defendant required to temporarily stop in the close proximity to the destination to escort Defendant’s child to the football and help with transferring the necessary kit. There were no hatched markings nor double red lines, nor signs prohibiting loading/unloading, therefore unloading and setting down a passenger at a quiet corner kerb seemed reasonable. The ticketer must have witnessed this and was lurking deliberately to catch out parents dropping off children at football practice/matches, taking quick, covert surveillance photos to upload behind the Defendant's back. No traffic or pedestrians were obstructed, and no PCN was found on the 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.

Coupon-mad

Remove this:

"The Defendant’s permanent place of residence is located over 35 miles from the Football Complex, thus Defendant was not familiar with the area and therefore was not able to locate an alternative place to drop off. On all three of the occasions the car park was full."

 A full car park (and not being familiar with the area, even though he visited there regularly for football matches) is not a justification to park 'any old how' and that's how the above sounds. DO NOT put it like that at any hearing, do not say 'I had no choice, it was full'.

Better to stick to the below defence as a point of law that you CAN stop on double yellows.

Add this and renumber the rest of the template (don't remove any paragraphs of it):


4. The Defendant was only there to set down and safely escort a child passenger and carry his football kit to the safe place with other adults at the football field.  As 'boarding or alighting' is specifically allowed on double yellow lines (it is exempt activity as defined in the Highway Code and is not 'parking' and cannot result in any upheld penalty on double yellow lines) the Defendant briefly stopped, without obstructing any person or vehicle, just for the time it took to undertake the exempt activity (a phrase used by proper Local Authority adjudicators to describe loading, unloading, and passenger boarding and alighting).

5.  The new statutory Code of Practice linked later in this defence (temporarily stalled but it is being reintroduced by the Government after an Impact Assessment in 2023 which will only address monetary issues, not other clauses) also defines 'parking' as not including picking up or setting down passengers.  In the statutory definitions, it says at 2.19 {NB: the Defendant's bold} that parking is "an instance of a vehicle being caused by the driver to remain stationary other than in the course of driving (excluding instances where the driver has stopped to enable passengers leave or enter the vehicle)".

6.  In a comparable parking case (persuasive as it was on appeal) Laura Jopson vs Homeguard Securities case number 9GF0A9E, His Honour Judge J Harris QC states: "getting in or out of it, loading or unloading it, and perhaps coping with some vicissitude of short duration" is not parking. The court transcript of that hearing and judgment, heard on appeal at Oxford Court, will be provided at witness statement stage in support of this defence.

7.  No terms and conditions signs were seen and the Defendant avers that the prominence and legibility of any supposed parking terms is extremely poor when stopping to unload at the kerb/corner area in question. The only visible 'consumer notice' (Consumer Rights Act 2015 definition applies) was the provision of double yellow lines, the normal interpretation of which is to allow brief stops for exempt activity.  No fair consideration or grace period was allowed either, despite this being mandatory in the Claimant's Code of Practice.  The Defendant is unsure what the cause of action is, and what he is supposed to have done wrong, given that the Particulars are silent about the precise allegation, grace periods or any terms of the supposed 'contract'. Boarding or alighting is specifically allowed on double yellow lines and the Defendant briefly stopped, without obstructing any person or vehicle, just for the time it took.

8. The Claimant's photographs are predatory, showing that covert surveillance and a hand-held camera or phone was used.  Covert surveillance breaches the Information Commissioner's Surveillance Camera Code of Practice and remote self-ticketing (with no PCN left on the vehicle) like this is proposed to be banned in the new statutory Code of Practice linked later in this defence. The finalising of the statutory rules is temporarily stalled but it is not dead and will be reintroduced by the new Government be cause the 2019 Act says the Secretary of State 'must'. 

9. Further, even if the claimant alleges a breach of t&cs, their deliberate use of double yellow lines (instead of red lines or hatchings which denote an area where a vehicle must not stop/park) must be interpreted with their usual meaning.  The usual meaning of double yellow lines is to positively allow loading, unloading and boarding/alighting (including time taken then carrying the kit and assisting a child to the nearby premises, in this case the football field).  If the Claimant wanted to make this a 'no stopping zone' where loading/unloading and setting down passengers is prohibited they could have marked it as such.  They did not. The use of 'double yellows' is (at best, and this is a stretch of the true meaning) ambiguous. The Defendant relies upon the Consumer Rights Act 2015, s.69 - "(1) If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail."

LunaraEcho86

I just wanted to check if anyone knows - Is it still ok to submit the defence with electronic signature - our printer just died and we may not be able to get it printed and scanned by tomorrow (due date for submission). In the template post sticky it states that it is ok to submit with electronic signature but the post is from 2020 so I thought I double check just in case. Many thanks in advance