PCN on lease vehicle - Small Court Claim Form

LDast

Is the vehicle leased to you, personally, in your name? Or, is it leased to the company you work for and it is then "hired" to you or others?

Whose name is on the claim form as the defendant? Is it you? If so, and you are obviously not the RK, has the lease company named you are the "Hirer" (lessee)?

Do you have knowledge of the Notice to Keeper (NtK) that was issued to the RK (lease company)?

Once your relationship to the car is fully understood (are you the person who leased/hired the car from the RK?) you can move on to the defence.

There are several points to note... As the Hirer (lessee) of the vehicle, you cannot be liable for the charge because the location of the alleged contravention is land under statutory control (airport bylaws) and as such, is not 'relevant land' for the purposes of PoFA. Only the driver (if known) can be liable. There is no legal obligation on the Hirer to identify the driver. There is no reason to lie. The Hirer simply declines to identify the driver to an unregulated private company.

Another point, is that as this is a claim filed by the bottom-dwelling, bulk litigator, DCB Legal, as long as it is defended as advised and all the advice is followed, this will be discontinued before any hearing.

PCNscam2024

LDast said:

Is the vehicle leased to you, personally, in your name? Or, is it leased to the company you work for and it is then "hired" to you or others?

Whose name is on the claim form as the defendant? Is it you? If so, and you are obviously not the RK, has the lease company named you are the "Hirer" (lessee)?

Do you have knowledge of the Notice to Keeper (NtK) that was issued to the RK (lease company)?

Once your relationship to the car is fully understood (are you the person who leased/hired the car from the RK?) you can move on to the defence.

There are several points to note... As the Hirer (lessee) of the vehicle, you cannot be liable for the charge because the location of the alleged contravention is land under statutory control (airport bylaws) and as such, is not 'relevant land' for the purposes of PoFA.Only the driver (if known) can be liable. There is no legal obligation on the Hirer to identify the driver. There is no reason to lie. The Hirer simply declines to identify the driver to an unregulated private company.

Another point, is that as this is a claim filed by the bottom-dwelling, bulk litigator, DCB Legal, as long as it is defended as advised and all the advice is followed, this will be discontinued before any hearing.

Thank you for the respond and advice. I will answer below:
I think i did not use the wording correctly. The car is owned by a company and then hired to me and others. Access to the car have multiple people. 
It is my name on the claim form. The company named me as hirer. 
I have no knowlage of the NtK that was issued to RK.

The defence is then:
There is no legal obligation on the Hirer to identify the driver.

Should i delete the other 30 points or leave them?

Thank you!

Coupon-mad

You want to dump everything else that's in the Template Defence? 

LDast

No, the car is "Hired" to you. Others may be allowed to drive it in which case they become the day to day keeper. You are the named Hirer. The claim is against is against you.

If you were not the driver on the day, say so. If you are not sure, say so and explain why. If you were, nobody needs to know and you are not obliged to tell anyone who was driving. You simply say that as the Keeper, the burden of proof is on the claimant to show that you were the driver. How do you think they can do that?

The claimant is being mendacious when it states in point 4 of the PoC that it is pursuing you as the Keeper under PoFA. PoFA does not apply on land under statutory control. Even if it was relevant land, they still couldn't pursue you as the Keeper because they haven't complied with all the requirements of PoFA anyway.

You are only responding to the PoC. Imagine you knew nothing about this until the claim form was received. Could you defend against the allegation in the claim based on the details provided?

Was the PCN "issued" on 11/10/22? The PCN can only be"issued" several days after the alleged breach. What is the contractual term that the driver is alleged to have breached? Have they referenced the actual contractual term as required under CPR 16.4?

What is the exact wording of the clause (or clauses) of the terms and conditions of the contract which is relied on?

What time did the breach occurred and how long it is alleged that the vehicle was parked before the parking charge was allegedly incurred?

How is the statutory interest calculated and from what date?

What proportion of the claim is the parking charge and what proportion is damages?

Is the Keeper actually liable?

All these points are serious breaches of CPR 16.4 and the claim should either be struck out or further PoC should be provided in order to allow you to properly defend the claim.

PCNscam2024

Coupon-mad said:

You want to dump everything else that's in the Template Defence? 

Yes, this was my consideration, if i should just keep the point that says 'There is no legal obligation on the Hirer to identify the driver.' or all 30 points fromt the template.

KeithP

PCNscam2024 said:

Coupon-mad said:

You want to dump everything else that's in the Template Defence? 

Yes, this was my consideration, if i should just keep the point that says 'There is no legal obligation on the Hirer to identify the driver.' or all 30 points fromt the template.

Did you read this line in the template defence post?...

We recommend you continue with this wording  (yes, all of it. Paragraphs suitably re-numbered to allow for the above).

PCNscam2024

LDast said:

No, the car is "Hired" to you. Others may be allowed to drive it in which case they become the day to day keeper. You are the named Hirer. The claim is against is against you.

If you were not the driver on the day, say so. If you are not sure, say so and explain why. If you were, nobody needs to know and you are not obliged to tell anyone who was driving. You simply say that as the Keeper, the burden of proof is on the claimant to show that you were the driver. How do you think they can do that?

The claimant is being mendacious when it states in point 4 of the PoC that it is pursuing you as the Keeper under PoFA. PoFA does not apply on land under statutory control. Even if it was relevant land, they still couldn't pursue you as the Keeper because they haven't complied with all the requirements of PoFA anyway.

You are only responding to the PoC. Imagine you knew nothing about this until the claim form was received. Could you defend against the allegation in the claim based on the details provided?

Was the PCN "issued" on 11/10/22? The PCN can only be"issued" several days after the alleged breach. What is the contractual term that the driver is alleged to have breached? Have they referenced the actual contractual term as required under CPR 16.4?

What is the exact wording of the clause (or clauses) of the terms and conditions of the contract which is relied on?

What time did the breach occurred and how long it is alleged that the vehicle was parked before the parking charge was allegedly incurred?

How is the statutory interest calculated and from what date?

What proportion of the claim is the parking charge and what proportion is damages?

Is the Keeper actually liable?

All these points are serious breaches of CPR 16.4 and the claim should either be struck out or further PoC should be provided in order to allow you to properly defend the claim.

Thank yuo for the reply.

I just went through the hire agreement and it does not actually specify the Vehicle reg. in full only the first 3 letters. Therefore i do not need to admit hiring this vehicle as they will have no proof. They will only have my details given by the company.

I will keep all 30 paragraphs and turn up at the hearing.

PCNscam2024

KeithP said:

PCNscam2024 said:

Coupon-mad said:

You want to dump everything else that's in the Template Defence? 

Yes, this was my consideration, if i should just keep the point that says 'There is no legal obligation on the Hirer to identify the driver.' or all 30 points fromt the template.

Did you read this line in the template defence post?...

We recommend you continue with this wording  (yes, all of it. Paragraphs suitably re-numbered to allow for the above).

ok, understood. I will keep all 30 paragraphs.
Thank you!

PCNscam2024

So in my fanal draft:

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. 

3. The Defendant is unable, on the basis of the POC, to confirm with certainty who was the driver or registered keeper. The Defendant does not have contact for vehicle hire with registration number quoted on the PoC.

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:LINK REMOVED

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:  LINK REMOVED

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):

LINK REMOVED

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:

Coupon-mad

Turning up at a hearing is not what happens next. The first 12 steps are in the Template Defence thread and this is not your only statement you will need to do.