DCB Legal - Claim form

cloudnine_8

Hello,

This is my first thread. I received a Claim form dated 16th Sept and have missed the Acknowledgment of Service deadline. I have noticed reading other threads that this is not a good start! I was moving home.

It is for a parking charge issued 24th Sept 2022...failed to obtain a parking permit at my son's football training session after they put in a new system for parking which I didn't realise at the time .  The total amount now is £282.68. 

What should I do now?

Thanks

Gr1pr

Login to MCOL and do the AOS online ASAP, if you can still do so. ( The deadline was 19 days )

cloudnine_8

Thank you. I have found it. Is there a correct way to complete or it is straight forward?

cloudnine_8

I have completed the AOS online. 

Gr1pr

Now start drafting your defence based on the defence template by coupon mad 

KeithP

With a Claim Issue Date of 16th September, and having filed an Acknowledgment of Service in time, you have until 4pm on Monday 21st October 2024 to file a Defence.

That's nearly two weeks 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'.

cloudnine_8

Thanks very much for your help. Have started preparing 

cloudnine_8

Morning, here is a draft defence, using the suggested template. I would be grateful for any feedback before I send. Thanks.

IN THE COUNTY COURT

 

Claim No.:  xxxxxx

 

Between

 

CIVIL ENFORCEMENT LIMITED

 

(Claimant)

 

- and - 

 

                       

 

 (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 and driver liability', which is unclear from the boilerplate text in the Particulars of Claim ('the POC').

 

The facts known to the Defendant:

2. It is admitted that the Defendant was the registered keeper and driver of the vehicle at the material time, but liability is denied, and any breach of terms is also denied. 

 

3. The defendant dropped their son off for football training at 10.27 to Car Park at xxxxxxxx on 24/09/2022. The defendant then left immediately to go shopping and came back later.  The defendant was on site for less than 10 mins. The operator has provided photographic evidence of the defendant’s vehicle, entering the car park at 10:27 and exiting at 11:37, totalling a stay of 1 hour and 10 minutes, which according to the claimant was in excess of the standard amount of time allowed for parking without a permit or to drop-off. 

 

4. The defendant had been taking their son to xxxxx for over a year and over the 2022 August school holidays xxxxxx introduced a touch screen machine in the main club house 400 ft away from the pitch to allow visitors to park long stay within xxx car park. Although signage had been introduced the defendant was completely unaware of the new parking arrangements on site and provided an email from the football club that they had not been officially advised.

5. Although the defendant was unaware that they had to register their car registration for a permit in the club house, the defendant was never on site for more than 10 mins at a time. The defendant challenged and appealed the initial PCN with POPLA but as they had paid for their shopping with cash and did not have the receipt 3 weeks down the line when the penalty arrived, had no proof that they had left the site between 10.27 and 11.37. The claimant chose to decide that the PCN had still been correctly issued as the burden of proof was on the defendant to prove the CCTV was insufficient, despite the CCTV not being able to show the vehicle leave after 10.27 and return again before 11.37. 

6. The defendant maintains they did not park for an extended period as they had left the site and it cannot be the fault of the defendant that the CCTV only registers a registration plate twice, once on entry and once on departure and not in between.  The vehicle left the facility on both occasions well within the allowed extended parking time. 

7. Notwithstanding paragraph 3, 4, 5 and 6, in relation to the charges, the defendant would like to point out that the proposed parking charge is inflated, as no financial loss has arisen for the claimant. 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.

 

8. 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.

9. 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).

10. The Department for Levelling Up, Housing and Communities ('the DLUHC') published a statutory Parking Code of Practice in February 2022: REMOVED LINK

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."

 

11. 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:  WOULD NOT ALLOW LINK...12. 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).

 

13. 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.

 

14. 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.

 

15. 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'.

 

16. 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).

 

17. 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'.

 

18. 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.

 

19. 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'.

 

20. 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

 

21. 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):

 

 WOULD'NT ALLOW TO POST THE LINK

 

22. 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.

 

23.  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

 

24.  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. 

 

25. 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''.

 

26.  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

 

27. 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.

 

28. 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

 

29. 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.

 

30. 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.

 

31.  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:

 

 

Le_Kirk

As you have posted the whole template, we cannot see what you have added or amended; regulars don't have time to compare your post to the template. 

Coupon-mad

Remove this from para 1, as para 2 covers it:

"Liability is denied, whether or not the Claimant is claiming 'keeper and driver liability', which is unclear from the boilerplate text in the Particulars of Claim ('the POC')."

Please show us the POC.

Your facts para 3 should mainly say something like:

3.  The Defendant denies that the car was 'parked' at all and as a matter of fact it did not remain at the site for 1 hour 10 minutes (as was stated on the Notice to Keeper, churned out automatically based upon flawed ANPR images). In fact the vehicle was there twice, to set down a child passenger then later, to return to collect him. The MHCLG's temporarily withdrawn statutory Code of Practice ('CoP') highlights both these issues as rogue practice:

(a) counting two separate visits as if it was a single parking event is described by the MHCLG as a 'double dip' (the ANPR system defaults to 'first in last out' images) and the Claimant has failed to manually check for the 'orphan images' in the middle, when the car left then later returned. There was no parking event of one hour ten minutes. The very fact this Claimant obtained DVLA data is a UK GDPR 2018 breach;

(b) counting brief visits made merely to set down and/or pick up passengers is not parking. This is 'exempt activity' on-street and the MHCLG has mirrored this rule in the definitions in the statutory CoP, which says at '2.24 parking period': "the length of time that a vehicle has been parked, i.e. left stationary otherwise than in the course of driving, after any relevant consideration period has expired (excluding instances where the driver has stopped to enable passengers to leave or enter the vehicle). This is not the period between a vehicle being recorded as entering and departing controlled land."

cloudnine_8

Thank you very much Coupon-Mad. Really helpful advice. Here is the POC...