UKPC/DCB, CNBC Claim - Defence assistance please

midnightcipher

Hi, I've included my current status, PoC and first draft of defence. Anyone's input is much appreciated. Thank you.

Current Status:
- Claim Form CNBC issued on 8 October 2024.
- DCB Legal representing UKPC
- Submitted my AoS on MCOL today 15th October
- Awaiting PCN details from UKPC, emailed on the 11th October, as I'm unsure of how long i was over the parking limit. I appealed this and was told i would receive a decision in 35 days however, took over 50 days for this decision. I've included this in my defence but unsure if it is relevant.
- Included signage point as it is not lit and parked at dusk, so was not visible.
-  I have until 10th November to file my defence
- Used coupon-mad template & used others in the forums for guidance  

PoC:

1. The Defendant (D) is indebted to the Claimant (C) for a Parking Charge(s) issued to vehicle XXXXXXX at XXXXXXXXX Car Park.
2. The PCN(s) were issued on XX/XX/2024
3. The defendant is pursued as the driver of the vehicle for breach of the terms on the signs (the contract). Reason:Parked For Longer Than Permitted
4. In the alternative the defendant is pursued as the keeper pursuant to POFA 2012, Schedule 4.

AND THE CLAIMANT CLAIMS

1. £170 being the total of the PCN(s) and damages.
2. Interest at a rate of 8% per annum pursuant to s.69 of the County Courts Act 1984 from the date hereof at a daily rate of £.02 until judgment or sooner payment.
3. Costs and court fees

IN THE COUNTY COURT

                                           Claim No.:  XXXXX

Between

UK Parking Control Limited

(Claimant)

- and -

XXXXXX

(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 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 is the registered keeper of the vehicle in question and denies liability for the parking charge as alleged by the Claimant.

 

4. On the date in question, the Defendant was accompanying their disabled mother, a Blue Badge holder, who suffers from mobility issues due to a back condition. The vehicle was parked at XXXXXXX Car Park, and the additional time taken was necessary due to frequent breaks needed for the mother's health condition.

 

5. The Defendant appealed the parking charge, providing evidence of the Blue Badge and detailing the circumstances. The Claimant promised a response within 35 days, but the Defendant received no response during that period.

 

6.  The Claimant's delay in responding to the appeal has caused procedural unfairness and reflects a failure to follow proper appeals processes. Consequently, the parking charge should be considered void.

 

7.  Furthermore, the Defendant contends that the Claimant has failed to comply with relevant codes of practice governing parking operators. These codes include requirements to consider mitigating circumstances, such as the presence of a disabled passenger with a Blue Badge, which the Claimant did not appropriately address.

 

8. The signage at the parking location was also unclear and did not adequately explain the parking terms, especially regarding allowances for disabled passengers who may require more time. This lack of clarity further supports the Defendant's position that the parking charge is unenforceable.

 

9.  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.

10. 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.

Included 8 points from: Exaggerated Claim and 'market failure' currently being addressed by UK Government, not sure if it would be more beneficial to include all of them.

KeithP

midnightcipher said:

- Claim Form CNBC issued on 8 October 2024.
- Submitted my AoS on MCOL today 15th October
-  I have until 10th November to file my defence

Hello and welcome.
You are almost right with your filing deadline but it won't be on a Sunday.

With a Claim Issue Date of 8th October, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 11th November 2024 to file a Defence.

That's nearly four weeks away. Plenty of time to produce a Defence and it is good to see that you are not leaving 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

Remove this as you are admitting to driving:

"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')."

Remove paras 3, 6 and 7 (not needed or particularly relevant) and instead add these paragraphs in one section near the top:

5. The passenger was at all material times, legally entitled to 'reasonable adjustments' under the Equality Act 2010 (the EA'). This places a statutory duty on service providers and such adjustments are not dependant upon knowing about the needs of an individual and they include more than just physical adaptations. There is an anticipatory element to the duty and there is no lawful justification in a service provider saying "we didn't know that this disabled person needed more time".

6. Finding an accessible bay and assisting the passenger to alight all takes time, as does the extra time it takes a mobility-impaired person to get around shops - especially those with narrow aisles and/or merchandising in the aisles - and it is little wonder that it takes a long time for the Defendant's mother to complete her shopping. 

7. Under the EA, businesses have a legal duty to make reasonable adjustments to ensure that disabled individuals are not disadvantaged. In a car park, this includes a requirement to make provision for extending free parking time.  A fixed time for all patrons (treating everyone the same) is not acceptable: under the EA there must be a mechanism for relaxing any fixed time policies. On the date in question, the Claimant had failed to provide for any extension of the fixed time period, effectively penalising the Defendant and their mother, due to her disability.

8. This was 'indirect discrimination' (at first) and progressed to 'direct discrimination' as soon as the Claimant knew about the needs of the passenger as part of the appeal they rejected out of hand with a template letter.  The Claimant has committed a criminal offence and ignorance of the law is no excuse.

9. The Equality and Human Rights Commission’s (EHRC’s) ‘EA Code of Practice for Services, Public Functions and Associations’ is not just guidance but a creature of statute. It helps service providers understand their responsibilities under the EA and they can be fined for failure to comply with that Code, found here: https://www.equalityhumanrights.com/sites/default/files/servicescode_0.pdf 

10. Chapter 5 explains Indirect Discrimination, and gives examples of how it can occur and be avoided. 5.4 states ‘Indirect discrimination may occur when a service provider applies an apparently neutral provision, criterion or practice which puts persons sharing a protected characteristic at a particular disadvantage.’ This is particularly relevant when a time limit is applied across the board, but disabled people struggle to access the service within the time limit because of their disability. 

11. Page 82 provides a 'tours' example which illustrates the discrimination caused by fixed time limits. There must be a mechanism for claiming more time. Typically, a professional parking operator will add a sentence to the signage (adjacent to the accessible bays) along the lines: 'Need more time? Ask a colleague at the customer service/reception desk'. There was no such offer and in fact, there were no signs whatsoever that could be read from a driver's seat at the 'disabled bays'.  This is in clear breach of the British Parking Association Code of Practice. 

midnightcipher

Coupon-mad said:

Remove this as you are admitting to driving:

"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')."

Remove paras 3, 6 and 7 (not needed or particularly relevant) and instead add these paragraphs in one section near the top:

5. The passenger was at all material times, legally entitled to 'reasonable adjustments' under the Equality Act 2010 (the EA'). This places a statutory duty on service providers and such adjustments are not dependant upon knowing about the needs of an individual and they include more than just physical adaptations. There is an anticipatory element to the duty and there is no lawful justification in a service provider saying "we didn't know that this disabled person needed more time".

6. Finding an accessible bay and assisting the passenger to alight all takes time, as does the extra time it takes a mobility-impaired person to get around shops - especially those with narrow aisles and/or merchandising in the aisles - and it is little wonder that it takes a long time for the Defendant's mother to complete her shopping. 

7. Under the EA, businesses have a legal duty to make reasonable adjustments to ensure that disabled individuals are not disadvantaged. In a car park, this includes a requirement to make provision for extending free parking time.  A fixed time for all patrons (treating everyone the same) is not acceptable: under the EA there must be a mechanism for relaxing any fixed time policies. On the date in question, the Claimant had failed to provide for any extension of the fixed time period, effectively penalising the Defendant and their mother, due to her disability.

8. This was 'indirect discrimination' (at first) and progressed to 'direct discrimination' as soon as the Claimant knew about the needs of the passenger as part of the appeal they rejected out of hand with a template letter.  The Claimant has committed a criminal offence and ignorance of the law is no excuse.

9. The Equality and Human Rights Commission’s (EHRC’s) ‘EA Code of Practice for Services, Public Functions and Associations’ is not just guidance but a creature of statute. It helps service providers understand their responsibilities under the EA and they can be fined for failure to comply with that Code, found here:

10. Chapter 5 explains Indirect Discrimination, and gives examples of how it can occur and be avoided. 5.4 states ‘Indirect discrimination may occur when a service provider applies an apparently neutral provision, criterion or practice which puts persons sharing a protected characteristic at a particular disadvantage.’ This is particularly relevant when a time limit is applied across the board, but disabled people struggle to access the service within the time limit because of their disability. 

11. Page 82 provides a 'tours' example which illustrates the discrimination caused by fixed time limits. There must be a mechanism for claiming more time. Typically, a professional parking operator will add a sentence to the signage (adjacent to the accessible bays) along the lines: 'Need more time? Ask a colleague at the customer service/reception desk'. There was no such offer and in fact, there were no signs whatsoever that could be read from a driver's seat at the 'disabled bays'.  This is in clear breach of the British Parking Association Code of Practice. 

Thank you, I appreciate the help. I've removed the last sentence of first para & paras 3, 6 and 7 from my defence. I've added these new paragraphs under a section headed: Compliance with the Equality Act 2010. If i decide to add more points from Exaggerated Claim and 'market failure' currently being addressed by UK Government. Will I be required potentially to talk on all these if a hearing was proposed? 

midnightcipher

I've also contacted UKPC for the details on the parking charge regarding how long I have overstayed in order to reference it in my defence. If I was not able to receive the email back in time before emailing my defence would this be much of a deal breaker?

Coupon-mad

Nope.  We don't recommend ever contacting the Claimant at this stage.  What that does is give them a chance to make their case more clearly. You shouldn't have done that but no harm done; UKPC won't reply or will fob you off anyway.

Use the whole template defence.