DCB Legal - Claim for parking without paying (TOTAL CAR PARKS + DCB LEGAL COURT CLAIM SUCCESS!!)

mistake140

Hey there everyone,

I've landed myself a ticket for staying in a car park where the first two hours are free, and any time spent over you have to pay. What ended up happening was I stayed longer than I anticipated, three hours and when I returned to my car to pay, the instructions were to pay via some app. 

I call the number, and their switchboard isnt working. When texting the number too, which was the other option to receive a call back to pay, I texted multiple times and still did not receive a call back. Long story short, I had ended up overstaying and their payment methods all weren't working, and now I've gotten a claim form in the mail which I've already submitted my AoS for.

Claim Date: 02/10/2024
AoS submitted: 14/10/2024
AoS received: 15/10/2024

Particulars of Claim 

1. The Defendant (D) is indebted to the Claimant (C) for a Parking Charges) issued to vehicle ******* at The Maltings, Colchester. 

2. The PCN(s) were issued on **/03/2024 

3. The defendant is pursued as the driver of the vehicle for breach of the terms on the signs (the contract). Reason:Parked Without A Valid Parking Session 

4. In the alternative the defendant is pursued as the keeper pursuant to POFA 2012, Schedule 4. 

AND THE CLAIMANT CLAIMS 

1. £160 being the total of the PCN(s) and damages. 

I'm currently in process of adding this all to my witness statement, so will paste Paragraph 3 onwards that I am writing up myself - no need to make you read through the templates again!

3. The Defendants vehicle was parked at The Maltings, Colchester on **/03/2024, as noted by the claimant. The Defendant parked to visit a resident of The Maltings. The PCN alleges “Parked Without A Valid Parking Session”  

4. The Defendant stayed longer than intially planned, and in excess of the two hour free parking allowance, thus on returning to the vehicle, followed instructions on the signboards directing payment through calling a number, or texting your registration to a number and receiving a call back with payment instructions.

5. The Defendant first called the number, which would read out a pre-recorded message and while it attempted to connect you to an agent, would immediately hang up. Multiple calls were made, all with the same end result of the call being dropped.

6. The Defendant then texted the number displayed on the signboard with the vehicle registration three times in an attempt to get a call back to pay for parking, all of which did not receive a response or a call back. 

7. With no other available option to pay for the overstay, the Defendant left the car park without being able to make contact with Total Car Parks Ltd.

Thanks for all the helpful guides and info you all have put up, absolute legends. Let me know if anything I've put in these above paragraphs going into my WS is worth keeping, and what I should cut out to avoid shooting myself in the foot! 

Coupon-mad

Welcome. Good research! That looks fine.

I would just add here:

7. With no other available option to pay for the overstay, the Defendant left the car park without being able to make contact with Total Car Parks Ltd.  The Defendant had made all possible endeavours to comply but due to the failure of the payment systems the alleged contract was void for impossibility. There was no breach of a 'relevant obligation' and no breach of contract because the situation was caused by the Claimant, not as a result of any mischief or conduct of the Defendant.

....

Also did you appeal and/or offer to pay the missing fee?  If yes, say so in your defence.

You will also need to slightly amend the next paragraph of the Template Defence because it is not common ground that there was NO loss.  It is common ground that the only loss was the minimal £1 (or whatever) fee that they made it impossible to pay.

mistake140

Hi Coupon-mad! 

I actually didn't see anything until this claim letter came in - all my letters were coming through to the correct address, but I was working and living in Jersey for the last many months until mid September... The car had only been used on one weekend I had flown back, and I was out of the UK again the same day the PCN was issued

Thank you so much for your help - I reckon with all this included, just send off the defence and let them make their next move?

mistake140

Edited next paragraph, I actually have no idea what the parking fee was is but you are right, it was something insignificant:

8. The Claimant will concede that the financial loss of the minimal parking fee 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. 

Coupon-mad

Add the word 'only'

KeithP

mistake140 said:

Claim Date: 02/10/2024
AoS received: 15/10/2024

With a Claim Issue Date of 2nd October, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 4th November 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'.

mistake140

Coupon-mad said:

Add the word 'only'

Are we going for:

"The Claimant will concede that the financial loss of only the minimal parking fee has arisen"

or would this be better?

"The Claimant will concede that the only financial loss that has arisen is the loss of the minimal parking fee"

Coupon-mad

Second one.

  

mistake140

Defence has been now submitted, let's wait 10 business years for the next step! Thank you for your current support all

mistake140

Update: Hearing has been allocated at my local court, I've a court date soon, and I have received a witness statement from DCB Legal with the witness being written by an Accounts Manager of Total Car Parks Ltd - does this mean I can't state under preliminary matter: claim should be struck out that the witness statement has been made by an individual who does not have direct knowledge of the facts? All of her lines are written as "The Company" have done such and such, rather than from her perspective, if that makes sense?

mistake140

Current Witness Statement:

1.  I am xxxxx xxx xxxxx, the defendant against whom this claim is made. The facts below are true to the best of my belief and my account has been prepared based upon my own knowledge.

2. In my statement, I shall refer to Exhibits 1-2 within the evidence supplied with this statement, referring to page and reference numbers where appropriate. My defence is repeated, and I will say as follows:

3.     Preliminary matter: The claim should be struck out

As a preliminary matter, I wish to bring to the Court's attention that the Claimant's Witness Statement, signed by (Removed by Forum Team) of Total Car Parks Ltd, does not comply with CPR 32.4 and Practice Direction 32, which require that a witness statement be made by an individual with direct knowledge of the facts. Furthermore, Practice Direction 32, paragraph 18.2, stipulates that the statement must be in the witness's own words and include details of how the witness has direct knowledge of the matters stated. As (Removed by Forum Team) does not have direct involvement in the events in question, the Witness Statement fails to meet these requirements. In light of this non-compliance, I respectfully request that the Court strike out the claim pursuant to CPR 3.4(2)(c) due to the Claimant's failure to comply with the relevant rules and practice directions.

Facts and Sequence of Events:

3. It is admitted that on the date 30th March 2024, the Defendant was the registered keeper of the vehicle XXXXXXX. The Defendant had visited an associate at the location The Maltings, Colchester, and had planned to stay for under two hours and thus, did not need to prepay.

4. After leaving approximately 20 minutes longer than anticipated, the Defendant went to the vehicle, and followed the instructions on the signage to pay by first attempting to download the Parkonomy app. When searching for the Parkonomy app in the Google Store, the app was unavailable.

5. Therefore, the Defendant then texted the number 65065 with the phrase “PARK XXXXXXX” multiple times over a span of 5 minutes, waiting for an automated call. Once there was no response, the Defendant followed further instructions on the sign to call the number for existing customers.

6. The Defendant then called the number “03333130000” which then led to a switchboard asking to select an option, one being for payment for parking. When selecting the relevant option, the phone would then instead of redirecting the call, hang up with no warning.

7. With no option available to pay after spending approximately 20 minutes trying to get through each option to make a successful payment, the Defendant had to leave without making a payment under the assumption that the company, aware of the issue, would not pursue.

9. Without the option to pay and having made all possible endeavours to do so, any alleged contract was void for impossibility. There was no breach of a 'relevant obligation' and no breach of contract because the situation was caused by the Claimant, not as a result of any mischief or conduct of the Defendant.

8. The Defendant, who was living and working abroad at the time and was only back for a two-day holiday, then left the UK and was thus unaware of any following letters. Therefore, with no knowledge of the PCN or NTK, I did not have the opportunity to appeal the incident.

10. There has been an attempt at mediation and offer to settle the claim out of court, but the Claimant has refused and demands a sum 100% more than the debt claimed, which in itself has been highly inflated.

 

Exaggerated Claim and 'market failure' currently examined by the Government:

11. The alleged 'core debt' from any parking charge cannot have exceeded £100 (the industry cap set out in the applicable Code of Practice at the time). I have seen no evidence that the added damages/fees are genuine.

12. I say that fees were not paid out or incurred by this Claimant, who is to put strict proof of:

13. (i) the alleged breach, and

14. (ii) a breakdown of how they arrived at the enhanced amount claimed, including how interest has been calculated, which appears to have been applied improperly on the entire inflated sum, as if that figure was immediately overdue on the day of an alleged parking event.

15.  This Claimant routinely pursues a disproportionate additional fixed sum (inexplicably added per PCN) despite knowing that the will of Parliament is to ban or substantially reduce the disproportionate 'Debt Fees'. This case is a classic example where the unjust enrichment of exaggerated fees encourages the 'numbers game' of inappropriate and out of control bulk litigation of weak/archive parking cases. No pre-action checks and balances are likely to have been made to ensure facts, merit, position of signs/the vehicle, or a proper cause of action.

16.  The Department for Levelling Up, Housing and Communities (the DLUHC) first published its statutory Parking Code of Practice on 7th February 2022, here: https://www.gov.uk/government/publications/private-parking-code-of-practice

17.   "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."

18.  Despite legal challenges delaying the Code's implementation (marking it as temporarily 'withdrawn' as shown in the link above) a draft Impact Assessment (IA) to finalise the DLUHC Code was recently published on 30th July 2023, which has exposed some industry-gleaned facts about supposed 'Debt Fees'. This is revealed in the Government's analysis, found here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1171438/Draft_IA_-_Private_Parking_Code_of_Practice_.pdf

19. Paragraphs 4.31 and 5.19 reveal that the parking industry has informed the DLUHC that the true minor cost of what the parking industry likes to call debt recovery or 'enforcement' (pre-action) stage totals a mere £8.42 per recovery case.

20.  With that sum in mind, the extant claim has been enhanced by an excessive amount, disingenuously added as an extra 'fee'. This is believed to be routinely retained by the litigating legal team and has been claimed in addition to the intended 'legal representatives fees' cap set within the small claims track rules. This conduct has been examined and found - including in a notably detailed judgment by Her Honour Judge Jackson, now a specialist Civil High Court Judge on the Leeds/Bradford circuit - to constitute 'double recovery' and I take that position.

21. The new draft IA now demonstrates that the unnecessarily intimidating stage of pre-action letter-chains costs 'eight times less' (says the DLUHC analysis) than the price-fixed £70 per PCN routinely added. This has caused consumer harm in the form of hundreds of thousands of inflated CCJs each year that District Judges have been powerless to prevent. This abusively enhanced 'industry standard' Debt Fee was enabled only by virtue of the self- serving Codes of Practice of the rival parking Trade Bodies, influenced by a Board of parking operators and debt firms who stood to gain from it.

22. In support of my contention that the sum sought is unconscionably exaggerated and thus unrecoverable, attention is drawn to paras 98, 100, 193, 198 of ParkingEye Ltd v Beavis [2015] UKSC67 ('the Beavis case'). 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 later ratified by the CoA) held in paras 419-428 that unspecified 'admin costs' inflating a parking charge to £135 was not a true reflection of the cost of a template letter and 'would appear to be penal.

23. This Claimant has not incurred any additional costs because the full parking charge (after expiry of discount) is already high and more than covers what the Supreme Court called an 'automated letter-chain' business model that generates a healthy profit. In Beavis, there were 4 or 5 letters in total, including pre-action phase reminders. The £85 parking charge was held to cover the 'costs of the operation' and the DLUHC's IA suggests it should still be the case that the parking charge itself more than covers the minor costs of pre-action stage, even if and when the Government reduces the level of parking charges.

24. Whilst the new Code is not retrospective, the majority of the clauses went unchallenged by the parking industry, and it stands to become a creature of statute due to the failure of the self-serving BPA & IPC Codes. The DLUHC's Secretary of State mentions they are addressing 'market failure' more than once in the draft IA, a phrase which should be a clear steer for Courts to scrutinise every aspect of claims like this one.

25. 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. It is also disproportionate and in breach of the Consumer Rights Act 2015 (CRA).

 

CRA Breaches:

26. Claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3), the Government guidance on the CRA which introduced new requirements for 'prominence' of both contract terms and 'consumer notices'. In a parking context, this includes a test of fairness and clarity of signage and all notices, letters and other communications intended to be read by the consumer.

 

27.  Section 71 creates a duty upon courts to consider the test of fairness, including (but not limited to) whether all terms/notices were unambiguously and conspicuously brought to the attention of a consumer. Signage must be prominent, plentiful, well-placed (and lit in hours of darkness/dusk) and all terms must be unambiguous and contractual obligations clear.

 

28. The CRA has been breached due to unfair/unclear terms and notices, pursuant to s62 and paying due regard to examples 6, 10, 14 & 18 of Schedule 2 and the requirements for fair/open dealing and good faith (NB: this does not necessarily mean there has to be a finding of bad faith).

 

The Beavis case is against this claim

29. The Supreme Court clarified that 'the penalty rule is plainly engaged' in parking cases, which must be determined on their own facts. That 'unique' case met a commercial justification test, given the location and clear signs with the charges in the largest/boldest text. Rather than causing other parking charges to be automatically justified, that case, particularly the brief, conspicuous yellow & black warning signs - (See Exhibit 1) - set a high bar that this Claimant has failed to reach.

 

30. Paraphrasing from the Supreme Court, 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 the alleged breach. The intention cannot be to punish a driver, nor to present them with hidden terms, unexpected/cumbersome obligations nor 'concealed pitfalls or traps'. (See Exhibit 2) for paragraphs from ParkingEye v Beavis).

 

Conclusion

31. 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 Government IA analysis shows (from data from this industry) that the usual letter-chain costs eight times less than the sum claimed for it. The claim itself relies on an unfair charge which is entirely without merit, and should be dismissed.