UKPCL and DCBLegal - Defence Guidance

Tyro123_2

I received following POC mid December and submitted AOS in time. I am now preparing my defence.

I will be grateful if someone could please review my defence, and provide feedback in case changes are needed / text needs to be added / removed. Thank you in advance.

From defence template I have: 

The facts known to the Defendant:

2. The facts in this defence come from the Defendant's own ... omitted ...

3. For a contract to be valid, terms must be clearly communicated to the other party. In this case, the signage at the site was not legible or clearly visible due to inadequate lighting conditions outside daylight hours, when the alleged breach occurred. The Claimant failed to provide sufficient lighting to ensure the signage was visible, as required to form a valid and enforceable contract under English contract law.

4. The British Parking Association (BPA) Code of Practice states that signs must be “lit if parking enforcement occurs outside daylight hours.” The Claimant has failed to adhere to this standard.

5. The barrier to the site entrance was raised, creating an impression that no restrictions applied. This undermines the Claimant's assertion that terms were adequately communicated and accepted.

6. The Claimant is required to take reasonable steps to ensure that the terms of the purported contract are clearly communicated to users of the site. The raised barrier further diminished the likelihood that a reasonable motorist would interpret the site as restricted.

7. Under the Consumer Rights Act 2015, Section 68, contractual terms must be transparent and brought to the attention of the consumer in a clear and prominent manner. The lack of lighting and raised barrier contravene this requirement.

9. The Claimant has a documented history of misconduct, including:

(i) Suspension by the DVLA for misuse of personal data. (https://www.independent.co.uk/news/uk/home-news/uk-parking-control-dvla-suspension-misuse-of-data-a8325941.html)

(ii) Alteration of photographic evidence in prior cases, for which they were sanctioned by the BPA. (UK Parking Control disciplined over altered photos: https://www.bbc.co.uk/news/uk-england-lincolnshire-34402322 and UK Parking Control admits staff altered photos to increase fees: https://www.bbc.co.uk/news/uk-england-lincolnshire-34220908)

10. The Claimant has acted in bad faith, raising serious questions about the integrity of the evidence they rely upon in this case. Claimant has altered the recorded times in this case, as they have done in the past, inflating the duration of stay from 9 minutes to 12 minutes and 3 seconds.

11. Under the BPA Code of Practice, operators must allow a grace period to enable drivers to read and understand the terms displayed on signage. The Traffic Management Act 2004 specifies a 10-minute grace period for public car parks, this principle of reasonableness should also apply in private parking scenarios. The duration of stay does not demonstrate a breach, as it falls within the allowable grace period.

12. If a contract was deemed to have been formed, the terms of that contract must comply with the fairness requirements of the Consumer Rights Act 2015, Section 62. The raised barrier, lack of lighting, and refusal to apply a reasonable grace period collectively render the purported contract unfair and unenforceable.

13. The Claimant acknowledges that the Opal Court car park is adjacent to a hospital car park, and both are accessed through the Wexham Park Hospital entrance. This proximity, combined with the raised barrier and lack of clear demarcation between the two sites, creates significant potential for confusion. For first-time visitors, including the Defendant, it would be challenging to differentiate between the hospital and Opal Court car parks, making it unclear which terms and conditions apply.

14. The Claimant will concede that no financial loss ... omitted ...:

KeithP

With a Claim Issue Date of 13th December, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Wednesday 15th January 2025 to file a Defence.

That's well over a week 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'.

Tyro123_2

Thanks @KeithP

My defence is ready to be emailed to ClaimResponses.CNBC@justice.gov.uk

I have created it from Newbies thread. Please would you be able to take a minute read from points 3-13 above to see if any changes are needed?

Rest of the text is same as in the template.

KeithP

Tyro123_2 said:

Thanks @KeithP
My defence is ready to be emailed to ClaimResponses.CNBC@justice.gov.uk

I have created it from Newbies thread. Please would you be able to take a minute read from points 3-13 above to see if any changes are needed?

Rest of the text is same as in the template.

I tend not to get involved in the detail of Defences. 
Weekends are usually quieter on this forum so I suggest you wait a few days and without a doubt people will comment on your Defence.
As I indicated earlier, you have plenty of time.

Coupon-mad

It's much, much longer than most additions to the template defence so I'd advise most of it isn't needed. For example para 12 is an almost verbatim repetition of a paragraph lower in the Template Defence, which more than covers the CRA 2015 already.

Tyro123_2

thank you @Coupon-mad for your feedback. I'll make changes to remove repetition 

Any other feedback from anyone else is most welcome! 

Gr1pr

As mentioned above,  far too long,  save the stories and background information for your WS bundle later this year 

I would say that you would be better to address the POC and the probably incorrectly date,  no parking contract on offer etc, deny the POC, like this recent example 

https://forums.moneysavingexpert.com/discussion/comment/81139187/#Comment_81139187

Car1980

Looks like poor POC to me. What does "registered users only" mean? 

Tyro123_2

thank you for sharing that @Gr1pr. 

@Car1980, it's apparently a private residential car park, where only registered users can enter.

Problem is, it is extremely dark, UKPCL have not put lights on parking restrictions signs and they haven't fixed the barrier at entrance. The barrier is constantly lifted and ticket dispensing machine is broken.

As a first time visitor, it is difficult to know that restrictions apply, and whether this private car park is part of Wexham Park hospital car park or not (both are adjacent to each other and same road is used as entrance to both car parks). At hospital car park, a free 20 minute stay is allowed, where as this residential one, you are simply not supposed to enter.

Coupon-mad

In most current defences v DCB Legal claims, paragraph 3 looks similar to the thread below by @shahib_02  ... just change the incident date:

https://forums.moneysavingexpert.com/discussion/6576011/cel-dcb-legal-pcn-cnbc-claim-defence-assistance-required-please

No need for more detail except in your case just add an extra paragraph 3.1:

3.1. There are no payment machines, illuminated signs nor gates at the entrance and the pictures on UKPC's website were so dark that they neither identified where the car was parked, nor any readable wording about a £100 parking charge risk. Even if the court finds that a driver could have read pitch black unexpected terms in the dark, the POC pleads that the purported contract was offered to 'registered users only'.  The Defendant had no idea about that term and no idea what 'relevant obligation' they are supposed to have missed or how a driver can become 'registered'. Nevertheless, nothing of value is offered to non-registered drivers by the phrase relied upon in the POC. No parking space is offered.  Therefore in the absence of consideration from the trader, no contractual 'meeting of minds' was possible and the only possible claim would be by the landowner, under the tort of trespass (not pleaded).  As found by DJ Iyer at Manchester Court, in PACE v Lengyel. *

* to help you later at WS and evidence stage, this link includes the PACE v Lengyel transcript.  Read it now to understand the legal argument that no contract was on offer to non-permit holders:
https://www.dropbox.com/scl/fi/l7sboclnrlwastfw9m4vf/Main-WS-Forum-PDF.pdf?rlkey=bhj7tu24u99unbh23wty0kf29&e=1&dl=0

Tyro123_2

Absolutely fantastic @Coupon-mad. Thank you for this. I am going to update defence wording and file later today. Appreciate every one's feedback and so grateful that this forum exists to rely on for support.