DCB Legal response to LoC rebuttal.

Coupon-mad

I think that's a good defence for these circumstances and you don't need to use the Template Defence.

However I would suggest you use normal numbering and plagiarise this fantastic version (for a partly similar case) by @Johnersh who is a solicitor and merge (and edit to suit) the relevant bits here with your section about double dips:

https://forums.moneysavingexpert.com/discussion/comment/81442999/#Comment_81442999

Boat_to_Bolivia

How do these people sleep at night?

It's disgusting.

They so clearly lack any empathy or morals...it makes you wonder how they exist in the real world?

They can't have any friends....who would want to be acquainted with someone who hounds a bereaved sibling for a speculative invoice issued to their late brother?

I'm sorry you are having to go through this OP, but you will get all the help you need here to fight this for your brother.

All the best and sorry for your loss.

richnixsea

@Boat_to_BoliviaThank you for your kind words.

@Coupon-mad

Thanks for the link, I have modified those words to suit my position. However I am struggling to incorporate the 

double dip info. 

In the included text I have highlighted in bold italics the areas that don't seem to allow the double dip.

I read those words as implying that an infringement occurred whereas the double dip means that no infringement actually did occur. 

Your opinion would be valued.

Further down the text, it calls for the inclusion of evidence WRT. the "28 day keeper window"

Should I copy text here or include a separate document (copy of e-mail?)

I [name] of [address] do say as follows:

 1.                  I am the defendant in this matter. I make this statement in connection with the Claimant’s claim against me for contractual damages arising from a parking charge notice (‘PCN’).

 2.                  The claimant’s particulars of claim allege that I was the driver of vehicle xx on 15/4/2023 when a parking infringement occurred, causing the driver to become liable for a PCN (“driver liability”). In the alternative, it is alleged that I may be liable for the PCN as keeper of the vehicle (“keeper liability”) under the provisions of Sch. IV of the Protection of Freedoms Act 2012.

 Defence to the claim

 3.                  My defence to the claim, put simply, is that the Claimant brings this claim against the wrong defendant. Not only is the driver prima facie the correct defendant, the Claimant has his name and address details on file and could, have redirected their claim appropriately without recourse to legal proceedings at all.

 4.                  In this statement, I address the facts in relation to both bases upon which the Claimant brings their claim. I am defending this claim on the basis that:

 (a)  I was not the driver of the vehicle at the material time, such that driver liability cannot be made out; and

 (b)  Having provided a name and address for the driver at the request of the Claimant prior to the commencement of these proceedings, there is no longer any legal basis under which keeper liability may be established pursuant to Sch. IV of the Protection of Freedoms Act 2012 (“the Act”).

 Driver Liability

 5.                  This claim concerns a PCN issued in respect of vehicle xx. I am the legal owner of that vehicle.

 6.                  On 21/4/2023 I received a PCN, which identified that the driver of the vehicle was responsible for a parking charge which occurred on 15/4/2023. The PCN had been sent to me as the registered keeper of the vehicle at the material time.

 7.                  I was correctly contacted by the Claimant in the first instance as the registered keeper. However, I have no knowledge of the facts and matters arising from the parking event on 15/4/2023 since I was not the driver and not present. By definition I did not read and accept any contractual parking terms as may be alleged as I was not present to do so. There was no contract between me and the Claimant.

 

Keeper Liability

 8.                  Following the instructions set out on the PCN, I sought to advise the Claimant of the driver’s details and his address. I contacted the Claimant on by telephone upon receipt of the PCN, but could not get through.

 9.                  On 16/1/2025 I left a message on the Claimant’s online portal explaining that my brother was now deceased, providing them the driver’s and executors details.

 10.             On 17/02/25 an employee, servant or agent of the Claimant wrote to me in response to the message of 16/01/2025. Indicating the intention to persue me for the claim, but offering a paltry discount if I wished to settle. I responded once again detailing that I was not the driver on that occasion and providing the name and address of the driver and his executors. I was informed that the Claimant would contact him directly to confirm a serviceable address. I believe that the Claimant did so and am unclear why the Claimant now seeks to bring a claim against me.

 11.             The basis upon which the Claimant can bring a claim against a registered keeper is strictly regulated by the Act, with the need for specific requirements to be met.

 12.             S. 4(4) provides that keeper liability cannot be established at all until a period of 28 days have expired since notice was given to the keeper. I acknowledge that this notice was properly given to me in writing.

 13.             S.5 sets out additional pre-conditions, which I have reproduced below, with my emphasis in bold.

 

5. Conditions that must be met for purposes of paragraph 4

(1) The first condition is that the creditor—

(a) has the right to enforce against the driver of the vehicle the requirement to pay the unpaid parking charges; but

(b) is unable to take steps to enforce that requirement against the driver because the creditor does not know both the name of the driver and a current address for service for the driver.

(2) Sub-paragraph (1)(b) ceases to apply if (at any time after the end of the period of 28 days beginning with the day on which the notice to keeper is given) the creditor begins proceedings to recover the unpaid parking charges from the keeper.

14.             In relation to s.5(1)(a) I have no direct knowledge of the parking events. It may be that the Claimant has the right to pursue the PCN against the driver. However, in relation to s.5(1)(b) the Claimant had actual knowledge of the driver’s name and address. As the driver was my brother, I was well placed to provide those details promptly and accurately. As stated above those details were confirmed in writing. The Claimant has had knowledge since at least 16/1/2025.

 15.             Under s.5(2) a registered keeper can still be liable for a PCN. However, that circumstance arises only if in the period between the Claimant giving notice to the keeper and the time upon which the Claimant commences court proceedings, there has been no notification of the driver’s details. This is not such a case. I have made strident efforts to assist the Claimant to correspond with the correct party.

 16.            Proceedings is not defined in the Act. However, CPR 7.2(1) states ‘Proceedings are started when the court issues a claim form at the request of the claimant.’ As such, adopting the interpretation from the CPR, it is sufficient under the Act for the Defendant to name the driver and provide an address at any point prior to the Claim Form being issued. I provided details in a timely fashion. The Claim Form was not issued in this case until 25/4/2025. It is my belief that my obligations were discharged on January 2025 when the Claimant had the correct name and address for the driver. Accordingly, since the pre-conditions pursuant to Sch IV at s5(1)(b) are not met, there is no basis upon which they are able to bring proceedings against me as keeper.

  

Unreasonable Conduct

 18.             For the reasons set out above, the Claimant’s claim is at best misconceived and at worst, has no real prospect of success.

 19.             The conduct of the Claimant in this matter has been unreasonable for the reasons set out below:

 (i)                The Claimant has wilfully disregarded all efforts to nominate the correct party to these proceedings. This has been a source of aggravation and demonstrates a failure to properly apply the principles of the Pre-Action Protocols and overriding objectives. Had the protocol been properly followed, the Claimant would have acknowledged the incorrect basis to pursue this matter and would have redirected their claim towards my son. If the Court accepts my evidence, the failure has caused delay and extensive correspondence which has been unnecessary pre-proceedings and these proceedings have incurred unnecessary cost and amount to a poor use of the Court’s time, taking account of scarce Court resources.

 (ii)              The Claimant has misstated the law in their correspondence to me as an unrepresented litigant in person. This is unreasonable in the context of the law related to private parking in circumstances in which the Claimant is a regulated parking provider and who is professionally represented. The correct interpretation of s.5(2) is as stated above. There is not a “28 day keeper transfer window” as is suggested in the correspondence that I have received, attached to this statement as Exhibit [ABC1] 

NB USE THE EXACT WORDING C HAS USED IN THEIR CORRESPONDENCE WHEN QUOTING. NO ONE ON THE FORUM HAS SEEN THAT.

 (iii)           The Claimant has claimed a sum in excess of that permitted by law for a party relying upon liability of a registered keeper. S.5(5) of the Act provides that 'the maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper'. The notice to keeper that I received was in the amount of £100, which therefore means that there has been an enhancement of the capital sum by £70 in addition to which interest is claimed.

Statement of Truth

etc etc

Once again thanks for all the help provided by the friendly people of this forum.

Regards Steve

Coupon-mad

Ah sorry, the Johnersh example is a Witness Statement written in the first person and I didn't mean you to copy first person sentences. Just the style of his concise phrasing. Not the whole thing.

Go back to your third person defence and merely learn from Johnersh's example re how to put things in persuasive language. Don't copy stuff about a parking infringement either.

richnixsea

Don't copy stuff about a parking infringement either.

He He,

OK how is this:-

Only bit I am sceptical about is Para 3.11

 "The defendant has no direct knowledge of the parking events. It may be that the Claimant has the right to pursue the PCN against the driver."

3. Referring to the POC: Paragraph 1 is denied. The Defendant is not indebted to the Claimant. Paragraph 2 is denied. There was no contravention. Paragraphs 3 and 4 are denied. Whilst the Defendant was the registered keeper, the Defendant is not liable and has seen no evidence of a breach of prominent terms. The quantum is hugely exaggerated (no PC can be £170 on private land) and there were no damages incurred whatsoever. The Claimant is to put strict proof of all of their allegations.On the date of the alleged contravention the Defendants brother was the driver of the vehicle, a fact conveyed to the claimant. The vehicle was used to access an Automated Teller Machine (ATM) at Shell Clapton, upon attempting to use said ATM it was realised that the driver had forgotten to bring his cash-card. He promptly left and then returned a short time later. The claimant offered as evidence an image of the vehicle entering on the first occasion and leaving on the second occasion with no notes of the vehicle’s movements in the interim.
The Driver has since passed away. The details of the drivers Executors were presented to the Claimant and were serviceable.

3.1 The Defendant asserts that the Claimant has wrongly assumed a parking contravention occurred due to a failure to fully review the Automatic Number Plate Recognition ("ANPR") images. This led the Claimant to wrongly obtain the Defendant’s personal details from the DVLA under false pretenses.

3.2 The Defendant submits that the Claimant’s claim arises from a mistaken interpretation of the vehicle’s movements and the associated parking sessions and is a clear case of “double dipping” as referred to in the BPA code of practice (7.3 note 1).

3.3 The Defendant further asserts that "double dipping" (where a vehicle is mistakenly recorded as having overstayed when it has in fact exited and re-entered the car park during the same day -  BPA code of practice (7.3 note 1)) is a common occurrence and can be caused by factors such as adverse weather conditions, or, more commonly, tailgating. In this case, the Defendant believes that such a scenario occurred, leading to an inaccurate claim of a parking violation.

3.4 The Defendant would like to bring to the attention the specifics in the BPA code of practice (7.3 note 1): ‘The manual quality control check for remote ANPR and CCTV systems is particularly important for detecting issues such as “double dipping”, where image camera systems might have failed to accurately record each instance when a vehicle enters and leaves controlled land, and for checking images that might have been taken other than by a trained parking attendant (see Clause 15). The manual check might also reveal where “tailgating” – vehicles passing a camera close together – is a problem, suggesting relocation of the camera might be necessary'. 

3.5 The Defendant asserts that the vehicle was parked legally during both parking sessions and was only in the car park for the time periods for which payments were not required. The claim of a parking contravention is therefore without merit.

3.6 The Defendant contends that the Claimant failed to fully review their ANPR images and failed to properly consider the circumstances of the Defendant’s parking sessions. The Claimant's actions in pursuing this matter are indicative of a lack of due diligence. 

3.7 The Defendant submits that the Claimant's actions in acquiring the Defendant's personal data from the DVLA were unlawful under the DPA 2018. The Claimant did not have a legitimate basis to access the Defendant's details, as the vehicle was not in contravention of parking regulations.

3.8 The Defendant asserts that the Claimant has committed an offence under the DPA 2018 by wrongfully obtaining the Defendant’s personal data from the DVLA based on a false claim of a parking contravention. The Claimant has caused unnecessary distress to the Defendant by relentlessly harassing the defendant pursuing this false claim, which amounts to a breach of the Defendant's rights under the DPA 2018.

Conclusion

3.8 The Defendant respectfully submits that the Claimant’s claim is based on a misunderstanding of the circumstances and an improper assumption of a parking contravention. Having provided a name and address for the driver at the request of the Claimant prior to the commencement of these proceedings, there is no longer any legal basis under which keeper liability may be established pursuant to Sch. IV of the Protection of Freedoms Act 2012 (“the Act”).Furthermore having provided the claimant with details of the driver in good time, the basis upon which the Claimant can bring a claim against a registered keeper is strictly regulated by the Act, with the specific requirements having not been met.

3.9 S. 4(4) provides that keeper liability cannot be established at all until a period of 28 days have expired since notice was given to the keeper. The defendant acknowledges that this notice was properly given in writing.

3.10 S.5 sets out additional pre-conditions, which have been reproduced below, with emphasis in bold.

5. Conditions that must be met for purposes of paragraph 4

(1) The first condition is that the creditor—

(a) has the right to enforce against the driver of the vehicle the requirement to pay the unpaid parking charges; but

(b) is unable to take steps to enforce that requirement against the driver because the creditor does not know both the name of the driver and a current address for service for the driver.

(2) Sub-paragraph (1)(b) ceases to apply if (at any time after the end of the period of 28 days beginning with the day on which the notice to keeper is given) the creditor begins proceedings to recover the unpaid parking charges from the keeper.

3.11 In relation to s.5(1)(a) The defendant has no direct knowledge of the parking events. It may be that the Claimant has the right to pursue the PCN against the driver. However, in relation to s.5(1)(b) the Claimant had actual knowledge of the driver’s name and address. As the driver was the defendants brother, the defendant was well placed to provide those details promptly and accurately. As stated above those details were confirmed in writing. The Claimant has had knowledge since at least 16/1/2025.

3.12 Under s.5(2) a registered keeper can still be liable for a PCN. However, that circumstance arises only if in the period between the Claimant giving notice to the keeper and the time upon which the Claimant commences court proceedings, there has been no notification of the driver’s details. This is not such a case. The claimant wrote to the executors, and received a reply, thus proving the details serviceable.

3.13 Proceedings is not defined in the Act. However, CPR 7.2(1) states ‘Proceedings are started when the court issues a claim form at the request of the claimant.’ As such, adopting the interpretation from the CPR, it is sufficient under the Act for the Defendant to name the driver and provide an address at any point prior to the Claim Form being issued. The defendant provided details in a timely fashion. The Claim Form was not issued in this case until 25/4/2025. Those obligations were discharged on 16th January 2025 when the Claimant had the correct name and address for the driver. Accordingly, since the pre-conditions pursuant to Sch IV at s5(1)(b) are not met, there is no basis upon which they are able to bring proceedings against the keeper.

Unreasonable Conduct

3.14 For the reasons set out above, the Claimant’s claim is at best misconceived and at worst, has no real prospect of success.

3.15 The conduct of the Claimant in this matter has been unreasonable for the reasons set out below:

 (i)          The Claimant has wilfully disregarded all efforts to nominate the correct party to these proceedings. This has been a source of aggravation and demonstrates a failure to properly apply the principles of the Pre-Action Protocols and overriding objectives. Had the protocol been properly followed, the Claimant would have acknowledged the incorrect basis to pursue this matter and would have redirected their claim towards the driver/drivers estate. If the Court accepts this evidence, the failure has caused delay and extensive correspondence which has been unnecessary pre-proceedings and these proceedings have incurred unnecessary cost and amount to a poor use of the Court’s time, taking account of scarce Court resources.

 (ii)          The Claimant has misstated the law in their correspondence to the defendant as an unrepresented litigant in person. This is unreasonable in the context of the law related to private parking in circumstances in which the Claimant is a regulated parking provider and who is professionally represented. The correct interpretation of s.5(2) is as stated above. There is not a “28 day keeper transfer window” as is suggested in the correspondence that the defendant has received, attached to this statement as Exhibit [ABC1] 

(iii)           The Claimant has claimed a sum in excess of that permitted by law for a party relying upon liability of a registered keeper. S.5(5) of the Act provides that 'the maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper'. The notice to keeper that was received was in the amount of £100, which therefore means that there has been an enhancement of the capital sum by £70 in addition to which interest is claimed.

Coupon-mad

I'm going out but remove this:

" "The defendant has no direct knowledge of the parking events. It may be that the Claimant has the right to pursue the PCN against the driver."

richnixsea

I'm not in a hurry, look at it at your leisure. Enjoy your night out!

Coupon-mad

I did.    
  

richnixsea

OK changed,

 "The defendant has no direct knowledge of the parking events. It may be that the Claimant has the right to pursue the PCN against the driver." 

to 

"The defendant has no direct knowledge of any parking infringements."

I intend to include the above para 3 to the template defence, along with a copy of the email from DCBLegal that claims the 28 day time limit for Keeper transferal.

Any comments, or anything else I should do?

Coupon-mad

You don't attach evidence at defence stage. Refer to it, but evidence comes much later.