Dcb legal hearing looming

C2605

Ok no worries, it was signed by 

Sarah Jennifer Helena Ensall on behalf of the Claimant

Position – Head of Bulk Litigation

Coupon-mad

C2605 said:

thankyou hopefully they can help, so waiting on a response from jackson yamba
 david carrod said he cant as he is with someone on the same date but suggested jackson as well 

in the ,meantime  i have just had the ws from dcb legal. this is a redacted copy if of any interest  https://drive.google.com/file/d/1vP7DYM3VmRyOYuvYMtN-67zshee8a4gG/view?usp=drive_link

Can you show pictures of the WS instead, if you would like us to look at it?

We don't need the page one preamble rubbish nor the signature page.

C2605

heres the main part

8. At the time of issue, the Claimant was instructed by the owner of the Land (“Landowner”) to manage parking on the Land and provided a copy of their contract with the Landowner. A copy of the Claimant’s agreement with the Landowner (“Landowner Agreement”) is exhibited to this Statement at “EXHIBIT 1”. It ought to be noted that the Landowner Agreement at “EXHIBIT 1” has been redacted by our Client, in order to protect privileged information between them and their Client. The pertinent parts of the Landowner Agreement have, however, been disclosed in the exhibit in order to evidence sufficient authority to manage the Land. 9. I am advised by the Claimant, that the Landowner Agreement has been extended by mutual consent of the parties. 10. I refer to the decision in One Parking Solution Ltd v Wilshaw [2021] (Wilshaw) whereby it was found that it is not necessary for the Claimant to prove the Landowner’s authority to constitute a valid cause of action to recover the Parking Charge(s), what is required is proof that there is a binding Contract between the Claimant and the Defendant. Further, it was found in Wilshaw that the Contract between the Claimant and the Freeholder (Landowner) does not affect the validity of any Contract between the Claimant and the Defendant. 

 Contract  

11. At the time of issue, the Claimant was prominently displaying signs on the Land setting out the Terms of parking. A copy of the content of the signs is exhibited to this Statement at “EXHIBIT 2”. The signs formed the basis of the Contract with the driver (“Contract”). 12. The following was a term of the Contract: - “MAXIMUM STAY 60 MINUTES” 13. In parking the Vehicle on the Land, the driver accepted the Contract, with the license to park being the Consideration. It is evident from the photographic evidence exhibited to this Statement at “EXHIBIT 3” that the Vehicle was present on the Land on the contravention dates. Table 2 below states the entrance and exit times of the Vehicle which clearly outlines that the Vehicle remained on the Land in excess of the maximum stay duration of 60 minutes. The Claimant confirms it remains their position that the Charges were issued correctly as the Terms were breached. 

14. The Contract provides that a Charge is payable by the driver upon breach, with payment falling due within 28 days. 15. A plan of the Land (“Plan”) showing the positioning of the signs is exhibited to this Statement at “EXHIBIT 4”. 16. Copies of the Notice to Keeper and Reminder Notice are exhibited to this Witness Statement at “EXHIBIT 5”. Defendant’s Liability 17. Pursuant to the Contract; the Driver was liable to pay the Parking Charge within 28 days of issue. 18. In order to issue a Parking Charge, the Claimant requested the details of the Registered Keeper from the DVLA to send Notices compliant with Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”). Upon receipt of those details, the Notice was sent to the Keeper via the post in accordance with paragraph 9 of POFA. The Notice to Keeper is followed up with other reminder notices. Copies are with “EXHIBIT 5”. 19. The Claimant has advised that they use Automatic Number Plate Recognition (“ANPR”) technology on the Land to manage the parking. Cameras capable of accurately recording vehicle registration numbers are constantly monitoring the entrance and exit to the Land. A photograph is taken of each Vehicle as it enters and exits the Land. Copies of the photographs taken are with “EXHIBIT 3”. Any Vehicle found to have breached the Terms of parking will be issued with a Parking Charge. Given that the photographic images exhibited at “EXHIBIT 3” confirm that the Vehicle remained on the Land in excess of the maximum stay permitted, as outlined within “EXHIBIT 2”, the Claimant has confirmed that it’s position remains that the Parking Charge was issued correctly. 20. The Defendant does not dispute being the Driver or Keeper of the Vehicle. As such, the Claimant has confirmed it reasonably believes that the Defendant was the Driver, because they would otherwise have nominated a driver, and therefore the Defendant is pursued on that basis. It is evident from the evidence provided that the Claimant has complied with POFA and can pursue the Defendant as Keeper in the alternative.  

Defence 

21. The Defendant was afforded a 28-day period in which they could appeal. The Claimant confirms that they hold no record of an appeal. The potential next step was clearly communicated to the Defendant in Notices. It is respectfully submitted that if the Defendant genuinely believed the Parking Charge had been issued incorrectly, they would have engaged with the appeals process. 22. It ought to be noted that the Defendant has filed a widely available templated Defence, rather than dealing with the substantive issues. It is submitted that this is disingenuous and a waste of both the Courts time and the Claimant’s time. 23. Notwithstanding the above, I respond to the issues raised in the Defence by way of sub-headings as follow (as the Defence is quite repetitive, I will only deal with each point once, but for the avoidance of doubt nothing within the Defence is accepted unless specifically I state otherwise): - Civil Procedure Rules Compliance i. The Defendant suggests that the Particulars of Claim (“POC”) are in breach of the Civil Procedure Rules (“CPRs”). I submit that the Claim was issued via the Civil National Business Centre and in this regard, I refer to Practice Direction 7C (“the PD”) which specifically provides the guidelines for doing so. I respectfully submit that the POC are in keeping with the PD. The following sections are of relevance:- 5.2(1) provides a limited character count for the Particulars of Claim; and 5.2A stipulates that the requirement in paragraph 7.3 of the Practice Direction 16 for documents to be attached to the particulars of contract claims does not apply to claims started using an online claim form. ii. It is my firms position that the POC were sufficient to allow the Defendant to identify the subject matter of the Claim. The Defendant could not have submitted a Defence with the detail is contains if the POC were so insufficient as to prevent them from understanding the Claim. Further, with respect, if the Defendant were of the genuine belief that the POC were insufficient, the correct procedure would have been to make an Application to the Court. The Defendant has not chosen to do so; iii. In addition to the above, I also refer to CPR 1 and respectfully remind the Defendant of their obligation to deal with the case justly and at proportionate cost. Bearing in mind the Claim amount, the Claimant has taken proportionate steps to recover the debt. 

No financial loss ix. The sum added is a nominal contribution to the actual costs incurred by the Claimant as a result of the Defendant’s non-payment, and capped at the amount permitted under the ATA Code. I am instructed that the Claimant’s employees spent time and resource attempting to recover the debt, as well as instructing external debt recovery providers, all at a cost to the Claimant. This is not the Claimant’s usual business and, but for the Defendant’s refusal to pay, would not have been necessary; x. When consider the recoverability of this element of the claim, I respectfully draw the Court’s attention to paragraph 45 of Chaplair Limited v Kumari [2015] EWCA Civ 798 whereby, when considering contractual indemnity costs, it was stated: - “There is nothing … which enable[s] the rules to exclude or override that contractual entitlement and I therefore agree with Arden LJ that the judge had the jurisdiction to assess the costs free from any restraints imposed by CPR 27.14.” Amount Claimed xi. The Claimant is not seeking more than the original charge as the core debt. The core charge remains the same for each PCN (i.e. £100.00); however, the Claimant is now also seeking further costs/damages; xii. In keeping with the guidelines given by the ATA: Part 20.5 of the BPA COP states “we would not expect this amount to be more than £100.00. If the Charge is more than this, operators must be able to justify the amount in advance.” It is the Claimant’s position that there is no requirement for the amount of the charge to bear any relevance to the actual or potential cost of parking. The PCN is a fee charged by the Claimant for providing the service and it stays within the guidelines given by the ATA. As with many other ‘services’; the service provider is entitled to charge as they deem appropriate; xiii. With respect of Parking Eye -v- Beavis [2015], whilst it is accepted the original charge is designed to include the ‘operational costs’; this was with reference to maintaining the Land, taking payment or sending the relevant notices. It was never intended to include the need to pursue the debt in Court to recover it. If that were the case, it would override the Civil 

Procedure Rules (allowing fixed costs and recovery of Court fees) which of course is not the case. The Defendant has misunderstood the phrasing ‘operational costs’; xiv. The recent successful appeal in Britannia Parking Group Ltd v Semark-Jullien [2020] EW Misc 12 (CC) (29 July 2020) found that the inclusion of the debt recovery charge in the Claim does not fall foul of the decision of Parking Eye Ltd v Beavis [2015] UKSC 67, because that was not the point in discussion in that case. The appeal also concluded that the inclusion of such a charge in a Claim of this type does not constitute an abuse of process that would allow for the entire Claim to be struck out; New Code of Practice (“COP”) xv. Within their Defence, the Defence makes referred to the Department for Levelling Up, Housing and Communities (“DLUHC”) and the ‘new’ parking code of practice originally published in February 2022. With respect, it is submitted that this bears no relevance to the matter at hand at the code has not yet been enacted with the current status if the Code being ‘withdrawn’ as of June 2022; xvi. Further to the above, the Defendant’s opinion of the industry being regulated by the Independent Parking Committee and British Parking Association bears no relevance to the Defendant’s liability. With respect, nothing has currently been implemented by the Government for the Claimant to adhere to (although this is of course pending). I respectfully ask the question; would the Defendant have deemed it more appropriate for the Claimant to no adhere to the COP(?). Referring to that Code is not misleading – it is (at the present time_ entirely relevant and section 111 of Parking Eye v Beavis [2015] confirmed that; Lack of Alternative Dispute Resolution xvii. Within their Defence, the Defendant suggests that there was a lack of alternative dispute resolution. This is denied. The “Letter of Claim” as issued by my firm afforded the Defendant the opportunity to dispute the matter within 30 days, yet the Defendant failed to engage appropriately with this. It is respectfully submitted that the Defendant has failed to take the matter seriously until the Claimant has gone to the expense of issuing legal proceedings. 24. In view of the above, I am instructed that it is the Claimant’s position that the Defendant breached the Contract as set out in this Statement and as such the Defendant is liable. CPR Cost 

25. I have been instructed to claim the Claim issue fee, fixed costs pursuant to CPR 45, and the hearing fee in any event. 26. In the alternative to the contractual costs set out above, the Claimant has requested that I reserve the right to claim additional costs pursuant to CPR 27.14(2)(g). This Claim was issued as a last resort, and given the robust appeals procedure in place, should not have been necessary. The Claimant has confirmed that it is their position that this is unreasonable behaviour, and it is respectfully requested that the Court considers whether they conclude the same. Conclusion 27. It is my respectful submission that the Defence are entirely without merit and as such it is requested that the Defence are struck out and Judgment awarded in favour of the Claimant, payable forthwith. 28. I may not be able to attend the forthcoming hearing. Should this be so, an advocate will attend on my behalf. I ask that the Court accepts this as written notice pursuant to CPR 27.9(1). If I am unable to attend, please decide the claim in my absence, taking into account the advocate’s submissions, this Statement, and any other evidence filed. This paragraph demonstrates my compliance with CPR 27.9(1)(a)-(b). 29. In the event an advocate does attend the hearing, I request their fee be added to the amount sought. 

Coupon-mad

Nothing bespoke to your case there at all!

C2605

on Friday 14th contester legal came back with there quote  and say:
"This fee includes our communication with the opposition’s representatives, the submission of a late witness statement (due to the deadline having passed) and representation at your hearing."

The deadline is tomorrow the 18th, so it hasn't passed yet(emailed this back to them)

..I'm worried that if the WS is not submitted in time then I would receive a default judgment ? 

Btw I sent off the id ect and confirmation for them to handle the case straight away on Friday after they emailed there quote

Coupon-mad

C2605 said:

on Friday 14th contester legal came back with there quote  and say:
"This fee includes our communication with the opposition’s representatives, the submission of a late witness statement (due to the deadline having passed) and representation at your hearing."

The deadline is tomorrow the 18th, so it hasn't passed yet(emailed this back to them)

..I'm worried that if the WS is not submitted in time then I would receive a default judgment ? 

Btw I sent off the id ect and confirmation for them to handle the case straight away on Friday after they emailed there quote

Chase them so you know in the morning whether they will file & serve a WS for you in time.

C2605

Dcb legal sent a supplementary witness statement after I sent mine to them with them basically staying what I had in my ws didn't mean anything and they were still proceeding with the case 


So after gathering all my papers ready for court on Tuesday in four days time  I  found a receipt for the part exchange !,
I forwarded to Jackson and he lent on dcb legals representatives who  decided to not to carry on (yaayyy 😛) 

Contester legal cost a  fair bit, but to be fair it was still a lot less than what was being claimed , question is can I ask the court for  the amount in the "schedule of costs" to be awarded  due to late discontinuation  (abuse of court ect) ? 


Anyway thanks everyone for your support and here it is to add to the list .....

Coupon-mad

I think: quickly ask Contestor Legal if there's a possibility of you getting your costs due to wholly unreasonable conduct? Jackson will know the case best. This is great:

"So after gathering all my papers ready for court on Tuesday in four days time  I  found a receipt for the part exchange !,
I forwarded to Jackson and he lent on DCB legal representatives who  decided to not to carry on (yaayyy) "

ANOTHER ONE BITES THE DUST!

Calling @Umkomaas

😛

Umkomaas

Well done @C2605. Hope Jackson Yamba can persuade the Judge that his charges should fall on ECP and DCB Legal!

Your case is now included in the DCB Legal Discontinuation thread of shame.

Nellymoser

Great news so far.🤞for costs.

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