Parkmaven Limited / DCB Legal Claim

NewtofDoom

@Coupon-mad
How about now please?

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').

Preliminary matter: The claim should be struck out

2. 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 draws to the attention of the allocating Judge that there are two persuasive Appeal judgments - by HHJ Murch at Luton and HHJ Evans at Manchester - to support striking out the claim in these exact circumstances of typically poorly pleaded private parking claims. The Defendant believes that dismissing this meritless claim is the correct course, with the Overriding Objective in mind. Bulk litigators (legal firms) should know better than to make little or no attempt to comply with the Practice Direction.  By continuing to plead cases with generic auto-fill unspecific wording, private parking firms should not be surprised when courts strike out their claims based in the following persuasive authorities:

3. Two recent persuasive appeal judgments in Civil Enforcement Limited v Chan (Ref. E7GM9W44) and Car Park Management Service Ltd v Akande (Ref. K0DP5J30) would indicate the POC fails to comply with Civil Procedure Rule 16.4(1)(e) and Practice Direction Part 16.7.5. On the 15th August 2023, in the Chan case, HHJ Murch held: 'the particulars of the claim as filed and served did not set out the conduct which amounted to the breach in reliance upon which the claimant would be able to bring a claim for breach of contract'. The same is true in this case and the Defendant trusts that the Court should strike out the extant claim, using its powers pursuant to CPR 3.4. 

4. The second recent persuasive appeal judgment also held that typical private parking case POC (like this) fail to comply with Part 16. On the 10 May 2024, in CPMS v Akande, HHJ Evans held: 'Particulars of Claim have to set out the basic facts upon which a party relies in order to prove his or her claim'. Transcripts for both cases are linked below to assist the Court to deal with this failure promptly and the two authorities will also be exhibited later, if the claim is not struck out at allocation stage:

Link to the two authorities: Chan_Akande

 The facts known to the Defendant:

5. The facts in this defence come from the Defendant's own knowledge and honest belief.  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.

6.     Referring to the POC: paragraph 1 is denied. The Defendant is not indebted to the Claimant. Paragraph 2 is denied. No PCN was "issued on 14/06/2023" (the date of the alleged visit).  Whilst the Defendant is the registered keeper, paragraphs 3 and 4 are denied. The Defendant is not liable and has seen no evidence of a breach of prominent terms.  The quantum is hugely exaggerated (no PCN can be £170 on private land) and there were no damages incurred whatsoever. The Claimant is put to strict proof of all of their allegations.

7. 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.

8. 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.

Coupon-mad

Perfect. Adding on the rest of the Template Defence of course but no showing us that!

NewtofDoom

Perfect, thanks @Coupon-mad, let's havat'em!

ClaimResponses.CNBC<ClaimResponses.CNBC@justice.gov.uk>

To:​You​

Fri 18/04/2025 15:05

Thank you for emailing the Claim Responses Team in the Civil National Business Centre. Please expect a response to your enquiry in 10 days When sending us documents please ensure you comply with the Practice Direction 5B https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part05/pd_part05b PRACTICE DIRECTION 5B – COMMUNICATION AND FILING OF DOCUMENTS BY E-MAIL – Civil Procedure Rules - Justice.gov.uk Scope and Interpretation. 1.1 This practice direction provides for parties to communicate and file specified documents with the court by e-mail in proceedings to which the Civil Procedure Rules apply. It also makes provision about the e-mail address to be used where a rule or practice direction states that communications or documents may be sent to or served on a body by e-mail.”. www.justice.gov.uk

NewtofDoom

@Coupon-mad Just to put my mind at ease, can I double check one last thing please? Issue Date on the Claim form was 19th March. So Date of service is 5 days after this date (24th March). With 28 days to file defence post date of service, that gave me until the 21st April. 

So filing today, April 18th, I'm within the deadline?

Doesn't matter that it's a bank holiday weekend until April 22nd (day 29)?

Thanks again

Coupon-mad

Yes that's fine but when close to your deadline, for peace of mind you could put a shorter version defence in on MCOL (instead of emailing) which removes all the blurb stuff about the DLUHC in 2022 (and obviously there's no need for headings or conclusion or statement of truth/signature either, if using the MCOL defence box).

Don't ask us what to remove. Make your own mind up. It's pretty obvious which parts are filler and can go!

Clearly (anyone reading it can tell, unless English isn't their first language) you can remove most of the lower section of the defence and it'll still be good as long as you don't remove the paragraphs about unclear signage or landowner authority.

This is because the MCOL box is very restrictive on character count. 

NewtofDoom

@Coupon-mad I've trimmed this and trimmed it - and am now stuck on what can be safely removed. 

I need to lose another 10 lines, so something like 2 paragraphs. 

1-6 All looks essential
7-11 is based around the amount being claimed, seems important? I've trimmed, but still seems important
12-16 (below) appear to relate to prominent signage (as previously advised)
17-18 (below) appear to relate to landowner permissions (as previously advised). 

Please advise?
-------

Reduced version, submitted via MCOL, in case emailed defence 18/04/2025 not processed by deadline.

Reduced version, submitted via MCOL, in case emailed defence 18/04/2025 not processed by deadline.

1.   Defendant denies that Claimant is entitled to relief in the sum claimed, or at all.  It is denied that any driver conduct was in breach of any term, or that 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 Claimant is claiming 'keeper liability', which is unclear from boilerplate text in the Particulars of Claim ('POC').

2. Claimant sets out incoherent and sparse statement of case. POC is 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".  Defendant draws allocating judge attention to two persuasive Appeal judgments - HHJ Murch at Luton and HHJ Evans at Manchester - to support striking out the claim in these exact circumstances of typically poorly pleaded private parking claims. Defendant believes dismissing this meritless claim is correct course, with Overriding Objective in mind. Bulk litigator (legal firm) has made little/no attempt to comply with Practice Direction. By pleading cases with generic unspecific wording, private parking firms should not be surprised when courts strike out their claims based in the following persuasive authorities:

3. Two recent persuasive appeal judgments in Civil Enforcement Limited v Chan (Ref. E7GM9W44) and Car Park Management Service Ltd v Akande (Ref. K0DP5J30) would indicate POC fails to comply with Civil Procedure Rule 16.4(1)(e) and Practice Direction Part 16.7.5. On the 15th August 2023, in the Chan case, HHJ Murch held: 'the particulars of the claim as filed and served did not set out the conduct which amounted to the breach in reliance upon which the claimant would be able to bring a claim for breach of contract'. This applies in this case and the Court should strike out the extant claim, using powers pursuant to CPR 3.4. 

4. The second recent persuasive appeal judgment also held that typical private parking case POC (like this) fail to comply with Part 16. On the 10 May 2024, in CPMS v Akande, HHJ Evans held: 'Particulars of Claim have to set out the basic facts upon which a party relies in order to prove his or her claim'. Transcripts for both cases are linked here: Chan_Akande

5. The facts in this defence come from the Defendant's own knowledge and honest belief. 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, Defendant admits being the registered vehicle keeper and driver.

6. POC Paragraph 1 is denied. Defendant is not indebted to Claimant. POC Paragraph 2 is denied. No PCN was "issued on 14/06/2023" (the date of the alleged visit).  Whilst the Defendant is the registered keeper, POC paragraphs 3 and 4 are denied. The Defendant is not liable and has seen no evidence of a breach of prominent terms.  The quantum is hugely exaggerated (no PCN can be £170 on private land) and there were no damages incurred whatsoever. Claimant is put to strict proof of all allegations.

7. No financial loss will have arisen. In order to impose an inflated parking charge and prove a term was breached, there must be (i) a strong legitimate interest beyond mere compensation for loss, and (ii) adequate notice of the penalty clause charge which, for car parks, requires prominent signs and lines. 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.
8. Alleged 'core debt' from any parking charge cannot exceed £100 (industry cap).  It is denied that any 'Debt Fees' or damages were actually paid or incurred.

9. This claim is unfair and inflated and it is denied that any sum is due in debt or damages. The claim sum is disproportionately enhanced and appears to be double recovery, duplicating intended 'legal fees' cap set by small claims track rules. Further, claiming costs on an indemnity basis is unfair, per Unfair Contract Terms Guidance (CMA37 5.14.3).

10. The heads of alleged loss or purported 'contractually agreed' sums are unspecified and not adequately broken down, but it is denied that the added costs / damages sought were incurred.

11. Pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 ('the POFA') the sum claimed exceeds the maximum recoverable from a registered keeper. Claimant is put to strict proof of POFA compliance, if relying upon 'keeper liability'.

12. Defendant avers that there was no agreement to pay a parking charge or added 'damages' which were not even incurred, let alone quantified in bold, prominent text. Claimant's lack of large, readable signs are nothing like the yellow & black warnings seen in Beavis, nor do they even meet basic signage requirements in current BPA & IPC Joint Code of Practice, which reflects the already statutory requirement for 'prominence' (Consumer Rights Act 2015 - the 'CRA').

13. The CRA introduced new requirements for 'prominence' of both terms and 'consumer notices'. In a parking context, this includes a test of fairness and clarity of 'signs & lines' and all communications (written or otherwise). Signs must be prominent (lit in hours of darkness/dusk and adequately positioned where terms are bound to be seen) and all terms must be unambiguous and contractual obligations clear.

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

15.  Unlike in Beavis, the penalty rule remains engaged. The CRA covers disproportionate sums, which are not exempt from being assessed for fairness because a 'fee' is not the core price term and neither was it prominently proclaimed on the signs.  

16. The Supreme Court held that 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 alleged breach.  The intention cannot be to punish a driver, nor to present them with hidden terms or cumbersome obligations ('concealed pitfalls or traps').  This Claimant has failed those tests, with small signs, hidden terms and minuscule small print that is incapable of binding a driver. Court of Appeal authorities about a lack of ‘adequate notice’ of a parking charge include: (i) Spurling v Bradshaw [1956] 1 WLR 461 (Lord Denning's ‘red hand rule’) and (ii) Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ2, both leading authorities that a clause cannot be incorporated after a contract has been concluded; and (iii) Vine v London Borough of Waltham Forest: CA 5 Apr 2000, where Ms Vine won because it was held that she had not seen the terms by which she would later be bound, due to "the absence of any notice on the wall opposite the parking space''. 

17. DVLA registered keeper data is only supplied on the basis that parking operators who do not own the land must hold prior written agreement from the landholder. Should the Claimant try to rely upon the finding in One Parking Solution v Wilshaw in this regard, it is averred that this appeal judgment was misguided and plainly wrong. The DVLA rules and requirements that relate to private parking operators are a fundamental set of rules specific to parking on private land and regrettably, HHJ Simpkiss was not appraised about the 'KADOE' requirement for written landowner authority. Even the BPA & IPC's questionable industry Code gets this right: absent written landowner authority, there is no 'reasonable cause' to obtain DVLA data nor to issue PCNs. 

18. It is not accepted that this Claimant (an agent of a principal) had written authority from the landowner to offer and form contracts with drivers at this site, in their own right. Many parking operators merely act as agents (contracted to put signs up and issue charges 'on behalf of' the site landowner) and this Claimant is put to strict proof of their standing to litigate.

Coupon-mad

Remove 10 and 11

and remove this:

"Liability is denied, whether or not Claimant is claiming 'keeper liability', which is unclear from boilerplate text in the Particulars of Claim ('POC')."

NewtofDoom

Thanks again, defense submitted via MCOL this morning. Was a few lines over still to a bit more hedge pruning and it's over the line.