Small Claims Court, CCJ N1SDT . Help with Defence for PCN DCBL Legal Parking outside marked bay

januarykitten2020

Please can someone help me respond to this:

I parked at a friends place late one dark winter evening, with a permit. It was cobbled and there were no obvious lines. I received a PCN soon after in the post, but was shocked! I ignored it. The letters stopped. I moved house and then new letters from different companies arrived.
I have just received a Claim Form 

The particulars of claim :
1. The defendant is indebted to the claimant for a parking charge issued to the vehicle at XXXX.
2. The date of contravention is December 2019 and the defendant was issued with a parking charge by the claimant.
3. The defendant is pursued as the driver of the vehicle for breach of the terms on the signs (the contract). Reason: parked outside a marked bay.
4. In the alternative the defendant is pursued as the keeper pursuant to POFA 2012, schedule 4. and the claimant claims
1. £170 being the total of the parking charge and damages.
2. Interest at a rate of 8% per annum pursuant to s.69 of the county courts Act 1984 from the date hereof at a daily rate of £0.01 until judgement or sooner payment.
3. Cost and court fees. 

My response so far: 

DEFENCE

1. The Defendant denies liability for the entirety of the claim and puts the Claimant to strict proof of the alleged contract and breach.

2. The Defendant is the registered keeper of the vehicle but was not the driver at the time of the alleged contravention on XXXX Date . The Claimant has failed to comply with the requirements of Schedule 4 of the Protection of Freedoms Act 2012 (PoFA) to transfer liability from the driver to the keeper. As such, the Defendant cannot be held liable in law.

3. The Particulars of Claim are vague and fail to comply with Civil Procedure Rule 16.4. They do not identify the cause of action clearly or provide sufficient information for the Defendant to understand the case to answer. The Defendant reserves the right to request further and better particulars.

4. The location at  XXXX had unclear and inadequately marked parking bays at the material time. The signage was also insufficient to form a binding contract with any driver. Therefore, the terms of any alleged contract were not properly offered, known, or accepted, and no breach can have occurred.

5. The Claimant alleges a contractual breach for “parking outside a marked bay” but provides no evidence of the signage, layout of the site, or the actual parking event. The Defendant puts the Claimant to strict proof of:

   • The presence and adequacy of any signage at the site;

   • That the signage met the requirements of the Consumer Contracts Regulations 2013;

   • That the driver accepted those terms;

   • That any alleged breach took place;

   • That the Claimant has the authority to issue and enforce parking charges in its own name.

6. The amount of £170 is a penalty and not a genuine pre-estimate of loss. It exceeds the maximum allowed by the Parking Charge Code of Practice and is an abuse of process. The original charge was likely £100 or less. The additional costs, including the invented “damages” and the £70 add-on, are unrecoverable under the small claims track rules and are not supported by any lawful basis.

7. The claim for interest under s.69 of the County Courts Act 1984 is denied. The alleged parking charge is not a valid debt and any claim to interest is therefore without foundation.

8. The Claimant is put to strict proof that they have complied with all statutory and procedural requirements, and that their claim has legal merit.

9. The Defendant respectfully requests that the Court strikes out the claim or dismisses it in its entirety.

januarykitten2020

I have an updated response as I was the driver: 

1. The Defendant denies that they are liable for the entirety of the claim.

2. The Defendant was the registered keeper and driver of the vehicle on the date of the alleged contravention, XXX DATE at XXX Place

3. The Claimant asserts that the Defendant parked “outside a marked bay” in breach of terms displayed on signage at the location. However, the Defendant avers that the signage was unclear and the bay markings were either not visible, not maintained, or were ambiguous. Accordingly, no clear contract was formed, and any alleged breach is denied.

4. The signage at the site failed to meet the standards required under the Consumer Rights Act 2015 or the BPA Code of Practice (or IPC if applicable), and did not communicate terms in a clear, transparent or prominent way. The Defendant puts the Claimant to strict proof of:

• The presence, location, size, and wording of signage on the date in question;

• That the signage was visible upon entry and at the location where the vehicle was parked;

• That the bay markings were present, clearly visible, and defined such that a contractual term could be breached by the manner of parking.

5. The Defendant further denies that any parking charge is due. Even if the signage had formed a contract (which is denied), any alleged breach such as “not parking inside a bay” amounts to a minor technicality which caused no obstruction, damage, or loss. As such, the imposition of a £100 charge (let alone the inflated £170 claimed) is unconscionable, penal, and unenforceable.

6. The Claimant has artificially inflated the claim to £170 by adding a false debt collection charge or “damages” of £70. This is a known abuse of process and has been struck out in other similar claims. The Defendant refers to Britannia Parking v Crosby (Southampton Court, 2020) and DJ Harvey in G4S v Sibley (2021), where such add-ons were disallowed.

7. The Claimant also seeks interest pursuant to s.69 of the County Courts Act 1984. As no debt has been proven, the Defendant denies that interest can be applied. Furthermore, no contract specifying interest existed between the parties.

8. The Particulars of Claim are vague and fail to meet CPR 16.4 requirements. The Defendant is prejudiced in being unable to respond more fully without seeing proper particulars of the alleged contract, breach, and chain of authority.

9. The Defendant denies that the Claimant has locus standi to bring this claim in their own name and puts them to strict proof of a valid and contemporaneous landowner contract authorising G24 to issue and enforce parking charges at the location.

10. The Defendant respectfully requests that the Court strike out the claim as an abuse of process, or alternatively, dismiss the claim in full.

Coupon-mad

No, use the Template Defence.

just read the SECOND post of the NEWBIES thread (we will not link it; see my signature for how to hop there in a nanosecond).

Read the SECOND POST OF IT ONLY.

Then do the AOS (explained there with a walkthrough pictorial guide) then use the Template Defence and draft your facts, which slot into paragraph 3.

You will never pay, no CCJ is risked and it probably won't even get as far as a hearing. All very easy and a useful experience in seeing off a 'scam'.

First, please post a photo of the claim form page, but REDACT 

- your name & address & QR Code

- your VRM

- the Claim number (top right)

- the Password (lower right) 

januarykitten2020

@Coupon-mad Thank you 
I have filled AoS already online but not submitted defence yet

Gr1pr

Adapt the template defence,  a couple of paragraphs,  the rest are unchanged,  but use ALL of it

Your deadline is around the 27th , 4pm

januarykitten2020

IN THE COUNTY COURT

Claim No.:  xxxxxx

Between

Full name of parking firm Ltd, not the solicitor!

(Claimant) 

- and -  

Defendant named on claim (can’t be changed to driver now)                        

 (Defendant)

_________________

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').

 

The facts known to the Defendant:

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

3. 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 30/01/2020". 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.

4. 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.

5. 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.


Exaggerated Claim and 'market failure' currently being addressed by UK Government

6. The alleged 'core debt' from any parking charge cannot exceed £100 (the industry cap).  It is denied that any 'Debt Fees' or damages were actually paid or incurred.

7. This claim is unfair and inflated and it is denied that any sum is due in debt or damages. This Claimant routinely pursues an unconscionable fixed sum added per PCN, despite knowing that the will of Parliament is to ban it.

8. This is a classic example where adding exaggerated fees funds bulk litigation of weak and/or archive parking cases. No checks and balances are likely to have been made to ensure facts, merit or a cause of action (given away by the woefully inadequate POC).

9. The Department for Levelling Up, Housing and Communities ('the DLUHC') published a statutory Parking Code of Practice in February 2022: Cannot post links *****

The Ministerial Foreword is damning: "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." 

10. Despite legal challenges delaying the Code (temporarily withdrawn) a draft Impact Assessment (IA) was published on 30th July 2023. The then Government's analysis is found here: Cannot post links *****

11. Paragraphs 4.31 and 5.19 state that the parking industry has shown the DLUHC that the true minor cost of pre-action stage totals a mere £8.42 per case (not per PCN).

12. This claim has been enhanced by a disproportionate sum, believed to enrich the litigating legal team. It appears to be double recovery, duplicating the intended 'legal fees' cap set by small claims track rules. Further, claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3):

Cannot post links *****

13. The draft IA shows that the intimidating letter-chains endured by Defendants cost 'eight times less' than the  fixed +£70 per PCN. This causes immense consumer harm in the form of some half a million wrongly-enhanced CCJs each year, that Judges are powerless to prevent.  MoJ statistics reveal several hundred thousand parking claims per annum, with c90% causing default CCJs totalling hundreds of millions of pounds. The false fee was enabled by the self-serving Codes of Practice of the rival parking Trade Bodies who aligned in 2021 to allow +£70, each led by a Board comprising the parking and debt firms who stood to gain from it. 

14. 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. In this industry, debt collectors charge nothing when failing to collect parking charges.

15. A typical private PCN model comprises a series of demands that the Supreme Court called an 'automated letter-chain' and the parking charge itself is already inflated to generate a healthy profit. In Beavis, there were 4 pre-action letters/reminders and the £85 PCN was held to more than cover the minor costs of the operation. This is less about genuine 'parking management' and more of a PCN-generating scheme, where debt demands are part of the regime.

16. Whilst the new Code is 'on hold' and not retrospective, the new MHCLG Secretary of State must still introduce a statutory Code of Practice according to the legislation already enacted. It is surely a clear steer for the Courts that the DLUHC said in 2023 that it is addressing 'market failure' and in 2025, the new Labour Government has pledged to resurrect the statutory Code with a Public Consultation expected within weeks. Statutory regulation will soon replace the BPA & IPC Code, so the clauses in the (temporarily stalled) February 2022 Code should bear significantly more weight than the industry's own self-serving version. 

17. Attention is drawn to paras 98, 100, 193, 198 of Beavis.  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 ratified by the CoA) held in paras 419-428 that 'admin costs' inflating a PCN to £135 exaggerated the cost of template letters and 'would appear to be penal'. That judgment was unaffected by Beavis and remains binding as the only authority covering the clear abuse of parking firms routinely adding imaginary 'admin /debt recovery' fees to further enhance a large parking charge.

18. 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 from a registered keeper. The Claimant is put to strict proof of POFA compliance, if they are relying upon 'keeper liability'.

19. The 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. This Claimant's lack of large, readable signs are nothing like the yellow & black warnings seen in Beavis, nor do they even meet the basic signage requirements in the current BPA & IPC Joint Code of Practice, which reflects the already statutory requirement for 'prominence' (Consumer Rights Act 2015 - the 'CRA').

CRA breach - lack of prominent terms

20. Section 71 CRA creates a statutory duty upon Courts to consider the test of fairness whether a party raises it or not.

21. 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.

22.  The 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).  

ParkingEye v Beavis is distinguished

23.  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.  

24. 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''. 

Lack of standing or landowner authority, and lack of ADR

25. 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. 

26. 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.

27. The Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR). The rival Trade Bodies' time-limited and opaque 'appeals' services fail to properly consider facts or rules of law and reject most disputes: e.g. the IAS upheld appeals in a woeful average 5% of decided cases (ref: recent Annual IAS Reports). An impartial, fair appeals service was never on offer.

Conclusion

28. 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.

29. In the matter of costs, the Defendant seeks:

(a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and

(b) a finding of unreasonable conduct by this Claimant, and further costs pursuant to CPR 46.5. 

30.  Attention is drawn to the (often-seen) distinct possibility of an unreasonably late Notice of Discontinuance. Whilst CPR r.38.6 states that the Claimant is liable for the Defendant's costs after discontinuance (r.38.6(1)) this does not 'normally' apply to claims allocated to the small claims track (r.38.6(3)). However, the White Book states (annotation 38.6.1): "Note that the normal rule as to costs does not apply if a claimant in a case allocated to the small claims track serves a notice of discontinuance although it might be contended that costs should be awarded if a party has behaved unreasonably (r.27.14(2)(dg))."   

 

Statement of Truth

I believe that the facts stated in this defence are true.  I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Signature:

Date:

 

januarykitten2020

@Gr1pr I have posted my defence below. Please could you let me know if it's ok (have I changed the correct thing?) Or is it too lengthy?

januarykitten2020

@Grp1r @Coupon-mad
I was visiting a friend, had a valid visitors permit for the residential area.  
It was dark, the lines were very faint/ not visible, I have stock images online showing the carpark with no visible parking lines. 

Gr1pr

It may be the correct length for the CNBC,  but not for us.

We dont check the full content of a defence,  because most of it is unchanged 

We would want to see your homework only,  for checking,  so only the few paragraphs that YOU changed 

Paragraph 3 , sub section 2 ,  is incorrect too, the word ISSUED is not used,  Contravention is there instead,  they changed it a month ago,  so yours needs changing too

Coupon-mad

"No PCN was "issued on 30/01/2020"

Just needs the above removed.

januarykitten2020

Please can you advise if this is ok? @Coupon-mad @Gr1pr

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').

 

The facts known to the Defendant:

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

3. Referring to the POC: paragraph 1 is denied. The Defendant is not indebted to the Claimant. Paragraph 2 is denied. 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. 

4. 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.

5. 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.