DCB Legal claim form.

makoali123

Good morning, I have had two claim forms from DCB legal arrive this morning for allegedly overstaying at Monks cross in York. I have/ will post them both separately. 

Any advice on what to add to the template defence for this please.

i will log on and do AoS and defence as the deadline is looming for this one.

thank you!

Gr1pr

Do the AOS online this weekend 

Use the template defence,  with minor changes in paragraphs 2 & 3

If its the same location and parking company etc as the other one,  ask for consolidation of the 2 into one 

makoali123

Once again, thank you I will post the drafted paragraphs here. 

Coupon-mad

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Henderson estoppel defence true

makoali123

Good evening, please see my attached defence any feedback is appreciated

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. The Defendant does not accept that a contravention occurred on 14/05/2024, as alleged.  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.

3.1 Due to the length of time, the Defendant has no recollection of the day in question. The Defendant has parked in this car park many times while shopping at Monks Cross shopping Centre with evidence of transactions available to submit when required. The Defendant was unaware of parking restrictions in place. The Defendant had not noticed any ‘Prominent’ signage close to where the vehicle was parked, showing the terms and conditions for use. The small signage was not suitable to alert a motorist, leading to an unawareness of any parking restrictions. The Defendant works locally and often goes shopping more than once a day at this car park. This very much may be a double dip ANPR error, though as previously stated the Defendant has no recollection of the day in question. 

followed by the rest of the template. This is one of two claims so I will write Estoppel defence at the end of the second claim. See other post.

thank you

Coupon-mad

Very good!

makoali123

Good morning, 
a letter and an email this morning. The court has asked for a new POC to be written, I have received this and now can reform my defence. 

I understand that the template has changed from when I last did this. Should I include more information photos of signs etc? Or should a lot of that still wait for my witness statement. 

Any advice on writing this is appreciated. 

Thank you! 

Gr1pr

Changes to a defence are by striking out, or adding information using red ink,  but the previous defence must be used with suitable changes made in red ink

So not replacing the old one with a new one 

No exhibits etc are submitted with any defence,  the WS bundle time is the correct stage for those

makoali123

Thanks Gripr, I must have misunderstood apologies, the ruling mentions I can send a defence in substitution for the previous defence. 

Would it be worth writing over the last one in red ink? To match the current template changes? 

If not I will just wait for the witness statement stage, though will start preparing now. 

Thanks! 

Le_Kirk

Gr1pr said:

Changes to a defence are by striking out, or adding information using red ink,  but the previous defence must be used with suitable changes made in red ink

So not replacing the old one with a new one 

No exhibits etc are submitted with any defence,  the WS bundle time is the correct stage for those

makoali123 said:

Thanks Gripr, I must have misunderstood apologies, the ruling mentions I can send a defence in substitution for the previous defence. 

Would it be worth writing over the last one in red ink? To match the current template changes? 

If not I will just wait for the witness statement stage, though will start preparing now. 

Unusually the judgment/order does say that the defendant can send to the claimant/court a defence in substitution rather than the more usual amended defence.

Coupon-mad

makoali123 said:

 

the ruling mentions I can send a defence in substitution for the previous defence. 

I'd do a new defence and send it as a signed & dated PDF to York Court.

I think you can just write a new one and replace the old one without fiddly strike outs, because you have permission from DJ Mark to substitute your old defence with a new one.

You could adapt this new wording (below).

NB: I am suggesting some wording based on my experience. It's opinion, not legal advice and I'm not conducting litigation for you.

The choice of defence wording is your decision!

In the County Court at York

Claim no xxxxxxxx

DEFENCE

1. The allegation(s) and supposed heads of cost are denied; no charges, fees or damages were incurred and the claim exceeds both the Code of Practice £100 cap and the maximum sum set in law. Pursuant to Schedule 4 of the Protection of Freedoms Act 2012 ('the POFA') the claimed sum is exaggerated and unrecoverable; ref: Explanatory Note 221: 'The creditor may not make a claim against the keeper ... for more than the amount of the unpaid parking related charges as they stood when the notice to the driver was issued (para 4(5))'.

2. It is denied that there was agreement to pay £100 or any sum at all to the Claimant, in damages or under contract. The Consumer Rights Act 2015 (s71) mandates a 'test of fairness' duty on Courts and sets a high bar for prominence of terms and 'consumer notices'. Paying regard to Sch2 (examples 6, 10, 14 & 18), also s62 and the duties of fair, open dealing/good faith, the Defendant notes after returning to the retail park to look at the supposed contract (hitherto unknown to them) that this Claimant uses wordy terms and notices with no damages specified above the Parking Charge ('PC'). The signs are sparsely dotted around with entire lines of bays with no sign at all. Of those signs that do exist, some are faded and all are placed on poles so high that the terms cannot be read. To form a contract, there must be an offer and agreement but the signs are not sufficiently prominent to be 'bound to be seen'. The Defendant had never seen the terms until they made a trip back to the site after the shock of the postal PC.

3. In fact, there are two separate poorly pleaded (but near duplicate details) claims against the Defendant, which should be consolidated by the allocating judge (with this amended defence replacing both initial defences). Alternatively, the Defendant respectfully asks that the second claim be struck out under the doctrine of cause of action estoppel. The Defendant has already worked on three defences now, and should not be burdened with booking leave from work to attend two hearings about near-duplicate PC claims, which this Claimant is likely to discontinue at the eleventh hour because by all accounts, they always do. The other claim number is xxxxxxx. 

4. Due to the length of time, the Defendant has no specific recollection of the day in question or whether they or another driver may have visited twice that day over 18 months ago. The Defendant has parked in this car park many times while shopping at Monks Cross Shopping Park. The signage was unremarkable compared to the large lettering on banners and posters all over the site advertising offers from the retailers and no terms from G24 were noticed or read on any occasion. The Defendant had never heard of the Claimant, whose signs were not sufficient or adequate to fairly alert a motorist, leading to a genuine unawareness of any parking restrictions.

5.  Further, the Defendant disputes that they would have left the car parked for more than 4 hours, not that the Claimant has stipulated the times of the alleged 'overstay'. No evidence has been supplied. Despite the amended Particulars, these are still very basic: the Defendant doesn't know if it was supposedly 15 minutes over? Ten hours over? It should be noted that drivers of the vehicle sometimes shop more than once a day at this car park, e.g. before and after work. This very much may be a situation known as a 'double dip' ANPR error, though as previously stated the Defendant has no recollection of the event. The Claimant is put to strict proof of all camera captures of the vehicle traversing the site during the (unspecified) timeline. 

6. DVLA keeper data is only supplied on the basis of prior written landowner authority. This Claimant (a landowner's agent unless proven otherwise) is put to strict proof of their standing to sue and a copy of their landowner agreement, including hours of operation, tariffs, grace periods, schedules and a verified map of the position of signs and boundary of the site signed by the landowner, not just a mocked up Google Maps aerial view.

7. This bulk litigation model is run by a handful of debt recovery agencies ('DRAs') on a no-win-no-fee basis. The Claimant seeks false 'damages' and improper interest with the object or effect of unjustly enriching them and/or DCB Legal. Via a convoluted arrangement, when claims are paid in full by Defendants out of fear or after default CCJs, both the creditor and their legal reps are believed to emerge with a share the profits from the exaggerated damages and interest. The Claimant is put to strict proof otherwise.

8.  DCB Legal Ltd were only up and running in 2018 yet they now report profits in millions of pounds p.a., which strongly suggests that they may gain from more than just a fee paid by parking clients on success, plus the fixed £50 Legal Fees that can be added to small claims of this amount. This year, the MHCLG echoed the last Government's concerns that there is a 'market failure' here with significant disadvantage and detriment inflicted in bulk, affecting millions of motorists every year. Many solicitor DRAs in this industry reportedly 'front' the court claim fees in each case and thus have an unusual monetary interest in every claim. If so, this represents systemic abuse of the court process that the Defendant understands has never been properly examined. It cannot be right that:

(a)  a parking operator gains from a share of the spoils of the purported 'DRA fee' and thus makes more money from later stage cases than the face value of a PC if paid in full earlier, and

(b)  potentially champertous claims exaggerate the quantum in every boilerplate claim, by:

(i) pre-loading fixed interest as if it was part of the alleged debt. S69 of the County Courts Act 1984 grants courts a discretionary power to award simple interest but these claims from DCB Legal seek 8% (calculated on an unconscionably high sum from an unspecified date) pre-loaded on the top line of claims. This means improper interest is automatically granted for every default CCJ (the vast majority of cases, hundreds of thousands of cases p.a.) and it is further questioned whether the legal reps keep the 8% interest instead of the creditor; and

(ii) adding a fake sum layered on top of the PC, pleaded vaguely as 'damages'. This is double recovery but these sums are wrongfully banked by parking firms and/or their legal reps, who are believed to share the exaggerated profits in every default CCJ case.

9. The very minor costs of automated pre-action reminders and a Letter before Claim are standard costs already accounted for in the rationale of the high fixed sum of a PC at full rate, according to binding case law.

10. Attention is drawn to the binding judgments in:

(i) ParkingEye v Somerfield Stores ChD [2011] EWHC 4023(QB) which is on point and remains the only parking case law that directly addressed the abuse of false 'admin costs' attempting to be added on top of an already doubled PC. HHJ Hegarty (High Court, ratified by the CoA) held that hiking a £75 PC - already increased from £37.50 - up to £135 was not justified and 'would appear to be penal' (ref: paras 419-428).

(ii) ParkingEye had dropped this punitive enhancement by the time of ParkingEye v Beavis [2015] UKSC67 which dealt with a 'typical' ANPR operation, i.e. not hands-on car park 'management' because no staff attend sites on foot to monitor bays and operators are not responsible for the tarmac surface or shoppers' safety. This business model solely involves AI cameras capturing images of cars then churning out and bombarding registered keepers with automated demands, either sent by the operator or a third party sub-contractor (it makes no difference who sends the letter-chain: it cannot be counted twice).

11. Only reasonably foreseeable costs arising from an alleged breach - and only if stipulated prominently on the contract (sign) - may be claimed and they must be accounted for within the PC already. The Supreme Court judges in Beavis made it clear in several paragraphs, that the pre-action costs of the operation which are attributable to a motorist in breach were very low indeed and are more than covered by the PC:

At para 98: The £85 PCs 'provided an income stream to enable ParkingEye to meet the costs of operating the scheme and make a profit.'

At para 99: ParkingEye 'meets the costs of doing so from charges for breach...'

At para 100: 'None of this means that ParkingEye could charge overstayers whatever it liked. It could not charge a sum which would be out of all proportion to its interest. [...] But there is no reason to suppose that £85 is out of all proportion to its interests. The trial judge...found that the £85 charge was neither extravagant nor unconscionable having regard to the levels imposed by local authorities'.

At para 143: 'The qualification and safeguard is that the agreed sum must not have been extravagant, unconscionable or incommensurate with any possible interest in the maintenance of the system...'

At para 193: The scheme 'covered Parking Eye’s costs of operation and gave their shareholders a healthy annual profit.'

At para 198: 'The charge has to be and is set at a level which enables the managers to recover the costs of operating the scheme. It is here also set at a level enabling ParkingEye to make a profit.'

At para 255: 'Where the test is to be applied to a clause fixing the level of damages to be paid on breach, an extravagant disproportion between the stipulated sum and the highest level of damages that could possibly arise from the breach would amount to a penalty and thus be unenforceable.'

At para 307: the £85 PC 'far exceeded any amount which was likely to be recoverable as damages for breach of contract or trespass.'

12. Yet this Claimant seeks as 'damages' not only a £100 PC but also a double counted sum layered on top under the excuse of it being a DRA fee for the exact same debt demands, soft trace and template LBC that the Supreme Court held was more than covered by the PC itself. The total claimed on the top line of this claim is certainly extravagant and unconscionable, being more than twice the sum in Beavis, where the judges heard that the £85 invoices generated such a huge profit after costs were accounted for, that a surplus of £1000 per week was paid to that landowner. 

13. Contrary to misinformation spread by the private parking industry who like to spin the line that 'the Beavis case didn't deal with costs', the truth is highlighted in bold in the quoted paragraphs above, to prove that the pre-action costs of an automated ANPR business model were thoroughly considered by the Supreme Court.

14. As well as having a legitimate interest basis, the £85 PC escaped being dismissed as a penalty because it was a self-financing, reasonable and not extravagant business model from typical ANPR 'specialists' in that the PC itself covered 'all costs' arising from a breach. And that sum was agreed under contract because it was stipulated in bold on the 20+ signs. The minor costs covered by the PC included DVLA look-up (£2.50) plus a Credit Reference Agency trace (under 30 pence in bulk) and all 'letter chain' costs: i.e. the template reminders that were mandatory since 2012 in the BPA Code of Practice plus a Letter before Claim (current total cost using ZatPark software: £1.88 per letter whether sent by a parking firm or by an agent). Thus, these are standard costs within the PC model, not extra 'damages' to be counted again.

15. The parking sector has been getting away with counting the pre-action 'soft trace and letter chain' costs twice for years. It is the task of the MoJ and/or the MHCLG to stop this clear abuse. In 2022 a Government Minister called this double recovery aspect: ‘extorting money from motorists’. The pre-action stage is neither an extraordinary, remote or extra cost and nor is it 'enforcement'. Template pre-action letters are the very crux of the business model of any ANPR operator and do not fall outside of their usual work. Whether issued by the operator or by a third party, these demands are the equivalent of ParkingEye's in-house 5 letters which were scrutinised in the evidence placed before the Supreme Court.

16. If a court (or the Government, for that matter) was to be misled and allowed the pre-action stage to be counted as a separate 'damages' cost or fee (even a nominal sum extra) it would:

(a) breach the Digital Markets, Competition and Consumers Act 2024 because the false added cost is not stipulated on the signs. Note that this unfair cost now kicks in on day 29, due to the BPA and IPC colluding to create a Joint Code of Practice taking a hatchet to the MHCLG's intended Code. Both trade bodies are riddled with conflicts of interest (both the IPC's owner Will Hurley and the BPA's President Mike Marrs having personal connections to various parking case  DRAs) so it is no surprise that they currently 'allow' double counting of what they call 'DRA costs', and

(b) breach the POFA 2012 schedule 4 because any bolt-on cost added on top of the specified PC is not 'parking related charges' of which 'adequate notice' was given to the driver on prominent signage, and

(c) have the knock-on effect of rendering the PC itself unrecoverable. A PC that is cut adrift from the costs arising from a breach (by repackaging them instead, as added 'damages') would leave the core PC 'all charge and no substance'. A £100 PC is already disproportionate at twice the level of a Local Authority PCN, so if it were stripped of another Supreme Court pillar (that a major function of a high PC is that it must cover all costs and profit) it would have no valid legs to stand on. An empty PC based upon a bare deterrent value alone would be an unrecoverable penalty and could not pass muster under the CRA 2015 and by interpreting Beavis correctly.

17. The Defendant has spent hours of time on this case, responding three times now, to very poor Particulars in two abusive boilerplate claims, and now seeks fixed costs and further costs (CPR 46.5). The most common outcome of defended DCB Legal cases is late discontinuance, making Claimants liable for Defendant's costs (r.38.6(1)). Whilst this does not 'normally' apply to the small claims track (r.38.6(3)) the White Book has this annotation: '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 amended 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.

Signed:

Defendant's name:

Date: