Help with Defence against DCB legal

TheMaskedPepper

My partner has recivied a claim for parking, at the time she was the registared keeper (no longer is) but she was not driving at the time. There a mulitple people on the insurance to drive the vehicle and the keeper was not one of them.

We do not have an orginal request from the NPC, so I don't know how long the vehicle was parked, but I have been told it was only a few minutes, and the bill has not been contested at any stage.

Because of this I am unsure of how the defence should be worded, I was thinking something like below. I'm unsure what else to include, I have seen pictures of the sign on this form, which could be confusing as you may or may not have 15mins, but I don't know how long the driver was parked

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 06/12/2024, 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. 

3.1 The Keeper at the time was not the driver, and was never the driver of the vehicle

Nellymoser

I'm unsure what else to include, 

Are you including the 30 paragraphs in the Template defence Announcement thread?

TheMaskedPepper

Hi Nellymoser,

Yes, I used the template on the tread linked below, and these would be the changes to the 3rd paragraph

https://forums.moneysavingexpert.com/discussion/6108153/suggested-template-defence-to-adapt-for-all-parking-charge-cases-where-they-add-false-admin-costs/p1

Thank you

Coupon-mad

3.1 The Keeper at the time was not the driver, and was never the driver of the vehicle

That should say the Defendant.

Did she never drive that vehicle?

TheMaskedPepper

Hi Coupon-Mad,

Thank you I will make the change, She never drove the vehicle and was never insured to drive the vehicle. It was a gift and when it was fully paid, we transfered the ownership

Coupon-mad

OK so I'd remove 3.1 and instead put this at the end of paragraph 2:

The Defendant admits that were the registered keeper but they were not insured on this vehicle and never drove it. The Claimant is put to strict proof of liability and their allegation.

------------------------

From the Template, I'd remove the stuff about the DLUHC and the draft IA - it's getting old and I will be removing it from the template - and - because they accused the driver of failing to pay a tariff - add and edit this to suit (below) courtesy of @troublemaker22 

...but re-number it to come AFTER your para 3, then add most of the Template (shown in the thread as para 4 onwards, renumbered) but removing the DLUHC & draft IA bits: 

1. The breach complained of is that the driver (not the Defendant) allegedly failed to pay the parking tariff specified in the Claimant’s onsite notices.

2. The Supreme Court considered the application of the rule against penalties in precisely this situation in the leading case of  ParkingEye Limited v Beavis ([2015] UKSC67):

The true test [of whether a term is a penalty] is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation (per Lords Neuberger and Sumption at paragraph 32).

3. The term at issue in this case is the one imposing a secondary obligation to pay £100 for breach of the primary obligation to pay the tariff.

4. The Supreme Court held that the £85 parking charge in Beavis was a secondary obligation that engaged the penalty rule but was saved by the special circumstance of the parking arrangements in that case.

[T]he £85 charge had two main objects. One was to manage the efficient use of parking space in the interests of the retail outlets, and of the users of those outlets who wish to find spaces in which to park their cars. This was to be achieved by deterring commuters or other long-stay motorists from occupying parking spaces for long periods or engaging in other inconsiderate parking practices, thereby reducing the space available to other members of the public, in particular the customers of the retail outlets. The other purpose was to provide an income stream to enable Parking Eye to meet the costs of operating the scheme and make a profit from its services, without which those services would not be available. (Lord Neuberger and Lord Sumption at paragraph 98).

In our opinion, while the penalty rule is plainly engaged, the £85 charge is not a penalty. The reason is that although ParkingEye was not liable to suffer loss as a result of overstaying motorists, it had a legitimate interest in charging them which extended beyond the recovery of any loss.

The scheme in operation here (and in many similar car parks) is that the landowner authorises ParkingEye to control access to the car park and to impose the agreed charges, with a view to managing the car park in the interests of the retail outlets, their customers and the public at large. That is an interest of the landowners because (i) they receive a fee from ParkingEye for the right to operate the scheme, and (ii) they lease sites on the retail park to various retailers, for whom the availability of customer parking was a valuable facility. It is an interest of ParkingEye, because it sells its services as the managers of such schemes and meets the costs of doing so from charges for breach of the terms (and if the scheme was run directly by the landowners, the analysis would be no different). As we have pointed out, deterrence is not penal if there is a legitimate interest in influencing the conduct of the contracting party which is not satisfied by the mere right to recover damages for breach of contract. (ibid at paragraph 99)

5. Those purposes are not served by the secondary term in this case. The Claimant charges motorists for parking at this car park, from which it receives an income stream. There is no purpose of deterring motorists from occupying parking spaces for long periods.  On the contrary, the legitimate commercial interests of the operator are served by encouraging motorists to stay, and pay, for long periods. In short, the Beavis exception cannot apply to failure to pay the tariff in a pay-to-park car park and the secondary obligation in the present case is, therefore, a penalty and unenforceable.

TheMaskedPepper

Thank you,

I have removed all paragrahs relating to DLUHC and the draft IA and added the above, and renumbered all paragraphes. Below is what I will include for paragraphs 1 -3, as all others will be as shown above or as in the template. I do have one question in relation to paragraph 1. Should it say "It is denied that any conduct by the driver was in breach of any term" or "It is denied that any conduct by the defendant was in breach of any term" ?

Kind regards

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, but was not the driver at this time

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 06/12/2024, 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 Defendant admits that were the registered keeper but they were not insured on this vehicle and never drove it. The Claimant is put to strict proof of liability and their allegation.

Coupon-mad

Yep looks good plus the addition after that, as I quoted, then most of the template defence (minus the DLUHC / draft IA stuff).

Should it say "It is denied that any conduct by the driver was in breach of any term" 

Yes. 

TheMaskedPepper

Thank you, I shall leave as the driver, and submitt to the email address in the guide.

Thanks again