Court next week - DCBL - tips welcome

chickensoupman

Hi,

Long story short since I didn't create a thread at the time (as I'd done this before for another PCN from a different company and it got dropped): My wife got a PCN last year for a 3 minute overstay in a "2 hour free" retail car park. 

I've been helping her with the paperwork (in her name of course), I've done all the steps in the newbies thread, and sent the witness statement a few weeks ago. Got the claimants witness statement from our esteemed Mr. Burgess with the usual bull, that my defence was based on a well circulated online template, photos of their signs, etc. 

They have paid the court fee and court date is set for Tuesday the 15th, I was hoping they would discontinue before the date but that does not seem to be the case (Unless they do the day before). Any tips for things to say in court? I've got the usual, photos of the signs that aren't clear, All of that. This is a single PCN, claiming 227£. I would represent my wife in court but I assume that is not possible?

Thanks

Car1980

A 3 minute overstay? Definitely?

Presumably you used the words "de minimis" in your defence? If not that would be the first thing I'd be saying - "What are we here for a 3 minute overstay? It's the very definition of de minimis."

They'll still probably discontinue or not turn up, even if they've paid the hearing fee.

DE_612183

Car1980 said:

A 3 minute overstay? Definitely?

Presumably you used the words "de minimis" in your defence? If not that would be the first thing I'd be saying - "What are we here for a 3 minute overstay? It's the very definition of de minimis."

They'll still probably discontinue or not turn up, even if they've paid the hearing fee.

after they try and get you to settle for a lower amount...

Coupon-mad

It cannot be re a 3 minute overstay. Impossible. Re-read JB's WS again to see what the allegation really is.

chickensoupman

Sorry, 13 minutes, not 3. 

Gr1pr

chickensoupman said:

Sorry, 13 minutes, not 3. 

So what is her defence and WS saying about that 13 minutes overstay on a free to park for 2 hours car park   ?

Its a minimum 10 minutes,  but sometimes longer is a point of contention, such as

Was there a delay beyond her control in leaving on time  ?  Congestion,  blocked roads etc  ?

Her defence and WS are already submitted, EXCEL and VCS do tend to go to a hearing,  especially in cases like these, similar to the Beavis case for example   ( an overstay is an overstay,  be it 13 minutes or 53 minutes   )

You really are last minute dotcom on this one,  with no background information 

chickensoupman

Here's the relevant bits of their defence statement:

12. At the time of issue, my Company 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”).

13. The following was a Term of the Contract: - “Maximum Stay 2 Hours Commencing on Entry” “No return within 1 hour”

14. 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 driver failed to adhere to the terms of the Contract by parking as they did, thus breaching the Contract.

15. For the purpose of clarity, the Defendant entered the Land at 15:05:21 and exited the Land at 17:18:17, overstaying the maximum period permitted by 12 minutes and 56 seconds.

16. The Contract provides that a charge is payable by the driver upon breach, with payment falling due within 28 days.

17. A plan of the Land (“Plan”) showing the positioning of the signs is exhibited to this Statement at “EXHIBIT 4”.

18. A copy of the Notice to Keeper is exhibited to this Witness Statement at “EXHIBIT 5”.

iv. The Defendant questions whether the Particulars of Claim comply with the Civil Procedure Rules. I submit that the Claim was issued via the Civil National Business Centre and in this regard, I refer to Practice Direction 7E (“the PD”) which specifically provides the guidelines for doing so. I respectfully submit that the Particulars of Claim (“the Particulars”) 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 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.

v. It is my Company’s position that the Particulars 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 it contains if the Particulars were so insufficient as to prevent them from understanding the claim. Further, with respect, if the Defendant were of the genuine 5 belief that the Particulars of Claim were insufficient, the correct procedure would have been to make an Application to the Court. The Defendant has chosen not to do so. 

xi. The Defendant alleges that the core debt should not exceed £100.00. Respectfully, my Company is not attempting to recover more than £100.00 for the core debt. My Company is also seeking to recover an additional £70.00 as a debt recovery charge. The Terms displayed on the Land clearly state that this charge would be incurred as a result of nonpayment of the Parking Charge. Debt recovery is not my Company’s usual course of business, as such it would be unreasonable for my Company to incur the same. 

xii. The phrase ‘double recovery’ suggests the same amount is being recovered twice. This is not what is claimed, as explained later in this Statement.

xiii. The Defendant alleges that the sum claimed is inflated and unfair. Respectfully, the Terms on the Land clearly stated what would happen if the Parking Charge was not paid. If the Defendant did not agree to the Terms they should have sought alternative parking to avoid the risk of incurring a Charge. I submit that the Defendant was under no obligation to park on the Land and did so of their own accord. The Defendant breached the Terms, which they chose to agreed to, and should be liable for the same. 

xvi. 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.

28. The amount of the parking charge falls within the “between £50 to £100” bracket quoted at paragraph 111 of Parking Eye -v- Beavis [2015]. It is also in keeping with the guidelines given by the ATA: - Part 8.2.1 of the IPC Code states "parking charges must not exceed £100" 

29. The amount charged is set at a rate that covers the operational costs of the parking management scheme and acts as a deterrent, as was found to be appropriate in Parking Eye -v- Beavis [2015]. 

30. As payment was not made within the prescribed time, or indeed at all, the additional sum is claimed as a contractual cost pursuant to the Contract which states: - “If payment of the charge is not made in accordance with the payment terms, Excel Parking Services Ltd will be entitled to take debt recovery and legal proceedings to recover any outstanding charges, including interest and any additional costs incurred.” 

31. As set out above, the Parking Charge amount is intended to include the ‘operational costs’. It is submitted that debt recovery action is not an operational cost and as such claiming the costs of doing so would not fall foul of the 2015 decision.

32. The sum added is a nominal contribution to the actual costs incurred by my Company as a result of the Defendant’s non-payment, and capped at the amount permitted under the ATA Code. My Company’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 Company. This is not my Company’s usual business and, but for the Defendant’s refusal to pay, would not have been necessary.

33. 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.”

chickensoupman

Gr1pr said:

chickensoupman said:

Sorry, 13 minutes, not 3. 

So what is her defence and WS saying about that 13 minutes overstay on a free to park for 2 hours car park   ?

Its a minimum 10 minutes,  but sometimes longer is a point of contention, such as

Was there a delay beyond her control in leaving on time  ?  Congestion,  blocked roads etc  ?

Her defence and WS are already submitted, EXCEL and VCS do tend to go to a hearing,  especially in cases like these, similar to the Beavis case for example   ( an overstay is an overstay,  be it 13 minutes or 53 minutes   )

You really are last minute dotcom on this one,  with no background information 

Yes, it was mentioned that 13 minutes should be a taken as a resonable time to enter and exit, since the cameras are at the entrance of the car park, and that the car was effectively parked for less than 2 hours if you consider arrival, looking for parking (it was busy) and exiting at the end. They replied:

viii. The Defendant alleges that they ought to have been afforded a 10-minute Grace Period, meaning their overstay would have been for 3 minutes, which is unreasonable. Respectfully, a Grace Period is not a period of parking. A Grace Period is afforded at the end of a parking session to allow motorists sufficient time to vacate the Land. The Defendant ought to have exited the Land within the Grace Period to avoid the risk of incurring a Charge. The Land in question is not deemed to be of a considerable size and therefore the Grace Period afforded is adequate and reasonable. It is clear that the Defendant overstayed the maximum period permitted to park and the Charge was issued correctly. 

Gr1pr

That first reply is presumably incorrect 

The MY COMPANY is I assume  , VCS , meaning that it is their Witness Statement,  not defence statement,  because your wife is the Defendant   !

I suggest that you edit it accordingly 

So her defence is that due to the place being busy it took time to park after entering, and a greater time than the minimum 10 minutes grace period to leave after the parking session ended 

And at no time was the vehicle parked for more than the time allowed, the 2 hours 13 minutes was the total time on site and the driver left promptly when allowed to do so

chickensoupman

Gr1pr said:

That first reply is presumably incorrect 

The MY COMPANY is I assume  , VCS , meaning that it is their Witness Statement,  not defence statement,  because your wife is the Defendant   !

I suggest that you edit it accordingly 

So her defence is that due to the place being busy it took time to park after entering, and a greater time than the minimum 10 minutes grace period to leave after the parking session ended 

And at no time was the vehicle parked for more than the time allowed, the 2 hours 13 minutes was the total time on site and the driver left promptly when allowed to do so

Yes this is their reply, sorry if I wasn't clear

Gr1pr

Sp edit it accordingly,  removing the word Defence and replace it with witness statement,  so it makes sense when other people read it,  because there is a lot to read above