Defence against DCB Legal for Smart Parking

basilpeach

Hi thread.

Thanks for it all so far. I have my court date through for April. My witness statement is due early March. I haven't yet received the claimant's WS but have got started on mine.

Wondering if anyone feels able to have a read through and let me know any edits you'd make.

TIA!

Claim No: XXX

Claimant: Smart Parking Ltd (via DCB Legal)

Defendant: XX

1.   I am XX of XX, and I am the Defendant against whom this claim is made. The facts stated below are true to the best of my knowledge and belief, and my account has been prepared based upon my own knowledge.

2.   In my statement I shall refer to exhibits supplied with this statement, referring to them by sequential Exhibit number (XX1, XX2, etc.). My Defence is repeated and I will say as follows:

 

FACTS AND SEQUENCE OF EVENTS

3.   This claim concerns an alleged parking contravention at a Co-Op car park on 04/08/2020 - nearly six years ago at the time of this hearing. I was the registered keeper of the vehicle in question. I was not driving the vehicle on that date, and after such a significant passage of time I have no recollection of who was driving. I am unable to identify the driver, and I am under no legal obligation to do so.

4.   The free parking period at the site was 3 hours. The Claimant alleges the vehicle was present from 10:19 to 14:05, a total of approximately 3 hours and 46 minutes, representing an alleged overstay of only 46 minutes beyond the free limit. I do not accept that this constitutes a clear or deliberate breach warranting a charge of any kind, let alone one of the extravagant sums now claimed. Any overstay, if it occurred at all, was minor and not the product of any intent to evade parking conditions.

5.   I received the original Parking Charge Notice ('PCN') at the time. However, I received no follow-up letters or pre-action correspondence from Smart Parking Ltd or any other party thereafter in 2020 or the years following. I was first contacted by DCB Legal in 2025, some five years after the alleged event. The Claimant has therefore failed to pursue this matter in a timely fashion. This prolonged delay has made it impossible for me to gather contemporaneous evidence, identify any driver, or recall the specific circumstances of the day. This is highly prejudicial to my defence.

6.   I have attended the site and observed the signage. My photographs are exhibited at XX1. The signs at the car park are inadequate and non-compliant for the following reasons:

      (i)  There are no signs at the car park entrance — a driver entering the car park would not be met with any notice of terms and conditions or the existence of a parking charge.

      (ii) The signs that do exist are small, difficult to read, and positioned in such a way that they are not clearly visible to a driver in a moving vehicle.

      (iii)            The signs refer drivers to the store entrance for full terms, but the store entrance sign is positioned at the back of the entrance, invisible to a person who has entered the store after parking; and

      (iv)The signs are poorly lit and/or positioned, making them further difficult to observe in normal conditions.

 

7.   For a contract to be formed through conduct, there must be an offer that is clearly communicated before the contract is concluded. The inadequate and obscured signage means no contract was ever properly offered, let alone accepted. The Claimant cannot impose obligations on a driver who had no reasonable means of discovering those obligations. This is consistent with the 'red hand rule' in Spurling v Bradshaw [1956] 1 WLR 461, Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ 2, and Vine v London Borough of Waltham Forest [2000] CA, where a defendant succeeded because there was 'the absence of any notice on the wall opposite the parking space'.

 

KEEPER LIABILITY AND POFA 2012

8.   I was not the driver on 04/08/2020. The Claimant therefore cannot pursue me as registered keeper unless they have strictly complied with the Protection of Freedoms Act 2012 ('POFA'), Schedule 4. Research has shown that Smart Parking Ltd has never used the POFA 2012 and has never been able to hold registered keepers liable. Outside the POFA, there is no legal mechanism by which a parking firm can invoke keeper liability. The solicitor signatory on the claim form is therefore knowingly or negligently misleading the Court in citing that legislation.

9.   This point has been tested on appeal in private parking cases on two occasions:

      (i)  In Excel Parking Services Ltd v Anthony Smith (Manchester Court, June 2017, C0DP9C4E), HHJ Smith overturned a District Judge's error and found that where the registered keeper was not shown to have been driving, they cannot be held liable outside the POFA. He admonished Excel for attempting to rely on a bare assumption that the Defendant was driving or acting as agent for the keeper. The appeal was allowed and Excel's claim dismissed.

      (ii) In Vehicle Control Services Ltd v Ian Edward (Teesside Combined Court, April 2023, H0KF6C9C), HHJ Gargan held that a registered keeper cannot be assumed to have been driving, and no adverse inference can be drawn from a keeper's inability or unwillingness to nominate a driver. He concluded: 'simply because somebody is a registered keeper, it does not mean on the balance of probability they were driving on this occasion.' The appeal succeeded and the claim was dismissed.

 

EXAGGERATED AND UNLAWFUL SUM

10. The Claimant seeks £170 as the core 'parking charge'. No private parking charge notice could lawfully have been issued for £170 on private land in August 2020. The applicable Code of Practice at the time capped parking charges at £100. Pursuant to Schedule 4, paragraph 4(5) of the POFA, a creditor may not claim against the keeper for more than the unpaid parking charges as they stood when the notice to the driver was issued. The claim therefore exceeds the maximum recoverable sum as a matter of law.

11. In addition to the inflated core charge, the Claimant has added a further sum by way of 'damages' or 'debt recovery fees', bringing the total to £327.52 including interest. I say that these fees were not genuinely paid out or incurred by the Claimant. The Department for Levelling Up, Housing and Communities ('DLUHC') published a draft Impact Assessment on 30 July 2023 which reveals that, based on information provided by the parking industry itself, the true cost of the pre-action 'debt recovery' stage is a mere £8.42 per case. The Claimant has routinely added a sum many times this amount, representing a profit centre for their legal representatives rather than a genuine cost. This constitutes double recovery.

12. In ParkingEye Ltd v Somerfield Stores ChD [2011] EWHC 4023 (QB), HHJ Hegarty held (in paragraphs 419-428, ratified by the Court of Appeal) that unspecified 'admin costs' inflating a parking charge to £135 were disproportionate to the minor cost of an automated letter-chain and 'would appear to be penal'. The same reasoning applies here. The Claimant has not incurred any meaningful additional costs. The full parking charge (however inflated) already more than covers the operational costs, as confirmed by the Supreme Court's analysis in ParkingEye Ltd v Beavis [2015] UKSC 67, where an £85 charge was found to cover all costs of the business model and generate a profit.

13. I further note that interest appears to have been applied on the entire inflated sum as if that full amount became due and owing on the date of the alleged parking event. This is improper. Any recoverable interest could only be calculated on any lawfully recoverable sum, and the delay in bringing proceedings is entirely the fault of the Claimant.

 

PARKINGEVE v BEAVIS IS DISTINGUISHED

14. The Supreme Court in ParkingEye v Beavis [2015] UKSC 67 made clear that the penalty rule is 'plainly engaged' in parking cases and that each case must be determined on its own facts. Critically, the Beavis case was unique: it involved prominent yellow and black signage displaying the charge in the largest and boldest text, in a busy retail location with a compelling commercial justification. That case set a high bar that this Claimant has plainly failed to meet. The brief, conspicuous Beavis signs (see Exhibit XX2 for comparison) stand in stark contrast to the small, obscure, poorly positioned and largely invisible signage at this Co-Op car park.

15. Paraphrasing the Supreme Court, deterrence is likely to be penal if there is a lack of a 'legitimate interest' extending beyond compensation flowing directly from the alleged breach. The intention cannot be to punish a driver, or to present them with hidden terms, unexpected obligations or 'concealed pitfalls or traps'. In the present case, the Claimant has fallen foul of those tests. The inadequate signage, the absence of entrance notices, and the obscure placement of full terms behind a store door all amount to precisely the kind of concealed pitfall that renders the charge unenforceable.

 

CONSUMER RIGHTS ACT 2015

16. Section 71 of the Consumer Rights Act 2015 creates a duty upon Courts to consider the test of fairness, including whether all terms and notices were unambiguously and conspicuously brought to the attention of the consumer. Signage must be prominent, plentiful, well-placed, and all terms must be unambiguous. The Claimant has breached the CRA due to unfair and unclear terms and notices pursuant to s62, having regard to examples 6, 10, 14 and 18 of Schedule 2, and the requirements of fair and open dealing and good faith. Claiming costs on an indemnity basis is unfair per the CMA Unfair Contract Terms Guidance (CMA37, para 5.14.3).

 

LANDOWNER AUTHORITY

17. DVLA keeper data is only supplied based on prior written landowner authority. The Claimant (an agent) is put to strict proof of their standing to sue and the terms, scope, and dates of any landowner agreement, including the contract, updates, schedules, and a map of the site boundary as set by the landowner.

 

CONCLUSION

18. The claim is entirely without merit. It is brought in respect of an alleged minor overstay of 46 minutes, at a car park with demonstrably inadequate and non-compliant signage, nearly six years after the alleged event, against the registered keeper (rather than any identified driver), for a sum that grossly exceeds any lawfully recoverable amount. The Claimant has no cause of action against me as registered keeper, has failed to comply with the POFA 2012, and has knowingly exaggerated the quantum claimed. The Court is respectfully invited to strike out or dismiss this claim in its entirety.

19. In the matter of costs, the Defendant asks:

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

      (b) for a finding of unreasonable conduct by the Claimant, seeking costs pursuant to CPR 46.5.

20. Attention is drawn to the possibility of a late Notice of Discontinuance. Whilst CPR r.38.6 states that a Claimant is liable for costs after discontinuance, this does not normally apply to the small claims track (r.38.6(3)). However, the White Book states (annotation 38.6.1): costs may be contended for if a party has behaved unreasonably (r.27.14(2)(dg)). Given the age of this claim, the lack of pre-action compliance, and the knowingly exaggerated quantum, any discontinuance in this matter would be unreasonable within the meaning of those provisions.

 

 

STATEMENT OF TRUTH

I believe that the facts stated in this witness statement 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.

 

 

Castle

When is the Hearing Fee due?

basilpeach

19th March, how come? :)

Gr1pr

https://forums.moneysavingexpert.com/discussion/comment/81900336#Comment_81900336

Because it matters, because DCB LEGAL discontinue just before the hearing fee deadline date, hence why you were asked for that date

Its usually hearing fee deadline date, followed by WS deadline, followed by a pencilled in hearing date last, so the chronological order matters, 3 crucial dates

Plus, keep checking your email inbox and spam folders for their N279 discontinuation document, typically before the hearing fee deadline date

basilpeach

Ok great, so by 19th March I'll know whether this is actually going to go to court or not.
Unfortunately my WS deadline is first, so I've still had to write that.
I will keep checking emails, thanks!

Nellymoser

Do check your junk folder too their emails often end up there.

Coupon-mad

https://forums.moneysavingexpert.com/discussion/comment/81900369#Comment_81900369

You need to add Smith & Edward as exhibits (the court transcripts) which are lying around the forum lots of times.

Remove the paras after this heading:

EXAGGERATED AND UNLAWFUL SUM


and replace that section with the more up to date wording from the Template Defence which I edited last week re the double recovery point.

basilpeach

Ok, so I've changed this bit to

EXAGGERATED AND UNLAWFUL SUM

 

10. The Claimant has improperly added a false 'fee' or damages to the original Parking Charge (PC). This sum is not legally recoverable and constitutes an attempt at double recovery, which is unreasonable conduct under CPR 27.14(2)(g). The binding Supreme Court judgment in ParkingEye Ltd v Beavis [2015] UKSC 67 held that an £85 parking charge more than covered all the 'costs of enforcement' which HHJ Moloney had listed as the pre-action work of a DVLA look-up and a simple automated letter chain, including a LBC. The same heads of cost cannot lawfully be counted twice, and interest should also be disallowed. Exaggerated claims for impermissible sums are good reason for judges to intervene, and the court is invited to strike out the claim using its powers under CPR 3.4.

11. The Parking (Code of Practice) Act will curb rogue conduct by operators and debt recovery agents (DRAs). The Government launched a Public Consultation likely to herald a ban on double recovery 'fees', which the relevant 2022 Minister called ‘extorting money from motorists’. Both the previous and present Governments found that the high profits may be indicative of firms having too much control 'indicating that there is a market failure'. Pursuant to Sch4 of the Protection of Freedoms Act 2012 ('POFA') the claim exceeds the maximum sum and is unrecoverable: see 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))'. There is no keeper liability for added false fees and the POFA specifically states that 'double recovery' is not allowed if a creditor uses any other remedy.

What do you think?

Have also found the transcripts you mentioned and added them in :)

Coupon-mad

You need to also link to HHJ Moloney's original Beavis case judgment and draw the judge's attention to para 3.4 of it (as the Template Defence does later on):

The transcript is linked here:

https://ukscblog.com/case-preview-parkingeye-limited-v-beavis/

basilpeach

Letter from DCB Legal yesterday, they have discontinued, Thank you for all of your help!!!