Another DCB Legal ECP claim - Overstay

hamza05

Thank you very much - I did the AOS stage yesterday.

Please see defence

1. The Claimant’s sparse case lacks specificity and does not comply with CPR 16.4, 16PD3 or 16PD7, failing to 'state all facts necessary for the purpose of formulating a complete cause of action'. Further, 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
2.  The allegation(s) are vague and liability is denied for the sum claimed, or at all. The delay in bringing proceedings lies with the Claimant, making retrieving material evidence difficult, which is highly prejudicial. The Defendant has little knowledge of events, save as set out below and to admit that they were the registered keeper.
3. The Defendant has seen not seen any 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 Defendant has little recollection of the events on the date in question due to the limited information provided within the Claimant’s Particulars of Claim. The Defendant makes no admission as to the identity of the driver. The Claimant has failed to provide sufficient details to establish the precise circumstances of the alleged contravention, including the specific duration of the vehicle’s stay within the car park. In the absence of such information, the Defendant can only refer to potential circumstances. It is possible that the date coincided with a local match day, during which the Claimant may allege that a reduced parking time limit applied. The Defendant was not aware that the date in question coincided with a match day and does not follow football, and therefore had no reason to anticipate that any temporary or reduced parking limit might apply. The Defendant has seen no evidence that any such reduced limit, if applicable, was clearly and prominently displayed so as to adequately bring it to the attention of motorists. Bank records indicate that a purchase was made at B&M store which is suited within the same land, suggesting that the vehicle may have been parked for the legitimate purpose of visiting the retail premises. It is also possible that traffic conditions in the area, particularly on match days, caused congestion and delays when attempting to exit the car park, which may have resulted in the vehicle remaining on site for longer than anticipated. These matters are raised purely as potential circumstances and do not constitute any admission of liability.
4. It is neither admitted nor denied that a term was breached but to form a contract, there must be an offer, acceptance, and valuable consideration (absent in this case). 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 that this Claimant reportedly uses unclear (unfair) terms/notices. On the limited information given, this case looks no different. The Claimant is put to strict proof with contemporaneous photographs.
5. DVLA keeper data is only supplied on the basis of 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 the landowner agreement, including the contract, updates, schedules and a map of the site boundary set by the landowner (not an unverified Google Maps aerial view).
6. To impose a PC, as well as a breach, there must be: (i) a strong 'legitimate interest' extending beyond compensation for loss, and (ii) 'adequate notice' (prominence) of the PC and any relevant obligation(s). None of which have been demonstrated. This PC is a penalty arising as a result of a 'concealed pitfall or trap', poor signs and covert surveillance, thus it is fully distinguished from Beavis.
7. Attention is drawn to:

(i) paras 98, 100, 193, 198 of Beavis (an £85 PC covered all costs and generated a huge profit shared with the landowner); the court should also read paragraph 3.4 of the original judgment by HHJ Moloney in Beavis, confirming what that authority means by 'costs of the operation', and

(ii) the binding judgment in ParkingEye v Somerfield Stores ChD [2011] EWHC 4023(QB) which remains unaffected by Beavis and stands as the only parking case law that references costs abuse. HHJ Hegarty held in paras 419-428 (his judgment later ratified by the CoA) that 'costs' inflating a £75 PC (already increased from £37.50) to £135 were disproportionate to the very minor cost of a letter-chain and 'would appear to be penal'. The court should note that HHJ Moloney referenced this case in Beavis.

8. 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'.

9. 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.

10. The Defendant seeks fixed costs (CPR 27.14) and a finding of unreasonable conduct and further costs (CPR 46.5). Parking cases now make up a third of all small claims which has overburdened HMCTS, causing the most CCJs of all sectors yet almost invariably discontinuing defended cases before hearings, which indicates a deliberate business model of systemic abuse and makes Claimants liable for 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))'.

hamza05

hi guys any comments on the defence before I submit I would be very grateful. Also is it worth emailing car park compony with receipt to see if the PCN can be cancelled?

Gr1pr

Paragraph 3 is too long, needs to be concise and to the point

Also needs splitting into smaller paragraphs

No its not worth emailing the claimant, because their lawyers are involved and its now a court claim

hamza05

How about this as this would cover all potential eventualities

3.The Defendant has seen no evidence of a breach of clearly displayed terms. The £170 claimed is excessive and unrecoverable for a private parking charge, and no loss has been incurred. Due to sparse Particulars of Claim, the Defendant has little recollection of the event and makes no admission as to the identity of the driver. The Claimant has failed to provide sufficient details, including the duration of the alleged stay. If the date coincided with a local match day with reduced parking limits, the Defendant was unaware of this and has seen no evidence that any such restriction was clearly displayed. Bank records show a purchase at the on-site B&M store, indicating legitimate retail use. Any extended stay may have been due to congestion when exiting, or a potential ANPR “double dip” error where separate visits are incorrectly recorded as a single stay. These points are raised as possible circumstances only and not an admission of liability.

Coupon-mad

Very good.

hamza05

Thank you very much for the support. I will submit the defence this week.

hamza05

1 week ago I got an email from DCB legal with N180 attached and wishing to proceed but have not received anything from the courts - do I just need to wait or is it better to give the small claim courts a call to see whats happening

Gr1pr

Just keep checking your MCOL claim history and continue to follow the 8 steps in the defence template thread in announcements