ECP-DCB parking charge claim

Coupon-mad

I wouldn't bother.

The Beavis case was about automated ANPR crap but no-one at the Supreme Court (except one canny judge who dissented) showed any signs of being bothered about ANPR use or consumer rights week, which was ironically when they decided to reinvent the penalty rule.

wouldbebiker

ok thanks. On reflection, and after further research as advised by Gr1pr, think I'll go for a short and simple defence such as:

'The vague allegations in this claim provide no evidence that the Defendant has knowingly broken the terms of any contract with the Claimant, let alone done anything that justifies the payment of any damages. The claim is hugely exaggerated - no PCN can be £170 on private land. 

The Defendant has little recollection of the alleged events on the date in question due to the historic nature of the claim and the limited information provided within the Claimant’s Particulars of Claim. 

The defendant finds the Claimant’s behaviour vexatious and disproportionate.'

Is this enough?

Coupon-mad

Not on its own! Only if you intend putting that into the 10 paragraph defence that adds every other hook to hang your hat on later, that you may need.

And I would add this back in because it was 2021 and 5 years ago, I think ECP were not always POFA compliant:

"The Claimant is put to strict proof of all of the above and their full compliance with the POFA 2012 (the only route to keeper liability) which the Defendant believes was not the case with this Claimant's notices in 2021. Even if they were compliant, Schedule 4 of the Act caps the 'maximum sum' that can potentially be pursued at far less than £170."

And because of that, change this:

'The vague allegations in this claim provide no evidence that the Defendant has knowingly broken the terms of…'

to this:

The vague allegations in this claim provide no evidence that - 5 years ago - an unknown driver of that car knowingly breached the terms of…

wouldbebiker

Understood. Will make the changes and post new version.

wouldbebiker

Hello again, here's the new - full - version (template plus slightly edited 2 and my 3). Hope all is ok.

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 no knowledge of events, save that the vehicle is recognised and to confirm that they were the registered keeper.

3. The vague allegations in this claim provide no evidence that - 5 years ago - an unknown driver of that car knowingly breached the terms of any contract with the Claimant, let alone did anything that justifies the payment of any damages. The claim is hugely exaggerated - no PCN can be £170 on private land. The Defendant has no recollection of the alleged events on the date in question due to the historic nature of the claim and the limited information provided within the Claimant’s Particulars of Claim. The Claimant is put to strict proof of all of the above and their full compliance with the Protection of Freedoms Act 2012 (the only route to keeper liability) which the Defendant believes was not the case with this Claimant's notices in 2021. Even if they were compliant, Schedule 4 of the Act caps the 'maximum sum' that can potentially be pursued at far less than £170. The defendant finds the Claimant’s behaviour vexatious and disproportionate.

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))'.

Coupon-mad

Yep, all good.

wouldbebiker

Great. Many thanks for all your responses and advice, and all the work done on this forum. Will update as this goes through the usual hoops.

wouldbebiker

Hi, latest on this: Call today from DCB ‘representative’ offering to drop my ‘penalty’ from £320 to £230 to settle. I offered £10 which was rejected. No counter offer from him, end of very short conversation! Email received with same offer giving me seven days to pay up. Signed ‘Kind Regards’!!
Roll on next stage . . .