Defence after set aside hearing - Smart parking/DCB Legal

ArsonistMackerel

Hi guys, I need a little help with my defence. I've added a few things that are pertinent to my specific case, but I'm not sure if they're done correctly. I've highlighted deviations from the template in bold. Any advice would be appreciated.



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. Referring to the Particulars of Claim, paragraph 1 is denied. The Defendant is not indebted to the Claimant. Although the Defendant is the registered keeper, paragraphs 3 and 4 are denied. The Defendant is not liable and has been provided with no evidence of any breach of clear or prominent terms. The Defendant denies the claim in its entirety.
   
4. The Claimant seeks to rely on Schedule 4 of the Protection of Freedoms Act 2012 (POFA) to pursue the Defendant as the registered keeper of the vehicle, but the Claimant has not complied with the strict requirements of Schedule 4, so the solicitor signatory of the statement of truth on this claim incorrectly asserts reliance on Schedule 4 by citing that law. Specifically, the Claimant failed to meet the mandatory 14-day period for service of a Notice to Keeper under Paragraph 9(5). The alleged event occurred on [DATE], yet no Notice to Keeper compliant with Schedule 4 was served within 14 days from the Claimant. Instead, a debt recovery letter from a third-party agency was sent X days later. This failure is fatal to the claim. The Claimant cannot rely on Schedule 4 of the Protection of Freedoms Act 2012 to hold the Defendant liable as keeper, and the claim must fail. Further, the Claimant is put to strict proof of the identity of the driver. The Defendant has not been identified as the driver and is under no obligation to name the driver.
   
5. It is neither admitted nor denied that a term was breached, but to form a contract, any alleged contract must meet the requirements of clarity, fairness and transparency. 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 the signage at this location is unclear and ambiguous. Pursuant to s68, terms must be transparent and prominent; pursuant to s69, any ambiguous term must be interpreted in the manner most favourable to the consumer. Specifically the signage states "X hours from entry FREE" and "Y hours from entry £Z" but provides no tariff or terms for the intervening period, thereby rendering the alleged contract uncertain and unenforceable. This constitutes a 'concealed pitfall or trap'. The Claimant is put to strict proof with contemporaneous photographs.
   
6. 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).
   
7. 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). Neither requirement has 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.
   
8. 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.
   
9. 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.
   
10. Pursuant to Sch4 of the Protection of Freedoms Act 2012 ('POFA'), even if (which is denied) the Claimant complied with its strict requirements, 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.
    
11. 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

That's good!

Did you ask the judge for your £313 fee back from Smart, assuming they used an incorrect / unchecked address? Was it awarded? Or reserved?

ArsonistMackerel

https://forums.moneysavingexpert.com/discussion/comment/81946038#Comment_81946038

Thank you, that's very reassuring!

I used the help with fees online form and didn't have to pay anything. It was sent to the correct address, but a family member unfortunately misplaced the letter and didn't inform me about it. They, of course, didn't show up to the set aside hearing, and the judge was very reasonable and understanding. I think it also helped that I applied for the set aside within days of receiving the CCJ letter.

Coupon-mad

Very good. Defence looks fine but:

• don't send it to the CNBC of course, as this is at your local court now;
• copy in DCB Legal and in the email, encourage them to discontinue;
• consider also doing a WS and exhibits at the same time. This week there was a great one posted by @JackR1
• Show us the NoD when DCB Legal discontinue. Won't take them long!