DCB Legal court claim – residential permit holder / authorised carer

Yarn_Bertha

Hi all, I want to post my defence and have used the template in the newbies thread. I have added my circumstances at paragraph 3. Please see below. Is it good to go or should I add or amend anything? Any advice will be appreciated, thanks.

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 and driver.

3. The claimant's particulars state the vehicle was parked on xxxxx Street. This is entirely false. Secondly, the claimant states no permit was displayed. This is also entirely false. In addition, the defendant was given permission to park their vehicle on the land by the landowner xxxxx City Council as they were caring for their elderly father, who has since deceased, during a time of great difficulty.

The permit in question was legitimately issued by GBP Management Ltd to be shared between three vehicles used by the Defendant and their siblings for caring duties. The permit was not vehicle‑specific and therefore did not display a registration number, a fact entirely within the Claimant’s principal’s knowledge and records.

The Claimant failed to allow any grace period whatsoever, contrary to the mandatory requirements of the relevant Code of Practice. Had even a minimal grace period been afforded, no charge would have been issued.

The continued reliance on the incorrect location (xxxx Street) is not a minor typographical error but a material defect. xxxx Street is a separate street several minutes’ walk away

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.

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

I'd switch it round a bit:

3. The claimant's particulars state the vehicle was parked on xxxxx Street. This is entirely false. The continued reliance on the incorrect location (xxxx Street) is not a minor typographical error but a material defect. xxxx Street is a separate street several minutes’ walk away. The Defendant therefore denies parking on the land pleaded and the Claim must fail.

3.1. Secondly, the claim states 'no permit' which is also false. The Defendant had just arrived to care for their elderly father - who has since deceased - during a time of great difficulty. A paper permit had been arranged by the managing agent and this had been issued by GBP Management Ltd to be shared between three vehicles used by the Defendant and their siblings for caring duties. The permit was not vehicle‑specific and therefore did not display a registration number, a fact entirely within the Claimant’s principal’s knowledge. Due to this, it was kept in the residence and each carer would have to firstly park then go up to the flat and retrieve the permit, which all takes time with a vulnerable resident who was slow to answer the door and/or hand over the permit. In that very short time, a PC was affixed to the windscreen. The Claimant failed to allow any grace period to fetch the permit, contrary to the mandatory requirements of the parking sector Code of Practice. Had even a minimal grace period been afforded and fair observation taken place, no charge would have been issued. Appeals fell on deaf ears and this litigation - which will end in discontinuance by hearing-shy DCB Legal, as ever - is a complete waste of court time.

Yarn_Bertha

https://forums.moneysavingexpert.com/discussion/comment/81986358#Comment_81986358

Thank you for that. Will make the amendments and then submit my defence.