DCB Legal again...

OldBugger

I have an ongoing court claim, issued by DCB on behalf of UKPC. I received the PCN for not parking correctly within the "markings" of a bay (it was a disabled bay with hatchings to one side of the parking space only). The only way my passenger could exit the vehicle was if I parked my car partly on the hatchings. I also discovered (when collating my defence) that the disabled bays in this car park are actually narrower than the standard bays.

Anyway I put together my [substantial] defence and sent it to the NBC. My defence included; Inadequate signage, contravention of the Equality Act 2010, and non adherence to the BPA code of conduct. I actually want them to proceed to court as I believe this parking firm is actively targeting disabled drivers at this car park, and I'm confident my defence is cast iron, and includes previous case law in support (Excel V Cutts).

I'm now being harassed with phone calls from DCB legal (14 calls in 6 weeks) offering a reduced claim to settle out of court. I've told them on numerous occasions that I want to go to court and I will not be accepting any offers made by them, but the harassment continues.

My question is, do I have any legal standing to make a harassment claim against them?

With regard to the £70 additional charge for debt recovery I have now read the judgement in Excel v Wilkinson so that part will be added to my defence. However an additional argument against this is that at the point this charge is added there is no legally defined debt. At this stage or proceedings there is nothing more than an accusation that I have breached some supposed terms and conditions that were inadequately displayed. It only becomes an enforceable debt if a judgement were to be made against me if I were lose my case.

This then brings into question the sharing of my personal date with debt collection agencies when no debt legally exists. There is no legitimate interest and there is no consent from me to share this data so the parking company, I believe, have broken data protection laws by passing my details onto debt recovery agents.

So my second question is, do I have a claim against the parking company under data protection laws?

I have attached a photograph of the illegible signs in use at this car park at the time I allegedly breached the terms of parking. As can be seen the terms and conditions have the smallest font on the sign and take up about 5 percent of the total area.

Gr1pr

Its all a part of the legal process, there is nothing to stop them contacting you, ( or your lawyers if used. )

I do not believe that you would win a harassment case, and any counterclaim should have been done when you responded to the CNBC in Northampton

According to your post above your defence has already been filed, so is already on record, you don't get another go, sorry to say

The parking company can certainly contract with debt collectors and lawyers, no data protection issues there, so no, highly unlikely to succeed in any alleged data breach case

Coupon-mad

If you've already defended you can't now counterclaim but you could email the complaints@ email for DCB Legal and tell them that if they do not:

• stop the calls
• discontinue this month and
• apologise for the bombardment of harassing calls,

…you will (after the case is over) sue them and their client jointly for not less then £300 as a remedy to compensate for the severe distress caused to the defendant and the disabled passenger, by UKPC and DCB Legal's prolonged course of harassment of a disabled person for using an accessible bay. From the outset, this was direct discrimination of a person that they and their client knew was entitled to use it. There were no t&cs signs at or readable from the accessible bays themselves which puts UKPC in clear breach of the Code of Practice. DCB Legal are jointly and severally liable due to knowing of the disability from the case file (knowing that there was a Blue Badge holder who needed the bay to be accessible on both sides) and having been told more than once to stop phoning. Cease and desist.

OldBugger

https://forums.moneysavingexpert.com/discussion/comment/81997460#Comment_81997460

Thanks for the advice. I've already reported them to Ofcom as 8 out of the 14 calls so far received (3 just yesterday) were either abandoned or complete silence when answered. One of the calls yesterday was a recorded message asking me to call them back to discuss my case. Obviously I didn't call back.

OldBugger

I've been doing a little more digging on my case. I realise that I cannot now use the following in my defence but it may be useful for others.

In my case no PCN was affixed to the vehicle or given to the driver. In fact the notice to keeper was dated just 2 days later than the alleged offence. I have been reading up on POFA 2012 schedule 4 and this suggests that if a PCN is not issued to the driver or affixed to the vehicle then the chain of conditions for liability to pass to the keeper has been broken and the notice to keeper is unenforceable. This applies even if the keeper was the driver.

So it appears that if a PCN is not affixed to the vehicle, and the parking company cannot provide evidence that one was, then any notice to keeper is invalid and cannot be enforced by the courts.

Is my line of thinking correct on this?

Gr1pr

IMHO , no

Pofa2012 is not a mandatory compliance issue

Compliance allows the private parking company to transfer liability to the keeper ( or hirer)

Non compliance means that the keeper liability fails but driver liability remains, meaning unenforceable against a keeper but still an enforceable option against a driver, whereby the court would decide the outcome

OldBugger

https://forums.moneysavingexpert.com/discussion/comment/81998287#Comment_81998287

But how would the operator know who the driver was if the keeper fails to give details of the driver. The keeper is under no obligation to name the driver and as the notice to keeper is unenforceable all proceedings must fail from that point on.

I've just asked the same on chatgpt and it produced the following;

To whom it may concern,

I write to formally challenge the Notice to Keeper referenced above on the grounds that the operator has not demonstrated the required service steps under Schedule 4, paragraph 4 of the Protection of Freedoms Act 2012.

Grounds of challenge

• No Parking Charge Notice (PCN) was affixed to the vehicle and no evidence has been provided that a PCN was handed to the driver.
• The operator has not shown they took the “reasonable steps” required to serve a PCN on the driver or any alternative permitted method of service that would trigger keeper liability.
• The driver is unknown. Because the operator cannot demonstrate valid service to the driver, keeper liability has not arisen and the Notice to Keeper is therefore invalid.

Requested action

• Immediately cancel the Notice to Keeper and all associated charges.
• Confirm cancellation in writing within 14 days of this letter.

Evidence I request

• A clear statement of the steps taken to serve the PCN (including date/time and method).
• Photographic evidence showing a PCN attached to the vehicle at the time of alleged contravention (if relied upon).
• Any signed/dated paperwork indicating the PCN was handed to the driver.
• Copies of correspondence with the DVLA (if applicable) and any CCTV/inspection logs relied upon.

If you do not cancel the Notice to Keeper within 14 days I will consider this matter closed from my side and may pursue further action, including escalating to the relevant trade association or small claims court to seek a declaration that the notice is invalid.

Gr1pr

It would be up to the judge to decide on if the defendant was driving or not, the laws of probability might be used, the lack of no outright denial of being the driver, the lack of clarity, etc

Don't believe what AI tells you, it gets lots of stuff wrong, as we see daily on here

If CEL send an advocate and the defendant is questioned about if they were the driver or not, what would the reply be. ? Yes, No, or, No comment ? Evasive answers can work against a defendant , but if the defence submission clearly says but not the driver at the end of paragraph 2, its crystal clear !

The judge decides if the claim is enforceable against the defendant or not. ( not AI. )

No judge will be interested in what any AI bot stated

OldBugger

So what you are saying is in reality, although POFA2012 schedule 4 was drafted to establish keeper liability whilst at the same time protecting the keeper, meaning certain conditions had to be met by the operator, (including affixing a PCN to the vehicle), it is not fit for purpose as the parking companies can circumvent it.

This appears to contradict the following copied from Here

Driver liability arises under contract law. When a driver enters privately managed land, they may form a contract with the parking company by virtue of the signage displayed on the land. If the terms on the signs state that parking beyond two hours incurs a charge, and the driver parks beyond two hours, the parking company argues that the driver has accepted these terms by conduct and breached the resulting contract. The claim is in contract, and the liable party is the driver: the person who was physically present and entered into the arrangement.

Keeper liability arises under statute, specifically Schedule 4 of POFA 2012. It is a statutory mechanism that transfers the obligation to pay from the unidentified driver to the registered keeper. Keeper liability exists solely because Parliament created it. Without strict compliance with Schedule 4, it does not exist.

This distinction has a crucial practical consequence. If the parking company pursues you as the keeper, they must prove POFA compliance. If they pursue you as the driver, they must prove you were driving. If they cannot prove either, the claim fails. Many parking companies issue claims that are ambiguous about which basis they are relying on. If you receive a county court claim, examine the Particulars of Claim carefully to determine whether the company is alleging driver liability, keeper liability, or both. If they allege both, you can challenge the consistency and clarity of their case. For more detail on defending at court, see our county court defence guide.

One common tactic used by parking companies is to begin correspondence on a keeper liability basis (addressing the registered keeper) and then switch to alleging driver liability if the keeper challenges POFA compliance. Be alert to this. If the company cannot establish keeper liability, they cannot simply pivot and assert that the keeper was the driver unless they have actual evidence of this (such as CCTV footage clearly identifying the driver.

Coupon-mad

"This applies even if the keeper was the driver."

LOL, no the POFA doesn't! Did AI say that? Oh no, some random ticket fighter.

😀

Gr1pr

Parking companies can IGNORE Pofa2012, and many do IGNORE it completely , it's not mandatory, otherwise Parliament would have made it mandatory to comply with it, but they didn't, its currently an unregulated industry

That link has a lot of incorrect information embedded in it

Example of a rubbish AI response linked below

https://forums.moneysavingexpert.com/discussion/6668341/claim-form-received-from-smart-parking#latest

to clarify what UKPC did

They didn't issue a windscreen pcn or hand an NtD to the driver - they dont have to do so, its not a legal or Pofa2012 requirement, its not mandatory, its optional

Instead, they can issue a postal PCN to the keeper, an NTK, to arrive by day 14 following the incident date , they issued it 2 days after the incident date, so well within POFA2012 timescales

You should check the dates on it against POFA2012 requirements, plus study the NTK wording too ( but they usually comply with Pofa2012. )

They are probably using Pofa2012 to transfer the legal obligation from the unknown driver to the known keeper, in that NTK PCN letter, and in the POC on your claim form ( and possibly the driver too, hedging their bets. )