DCB LEGAL, PARKING EYE court claim

Ziter90

SO just copy and paste this?

With regards to the POC in question, two recent persuasive appeal judgments in Civil Enforcement Limited v Chan (Ref. E7GM9W44) and Car Park Management Service Ltd v Akande (Ref. K0DP5J30) would indicate the POC fails to comply with Civil Procedure Rule 16.4(1)(e) and Practice Direction Part 16.7.5. On the 15th August 2023, in the Chan case, HHJ Murch held: 'the particulars of the claim as filed and served did not set out the conduct which amounted to the breach in reliance upon which the claimant would be able to bring a claim for breach of contract'. The same is true in this case and the Defendant trusts that the Court should strike out the extant claim, using its powers pursuant to CPR 3.4. The second recent persuasive appeal judgment also held that typical private parking case POC (like this) fail to comply with Part 16. On the 10 May 2024, in CPMS v Akande, HHJ Evans held: 'Particulars of Claim have to set out the basic facts upon which a party relies in order to prove his or her claim.

Ziter90

https://forums.moneysavingexpert.com/discussion/comment/82157439#Comment_82157439

This is confusing me, I was initially told to use this now I am being told to use something else, like bespoke one but tailor it to mine, I am following the 8 steps, ie through MCOL.. am I doing it rigjt? Because first it said I don't need to make changes but then it said tailor it to your needs.

Thanks all just nervous.

Coupon-mad

https://forums.moneysavingexpert.com/discussion/comment/82176413#Comment_82176413

Obviously not just that!

Read the group thread and slow down. We created that group thread especially to stop the flood of posts asking what to put…!

You do not need to tailor the 10 paragraphs.

🙂

Ziter90

https://forums.moneysavingexpert.com/discussion/comment/82176421#Comment_82176421

Okay so the below is what I need to add to the defence and just amend the pricing and the ending... right?





CPP, Parking Eye , C

• 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. With regards to the POC in question, two recent persuasive appeal judgments in Civil Enforcement Limited v Chan (Ref. E7GM9W44) and Car Park Management Service Ltd v Akande (Ref. K0DP5J30) would indicate the POC fails to comply with Civil Procedure Rule 16.4(1)(e) and Practice Direction Part 16.7.5. On the 15th August 2023, in the Chan case, HHJ Murch held: 'the particulars of the claim as filed and served did not set out the conduct which amounted to the breach in reliance upon which the claimant would be able to bring a claim for breach of contract'. The same is true in this case and the Defendant trusts that the Court should strike out the extant claim, using its powers pursuant to CPR 3.4. The second recent persuasive appeal judgment also held that typical private parking case POC (like this) fail to comply with Part 16. On the 10 May 2024, in CPMS v Akande, HHJ Evans held: 'Particulars of Claim have to set out the basic facts upon which a party relies in order to prove his or her claim'.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)(

Ziter90

Sorry I have just seen, just need to add after paragraph 2 and rest is as it is and submit.right?

Also I was the driver but not the keeper of the car will that affect anything?

Gr1pr

https://forums.moneysavingexpert.com/discussion/comment/82176417#Comment_82176417

People were asking the same things over and over again, including you , then some were copying incorrect wording or characters, so the group thread was created to assist all, and i spent time copying and pasting the template defence paragraph1 and paragraphs4 to 10 , then adding in the correct paragraph 3 , and i added a few suggestions for an ending to paragraph 2 as well, it was all done by me exactly one week ago, after my previous replies to you a couple of weeks ago

Paragraph 1 and paragraphs 3 to 10 are not altered in any way, only you should add an ending to paragraph 2

When complete, all 10 paragraphs are copied and pasted into MCOL into the defence box, save it and submit it

We did the hard work so that defendants like you have very little to do, at this defence stage

Ziter90

https://forums.moneysavingexpert.com/discussion/comment/82176431#Comment_82176431

You guys are amazing, I have no words. Just brilliant, I finally got this, very grateful and very sorry for keeping asking. I will add after para 2 and submit. My only concern as I highlighted above is I was not the keeper but was the driver will that have any affect.

I will add, I was the driver of the vehicle but not the keeper, that should do right?

Coupon-mad

Of course you aren't amending any pricing! You don't change the amount of the PCN from the Beavis case, if that's what you meant.

Ziter90

https://forums.moneysavingexpert.com/discussion/comment/82176433#Comment_82176433

You guys are great help, I've finally got it thanks to your help, your so patient. I really appreciate all the help you are giving, hopefully we defeat them! Just the wording on para 2, as I was not the keeper but was the driver I did admit that I was the driver so just right that down.. shouldn't cause any issue if not the keeper?

Gr1pr

So the end of paragraph 2 should be

that they were the driver but not the registered keeper

The rest of my version posted a week ago stays unaltered