CPP, Parking Eye , CEL , DCB Legal Group Thread

Gr1pr

Yes, volunteer this one as the Group Thread by changing the title

CPP, Parking Eye , CEL , DCB Legal Group Thread

Or similar

Stuberry

I have changed the title

Gr1pr

OK, here is the standard Chan and Akande defence template in 10 paragraphs, below , to only be used where NO ACTUAL BREACH is specified in the POC on the lower left hand side of the N1SDT claim form , examples include the following

if it doesn't mention , non payment, underpayment, no permit, overstay, wheels over the lines, parked on yellow hatchings, not parked in a bay, being in a pink car on red car day, lol

So for cases like

CPP, Parking Eye , CEL , Horizon DCB Legal ( Group Thread )

But

Anyone using it MUST ADD an ending to paragraph 2, after the word keeper, to try to ensure that a future judge doesn't require a defence amendment, as seen on here recently, which required further detailed information to be supplied , so some examples are :—

keeper and driver

Or

keeper but not the driver

Or

that they were the registered keeper and driver, briefly stopping to pick up a fare paying passenger.

Or

that they were the registered keeper and driver, briefly stopping to drop off a passenger.

Or

keeper but the driver's identity is either unknown or cannot be recollected

Or

driver but not the keeper.

or some other suitable but CONCISE ending after the word keeper, such as

and driver. The defendant was a {nurse/doctor/or your job title} at this Hospital ( or business etc ) at the material time and fully authorised to park.

However

The final draft MUST fit into the 122 lines allowed in the defence box on MCOL ( if necessary the defendant can delete Paragraph 10. In order to do so ) , save, submit

NO EXHIBITS, NO PICTURES, NO EVIDENCE AT ALL ! is submitted at this early defence stage, it never is. !

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)(dg))'.

Coupon-mad

https://forums.moneysavingexpert.com/discussion/comment/82169003#Comment_82169003

Thankyou!

And to @Gr1pr

Now we just need to bookmark this one.

This defence also works for the current batch of Horizon claims brought by DCB Legal, with the addition of a line in para 2 that points out that the PCN amount has been inexplicably enhanced by £10.

Stuberry

Hypothetically… what should someone add to the end of para 2 if the defendant knows they were the driver and keeper. But has never admitted who the driver was and the claimant doesn’t know and has no evidence of who the driver was.

Could one either stay silent on the fact? Neither confirm nor deny? Or put the Claimant to proof of who the driver was?

Gr1pr

I believe that because its being signed under a Statement of Truth, especially if the claimant is known to comply with Pofa2012, or did comply, then add and driver at the end of paragraph 2 , if true

Personally, I don't believe that it should be blank, because some judges take exception to the neither confirm or deny stance , basically no comment as seen in criminal cases

If a defendant wants to risk having a defence struck out due to a lack of honesty or transparency, it doesn't bode well for the case to be deliberately evasive

A defendant either does know, or doesn't know , or something , but rarely knows nothing

Being silent, the "no comment " option, doesn't help in most cases, but can hinder , IMHO

I did add the following caveat earlier , as an instruction, not an optional extra ( it never was the latter )

Anyone using it MUST ADD an ending to paragraph 2, after the word keeper, to try to ensure that a future judge doesn't require a defence amendment, as seen on here recently, which required further detailed information to be supplied

The danger of this template is when a defendant feels that its a 5 minute job with no personal input, doesn't think about it, then gets tripped up down the line. !

So, as coupon mad said back on page 1

You can add a denial of POFA liability at the end of para 2 of the 'Chan and Akande' version of the Template Defence.

If true

VC76

I hope it's okay to leave a comment here - I don't feel I need a new thread as all the advice has been great and I'm just about ready to submit my defence.

Just a couple of questions - in this post, @Gr1pr, did you mean to include some examples of when no actual breach is specified in the POC? Presumably when they state things like 'Vehicle parked / remained on property in breach of the T&Cs'?

https://forums.moneysavingexpert.com/discussion/comment/82169174#Comment_82169174

Also, in my case I do remember the details as I appealed at the time and I thought (naively!) that I had a strong case as I did overstay but by less than 10 minutes (which I understand to be the grace period). Would you recommend stating this in paragraph 2? Or perhaps rewording paragraph 2 so I'm not saying I don't remember the details when I do.

Gr1pr

Correct, if it doesn't mention , non payment, underpayment, no permit, overstay, wheels over the lines, parked on yellow hatchings, not parked in a bay, being in a pink car on red car day, lol

Just deny the allegation, dont overthink this stage if the POC is ambiguous, dont guess what you think they mean, dont guess at what happened

If it was an authorised parking period then there is a minimum of 10 minutes grace period at the end of the time allowed, meaning that no overstay occurred

An overstay would be say 30 minutes when only 10 minutes are allowed, which would be an actual overstay of 20 minutes beyond the allowed time, 30 minutes over the alleged parking time

VC76

Got it, thanks so much.

And yes - I didn't overstay! I will remember that if it does end up going any further! Thanks again 😊

Le_Kirk

https://forums.moneysavingexpert.com/discussion/comment/82177534#Comment_82177534

I don't feel I need a new thread as all the advice has been great and I'm just about ready to submit my defence.

BUT if you do need further advice or want to make further comment, you really do need your own thread.