Advice on Filing a Defense for Parking Fine Claim

[vinniebin]

Hello!
I recently received a Money Claim Form from DCB Legal regarding a parking fine from December 2023. I did not pay the fine at the time, and now I’ve received this claim form. I want to file a defense on the basis that there was inadequate signage at the location.

Could anyone advise me on the correct steps to proceed? Any guidance on how to structure my defense would be greatly appreciated. I only have a few days to respond to the claim.

Thanks in advance!

[des8]

have you acknowledged receipt of the claim which then gives you 35 days from issue date in which to file a defence.

if you give us more details we can advise about your defence.
Suggest you post up a redacted copy of the claim form, and the original Parking Charge Notice (redact both but leave in all dates and times)
pictures of the signage also useful.

You should also send a CPR31.14 request to DCBLegal. Include a request for the contract between parking company and land occupier.
Also send a Subject Access Request to parking company.

Templates for those requests are available in the SHORTCUTS panel on the right of this page.

[vinniebin]

Great, thank you so much! I just submitted the acknowledgment of service. I don’t have any photos of the signage. I’ve attached the photos of the parking charge notice, deny recovery and claims form below.

[vinniebin]

In terms of Particulars of the claim, what documents should I be writing in the CPR31.14. Am I supposed to include a £1 check (or postal order) as well since at the bottom of this letter in mentions “For your information and records I enclose a copy of the formal request for a copy of the credit agreement relating to this claim, pursuant to the Consumer Credit Act 1974, which has been posted to your client with the statutory fee of £1 today, xx/xx/xxxx.”

[des8]

Besides asking in general for all the documents they are relying, you request in particular a copy of the contract authorising PE to manage the car park.
You also need a photo of the signs (the contract) in which all the terms and conditions are legible, plus a plan of the car park indicating the position and height of each sign.
Also ask for a copy of the original Parking Charge Notice(s) (PCN)and although it is not mentioned, a copy of the Notice to Keeper.(NTK)

(In actual fact the original PCN will also have been a NTK, but make them work!)

As this is not a credit agreement no need to send a £ or request a copy of a non existent credit agreement

[vinniebin]

So i’ve printed out the CPR31 to send to DCB legal and Subject Access Request for ParkingEye and will post them today. I think I will also send an email copy to just to I have an online paper trail too. After this what would be my next steps

[vinniebin]

So i’ve printed out the CPR31 to send to DCB legal and Subject Access Request for ParkingEye and will post them today. I think I will also send an email copy to just to I have an online paper trail too. After this what would be my next steps

[des8]

Your next step is to write your defence, which needs to be filed & served by the end of April.
However wait and see what replies you receive following your requests.
If you haven't heard anything. give us a nudge around 25 April

[vinniebin]

So i haven’t heard anything back from either dcb legal or parking eye. Please could you help me write a defence?

[des8]

OK I will draft something over the weekend.
In the meantime do you have a copy of the original notice(s) ? the one in post 3 is only a reminder.
If you do please post it up.

[vinniebin]

[des8]

Is that the full notice? no page 2 or 3?

[vinniebin]

Sorry this is the second and last page

[des8]

here's a draft defence for you to work around
If you use it you will need to tidy it up. I leave it deliberately like this to ensure it is read and understood

You mentioned the inadequacy of the signage.
I haven't been able to read the signs, but Google Earth views indicate signs at the entrance and around the car park (but perhaps put there since the parking event?)
Of course DCBLegal should have sent copies of signs when responding to your requests!

DRAFT DEFENCE

1. Unless otherwise stated in this Defence:
   
   i) the Defendant uses the same terminology as the Claimant has employed in the Particulars of Claim; and
   
   ii) the Defendant denies each and every allegation or that the Claimant is entitled to any relief.
   iii) all references to paragraph numbers are to paragraph numbers in the Particulars of Claim

INTRODUCTION

1. This claim has been issued against the Defendant in connection with the Defendant’s refusal to pay a private parking charge which the Claimant alleges that the Defendant is liable to pay either as the driver of the vehicle or as the registered keeper. For the reasons set out in this Defence, it is denied that the Claimant is entitled to the sums claimed or any relief at all.

CLAIMANT’S NON-COMPLIANCE WITH THE CIVIL PROCEDURE RULES

1. By way of general comment, it should be noted that whilst the Defendant intends to respond to the issues raised by the Claimant in the Particulars of Claim, he cannot do so with complete accuracy because the Claimant has not pleaded its case in accordance with CPR 16.4(1)(a), and has not responded to a CPR31.14 request for disclosure of documents. There is not a concise statement of the facts which discloses a cause of action, rather the Claimant has merely provided a series of generalised statements which in turn makes it difficult for the Defendant to respond as he does not know or understand the basis of the Claimant’s case. For example, the particulars allege that the Defendant:
   1. entered into a contract with the Claimant but does not explain how or on what basis the contract was entered into;
   2. is liable as the driver of the vehicle but does not indicate the basis of that allegation
   3. is liable as the registered keeper of the vehicle yet the Claimant has failed to particularise the basis of that allegation.
   4. refers to parking Charge(s) but does not clarify if singular or multiple
   5. claims "£170 being the total of the PCN(s) and damages" without indicating how the total is computed
2. The Defendant is surprised by the haziness of the particulars given that the Claimant is represented professionally by a firm of solicitors and as such, the lack of compliance with the CPR to formulate proper particulars cannot be excused. The court is invited to consider its general case management powers pursuant to CPR 3.1 to:

1. 1. make an order that unless the Defendant files and serves an amended Particulars of Claim compliant with CPR 16.4(1)(a) within 14 days of said order, then the claim shall be struck out and judgment entered in favour of the Defendant; or

1. 1. if the court considers it appropriate, to strike out the claim entirely as on the basis that the claim discloses no reasonable grounds for a cause of action; and

1. 1. exercise any other case management powers the court sees fit.

APPLICABLE LAW

1. Section 56 together with Schedule 4 of The Protection of Freedoms Act 2012 (“POFA”) provides landowners with powers to manage parking on their land. Paragraph 4 of Schedule 4 of POFA stipulates that the liability for an unpaid parking charge may only be transferred from the driver to the registered keeper of the vehicle if certain conditions as prescribed in Schedule 4 are met.

LIABILITY AS THE DRIVER OF THE VEHICLE

1. Despite the Defendant requesting proof from the Claimant of the allegation, the Claimant has so far failed to provide any supporting evidence that the Defendant was the driver of the vehicle at the relevant time. Accordingly, the Claimant’s allegation is entirely baseless and nothing more than a fishing expedition in which the Defendant considers to be an abuse of process.
2. Without prejudice to the foregoing paragraph, a request was made by the Defendant asking the Claimant to provide evidence establishing that:
   1. the Claimant has authority to manage and enforce the car park by way of issuing parking charge notices pursuant to condition 5(1)(a) of POFA 2012; and
   2. the Defendant was the driver of the vehicle on the day that the Parking Charge was incurred.
3. Despite the requests as referred to in paragraph 2, the Claimant has refused or otherwise failed to provide the necessary evidence or explanation to establish the Claimant’s authority to enforce the Parking Charge.
4. In the absence of the such evidence, it is the Defendant’s contention – and the court is invited to make an inference that – the Claimant has no lawful basis to pursue the Defendant as the driver of the vehicle.
5. If (which the Defendant denies), the Defendant is found to be liable for the Parking Charge, the Defendant will say that the Parking Charge is not enforceable on the basis that the terms were contrary to the requirement of good faith which causes a significant imbalance under the contract to the detriment of the Defendant. Consequently, the term is unfair and is not binding on the Defendant pursuant to section 62 of the Consumer Rights Act 2015.(CRA) The Defendant will rely on the following points:
   1. Section 68 of the CRA requires that every term of a consumer contract must be transparent and expressed in a plain and intelligible language. The Defendant contends that the term referring to the charges/costs’ (you need to check what the signs say) on the signage was neither transparent nor intelligible in that:
      1. the font size of the term is extremely small making it illegible from a reasonable distance; the term ought to have been presented in a manner which was far more legible considering the amount of blank space available on the sign itself; and
      2. the term refers to ‘charges/costs’ (you need to check what the signs say)but fails to explain what charges the Claimant is seeking to recover. Accordingly, the term described is vague and ambiguous contrary to the guidance published by the Competition and Markets Authority on unfair contract terms.

1. 3. In Parking Eye vs Beavis ([2015] UKSC 67. Case ID. UKSC 2015/0116. The S C found the parking charge (£85) was a genuine estimate of the costs of operating the parking scheme including losses suffered by the operator if its terms and conditions were not complied with (see paras 188 and 193 of the judgment).
   4. In this claim unspecified damages (presumably the "charges/costs"(you need to check what the signs say)mentioned on the signs) additional to the parking charge may involve an element of double recovery and is an abuse of process that may taint the entirety of the claim and permit the Court to strike out the claim (CPR3 4 (2) (b))
   
   LIABILITY AS THE REGISTERED KEEPER
2. 1. It is denied that the Claimant is entitled recover the Parking Charge from the Defendant as registered keeper of the vehicle.
3. 2.The POC does not sufficiently identify the address of the car park where the alleged infringement occurred.
4. There are two car parks in Leicester with similar names;
5. Freemens Car Park at LE2 LB and Freemens Common at LE2 6BF
6. As the claimant has not produced the documents on which he relies the Defendant assumes the Notice to Keeper (NTK) likewise does not sufficiently identify the location .
7. This means the Claimant has failed to comply with the mandatory conditions required by POFA 2012 to transfer liability for any unpaid charge from driver to registered keeper.
   POFA 2012 sch4 9 (2) (a) states: The notice must .........specify .......... the relevant land on which it was parked
8. 3.Further and alternatively,
   1. Contrary to condition 5(1)(a) of POFA 2012, the Claimant failed to provide evidence that it has the right to enforce against the driver of the vehicle the requirement to pay the Parking Charge. The Claimant has failed to supply:
      1. a copy of the written contract setting out the Claimant’s authority to enforce and/or pursue the Parking Charge against the driver; and
      2. what (if any) conditions may be attached as regards the recovery of the Parking Charge.
   2. Contrary to condition 5(1)(b), the Claimant knew the identity of the driver prior to the commencement of these proceedings. In the particulars of claim "the Defendant is pursued as the driver of the vehicle”. In light of that allegation, it is implied that the Claimant has actual knowledge of the driver’s identity and so the Defendant cannot be held liable for the Parking Charge as the registered keeper, and the Claimant must pursue the driver of the vehicle only. The Defendant will seek to rely on paragraph 221 of the POFA 2012 Explanatory Notes, which states that:
9. … The creditor is not obliged to pursue unpaid parking charges through this scheme and may seek to do so through other means but they may not use the scheme provided for here to secure double recovery of unpaid parking charges (paragraph 4(6)), nor will they have the right to pursue the keeper, as opposed to the driver, of the vehicle where they have sufficient details of the driver’s identity (emphasis added)
   
   Recovery of Claimant’s costs associated with the Parking Charge
10. To the extent that the Claimant seeks to recover the costs incurred in pursuing the Parking Charge, the Defendant denies that such sums are recoverable for the following reasons:
    1. The costs sought by the Claimant are based upon a contractual right under the terms of the parking contract. It is well established under the doctrine of privity that a person who is not party to the contract cannot sue or be sued. Any contractual relationship in respect of the parking and the alleged contravention was solely between the Claimant and the driver of the vehicle, not the registered keeper; and
    2. the Notice to Keeper failed to sufficiently identify the relevant land mandated by Pofa 2012 schedule 4 para 9 (2) (a) and so liability for any unpaid charges cannot be transferred from the driver to the registered keeper
    3. paragraph 4(5) of POFA provides that the maximum amount which may be recovered from the registered keeper is the total amount of the unpaid parking charges specified in the notice to the registered keeper. The unpaid parking charges specified in the notice were probably £100.
11. It follows that any liability owed by the keeper to the Claimant is several to the driver’s liability and is limited to an amount that does not exceed the unpaid parking charges. The Claimant’s pursuit of these contractual costs is not recoverable and amounts to an abuse of process.

1. CONCLUSION
2. By reason of the Defendant’s non-compliance with the POFA requirements as set out in this Defence, the Claimant is not entitled to pursue the Defendant as either the registered keeper or the driver of the vehicle for the Parking Charge.

Statement of truth
Signed & dated

[vinniebin]

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