UKPC / DCB Legal Help with defence please

[suze200]

I received a Claim Form relating to parking on 13/09/2019. I have filed the acknowledgment of service on 3 June but I'm stuck with the defence. I saw a template for guidance on another thread but my laptop cannot open it.
I had been to Superbowl Macclesfield many times before it a free car park with no terms and conditions. On this occasion did not see any signs when entering or leaving the car park and the staff did not say anything when I paid for bowling . I appealed the PCN at the time and provided proof that I was a paying customer (I did admit I was the driver). This was rejected by UKPC and POPLA. I had a few debt collectors letters, the last one in 2020, which were ignored. I was shocked to receive a letter before action in April which followed the claim.
I also have documents which were attached to the POPLA rejection notice. I dont have permission to post attachments so not sure what to do?
I would be grateful for any help.
Thank you

[suze200]

Claim form

[des8]

So your defence has to be filed by 22nd June.

Immediately send off a SAR to UKPC and a CPR31.14 request to DCBLegal
Templates for these are in the SHORTCUTS panel on right of this page.
In the CPR request you ask for all documents they will rely on, and especially;
1. copy of contract authorising management of parking and issuing of charges between land occupier and UKPC
2. copy of signage at time of event
3 copies of PC(s)

When you receive a response post it up here.
If no responses received give a nudge around17th June

If you have trouble uploading documents, put them on a hosting site (?IMGUR) and post a link here

[suze200]

I already submitted the AoS on 3rd June. The SAR before POPLA appeal contained copies of the PCN, copy of my appeal (where I sent my proof of payment to Superbowl) and their rejection letter in which they offered the following 1) Pay the parking charge detailed above at the reduced rate of £15 to UK Parking Control Ltd. 2) Make an appeal to the independent adjudicator POPLA (Parking on Private Land Appeals) using the verification code provided above. Please note that if you wish to appeal to POPLA, you will lose the right to pay the discounted rate of £15, and should POPLA reject your appeal you will be required to pay the full amount of £100.

I have the data package UKPC sent to POPA which I received with the POPA appeal rejection letter. there are 34 pages which I have split by heating section

[suze200]

Final 4th section of POPLA document

[suze200]

POC copied exactly as written on the CF

1. The Defenant (D) XXXX is indebdted to the The Claimant (C) for a Parking Charge (PC) issued to vehicle XXXX at Superbowl Macclesfield lyme Green Macclesfield sk110tb
2. The date of the contravention is 13/09/2019and the D was issued with PC(s) by the Claimant
3. The Defendant is pursued as the driver of the vehicle for breach of the terms on the signs (the contract) Reason: Registered Users Only
4. In the alternative the Defendant is pursued as the keeper pursuant to POFA 2012 scheme 4

AND THE CLAIMANT CLAIMS

1. £170 being the total of the PC(s) and damages
2. Interest rate of 8% per annum pursuant to s69of the Country Courts Act 1964 from the date hereof at a daily rate of £.02 until judgement or sooner payment
3. Costs and court fees

des8 Dear DES8 do I need to ask for anything other than the 3 items you listed? Thank you for your help. Please let me know if it is bad etiquette to tag people and if so I apologise for doing it

[suze200]

plummyjam1 I see that you had a claim relating to Superbowl Macclesfield. Do you still have a copy of your defence please?

[des8]

It is fine to tag members.
Just request "all documents they rely upon, including those three"

Can you post up the exact wording of your appeal to POPLA, and the response you received>

I'm also interested in your reason for refusing UKPC's offer of a reduced £15 charge.
The driver failed to register your vehicle when parking, so a PCN was issued.
On appeal UKPC offered a reduced charge, which essentially covers their administration costs.
Allowing it to go to court, even if you win, is going to cost you more than £15 in time and stress

As it was daytime why did the driver fail to see the signs?

Do you have a copy of the signage (no 21 in the POPLA bundle) which is fully legible? I really need to be able to read ALL the small print.

[suze200]

Thanks for your reply des8. I wasn't thinking about looking for signs as had been to the venue many times before when it was a normal free carpark. The signs were small and hidden behind trees side on to the parking spaces or high on walls. There were none at all where my vehicle was parked and this is obvious from the diagram in the POPLA documents. The entrance sign which said Registered Users Only was high on a pole and also side on as you enter the cark park. There was plenty on room to put it in the driver's line of sight as you drove in so this was deliberate. You may have had a chance of seeing the signs when going back to the car but it was dark, they were small and unlit. I don't have the POPLA appeal as it was an online form and I didn't take a screen shot. Is this the sign you mean? Also here is a picture showing the driver's view of the Registered Users Only sign when entering the carpark in front of the Superbowl entrance

[suze200]

Not paying £15 to park in a free carpark at a venue where I was a paying customer and submitting an appeal to POPLA seemed like a good idea at the time. I wasn't aware that POPLA usually side with the carpark operator.

[des8]

Is there any chance you could revisit and measure in centimetres the size of the various fonts and the height of the signs above ground?

Briefly:
The Claim is for breach of contract, and yet the signs I have seen IMO aren't capable of forming a contract.
If a contract can't be formed , it cannot be breached so the claim should fail.

I'll draft a defence for you over the next few days

[suze200]

Hi des8 I can't measure the signs because UKPC were kicked off the site 5 months after the event. Superbowl offered all residents free bowling as an apology. See links https://www.pressreader.com/uk/maccl...81625307378606

https://www.facebook.com/share/1Cf3ijizuJ/ Thank you so much for offering to drafting a response

[suze200]

I think this was about 12 months into the 3 year contract. I don't know what the "steps" mentioned in the article were but nothing was visible at the time I was there otherwise it wouldn't have happened. However there are lots of complaints on trip advisor where they entered their VRN and still got a PCN. There's also one same month as mine mentioning poor signs, so the extra step were definitely after that here's a few examples
Watch out for big parking fines!
Oct 2019 • Family
Watch out for the parking fines! I visited for a kids party so had no reason to pay or get a receipt and didn't realise there was controlled parking - poor signage! I've been fined £100 despite appealing and the fine keeps increasing to add more pressure. Superbowl accept that the party happened but say it is not their parking system, it is their landlords so have washed their hands of it. Not good. Be careful!
Extremely poor customer service, don't bother going
Feb 2020
Extremely poor customer service, charge you twice as much as don't bother informing you when you check in to play that you may be charged a parking fine and will not take any responsibility. Fuming is an understatement
Most EXPENSIVE game of bowling in the world?!
Feb 2020 • Family
Avoid avoid avoid. Visited here over February half term for a game of bowling with the family. Enjoyed the bowling, although over all the facilities are very run down. HOWEVER, despite registering our car number plate on the machine we STILL recieved a parking fine through the post yesterday for £60. I’m now In the process of contesting the fine, by sending evidence of the card transaction we made to prove we are paying customers. Not a headache I need after being a paying customer. We will never return to this place for bowling. I imagine will be shut down soon as this type of problem with parking will only put customers off. £60 plus the cost of the actual bowling game makes this a VERY expensive day out. Do not bother, even if you follow the parking rules they still fine you.
Filthy, rude staff, parking scam.
Sept 2020 • Family
Place was simply filthy, your shoes stick to the carpet. The staff are disinterested and blatantly rude. On entry you enter your car registration number to comply with their parking rules. As many other have said all appears well until a few days later when a letter arrives with a parking notice invoice. It doesn’t matter that you can prove you were a legitimate customer, neither a timed receipt from Super Bowl nor a credit card bill to back it up will be enough for them to stop threatening you with Court action. I won’t go on, just save yourself lots of heartache and avoid Macclesfield Super Bowl

[suze200]

des8 Had nothing back from DCB Legal. I dont expect they will provide any documents.

[des8]

Something for you to read (and hopefully understand)
Try not to cut and paste.. check it fully and make sure the numbering is correct

It is only a template for you to amend as you require

DEFENCE

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(s) 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 PC(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(i)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 (ii)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 (iii)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. The Claimant has 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 which the Defendant considers to be an abuse of process.
2. The claim is for breach of contract. The defendant asserts there was no contract, and the signs purporting to set out the terms of a contract were not capable of forming a contract

(i) the signs state "No unauthorised parking" and "registered users only"
(ii)from (i) it follows that there is no contract to park if the user is neither authorised to park nor registered
(iii) to park "without [the operator's] permission .... will usually be an act of trespass" (BPA Operator's Code of Practice version7 2018) and only the land occupier may sue for damages for the tort of trespass
3 The claimant has failed to prove he has authority to manage the car park by way of issuing parking charge notices pursuant to condition 5(1)(a) of POFA 2012; and
4The Claimant has refused or otherwise failed to provide the necessary evidence or explanation to establish the Claimant's authority to enforce the Parking Charge.
5.In the absence of evidence that the Defendant was the driver, 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.
6. If the Defendant is found to be liable for the Parking Charge as the driver, 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 Section 68 of the
CRA which 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 on the signage was neither transparent nor
intelligible in that:
(i) parking at the site was historically free . The change to a requirement to register was not indicated contrary to BPA Operator's Code of Practice version7 2018 section 18/10 (the claimant is a BPA member and bound by BPA Code of Practice)
(i)the signs were small and so placed that they were not visible on entry; were obscured by bushes or positioned high on walls
(ii)the font size of the term referencing the charge was 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
(iii)the term refers to an additional debt recovery charge of £60 (although the claim form refers to £70)

7. Further. 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).
8. In this claim unspecified charges of £70 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

1. It is admitted that the Defendant is the registered keeper of the vehicle with registration xx11 abc

2 . It is denied that the Claimant is entitled to recover the Parking Charge from the Defendant as registered keeper of the vehicle.
(i). The Defendant repeats points 1 to 8 above
(ii) The Notice to Keeper failed to comply with the mandatory requirements of the Protection of Freedoms Act 2012 necessary to transfer liability for any unpaid charges from the Driver to the Keeper in that it did not
(a) inform the keeper that the driver is required to pay parking charges in respect of the specified period and that the parking charges have not been paid in full (PoFA2012 sec 9 (2) (b)
(b) describe the parking charges due from the driver ...... the circumstances in which the requirement to pay them arose ......(Pofa 2012 sec9 (2) (c)
(iii).Contrary to condition 5(1)(b) of PoFA2012 the Claimant claims to know 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:… 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

1.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:
(i) paragraphs 7 & 8 above are repeated
(ii) The costs sought by the claimant are based upon a contractual right. 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 costs was solely between the claimant and the driver of the vehicle, not the registered keeper
(iii) also paragraph 4(5) of POFA 2012 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 £100.

1. CONCLUSION
2. By reason of the matters 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
Sign & date