Court papers received from DCBL legal and defense needs to be completed this week

[chrisso]

Hi, I received a Notice of Debt Recovery for £170 in Feb dated 31st January from DCBL for 'parking incorrectly within the markings of the bay' in a car park on the 2nd January. This was £100 parking plus £70 costs. I had not received anything prior to this and had not had a PCN on my car. Following advice on here, I ignored all further demands from DCBL and did a SARS. It transpired that I had not changed my address with the DVLA when I moved (I thought changing my driving license was sufficient) although I did have mail forwarding so should have received any letters and the current occupiers did not receive anything for me either.

I received court documents on the 8^th August and following advice on here again, I sent a 31.14 request to DCBL legal and received a response yesterday. I’ve added that to all the other documentation here: https://imgur.com/a/RpdsLYU
I would have actually paid the £60 if I had received the PCN or anything else within the first 14 days that allowed me the early pay discount to avoid this hassle, but £170 was just so ridiculously over-inflated I wasn't prepared to pay it.
I have to do my defence today and I was hoping for some advice on how to proceed. From the pictures you can clearly see I wasn’t parked within the bays and the signage states that you have to be so I’m not sure what my defence should be. They added debt recovery costs (or 'damages') as they put on the court form, of £70, to the original £100 and with court fees, interest and legal reps costs the debt is now £262.36. Have I read somewhere that they are not allowed to add costs/damages of £70 and they have been chastised for doing this in the past? Should that be in my defense?

Any advice would be most welcome.

[des8]

Sorry, missed your post on your other thread.

Here's the basis of a defence, which you might need to amend (so check it, especially paras 7; 8; 11.1&2;12:16.1; final paras need renumbering)

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). 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.
2. The Defendant is surprised by the 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. 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
   2. 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
   3. exercise any other case management powers the court sees fit.

RELEVANT FACTS

1. [APPROPRIATE FACTS INSERT]

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 series of requests by letter and email were 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 6, 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 there was not adequate notice of the Parking Charge given to the Defendant pursuant to Paragraph 2(2) of Schedule 4 of POFA 2012. Paragraph 3(b) defines “adequate notice” as the display of one or more notices which:
   1. specify the sum as the charge for unauthorised parking; and
   2. are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land.
6. The signage at the car park was not sufficient to give the driver adequate notice of the parking charge because:
   1. There was no signage at the entrance of the car park indicating that there would be a parking charge or that the car park was subject to certain parking conditions; [and]
   2. [in any event there was no notice to say that if there was a failure to comply, a parking charge would be issued.]
7. The Claimant in correspondence has suggested there is adequate signage available at the car park and relies on a sign that the Claimant says is clearly visible. The Defendant will say that:
   1. The sign referred to by the Claimant is erected at the rear of the car park and is obscured by various tree foliage;
   2. The vehicle was parked on a dark evening and the car park is not adequately lit such that any visibility of the sign could not be seen; and
   3. As already referred to earlier in this Defence, the vehicle was parked at the front of the entrance to the car park, so it was not reasonably possible for the driver to see the sign.

Recovery of Claimant’s costs associated with the Parking Charge

1. The Defendant denies that the Claimant is entitled to claim the recovery of its costs in respect of the Parking Charge. As described above, there was no adequate signage giving fair and reasonable notice of the parking terms and it is trite law that one cannot incorporate terms and conditions after the fact, without giving reasonable notice beforehand.
2. Further and alternatively, if (which is denied) it is found that reasonable notice was given, the Defendant will say that the term was 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. 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 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’ 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.

15. 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).
16. In this claim unspecified costs 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

17It is denied that the Claimant is entitled recover the Parking Charge from the Defendant as registered keeper of the vehicle. The Defendant repeats paragraphs five to nine (inclusive) of this Defence.

1. Further and alternatively, the Defendant contends that the Claimant has failed to comply with the mandatory conditions under POFA 2012 in order for the registered keeper to be held liable for the Parking Charge:
   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 indicated that there is a written contract between the Claimant and the landowner but 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 Claimant represents that “the Defendant was 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:
   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 did not state the period of parking as 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 £XXX.XX.
2. 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.

CONCLUSION

1. 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

[chrisso]

Wow, thank you so much! That's very detailed. I'll keep you posted on here on the outcome. Fingers crossed.