DCB Legal - Claim Form - Defence

[Bob Dobalina]

DCB have sent a claim form to me about a parking charge from March 2020.
I have written the following defence.

Firstly, I would inform you that the driver of the vehicle (Reg
Number xxx xxx) on the date and time in question did not actually
park the vehicle at the location detailed on the claim form. The
driver of the vehicle entered the location detailed on the claim
form, however they did not actually stop to park the vehicle. I
would also add that if the driver of the vehicle did intend to
park the vehicle, they would not have been able to as the location
did not have a convenient car parking space for the driver of the
vehicle.

Secondly, I received the following letters in relation to the
claim. Dates given are dates on the letter and not the dates that
I received the letters.

Date: 16th June 2023 – Letter from ZZPS Ltd informing me that I
have a debt of £170 to be paid or an arrangement put in place
within 14 days or the debt will progress to GCTT certified
enforcement agent.

Date 26th June 2023 – Letter from GCTT informing me of a notice of
transfer to solicitors. I am advised that unless payment is
received in full within 14 days of the date of the letter, the
account will be sent to a solicitor.

Please note. The letter from GCTT (Dated 26th June 2023) was
received 10 days after the letter from ZZPS (dated 16th June
2023). They did not give me the allocated time of 14 days to agree
payment or a put an arrangement in place.

Date 07th July 2023 – Letter from QDR solicitors received asking
me to make payment of the debt within 14 days.

Please note. The letter from QDR solicitors (Dated 07th July 2023)
was received 11 days after the letter from GCTT (dated 26th June
2023). They did not give me the allocated time of 14 days to agree
payment.

I am therefore disputing this claim based on the details given
above.

My question is. Does anyone consider this a valid defence in court?

[des8]

it is a defence, bur whether or not a judge will find in your favour is another matter.

the first paragraph contains elements of a defence, the remainder is superfluous.

what is date of issue of claim?
have you acknowledged it?
when is your defence due in?
have you sent a CPR31.14 to the solicitors?
Have you sent a Subject Access Request to the parking company?

FYI . GCTT is just a trading name of Gary Osner's ZZPS,

If you could post up redacted copies of the claim form and the original notice to keeper, and also photos of the signs at the car park, we could perhaps assist you, but be aware that the outcome is always a bit of a lottery

[Bob Dobalina]

Hi. Thank you for your reply.
I can confirm the following
what is date of issue of claim? 28^th Aug 2024

have you acknowledged it? Yes on 09^th September requesting an additional 2 weeks to put my defence together.

when is your defence due in? I have already sent my defence in on 16^th September. I have since received the following reply.
Having reviewed the content of your defence, we write to inform you that our client intends to proceed with the claim.

In due course, the Court will direct both parties to each file a directions questionnaire. In preparation for that, please find attached a copy of the Claimant's, which we confirm has been filed with the Court.

Without Prejudice to the above, in order to assist the Court in achieving its overriding objective, our client may be prepared to settle this case - in the event you wish to discuss settlement, please call us on 0203 434 0433 within 7 days and make immediate reference to this correspondence.

If you have provided an email address within your Defence, we intend to use it for service of documents (usually in PDF format) hereon in pursuant to PD 6A (4.1)(2)(c). Please advise whether there are any limitations to this (for example, the format in which documents are to be sent and the maximum size of attachments that may be received). Unless you advise otherwise, we will assume not.

have you sent a CPR31.14 to the solicitors? No. I am not sure what this is.

Have you sent a Subject Access Request to the parking company? No. I am not familiar with this.

[des8]

As you have already served a defence you can't amend it without either the agreement of the claimant (unlikely to be given) or permission of the court (an application will cost £244 so probably not worth applying)

Assume the original parking charge notice showed how long the vehicle was in the car park, so in your witness statement you will need to indicate a reason for the fifteen minute stay. Car park operators are meant to operate a "consideration period" to allow motorists time to decide whether or not to park. That period is normally about 5 minutes.

At the end of the trial, if you have lost remind the judge (politely!) that the claim has been overinflated.

If you have lost as the registered keeper refer the judge to Protection of Freedoms Act 2012 Sch 4 para 4 (5) which
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.

If you have lost as the driver refer the judge to Parking Eye vs Beavis ([2015] UKSC 67. Case ID. UKSC 2015/0116. the Supreme Court 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).In other words they shouldn't add on recovery costs described on the signs (probably) as unspecified additional
charges.

Those points could have been made in your defence and might have had the court strike the claim in its entirety, but you ae where you ae.

[Bob Dobalina]

I now have a telephone mediation appointment scheduled for later this month.

[des8]

Good luck, and please let us know how it goes

[Bob Dobalina]

I recently had the mediation appointment. This took about 3 minutes. I advised the mediator that the fine would not be paid and if a court case is required then so be it. I was advised that additional costs may be incurred and the court case may be several months away. Watch this space!!!

[Bob Dobalina]

Notice of Transfer of Proceedings letter received.
This claim has been transferred to the County Court for allocation.

[Bob Dobalina]

DCB have sent me the following email.
WITHOUT PREJUDICE SAVE AS TO COSTS
To assist the Court in achieving its overriding objective, our Client may be prepared to settle this case. I can confirm our Client would be agreeable to £255.00 in full and final settlement of this Claim. The current outstanding balance is £318.96.

[des8]

If you are minded to negotiate a settlement you could point out to DCB Legal that their client's case is very weak.
1. There was no contract to park as the parking company was unable to supply a parking space as the park was full.
The driver remained in the park awaiting a space but eventually gave up
2. Even if you lose you would not have to pay more than the £100 as per reasons given in post 4 and the judge might even then dismiss the claim as an abuse of process
3. To settle the case you are prepared to offer a token £20 (or whatever0 for purely commercial reasons

Remember, no matter how good your case, County Court small claims track is always a bit of a lottery!

[Bob Dobalina]

Client's Witness Statement received today from DCB Legal. Hearing date set for the end of February.

[des8]

Have you yet been given directions to provide a witness statement ?

[Bob Dobalina]

On the notice of allocation to the small claims track (Hearing) Letter.

Item 4 states. The parties must by 4pm on 22nd Jan 2025 file at court and serve on each the written evidence upon which they proposed to rely, which must include statements from the parties themselves if they wish to give evidence.

Is this just a copy of my defence ?

[des8]

On the notice of allocation to the small claims track (Hearing) Letter.

Item 4 states. The parties must by 4pm on 22nd Jan 2025 file at court and serve on each the written evidence upon which they proposed to rely, which must include statements from the parties themselves if they wish to give evidence.

Is this just a copy of my defence ?

No. it is your witness statement.(WS)

There are examples & court rules about WS here https://legalbeagles.info/forums/for...ness-statement

[Bob Dobalina]

Copy of witness statement below (copied and pasted)

I, xxxx xxxx, declare as follows:

1. I am the registered keeper of the vehicle xxxx xxxx.

2. The facts and matters set out in this statement are within my own knowledge unless I state otherwise. I believe them to be true. Where I refer to information supplied by others, the source is identified. Facts and matters derived from other sources are true to the best of my knowledge and belief.

Summary of events
3. On xxxx xxxx my vehicle entered xxxx xxxx car park in xxxx xxxx.
4. I understand that no suitable parking bays were available and following a short drive round the vehicle vacated the car park

5. I politely request that the claim brought against me by Euro Car Parks Ltd be dismissed.

6. I deny that the Claimant is entitled to relief in the sum claimed, or at all. It is denied that a contract was entered into – by conduct or otherwise – I strongly deny being indebted to Euro Car Parks Ltd.

7. This situation can be fully distinguished from ParkingEye Ltd v Beavis [2015] UKSC67, where the Supreme Court found that whilst the £85 was not (and was not pleaded as) a sum in the nature of damages or loss, ParkingEye had a 'legitimate interest' in enforcing the charge where motorists overstay, in order to deter motorists from occupying spaces beyond the time paid for and thus ensure further income for the landowner, by allowing other motorists to occupy the space. The Court concluded that the £85.00 charge was not out of proportion to the legitimate interest (in that case, based upon the facts and clear signs) and therefore the clause was not a penalty clause.

8. However, there is no such legitimate interest where the requisite fee has been paid in full for the time stayed. As such, I take the view that the parking charge in my case is a penalty, and unenforceable. This is just the sort of 'concealed pitfall or trap' and unsupported penalty that the Supreme Court had in mind when deciding what constitutes a (rare and unique case) 'justified' parking charge as opposed to an unconscionable one.

9. In addition, the Beavis case considered an £85 parking charge but was clear at paras 98, 193 and 198 that the rationale of that inflated sum (well over any possible loss/damages) was precisely because it included (the Judges held, three times) 'all the costs of the operation'. It is an abuse of process to add sums that were not incurred. Costs must already be included in the parking charge rationale if a parking operator wishes to base their model on the ParkingEye v Beavis case and not a damages/loss model. This Claimant can't have both.

The Claimant is not entitled to the sums claimed.
10. Schedule 4 of POFA 2012 is clear in stating that there is a limit to the amount that can be claimed:
Right to claim unpaid parking charges from keeper of vehicle:
(5) the maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper under paragraph 8(2)(c) or (d) or, as the case may be, 9(2)(d) (less any payments towards the unpaid parking charges which are received after the time so specified).
Therefore, the Claimant is not entitled to claim any of the following sums:
i. Damages cannot be claimed as the law puts a limit on how much can be claimed from the keeper.
ii. Debt recovery costs are not recoverable and have no legal basis.
iii. Operational costs are not recoverable from the Defendant.
iv. Interest payments under section 69 of the County Courts Act 1984 are not recoverable because the Claimant is not entitled to claim Debt or Damages.

11. The Department for Levelling Up, Housing and Communities ('DLUHC') has published, as of 7 February 2022, a statutory Code of Practice which all private parking operators are required to comply with, found here: links not allowed here.
The Government has clarified that adding 'debt recovery' fees on top of a parking charge is unreasonable and as such, is banned. In a very short section called 'Escalation of costs' the new Code says: "The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued." The Ministerial Foreword is unequivocal and robust, saying this about existing cases such as the present claim: "Private firms issue roughly 22,000 parking tickets every day, often adopting a labyrinthine system of misleading and confusing signage, opaque appeals services, aggressive debt collection and unreasonable fees designed to extort money from motorists."
In the present case, the Claimant has added a sum that their notorious industry variously describes as damages for debt recovery. These are banned costs which they have neither paid nor incurred. I aver that by continuing to pursue claims including this objectionable sum - when this serial litigator Claimant is indisputably aware due to their 'approved operator' membership of an Accredited Parking Association - that these exaggerated 'costs' are banned by the Government, appears to meet the high bar of wholly unreasonable conduct.
I believe that knowingly inflated claims such as this case should not be allowed to continue. I further observe that this conduct by parking firms operating under their previous Codes of Practice (described by several District Judges as 'self-serving') has caused inflated default judgments and consumer harm on a grand scale in recent years. The Court is invited to strike out the false 'damages/debt recovery' element at the very least and to consider whether the appropriate sanction may be to strike out the entire claim, in order to signal that the Court shares the Government's view regarding one of the most vexatious, greedy and intimidating elements of some members of the private parking industry's conduct in litigation.

In the matter of costs
12.If the claim is not struck out, I therefore seek:
i. Standard witness costs of attendance at court, pursuant to CPR 27.14; and
ii. The fixed sum for loss of earnings/loss of leave apply to any hearing format and are fixed costs at PD 27, 7.3(1) ''The amounts which a party may be ordered to pay under rule 27.14(3)(c) (loss of earnings)... are: (1) for the loss of earnings or loss of leave of each party or witness due to attending a hearing ... a sum not exceeding £95 per day for each person.”
iii. That any hearing is not vacated but continues as a cost hearing.

Statement of truth
I believe that the facts stated in this defence are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.