Free Traffic Legal Advice

Good morning everyone, long time Pepipoo user and I had a long thread running on there about my PCN. I've been advised to join this forum so thank you in advance, I appreciate your support and time to read this.

I've had a long running PCN which I've ignored since the original appeal. However, I've now had a court claim through the post, dated 28th Aug.

Back in 2020 I complained to POPLA and the assessor upheld the complaint.

I complained to POPLA's complaints team about the assessor on this basis:

This appeal must be allowed because the operator Euro Car Parks failed to deliver a notice to hirer that was fully compliant with the requirements of paragraph 14 of Schedule 4 of the Protection of Freedoms Act (PoFA) 2012, which is relevant to the hirer and operator. The assessor appears to be mistakenly using POFA 13 for the operator/hirer relationship. The operator has not shown that the individual it is pursuing is the driver of the vehicle and potentially liable for the charge. I have referred to the right to not name the name and keeper liability. A notice to hirer was sent to the appellant on 11/06/2020, this was after a PCN was issued to the hire company on 27/05/2020. The operator has failed to provide evidence which shows that the appellant had signed a statement of liability when he hired the vehicle and that this was sent along with the PCN. The assessor has completely ignored the requirement to supply the hire agreement and notice to keeper with the notice to hirer.

The assessor has used the phrase “registered hirer” in their response, I would ask what meaning does this have in the context of this case as it is not clear as to what he means. The registered hirer could not possibly be the registered keeper as this role is taken by the hire company, more clarity is needed by the assessor and I would hasten to say more training. I feel that the lead assessor in this matter has erred in the interpretation of law, it must be reviewed and the decision amended to one of an upholding of the appeal.

I then received this response from the complaint's team:

I note within your grounds of appeal you stated:

“1) The Operator failed to deliver a Notice to Hirer that was fully compliant with the requirements of Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”).”

You raised concerns about hirer liability. As you have not identified as the driver, the operator can only seek to hold you responsible for the PCN under hirer liability.

Having reviewed the operator’s evidence, I can see that the operator is holding you responsible for the PCN. In its evidence it states that you identified as the driver, then you declined to identify the driver, so it is holding you responsible as hirer. I also note that you did not identify as the driver.

As such the assessor was required to review the relevant sections of PoFA2012 that applied.

Schedule 4 Paragraph 14 of PoFA 2012 states:

“(2) The conditions are that—

(a)the creditor has within the relevant period given the hirer a notice in accordance with sub-paragraph (5) (a “notice to hirer”), together with a copy of the documents mentioned in paragraph 13(2) and the notice to keeper;”

Paragraph 13 (2) OF PoFA 2012 states:

“The creditor may not exercise the right under paragraph 4 to recover from the keeper any unpaid parking charges specified in the notice to keeper if, within the period of 28 days beginning with the day after that on which that notice was given, the creditor is given—

(a)a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement;

(b)a copy of the hire agreement; and

(c)a copy of a statement of liability signed by the hirer under that hire agreement.”

Having viewed the operator’s evidence I can see that the operator has not provided any documents.

The assessor within their grounds of appeal was satisfied that hirer liability was met when assessing this appeal. Whilst this is not the decision I would have made personally; the assessor has considered all evidence and ultimately made an incorrect judgement call. The assessor has not made a procedural error and as such the case would not need reassessing.

I have taken your feedback on board and forwarded this to the assessor’s team leader for coaching purposes and have upheld this complaint.

I ignored the letters I received subsequently and as much as I have fought up until this point, I'd be really grateful for a little guidance on the next steps based on the information above please.

Happy to provide any redacted docs necessary.

Thanks

POPLA are slightly better now at interpreting POPLA. However, as you have seen, they will never reverse a decision once made, irrespective of whether they erred.

Never mind. The ultimate dispute resolution service is the small claims track in the county court. You appear to be at this stage.

Have you received an N1SDT claim form from the CNBC? If so, what is the “issue date” on it. Also, who is the Claimant and, if they’re using one, the solicitor?

Please show us the Particulars of Claim (PoC).

As I’m not familiar with this case from Pepipoo, I don’t need any more details at this point as I would like to see the PoC for CPR 16.4 failures of compliance and whether it is even possible to understand what happened and the basis of thei claim.

POPLA are slightly better now at interpreting POPLA. However, as you have seen, they will never reverse a decision once made, irrespective of whether they erred.

Never mind. The ultimate dispute resolution service is the small claims track in the county court. You appear to be at this stage.

Have you received an N1SDT claim form from the CNBC? If so, what is the “issue date” on it. Also, who is the Claimant and, if they’re using one, the solicitor?

Please show us the Particulars of Claim (PoC).

As I’m not familiar with this case from Pepipoo, I don’t need any more details at this point as I would like to see the PoC for CPR 16.4 failures of compliance and whether it is even possible to understand what happened and the basis of thei claim.

Thanks for the prompt response.

Here is the claim form. The issue date is 28th Aug, I've been away and just returned last night to the letter.

With an issue date of 28th August, you have until Monday 16th September to file your Acknowledgement of Service (AoS). To file your AoS, follow the advice in this document:

https://www.dropbox.com/s/xvqu3bask5m0zir/money-claim-online-How-to-Acknowledge.pdf?dl=0

There is no advantage in delaying the AoS and once filed, you then have until 4pm on Monday 30th September to file your defence. Do not file your defence using the MCOL website. It will be filed as a PDF attachment to an email to claimresponses.cnbc@justice.gov.uk and CC in yourself.

Please show us exactly the location of the car park as shown 9n the claim form in the Particulars of Claim (PoC).

We will get back to you with some suggestions for your defence once you can confirm that you have completed the AoS.

Sorry, I've looked over this form and I don't see a 9N.

I just have:

N1SDT
N9SDT
N9A
N9B

In my pack.

It should say "as shown in the claim form".

The location is The Meadows Retail Park Chelmsford.

I just read my appeal back, and it was very thorough at the time. I've started building my defence document from this template.

IN THE COUNTY COURT

Claim No.:  xxxxxx

Between

Full name of parking firm Ltd, not the solicitor!

(Claimant)

- and - 

Defendant named on claim (can’t be changed to driver now)                       

 (Defendant)

_________________

DEFENCE



1.  The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that any conduct by the driver was in breach of any term.  Further, it is denied that this Claimant (understood to have a bare licence as agents) has standing to sue or form contracts in their own name. Liability is denied, whether or not the Claimant is claiming 'keeper liability', which is unclear from the boilerplate text in the Particulars of Claim ('the POC').



The facts known to the Defendant:

2. The facts in this defence come from the Defendant's own knowledge and honest belief.  Conversely, the Claimant sets out a cut-and-paste incoherent and sparse statement of case. The POC appear to be in breach of CPR 16.4, 16PD3 and 16PD7, and fail to "state all facts necessary for the purpose of formulating a complete cause of action". The Defendant is unable, on the basis of the POC, to understand with certainty what case, allegation(s) and what heads of cost are being pursued, making it difficult to respond. However, the vehicle is recognised and it is admitted that the Defendant was the registered keeper.

^EDIT THIS PARAGRAPH If you weredriving, add 'and driver' after the word 'keeper'.

OR if the Defendant doesn't know who was driving, say that.

OR deny being the driver if you weren't: ONLY IF TRUE!



3. [EXPLAIN IN YOUR OWN WORDS...NB: defences are written in the THIRD person as 'the Defendant', not 'I did this' nor 'my/me'].

Say why the car was there - if you know - but don't answer to details that are not stated in the PARTICULARS OF CLAIM. If you didn't get any letters or it was years ago & you can't recall if you were driving, say that.  ONLY IF TRUE.

Most claims do not even state the alleged breach. If yours doesn't state what the breach was, add the paragraphs and judgments seen in the defence by @hharry100  here:

https://forums.moneysavingexpert.com/discussion/comment/80343627/#Comment_80343627

and change the paragraph numbering.

If this was a residential site where the driver lives/was a permitted visitor, statethose parking rights.

Older residential defence examples are in the NEWBIES thread.  CRIB SOME PARAGRAPHS BUT USE THIS TEMPLATE AS YOUR BASE.

We recommend you continue with this wording  (yes, all of it. Paragraphs suitably re-numbered to allow for the above).



4. The Claimant will concede that no financial loss has arisen and that in order to impose an inflated parking charge, as well as proving a term was breached, there must be:

(i). a strong 'legitimate interest' extending beyond mere compensation for loss, and

(Ii). 'adequate notice' of the 'penalty clause' charge which, in the case of a car park, requires prominent signs and lines.

5. The Defendant denies (i) or (ii) have been met. The charge imposed, in all the circumstances is a penalty, not saved by ParkingEye Ltd v Beavis [2015] UKSC67 ('the Beavis case'), which is fully distinguished.


Exaggerated Claim and 'market failure' currently being addressed by UK Government
6. The alleged 'core debt' from any parking charge cannot exceed £100 (the industry cap).  It is denied that any 'Debt Fees' or damages were actually paid or incurred.

7. This claim is unfair and inflated and it is denied that any sum is due in debt or damages. This Claimant routinely pursues an unconscionable fixed sum added per PCN, despite knowing that the will of Parliament is to ban it.

8. This is a classic example where adding exaggerated fees funds bulk litigation of weak and/or archive parking cases. No checks and balances are likely to have been made to ensure facts, merit or a cause of action (given away by the woefully inadequate POC).

9. The Department for Levelling Up, Housing and Communities ('the DLUHC') published a statutory Parking Code of Practice in February 2022: https://www.gov.uk/government/publications/private-parking-code-of-practice.

The Ministerial Foreword is damning: "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."

10. Despite legal challenges delaying the Code (temporarily withdrawn) it is now 'live' after a draft Impact Assessment (IA) was published on 30th July 2023. The Government's analysis is found here:  https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1171438/Draft_IA_-_Private_Parking_Code_of_Practice_.pdf

11. Paragraphs 4.31 and 5.19 state that the parking industry has shown the DLUHC that the true minor cost of pre-action stage totals a mere £8.42 per case (not per PCN).

12. This claim has been enhanced by a disproportionate sum, believed to enrich the litigating legal team. It appears to be double recovery, duplicating the intended 'legal fees' cap set by small claims track rules.

13. The draft IA shows that the intimidating letter-chains endured by Defendants cost 'eight times less' than the  fixed +£70 per PCN. This causes immense consumer harm in the form of some half a million wrongly-enhanced CCJs each year, that Judges are powerless to prevent.  MoJ statistics reveal several hundred thousand parking claims per annum, with c90% causing default CCJs totalling hundreds of millions of pounds. The false fee was enabled by the self-serving Codes of Practice of the rival parking Trade Bodies who aligned in 2021 to allow +£70, each led by a Board comprising the parking and debt firms who stood to gain from it.

14. It is denied that the added damages/fee sought was incurred or is recoverable. Attention is drawn to paras 98, 100, 193, 198 of Beavis.  Also ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was £75, discounted to £37.50 for prompt payment.  Whilst £75 was reasonable, HHJ Hegarty (decision ratified by the CoA) held in paras 419-428 that 'admin costs' inflating a PCN to £135 exaggerated the cost of template letters and 'would appear to be penal'.

15. This Claimant has not incurred costs. A PCN model already includes what the Supreme Court called an 'automated letter-chain' and it generates a healthy profit. In Beavis, there were 4 pre-action letters/reminders and £85 was held to more than cover the minor costs of the operation (NB: debt collectors charge nothing in failed collection cases).

16. Whilst the new Code is not retrospective, all non-monetary clauses went unchallenged. It will replace the self-serving BPA & IPC Codes, which are not regulation and carry limited weight.  It is surely a clear steer for the Courts that the DLUHC said in 2023 that it is addressing 'market failure'.

17. At last, the DLUHC's analysis overrides plainly wrong findings by Circuit Judges steered by Counsel in weak appeal cases that the parking industry steamrollered through. In Vehicle Control Services v Percy, HHJ Saffman took a diametrically opposed position to that taken by DJ Hickinbottom, DJ Jackson (as Her Honour Judge Jackson then was), and other District Judges on the North Eastern Circuit, including DJ Skalskyj-Reynolds and DJ Wright (Skipton) all of whom have consistently dismissed extortionate added 'fees/damages'. District Judges deal with private parking claims on a daily basis, whereas cases of this nature come before Circuit Judges infrequently. The Judgments of HHJ Parkes in Britannia v Semark-Jullien, and HHJ Simpkiss in One Parking Solution v Wilshaw were flawed. These supposedly persuasive judgments included a universal failure to consider the court's duty under s71 of the CRA 2015 and factual errors. In Wilshaw: a badly outdated reliance on 'ticket cases' which allowed poor signage to escape fair scrutiny and a wrong presumption that landowner authority 'is not required' (DVLA rules make it mandatory). In Percy, HHJ Saffman made an incorrect assumption about pre-action costs and even sought out the wrong Code of Practice of his own volition after the hearing, and used it to inform his judgment.

18. In addition, pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 ('the POFA') the sum claimed exceeds the maximum potentially recoverable from a registered keeper. The Claimant is put to strict proof of POFA compliance if seeking 'keeper liability'.

19. The Defendant avers that there was no agreement to pay a parking charge or added 'damages' which were not even incurred, let alone quantified in bold, prominent text. This Claimant's lack of large, readable signs are nothing like the yellow & black warnings seen in Beavis, nor do they meet the signage requirements in the DLUHC Code which reflects the already statutory requirement for 'prominence' (Consumer Rights Act 2015 - the 'CRA').

CRA breaches

20. Section 71 CRA creates a statutory duty upon Courts to consider the test of fairness whether a party raises it or not. Further, claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3):

 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/450440/Unfair_Terms_Main_Guidance.pdf

21. The CRA introduced new requirements for 'prominence' of both terms and 'consumer notices'.  In a parking context, this includes a test of fairness and clarity of 'signs & lines' and all communications (written or otherwise). Signs must be prominent (lit in hours of darkness/dusk) and all terms must be unambiguous and contractual obligations clear.

22.  The Defendant avers that the CRA has been breached due to unfair/unclear terms and notices, pursuant to s62 and paying regard to examples 6, 10, 14 & 18 of Schedule 2 and the duties of fair/open dealing and good faith (NB: this does not necessarily mean there has to be a finding of bad faith). 

ParkingEye v Beavis is distinguished

23.  Unlike in Beavis, the penalty rule remains engaged. The CRA covers disproportionate sums, which are not exempt from being assessed for fairness because a 'fee' is not the core price term and neither was it prominently proclaimed on the signs. 

24. The Supreme Court held that deterrence is likely to be penal if there is a lack of a 'legitimate interest' in performance extending beyond the prospect of compensation flowing directly from alleged breach.  The intention cannot be to punish a driver, nor to present them with hidden terms or cumbersome obligations ('concealed pitfalls or traps').  This Claimant has failed those tests, with small signs, hidden terms and minuscule small print that is incapable of binding a driver. Court of Appeal authorities about a lack of ‘adequate notice’ of a parking charge include:

(i) Spurling v Bradshaw [1956] 1 WLR 461 (Lord Denning's ‘red hand rule’) and

(ii) Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ2,

both leading authorities that a clause cannot be incorporated after a contract has been concluded; and

(iii) Vine v London Borough of Waltham Forest: CA 5 Apr 2000, where Ms Vine won because it was held that she had not seen the terms by which she would later be bound, due to "the absence of any notice on the wall opposite the parking space''.

25.  Fairness and clarity of terms and notices are paramount in the DLUHC Code and these clauses are supported by the BPA & IPC. In the official publication 'Parking Review' the IPC's CEO observed: "Any regulation or instruction either has clarity or it doesn’t. If it’s clear to one person but not another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive of all parties involved – it’s either fair or it isn’t."

Lack of standing or landowner authority, and lack of ADR

26. DVLA data is only supplied if there is an agreement flowing from the landholder (ref: KADOE rules). It is not accepted that this Claimant (an agent of a principal) has authority to form contracts at this site in their name. The Claimant is put to strict proof of their standing to litigate.

27. The Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR). The DLUHC Code shows that genuine disputes such as this should see PCNs cancelled, had a fair ADR existed. The rival Trade Bodies' time-limited and opaque 'appeals' services fail to properly consider facts or rules of law and reject most disputes: e.g. the IAS upheld appeals in a woeful 4% of decided cases (ref: Annual Report).  This consumer blame culture and reliance upon their own 'appeals service' (described by MPs as a kangaroo court and about to be replaced by the Government) should satisfy Judges that a fair appeal was never on offer.

Conclusion

28. There is now evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims that are causing consumer harm.  The July 2023 DLUHC IA analysis shows that the usual letter-chain costs eight times less than the sum claimed for it.  The claim is entirely without merit and the POC embarrassing.  The Defendant believes that it is in the public interest that poorly pleaded claims like this should be struck out.

29. In the matter of costs, the Defendant seeks:

(a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and

(b) a finding of unreasonable conduct by this Claimant, and further costs pursuant to CPR 46.5.

30.  Attention is drawn to the (often-seen) distinct possibility of an unreasonably late Notice of Discontinuance. Whilst CPR r.38.6 states that the Claimant is liable for the Defendant's costs after discontinuance (r.38.6(1)) this does not 'normally' apply to claims allocated to the small claims track (r.38.6(3)). However, the White Book states (annotation 38.6.1): "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))." 



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.

Signature:

Date:

It's verbiage, waffle. Lacks any coherence and what's more you've no understanding of the matters.

Why you want to cast doubt on who was driving by giving such apparent eye-witness views with such clarity regarding signs I've no idea.

The LAW.

If the claimant wants to hold the hirer liable in lieu of the keeper then the keeper and claimant must comply with PoFA.

As regards the keeper:
To challenge their liability by providing the prescribed docs in s13.

As regards the claimant:
To issue an in-time notice to the hirer which includes mandatory info and is accompanied by the specified docs which ARE NOT just those in s13 but include the original PCN.

Have both parties complied?

This is not about codes of practice but the law. Keep it short and to the point IMO.

Plus, IMO you could ask for the court to strike out the claim by virtue of not being brought in a timely manner.

6 years is not a target, it's the ultimate limit. The claimant in this case was fully aware of all relevant info after POPLA's decision was served in 2020, 4 years ago. The only apparent purpose in delaying pursuing their claim would seem to be to hope that the defendant had moved or forgotten matters or died or whatever such that they might obtain a default judgment. Luckily for you, you were still at the same address and received their claim, otherwise you could have found yourself subject to a default judgment.

For now, have you completed the AoS as advised?

Obviously POPLA didn’t accept the PoFA no Hirer liability. At any stage was the hirer identified as the driver? If the driver has been identified, PoFA ceases to be relevant.

As this is a claim filed by DCB Legal, as long as a defence is submitted, any defence, it is 99% likely to end as a discontinuation just before any hearing date. It is their modus operandi. However, we have to take into account the 1% chance it would actually end up as a hearing.

For now, the most important thing is to make sure the AoS is done. The long defence from the MSE forum that you have shown us, is not necessary. What happened at POPLA is irrelevant to the situation now.

Imagine that you had never known anything about this PCN and the first you heard about it was what is in the Particulars of Claim (PoC). Based on that woefully inadequate information, how would you defend yourself? The claim form is the only information you have.

Think about what you could glean from that bit of information and then think how you answer the allegation? Is the date shown the actual date that the PCN was issued or is it the date of the alleged parking contravention? Is the sum of the alleged debt correct? How much is the charge and how much is damages or debt recovery fees? Is the interest correctly calculated from whatever date it became due? If you are being accused of being the driver, can they prove that allegation? If they are claiming that you are the Keeper, can they prove keeper liability?

Remember, the burden of proof is on the claimant to prove their claim, not on the defendant. Do not put words or details not alleged into any defence that gives them ammunition to use against you.

Maybe a read of CPR 16.4 would help you understand whether they have complied with all its requirements. After all, rules are rules and if they have failed to comply with any, their claim can be argued to be deficient and struck out.

For now, have you completed the AoS as advised?

Obviously POPLA didn’t accept the PoFA no Hirer liability. At any stage was the hirer identified as the driver? If the driver has been identified, PoFA ceases to be relevant.

As this is a claim filed by DCB Legal, as long as a defence is submitted, any defence, it is 99% likely to end as a discontinuation just before any hearing date. It is their modus operandi. However, we have to take into account the 1% chance it would actually end up as a hearing.

For now, the most important thing is to make sure the AoS is done. The long defence from the MSE forum that you have shown us, is not necessary. What happened at POPLA is irrelevant to the situation now.

Imagine that you had never known anything about this PCN and the first you heard about it was what is in the Particulars of Claim (PoC). Based on that woefully inadequate information, how would you defend yourself? The claim form is the only information you have.

Think about what you could glean from that bit of information and then think how you answer the allegation? Is the date shown the actual date that the PCN was issued or is it the date of the alleged parking contravention? Is the sum of the alleged debt correct? How much is the charge and how much is damages or debt recovery fees? Is the interest correctly calculated from whatever date it became due? If you are being accused of being the driver, can they prove that allegation? If they are claiming that you are the Keeper, can they prove keeper liability?

Remember, the burden of proof is on the claimant to prove their claim, not on the defendant. Do not put words or details not alleged into any defence that gives them ammunition to use against you.

Maybe a read of CPR 16.4 would help you understand whether they have complied with all its requirements. After all, rules are rules and if they have failed to comply with any, their claim can be argued to be deficient and struck out.

Thanks for both of your responses.

I have completed the AoS so I will have a good read of what you have put and respond shortly.

OP, have the PoC disappeared?