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#Post#: 14201--------------------------------------------------
Re: Failure to display Disabled parking badge
DIR By: b789
Date: January 23, 2024, 8:18 am
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If CEL v Chan is to be used, it has to include the transcript
embedded within the defence. It can't be attached to the
defence. In a WS it's a different matter.
Here is a DropBox link to JPG images of the transcript that can
be used to embed in a PDF:
HTML https://www.dropbox.com/scl/fo/90y3ef7cq2ve6leytxpjm/h?rlkey=oay2g5tpjko1999pddfi5ysln&dl=0
This is a DropBox link to the actual CEL v Chan transcript in
PDF format:
HTML https://www.dropbox.com/scl/fi/xy54utt9djv55xitfp7lk/CEL-appeal-transcript.pdf?rlkey=304syf9czf5arl3i1u1ircjln&dl=0
#Post#: 14241--------------------------------------------------
Re: Failure to display Disabled parking badge
DIR By: Moonella
Date: January 24, 2024, 5:14 am
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Hi I.m just about to file to service form to defend. Ive been
ill, i think the deadline is tomorrow. In the meantime I
actually contacted the manger of the retail park and he has
asked Parking Eye to cancel the invoice. They said they would
get back to him in 3 days but havent as yet. Ive also had a
letter from DCB legal asking if I want to settle before court
proceedings. I've ignored this, am I right in doing so?
Thanks
#Post#: 14247--------------------------------------------------
Re: Failure to display Disabled parking badge
DIR By: Nosy Parker
Date: January 24, 2024, 5:59 am
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You must file the defence before the deadline. Do not respond to
DCB Legal except to send them a copy of your defence
#Post#: 14250--------------------------------------------------
Re: Failure to display Disabled parking badge
DIR By: b789
Date: January 24, 2024, 6:40 am
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What is the “Issue date” on your claim form? Did you, and if so,
when did you acknowledge service of the claim?
If you are out of time, here is a link to a PDF of the basic
defence template you should download and edit. I already
included a link to the CEL v Chan transcript that you can
include as a “Preliminary matter” to add to the defence.
HTML https://www.dropbox.com/scl/fi/whzqzw08oyqsh84ftfi81/Updated-defence-Aug2023.pdf?rlkey=upj61b9pyrskxwtd7f8t8lmr8&dl=0
Please answer the question about the “Issue date” on your claim
form and I can assist in getting the defence prepped and filed
for you.
#Post#: 14295--------------------------------------------------
Re: Failure to display Disabled parking badge
DIR By: Moonella
Date: January 25, 2024, 3:39 am
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Hi the issue date was the 9th, I filed the AOS yesterday :)
#Post#: 14296--------------------------------------------------
Re: Failure to display Disabled parking badge
DIR By: Nosy Parker
Date: January 25, 2024, 4:07 am
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--- Quote from: Moonella link ---
>
> Hi the issue date was the 9th, I filed the AOS yesterday :)
>
--- End Quote ---
Thanks for letting us know. By my count, you now have until 4
pm on 12 February to file your defence, but don't leave it to
the last minute, even if my count is correct for once!
#Post#: 14305--------------------------------------------------
Re: Failure to display Disabled parking badge
DIR By: b789
Date: January 25, 2024, 8:33 am
---------------------------------------------------------
You have until 4pm on Monday 12th February to submit your
defence. That's 2½ weeks away. Plenty of time to prepare your
defence. You will submit your defence as a PDF attachment to an
email to ccbcaq@justice.gov. Do not use MCOL.
All you need to do is add your own, very brief, reason why you
were at the location.
---------------------------------------------------------
IN THE COUNTY COURT
[right]Claim No.: xxxxxx[/right]
Between
[center]Full name of parking firm Ltd. (not the solicitor!)
(Claimant)
- and -
Defendant’s name from N1 claim (can’t be changed to driver
now)


(Defendant)
_______________________________
DEFENCE[/center]
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').
Preliminary matter
2. The Defendant draws to the attention of the allocating Judge
that there is now a persuasive Appeal judgment to support
striking out the claim (in these exact circumstances of
typically poorly pleaded private parking claims, and the extant
PoC seen here are far worse than the one seen on Appeal). The
Defendant believes that dismissing this meritless claim is the
correct course, with the Overriding Objective in mind. Bulk
litigators (legal firms) should know better than to make little
or no attempt to comply with the Practice Direction. By
continuing to plead cases with generic auto-fill unspecific
wording, private parking firms should not be surprised when
courts strike out their claims based in the following persuasive
authority.
A recent persuasive appeal judgment in Civil Enforcement Limited
v Chan (Ref. E7GM9W44) would indicate the PoC fails to comply
with Civil Procedure Rule 16.4 and Practice Direction Part 16.
On the 15th August 2023, in the cited case, HHJ Murch held that
'the particulars of the claim as filed and served did not set
out the conduct which amounted to the breach in reliance upon
which the claimant would be able to bring a claim for breach of
contract'. The same is true in this case and in view of the Chan
judgment, the Court should strike out the claim, using its
powers pursuant to CPR 3.4
CEL v Chan transcript jpg’s inserted here
HTML https://i.imgur.com/vyAUGtj.jpeg
HTML https://i.imgur.com/BM9BC98.jpeg
HTML https://i.imgur.com/RlrBhLe.jpeg
HTML https://i.imgur.com/Ca8NseV.jpeg
The facts as known to the Defendant:
3. 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 is devoid of any detail and even lacks specific breach
allegation(s), making it very difficult to respond. However, it
is admitted that the Defendant was the registered keeper of the
vehicle.
^EDIT THIS PARAGRAPH RE WHO WAS DRIVING^.
If you were driving, 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!
[color=black]4. [EXPLAIN IN YOUR OWN WORDS...NB: defences are
written in the THIRD person as 'the Defendant', not 'I did this'
nor 'my/me'].
Explain briefly what business the driver had there & what went
wrong? If you don't know, didn't get any letters or it was
years ago & you cannot recall, say that instead. Signs unlit in
darkness? Did a permit slip off the dash? a VRM keying error?
If the PCN was issued at a residential site where the driver
lives or was a permitted visitor, state those parking rights.
It is recommended you continue with this (yes, all of
it)[/color]
5. 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.
6. 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
7. 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 by this Claimant, who is
put to strict proof of:
(i) the alleged breach, which is not pleaded in the PoC and
requires further and better particulars, and
(ii) a breakdown of how they arrived at the enhanced sum in the
POC, including how interest was calculated, which looks to be
improperly applied on the entire inflated sum, as if that was
all overdue on the day of the alleged event.
8. The Defendant avers that this claim is unfair and inflated
and it is denied that any sum is due, whether 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.
9. This case is a classic example where adding exaggerated fees
funds the 'numbers game' of bulk litigation of weak and/or
archive parking cases. MoJ statistics of bulk litigators reveal
that there are several hundred thousand parking claims per
annum, with some 90% causing default CCJs totalling hundreds of
millions of pounds. No checks and balances are likely to have
been made to ensure facts, merit or a proper cause of action
(given away by the woefully inadequate PoC).
10. The Department for Levelling Up, Housing and Communities
('the DLUHC') first published a statutory Parking Code of
Practice in February 2022, here:
HTML https://www.gov.uk/government/publications/private-parking-code-of-practice

<br
/>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."
11. Despite legal challenges delaying the Code's implementation
(marking it as temporarily 'withdrawn') a draft Impact
Assessment (IA) to finalise it was published on 30th July 2023.
The Government's analysis has exposed what they state are
industry-gleaned facts about supposed 'Debt Fees'. The analysis
is found here:
HTML https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1171438/Draft_IA_-_Private_Parking_Code_of_Practice_.pdf
12. Paragraphs 4.31 and 5.19 suggest that the parking industry
has informed the DLUHC that the true minor cost of what the
parking industry calls debt recovery or 'enforcement' ( =
pre-action) stage totals a mere £8.42 per recovery case (not per
PCN).
13. With that in mind, it is clear that the extant claim has
been enhanced by an extreme sum, believed to be routinely
retained by the litigating legal team, not the Claimant. In
this Claim it is additional to the intended 'legal
representatives fees' cap set within small claims track rules.
This conduct has been examined and found - including in a
detailed judgment by Her Honour Judge Jackson, now a specialist
Civil High Court Judge on the Leeds/Bradford circuit - to
constitute 'double recovery'. The Defendant takes that position.
14. The draft IA shows that the intimidating letter-chains
actually cost 'eight times less' than the seemingly
'price-fixed' +£70 per PCN. This causes consumer harm in the
form of almost half a million wrongly-enhanced CCJs each year,
that District Judges are powerless to prevent. This false fee
was enabled by the self-serving Codes of Practice of the rival
parking Trade Bodies who suddenly aligned in 2021 re allowing
+£70, each led by a Board of the very parking operators and debt
firms who stood to gain from it. 

15. It is denied that the purported damages or Debt Fee sought
was incurred or is recoverable. Attention is drawn to paras 98,
100, 193, 198 of ParkingEye Ltd v Beavis [2015] UKSC67 ('the
Beavis case'). 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 later ratified by the CoA)
held in paras 419-428 that unspecified 'admin costs' inflating a
parking charge to £135 was not a true reflection of the cost of
a template letter and 'would appear to be penal'.

16. This Claimant has not incurred costs. A parking charge model
already includes what the Supreme Court called an 'automated
letter-chain' and it is a model that generates a healthy profit.
In Beavis, there were 4 pre-action letters/reminders and the £85
'PCN' was held to more than cover the minor costs of the
operation. The DLUHC's IA confirms that the parking charge more
than covers the minor costs of the letters (NB: the debt
collectors do not charge anything in failed collection cases).
17. Whilst the new Code is not retrospective, all non-monetary
clauses went unchallenged by the parking industry. The 2022
DLUHC Code will replace the self-serving BPA & IPC Codes, which
are not regulation and carry limited weight. In a clear steer
for the Courts and for the avoidance of doubt: the DLUHC say
they are addressing 'market failure'.
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. Further, the Claimant is put to strict proof of POFA
compliance.
19. The Defendant avers that the DLUHC's analysis now overrides
plainly wrong assumptions made by Circuit Judges steered by
Counsel in astonishingly weak appeal cases that the parking
industry engineered their way: Britannia v Semark-Jullien, One
Parking Solution v Wilshaw, Vehicle Control Services v Ward and
Vehicle Control Services v Percy. Far from being persuasive,
regrettably these one-sided appeals cherry-picked
litigant-in-person consumers without the wherewithal to appeal.
Incorrect presumptions were made in every case; and there were
major evidence discrepancies (e.g. in Wilshaw, where the Judge
was also oblivious to the DVLA KADOE requirement for landowner
authority). One Judge inexplicably sought out for himself and
quoted from the wrong Code of Practice (Percy). In Ward, a few
seconds' emergency stop out of the control of the driver was
wrongly aligned with the agreed contract in Beavis.
20. 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
failed to erect well-placed, large and readable signs on a par
with the yellow & black warnings seen in Beavis, and unlike the
signage requirements set out in the DLUHC Code which reflects
the already statutory requirement for 'prominence' (Consumer
Rights Act 2015 - the 'CRA').


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


HTML https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/450440/Unfair_Terms_Main_Guidance.pdf
22. 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 intended to be read by consumers. Signage
must be prominent (lit in hours of darkness/dusk) and all terms
must be unambiguous and contractual obligations clear.
23. 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).


Parking Eye v Beavis is distinguished
24. Unlike in Beavis, the penalty rule remains engaged in this
claim due to the unconscionable added 'Fee'. The CRA covers
disproportionate sums, which are not exempt from being assessed
for fairness because a late-added Fee is not the core parking
price term and neither was it prominently proclaimed on the
signs.
25. 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 the alleged breach. The intention cannot be to punish a
driver, nor to present them with hidden terms,
unexpected/cumbersome obligations nor 'concealed pitfalls or
traps'. In the present case, the Claimant has fallen foul of
those tests. Their small signs have vague/hidden terms and
minuscule text, 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".
26. Fairness and clarity of terms and notices are paramount in
the DLUHC Code and these clauses stand unchallenged and are
supported by the BPA & IPC. In November 2020's Parking Review,
solicitor Will Hurley, CEO of the IPC, 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. The introduction of a new ‘Code of Practice for
Parking’ provides a wonderful opportunity to provide clarity and
fairness for motorists and landowners alike."
Lack of standing or landowner authority, and lack of ADR
27. DVLA data is only supplied to pursue parking charges 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 in their own name.
28. The Claimant failed to offer a genuinely independent
Alternative Dispute Resolution (ADR). The Appeals Annex in 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 (2020
Annual Report). The Claimant's consumer blame culture and
reliance upon their own 'appeals service' (described by MPs as a
kangaroo court and about to be replaced by the DLUHC, who have
in the IA criticised the lack of transparency or independence)
should lead Judges to realise that a truly fair appeal was never
on offer.


Conclusion
29. 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 claims like this should be struck
out.
30. 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.
31. Attention is drawn specifically 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.
Defendant’s signature:
Date:
#Post#: 14349--------------------------------------------------
Re: Failure to display Disabled parking badge
DIR By: Moonella
Date: January 26, 2024, 6:23 am
---------------------------------------------------------
Thank you so much, do I mention my disabilities and how they
affect my memory, which caused me to forget the badge on the
dashboard. Im terrible for forgetting and have done it in other
locations but never got a pcn for it. I now have to have a
prompt in the car as my brain is like a sieve for short term
memory stuff/brain fog.
Thank you :)
#Post#: 14358--------------------------------------------------
Re: Failure to display Disabled parking badge
DIR By: b789
Date: January 26, 2024, 8:31 am
---------------------------------------------------------
--- Quote from: Moonella link ---
>
> Hi the issue date was the 9th, I filed the AOS yesterday :)
>
--- End Quote ---
Good. You now have until 4pm on Monday the 12th February to file
your defence.
Just show us your modified paragraphs 3 and 4 when you have
edited the defence I provided above. We don't need to see the
whole of the defence. If you decided to add another paragraph,
you will need to make sure that all subsequent paragraphs are
renumbered sequentially.
Don't try and write "War and Peace". Just simple facts. As the
PoC are so sparse, it is not your job to fill in all the details
they have failed to provide. Should it ever get as far as a
hearing, you will create a witness statement which expands on
your defence.
#Post#: 15161--------------------------------------------------
Re: Failure to display Disabled parking badge
DIR By: Moonella
Date: February 7, 2024, 5:00 am
---------------------------------------------------------
Hi thank you so much for all your help. Here are the two
paragraphs for you to look over.
3. 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 is devoid of any detail and even lacks specific breach
allegation(s), making it very difficult to respond. However, it
is admitted that the Defendant was the registered keeper and
driver of the vehicle.
4. The defendant was parked in the disabled bay on the day in
question and was using the facilities at the retail park. The
defendant had, and still holds, a valid disability badge. Due to
the nature of the defendant’s various disabilities and
medications, she can suffer from brain fog and short term
forgetfulness, which affects various areas of her life. The
defendant forgot to put the badge on the dashboard, although it
was in the holder next to her. She did not notice signs
requesting displaying of a valid disability badge and returned
to her car well within the allotted time of 2 hours.
Does the signature have to be an actual signature?
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