DCBL Highview Parking

IN THE COUNTY COURT AT NEWCASTLE UPON TYNE 

CLAIM NO: [CLAIM NUMBER]

BETWEEN: -

HIGHVIEW PARKING LIMITED

CLAIMANT

AND

[DEFENDANT'S NAME]

DEFENDANT

________________________________________________

THE FIRST WITNESS STATEMENT OF AMY STEPHENS

________________________________________________

I, Amy Stephens, will state as follows: -

1. I am an employee of DCB Legal Ltd of Direct House, Greenwood Drive, Manor Park, Runcorn, WA7 1UG. I am duly authorised to make this Witness Statement on behalf of the Claimant. The facts and matters set out in this statement are within my own knowledge unless otherwise stated and I believe them to be true. Where I refer to information supplied by others, the source of the information is identified; facts and matters derived from other sources are true to the best of my knowledge and belief.

2. I confirm I have reviewed case management systems operated by Direct Collection Bailiffs Limited (“DCBL”) and my Company. I have also reviewed documents provided by the Claimant. All of which are contemporaneous records of incoming and outgoing correspondence and telephone calls. I am able to make this Witness Statement from my review.

The Parties

3. The Claimant offers private car park management services to private Landowners; primarily to manage the way in which motorists are permitted to park whilst on their private Land. The Claimant’s services can include issuing Parking Charge Notices to any Vehicles parked in a way the private Landowner does not permit.

4. At all material times, the Claimant was accredited by the Accredited Trade Association (“ATA”) known as the British Parking Association, which is one of the two ATAs serving the parking sector. The ATA has a Code of Practice (“COP”) that its members are expected to adhere to; and failing which they face potential sanctions. Given the Claimant’s membership; it was evidently operating in accordance with the COP.

5. In order to obtain Registered Keeper details from the Driver and Vehicle Licensing Agency (“DVLA”) it is a requirement that the operator be a member of one of the two ATAs. It is therefore essential to the Claimant’s business to ensure it complies with the COP.

6. The Defendant is the recipient of Parking Charge Notices (“PCNs”) issued by the Claimant; the details of which are set out below.

Background

7. The Claimant issued PCNs (“Charges”) to a vehicle (“Vehicle”) with registration details listed below: -

PCN No. Location VRN Issue Date Reason for Issue

2000010651827 Osborne Street, DN31 1NB FY66ZTE 18/11/2019 Failure to pay for parking

2000010654717 Osborne Street, DN31 1NB FY66ZTE 29/11/2019 Failure to pay for parking

2000010654718 Osborne Street DN31 1NB FY66ZTE 29/11/2019 Failure to pay for parking

2000010657151 Osborne Street DN31 1NB FY66ZTE 02/12/2019 Failure to pay for parking

22000010657152 Osborne Street DN31 1NB FY66ZTE 05/12/2019 Failure to pay for parking.

8. At the time of issue; the Claimant was instructed by the owner of the Land (“Landowner”) to manage parking on the Land. A copy of the agreement with the Landowner (“Landowner Agreement”) is exhibited to this Statement at “EXHIBIT 1”.

9. I refer to the recent decision in One Parking Solution Ltd v Wilshaw [2021] (Wilshaw) whereby it was found that it is not necessary for the Claimant to prove the Landowner’s authority to constitute a valid cause of action to recover the PCN, what is required is proof that there is a binding Contract between the Claimant and the Defendant. Further, it was found in Wilshaw that the Contract between the Claimant and the Freeholder (Landowner) does not affect the validity of any Contract between the Claimant and the Defendant.

10. At the time of issue, the Claimant was prominently displaying signs on the Land stipulating the terms of parking. A copy of the content of the signs is exhibited to this Statement at “EXHIBIT 2”. The signs formed the basis of the Contract with the Driver (“Contract”).

11. The following was a term of the Contract: -

“Pay by phone only - Payment to be made on entry or exit via the JustPark app, please see the applicable signage for further information Parking charges apply Monday to Sunday, 24 hours a day”.

12. In parking the Vehicle on the Land, the Driver accepted the Contract, with the ‘parking service’ being the consideration. It is evident from the photographic evidence exhibited to this Statement at “EXHIBIT 3” that the Vehicle remained on the Land on each occasion, yet the Claimant holds no record of any payment for parking, therefore; the Driver failed to adhere to the terms of the Contract as described above, thus breaching the Contract.

13. The Contract provides that a charge is payable by the Driver if it is breached: with payment falling due within 28 days. The Contract (i.e. the signs) was prominently displayed on the Land and in this regard a site plan showing the positioning is exhibited to this Statement at “EXHIBIT 4”.

314. The Claimant utilises Automatic Number Plate Recognition (“ANPR”) technology on the Land in order to manage the parking. Cameras capable of accurately recognising the Vehicle Registration Number of a Vehicle are constantly monitoring the entrance and exit to the Land. A photograph is taken of each Vehicle as it enters the Land, and again as it exits. Any Vehicle found to have breached the terms of parking will be issued with a PCN.

15. In order to issue PCNs, the Claimant requests the details of the Registered Keeper from the DVLA and upon receipt of those details, notification of the PCN is sent to the Keeper via the post. Copies of the Charge Notices are exhibited to this Witness Statement at “EXHIBIT 5”, together with the Final Reminder Notices sent.

16. The Claimant reasonably believes that the Defendant was the Driver. The Defendant has been given ample opportunity to nominate a Driver (if it was not them) but has not. If the Defendant was not the Driver, I respectfully submit they would have done so.

Steps taken to recover the debt

17. The Claimant initially instructed DCBL to commence debt recovery action and letters were sent to the Defendant.

18. The letters referred to above were not returned undelivered, however, due to no contact being received from the Defendant a trace was conducted prior to the issuing of Court proceedings. The trace confirmed that ‘Apartment 4, 81 Jesmond Road, Newcastle Upon Tyne, NE2 1NH’ – the address at which the Claim was issued, was most likely to be the Defendant’s residential address at that time.

19. The Claimant then instructed my firm to issue Court proceedings. A ‘Letter of Claim’ was sent to the Defendant on 01/12/2022 in compliance with the Pre-Action Protocol for Debt Claims. A copy of the Letter of Claim is also exhibited at “EXHIBIT 6”.

20. As the Defendant failed to pay the sums due, the Claimant issued Court proceedings in order to recover the money owed. Following the Claim being issued, there was no response to the Claim Form and the same was not returned undelivered. Accordingly, Judgment in default was granted on 30/05/2023, payable forthwith.

Application to set aside Judgment

21. I confirm I have read the Application Notice filed by the Defendant. In response to the issues raised, I would say as follows: -

a. The Claim Form was correctly served at the Defendant’s last known address pursuant to CPR 6.9. Pursuant to CPR 6.9(3), the Claimant took all reasonable steps to ascertain the Defendant’s current address by conducting a trace and this trace result provided the Claimant with ‘knowledge’ of the Defendant’s address. Furthermore, my firm have not been made aware by the Court that the Claim Form has been returned as undelivered or “gone away”;

b. Within their Application, the Defendant confirms that their current address is ‘Apartment 4, 81 Jesmond Road, Newcastle Upon Tyne, NE2 1NH’, which is the same address the Claim Form was served to;

c. The Judgment was a regular Judgment, pursuant to CPR 12.3;

d. As the Defendant failed to respond to the Claim Form, an Application should also have been made for relief from sanctions pursuant to CPR 3.9, as set out in Redbourne Group Ltd -v- Fairgate Development Limited [2017] EWHC 1223 (TCC). No such Application has been made;

The Rules

22. CPR Part 3.9 provides as follows: -

a. “On an Application for relief from any sanction imposed for a failure to comply with any rule, practice direction or Court order, the Court will consider all the circumstances of the case, so as to enable it to deal justly with the Applications, including the need –

b. For litigation to be conducted efficiently and at proportionate cost; and

c. To enforce compliance with rules, Practice Directions and Orders …”

23. CPR Part 13.3 provides as follows: -

a. In any other case, the Court may set aside or vary a Judgment entered under Part 12 if –

b. The Defendant has a real prospect of successfully defending the Claim; or

c. It appears to the Court that there is some other reason why –

d. The Judgment should be set aside or varied; or

e. The Defendant should be allowed to defend the Claim.

24. In considering whether to set aside or vary a Judgment entered under Part 12, the matters to which the Court must have regard include whether the person seeking to set aside the Judgment made an Application to do so promptly.

25. Dealing firstly with CPR 13.3 (2), it is accepted that the Application was filed promptly.

26. Notwithstanding the above, the Defendant has no real prospect of successfully defending the Claim on the basis that: -

a. They admit to being the Driver of the Vehicle;

b. The signs at “EXHIBIT 2” clearly outlined the Terms of parking and the Defendant was on notice of the Terms upon entering the Land. By parking on the Land, the Defendant accepted the Terms. These Terms state that payment for parking is required, and that if the Terms are breached, the Defendant agrees to pay a Parking Charge of £100.00. As seen within “EXHIBIT 3”, the Vehicle remained on the Land on each occasion, yet the Claimant holds no record of any payment for parking, therefore; the Defendant breached the terms and agreed to pay the Parking Charges;

c. Within their Application, the Defendant claims that the payment meters had been burnt down due to vandalism. Respectfully, the signs at “EXHIBIT 2” clearly state that payment for parking is to be made by phone only via the JustPark app. The Terms on the signs at “EXHIBIT 2” were adequate in respect of overall size, font size, plain English, location and content, and it is submitted that the signs are adequate to constitute notice of the Terms to the Driver. If the Defendant did not understand the Terms on the signs, they should have exited the Land and found alternative parking;

d. The Defendant further alleges that they attempted to make payment for parking by using their phone, however; it “must not have been accepted”. It is respectfully submitted that it is the Defendant’s responsibility to ensure that the terms of parking are adhered to at all times. For the avoidance of doubt, the Claimant did not receive any payment for parking on each occasion that the Vehicle remained on the Land, as such; the PCNs were issued correctly;

e. In the event that a Driver parks their Vehicle on Land in which they do not own nor have prior authority to park, it is incumbent upon the Driver to ascertain whether there is a remedy to prevent their unauthorised parking. It is reasonable to suggest that the Defendant should have sought out the signage on the Land in any case if they were unsure of the Terms of parking;

f. Within their Application, the Defendant refers to recent newspaper articles, however; it is respectfully submitted that this bears no relevance to the matter and I therefore do not intent to comment on this statement any further;

g. It is denied that the Defendant received no prior correspondence regarding the charges. Charge Notices were sent to the address the DVLA confirmed was that of the Registered Keeper. It is the Defendant's responsibility and legal obligation as the Registered Keeper of the Vehicle to ensure that the DVLA are kept up to date at all times. Copies of the Notices can be seen at “EXHIBIT 5”. The Notices afforded the Defendant the opportunity to appeal the charge or nominate an alternative Driver, which they failed to do;

h. Further to the above, DCB Legal also sent a ‘Letter of Claim’ compliant with the Pre Action Protocol for Debt Claims to the same address the Defendant has confirmed within their Application. A copy can be seen at “EXHIBIT 6”. The ‘Letter of Claim’ afforded the Defendant 30 days to either dispute the matter or make payment. As no response was received, a Claim was issued. If the Defendant believed they were being wrongfully pursued, they would have made a greater effort to communicate this to the Claimant.

Denton

27. The Defendant is not entitled to relief from sanctions on the basis that: -

a. It is now established that the tests in “Denton” are to be applied to Applications under CPR 13.3 (see paragraph 23 of the Judgment of Lord Justice Vos in ‘Gentry v Miller & anr [2016] EWCA Civ 141’), there is a three-stage test to be applied;

b. The first test is for this Court to assess the seriousness or significance of the failures/breaches. Unfortunately, the Defendant has failed to address CPR 3.9. There is no Application for relief from sanctions, however, I will deal with the test to assist the Court;

c. I would respectfully aver that any breach is serious failure and significant and the second and third ‘Denton’ tests are triggered;

d. The second test is for this Court to consider why the failures/breaches occurred. The Defendant implies that they did not receive the Claim Form, despite the same being served to the same address they have provided within their Application. In the case of Link Parking Ltd v Mr David Ian Blaney & Michael Blaney (2017), DJ Pratt stated “it seems to me, on the balance of probabilities, letter(s) do not go missing as a matter of course, and, on the balance of probabilities, [the Defendant] would have received the letter(s)”. The ‘Letter of Claim’ and Claim Form were both sent to the same address that the Judgment was sent to, which the Defendant evidently received as a copy of the same has been exhibited within their Application. The Defendant has also provided the same address within their Application, it is therefore reasonable to submit that had the Defendant genuinely believed the PCNs had been issued incorrectly, they would have filed a Defence to the Claim. It is respectfully submitted that the Defendant was put on notice of the charges and failed to respond or pay;

e. In any event, I respectfully refer the Court to the case of Akram v Adam [2004] EWCA Civ 1601, where the Court of Appeal held that, where service had been effected in accordance with the rules and default Judgment was subsequently entered, the Defendant was not entitled to have that Judgment set aside as of right under CPR 13.2, even when he claimed to have had no notice of the proceedings until after Judgment had been entered against him. Further in Wards Solicitors -v- Hendawi [2018] EWHC 1907 (Ch) it was confirmed that although the fact that a Defendant never received the Claim Form is a relevant factor in deciding whether as a matter of discretion to set aside a default Judgment, on its own it is not enough;

f. It is anticipated that the Defendant will refer to the fact that they were previously acting as a “Litigant in Person”. In Barton v Wright Hassall LLP [2018] UKSC 12 the Supreme Court held that lack of representation does not justify applying a lower standard of compliance with rules or Orders of the Court for Litigant in Persons. The Civil Procedure Rules do not distinguish between represented and unrepresented parties. Had the Defendant have been unsure as to what was required of them, then they ought to have sought legal representation upon receipt of the same. It is respectfully submitted that the Defendant has failed to take the matter seriously until a Judgment was issued;

g. The third test is for this Court to consider all of the circumstances to enable it to deal justly with the Application. Again, there is no attempt by the Defendant to deal with that element of the ‘Denton’ test. The failures/breaches will have prevented the Court and the Parties from conducting this litigation efficiently and at proportionate cost. Not only has Court and Judicial time been expended but the Parties have now been put to additional expense.

This Court must bear in mind the need for compliance with rules, practice directions and Orders. There has been a wholesale failure by the Defendant to act in accordance with that need;

h. It is respectfully submitted that the Claim Form was served pursuant to CPR 6.9, and the Defendant has failed to satisfy CPR 13.2, CPR 13.3, and CPR 3.9.

28. For all of the reasons outlined in this Witness Statement, I believe that the Defendant’s Application to set aside Judgment should be dismissed.

Costs

29. I also respectfully seek an Order that the Defendant do pay the Claimant’s legal costs incurred as a result of the Application made on the basis of their unreasonable conduct to date. Had the Defendant responded to the Charge Notices, the Letter before Claim or the Claim Form, these costs could have been avoided. The costs of opposing this Application are £156.00, which is £130.00 + VAT for the advocate’s fee for attending the Hearing.

STATEMENT OF TRUTH

I believe that the facts stated in this Witness Statement 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.

Signed:

Name: Amy Stephens

IN THE COUNTY COURT AT NEWCASTLE UPON TYNE 

CLAIM NO:  [CLAIM NUMBER]

BETWEEN: -

HIGHVIEW PARKING LIMITED

CLAIMANT

AND

[DEFENDANT'S NAME]

DEFENDANT

________________________________________________

THE FIRST WITNESS STATEMENT OF [DEFENDANT'S NAME]

________________________________________________

I.[DEFENDANT'S NAME], of, [DEFENDANT ADDRESS AND POSTCODE] , WILL SAY AS FOLLOWS: -

1. I am the defendant in this case. The contents of this statement are true to the best of my knowledge, information and belief. I make this statement in response to the filing of a Witness Statement of Amy Stephens (the 'Alleged Witness') on behalf of the Claimant dated: 15/06/2022. 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.

2.  It is disputed that after the Alleged Witness reviewing the case management systems operated by  Direct Collection Bailiffs Limited ('DCBL') and the Claimant and documents provided by the Claimant, presumably also generated by computer records, the Alleged Witness is able to accurately  represent fact from a simple review of these computer records. 

It is disputed that the Alleged Witness bases any of her statement on actual fact witnessed and the Defendant avers that her entire statement is based on hearsay evidence from the computer system of the Claimant. The failure of such systems have been brought to light by the recent case where sub-postmasters were acquitted of Fraud after false convictions based solely on the data from a computer system that generated erroneous data:

https://www.theguardian.com/uk-news/2021/apr/23/court-clears-39-post-office-staff-convicted-due-to-corrupt-data

It is my understanding that the Claimant must serve notice to any hearsay evidence pursuant to CPR 33.2(1)(B) (notice of intention to rely on hearsay evidence) and Section 2 (1) (A) of the Civil Evidence Act. The Defendant avers that no such notice has been served and respectfully asks the court to dismiss the Claimants claim which is entirely based on hearsay evidence.

The Parties

3. It is not disputed that the Claimant offers private car park management services to private Landowners; primarily to manage the way in which motorists are permitted to park whilst on their private Land. It is not disputed that the Claimant’s services can include issuing Parking Charge Notices to any Vehicles parked in a way the private Landowner does not permit.

The Defendant avers that a Parking Charge Notice can only be issued for a breach of Terms & Conditions of a contract and as such the Claimant has a duty to prove that first all the elements of a binding legal contract exist and second that terms relied on are not unfair or hidden terms under English Contract Law. 

4. It is not disputed that at all material times, the Claimant was accredited by the Accredited Trade Association (“ATA”) known as the British Parking Association, which is one of the two ATAs serving the parking sector. It is not disputed that the ATA has a Code of Practice (“COP”) that its members are expected to adhere to; and failing which they face potential sanctions. It is disputed that given the Claimant’s membership; it was evidently operating in accordance with the COP. 

The Defendant avers that being a member of an association, for which the Claimant pays for such membership, does not automatically demonstrate that the Claimant is compliant with the Code of Practice of that organisation. 

5. It is not disputed that in order to obtain Registered Keeper details from the Driver and Vehicle Licensing Agency (“DVLA”) it is a requirement that the operator be a member of one of the two ATAs. It is not disputed that it is therefore essential to the Claimant’s business to ensure it complies with the COP. It is disputed that the Claimant is fully compliant with COP.

The Defendant avers that that the DVLA supplied registered keeper details to the Claimant in breach of the Data Protection Act 2018 and the Claimant's claim is fruit of a poisonous tree ('arborem fructus venenosa'), citing (R v Sang [1980] AC 402): https://www.theguardian.com/money/2022/jun/25/parking-fines-dvla-law-drivers-details-claims

The Defendant respectfully invites the Court to strike out the Claimant's claim for abuse of process under CPR 3.4(2)(a) and (b).

6. It is disputed that the Defendant is the recipient of Parking Charge Notices issued by the Claimant; the Defendant avers that the Claimant adopts the acronym 'PCN' to give the impression that their Private Parking Notices ("PPNs") have a similar authority to Council PCN's when they are in fact simply notices claiming a breach of contract has occurred.  The Defendant avers that the Defendant is not simply a recipient of notices sent by the Claimant but can be better described as a victim of the Claimant's automated system of money collection. 

Background

7. It is not disputed that the Claimant issued PPNs to a vehicle with registration details listed below: -

PCN No. Location VRN Issue Date Reason for Issue

2000010651827 Osborne Street, DN31 1NB FY66ZTE 18/11/2019 Failure to pay for parking

2000010654717 Osborne Street, DN31 1NB FY66ZTE 29/11/2019 Failure to pay for parking

2000010654718 Osborne Street DN31 1NB FY66ZTE 29/11/2019 Failure to pay for parking

2000010657151 Osborne Street DN31 1NB FY66ZTE 02/12/2019 Failure to pay for parking

22000010657152 Osborne Street DN31 1NB FY66ZTE 05/12/2019 Failure to pay for parking

The Defendant avers that the Driver of the vehicle did not enter into a contract with the Claimant, did not agree to the terms and conditions that the Claimant is reliant upon. The Defendant further avers that due to vandalism, had the Driver wanted to enter into a contract with the Claimant, they would have been unable to do so as the payment machines were not in working order. 

8. It is not disputed that, at the time of issue; the Claimant was instructed by the owner of the Land (“Landowner”) to manage parking on the Land. It is not disputed that the document exhibited by the Claimant at  “EXHIBIT 1”. is a copy of the agreement with the Landowner (“Landowner Agreement”). The Defendant avers that the Claimant failed in their duty and contract with the Landowner by failing to maintain their signs and payment facilities on land which is not the subject of the Claimant's claim. 

9. It is not disputed in the decision in One Parking Solution Ltd v Wilshaw [2021] (Wilshaw) whereby it was found that it is not necessary for the Claimant to prove the Landowner’s authority to constitute a valid cause of action to recover the PPN, what is required is proof that there is a binding Contract between the Claimant and the Defendant. Further, it was found in Wilshaw that the Contract between the Claimant and the Freeholder (Landowner) does not affect the validity of any Alleged Contract between the Claimant and the Defendant.

The Defendant avers that there is not contract between the Claimant and Defendant and therefore the Claimant cannot sue:

The Defendant cites that case of: Dunlop Pneumatic Tyre Co Ltd v Selfridge Ltd [1915] AC 847 - The Lords agree fundamentally with the decision of the Court of Appeal; there was no contract between Dunlop and Selfridge and therefore Dunlop cannot sue.

10. The Defendant denies that at the relevant time, the Claimant prominently displayed signs on the Land stipulating the terms of parking. Moreover, the Defendant disputes the adequacy of the alleged signage and contends that a copy of the content of the signs presented as "EXHIBIT 2" in the Claimant's Alleged Witness Statement is not conclusive evidence of the terms displayed on the Land. As such, the Defendant questions whether the signs formed a valid and enforceable contract with the Driver ("Alleged Contract").

Furthermore, the Defendant maintains that the alleged parking arrangement did not involve any consideration or exchange of value between the parties. As per the ruling in One Parking Solution Ltd v Wilshaw [2021] (Wilshaw), it was established that in the absence of a valuable exchange or consideration, no legally binding contract can be said to exist.

In light of the precedent set by Parker v South Eastern Railway (1877) 2 CPD 416, it is pertinent to emphasize that for a contract to be binding, the party must be made aware of the terms and conditions contained within the contract. The Defendant avers that they were not made sufficiently aware of any terms or conditions on the ticket or signage that would form the basis of a contract.

Thus, in line with the principles established in the aforementioned cases, the Defendant maintains that they cannot be bound by terms they were not aware of or did not have reasonable notice of. The Defendant contends that the alleged signage failed to provide sufficient notice, if any, and, as such, no valid and binding contract was formed between the parties.

11. It is disputed that the following was a term of the Alleged Contract: -

“Pay by phone only - Payment to be made on entry or exit via the JustPark app, please see the applicable signage for further information Parking charges apply Monday to Sunday, 24 hours a day”.

The Defendant avers that at the time of the alleged contravention, different signage was in place. The Defendant avers that this term is both a hidden and unfair term under English contract law. 

12. It is disputed that in parking the Vehicle on the Land, the Driver accepted the Contract, with the ‘parking service’ being the consideration. It is disputed that it is evident from the photographic evidence exhibited to the Claimant's Alleged Witness Statement at “EXHIBIT 3” that the Vehicle remained on the Land on each occasion. It is not disputed that the Claimant holds no record of any payment for parking. It is disputed that the Driver failed to adhere to the terms of the Contract as described above, thus breaching the Contract.

The Defendant avers that to establish a contract, there must be an offer, acceptance, and consideration. However, mere parking of the vehicle is not be enough to prove acceptance of a contract. The Defendant avers that in the absence of clearly communicated terms, acceptance of those terms by the Driver, and mutual understanding between the parties involved, no contract was formed.  The Defendant avers that lack of payment records alone is not sufficient to conclude that a breach of contract occurred.  To establish a breach of contract, it must be proven that a valid contract existed, and one party failed to fulfil their obligations under the contract without a legal excuse.  The Defendant avers that the Claimant is reliant on both hidden and unfair terms and the Court is respectfully invites to conclude the same. 

13. It is disputed that the Alleged Contract provides that a charge is payable by the Driver if it is breached: with payment falling due within 28 days. It is disputed that the Alleged Contract (i.e. the signs) was prominently displayed on the Land and in this regard a site plan showing the positioning is exhibited by the Claimant in their Alleged Witness Statement at “EXHIBIT 4”.

The Alleged Contract's existence and its terms regarding charges for breaches are disputed. The claimant must provide clear and convincing evidence to establish the existence of a valid contract and its specific terms, including any charges for breaches. The Defendant avers that payment machines on the car park had been vandalized, and this raises questions about the ability of drivers to be aware of the terms and conditions, including any charges for breaches. 

The claimant's assertion that the contract was prominently displayed is disputed. The effectiveness of the signage is critical in notifying drivers of the parking rules and any associated charges for breaches. If the signage was not adequately displayed or was vandalized, it could cast doubt on the claimant's ability to establish that the driver was aware of the terms and conditions of parking on the Land. 

14. It is not disputed that the Claimant utilises Automatic Number Plate Recognition (“ANPR”) technology on the Land in order to manage the parking. It is disputed that cameras capable of accurately recognising the Vehicle Registration Number of a Vehicle are constantly monitoring the entrance and exit to the Land. It is disputed that a photograph is taken of each Vehicle as it enters the Land, and again as it exits. It is not disputed that any Vehicle found to have breached the terms of parking, according to the Claimant's computer generated data, will be issued with a PCN.

The Defendant avers that the accuracy and reliability of the ANPR technology used by the claimant is questionable, especially if the payment machines and signage have been vandalized or tampered with. If the ANPR system is not functioning properly, it could lead to misidentification of vehicles or errors in recording entry and exit times, thus undermining the credibility of the evidence. 

ANPR (Automatic Number Plate Recognition), is NO PROOF of parking, it just shows a vehicle passing two fixed points. 

The Defendant avers that ANPR systems are not infallible and that they make over 1 million mistakes a day:  

https://www.thesun.co.uk/news/5296566/one-million-errors-a-day-by-dodgy-police-cctv-cameras-leaves-motorists-at-risk-of-wrongful-prosecution-and-hefty-fines-bombshell-report-reveals/

15. It is not disputed that in order to issue PCNs, the Claimant requests the details of the Registered Keeper from the DVLA and upon receipt of those details, notification of the PCN is sent to the Keeper via the post. It is not disputed that copies of the Charge Notices are exhibited attached to the Claimant's Alleged Witness Statement at “EXHIBIT 5”, together with the Final Reminder Notices sent.

The Defendant avers that the Claimant obtained the Defendant's personal data in breach of the Data Protections Act:

https://www.thenorthernecho.co.uk/news/20235787.parking-ticket-fines-reversed-due-dvla-law-breach-expert-says/

The Defendant avers that the Claimant's claim is fruit of a poisonous tree ('arborem fructus venenosa'), citing (R v Sang [1980] AC 402).

16. It is disputed that the Claimant reasonably believes that the Defendant was the Driver. It is disputed that the Defendant has been given ample opportunity to nominate a Driver (if it was not them) but has not. It is disputed that if the Defendant was not the Driver, they would have done so. The Defendant avers that letters were not received from the Claimant.

Steps taken to recover the debt

17. It is not disputed that the Claimant initially instructed DCBL to commence debt recovery action. It is disputed that letters were sent to the Defendant.

18. It is disputed that the letters referred to above were not returned undelivered. It is disputed that due to no contact being received from the Defendant a trace was conducted prior to the issuing of Court proceedings. It is not disputed that the trace confirmed that ‘Apartment 4, 81 Jesmond Road, Newcastle Upon Tyne, NE2 1NH’ – the address at which the Claim was issued, was most likely to be the Defendant’s residential address at that time. 

19. It is not disputed that the Claimant then instructed the Alleged Witnesses firm to issue Court proceedings. It is disputed that a ‘Letter of Claim’ was sent to the Defendant on 01/12/2022 in compliance with the Pre-Action Protocol for Debt Claims. It is disputed that a copy of the Letter of Claim exhibited by the Claimant, attached to their alleged Witness Statement and labelled “EXHIBIT 6”, was sent to the Defendant. The Defendant avers that the DVLA while complied with the Claimant's request for the registered keeper details of the vehicle in question, in breach of the Data Protection Act 2018 and the Claimant's claim is fruit of a poisonous tree ('arborem fructus venenosa'), citing (R v Sang [1980] AC 402).

20. The Defendant denies owing any money to the Claimant. There is a disagreement regarding whether any sums were actually due and whether the Claimant's decision to initiate Court proceedings was justified. The Defendant disputes this claim and asserts that they never received the Claim Form. If they were not aware of the proceedings, they couldn't have responded or returned the form, which could have resulted from a wrong address or other factors. The Defendant contests the default judgment, arguing that they were not properly served with the necessary documents and were unaware of the proceedings. They were deprived of the opportunity to defend themselves, which they believe is a violation of their right to due process and a breach of Article 6 of the European Convention on Human Rights.

Application to set aside Judgment

21. It is disputed that the Alleged Witness can confirm with any authority and of the issued raised in their alleged Witness Statement and in response to the issues raised, I would say as follows: -

a. The Claim Form was correctly served at the Defendant's last known address pursuant to CPR 6.9: We contest the claim that the Claim Form was properly served at the Defendant's address. The Defendant's statement lacks any verifiable evidence or documentation confirming the successful service at the address in question. As of our records and to the best of our knowledge, the Claim Form was never received at the alleged address.

Furthermore, the assertion that the Claimant took all reasonable steps to ascertain the Defendant's current address by conducting a trace is unsubstantiated. No proof of such actions has been provided to us. Without concrete evidence of the trace conducted and its results, it is challenging to accept this claim as valid.

b. Within their Application, the Defendant confirms their current address: The Defendant's acknowledgment of their current address within their Application does not confirm the proper service of the Claim Form. A mere statement in the Application does not automatically validate the service process. We maintain that the Claim Form was never properly served, and any reference to the Defendant's address in the Application does not rectify this issue.

c. The Judgment was a regular Judgment, pursuant to CPR 12.3: While the nature of the judgment may be regular, the question of proper service remains at the heart of this dispute. Without a valid service of the Claim Form, the Defendant was deprived of an opportunity to respond and defend themselves, making the judgment unfair and invalid.

d. No Application for relief from sanctions was made: We acknowledge that no such application for relief from sanctions has been made. However, our position stands that such an application would have been unnecessary had the Claim Form been correctly served in the first place.

Regarding the Rules: CPR Part 3.9: We agree with the stated provision that the Court will consider all the circumstances of the case when dealing with applications for relief from sanctions. In this matter, it is vital to consider the absence of proper service, which severely impacted the Defendant's ability to participate in the proceedings effectively.

CPR Part 13.3: We firmly believe that the Defendant has a real prospect of successfully defending the Claim if the judgment is set aside. The failure to serve the Claim Form adequately hindered the Defendant's ability to present their defence and, therefore, justifies a re-examination of the case.

In light of the above, we respectfully request the Court's fair consideration of our defence and the issues raised in relation to the proper issuance of the Claim Form. We emphasize that a just resolution can only be achieved by acknowledging the irregularities in the service process and granting relief from sanctions, allowing the Defendant to present their defence.

22.   It is disputed that CPR Part 3.9 provides as claimed by the Alleged Witness: -

a. The statement "On an Application for relief from any sanction imposed for a failure to comply with any rule, practice direction or Court order, the Court will consider all the circumstances of the case, so as to enable it to deal justly with the Applications, including the need" is not a direct quotation from CPR Part 3.9. The actual provision of CPR Part 3.9 does pertain to relief from sanctions for a failure to comply with rules, practice directions, or court orders. However, the exact phrasing mentioned in the point is not present in the official CPR Part 3.9.

b. The statement "For litigation to be conducted efficiently and at proportionate cost" is also not found verbatim in CPR Part 3.9. While the principle of conducting litigation efficiently and at a proportionate cost is indeed fundamental to the CPR, this specific wording is not a direct extract from CPR Part 3.9.

c. The phrase "To enforce compliance with rules, Practice Directions and Orders" is not a precise representation of the language used in CPR Part 3.9. The provision does address the Court's role in enforcing compliance with rules, practice directions, and orders, but the mentioned wording is not an exact quotation from CPR Part 3.9.

23. It is not disputed that CPR Part 13.3 provides as follows: -

a. In any other case, the Court may set aside or vary a Judgment entered under Part 12 if –

b. The Defendant has a real prospect of successfully defending the Claim; or

c. It appears to the Court that there is some other reason why –

d. The Judgment should be set aside or varied; or

e. The Defendant should be allowed to defend the Claim.

24. It is not disputed that in considering whether to set aside or vary a Judgment entered under Part 12, the matters to which the Court must have regard include whether the person seeking to set aside the Judgment made an Application to do so promptly.

The Defendant avers that their application was made promptly as soon as the CCJ in default was discovered on the credit file.

25. It is agreed that in dealing firstly with CPR 13.3 (2), the Application was filed promptly.

26. It is disputed that Notwithstanding the above, the Defendant has no real prospect of successfully defending the Claim on the basis that: -

a. The Defendant avers that being the Driver of the vehicle does not mean that the Defendant breached the terms and conditions relied on by the Claimant, terms that the Defendant believes are unfair and hidden terms. 

b. The Defendant disputes the validity and adequacy of the signs at "EXHIBIT 2" as providing clear notice of the Terms of parking. They contest that the signs were not prominently displayed, the font size may have been inadequate, and the language used may not have been easily understandable. Without clear and conspicuous signage, the Defendant contends that the Terms cannot be considered accepted upon entering the Land.

c. The Defendant disputes the Claimant's assertion that payment for parking could only be made through the JustPark app. They maintain that the payment meters had been vandalized, and as a result, alternative payment methods were not available or accessible. The Defendant asserts that they made a genuine attempt to pay for parking using their phone app but encountered technical difficulties that prevented successful payment that were not discovered until after the Claimant had obtained a CCJ in default.

d. The Defendant contests the Claimant's claim that they did not receive any payment for parking. The Defendant maintains that they attempted to make payment through their mobile phone app and cannot be held responsible for any issues that may have occurred with the payment processing.

e. The Defendant disputes the assumption that they parked on the Land without authorization. They maintain that they were under the impression they could park there and were not aware of any restrictions or terms related to the parking area.

f. The Defendant disputes that recent newspaper articles bear no relevance to the matter. The Defendant avers that the articles highlight an ongoing problem with the carpark and payment system which is the subject of the Claimant's claim. 

g. The Defendant contests the Claimant's claim that no prior correspondence regarding the charges was received. They assert that they did not receive any Charge Notices or Letters of Claim, and if any were sent to the address provided by the DVLA, they were not received by the Defendant.

h. The Defendant maintains that they were not properly informed about the matter and were not given adequate opportunity to dispute the charges or communicate their position.

27. In response to point 27 raised, the Defendant disputes the following elements:

a. The Defendant contests the applicability of the "Denton" tests to their specific case under CPR 13.3. The case of Gentry v Miller & anr [2016] EWCA Civ 141, cited by the Claimant, may not directly relate to the Defendant's situation, and it requires a thorough examination of the specific circumstances of this case.

b. The Defendant disputes the Claimant's assertion that they failed to address CPR 3.9. The Defendant maintains that they have been contesting the validity of the Judgment and raising their objections through the Application.

c. The Defendant denies the claim that any breach they may have committed should be considered a serious failure. They contend that the circumstances surrounding the case, such as the adequacy of the service of documents, the Defendant's understanding of the proceedings, and the steps taken to address the matter, need to be evaluated before labelling the breach as significant.

d. The Defendant contests the assumptions made regarding the receipt of documents. They maintain that they did not receive the Claim Form and were unaware of the proceedings until after the default Judgment had been entered. The reference to the Link Parking Ltd v Mr. David Ian Blaney & Michael Blaney (2017) case may not be directly applicable to the Defendant's situation and needs to be evaluated within the context of their specific case.

e. The Defendant disputes the application of the Akram v Adam [2004] EWCA Civ 1601 case to their situation. They maintain that the circumstances surrounding their lack of receipt of the Claim Form and the subsequent default Judgment need to be thoroughly assessed before reaching a conclusion on whether the Judgment should be set aside.

f. The Defendant contests the application of the Barton v Wright Hassall LLP [2018] UKSC 12 case. They maintain that they have been diligently attempting to represent themselves as a Litigant in Person and have sought to understand and comply with the rules and orders of the Court to the best of their abilities.

g. The Defendant disputes the Claimant's assertion that there has been a wholesale failure to comply with rules, practice directions, and orders. They assert that they have made reasonable efforts to address the matter, given their circumstances as a Litigant in Person.

h. The Defendant contests the claim that they have failed to satisfy CPR 13.2, CPR 13.3, and CPR 3.9. They maintain that they have diligently filed the Application and presented their reasons for disputing the Judgment.

In conclusion, the Defendant denies the validity and accuracy of the points raised by the Claimant regarding the "Denton" tests' application and requests that the Court carefully evaluates the specific circumstances of this case before making any determinations.

28. The Defendant disputes the Claimant's conclusion that the Application to set aside Judgment should be dismissed. The Defendant believes that the Application has merit and should be considered carefully by the Court. The reasons outlined in the Witness Statement demonstrate valid grounds for challenging the default Judgment, and the Defendant has provided substantial evidence to support their case.

The Defendant contends that they have raised significant issues regarding the service of documents, the validity of the parking charges, and the reasonableness of the Claimant's actions. They have also demonstrated their genuine attempt to comply with the rules and procedures of the Court, despite acting as a Litigant in Person.

Furthermore, the Defendant has referred to relevant case law and legal principles that support their arguments and demonstrate the need for a fair and just evaluation of the Application. They have asserted that the "Denton" tests may not be directly applicable to their specific situation under CPR 13.3 and have provided substantial reasons for this position.

In light of the evidence and legal arguments presented, the Defendant believes that dismissing the Application without a thorough examination of the case would not be just and fair. The Defendant maintains that they have a real prospect of successfully defending the Claim and that there are valid reasons to set aside the Judgment.

Given the complexities and specific circumstances of this case, the Defendant requests that the Court carefully considers the merits of their Application and ensures that justice is served by allowing a fair opportunity to present their defence.

Costs

29. The Defendant disputes the Claimant's request for an Order that they pay the Claimant's legal costs incurred as a result of the Application. The Defendant contends that their conduct has not been unreasonable, and they have acted diligently and in good faith throughout the proceedings.

Firstly, the Defendant maintains that they did not receive the Charge Notices, Letter before Claim, or the Claim Form, and as a result, they were unaware of the alleged parking charges and the impending legal action. The Defendant believes that they took all reasonable steps to provide a correct and updated address to the relevant authorities, and any failure in communication should not be attributed to their conduct.

Secondly, the Defendant asserts that they have raised legitimate and substantial issues concerning the validity of the parking charges and the service of documents. These issues required clarification and resolution, which warranted the Application to set aside the default Judgment. The Defendant's intention was not to delay or frustrate the proceedings but to seek a fair opportunity to present their defence and address the alleged charges appropriately.

Additionally, the Defendant acted as a Litigant in Person, and their lack of legal representation may have contributed to certain procedural errors or misunderstandings. Barton v Wright Hassall LLP [2018] UKSC 12 established that litigants in person's sincere efforts to navigate the legal process should be considered.

The Claimant's legal costs of £156.00 for opposing this Application appear disproportionate and excessive, especially considering that the Defendant's conduct was not unreasonable or in bad faith. It is respectfully requested that the Court carefully evaluates the reasonableness of the Claimant's costs claim, taking into account the Defendant's genuine attempts to address the matter diligently and appropriately.

Given the circumstances and the merit of the Defendant's Application, the Defendant seeks a fair and just resolution that does not impose an undue financial burden on them.

STATEMENT OF TRUTH

I believe 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. 

Signed: [DEFENDANT'S NAME WRITTEN OR TYPED]

Date: [THE DATE]