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    • zzzLazyDaisy
    • By zzzLazyDaisy 30th Aug 13, 10:44 AM
    • 12,138Posts
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    zzzLazyDaisy
    Parking - Letter Before County Court Claim (LBCCC) - Fight back! Guidance Thread
    • #1
    • 30th Aug 13, 10:44 AM
    Parking - Letter Before County Court Claim (LBCCC) - Fight back! Guidance Thread 30th Aug 13 at 10:44 AM


    Note this thread is primarily aimed at letters received from ParkingEye, including a 'walk through' of one of their LBCCCs, but the general advice about the Practice Direction on this thread applies to ALL PPCs .

    Please do not ask for advice on this thread as it is for guidance only. If at all possible, it is in your best interests to follow the advice on this thread and keep your correspondence with the PPC away from the forum (the PPCs do read the forums). But if you do need help, please start your own thread, and leave a short post on this thread with the title of your thread, and someone will come and find you.

    Daisy



    NOTE: this guide only applies to cases where the PPC has sent you a LETTER BEFORE COUNTY COURT CLAIM (also known as a Letter Before Action / LBA)

    If you have received court papers from Northampton county court you have missed the boat for using the Practice Direction to fight back. You need to start your own thread and ask for advice on what to do next.

    If you have just received the PCN or are in the early stages, the route to go is tp appeal direct to the PPC, with a view to receiving a verification code, so you can appeal to POPLA and close the thing down before it gets as far as court proceedings.

    If you are getting letters from debt recovery company you can continue to ignore, even if their letter says 'notice of intended litigation'. A debt collector can't take you to court. Only the PPC (or a solicitor acting on behalf of the PPC) can do that.

    If you remain unsure, go to Post 3 of this thread, where you will find an example of a Letter Before County Court Claim.

    That example is from ParkingEye (statistically the PPC most likely to issue proceedings) but you may also receive a Letter Before County Court Claim (also known as a Letter Before Claim, or a Letter Before Action) from other PPCs. The advice and process for dealing with this remains broadly the same.

    The first thing to note is that the LBC / LBCCC / LBA is the first step in the court procedure - so ignoring is not an option (unless you want to flag yourself up to the PPC as an easy target!)


    There are things you can do though:


    1 Scotland If you are the Registered Keeper, and you live in Scotland, it is still safe to ignore as PoFA 2012 does not apply in Scotland.


    2 Not the driver? - Reset the POPLA clock If you are the Registered Keeper, but you were NOT the driver at the time of the 'parking event', you have the opportunity to reset the POPLA clock by identifying the driver. In that case you write to the PPC, acknowledging the LBA, and tell them the driver's name and address.

    See post 13 below for sample letters

    The PPC must then send a PCN to the Driver, who can then go down the appeal route, first to the PPC for a POPLA code, and then to POPLA where the prospects of success are pretty much 100% if you follow the advice on the threads. (Note: this is only an option where the vehicle was 'caught on camera' and the PCN was received through the post by the RK. If the driver got a windscreen ticket, then s/he has already had their chance to appeal)


    3 Contact the landowner / retailer If your 'parking event' was at a retail store car park, speak to the manager (not the person on the customer service desk or the till, but the Store Manager) they have the power to get the charge cancelled - even if you have received a letter before action, it is not too late to do this. Same goes for cinemas, hotels, doctor's surgeries etc. If the manager can't/won't help, contact head office / the CEO. If the retailer/hotel etc tells you they are not the landowner, you may need to track down the landowner and contact them directly. NOTE PLEASE DO NOT IGNORE THIS OPTION IT REALLY DOES WORK AND COULD SAVE YOU A LOT OF AGGRAVATION - go to para 9 of this thread to see cases where this has succeeded in Coupon-mad's 'hall of fame'

    http://forums.moneysavingexpert.com/showthread.php?p=62837690

    But do NOT ignore the LBCCC / LBA while you are trying to get the retailer/landowner to cancel the charge. Time is ticking so you do still need to reply to the LBCCC / LBA (see point 5 below)

    4 Make a 'without prejudice offer' - see post 12 for more info
    Please note: This thread is about helping you to fight back and NOT give into their demands for money. But some readers may wish to make a payment to get the monkey off their back for personal reasons and want to do that in the most cost effective way possible. Others may wish to include a 'WoP' letter as part of their over-all strategy. Note a 'WoP' letter is NOT an admittance of liability and cannot be produced to the court when considering the case. It CAN be produced to the court on the issue of costs and this can work for or against you. So please, if you wish to make use of this, DO NOT offer them £1 or make a silly offer. DO make a sensible offer - eg one which can be shown to be a calculation of genuine loss, or one that reflects an earlier lower demand from the PPC.

    IMPORTANTLY do NOT take your eye off the LBCCC ball. Any 'WoP' offer runs in tandem with the Practice Direction procedure, and is essentially an invisible secret unless/until the PPC accepts the offer and confirms that the charge is satisfied.


    5 Reply to the LBC / LBCCC / LBA - make use of the Practice Direction and fight back!


    The first thing to be aware of is that you have 14 days to Acknowledge the LBCCC. After that, the PPC can start proceedings without further notice, so keep the 14 days in mind, and read on....




    The LBC is the first step in a formal court process called the Practice Direction on Pre-action Conduct. This literally sets out what the parties are supposed to do before the Claimant (that's the PPC) starts court action against you.

    Be aware that this Pre-action Conduct is a court procedure - the letters that follow form part of the court documents. This is very much in your favour, because under this procedure the PPC must give you certain information - and they don’t want to do this because then you will know what their case is (well yep, that's the idea). Remember, these letters will eventually be placed before the court (that's if it gets to court, but the point of this exercise is to make the PPC realise that you are far too much of a HOT POTATO, and hopefully they will go after easier targets. Are there any guarantees? No. Has this worked so far? Yes.

    So be clear about this - they will try every trick in the book to avoid following the court Practice Direction, every chance to mislead you, and every chance to try and use the court process to intimidate you into paying up - even telling lies in writing during this court process.... yep, really!


    So you are about to have a crash course on the Practice Direction and how using the court process in the way it is intended to be used can help you fight the PPC.


    So this is a guide to the Practice Direction on Pre-action Conduct (the PD)
    (please read it all the way through to the end - it's a bit long but it's not complicated).


    Here is a copy of the Practice Direction

    http://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_pre-action_conduct


    Here is a useful general guide by the CAB to the Practice Direction

    http://www.adviceguide.org.uk/england/consumer_e/consumer_taking_action_e/consumer_legal_actions_e/consumer_going_to_court_e/the_rules_about_making_a_court_claim.htm


    Don't just skim over those links - click on them and read the info. It is worth to grips with this stuff because the Practice Direction is your friend.


    The Practice Direction is automatically actioned when the PPC serves a Letter Before Claim / LBC (or as PE call it, a Letter Before County Court Claim / LBCCC ) on the RK/Driver (Note: Letter Before Claim /Letter Before County Court Claim / Letter Before Action are all the same thing).

    I am not going to give you chapter and verse about the PD - you need to read it for yourself, but I will give you snippets as we go along, so you get the idea. Remember - the PD is there to HELP you...

    So let's just look at the very first part of the PD (this is a direct copy)

    SECTION I – INTRODUCTION

    1. Aims

    1.1
    The aims of this Practice Direction are to –

    (1) enable parties to settle the issue between them without the need to start proceedings (that is, a court claim); and
    (2) support the efficient management by the court and the parties of proceedings that cannot be avoided.

    1.2
    These aims are to be achieved by encouraging the parties to –
    (1) exchange information about the issue, and
    (2) consider using a form of Alternative Dispute Resolution (‘ADR’).

    SO ONCE THE LBC (LBCCC / LBA) HAS BEEN SENT to you by the PPC, the court wants you and the PPC to talk to each other, and exchange information (and it tells the Claimant what information it must provide in the LBC to start the ball rolling).

    NOTE: this procedure is invoked by the LBC. If the PPC sends you a defective LBC which does not comply with the PD then you are entitled to ask them to remedy the defects, before proceeding with the PD process (you will see shortly that the LBC is almost certainly defective, because the PPC's DO NOT WANT TO GIVE YOU the information that the PD says they MUST give you).

    Just another extract from the PD, so you get the Picture:

    Annex A sets out Guidance on Pre-action Procedure, where there is no formal pre-action protocol..... (that's us)...

    1.1
    This Annex sets out detailed guidance on a pre-action procedure that is likely to satisfy the court in most circumstances where no pre-action protocol or other formal pre-action procedure applies. It is intended as a guide for parties, particularly those without legal representation, in straightforward claims that are likely to be disputed.

    GET IT? The court has written this Guidance to help ordinary people just like you, who are not represented by a solicitor. If you don't read any other part of the PD, read Annex A. It is an easy step by step guide to using the PD. Follow that guidance, it is Court Procedure, and there to help you.

    Another part that is worth reading is:

    Para 7 of the PD which sets out the steps that must be followed before the PPC starts proceedings. Knowledge is power.

    Note: the PD refers to ‘the Claimant’ (that's the PPC) and ‘the Defendant’ (that's the RK/Driver - YOU in other words!)


    Okay, enough talk - what am I supposed to do about this dreaded LBCCC?

    Right, the PD is automatically actioned by the Claimant (PPC) sending a Letter Before Claim (otherwise known as an LBA / LBCCC ) to the defendant (that's you).

    The PD says that the LBC must set out the details of the claim (that's ALL the details, not just the little bit they want you to know).

    So let's just check the LBC that you have received, against what the PD says it must tell you.....


    Here is the full text of The Practice Direction on Pre-action Conduct, Annex A Para 2:


    Read it, and then compare the information contained in your LBA to the information the PD says it must contain...

    2. Claimant’s letter before claim

    2.1
    The claimant’s letter should give concise details about the matter. This should enable the defendant to understand and investigate the issues without needing to request further information. The letter should include –

    (1) the claimant’s full name and address;
    (2) the basis on which the claim is made (i.e. why the claimant says the defendant is liable);
    (3) a clear summary of the facts on which the claim is based;
    (4) what the claimant wants from the defendant;
    (5) if financial loss is claimed, an explanation of how the amount has been calculated; and
    (6) details of any funding arrangement (within the meaning of rule 43.2(1)(k) of the CPR) that has been entered into by the claimant.

    2.2
    The letter should also –
    (1) list the essential documents on which the claimant intends to rely;
    (2) set out the form of ADR (if any) that the claimant considers the most suitable and invite the defendant to agree to this;
    (3) state the date by which the claimant considers it reasonable for a full response to be provided by the defendant; and
    (4) identify and ask for copies of any relevant documents not in the claimant's possession and which the claimant wishes to see.

    2.3
    Unless the defendant is known to be legally represented the letter should –
    (1) refer the defendant to this Practice Direction and in particular draw attention to paragraph 4 concerning the court's powers to impose sanctions for failure to comply with the Practice Direction; and
    (2) inform the defendant that ignoring the letter before claim may lead to the claimant starting proceedings and may increase the defendant's liability for costs.


    Okay, I am not normally a betting person, but I'd bet my house that the LBc does NOT give you all that information!

    In fact, if YOUR LBC is anything like the sample LBCCC copied at Post 3 below, it definitely DOES NOT comply with the Practice Direction (even though, cunningly, it claims that it does comply).

    So the first thing to do is to go through the LBC with a fine tooth comb and make a note of all information that it should have given you and hasn't.

    Go to Post 4 of this thread for some pointers on where the LBCCC at Post 3 of this thread fails to comply with the PD. Check these points against your own LBC / LBCCC / LBA and make notes of the failings of your own LBC

    Okay, you have made a list of all the ways in which your LBC fails to comply with the requirements of the Practice Direction. So what are you going to do about it?


    The Practice direction tells you what to do.


    First you must send the PPC an Acknowledgement within 14 days of receiving the LBA (if you don't do this, they can start court action against you, so don't ignore this).

    Note: even if you have missed the 14 day deadline, you can still jump in and kick start the PD procedure, right up until they start proceedings. But don't mess about, do it as soon as possible, as once they have started court action against you, the process gets even more formal and even more stressful. It's not fun and best avoided.

    So, back to the Practice Direction...

    The procedure for Acknowledging the LBA is set out here, at Annex A, Para 3
    http://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_pre-action_conduct


    Now, just to re-cap before we go any further... The Pre-action Conduct that the PD requires the parties to follow is this:

    1 The Claimant (PPC) sends a LBC to the defendant (YOU) setting out all the information required by Annex A para 2.

    2 The Defendant goes along to the Practice Direction, reads up about what s/he must do, discovers that s/he must send an Acknowledgment in a certain form, and then must subsequently provide a formal Response, giving the Claimant certain information about the case from their point of view (this will eventually form the basis of the formal defence).

    Did you get that? The LBC must contain the info set out at Annex A Para 2 of the PD

    So what do you do now? It is impossible for you to provide a formal Response to the LBc because it doesn't give you the information necessary to do that.

    Answer - you acknowledge the LBA, you refer the PPC to the Practice Direction, and you politely ask them to send you the required information.

    Posts 4 and 7 of this thread compare the LBCCC with the PD requirements and give you lots of pointers on where the LBCCC fails to comply with the PD.

    Post 9 gives you a suggested form of Acknowledgment. BUT PLEASE PLEASE DO NOT USE THIS AS A TEMPLATE. It is in your own best interests to personalise your letter as much as possible to the circumstances of your case, and to write your Acknowledgement in your own words, in your own style, and in a way that you understand if you are ever asked to explain what you said in the letter.

    However be aware that the PPC isn't going to read your letter. They are almost certainly just going to send you a template reply which doesn't answer the issues you have raised.

    So why bother? Because you are writing for the JUDGE!

    What!!!??? Well, it is simple when you think about it. This Pre-action Conduct procedure was written by the court. Both parties are expected to follow it. The letters between the Claimant and the Defendant form part of the court documents that will be placed before the Judge, if this case ever gets to court. The court will take a very dim view of a Claimant who refuses to comply with this procedure - so much so, that the PD (para 4) sets out what the sanctions are for non-compliance.

    That is why it is better for you to write your own Acknowledgment, in your own words, in your own style, changing the order and numbers of paragraphs, including anything that is specifically related to your own particular case, and personalised to your own circumstances as much as possible.

    Doing it this way will ensure that you have an understanding of what you are doing. If your style is naturally more formal, that's fine. If your style is towards a softer, less confrontational approach, that's also fine.

    It will also ensure that because your reply is not based on a template letter, it cannot be answered by a template letter. If the PPC does reply to your personalised Acknowledgement with a template letter, it will avoid the issues that you have raised in your letter - which will not endear the PPC to the Judge if this case ever goes to court.

    So, just be straightforward and calm, and follow the instructions in Posts 3 & 4 & 7 & 9 below.

    Once you are satisfied that you understand the issues, and exactly why the Letter Before County Court Claim is deficient (and most certainly not compliant, as they misleadingly suggest in their letter) .... then go to Post 9 and follow the instructions for writing a letter of Acknowledgment.

    (to be continued with the next steps in the process...)
    Last edited by zzzLazyDaisy; 29-10-2013 at 1:40 AM.
    I'm a retired employment solicitor. Hopefully some of my comments might be useful, but they are only my opinion and not intended as legal advice.
Page 5
    • bod1467
    • By bod1467 11th Oct 16, 10:27 AM
    • 14,806 Posts
    • 13,448 Thanks
    bod1467
    I think the point C-m was making was that POPLA would never even feature in respect of any claim for an old parking ticket ... POPLA is only available within a relatively short period after a PCN is issued (whether it be a NTD or NTK and the relevant timescales that apply). POPLA would never be in the frame several years down the line.
    • gee1318
    • By gee1318 1st Nov 16, 10:48 AM
    • 1 Posts
    • 0 Thanks
    gee1318
    help still available?
    Hello,
    I have been following your helpful guidance. Are you still issuing guidance at all, please? I have received a response from the solicitors in response to my telling them they had not complied with the practice direction. It is different to any examples you list here and I was wondering if I could send you an edited version and invite your comments and kind help with it, at all?
    Many thanks.
    • Umkomaas
    • By Umkomaas 1st Nov 16, 11:23 AM
    • 11,017 Posts
    • 16,450 Thanks
    Umkomaas
    Daisy hasn't been contributing to the forum for around 3 years now. You need to start a new thread of your own with many more details than those you have given above where you will receive more responses than just tagging on to this largely information thread. Some of this thread is losing its currency.

    Also do have a read of this latest submission from 'bargepole' who is highly experienced in dealing with private parking small claims court cases.

    This link will take you to a definitive description of the procedures you will need to follow in defending your case.

    http://forums.moneysavingexpert.com/showthread.php?t=5546325
    NEWBIES - wise up - DO NOT IGNORE A PARKING CHARGE NOTICE - you have been warned!

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.

    Please note: I am NOT involved in any 'paid for' appeals service.
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