Parking Eye lose

Oopsadaisy

HO87 wrote: »

(denying any liability and requesting immediate f+b) incorporating a s.10 notice.

What's f+b mean???

CRblogger

Oopsadaisy wrote: »

What's f+b mean???

further and better

CRblogger

HO87 wrote: »

Rather than following the existing PCN strategy (ignoring all communication) you favour a far more aggressive approach of immediately responding to a PCN (whether issued by post or affixed to a vehicle) by means of a "put up or shut-up" letter (denying any liability and requesting immediate f+b) incorporating a s.10 notice.

More assertive than aggressive, but I would say that. Strictly speaking any demand for money affixed to a vehicle qualifies as a Letter of Claim, so it can be treated as an unwarranted demand for money from that point.

HO87 wrote: »

when what you appear to be proposing is actually a new strategy, I think and viewed from that perspective I can see distinct advantages if I might suggest some reshaping.

Yes, essentially you have it. However it shouldn't be regarded as a revised or replacement strategy, just an alternative to be used if you want to get them off your or your family's back. That's what engaged me in this, my family having sleepless nights. There’s sufficient substantiality for me.

HO87 wrote: »

as far as the substantial harm/distress aspect is concerned I remain of the view that harassment is the only avenue ever likely to provide sufficient grounds. In the case of PPC's their letter chains will form an essential part of an harassment case but I suggest that as predictable as they are, in terms of content and frequency (See MSE's collection of them), they lack something of an element of menace that might adequately tip the substantial balance.

We’re on the verge of mixing heads again! On harassment I would revert to my point about substantiality and the test being subjective. On s.10, as you mention elsewhere, "to any extent" may provide substantiality in the same way. However you may be right, and we can agree to mildly disagree.

HO87 wrote: »

some helpfully threaten the use of irrelevant regulations (CPR 31.16 for example clearly intended as a threat to those in receipt of PCN's) and the threat of substantial costs being incurred by applications for such things as Norwich Pharmacal Orders.

Amusing. On 31.16 I suspect they may mean something that’s now moved elsewhere in CPR. Otherwise they’re saying “Give me lots of money. By the way, we’re on the small claims track, and the documents can’t be relevant, but we say you have to disclose them to us anyway”. What documents could they possibly need? On Norwich Pharmacal I’ll have to update myself, at least on associated costs.

HO87 wrote: »

Now, as part of the revised strategy I agree the "put up or shut-up letter" should include a warning that any communication beyond a response to the request for f+b particulars/s.10 notice would be regarded as harassment. An extended caveat to include the PPC's agents would naturally capture the DCA's (by letter, repeated telephone calls and mobile texts) and add their actions to the harassment/substantial harm argument.

Essentially yes. Nuances: perhaps not the best idea to demand further and better, just note they have no legal case. Otherwise we invite further communication thus allowing them a cop out. So allow them (a) acceptance of offer; (b) their statutory response to the s.10; (c) litigation; and nothing else. By “extended caveat” I presume you mean the normal drafting phrase “you your directors servants and agents” in place of “you”?

HO87 wrote: »

I see only one potential route by which a DCA might duck out and that would be if they could demonstrate that they had purchased/been legally assigned the debt by the PPC. Agency would seem to break at that point but I've yet to come across any suggestion that a DCA has substantiated a claimed assignment indeed when a few have been challenged on that very point they have disappeared leaving a large cloud of dust.

Indeed (but they often shoot themselves in the foot even when their faux litigation business model centres on assignment – it needs a few evidential and procedural formalities which faux claimants often miss, and which I expect to encounter for the second time in a hearing soon,). However from our perspective it doesn’t matter, the former principal needs to be on notice it’ll be held to account for the actions of any agents that haven’t been assigned the claim. A second letter then needs to go to the faux assignee. However in my limited litigation experience of debt collectors they rarely pay litigation debts, they’d rather go bust, so we might consider putting their directors personally on notice per Symphony of a section 51 order so the court can look through the corporate veil. Of coursed that’d be just gold-plating for fun.

HO87 wrote: »

Were this strategy enacted, at some point one of the larger or more litigious (or, perhaps, foolish) PPC's would undoubtedly challenge the s.10 notice. Were a judge to be shown the typical letters from DCA's (or more particularly those of the relevant DCA - most PPC's work hand in hand with one or other of them) making spurious and groundless threats a substantial harm/distress argument will gain some legs. Not forgetting that s.10 only requires that the specific reasons need only be shown to be "justified to any extent" for a court to be satisfied that the data controller should comply.

Indeed. But they’ll probably back down the first few times, if as with many companies they’re run by bullies and cowards who don’t like it up them. Only if they’re foolish, or when their faux revenue stream is significantly affected, or their auditors realise they’re racking up an indeterminately large unfunded six-year litigation risk, are they likely to challenge.

If the initial letter sets out the case sufficiently (unfortunately that means it is a little long, coupled with an open time-delimited offer and a couple of without prejudice letters to lock in costs), even litigants in person should have a good chance in Court as the judge will understand almost the entire story from the outset in a single document without needing formal Particulars.

Coupon-mad

I am liking this idea, what I understand of it anyway, not being a lawyer.

Do you think that it will be harder to attempt a rebuttal like this when the Freedoms Act comes in - if it includes keeper liability? I am not even sure what 'liability' the keeper is going to have anyway as it reads in the Bill as if he/she is only 'liable' if the driver is not named. So just name a name (no address...?!!). Then having 'named the driver', presumably liability ends.

Sirdan

Coupon-mad wrote: »

I am liking this idea, what I understand of it anyway, not being a lawyer.

Do you think that it will be harder to attempt a rebuttal like this when the Freedoms Act comes in - if it includes keeper liability? I am not even sure what 'liability' the keeper is going to have anyway as it reads in the Bill as if he/she is only 'liable' if the driver is not named. So just name a name (no address...?!!). Then having 'named the driver', presumably liability ends.

Sorry C-M you have got that wrong , the "creditor" is entitled to recover charges from the keeper if certain conditions are met and the first of those conditions is :-

"Conditions that must be met for purposes of paragraph 4
5 (1) The first condition is that the creditor—
(a) has the right to enforce against the driver of the vehicle the
requirement to pay the unpaid parking charges; but
(b) is unable to take steps to enforce that requirement against the driver because the creditor does not know both the name of the driver and a current address for service for the driver."

So name and current address required.

Coupon-mad

Hmmmm...so keeper 'liability' only applies if the keeper 'DOES NOT KNOW' the name and address of the driver.

What if the driver does know, says so, but refuses to name them?

Sirdan

Coupon-mad wrote: »

Hmmmm...so keeper 'liability' only applies if the keeper 'DOES NOT KNOW' the name and address of the driver.

What if the driver does know, says so, but refuses to name them?

I wouldn't get too complicated on this if I were you because the bill still maintains that this is the law of contract.

So how can the keeper possibly be "liable" for a contract that they have had no opportunity to consider and certainly did not willingly enter into (assuming the keeper is not the driver of course ) ?

AlexisV

Yes, presumably the keeper could name anybody on the planet, and their address, and it would be nothing to do with them any more.

If the named person did not respond to any junkmail and the PPC came back to tell the RK they were 'liable', the RK might then quote the relevant part of the Act back to them.

The Bill is a swiss cheese bit of legislation.

CRblogger

Sirdan wrote: »

So how can the keeper possibly be "liable" for a contract that they have had no opportunity to consider and certainly did not willingly enter into (assuming the keeper is not the driver of course ) ?

Because that's what it says. Statute overrides common law.

(Welcome to the world of New Labour, New Conservatives. Remember IR35? Exactly the same - tax liabilities imposed for exactly that kind of contract between third parties. The Courts enforced that one, why shouldn't they enforce this one too?)

Fortunately however there is no provision to override the rest of contract law. So presumably the keeper will be responsible only for the undischarged value of the contract.

AlexisV

But the issue is that there are no new statute based powers being granted in the Bill.