Parking Eye - letter before action

zzzLazyDaisy

Hi folks, just checking in on the up-to-date position regarding these things as most posts these days seem to deal with POPLA appeals.

I do some voluntary legal assistance work, and have been contacted by someone who has received a LBA from Parking Eye. The event happened early this year, and they have been ignoring all letters since. I should add that the RK is a small ltd co, and the MD is not fazed by this development and is willing to go to court and defend the action, should this become necessary.

I have advised that there is a greater chance of PE following through with the threat of court action than previously, and of course have told them NOT to ignore any court papers!

In the meantime, is there anything I should know/do to get up to speed in case I need to prepare a defence?

I do realise that Pepipoo is the place to go for detailed advice but, for the moment, I'm just looking for pointers and guidance.

Many thanks for your help

Daisy

EDIT - just to confirm that I have advised them about the appeals process should they get any more private parking tickets in future.

Coupon-mad

You say ''I should add that the RK is a small ltd co,'' which means that no-one has yet said who the driver was?

So where it was a postal PCN at first - which with PE it would have been - you can assume the driver doesn't know about it yet (do not answer this!!).

My point being that the company should respond now and tell PE who the regular driver of that car was at that time (name and address) and point out that because legal action has NOT yet commenced, they have discharged their potential liability under the Protection of Freedoms Act 2012.

If they do not do this before court action commences then they are stuck with potential liability and can no longer name the driver, and would have to face a small claim if PE decide to push it! So they should do that now and should always do that if they want to protect their position in future. A company NEVER has liability for a fake PCN if they have given the name and address of the driver before legal action commences - but really they should do this as soon as they get a fake PCN.

What should then happen is that the PPC should send a Notice to Driver out for the first time, which then rewinds the clock so that the driver (who may know nothing about it!!) can appeal. And if that driver comes here or to pepipoo for advice, they can then probably win at POPLA.

That's the theory. I would not sit back and wait for a court claim if I were the MD.

zzzLazyDaisy

Thanks very much for this. The driver genuinely does not know anything about it as the MD has been routinely shredding these letters for years!

I guess I'll be back when the driver gets the PCN.

Thanks again.

MothballsWallet

Shredding the letters is (probably) not the thing to do now, I think from reading around on here.

Of course, Stroma or Coupon-Mad may correct me if I'm wrong

zzzLazyDaisy

Thanks.... yes he's been told!

Coupon-mad

zzzLazyDaisy wrote: »

Thanks very much for this. The driver genuinely does not know anything about it as the MD has been routinely shredding these letters for years!

I guess I'll be back when the driver gets the PCN.

Thanks again.

More opinions - on pepipoo this time - about replying to LBAs making it clear you are someone who is up for the fight:

http://forums.pepipoo.com/index.php?showtopic=80930

Newbies reading this - please just read other similar threads before starting a new one, it really helps if we don't have to type the same thing again and again when it's already here umpteen times.

See my signature for where to click to see all current threads; one click away.

HTH

zzzLazyDaisy

Okay, the RK sent a letter to Parking Eye giving the driver's details and making it clear that this discharges the RKs duty and any proceedings will be vigorously defended.

The RK has today received a letter from PE informing them that they should have appealed within 28 days which would have given them the opportunity to appeal to POPLA or they should have complied with Sched 4 of PoFA 2012 by informing PE of the driver's details within 28 days. Since they failed to do either the RK:

'consequently became responsible for the outstanding amount detailed on the parking charge. We must therefore inform you that the amount, as outlined in the letter before action, remains outstanding from you as the registered keeper'.

The letter goes on to say that PE is prepared to pursue the matter through the CC if necessary. Should court proceedings be issued, further costs incurred by PE will be added including the cost of issue of the court claim and their solicitors fees.

My own view is that the company should now respond with a robust rebuttal (not appeal) setting out the grounds of their defence and formally requesting copies of the relevant documents should PE decide to proceed as indicated.

However, I'd be grateful for comments on:

1. their refusal to pursue the driver, and their intention to proceed against the RK instead; and

2. If the company does respond with a strong rebuttal, should they set out the whole of the defence that they will be seeking to rely on (this is an overstay, MSA case); or

3 go with salmosaleris approach outlined in post 1 of the pepipoo post linked above.

I am grateful for any pointers.

Many thanks

LD

Guys_Dad

You are legally trained.

Have a look at this from POFA

Right to claim unpaid parking charges from keeper of vehicle

4(1)The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle.

(2)The right under this paragraph applies only if—

(a)the conditions specified in paragraphs 5, 6, 11 and 12 (so far as applicable) are met; and

(b)the vehicle was not a stolen vehicle at the beginning of the period of parking to which the unpaid parking charges relate.

(3)For the purposes of the condition in sub-paragraph (2)(b), the vehicle is to be presumed not to be a stolen vehicle at the material time, unless the contrary is proved.

(4)The right under this paragraph may only be exercised after the end of the period of 28 days beginning with the day on which the notice to keeper is given.

(5)The maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper under paragraph 8(2)(c) or (d) or, as the case may be, 9(2)(d) (less any payments towards the unpaid parking charges which are received after the time so specified).

(6)Nothing in this paragraph affects any other remedy the creditor may have against the keeper of the vehicle or any other person in respect of any unpaid parking charges (but this is not to be read as permitting double recovery).

Does that mean that they can't add any "costs" on top? And does this differ from the amount that they coud demand from the driver?

zzzLazyDaisy

Hi Guy's Dad, I have to say that I am not convinced that the highlighted clause would be interpreted by the county court judge as barring out the right to claim such costs as are appropriate to a small claims court action- but I am still very much finding my feet having only become involved in this very recently. I'd be prepared to give the argument a run *if* the case goes to court.

However, my main focus at the moment is to engage with PE in such a way as to make them realise that the RK won't roll over and be an easy target.

Guys_Dad

PE have issued lots of court papers over the last few weeks. Informed opinion suggests they won't follow all of them up and already, I think, they have either withdrawn or not turned up.

If they are going for low hanging fruit, then your friend should make sure that his company is not low hanging.

Already, being a keeper who has advised the PPC who the driver is, helps.

Many of the POPLA points quoted on here would apply equally in court and you can look at the successful results in POPLA Decisions sticky thread on here.

Being legally trained, the following might appeal to you http://timkevan.blogspot.co.uk/2012/03/challenge-to-private-parking-charge.html . Pick the bones out of that as well as some of Coupon-mad's latest belters.

Furthermore, and I don't know if you would be allowed to do this professionally, if you were able to send a 3rd party version of these points as a final "appeal" to PE signed by you with your legal letters after your name, then you would be so far up the tree that your fruit couldn't be go at by a giraffe !

zzzLazyDaisy

Guys_Dad wrote: »

Furthermore, and I don't know if you would be allowed to do this professionally, if you were able to send a 3rd party version of these points as a final "appeal" to PE signed by you with your legal letters after your name, then you would be so far up the tree that your fruit couldn't be go at by a giraffe !

:rotfl::rotfl::rotfl::rotfl:

What a great idea! Unfortunately I am not allowed to do that

I had already started to put a POPLA appeal together for the driver, so I'll tidy that up and send it to them as a taster of what they'll get if they pursue the company.

I'm still interested in their refusal to reset the POPLA clock by pursuing the driver.

The other thing I might suggest is sending a cheque for the £10 fee the driver would have paid for the overstay in F&F settlement, on the basis that this is the most they can claim (on a without prejudice save as to the question of costs basis so it can't be used as an admission of liability). Does anyone have a view on that as a tactic?

This is a company that gets lots of these fake PCN's, so PE might be testing the water with this letter.