Parking - Letter Before Action? Letter Before County Court Claim? Fight back!

zzzLazyDaisy

PLEASE NOTE - if you have received a Letter Before County Court Claim from PE please read this post for a crash course on the Practice Direction, and then go to THIS thread as it has the most up-to-date advice on how to respond

https://forums.moneysavingexpert.com/discussion/4754020



If you have found your way here because you have recently received a Letter Before County Court Claim (also known as Letter Before Claim, Letter Before Action, Letter Before County Court Action) from any other PPC you can continue follow the advice on this thread (but you may also pick up tips from the PE thread too)

Daisy

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PLEASE DO NOT ASK FOR HELP ON THIS THREAD. IT IS FOR INFORMATION AND GUIDANCE ONLY, START YOUR OWN THREAD FOR ADVICE.

NOTE: this guide only applies to cases where the PPC is threatening court action and has sent you a LETTER BEFORE ACTION (usually written in red scary letters at the top of the letter).

If you have just received the PCN or are in the early stages, the route to go is the POPLA appeal, to close the thing down before it gets to court action.

If you are getting letters from debt recovery company you can ignore, even a 'notice of intended litigation'. They can't take you to court. Only the PPC (or a solicitor for the PPC) can do that.

If you have already received Court Papers, you need to go to MCOL acknowledge service and file a defence. This thread can't help you with that you need to research the forum. But you can still ask the retailer to cancel the charge (see below) and you can still complain to the court about the PPC's failure to follow the PD, and ask for the case to be 'stayed' to allow time for the parties to follow the PD (the ppc really won't want to do this.

For everyone else :-


So you have received a Letter Before Action (LBA) from a private parking company (PPC)


An 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 for court action!)


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? 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. Write to the PPC, acknowledge the LBA, and state the driver's name and address. Say that this discharges the RK's obligations and they must pursue the driver. The PPC must send a PCN to the Driver, who will appeal - first to the PPC and then to POPLA where the prospects of success are high if you follow forum advice.


3 Contact the retailer. If the 'parking event' was at a retail store, contact the Store Manager or head office. They can get the charge cancelled. Even if you have received an LBA, it is not too late. Same for cinemas, hotels etc. If it is a retail park try the store first, otherwise contact the landowner. But don't ignore the LBA while you are doing this, as time is ticking, so you still need to reply to the LBA (see point 4)


4 Reply to the LBA - make use of the Practice Direction (PD) and fight back!


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


An LBA 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.

This 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 (ermm, yes, that's the idea!) These letters will eventually be placed before the court (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 PD 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 PD

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.


NOTE: The PD is automatically actioned when the PPC serves a Letter Before Claim on the RK/Driver (Note: Letter Before Claim or LBC is the new jargon for Letter Before Action or LBA – they 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....

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 LBA AS 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 LBA to start the ball rolling).

This procedure is STARTED by the PPC sending you the LBA.

When you try to get the PPC to comply with the LBA they are likely to get all uppity and accuse you of not failing to follow this procedure before you got the LBA. That is just nonsense - they are just trying to deflect attention from their OWN MISCONDUCT in serving a defective LBA (more about this in a moment).

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.

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


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

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

The PD says that the LBA 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 LBA 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 (this is a straight copy of the PD, with my comments in brackets)

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); (so does it tell you if this is a breach of contract claim? A trespass claim? A debt claim? You are entitled to be told this)

(3) a clear summary of the facts on which the claim is based; (does it remind you what happened and why you got a charge in the first place?)

(4) what the claimant wants from the defendant; (A big fat wad of cash??)

(5) if financial loss is claimed, an explanation of how the amount has been calculated (so if this is a breach of contract claim, have they given you a detailed breakdown of their 'genuine pre-estimate of loss'? If it is a debt claim or a trespass claim, have they explained to you how the loss has been calculated? You are entitled to know this, because you cannot defend the claim unless they tell you what the claim is about)

(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 (this refers to some sort of financial backing such as insurance or trade union)

2.2
The letter should also –

(1) list the essential documents on which the claimant intends to rely (does the LBA give you a list of documents)

(2) set out the form of ADR (if any) that the claimant considers the most suitable and invite the defendant to agree to this; (did the LBA invite you to use an appropriate form of ADR - such as POPLA?)

(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. (My Bold - the PPC cannot use this part to go on a fishing trip, by asking all sorts of nonsense questions in the hope that the defendant might tell them something useful - hold that thought, it will come back to you later!)

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.


Note - The Claimant must tell the Defendant about the Practice Direction UNLESS they KNOW that the Defendant is legally represented. In other words, unless the Defendant has told them that they have a solicitor, or unless the Defendant's solicitor has already written to the Claimant. Hold that thought, it will later become relevant....


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

So the first thing to do is to go through the LBA with a fine tooth comb, compare it with the requirement of Annex A of the PD (above) and make a note of all information that it should have given you and hasn't.


So what are you going to do about it?


Well 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 know about the Practice Direction and don't send the Acknowledgment, then the Claimant is deemed to have complied with the PD and can go ahead and start court proceedings against you. So don't ignore this.

But even if you have missed the 14 day deadline - probably because you have only just found this thread - 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, things rack up a notch. It's not fun and best avoided.

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 LBA to the defendant (YOU) setting out all the information required by Annex A para 2. This includes telling you about the Practice Direction.

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? One of the things they are supposed to tell you in the LBA is about the Practice Direction itself - you can bet your sweet life that bit is missing!

So what do you do now? It is impossible for you to provide a formal Response to the LBA 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.

When this Guidance was first written, I was advising people to write a very formal and robust reply to the LBA, so the PPC would know they were dealing with someone who knows their onions. But as things have developed, my view on this has changed.

Why? Because the PPC isn't going to read your letter, they are just going to send you a template reply (more about this later).

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 and 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.

So it is better for you to write your own Acknowledgment, in your own words, in your own style, and with 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. Just be straightforward and calm, and follow the instructions below:

I have received a non-compliant LBA - what do I do now?

Go to post 45 on this thread (on page 3) and follow the instructions there.


Come back here once you have been to post 45 and written your letter
>
>
>
Okay, so you have written your letter, and sent it, and you are back for the next installment?

Well, they are not going to read your letter, and they are going to reply with a template letter that does not address the points raised in your letter, but tells you a load of old cobblers that you did not ask for and probably don't need to know.

So read their letter, and reply pointing out that their letter does not address the issues you raised in your last letter, that it still does not comply with the practice direction, address any points that they have raised in their letter to you that you do not agree with or that need clarifying (if they are asking questions of or information from you, just tell them politely that as soon as you have received the information required by the PD to be included in a claimant's claim, and the information requested by you, then you will prepare a formal Response, and you will consider their requests for information at that stage. Remind them of the court's power to sanctions for non-compliance with the PD, and tell them you require a reply within 14 days.


In the very unlikely event that the PPC does in fact comply and provide you with the information you are entitled to, then you give them both barrels in a:


Formal 'RESPONSE'

Some information is provided about this below, but to be honest it isn't likely to get that far, and if it does, we will help you.

In your Response (if it gets that far) you will....

- State the claim is denied in full
- State why (this is an outline of the defence that you will file if it gets to court. You just have to give bullet points at this stage (have a look at the POPLA appeal threads for the points you will be raising)
- State that the above is a summary of the points you will be defending on and confirm that you will file a fully pleaded defence should the Claimant start court proceedings
- Ask for documentary evidence of the Claimant's standing to issue proceedings, in the form of a copy of the contract between the Claimant and the Landowner (if this had not already been provided)
- Request copies of any documents that are in the Claimant's possession that you need in order to prepare your defence
- Give the Claimant a list of any documents that you intend to refer to in support of your defence that the Claimant has not already seen (so if you are going to ask the court to look at photos of the entrance, or the signs, or a letter from the landowner cancelling the charge, or a copy of your blue badge, or a letter from your GP confirming you have a health condition that amounts to a disability under the Equality Act, etc, you list them here. You don't have to send them a copy at this stage, but it doesn't do any harm, and may make them back off.
Remind them of the sanctions under the PD for non-compliance
- Give them 14 days to reply


NOTE - if you get as far as sending a Formal Response under the Practice Direction (not very likely) get someone on here to check it over before you send it.


So to Summarise


Stage 1 - Acknowledgement:


Point out all the ways in which their Letter Before Claim fails to comply with the Practice Direction, point out all the things they need to do before you are able to give your Response, and point out the sanctions for failure to comply with the Practice Direction - and if appropriate raise any Equality Act/Discrimination issues.


Stage 2 - Response


(In the highly unlikely event that they have now complied with all aspects of the Practice Direction)

State that the claim is denied in full, state why, ask for proof of the Claimant's legal standing to issue proceedings, request all of the documents Bazter lists at post 9, any of the documents in the linked post above thatyou have not already asked for, and any other additional documents/information that might be specific to your own case.


Ask someone to check it over before sending it to the PPC


REMEMBER - they are expected to comply with all stages of the Practice Direction BEFORE starting proceedings or they can be sanctioned by the court for non-compliance.


Good luck!

Oh - one last thing... please come back and give us some feedback - even if it is just to say that you replied to the STINKY template letter, and everything has all gone quiet! Any feedback is welcome it helps us to respond to any developments

Daisy x

bazster

:T Thank you! That's very helpful with so many LBA's flying around right now. Can someone sticky this please?

Incidentally, this bit obviously needs correcting:

The RK/[STRIKE]PPC[/STRIKE]driver must then send a full written response within a ‘reasonable period’.

Umkomaas

Excellent synopsis and one to provide guidance in future - so support bazster's call for a sticky.

Having seen my daughter's LBA from PE, then the Aldi batch of PE LBAs are far from compliant with the detail provided above.

The suggested response to the LBA is one that very closely mirrors that provided as a template on Pepipoo, as presented by salmosalaris:

http://forums.pepipoo.com/index.php?s=&showtopic=80927&view=findpost&p=842264

mandragora_2

Detailed and thorough advice. Just one point I hope you don't mind me mentioning. If you send the company as an additional extra, an email version of your letter, I'd consider sending it as a scanned document, as it's harder to 'fiddle' with any part of the text of your letter, whereas an email that you've sent can be edited and still looks as if it came from you.

zzzLazyDaisy

Umkomaas wrote: »

E
Having seen my daughter's LBA from PE, then the Aldi batch of PE LBAs are far from compliant with the detail provided above.

The suggested response to the LBA is one that very closely mirrors that provided as a template on Pepipoo, as presented by salmosalaris:

http://forums.pepipoo.com/index.php?s=&showtopic=80927&view=findpost&p=842264

PE's Letters Before Claim are definitely not compliant. A cynic might think that the reason they are still calling it a 'Letter Before Action' is so a google search won't throw up the Practice Direction.... but maybe it is just simple incompetence?

Oh and it is not surprising that the suggested 'Letter of Acknowledgment' closely mirrors other similar letters - I learned so much from the posters here on MSE and over on Pepipoo in just a few short days.

Just one thing (sorry to be pedantic but this will really help posters coming for advice) ...

We need to use the Practice Direction terminology so that people get used to seeing it and use it in their letters to PPC's

LBA is now Letter Before Claim (LBC)
And the first reply to an LBC is 'The Acknowledgment'
(it matters because 'the Response' is the next step in the process and as you know the PPCs will jump on any excuse to muddy the waters (right sorry, teaching my grandmother to suck eggs now )

zzzLazyDaisy

mandragora wrote: »

If you send the company as an additional extra, an email version of your letter, I'd consider sending it as a scanned document, as it's harder to 'fiddle' with any part of the text

Thanks - good point. Done!

The_Slithy_Tove

Excellent work!

You have included the request for the claimant to justify the "loss" they claim. However, many claims - from the initial letters right through to the MCOL papers - are rather vague in saying whether the claim is
- a contractural charge
- damages for trespass
- losses for breach of contract
We know this vagueness is deliberate. But when it's nearing the formal legal stage, should the response to the LBC demand clarification as to which it is, if it's not already clear? The defence for each is rather different, and it seems unfair that the defendant has to put a defence in for each eventuality when surely only one should be required.

zzzLazyDaisy

The_Slithy_Tove wrote: »

Excellent work!

You have included the request for the claimant to justify the "loss" they claim. However, many claims - from the initial letters right through to the MCOL papers - are rather vague

Hi yes - the reason I include the loss is because the Practice Direction expressly states that this should be included in the LBC.

Edit - having looked again at the guidelines to the Practice Direction, I am inclined not to get to weighed down by the legal heads of claim at Acknowledgement stage because the Practice Directions indicate that the Claimant should treat the Defendant as if it is not legally represented, unless it KNOWS differently.

Also the Acknowledgement is just that - an acknowledgement and request for information necessary to prepare a response.

It is not intended to be the actual Response which comes later, once the Claimant has responded to the request for the information missing from the LBC.

I have edited Post 1 to make this clear.

See also my reply to Bazter at post 10 below re tactics (and my edit at the end of the first post)

Basically it is about insisting that the PPC complies with the Pre-action process so (hopefully) they will give up and go after easier targets.

bazster

Indeed. That, I imagine, would be the first point in your Acknowledgement.

"I am unable to respond in full as required by the Practice Direction on Pre-Action Conduct because your Letter Before Claim fails to specify the nature of your claim. Are you claiming damages for trespass, damages for breach of contract, payment of a contractual sum, or something else?"

And, after making all the other points about how the LBC is deficient and therefore cannot be properly responded to, you go on to request all the documents you want from them (and which they will refuse to provide) as follows:

- full details of the contract the RK/Driver is alleged to have entered into, including the full text of any contractual terms and conditions that the RK/Driver has allegedly agreed to
- Evidence that the driver agreed to this contract
- Evidence of the consideration given by the driver
- Clear indication of which contractual terms they believe are "core", and reasons therefore
- Clear indication of which contractual terms were individually negotiated, and evidence thereof
- A copy of their contract with their principal which they believe confers on them the right to enter into contracts regarding parking on this land, and to pursue charges
- Where their principal is not the landowner, a copy of the contract between the landowner and their principal which they believe confers upon their principal the right to enter into the contract with them; or, if there are further parties between their principal and the landowner, copies of every contract showing that there is an unbroken chain of authority stemming back to the landowner;
- An itemised breakdown of the losses they allege were incurred by them as a result of the vehicle being parked on the land
- An itemised breakdown of the losses they allege were incurred by their principal as a result the vehicle being parked on the land
- An itemised breakdown of the losses they allege were incurred by the landowner (if different) as a result of the vehicle being parked on the land
- A VAT invoice for the alleged charge

Finally, you demand a proper response, within 14 days, addressing all your points. Or they might prefer to cancel the charge.

It seems that they would be mad to file a claim after you have pointed out all their failings with respect to the pre-action conduct - but at the same time they would be mad to engage further with you over a claim that they didn't seriously expect to follow through anyway.

zzzLazyDaisy

Hi Bazter - excellent post, thank you (I've edited my post to point the reader to it).

However I am inclined to keep your more robust approach in reserve for the formal 'Response' to the LBC, if the PPC refuses the POPLA code and insists on proceeding with the Pre-action process - despite it's own non-compliance.

My reasoning is this:

Under the Practice Direction it is a 2 stage process -

First you Acknowledge the LBC within 14 days, and then you serve the Response.

The initial Acknowledgement merely points out the defects in the LBC, gets the missing info, and puts them on the back foot - it is not intended to be a full response just an informal 'give me the information I need to Respond' reply

It is only after the PPC provides the information missing from the LBC , and any bits of extra information that the RK/Driver has asked for that the RK/Driver is required to provide the formal 'Response' to the LBC (which is still a pre-action step to be taken before the PPC issues proceedings). It is the Response that would hit them with both barrels as you suggest in your post.

So at the Acknowledgement stage I am inclined to make it as simple as possible for the uninitiated poster to follow the steps, raise the preliminary issues of the missing information, and put the PPC on the back foot for not complying with the Practice Direction - and it does seem that at the moment the PPCs appear to be cancelling the charge when they get an Acknowledgement along these lines....

I suspect that the stumbling block for them is the request for the POPLA code as the Practice Direction expressly states that they should invite the RK/Driver to agree to go to appropriate ADR before issuing proceedings, so at a minimum the Acknowledgement should reset the POPLA clock.

If the PPC refuses the POPLA code and insists on proceeding with the Pre-Action process it risks being sanctioned by the court under para 4 of the Practice Direction for non-compliance, so until circumstances tell us different I think the two stage approach is best.

The reason for this approach is that Annex A is intended to be a guide for people who are unrepresented - they are not expected to know or understand the finer legal points, so doing it this way gives the RK/Driver two bites at getting the PPC to put their cards face up on the table.

longtimelurkersam

If you do email a copy go and create a unique email for it and do NOT use one of your regular ones. It cannot be a coincidence that not long after emailing a PPC I started to get inundated with SPAM from numerous sources and now it hits something like 40-50 a day. Thankfully the junk filter in Hotmail does an awesome job and I just have to have a quick scan for items that are junked by mistake.