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

Beaman8507

Hi Daisy as requested, see my thread

many thanks

Beaman8507

The_Slithy_Tove

@zzzLazyDaisy,

You may be aware of this thread on Pepipoo (http://forums.pepipoo.com/index.php?showtopic=81750) where PE are sending out very aggressive template responses to your own LBA acknowledgement template. While much of it is clear b******s, I'm sure we would appreciate your opinion of it.

zzzLazyDaisy

Thank you for this link. It is very useful.

In amongst all the posturing and verbiage, PE noticably make two statements:

1 That their 'genuine pre-estimate of loss' includes signage etc and therefore does not comply with the legal definition of a pre-estimate of loss.

2 That they refuse to comply with the steps set out in the Practice Direction on Pre-action Conduct (yes it takes them a lot of words to say this, but that is basically what they are saying). In essence they are saying 'everyone knows how these things are done - we make a claim, you lodge a defence'. And they are right to a point - that is certainly how things USED to be done. But the PD has been in force since 2010, long enough for solicitors to have familiarised themselves with this process.

3 The correspondence that is exchanged during the Pre-action conduct is part of the court process and will be produced to the court in due course. I doubt that the court will take kindly to such an aggressive stance by a commercial claimant towards an unrepresented individual, in a small claims court action.

EDIT - Please see Post 45 below for the way to respond to to LBAs. It won't stop a nasty letter coming through through the post ( but see post 1 on this thread for more about that) basically the best approach is to follow the instructions in Post 1 and keep the whole course of correspondence off the forums if at all possible.

4 I suggest that in future Acknowledgments make it clear that the defendent is not legally represented, and until they received the LBA they had no knowledge of court procedure. As a result of receiving the LBA they have carried out research and have taken advice, and have become aware of the PD on Pre-action Conduct - a PD which the LBA should have directed them to.

5 I suggest also that the Acknowledgements be kept shorter, the long list just gives them more of an opportunity to cook up a storm. So focus on the aspects of Annex A that they have failed to comply with. Maybe try a one liner sending them a copy of the Annex A (or even a copy of the CAB advice on what a claimant should include in a LBA) and just asking them to send back a compliant LBA so the defendant can prepare their Response. The more personalised the Acknowledgement, the more unreasonable their template response will become.

6 No doubt everyone will be getting rabid template letters of this nature. The answer is to go back to Annex A, pick through the essential requirements and see if they have in fact replied to the points. If they have replied to the points and simply refused to answer, so be it, the defendant can pick up on that in their Response. For example - in amongst all the verbiage, it appear that they have not in fact provided a list of the documents that they intend to rely on in court as they are REQUIRED to provide under the PD. They also do not make the basis of their claim sufficiently clear to enable the defendant to prepare a Response under the PD, in other words, is this claim against the defendant a claim for damages for breach of contract, a claim for damages for trespass, or a claim for an unpaid debt due on a contractually agreed invoice? What else is on the Annex A which they have simply not addressed?

7 They also demand a reply within 14 days, when in fact the PD states clearly that in complex cases where the defendant might need to seek advice 30 days should be allowed for the Response. In replying in this fashion they have ensured that any unrepresented defendant would need to seek advice, so their demand for a response within 14 days is unreasonable and not within the spirit of the PD.

8 My own view is that this letter needs a short calm reply - within 14 days - not responding to their points, or challenging their statements, or rising to the bait, but simply picking out the areas in the Acknowledgment/Annex A where they have not commented (eg list of documents and clarification of basis of claim) asking for their reply within 14 days, and confirming that within 30 days after receiving the requested information, the defendant will provide a Response in accordance with the PD.

9 With regard to the stroppy comment about 'on-line fora' the defendant might want to make a short and simple statement about the fact that since these are complicated legal issues and there is no legal aid available for small claims court actions, it is hardly surprising that people faced with these claims are turning to online sources of information and advice such as that provided by the CAB website and other online sources.

10 My own view is this is a court directed procedure - so keep it calm, keep it clean, and follow the process set down by the COURT's own Practice Direction.

EDIT - please see my next post, below, for my suggestion for dealing with a non-compliant LBA .....

PS - a message for the spies - I would just like to say that I am truly saddened that fellow members of the legal profession are willing to compromise their ethics and play fast and loose with the law in this way. So be it. You know who you are.

zzzLazyDaisy

EDIT - this is a revised version of my earlier advice, and is current as at 12/08/2013

Daisy

Okay, having had chance to consider this further. Since it would appear that the approach of some PPCs appears to be to stick two fingers up at the court system, and insist on playing by their own rules, I am suggesting a more personalised approach:

BEFORE any attempt is made to engage in the Pre-action Conduct steps, you should should simply write back, in your own words, tell them this is your acknowledgment to the Letter Before Action and explain the situation from your point of view. In whatever words and style you would normally write, but including somewhere in your letter the following points, listed below. NOTE the points don't have to be in any particular order, and in fact if you put them in a different order to personalise your own letter, that's even better. Just make sure that somewhere in your letter you get these points across.

Remember, you are writing as the Registered Keeper. If you need to say something about the person who was driving - refer to 'the Driver'. Do not identify yourself as the driver - why? Because the PoFA points are just as important in court as they are at POPLA, so if they have messed up with compliance with PoFA (and they probably have) don't throw those points away.

PLEASE NOTE - THIS IS NOT A DEFENCE, IT IS NOT AN APPEAL - IT IS A POLITE REQUEST FOR THE INFORMATION THAT THEY SHOULD HAVE ALREADY GIVEN YOU.

(The slight exception to this is the Equality Act issue - see point 6 below. But even then, this is not an appeal - you are simply giving them information that they did not have when they sent the LBA, so they can reconsider their position)

First, remember to quote their reference given on their letter before action and also the vehicle registration number - you want them to get this letter.

Then write your letter including these points:

1 You have received the Letter before action, and you are writing to acknowledge it.

2 you have done some research, and looked on-line for advice.

3 you have come across the Practice Direction on Pre-action Conduct.

4 You have realised that the letter before action that you have received from [name of PPC]'s legal advisers (alternatively say 'legal department' or 'Solicitor') does not comply with the Practice Direction requirements for a letter before claim / letter before action. Tell them that you are unable to comply with the Practice Direction until they have complied with the Practice Direction and provided the further information requested in this letter (remember to use your own words)

5 explain that you do not have access to legal advice apart from on-line research and say how you feel/ what you think about the fact that a company solicitor legal department has sent you a legal letter about court action without telling you about the Practice Direction or explaining what you are supposed to do, and without giving you the information that the Practice Direction says they are supposed to provide. (To be honest it does not matter what you say here, the point is that you say it in your own words and in your own style, and get the point across that this letter has come from a company that has a solicitor to advise them and you do not have a solicitor to advise you - you are writing for the Judge, remember). Write this in your own way, in your own words.

(The point is to make it clear that you are not legally represented, and until you received the LBA you had no knowledge of court procedure. As a result of receiving the LBA you have carried out your own research and have become aware that not only should they have told you about the Practice Direction in their letter before action, but that they are required to carry out ALL steps of the pre-action procedure BEFORE starting court proceedings).

6 If there is any Equality Act point, tell them about this. For example, if the Driver or a passenger is disabled (by this I mean that the person has a long term health condition that slows them down, means they have to stop and rest, affects their mobility, generally means that it takes them longer to do things). If the person is elderly and disabled tell them that too - and invite / ask them to reconsider their position and drop the court proceedings

If the driver or a passenger was a pregnant or breastfeeding mother and this had something to do with the 'parking event' - tell them. Remind them that the person is protected under the Equality Act and invite / ask them not to continue with the court action

Similarly, if the vehicle was displaying a disabled badge remind them of para 19 of the BPA Code of Practice and suggest that they reconsider their position and take no further action.

The PPC might be in a good mood and agree not to pursue court action, but you definitely can't count on that.... so your letter must continue to deal with the non-compliant LBA...

7 Ask them to send you a Letter Before Action which includes all the information that is set out in the Practice Direction requirements for letters before claim so you can seek advice on what you need to do to prepare a response

8 Ask them to confirm that the claim against you is a breach of contract action or if not to specify the claim (debt action, trespass, etc) so you can understand what their claim is about and how to respond to it.

9 Tell them that the Practice Direction says that the parties must consider an appropriate form of ADR. Confirm that you are willing to go to ADR and invite them to give you a POPLA code so that you can do this.

10 Go through your list that you made when you were comparing the LBA to the PD's requirements and tell them if there is anything else you require. Make it clear to them that this is information that the PD says that they should have given you in the LBA, and you need this information to comply with your own obligations under the PD (use your own words)

11 Insert here anything else you want them to provide that is not in the list of information in Annex A - but a word of warning - a long list of requests and demands is likely to lose you the judge's sympathy vote. My own view is that you have probably done enough for now - bearing in mind that the PPC is probably not going to read your letter anyway, and you'll get another chance to send a more robust and detailed reply later. I know I keep saying this - but I will say it again - you are compiling a set of correspondence that will be placed before the Judge. Being an ordinary person, without a lot of knowledge on the subject, and just trying to do the right thing, will go in your favour.

12 Tell them that as soon as you receive their Letter Before Claim giving you the Practice Direction information that is set out in Annex A, you will comply with your obligations under the Practice Direction.

12 Direct them to the PD. You can do this by copying and pasting the links to the CAB website and the Practice Direction in post 1 of this thread; or you can copy and paste Annex A Para 2 - also on post 1 of this thread; or if you want to be more robust, you can simply say something like "As a corporate legal department I would expect you to be aware of the Practice Direction on Pre-action Conduct, so please comply with the requirements of Annex A and send me a fully compliant Letter Before Claim on order that I may fulfil my obligations under the Practice Direction (it is not important how you do this, or how you say it - just use your own words and your own style).

13 Remind them that the Practice Directions states that they must comply with the Pre-Action Procedure before they start court proceedings against you.

14 Ask them to send you their reply within 14 days and confirm that once you have received the information that the practice direction says they must provide, you will let them have your Response. Tell them that because this matter is complicated [and/or] you may need to seek advice you will give them you Response within 30 days of receiving their compliant LBA (use your own words).

15 If you want to be more robust you can also remind them of para 4 of the Practice Direction on non-compliance and sanctions and tell the that if they refuse to comply with your reasonable requests contained in this letter, you will report them to the court /seek the assistance of the court / bring their conduct to the attention of the court (use your own words).

Okay so you have written the letter in your own words and in your own style. Yes, I know, this is getting boring. When you go back to post 1 on this thread and read what comes after this step (if you haven't already done so!) you will understand why it is so important that you make your letter personal to you.

For the same reason, please keep your letter off the forum. The PPCs do read the forum and you do not want to identify yourself at this stage.

What next?

POST the letter by good old fashioned snail mail, by first class post, from the post office, and get a certificate of posting (free).

Also do a belt-and-braces and send the letter as a scanned document or pdf file by email or webmail and make a note of the reference number/e-mail receipt.

Phew! Okay I've done all that... what now?
Now you go back to the first post on this thread, and carry on! :-)

Daisy

zzzLazyDaisy

Note: I have updated the advice in Post 1, to provide two alternative approaches to an LBA (in blue).

The formal Acknowledgment is still good advice (but keep it succinct and cut down the list of extras, which can be dealt with later - see post 44 above for my views on that). Yes they will get a nasty letter, which forms part of the list of documents to be produced to the court should the PPC choose to push the case to court (unlikely as the real purpose of the letter is to intimidate the recipient into paying up).

For individuals who might be intimidated or upset by an aggressive reply from a PPC, the 'soft reply' at post 45 above is a perfectly acceptable alternative approach (but even with the alternative approach, they still need to read post 1 as they are still in a pre-action process).

Either way - the motorist must reply within 14 days of getting the LBA - even if it is just to say in their own words something like 'I have received your LBA, I need to get some advice and I will reply properly shortly' - otherwise the PPC could jump the gun and start legal proceedings.

Hope this helps

Daisy

daffin

zzzLazyDaisy...

If you or others wouldn't mind looking at my thread, I would greatly appreciate any advice.

We received a PCN from APCOA, I've read a lot of threads and am just confused.

27col

Brilliant thread many thanks to all concerned. It will be interesting to see a few threads on the subject from people who are taking action as a result of this thread.

zzzLazyDaisy

NOTE TO REGULAR POSTERS

As some of you may know I am not well. I am going to be away from home from 10th August for health reasons. I will have intermittent access to the internet during that time and won't be around as much. I normally have my PMs switched off, but I will switch them on during this time in case any of the regular posters wish to contact me, ask questions, point me to a thread etc.

But please note, any pm contact from ordinary MSE'rs will be deleted unread.

Thanks

Daisy x

Umkomaas

Hope you're better soon Daisy, the forum will be a poorer place for not having you around so much. Take care.

Guys_Dad

Daisy, your help and knowledge has been invaluable on here and we will miss you.

Looking forward to seeing you back as soon as you are able.

If you do decide to help people in the meantime, preserve your efforts for those who have made some effort themselves first. Otherwise it becomes Groundhog Day.

Best wished,

GD