Parking Eye LBA - Response

GeoffBungle

Dear forum,

Many thanks for the veritable treasure trove of advice and information collected on these forums. I have just drafted a reply to a Parking Eye LBA in line with Daisy's very useful guide. At the end of the guide it said to post any draft replies in their own topic so the great minds of MSE can look them over before they're sent.

If anyone would be so kind as to give this a once-over I'd be very grateful.

Many Thanks,

GB

Car reg: XXXXXXXX

Dear Sir/Madam,

I am writing response to your 'Letter Before Action' (LBA) dated xx/xx/xx, reference XXXXXX. As per the requirements of the Practice Direction on Pre-Action Conduct (PD), please take this letter as a formal acknowledgement of the aforementioned correspondence, received by [MY NAME] ('the defendant') on 29/07/2013.

Sadly, the LBA received from Parking Eye ('the claimant'), does not comply with the requirements set out in Section 7 of the PD, meaning the defendant is unable to comply with the PD until further information is received.

Firstly, the claimant is required to refer the defendant to the PD so they may construct an appropriate response. The claimant's letter makes no mention of the PD.

The PD also states the claimant's LBA must provide a detailed breakdown of how any losses have been calculated so the defendant may construct a full response. Again, the claimant's letter fails to do so.

A claimant is also required, in line with the PD, to provide details of any documents they plan to rely on if court proceedings go ahead. Such a list was not included in the claimant's LBA and therefore the defendant is unable to fulfill their obligations under the PD until one is provided.

It is also incumbent upon both parties to explore other ways to resolve the matter before resorting to court action. Section 8 of the PD advises that methods of Alternative Dispute Resolution (ADR) should be exhausted before the 'last resort' of court action is taken. To this end, the claimant is invited to provide a Parking On Private Land Appeals Service (‘POPLA’) code in the hope that a resolution can be reached outside of court. The defendant would take this opportunity to point out that this independent appeals body was not mentioned in the claimant's LBA.

Alternatively, the claimant is invited to cancel the parking charge.

In order to facilitate a full response, the defendant requires the claimant to provide the following information in accordance with Section 7 of the PD.

1. The name and address of the individual, company or entity which contracted the claimant to provide car parking services.
2. The name and address of the landlord or landowner if different from (2).
3. A copy of the contract authorising the claimant to offer parking contracts on behalf of its client and pursue litigation on their behalf.
4. Whether the claim is based on a breach of contract, a tort of trespass or action on an unpaid debt invoice. If it is based on the latter the claimant must provide a VAT number.
5. A full and detailed breakdown of the losses said to have been caused to the defendant as a result of the incident alleged.
6. A full and detailed breakdown of the losses said to have been caused to the defendant's client and/or the landowner as a result of the incident alleged.
7. An explanation of how the claimant has satisfied requirements of schedule 4 under the Protection of Freedoms Act (POFA) 2012. The claimant's LBA does not identify a creditor, as required under paragraph 9 (2)(h).
8. A full VAT invoice for the parking charge.
9. A copy of the contract the claimant is said to have agreed to.

The defendant requests that the claimant reply to this letter, complying with the above requests, within 14 days of receiving it. The defendant will then provide a response within 30 days once the information in this letter has been received.

Alternatively, the claimant is once again reminded they may simply cancel the parking charge.

Regards,

MY NAME

Umkomaas

It looks good to me. What about adding some stuff on signage and detailed maps to indicate the positioning of signs? Then there is the issue of the accuracy of the ANPR cameras and their service history?

The above are a couple of additional points that would be recommended to be raised at POPLA (but not necessarily in your initial PPC appeal) but as you are closer to court than POPLA at the moment then it might be better to have all your cards on the table now for anything you might later raise at court?

I guess this will be one of the first LBA challenges based on PD and will be interesting to see what PE makes of it. Maybe the legal department is working on a new generic template as we speak!

zzzLazyDaisy

Hi Geoff just a quick note to say I have clocked your thread. I am about to go offline but will be back this evening.

In the meantime, please could you go to the main guidance thread and leave a short post just saying 'please see my thread'. Regular contributors monitor that thread and it just makes it easier for us to find you.

Dx

GeoffBungle

Thanks. I assume to make the point about signage I'd actually have to go back to the car park with camera or sketchpad in hand? Might be tricky as it's not exactly on my doorstep.

The ANPR thing, though: is that a more generic point that could be made? I used to work in serviced offices and they would issue spurious fines for out-of-hours alarm calls and claim they were triggered by our keycards on weekends. A colleague's charge was quietly dropped when he asked to see maintenance records/service certificates for the alarm triggers on the doors. Similar thing here?

All fuel for the fire, just wanted to check before I throw it on, so to speak!

GeoffBungle

Daisy: will do, thanks!

Herzlos

In points 5 and 6 at the end, I think you've used defendant (you) instead of claimant (PPC):

5. A full and detailed breakdown of the losses said to have been caused to the defendant as a result of the incident alleged.
6. A full and detailed breakdown of the losses said to have been caused to the defendant's client and/or the landowner as a result of the incident alleged.

And the opposite for point 9:

9. A copy of the contract the claimant is said to have agreed to.

Umkomaas

GeoffBungle wrote: »

Thanks. I assume to make the point about signage I'd actually have to go back to the car park with camera or sketchpad in hand? Might be tricky as it's not exactly on my doorstep.

The ANPR thing, though: is that a more generic point that could be made? I used to work in serviced offices and they would issue spurious fines for out-of-hours alarm calls and claim they were triggered by our keycards on weekends. A colleague's charge was quietly dropped when he asked to see maintenance records/service certificates for the alarm triggers on the doors. Similar thing here?

All fuel for the fire, just wanted to check before I throw it on, so to speak!

No need to get photos/sketches (unless you're passing), but signage, and the arguments put by PPCs, is that this is the contract you agree to, must be visible and meet minimum standards (as per BPA CoP). If you didn't (or couldn't) see/read them then they might not be up to standard or placed correctly - so you ask the PPC to prove that they did meet minimum standards.

The whole PE business model is based on ANPR cameras and their accuracy and service records are also included in the BPA CoP and for you to be sure your details collected by them are accurate then you need to ask them for proof that their equipment is accurate and regularly serviced. Some appeals have also asked for sight of the individual ANPR operator's training record!

GeoffBungle

Herzlos wrote: »

In points 5 and 6 at the end, I think you've used defendant (you) instead of claimant (PPC):



And the opposite for point 9:

Durr. Many thanks.

GeoffBungle

I've corrected the errors pointed out above and made a few tweaks to the letter.

I've whacked in a couple of extra paragraphs about the ANPR stuff and the signage. Can easily remove them if need be.

Car reg: XXXXXXXX

Dear Sir/Madam,

I am writing in response to your 'Letter Before Action' (LBA) dated xx/xx/xx, reference XXXXXX. As per the requirements of the Practice Direction on Pre-Action Conduct (PD), please take this letter as a formal acknowledgement of the aforementioned correspondence, received by [MY NAME] ('the defendant') on 29/07/2013.

The LBA received from Parking Eye ('the claimant'), does not comply with the requirements set out in Section 7 of the PD, meaning the defendant is unable to comply with the PD until further information is received.

Firstly, the claimant is required to refer the defendant to the PD so they may construct an appropriate response. The claimant's letter makes no mention of the PD.

The PD also states the claimant's LBA must provide a detailed breakdown of how any losses have been calculated so the defendant may construct a full response. Again, the claimant's letter fails to do so.

A claimant is also required, in line with the PD, to provide details of any documents they plan to rely on if court proceedings go ahead. Such a list was not included in the claimant's LBA and therefore the defendant is unable to fulfill their obligations under the PD until one is provided.

It is also incumbent upon both parties to explore other ways to resolve the matter before resorting to court action. Section 8 of the PD advises that methods of Alternative Dispute Resolution (ADR) should be exhausted before the 'last resort' of court action is taken. To this end, the claimant is invited to provide a Parking On Private Land Appeals Service (‘POPLA’) code in the hope that a resolution can be reached outside of court. The defendant would take this opportunity to point out that this independent appeals body was not mentioned in the claimant's LBA.

Alternatively, the claimant is invited to cancel the parking charge.

In order to facilitate a full response, the defendant requires the claimant to provide the following information in accordance with Section 7 of the PD.

1. The name and address of the individual, company or entity which contracted the claimant to provide car parking services.
2. The name and address of the landlord or landowner if different from (2).
3. A copy of the contract authorising the claimant to offer parking contracts on behalf of its client and pursue litigation on their behalf.
4. Whether the claim is based on a breach of contract, a tort of trespass or action on an unpaid debt invoice. If it is based on the latter the claimant must provide a VAT number.
5. A full and detailed breakdown of the losses said to have been caused to the defendant as a result of the incident alleged.
6. A full and detailed breakdown of the losses said to have been caused to the claimant's client and/or the landowner as a result of the incident alleged.
7. An explanation of how the defendant has satisfied requirements of schedule 4 under the Protection of Freedoms Act (POFA) 2012. The claimant's LBA does not identify a creditor, as required under paragraph 9 (2)(h).
8. A full VAT invoice for the parking charge.
9. A copy of the contract the defendant is said to have agreed to.
10. Evidence that ANPR equipment owned and operated by the claimant was properly serviced and maintained in the lead-up to the alleged incident.
11. A comprehensive overview of signage at the location of the alleged incident, including details of placement and wording at the time it was said to have taken place.

The defendant requests that the claimant reply to this letter, complying with the above requests, within 14 days of receiving it. The defendant will then provide a response within 30 days once the information in this letter has been received.

Alternatively, the claimant is once again reminded they may simply cancel the parking charge.

Regards,

MY NAME

zzzLazyDaisy

Hi Geoff, this is an excellent first draft, well done :beer:

A couple of points - was the PCN issued before May? Yes?

Did it come to you as the Registered Keeper? Yes?

I also assume that you did not write to the PPC, to advise them of the identity of the driver at the time of the alleged parking event? No?

If I have guessed the correct answers to the above questions, then please change your letter to give it a new first paragraph along the following lines:

First, I wish to draw to your attention that fact the the PCN to which your letter relates does not comply with Schedule 4 of the Protection of Freedoms Act 2012 ('PoFA') in that it does not identify the creditor. PoFA expressly states that the claimant must comply with ALL the provisions in order to pursue the Registered Keeper. On that basis I do not believe that you have any case against the Registered Keeper at all. Should you start proceedings, I will make an immediate application to the court to strike out the action together with an application for my costs under CPR 27.14(2)(g), on the basis that the claimant has behaved unreasonably in pursuing the claim against myself as the Registered Keeper.

I therefore invite you to advise your client to cancel the charge, on the basis that the PCN is defective and does not give your client the right to proceed with this claim against the Registered Keeper.


Then repost your letter and I will check it over.

Dx

GeoffBungle

Daisy - thank you. Not only were you correct on all three points but you are a saint for taking the time to do this. I've incorporated your changes below - do let me know what you think.

Car reg: XXXXXXXX

Dear Sir/Madam,

I am writing in response to your 'Letter Before Action' (LBA) dated xx/xx/xx, reference XXXXXX. As per the requirements of the Practice Direction on Pre-Action Conduct (PD), please take this letter as a formal acknowledgement of the aforementioned correspondence, received by [MY NAME] ('the defendant') on 29/07/2013.

Firstly, the defendant would draw to Parking Eye's ('the claimant's) attention the Parking Charge Notice (PCN) referenced in its LBA does not comply with Schedule 4 of the Protection of Freedoms Act 2012 ('PoFA') in that it does not identify the creditor.

The defendant would point out that PoFA expressly states the claimant must comply with ALL the provisions outlined in the legislation in order to pursue a claim against the Registered Keeper (RK) of the vehicle in question (ie the defendant in this case). The defendant therefore asserts on that basis the claimant does not have a case against the RK

The claimant is further advised that, should they initiate court proceedings, the defendant will make an immediate strike out application to the court, together with an application for costs under CPR 27.14(2)(g), on the basis that the claimant has behaved unreasonably in pursuing the claim against the defendant as the Registered Keeper.

The claimant is therefore advised to invite its client to cancel the charge, on the basis that the PCN is defective and does not give its client the right to proceed with the claim against the Registered Keeper.

If the claimant still wishes to pursue its claim in light of this, the defendant asks they consider and act upon the following points.

The LBA received from the claimant does not comply with the requirements set out in Section 7 of the PD, meaning the defendant is unable to comply with the PD until further information is received.

Firstly, the claimant is required to refer the defendant to the PD so they may construct an appropriate response. The claimant's letter makes no mention of the PD.

The PD also states the claimant's LBA must provide a detailed breakdown of how any losses have been calculated so the defendant may construct a full response. Again, the claimant's letter fails to do so.

A claimant is also required, in line with the PD, to provide details of any documents they plan to rely on if court proceedings go ahead. Such a list was not included in the claimant's LBA and therefore the defendant is unable to fulfill their obligations under the PD until one is provided.

It is also incumbent upon both parties to explore other ways to resolve the matter before resorting to court action. Section 8 of the PD advises that methods of Alternative Dispute Resolution (ADR) should be exhausted before the 'last resort' of court action is taken. To this end, the claimant is invited to provide a Parking On Private Land Appeals Service (‘POPLA’) code in the hope that a resolution can be reached outside of court. The defendant would take this opportunity to point out that this independent appeals body was not mentioned in the claimant's LBA.

Alternatively, the claimant is invited to cancel the parking charge.

In order to facilitate a full response, the defendant requires the claimant to provide the following information in accordance with Section 7 of the PD.

1. The name and address of the individual, company or entity which contracted the claimant to provide car parking services.
2. The name and address of the landlord or landowner if different from (2).
3. A copy of the contract authorising the claimant to offer parking contracts on behalf of its client and pursue litigation on their behalf.
4. Whether the claim is based on a breach of contract, a tort of trespass or action on an unpaid debt invoice. If it is based on the latter the claimant must provide a VAT number.
5. A full and detailed breakdown of the losses said to have been caused to the defendant as a result of the incident alleged.
6. A full and detailed breakdown of the losses said to have been caused to the claimant's client and/or the landowner as a result of the incident alleged.
7. An explanation of how the defendant has satisfied requirements of schedule 4 under the Protection of Freedoms Act (POFA) 2012. The claimant's LBA does not identify a creditor, as required under paragraph 9 (2)(h).
8. A full VAT invoice for the parking charge.
9. A copy of the contract the defendant is said to have agreed to.
10. Evidence that ANPR equipment owned and operated by the claimant was properly serviced and maintained in the lead-up to the alleged incident.
11. A comprehensive overview of signage at the location of the alleged incident, including details of placement and wording at the time it was said to have taken place.

The defendant requests that the claimant reply to this letter, complying with the above requests, within 14 days of receiving it. The defendant will then provide a response within 30 days once the information in this letter has been received.

Alternatively, the claimant is once again reminded they may simply cancel the parking charge.

Regards,

MY NAME