I have a letter ready to respond to a P.E. letter before action need to have it check

Beaman8507

I have read the forum and have had a problem with P.E. they have now sent me a standard "Letter Before Action" and after reading the forum I have put together a response to them as an acknowledgement to their LBA.

I want someone to check it over for me but am unsure how I can get this done??

any help and advice on this would be greatly appreciated.

Guys_Dad

There is a current thread on LBA with an excellent response from xxxlaxydaisy. Have a read.

Beaman8507

Guys_Dad wrote: »

There is a current thread on LBA with an excellent response from xxxlaxydaisy. Have a read.

Yes have had a read of that just now

I have also asked for photographic evidence.

I've had one letter from DRP which shows a time of 00.00hrs which is a nonsense and a demand for £150.00 and now a LBA from PE asking for £100 but have not mentioned as yet as I want to keep that for another letter later of for the court but just want to know if I can get someone to check my letter out as I am not good at this stuff.

zzzLazyDaisy

Hi, just to say I've clocked your thread and will be back tomorrow.

In the meantime could you just add a post to my guidance thread, saying 'see my thread'. It just helps us regular posters to find you.

Dx

Beaman8507

zzzLazyDaisy wrote: »

Hi, just to say I've clocked your thread and will be back tomorrow.

In the meantime could you just add a post to my guidance thread, saying 'see my thread'. It just helps us regular posters to find you.

Dx

do you have a link for me to your guidance thread Daisy as I am new to this and not too savvy with it

zzzLazyDaisy

Hi Beaman, and welcome!

Here is the guidance thread:

http://forums.moneysavingexpert.com/showthread.php?t=4705657

Please read it and bring yourself up to speed. It is vital that you understand what the Practice Direction says, and how it applies to your situation, as this is part of the Court Pre-action Process, so although there may be a lot of similarities, each case must be tailored to its own particular facts.

Then post your first draft Acknowledgement, and we will check it over for you.

I'll be back tomorrow.

Dx

zzzLazyDaisy

Hello Beaman, I don't know if you have been following the exchange of posts on the guidance thread. Anyway, please go back to that thread and read the first part of post 1 (in blue). If you haven't already read the guidance do that now. Then go to post 45 and follow the instructions there for writing a letter to the PPC. Send the letter by first class post, with a certificate of posting (free from the post office). It is not a bad idea to also send it by e-mail as a scanned or pdf attachment, just in case the letter gets 'lost in the post'. Come back here when you have a reply.

Daisy

Beaman8507

zzzLazyDaisy wrote: »

Hello Beaman, I don't know if you have been following the exchange of posts on the guidance thread. Anyway, please go back to that thread and read the first part of post 1 (in blue). If you haven't already read the guidance do that now. Then go to post 45 and follow the instructions there for writing a letter to the PPC. Send the letter by first class post, with a certificate of posting (free from the post office). It is not a bad idea to also send it by e-mail as a scanned or pdf attachment, just in case the letter gets 'lost in the post'. Come back here when you have a reply.

Daisy

Thank you daisy, I am also adding in the letter a request for photographic evidence as I cannot even remember being in that car park on the day in question. also the person who reported the car, should they not be SIA registered?? and if so I want to know what hours they worked that day and where they worked as well. as the car park has a 2 hour limit they must have stayed on site there for at least 2 hours that day.

should I add this in my letter?

The_Slithy_Tove

Beaman8507 wrote: »

should I add this in my letter?

No. This stage is not about evidence and the like. It's about following the correct procedure. Evidence (not that photo's prove a lot) is for court itself.

BTW, SIA licensing is completely irrelevant.

Coupon-mad

Beaman8507 wrote: »

Thank you daisy, I am also adding in the letter a request for photographic evidence as I cannot even remember being in that car park on the day in question. also the person who reported the car, should they not be SIA registered?? and if so I want to know what hours they worked that day and where they worked as well. as the car park has a 2 hour limit they must have stayed on site there for at least 2 hours that day.

should I add this in my letter?

Haven't seen your acknowledgement yet? Post it up for more help. Should be sent within 14 days then followed with a full response intended to make your case such a hot potato that they choose to pursue easier victims.

Beaman8507

I have received the following from Parking Eye which is identical to other peoples responses they have received from parking eye as follows

ParkingEye strongly believes that the Letter Before Action wassufficient in bringing to your attention impending court action and, asindicated by your correspondence you are already well versed in what isrequired under the Practice Direction on Pre-action Conduct.

To clarify, the Parking on Private Land Appeals (POPLA) Service, will onlyaccept an appeal after the motorist has made their appeal (‘representations’)to the operator who issued the Parking Charge Notice and that operator hasrejected these and issued a POPLA appeal form. In this instance, no appeal hasbeen made to ParkingEye in the timescale required (i.e. 28 days from the dateof our initial correspondence), instead correspondence has only been sent aftercourt proceedings have been issued. All our correspondence has stated,

“All appeals and complaints must be put in writing and should be forwarded toone of the addresses below. All appeals must be received within 28 days fromthe date of our initial correspondence. Please include all information toassist with the appeal. This may include: a store receipt from the day inquestion; proof of purchases via a bank statement etc. If the appeal isunsuccessful, you will be advised in writing and you will also be provided withdetails of the Independent Appeals Service (POPLA), their contact details and aunique appeal reference. Please note: The POPLA service is only available forparking events dated from 1st October 2012 and POPLA will not accept an appeal,if you have not appealed to ParkingEye in the first instance.”

ParkingEye runs a dedicated appeals team that considers all appeals on a caseby case basis. If an appeal is rejected, the appellant is then given theopportunity to apply to POPLA. At no stage of proceedings have we received an appeal,as has been requested on our correspondence. This procedure has been set downby the British Parking Association (BPA) and POPLA. The BPA website states:

“If you wish to appeal the ticket you should find out who has issued it andwhat that company’s appeals process is. The operator's name and contact detailsshould be printed on the ticket and on the car park signs. It may also be worthwriting to the company/individuals that own the piece of land who may havecontracted out the operation of enforcing the parking. If you decide to appealand this is subsequently rejected by the operator you may take your appeal toPOPLA, the independent appeals service which launched on October 1st 2012.”

The Land Holder/Land Owner:
1. In this case, we are contracted by landholder. We are not at liberty todivulge the address of this party.

2. We are contracted by the landholder onsite, or the landholder’s agent. Weare fully authorised to operate onsite.

Pre-Estimate Of Loss
3. Please see below points.

4. Please see below points.

ParkingEye have instructed Barrister Jonathan Kirk QC to give his opinion onthe matter of pre-estimate of loss. He has stated that, “the burden of provingthat the fixed charge amounted to a penalty would be upon the motorist,” thatParkingEye should, “document clearly an attempt to pre-estimate the lossoccasioned,” and that, “The courts have recognised that this can be ‘rough andready’ and will not be defeated because it is not absolutely accurate. It mayalso be possible to achieve a global figure across the business.” This then iswhat we provide here.

This was supported In Mayhook v National Car Parks and Fuller (2012). Here theJudge stated, “I do not find that this is a penalty. I think it is NCP doingits best in a very difficult field genuinely to pre-estimate loss.”

It must therefore be noted that this is a very difficult industry in which todetermine a completely accurate pre-estimate of loss. This will depend both onthe losses to ParkingEye, and on the potential losses to the landholder, whichwill vary depending on the time of day, the day of the week and even upon theweather.

We have calculated the outstanding Parking Charge amount as a genuinepre-estimate of loss as we incur significant costs in managing this car park toensure motorists comply with the stated terms and conditions and to follow upany breaches of these. These costs include (but are not restricted to);

Erection and maintenance of the site signage, installation, monitoring andmaintenance of the Automatic Number Plate Recognition systems, employment ofoffice-based administrative staff, membership and other fees required to managethe business effectively including those paid to the BPA, DVLA and ICO, generalcosts including stationery, postage etc. This sum, and the calculations whichhave been made in setting it, has been approved and agreed by the landholder.This sum was also clearly laid out on the signage at the site and, by remainingon site, we contend that the motorist has accepted all of the prevailing termsand conditions of that contract, including the charges for breach of contract.Furthermore, there is commercial justification for the charges, and the chargeswere approved and prescribed by the British Parking Association and theDepartment for Transport in 2012.

Here, ParkingEye has focused on its losses, although, as noted above, there arealso significant losses incurred by the landholder.
The average payment by motorists who have been issued with a Parking Charge byParkingEye is circa £63. Circa 84% of this payment (circa £53) coversParkingEye’s costs. This information has been taken from ParkingEye’s companyaccounts and these can be provided to the court if requested.

ParkingEye is required to offer a 40% reduction to motorists for early paymentwithin 14 days. Therefore, this reduced amount needs to be greater than orequal to £53 in order for ParkingEye to operate as a business. Therefore, theupper amount of the charge needed to be at the level outlined below.Furthermore, the amount of £100 was approved and prescribed by the BritishParking Association in consultation with the Department for Transport in 2012.Therefore, the full amount of the Parking Charge, which is an enforceablecharge levied for breach of contract, is £100. The reduced amount for earlypayment is £60.

ParkingEye accepts payment of the reduced amount at many stages of its appealprocess, including when a motorist who has appealed to ParkingEye is given theopportunity of appealing to the Parking On Private Land Appeals (POPLA)service. It is only if a defendant ignores all ParkingEye correspondence, orloses an appeal at POPLA, that the charge will be increased to the higheramount. At this stage, ParkingEye will have incurred further costs, and thisincrease is in line with BPA regulations and the terms and conditions set outon the signage. If legal proceedings are entered into, this amount will riseaccordingly.
In ParkingEye Ltd v Kevin Shelley (2013), Circuit Judge Dodd adhered to thefinding of Lord Justice Colman in Lordsvale Finance v Bank of Zambia [1996] QB752, which states,

"whether a provision is to be treated as a penalty is a matter ofconstruction to be resolved by asking whether at the time the contract wasentered into the predominant contractual function of the provision was to detera party from breaking the contract or to compensate the innocent party forbreach...deduced by comparing the amount that would be payable on breach withthe loss that might be sustained if breach occurred".

This follows the traditional definition of Lord Dunedin in the case of Dunlopin 1915. However, at 763g and following it continues,

"the jurisdiction in relation to penalty clauses is concerned notprimarily with the enforcement of inoffensive liquidated damages clauses butrather with protection against the effect of penalty clauses. There wouldtherefore seem to be no reason in principle why a contractual provision theeffect of which was to increase the consideration payable under an executorycontract upon the happening of a default should be struck down as a penalty ifthe increase could in the circumstances be explained as commerciallyjustifiable, provided always that its dominant purpose was not to deter theother party from breach.”

This description was approved by Lord Justice Manse in the case of Cine BesFilmcilik Ve Yapimcilik & Anor. v United International Pictures & Ors[2003] EWCA Civ 1669 in which he stated,
"I have also have found valuable Colman J's further observation inLordsvale at pp.763g-764a, which indicate that a dichotomy between a genuinepre-estimate of damages and a penalty does not necessarily cover all thepossibilities. There are clauses which may operate on breach, but which fallinto neither category, and they may be commercially perfectly justifiable.”

Circuit Judge Dodd found that the key issue was not whether or not the chargewas a pre-estimate of loss; but whether the purpose of the Parking Charge is todeter breach, or if the dominant purpose is commercially justified. We stronglyargue that there is commercial justification for the charges. The Judge foundthat, on a balance of probabilities, it was more likely that the dominantpurpose was to provide for regulation of the car park area. He also stated thatit was not common for the courts to find a penalty within a contract. He statedthat a breakdown of loss was not required, as the contract was formed on itsown terms.
In Cavendish Square Holdings v El Makdessi (2012) it was stated:

“I am not persuaded that Clause 5.6 is a penalty clause, the onus being uponthe Defendant:
i) It serves a commercial purpose.
ii) I am not satisfied that its purpose is to deter.
However, the reality is that, in the modern approach to the concept of penaltydiscussed above, there is no longer the need for the dichotomy betweenliquidated damages and genuine pre-estimate of loss, and so the relevantquestions seem to me to be simply:-
i) Was there a commercial justification?”

ParkingEye firmly believes that its charges are fair and reasonable. There iscommercial justification for the charges, which means that the charges cannotbe considered penalties (see E-Nik v Dept for Communities (2012) and CadoganPetroleum Holdings Ltd v Global Process Systems LLC (2013)). Private managementof car parks is commercially necessary for landholders. They have a right tomanage their private land as they see fit and allow motorists to use this landfor parking under certain terms and conditions. The contracts, and its clauses,are necessary to prevent abuse of private land. This is commercially necessaryas the landholder needs to manage their land in order to ensure that theirbusiness can run successfully. The terms and conditions of parking on privateland are set out in consultation and conjunction with the landholder, and it isthe obligation of the motorist to comply with these when they park in the carpark. ParkingEye does not believe that the terms, set out by the landholder,are unfair. However, if the defendant believed them to be, he should not haveparked in the car park.

The Protection Of Freedoms Act 2012 and ParkingEye’s Notices:

5. ParkingEye firmly believes that the creditor has been identified on theParking Charge Notices. They are headed and footed with the ParkingEye name andlogo, and it is made clear that all appeals or payment should be made toParkingEye. We consider this sufficient to inform the recipient that thecreditor is ParkingEye Ltd. In ParkingEye Ltd v Kevin Shelley (2013), it wasfound that the claimant was identified, and that the Notice to Keeper letterwas fully compliant with the Protection of Freedoms Act 2012.

6. As court proceedings have not yet been begun, and as no defence has yet beenfiled, it is impossible for ParkingEye to state exactly the documents that willbe relied upon in court. These could include, but are not limited to; theProtection of Freedoms Act 2012, the British Parking Association Code ofPractice, any defence submitted by you, any reply to defence submitted by us,any document proving ParkingEye’s authorisation to operate on site, any signageplan or images of signage from the site in question.

7. Any person who makes a contract in his own name without disclosing theexistence of a principal or who, through disclosing the fact that he is acting asan agent on behalf of the principle, renders himself personally liable on thecontract, is entitled to enforce it against the contracting party. (Fairlie vFenton (1870). It follows that a lawful contract between ParkingEye and themotorist will be enforceable by ParkingEye as a party to that contract.ParkingEye is fully authorised by the landholder to act on their behalf. Ifevidence of this is requested in a court-authorised defence, ParkingEye willprovide this. Our contracts are very commercially sensitive and contain muchinformation not relevant to the case, and we are therefore reluctant to divulgethese unless specifically requested by the court. Usually, a witness statementand/or letter of authority signed by the landholder are deemed to be sufficientproof.

Further Information:
ParkingEye has requested that an appeal be made within 28 days since the firstParking Charge Notice was sent. This has not been forthcoming. Had an appealbeen made, it is likely that much of this information could have been provided.However, as no correspondence has been received, we have had no choice but toprepare to enter into legal action. Should such action be taken, this willincur further costs, which will be sought from you in court.

Please note that this matter will soon be being conducted in the County Court.Therefore, from this point all submissions should comply with County Courtprocedure. Standard procedure dictates that the defendant will defend theircase, the claimant will reply, and both sides will submit a witness statementand all supporting documents to an allocated County Court. You will be requiredto submit a defence to the court.

Alternatively, you may want to bring this matter to a close by paying theoutstanding Parking Charge.

ParkingEye’s Request For Further Information:
As ParkingEye have given you the courtesy of providing all the relevantinformation to fully understand the case - despite the fact you chose to ignoreseveral items of correspondence from us requesting to enter into dialogue priorto the need to take court action – ParkingEye would request the followinginformation from yourself. We must inform you that should you fail to providethis necessary information then you may be considered to have not complied withthe aforementioned Practice Direction. Should you fail to provide the belowinformation, and in the absence of any prior evidence indicating that youdidn’t break the terms and conditions on the signage, ParkingEye will considerthis an admission that you wish this to be dealt with in Court. Pleasetherefore provide:

1. The full name and address of the party who authorised you to break the termsand conditions of parking on the private land in question, which were set downby the landholder in conjunction with ParkingEye, and which were clearlydisplayed via the signage on site.

2. A list of all documents you are going to rely on in court.

3. Please provide an explanation for why you broke the terms and conditions ofparking onsite. This should include an explanation of why you believe thatthese terms and conditions did not apply to you, and why you believe that youhad the authority to break them, once the contract had been entered into.

4. Please provide your reasons for having ignored the 4 of letters sent to youin relation to this charge. Please explain why you made no appeal to ParkingEyewithin the 28 days provided for you to do so. Please explain why you think itis reasonable to have failed to enter into pre-court action dialogue withParkingEye, and only to have corresponded in relation to this charge now thatcourt action is imminent.

5. Should you consider that you didn’t enter into any contract with ParkingEye,please demonstrate how it is possible that you were on site for xxx hours andxxx minutes, and yet were not made aware of any terms and conditions ofparking, despite the signage on site being clear, ample and in line withBritish Parking Association regulations. This should include evidence of wherein the car park you parked, the route you took to this parking space and theroute you took upon exiting, as well as information about your movements onsite, to show that at no point did you come close to a sign.

6. Please provide your reasons for stating that our Parking Charges are not apre-estimate of loss.

7. Please provide your reasons for believing that ParkingEye, a BPA andApproved Operator Scheme approved operator, does not have authority to monitorand enforce on the site in question.

8. Please state why we have received over 20 identical documents to yourprevious correspondence to date - documents we believe originate from onlinefora (these can be provided to the court if necessary). Please therefore statewhether this document was written by you, or whether it was taken from anonline forum, or other third party. Please state to what extent you understandthe document you have sent to us.

We require the above information within 14 days of you receiving this letter.
If you wish to make payment regarding this matter this can be done by telephoningour offices on 0844 247 2981, by visiting www_parkingeye_co_uk or by posting acheque or postal order to the address detailed below


I NOW INTEND to reply and want advice on if I should inform Parking Eye that I will also be informing them that I shall be presenting this letter to the Judge together with the web address of this forum so the judge can see many other people have received identical letters from PE

I will also be asking them for proof of postage and or delivery from Royal Mail as to their previous correspondence as I have not received any correspondence from PE except the LBA

Advice needed please please