Excel Parking - Letter Before Action

pilch1984

I thought that was what you had explained earlier but the comment above made me think i had misunderstood so i thought it best to clarify.

I just want to say again, thanks to everyone that's helped me with this - especially Daisy! Daisy, I sincerely wish you a swift recovery as I can see from firsthand experience that your advice is invaluable.

pilch1984

So, I've had a reply to my letter. The non-confrontational part of me wants to pay just to get rid of it BUT i also feel like i'm being bullied and i really don't like bullies! I don't really know what to do next so would appreciate your views. This is the letter text (sorry I'm not allowed to post URLs):

Iwill refer to each of the points raised in your letter.

Firstly, please be aware that the Letter Before Action criteria (known in the Practice Directions as a Letter of Claim) are not applicable in this matter. The criteria you refer to for the Letter of Claim can be found in Annex A .

Please refer to www . justice.gov .ukfcourts/procedure- rules/civil/rules/pd_pre-action_conduct
section 7; Exchanging Information before starting proceedings. Section 7.3 of the Practice directions state that:

'Annex A sets out detailed guidance on a pre-action procedure that is likely to satisfy the court in most circumstances where no pre-action protocol applies and where the claimant does not follow any other statutory or other formal procedure'.

As members of the British Parking Association (BPA) we follow the formal pre-action procedure set out in the BPAs code of practice . An electronic version of the code can be found at www . britishparking.co.uk/Code-of-Practice-and-compliance-monitoring.

The correspondence we have sent you is in line with the code. I have enclosed a copy of the Notice to Owner that was sent to you.

You also state that you feel unable to provide a full response without further information. Please advise the
information that you require to be able to provide a response and we will endeavour to provide this to you.

Ialso note your final point regarding the Protection of freedoms Act (POFA) 2012.You correctly point out that the contraventions took place prior .to the enactment and therefore the registered keeper cannot be pursued on that basis alone .

Please be aware that pre-POFA, we were and are still able to take the matter to court with the view of showing that, on the balance of probability, you were the driver of the vehicle.

In light of this , Iam happy to wait a further fourteen days for your response and information request. Iwill then provide you with whatever information I can and provide a further deadline for payment. Should we be unable to reach an amicable agreement, we will proceed to issue proceedings .

At this point, the court will consider referring the matter to the Small Claims Mediation Service. Whilst parties cannot be forced to enter mediation I can confirm that Excel Parking Services Ltd will always endeavour to reach a settlement at any stage of proceedings with the view of saving both time and costs for both parties.


I have a few thoughts on this but i don't know if they are relevant:

1. the 'process' they direct me to in place of the pre-court practice guidance doesn't seem to be much of a process and seems to be based on post-POFA guidance (e.g. i can't use POPLA as the 'offences' were pre-2012). Therefore, is it applicable to me?

2. The above 'process' states that the correspondence should state how to make payment. Neither letter that I have received so far has even mentioned this.

3. They haven't sent me the Notice to Owner that they have mentioned in the letter.

4. They haven't mentioned mediation or appeals at any point until now!

What do you think?

Coupon-mad

Woah, definitely don't start wobbling and thinking of paying them! Of course they would reply like this!

I notice that they said:

''You also state that you feel unable to provide a full response without further information. Please advise the
information that you require to be able to provide a response and we will endeavour to provide this to you.''

And you say that they didn't even bother to enclose the Notice to Owner they mentioned.

So I would draft an immediate response telling them what you want to know about the basis of their 'claim' (i.e. is it trespass, breach of contract or what) and what loss was suffered by Excel or their client? How is that 'alleged loss' quantified as a result of the driver's actions on those occasions? What evidence of the signage from 2009 do they have, you want to see contemporaneous photos of all signage they are relying upon. And you want to know when Excel made their enquiries of the registered keeper's name and address, what date and what justification/reason was stated to the DVLA? Was more than one enquiry made over the years...if so why?

And what evidence do they hold as to who the driver was on those occasions (December 2009 and March 2010 are years ago!) because after all this time you have ABSOLUTELY no idea who was driving and completely refute that it must have been the registered keeper, when it could have been any family member or friend who was allowed by you to drive the car at that time. Could even have been a person since emigrated or deceased, of course. And how are you even to know whether Excel are correct in their allegations, seeing as no PCN was ever received, any unscrupulous parking firm could make up a 'charge' and you have seen no compelling evidence of any wrongdoing.

Tell them they haven't bothered to answer your points and haven't even bothered to enclose the enclosure they mentioned in the letter, so how are you supposed to take the matter seriously.

Can you tell from the information, where this supposedly took place? Retail Park or Supermarket perhaps? Don't discount COMPLAINING to the Store Manager or Head Office of the Store (or Retail Park Managing Agents) in writing even now, after all this time, as you are being harassed NOW! Enclose copies of all the rubbish Excel have been sending you and say that as Excel are their agents this is clearly harassment of you as registered keeper...and warn them that if Excel do lodge a small claim you are minded to counter-claim and also to include the {Store/Managing Agent/Landowner} in the claim for damages for this distress and harassment.

Encourage them (whoever was/is the owner/occupier on site, especially if it hasn't changed...?) to 'call their dogs off' after all this time, since no-one can know who was driving and the matter is surely history, and certainly unjustified harassment. Look at all these reported successes, even at LBA and court stage, where people have assertive COMPLAINED. Easy when it actually works, and you lose NOTHING by trying:

https://forums.moneysavingexpert.com/discussion/comment/62837690#Comment_62837690

And see what zzzLazyDaisy makes of your next draft when you show it here.

zzzLazyDaisy

Hi, just to say that I have clocked this thread and will be back tomorrow to advise.

Also, to say that - despite the parking industry's delusions of importance - the BPA code of practice does not, in any way, over-rule or replace the Court Practice Direction on Pre-action Conduct that has been issued by the Ministry of Justice!!!

Daisy

pilch1984

Sorry for the delay in getting this up here - it's been a busy few days. Thanks for all the advice so far... Here's my draft response - i've tried to keep it short but sweet and wasn't sure if i should mention the pre-court conduct procedure again?

To whom it may concern,
Your ref: XXXXXX
Further to your letter dated XXXX, I am writing to acknowledge receipt of the letter and to address the points that you have raised.
Despite your assertion that the pre-action court procedure does not apply in this case, I would still like to have the information requested in my previous letter which you did not acknowledge in your response:
1) Please advise me on the basis of your claim - ie breach of contract; trespass, money owed under a contractual invoice, or some other basis?
2) Your claim relates to three separate events which occurred some years ago. It is unreasonable to expect me to recall these events without a summary of the facts that are alleged to have occurred. You made reference to a copy of the Notice to Owner sent with your response. This was not enclosed. Please provide me with a summary of the facts that have occurred.
3) You have not explained how the loss has been calculated. Please therefore provide a clear explanation of the losses claimed including details of how they have been calculated.
4) You have not provided a list of the essential documents on which the claimant intends to rely on in court. Please therefore enclose a full and complete list of the documents you intend to rely on in court.
5) Additionally, I would like to know when you made enquiries to the DVLA about the details of the vehicle’s registered keeper and what date and justification was provided to the DVLA?
Once you have provided the above information, I will seek further advice on how to proceed with this matter.
Yours sincerely
XXXXX

Thank you!

Umkomaas

pilch1984 wrote: »

Sorry for the delay in getting this up here - it's been a busy few days. Thanks for all the advice so far... Here's my draft response - i've tried to keep it short but sweet and wasn't sure if i should mention the pre-court conduct procedure again?

To whom it may concern,
Your ref: XXXXXX
Further to your letter dated XXXX, I am writing to acknowledge receipt of the letter and to address the points that you have raised.
Despite your assertion that the pre-action court procedure does not apply in this case, I would still like to have the information requested in my previous letter which you did not acknowledge in your response:
1) Please advise me on the basis of your claim - ie breach of contract; trespass, money owed under a contractual invoice, or some other basis?
2) Your claim relates to three separate events which occurred some years ago. It is unreasonable to expect me to recall these events without a summary of the facts that are alleged to have occurred. You made reference to a copy of the Notice to Owner sent with your response. This was not enclosed. Please provide me with a [STRIKE]summary[/STRIKE] full transcript of each of the cases you reference [STRIKE]of the facts that have occurred[/STRIKE].
3) You have not explained how the loss has been calculated. Please therefore provide a clear explanation of the losses claimed including details of how they have been calculated.
4) You have not provided a list of the essential documents on which the claimant intends to rely on in court. Please therefore enclose a full and complete list of the documents you intend to rely on in court.
5) Additionally, I would like to know when you made enquiries to the DVLA about the details of the vehicle’s registered keeper and what date and justification was provided to the DVLA?
Once you have provided the above information, I will seek further advice on how to proceed with this matter.
Yours sincerely
XXXXX

Thank you!

Have just altered a sentence in your response - after a quick glance. Ohers may wish to add to/amend other paragraphs.

zzzLazyDaisy

Just some additional suggestions (in blue). Please leave the letter up for other posters to comment. Daisy.

---

To whom it may concern,

Your ref: XXXXXX

Further to your letter dated XXXX, I am writing to acknowledge receipt of the letter and to address the points that you have raised.

Despite your assertion that the pre-action court procedure does not apply in this case, I [STRIKE]would[/STRIKE] s[STRIKE]till like to have[/STRIKE] require the information requested in my previous letter which you did not acknowledge in your response:

1) Please advise me on the basis of your claim - ie breach of contract; trespass, money owed under a contractual invoice, or some other basis?
2) Your claim relates to three separate events which occurred some years ago. It is unreasonable to expect me to recall these events without a summary of the facts that are alleged to have occurred. Please provide me with a summary full transcript of each of the cases you reference of all the facts that have allegedly occurred, so that I might make further enquires.

3)[/COLOR]You made reference to a copy of the Notice to Owner sent with your response. This was not enclosed. Please provide me with a full set of copies of all correspondence which you allege was generated in respected of each of the alleged 'parking events' to assist me with my own enquiries regarding these parking charges

4)Further, you have stated that you will rely on 'the balance of probabilities' to prove that I was the driver on each occasion - if you have evidence of this, such as a photograph of the driver, please provide that evidence by return, so that I can make further investigations as to who the driver might have been on those occasions.

5) You have not explained how the loss has been calculated. Please therefore provide a clear explanation of the losses claimed including details of how they have been calculated, in respect of each of the individual charges referred to in your letter.

6) You have not provided a list of the essential documents on which the claimant intends to rely on in court. Please therefore enclose a full and complete list of the documents you intend to rely on in court in support of each of the individual claims you are proposing to make against me.
7) Additionally, I would like to know when you made enquiries to the DVLA about the details of the vehicle’s registered keeper and what date and justification was provided to the DVLA?

Finally, it is my understanding that only the land owner can issue legal proceedings. Please therefore provide documentary evidence of your status as the landowner. If you are not the landowner, please provide the name and address of the landowner, together with a copy of the contract between your company and the landowner authorising your company to act as agent on the landowner's behalf in pursuing legal proceedings against me.

Once you have provided the above information, I will seek further advice on how to proceed with this matter.
Yours sincerely
XXXXX

pilch1984

Hi All,

Thanks for your input. I'll be emailing this today to ensure it gets there within 14 days (it's my own fault for leaving it for so long). It'll be interesting to see what they come back with...

Thanks again!

spacey2012

Excels "legal representative" narrowly escaped a spell in jail for abusing the right of audience not so long ago.
I doubt they would risk it again.

pilch1984

Well, that's quite interesting isn't it? They just come across as a bunch of cowboys and bullies and I don't know which is worse!