ParkingEye LBA & Claim Form to deal with - any advice gratefully received!

alloha

Hello all, newcomer here. I am one of the lucky customers of parking eye, and have had a typical parking eye LBA (the usual, no mention of POPLA or other ADR, no reference to the practice direction which I had to find myself, etc etc). Problem is, I've been away from home recently - the LBA was recorded delivery but the person who signed for it had no idea what it was and it just sat there on my desk for weeks. I have only discovered this process now that the usual Northampton claim form has arrived and I received a worried message from home about it.

I have already filed the acknowledgement of service and said I intend to defend, and have started drafting both a formal defence and a letter to PE. Thing is - much of the very good advice on here says do this after the LBA but before the proceedings - too late to do that now clearly. Essentially, I guess it's the same set of arguments (no authority to issue contracts, punitive charge, not a pre-genuine estimate of loss). Clearly I must address not replying to the LBA in my defence so it doesn't look any worse, but there is a good work-related reason for being away - if I explain this in my defence, do people think the court will be sympathetic? I was also going to write to PE with a variation on the suggested kind of response to the LBA, except starting with a similar brief explanation of my non-reply, and then make the same points as otherwise (non-compliant LBA etc), would have been unable to follow the practice direction, but as it too late to change that now would PE consider withdrawing or cancelling their claim or going to POPLA... I know they probably won't, but at least I will have complied with the spirit of the PD as soon as I became aware of it.

Does anyone have any advice or prior experience of how things unfold like this where the court process is already underway?

Thanks in advance!

PS - the "Parking Event" is the usual story - overstay in a free car park, no breakdown of cost, no evidence of authority to contract, cameras, general waffle about PoFA, etc etc. - refuting all that I think I've got to grips with, its the procedural problems I've caused by missing the LBA that worry me.

Coupon-mad

Here is my latest summary link post to help with small claims court and defences; I post as SchoolRunMum on pepipoo and put this together this week:

http://forums.pepipoo.com/index.php?showtopic=82744&st=0&gopid=862298&

Read all links leading off the links given there, some of which suggest what to include in any defence, with some case law as well, and others just reassure posters that a small claim isn't the 'end of the World' and resolves the matter (sometimes in your favour).

I wouldn't spend more than a brief sentence saying that you were away so never saw the LBA and now realise that it was very misleading and uninformative as regards what would normally be considered a Letter before Claim. Then explain what was wrong with it, the lack of detail and lack of any explanation of their case (trespass? breach? why that amount seeing as it's a free car park?) and word your defence only as the registered keeper, trying to show why there is no 'keeper liability' established in this case at all.

Did you keep all the letters? Did they send the first one within 14 days?

http://www.parkingcowboys.co.uk/keeper-liability/

But then most of your defence should IMHO be a skeleton summary of any case law and other laws and regulations and BPA Code of Practice which you contend make this charge unenforceable and a penalty (as per the links you should find leading from that post on pepipoo). And that there was no loss suffered by landowner, shop nor parking company and so there is no basis for this charge at all, since they could only claim for actual loss for an alleged 'breach of contract' (a breach which is completely denied of course, since there was no contract formed...etc).

Also there's nothing to stop you trying to engage PE in some correspondence even whilst submitting your defence. It's good to keep the lines of communication open and shows good faith on your part (for any judge at a future hearing) if you have submitted a defence but also written to PE. You could use that letter to explain why you were unable to reply to the LBA, and say you have submitted your defence but feel disadvantaged because they appear to have omitted x,y,z from their particulars of claim and their LBA also left a lot of information out...ask questions and try to get them to reply. Suggest POPLA instead of court, try to maintain the moral high ground and try to word it so as to wheedle out a reply (treat it a little like the 'reply to LBA' that you would have sent if you'd seen it).

And...as well as putting a defence together in time, just TRY an URGENT email right now to whoever runs the retail park or the Manager of the Store if this was a customer car park and you were a patron. We have had cases cancelled by the 'organ grinder' who have called off the 'monkey' (PPC) even at court stage:

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

Bear in mind if the organ grinder does cancel it, get them to put that intention in writing (email) but be aware that the court case won't just be stopped and you will still need to meet the defence deadline. Then we would suspect you will get a sneaky 'without prejudice' letter begging you to go away quietly and pay PE £50 for their wasted 'costs' (so that they can put it towards their staff jolly at xmas). WELL...! Of course I wouldn't pay them that and would decline the 'offer' because as they are just an agent, anyone can see their chances of winning a small claim are hugely diminished if you can get the principal to cancel it. Especially likely to be possible in a customer/retailer situation!

zzzLazyDaisy

Excellent post from Coupon-mad as usual.

The only thing I would add is - don't get too hung up on the fact that you did not reply to the LBA at the time. You can still complain that the LBA did not comply with the Practice Direction. State that owing to the Claimant's non-compliance with the Practice Direction, the existence of the PD has only just come to your attention, and ask the court to make an order staying the proceedings, under para 4 of the PD (sanctions for non-compliance) to allow the parties time to complete the steps set out under the PD, as you believe this will benefit the parties and ease the burden on the court.

Then continue with a fully pleaded defence against their claim.

hth

Daisy

alloha

Thank you both, yes the draft I came up with last night is essentially the rebuttal of the LBA, pointing out the lack of reference to the PD, the lack of reference of POPLA or alternative (and suggested that as I am unable to use the POPLA service without a reference from them, but I would like to so as not to waste the court's time any further, it is entirely up to them whether they wish to or not).

I also have the earlier PCNs and they seem to have arrived in time. But I had a good look at the PoFA schedule 4 they bang on about repeatedly, and Paragraph 5 states that to collect charges from the keeper they must first be authorised to collect them from the driver. I have had a good look on the various forms, and nowhere do they state this (they do say they manage the car parks and (buried in the small print) that they are the creditor, but not that they are authorised to collect charges. Am I reading too much into it - I'm guessing that their 'contract' is hardly legally tight and in fact this is careful wording on their part to imply without stating authority? If they don't have it, they can't even invoke PoFA so their claim is groundless for more than the many usual reasons - I thought I'd include this point, and was going to state to them that the only reasonable conclusion for this elementary omission from their paperwork was that they did not have legal authority, thus all of their ANPR claims were legally flawed and that are knowingly engaged in a programme of vexatious litigation, and if they disagreed with my analysis they should immediately provide evidence of the authority they require to proceed with this case. I understand vexatious has a particular meaning in these cases so though it seems accurate to me, should I maybe change that word to something else?

I shall go it through it again and prune it in line with your recommendations, and also look into Daisy's suggestion to ask the court to stay this process. I guess our friends at PE will not like that at all :P

Do we have much experience/evidence/case law for what tends to happen in these cases, I'm reading that this is a fairly new strategy from PE so presumbly not many outcomes yet? Are courts generally humouring these cases and proceeding to hearings which PE back out of, or rejecting them once proper defences are filed?

Coupon-mad

Outcomes showing previous case wins for the motorist are among the links on the pepipoo thread I gave you.

We do know that PE have amassed some default wins where people have ignored the small claim or not turned up. And people have also folded and paid, and others are awaiting a hearing (they don't even have to attend as long as they ask for the case to be heard in their absence, so it doesn't have to be that daunting). We also know that they have won at least one case because PE cite it in their details of claim...but every case is different.

And most cases can be cancelled even at this stage if there is a retail/customer complaint to be made. Just do it!

alloha

I have a problem with appealing to the retailer, which is that on this occasion I didn't get what I wanted and so didn't ultimately buy anything, then had lunch in a restaurant next door, which is the reason for the overstay. I suppose maybe its worth a quick letter to them anyway, pointing out I did have intent to buy from them but am unlikely too if that matter continues. But for the immediate letter I need to write, I think it is probably better to stick to the arguments of no contract, unenforcable penalty, and so on.

Out of interest, do people recommend long detail defences or fairly short and to the point defences? I've spent some time crafting my letter to PE in a way that refers to pretty much everything I will use in my defence as well.

I have read through a lot of threads here and pepipoo so I think I have got the gist of what is happening. I won't be folding, I will go to the hearing if they take it that far. But PE do seem to be quite militant at the moment, and I found a couple of cases in the threads of disinterested judges who paid little attention to arguments about contract law and the like, so have this niggling doubt. Do people know how much weight might be put on previous cases, there are a lot of similarities with a couple of the famous PPC failures that get repeated a lot. The OBS vs. Thurlow one seems particularly good as it was a higher court - but guessing its not quite as automatic as quoting it as some kind of precedent is it?

alloha

I'm also thinking - Daisy's suggestion of asking the court to stay it due to serious non-compliance of the LBA and the need for us to do this proper (specifically ADR - primarily to propose to PE we go to POPLA instead, which they will refuse but then have to justify why to the judge...?)

How would I go about asking for a stay of proceedings, does that simply involve ringing the Northampton court on Monday morning and asking nicely? It wasn't obvious from the notes on the MCOL portal.

zzzLazyDaisy

Hi, your first priority must be to get the defence dealt with as a failure to comply with the deadline could result in judgement being entered in default.

Re their failure to comply with the PD - I would set the scene by referring to their non-compliance and asking for a stay as the first para of the formal defence.

Once you've got your defence off I suggest that you write directly to the PPC, pointing out their failure to comply with the PD, and invite them to consent to your application to the court for a Stay of proceedings to enable the parties to comply with the PD, and also suggest POPLA ADR as an alternative to court action. Tell them you have copied this letter to the court.

Then write to the court referring the court to the first para of your defence, saying that you are in correspondence with the Claimant about this (enclose a copy of your letter to the PPC) and say that, in the circumstances, you respectfully request that the proceedings be Stayed pending the outcome of the PD pre-action conduct procedure.

You will find a letter to the PPC on this thread at post 25 (you might want to tone it down a bit....)

https://forums.moneysavingexpert.com/discussion/4731184

If you go to para 4 of this thread, there are some arguments in support of the late use of POPLA (and rebuttal of their arguments as to why they supposedly can't give a late POPLA code)

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

Hope this helps

alloha

Very helpful thankyou very much. I think the letter I have written to PE pretty much fits with this, but I shall make a few modifications and not send it until I have dealt with the defence as well.

Thanks for your ongoing help!

alloha

Hello, me again.

A quick update - I filed a defence and wrote to our good friends in Chorley a couple of weeks ago. So far no reply, except a standard looking 'acknowledge receipt of your defence' from the courts. The optimist in me says they are mulling over whether I am worth bothering with, the pessimist just assumes they are swamped with crappy claims and will get round to replying eventually.

If I now want to write to the court to say 'look I tried, I asked for information and a POPLA code and now they are ignoring me, can we stay the proceedings please' (I'll use politer language!) - should I send such a letter to the County Court Bulk Centre in Northampton, referencing the claim number? Does this simply get added to the case file and at some later stage a judge looks at the whole lot before deciding whether to proceed?

Thanks in advance once again. I shall try to keep the forum informed if there

zzzLazyDaisy

When did you write to PE requesting a POPLA code? (before or after your claim was received?). What was their response? Did they outright refuse or just ignore your letter? Either way, if you post your letter here, I will draft you a robust follow up letter to go to PE. This is definitely worth following up.

Daisy