Lost POPLA appeal - am I bang to rights?

prowla

Daffo1023 wrote: »

Yep - very aware of my missed opportunity to win the appeal Coupon-mad, so frustrated by it. I guess I am one of the naive ones that assumes that commonsense wins out in situations like this...wrong eh!?

The only common-sense thing to know is that they want your money and don't care how they get it.

Daffo1023

Coupon-mad wrote: »

Yep, it is. Needs a response as per the 'LBCCC Fightback' thread, near the top of the forum.

Thanks, Daisy. The letter I have received does not contain any statements such as 'Please be aware this Letter Before County Court Claim is fully compliant with the Practice Direction on Pre-Action Conduct' as outlined in the guidance thread you mention? Will this come later, or should I utilise your 'template' (with personalisation and editing) such as the below example in response right now?

***

NAME of PPC
ADDRESS

DATE

QUOTE THE REFERENCE ON THEIR LETTER

Dear Sirs

Re: LETTER BEFORE COUNTY COURT CLAIM dated [insert date of LBCCC]

I am writing to acknowledge receipt of the above letter.

[Here say something about the fact that you have checked/read/examined the Practice Direction, as they have advised in their letter]

[Now tell them that their letter states it is fully compliant with the Practice Direction, when this is clearly incorrect/untrue/misleading]

[If you want to be more robust you might want to add in here an extra comment about what you think about this. Do you think that a legal department staffed by solicitors should be able to produce a compliant letter before claim? Do you feel concerned about the fact that you, as an unrepresented person with no legal training are having to explain to them what the Practice Direction requires from them? Do you want an explanation from them as to how they could have made such a fundamentally misleading mistake? Do you want to ask if the solicitor in charge of the legal department approved the letter before county court claim before it was sent to you? Do you want confirmation from them that they will review their standard LBCCC and ensure that future LBCCC's issued to motorists are in fact fully compliant with the Practice Direction. Or alternatively, you may just omit this paragraph.]

[Now ask them to send you a fully compliant Letter Before County Court Claim, so you can deal with your own obligations under the Practice Direction]

[Here you can tell them that you are attaching an extract of the Practice Direction dealing with the requirements for a Claimant's Letter Before Claim, for their information (see extract below) ... or you can just tell them that that since their LBCCC refers to the PD, they obviously know what is required and you expect them to comply with their obligations]

[Finally - at some point in the letter - it doesn't matter of it is at the start or the end of the letter - address the issue of POPLA. Tell them that you do not accept what they say about POPLA. Explain to them that you believe that it makes sense to comply with the Practice Direction's requirement to refer this matter to POPLA, which is the appropriate form of ADR for parking disputes. Go back to Post 4 where this point is discussed and make brief reference to any other points you consider relevant - DO NOT cut and paste, remember you are not legally qualified, this is your OWN explanation of what YOU think about it].

[Remind them of the Court's powers to apply sanctions for non-compliance with the Practice Direction under Para 4, and tell them that you expect to receive a fully compliant Letter Before Claim within 14 days. Warn them that if they do not send you a fully compliant Letter Before Claim as requested, you will seek the assistance of the court]

[Consider including a paragraph along the following lines:

'Please do me the courtesy of reading and replying to this letter. Please note, if you send me a generic template letter which does not address my requests for information, I shall copy the correspondence to the Solicitors Regulation Authority and ask it to investigate your breach of the Principles set out in the SRA Handbook version 8, published on 1st October 2013'. BUT ONLY DO THIS IF YOU ARE PREPARED TO FOLLOW THROUGH WITH A COMPLAINT TO SRA]


Yours faithfully

PRINT NAME

Coupon-mad

Hi, yes that is definitely their attempt at a LBC (a bad attempt). So you can draft your response but give Next & the Peel Centre time to respond. If it were me, tomorrow I would send them a copy of this latest letter to say 'look how I am now being threatened with court, I am minded to go to the papers about this farce - if you do not help me get this cancelled and I end up with a court hearing I am minded to add the Peel Centre as a defendant in a counter claim for damages for harassment, because I know Excel are your paid agents and act upon your instruction and clearly in this case their persistent threats are unwarranted.'

When you adapt Daisy's template you will need to change it all to suit, even the title should be changed from 'Re: LETTER BEFORE COUNTY COURT CLAIM dated...' to instead call it by the name they have headed their letter up with. And then all the detail would be yours to add to suit your case. But rattle Next & the Peel Centre's cages again for a few days first!

Daffo1023

Thanks Coupon-mad. I will give some time and consideration to my response using my personalised version of the template today and have it ready for when I need it. Next have been quite forthcoming so far, so I am hopeful they will come through, but nevertheless I am not going to be naive enough to put all the eggs in that basket.

I will post a draft of my version of the letter before doing anything else for you guys to take a butchers at...

Daffo1023

Morning, everyone. Had an email back from Next Customer Complaints yesterday, advising that they had passed all details to the manager of their store at Peel Centre in order for her to liaise directly with Excel. Hopefully they'll make some headway. In the meantime, I am drafting my version of Daisy's template - see the below (with a couple of notes.)

A quick question, however - in the LBC, Excel has attached a copy of the POPLA decision. By doing this, do they satisfy certain parts of the PD (ie some/all of the points below?)

2.1 The claimant’s letter should give concise details about the matter. This should enable the defendant to understand and investigate the issues without needing to request further information. The letter should include –
(1) the claimant’s full name and address;
(2) the basis on which the claim is made (i.e. why the claimant says the defendant is liable);
(3) a clear summary of the facts on which the claim is based;
(4) what the claimant wants from the defendant; and
(5) if financial loss is claimed, an explanation of how the amount has been calculated.
2.2 The letter should also –
(1) list the essential documents on which the claimant intends to rely;
(2) set out the form of ADR (if any) that the claimant considers the most suitable and invite the defendant to agree to this;
(3) state the date by which the claimant considers it reasonable for a full response to be provided by the defendant; and
(4) identify and ask for copies of any relevant documents not in the claimant's possession and which the claimant wishes to see.

*****

My version of the letter in response to LBC:

Excel Parking Services Limited
2 Europa Ct, Sheffield, South Yorkshire S9 1XE

4th February, 2014

Ref: XLXXXXXXXX

Dear Sirs

Re: NOTICE OF INTENDED COURT PROCEEDINGS dated 27 January 2014

I am writing to acknowledge receipt of the above letter.

I have taken time to examine the Practice Direction as is required through this process. As you are intending to pursue this matter, your Notice of Intended Court Proceedings must therefore be compliant with the Practice Direction, however given the content of your correspondence, this is lacking.

Taking into consideration the relentless insistence of Excel Parking on pursuing this matter – which is based wholly on the fact that the payment machine dispensed a ticket with incorrect details recorded, disregarding your own evidence which clearly shows I paid to park at this location - I am surprised and disappointed that the process of issuing an accurate and compliant notice of intended court proceedings seems to be beyond your legal department. Moreover, it is highly concerning that it is upon me as an individual to highlight such deficiencies in your compliance process; presumably a process exists to ensure that fundamental checks are made to legal documents prior to issue, so it is somewhat mystifying that this document has quite clearly been sent out without undergoing any check.


In order to proceed, I request that you re-issue your notice, ensuring that it is fully compliant in order for me to address my own obligations under the Practice Direction. Until I receive a compliant letter, I am unable to proceed with this process.

For your information, and to ensure that there is no doubt about your own obligations moving forward, I include below an extract from the Practice Direction about what must be provided by Excel Parking, as well as general compliance guidance:

2.1 The claimant’s letter should give concise details about the matter. This should enable the defendant to understand and investigate the issues without needing to request further information. The letter should include –
(1) the claimant’s full name and address;
(2) the basis on which the claim is made (i.e. why the claimant says the defendant is liable);
(3) a clear summary of the facts on which the claim is based;
(4) what the claimant wants from the defendant; and
(5) if financial loss is claimed, an explanation of how the amount has been calculated.
2.2 The letter should also –
(1) list the essential documents on which the claimant intends to rely;
(2) set out the form of ADR (if any) that the claimant considers the most suitable and invite the defendant to agree to this;
(3) state the date by which the claimant considers it reasonable for a full response to be provided by the defendant; and
(4) identify and ask for copies of any relevant documents not in the claimant's possession and which the claimant wishes to see.

4. Compliance
4.1 The CPR enable the court to take into account the extent of the parties’ compliance with this Practice Direction or a relevant pre-action protocol (see paragraph 5.2) when giving directions for the management of claims (see CPR rule 3.1(4) and (5)) and when making orders about who should pay costs (see CPR rule 44.2(5)(a)).
4.2 The court will expect the parties to have complied with this Practice Direction or any relevant pre-action protocol. The court may ask the parties to explain what steps were taken to comply prior to the start of the claim. Where there has been a failure of compliance by a party the court may ask that party to provide an explanation.



[Finally - at some point in the letter - it doesn't matter of it is at the start or the end of the letter - address the issue of POPLA. Tell them that you do not accept what they say about POPLA. Explain to them that you believe that it makes sense to comply with the Practice Direction's requirement to refer this matter to POPLA, which is the appropriate form of ADR for parking disputes. Go back to Post 4 where this point is discussed and make brief reference to any other points you consider relevant - DO NOT cut and paste, remember you are not legally qualified, this is your OWN explanation of what YOU think about it].


Please do me the courtesy of reading and replying to this letter. Please note, a refusal to comply with the Practice Direction and/or the issuing of a generic template letter which does not address my requests for information, will result in me copying the correspondence to the Solicitors Regulation Authority, asking it to investigate your breach of the Principles set out in the SRA Handbook version 8, published on 1st October 2013.


Yours faithfully

NAME

I have left in the paragraph about referring to POPLA so that I can get some feedback from the forum – as this has already been through POPLA, does it make this point moot? ie this option has been actioned and we are now further down the line – or can it be re-referred to POPLA at this stage?

zzzLazyDaisy

Hi, just to say that the LBCCC thread primarily addresses PE's process as they are the most litigious of the parking companies (they call their letter an Letter Before County Court Claim, but actually the proper name as referred to in the Practice Direction is 'Letter Before Claim'.

However the same process applies to any parking company that threatens court proceedings. It is just a case of acknowledging the letter and then replying to the rubbish template letters a few times. Some of them just give up and find easier fish to fry. Others need a full and final formal response after a couple of ping pong letters (but when you get that far we can help you with that).

I haven't had chance to read your letter, but your first shot simply needs to be something along the following lines:

---

PCN Number [xxxxxxx]
Vehicle Registration Number [xxxxxxx]

I am writing to acknowledge receipt of your letter dated [date], which I presume is intended to be a Letter Before Claim, although it does not comply with the requirements of the Practice Direction on Pre-action Conduct. In particularly it does not provide me with the information necessary for me to understand the claim against me and/or provide formal Response. I would ask you to note that I am neither legally qualified, nor legally represented, so essential that you provide the information as set out in Annex A of the Practice Direction, in order for me to seek advice and assistance.

Therefore, if it is your intention to issue proceedings, please provide a formal Letter Before Claim, in accordance with the provisions set out at Annex A, within 14 days. I shall then seek advice and provide a formal Response within 30 days.

Yours etc.

PRINT NAME (do not sign).

---

That is sufficient for a first reply, and will hold the situation and give Next an opportunity to liaise with Excel

hth

Daisy

Daffo1023

That's cracking, thanks Daisy. I will put this together and send off imminently. Will keep you posted, thanks for the guidance!