Parking Eye "LETTER BEFORE COUNTY COURT CLAIM" with new reference to CPR 17.1

castle347

Hello

I overstayed in a carpark where the limit was 2 hours. There was no option to pay for more time. I am the registered keeper and drove the vehicle on the day. I ignored the first two notices from Parking Eye.

They have now sent me a LETTER BEFORE COUNTY COURT CLAIM.

I've read the thread titled:

Parking - Letter Before County Court Claim (LBCCC) - Fight back! Guidance Thread

But I just wanted to check, before I send the first template letter as advised, whether anything needs to be changed, in light of an additional paragraph on the back of the letter, which seems to be a new addition to the letter quoted in that thread.

The addition is in the 2nd paragraph of No. 1 and reads:

"In particular, please be aware of CPR 17.1. If legal action is taken, a defence to the claim should be made. This will be responded to. If new defence points are to be added subsequently, an application must be made in accordance with CPR 17.1. ParkingEye will not change its statement of case, and will only respond to further defence points raised in line with CPR 17.1. Once the defence and reply are submitted, the claim will be allocated to a County Court, and a witness statement and documents should be submitted. The witness statement should not contain further defence points, and should be a statement of the facts of the case only. Both parties should also ensure that any defences and replies are filed and served prior to the filing and serving of witness statements, and that further defences or documents are not filed at or after this time."

Is this important? Or is it OK to proceed with sending the template that is on the thread?

thanks very much in advance

bod1467

As far as I can tell, this is all standard. And is exactly what PE don't comply with (often) in their court cases ... they often try to include new/additional documents/evidence after the submission deadline; in many cases on the day of the hearing itself!

So if by any chance you DO end up in court, and the PE representative tries to submit/file new evidence, you now know the exact breach of civil procedure rules they have made.

Stroma

Yes use the lbccc letter as mentioned. Can I just ask have you made complaints to the retailer or landowner yet? If you haven't do that along side sending a letter to Parking Eye.

James_N

bod1467 wrote: »

As far as I can tell, this is all standard. And is exactly what PE don't comply with (often) in their court cases ... they often try to include new/additional documents/evidence after the submission deadline; in many cases on the day of the hearing itself!

So if by any chance you DO end up in court, and the PE representative tries to submit/file new evidence, you now know the exact breach of civil procedure rules they have made.

it would appear from several reports that PE themselves break the procedure rules that they themselves quote here by bringing into court papers that have not been produced before. All the while they are not above complaining if you do the same. If they do this, you may complain, but there is no loss if you have really forgotten something in asking to produce it. It might be allowed.

One thing to bear in mind is that the Small Claims Court is not really stuffy and scary (no really). In general, the court exists so that "small" people can bring claims - a householder against a plumber, a builder against a client, etc. The court is not really designed for big company use. Therefore, there can be some "give" in what is allowed to happen.
In recognising that a private individual has forgotten something, they may allow it to be produced. Slight irregularities in what goes on are often overlooked. This is good in that it's less intimidating, bad in that decisions and the decision making process in this court can never completely be relied on.
In general YOU should find out and keep to the rules, and remember that PE as a company SHOULD be expected to keep to a higher degree of adherence because they are "professional" (!) litigants.

castle347

hello all

thanks alot for your replies to my query - I'll go ahead and use the standard template to acknowledge the claim letter and begin correspondence with PE.

In answer to your question Stroma, I've not yet complained to the retailer or landowner. The site is a retail park serving a number of different shops, none of which I used on that particular day, although I have used them in the past. So is it still worth trying to find out who the landowner is and contact them as well?

And if I find out who they are, do I just write to explain and ask them to get PE to drop it?

Also, I should mention that perhaps 1.5 or 2 years ago (i.e. before PE changed their approach), I had a similar notice for doing exactly the same thing, but on that occasion did a quick check of MSE and other boards and just ignored the 2 notices and nothing else came of it. Will this prior issue have any bearing on the current problem?

Thanks very much for all your help so far

Castle347

Stroma

No it won't have a bearing on this case at all. I would find the landowner of this retail park and make complaints, show receipts or bank statements from previous visits, inform them that you didn't keep receipts of this visit as you bought stuff in cash, and you have disposed of those receipts now.

Search on Google for the retail park, and local council planning website to find out who the landowner is. And still make complaints to all the retailers on site, just pop them all the same email and go to the top where you can. Google is your friend in all this.

Coupon-mad

I would add to the template a very strong request for POPLA and remind them of the 3 cases where a Court has ordered POPLA instead:

http://forums.pepipoo.com/index.php?showtopic=89764

'' e.g. in the order made by District Judge Mayor, Croydon Court, 13/09/13 (Case no. 3JD00719, ParkingEye v Mr O), and by Deputy District Judge Bridger, Southampton Court, 21/01/2014 (Case no. 3JD05448, ParkingEye v Gilmartin) and by Deputy District Judge Buckley, Blackburn County Court, 11/02/2014 (Case number 3JD10502, ParkingEye v Mrs P). POPLA impose no deadline and will allow a BPA member to issue a POPLA code at any stage. ''

...and for the purposes of facilitating POPLA, also set out in the response, in detail, what your grounds for appeal are (no GPEOL, no standing etc.). State that if they are refusing the industry's bespoke ADR they need to explain now why, because this is on its own, non-compliance with the Practice Direction. As such if they proceed to Court you will ask for the case to be stayed for POPLA anyway and will not be liable for their choice to incur legal costs when in fact small claims are meant to be the last resort. When an ADR service exists and their own Trade Body are on record as encouraging it to be used more, it would be sharp practice to continue to a small claim.

Your response will be long - who cares? Their response to you will likely be seven pages of bluster (as you will probably find out next!). But in covering POPLA now in your response before court action it paves the way for POPLA to be ordered by your Court if you do get a small claim and follow the advice in Fleur's thread linked above. I post as SRM on pepipoo and have heard from 4 PE victims and one UKCPS victim that their judges have allowed POPLA instead so far, when using the letter in Fleur's thread once the local court gets allocated - before any hearing can happen. Another two posters have had their cases stayed (frozen) by their Judge, for months, pending the Cambridge decision.

PE hate it when they get stopped in their tracks by a Judge when a victim asks for POPLA/a stay for the Cambridge test case to be resolved first.

zzzLazyDaisy

Hi, just to say I have clocked your thread. You have received excellent advice so far and I have very little to add at this point, other than to stress that it is VERY important to keep the correspondence going, and NOT to miss any deadlines for reply that PE may make in their letters to you.

Why? Because the rules say that if a defendant fails to respond the claimant is entitled to presume that the defendant accepts the letter before claim meets the legal requirements and may then proceed to issue court proceedings.

So you do need to keep the correspondence ping-pong going.

Coupon-Mad is also right in highlighting the need to raise the POPLA issue at this stage. The LBCCC thread needs updating to include this development.

One final suggestion.... at some point in the correspondence trail (it can be now, but doesn't have to be) you might wish to thank them for highlighting the issue of CPR 17.1 and ask them to note that you reserve the right to place their letter before the court in the event that they should seek to produce documents in breach of that rule.

castle347

Hi everyone

Thanks a lot for the advice.
I'm going to draft the letter to PE today and will include Coupon-Mad's suggestions re POPLA i.e. add the cases mentioned.

Daisy, I'll also add in the bit about CPR 17.1 you've mentioned.

Conscious that I need to get this done right away and send so as not to be late.

Shall I post the draft letter up before I send?

Thanks

Castle347

Stroma

I would to ensure you are getting it right, also so that parking eye will be waiting to get this letter, and you are being assisted by us on here, check my signature below vvvv

castle347

Hello
Here is my draft letter. I've been unable to find out who owns the carpark but will keep trying. I've taken out parts of the template that I felt I didn't understand, as I want to feel like I can "own" everything I write. Thanks again to all of you for the advice and support so far!

Letter:

ParkingEye Legal Department xxxx
ParkingEye Ltd xxxx
xxxx xxxx
xxxx xxxx
xxxx
xxxx


xxxx (date)

For the attention of ParkingEye Legal Department

Dear Sir / Madam

ParkingEye Ltd v xxxx
Proposed Legal Proceedings


Thank you for your letter of xxxx.

First, the alleged payment is disputed and any court proceedings will be vigorously defended.

Secondly, your statement on the reverse side of your letter that it is “fully compliant with the Practice Direction on Pre-Action Conduct’' is completely untrue.

Your letter does not contain the necessary information at all.

Please therefore provide a Letter Before Claim which complies with the requirements of Annex A Paragraph 2 of the Practice Direction on Pre-action Conduct:

[link to practice direction] [accessed xxxx]

I confirm that I shall then seek advice and submit a formal Response within 30 days of receipt, as required by the Practice Direction.

Please ensure that someone does actually read and respond to this letter, providing the specific information relating to the county court claim that your client intends to make against myself as the defendant to the proposed legal proceedings. Please DO NOT send a generic FAQ letter in reply as to do so does not meet the requirements of the Practice Direction and will take this matter no further forward.

Please note, a refusal to comply with the Practice Direction will result in an immediate referral to the Solicitors Regulation Authority for breach of the Principles contained in the SRA Handbook version 8, published on 1st October 2013.

I trust this will not be necessary, and look forward to receiving a fully compliant letter before claim in due course.

I would also like to point out that it is still possible to use the POPLA service at Alternate Dispute Resolution at this stage, despite your claim that it is not possible.

POPLA do not place any time restrictions on making an appeal, as you have unhelpfully stated in your letter. Recent court judgements attest to this e.g. in the order made by District Judge Mayor, Croydon Court, 13/09/13 (Case no. 3JD00719, ParkingEye v Mr O), and by Deputy District Judge Bridger, Southampton Court, 21/01/2014 (Case no. 3JD05448, ParkingEye v Gilmartin) and by Deputy District Judge Buckley, Blackburn County Court, 11/02/2014 (Case number 3JD10502, ParkingEye v Mrs P).

BPA members can issue a POPLA code at any stage and impose no deadline.

I am therefore making a strong request that we use the POPLA service as ADR.

My basis for appeal using POPLA is as follows:

1) Not a Genuine Pre-estimate of Loss
2) No valid contract with the landowner


1. The amount demanded in the PCN is not a Genuine Pre-estimate of Loss

The Amount of £85.00 demanded by Parking Eye Ltd is not a genuine pre-estimate of loss.

You have stated in your claim letter (point 3 on the reverse side) that the charge is not punitive and set out on the basis of a strong commercial justification. However, the entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable.

I therefore request from you a breakdown of how these costs are calculated. All of these costs must represent a loss resulting from the alleged breach at the time.

The charges demanded by the operator as "genuine loss" must be those allegedly incurred at the point of issuing the charge, and cannot include speculative future costs relating to internal appeal procedures or mounting a POPLA defence.

For example, were no breach to have occurred then the cost of parking enforcement (e.g. erecting signage, wages, uniforms, office costs) would still have been the same and, therefore, may not be included.

Equally, as the claim is being made for estimated losses at the time of the alleged contravention, then any costs included by Parking Eye that relate to accumulated amounts post that date are obviously invalid. Should such cost heads be included in the claim, as well as any profit element, then POPLA must reject the charge.

It would therefore follow, that these charges were punitive, have an element of profit included and are not allowed to be imposed.

2. No valid contract with landowner

It has recently come to my attention that some contracts between landowner and parking companies have ”authority limit clauses” that specify that parking companies are limited in the extent to which they may pursue motorists. One example from a case in the appeal court is ParkingEye v Somerfield Stores (2012) where Somerfield attempted to end the contract with ParkingEye as ParkingEye had exceeded the limit of action allowed under their contract.

In view of this, and the British Parking Association (BPA) Code of Practice section 7 that demands that valid contract with mandatory clauses specifying the extent of the parking company’s authority, I would request Parking Eye to produce a copy of the contract with the landowner that proves that they do have the authority to pursue.

It has also been widely reported that some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory on behalf of the landowner has ever seen the relevant contract, or, indeed is even an employee of the landowner. I would ask that, if such a witness statement is submitted, that it is accompanied by a letter, on landowner’s headed notepaper, and signed by a director or equivalent of the landowner, confirming that the signatory is, indeed, authorised to act on behalf of the landowner ,has read and the relevant terms of the contract and is qualified to attest to the full limit of authority of ParkingEye Ltd.

These two points would make up the grounds for my appeal to POLA.

Finally, I would like to thank you for highlighting the issue of CPR 17.1.

I would like you to note that I reserve the right to place your letter before the court in the event that you should seek to produce additional documents in breach of this rule.

Thank you.

Yours faithfully

xxxx