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

castle347

thank you - I'll do that.
I cannot find the article about POPLA and the BPA so if anyone can point me towards it I would very much appreciate it.
thanks again.

Coupon-mad

Here's the BPA's press release and I think there was an article in 'Parking Review' or some rag like it:

http://www.britishparking.co.uk/News/the-bpa-has-delivered-independent-redress-for-motorists-parking-on-private-land-its-government-which-is-stopping-it-becoming-universal

'The British Parking Association (BPA) is surprised and disappointed that Government does not recognise the work being done by the Parking on Private Land Appeals service (POPLA), the independent appeals service established for the private parking sector. The BPA introduced POPLA giving the motoring public in England and Wales access to an ADR for the first time. Operated by London Councils - a public body - POPLA is judicially independent when it comes to deciding the outcome of an appeal if motorists wish to contest enforcement action under taken on private land. The BPA continues to lobby for its adoption across the UK to make it available to all motorists.'

castle347

new draft - I've added the suggestions at the top as a summary of my position.

Dear

Re: ParkingEye-v-

Thank you for your letter dated 30th May 2014.

To summarise:

I do not accept your position and would like to appeal the PCN on the grounds that the charge does not represent a Genuine Pre-Estimate of Loss. You therefore should either cancel the ticket or provide a POPLA code to enable the ADR process. POPLA is the parking industry’s recommended ADR and is still available.

If you do not issue me with a POPLA code, I would like to put you on Notice as to Costs. If the case reaches Court and the Judge orders POPLA, I will then claim costs for attending Court.

In more detail:

You state in your letter (this is a direct quotation):

“We are confident that the Letter Before Action issued to you on 26 April 2014 is compliant with the requirements of Annex A, Paragraph 2 of the Practice Direction on Pre-Action Conduct...”

However, I am still not satisfied that your Letter Before Action is in fact compliant.

Annex A, Paragraph 2 of the Practice Direction on Pre-Action Conduct http://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_pre-action_conduct
(accessed 10th June 2014) states (this is a direct quotation):

“2. Claimant’s letter before claim

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.

2.3 Unless the defendant is known to be legally represented the letter should –

(1) refer the defendant to this Practice Direction and in particular draw attention to paragraph 4 concerning the court's powers to impose sanctions for failure to comply with the Practice Direction; and

(2) inform the defendant that ignoring the letter before claim may lead to the claimant starting proceedings and may increase the defendant's liability for costs...”

In reference to 2.1 (5), and as stated already in my previous letter to you, I do not accept that your letter explains to me how the amount of £85.00 has been calculated. I do not believe that the charge is a genuine pre-estimate of loss. Please show me how this sum has been calculated in your next letter. Until you do this, I will be unable to send you a formal response.

Also, in reference to 2.2 (1), you must list the essential documents on which you intend to rely. You have not done this, so it is therefore not possible for me to formally respond.

With regard to ADR, you state in your letter of 30 May 2014 (direct quotation):

“Unfortunately, POPLA would not be a suitable method for alternate dispute resolution at this stage.”

I do not accept that it is not possible to use POPLA as ADR at this stage. POPLA do not impose any deadline at all as to when their services can be used, so they are in fact the best possible form of ADR. I am inviting you to use POPLA as ADR and would like you to accept this method. If you refuse to consider POPLA as a form of ADR, I would like you to send me some evidence which supports your claim that there is a 28 day time limit for using POPLA. Until you do this, I will unfortunately be unable to give you a formal response to your letter before claim.

Yours faithfully

bod1467

http://www.parking-prankster.com/popla-referrals.html

I was looking at Pranky's latest blog and saw that link. It supports your "POPLA is still available" assertion. (Although it also asserts PE's "court ordered" assertion).

castle347

Hey thanks a lot - I'll add those cases to my letter.

jeff12345

Also worth noting here is pranky's quote 'trying to get a parking company to use POPLA once a case has been filed can be like getting blood out of a stone'

The LBCCC I received from PE clearly states that 'court proceeding have not yet begun' when defending their position the documents that will be relied upon in court.

Is this a contradiction on PE part? or can a case be filed before court proceedings have begun?

Coupon-mad

No, at LBCCC stage it is NOT at court stage. But when they talk about 'the docs that will be relied on in court' they mean 'when they get there'.

castle347

Hello everyone -
ParkingEye have now replied to my last letter (post #34 of this thread). Below is a transcription of their letter:

Dear XXXXX

Re: ParkingEye – v – XXXXX

Thank you for your letter of XXXXX XXXX. We note the concerns relating to the Parking Charge Amount, the Disclosure of Documents, and the use of POPLA as a form of Alternative Dispute Resolution. We would respond to these queries as follows:

Parking Charge Amount

We can assure you due consideration has been given to the Practice Direction. For reference, the precise wording of the Practice Direction is below:

2.1 The claimnant’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.

And we would ask that you consider the specific reference to “concise details”.

The Practice Direction goes on to state:

The letter should include –

(5) if financial loss is claimed, an explanation of how the amount has been calculated

We draw your attention to the back page of the Letter Before Action, issued to you on 26 April 2014, where an explanation of how the Parking Charge is calculated is given in the “Further Information” section as follows:

1. Loss claimed in this Letter Before County Court Claim is in line with guidelines set out by the British Parking Association.
2. ParkingEye have also ensured that their Parking Charge amount is not punitive and set on the basis of a strong commercial justification for charges of this nature.
3. The charge is based on a pre-estimate of loss, and has been calculated using our company records and accounts. The accounts are publicly available.
4. The Parking Charge amounts are calculated in conjunction with the landholder, and have been approved and prescribed by the British Parking Association.

To expand on the concise details provided, please note, the sum of £85.00, reflects averages from actual data recorded in the company accounts insofar as it is possible to take into account factors relating to each individual site in advance.

These costs include (but are not restricted to):

• Maintenance of the site signage, monitoring and the Automatic Number Plate Recognition systems and payment machines;
• Employment of office-based administrative staff who audit data, where the system identifies the terms and conditions have been breached;
• Employment of office-based appeals staff who deal with appeals from motorists;
• Membership and other fees required to operate the contract, including those paid to the BPA, DVLA, postage, etc.

These costs are only incurred once the terms and conditions have been breached by a specific motorist or represent costs necessarily incurred in order to enforce Parking Charges as a car park management company for the landowner.

In addition, ParkingEye maintain stringent compliance and governance standards to meet the criteria to request Registered Keeper details from the DVLA, which include being a member of the British Parking Association.

Disclosure of Documents

As court proceedings have not yet begun, and no defence has yet been filed, it is impossible to state exactly all the documents that will be relied upon in court. We would advise, that the essential documents will be: all Parking Charge notices that have been sent to you, any defence submitted by you, any reply to defence submitted by us, any document proving ParkingEye’s authorisation to operate on site and any signage plan or images of signage from the site in question.

We confirm that we would be more than happy to provide you with copies of the documents we intend to rely, at the appropriate time.

POPLA

We note your request to appeal to POPLA. However, we maintain that POPLA is not a suitable method of ADR at this stage of proceedings.

As previously advised, POPLA is an independent whose purpose is to review the decisions of car park operators who have considered and then rejected a motorist’s appeal. Therefore in order to be eligible to make an appeal to POPLA, it is necessary for the operator to be first given the opportunity to consider the appeal.

Upon rejection of an appeal, the operator is required by POPLA to provide the motorist with prescribed information which details the rights of motorists to appeal the operator’s decision, subject to certain criteria being met. These include:

1) You must first make your case to the operator who issued the charge;
2) The operator must reject your representations;
3) The operator has issued you with a POPLA code; and
4) You must appeal to POPLA within 28 days of the date [of] the Operator’s decision.

We enclose a sample copy of the form for your reference.

As you failed to make an appeal to ParkingEye within the 28 days outlined in the Parking Charge, ParkingEye was denied the opportunity to consider the appeal and therefore a POPLA code could not be issued to you.

Outside of the above framework, an appeal to POPLA is not accepted unless extraordinary circumstances are involved. We acknowledge that a small number of court claims have been stayed by order of the Court pending a POPLA appeal; however, these cases have been deemed to be “extraordinary circumstances”. Unfortunately, ParkingEye do not determine what may be considered such circumstances. Hence, we are not in a position to offer the services of POPLA outside of its normal processes, without leave of the court or of POPLA to do so.

If you still have any concerns, I would be grateful, if you could let me know what is still in issue or has not, in your opinion, been addressed. Please be advised, once again, that any issues relating to the Parking Charge and the nature of the proposed proceedings will be dealt with by our enforcement team separately.

Yours sincerely

Rachel Ledson
ParkingEye Limited
Enc.

This is the full letter, but they have also attached a POPLA form from May 2013, the text of which is as follows:


PARKING ON PRIVATE LAND APPEALS

Your opportunity to appeal against a parking charge notice

This form has been issued by Parking on Private Land Appeals (POPLA)

o The operator claims you are liable for the payment of a parking charge because of a vehicle being improperly parked on private land.

o You challenged this but your representations were rejected for the reasons given in the notice from the operator.

o If you want to appeal against the operator’s decision, you must do so within 28 days from the date it was sent to you. Do not pay the parking charge now if you want to appeal.

o If you appeal to POPLA, which is independent of both the operator and the motorist, an impartial Assessor will consider your case.

o If you do not appeal now the operator could seek to enforce the parking charge through the county court.

o There is no charge for submitting an appeal.

Please read this guidance before completing the attached appeal form

Appeal procedure

The latest guidance and information is available on our website at https://www.popla.org.uk

POPLA Assessors consider appeals against liability for parking charges.

You can only appeal after you have first made your case (‘representations’) to the operator who issued the parking charge notice, the operator has rejected these and issued a POPLA appeal verification code.

The Assessor considers the evidence from you and from the operator.

If your appeal is allowed, the operator will cancel the parking charge notice.

If your appeal is refused, the operator must allow at least 14 days for payment of the parking charge before taking any further action.

Grounds of Appeal

The grounds under which you can appeal the parking charge notice are as follows:

The vehicle was not improperly parked

e.g. that the vehicle was not parked where stated on the parking charge notice; that you believe you were still within the time you paid for; that the voucher was clearly displayed or that the conditions were not properly signed.

The parking charge (ticket) exceeded the appropriate amount

e.g. that you are being asked to pay the wrong amount for the parking charge or that the charge has already been paid.

The vehicle was stolen

e.g. that the vehicle was improperly parked after being stolen.
However, the fact that someone else was driving your vehicle, for example a family member, friend or colleague, is not in itself a valid ground of appeal.

The fact that you told the driver that they could only use your vehicle on condition they did not get any parking tickets is not a valid ground of appeal.

I am not liable for the parking charge

e.g. that you had sold the vehicle before, or bought it after, the alleged improper parking.

How to appeal

If you want to appeal, you must do so within 28 days of date of the operator’s notice of rejection. The easiest way to appeal is through our website at https://www.popla.org.uk.

Otherwise, you can complete the attached form and return it to POPLA by post.
Whichever way you submit your appeal, it must be received by us within the 28 day period – see FAQs below.

Everything that you send to us will be copied to the operator. Please attach or
enclose all relevant evidence at the time you submit your appeal.

Always keep a copy of your verification code (printed at the bottom of the appeal form and/or the operator’s rejection) in case you have to contact us. You will need it to appeal online. If you do not have a verification code you should ask the operator who issued the parking charge notice for this immediately. You cannot get a verification code unless the operator has had an opportunity to consider your representations and has rejected them.

The operator is required to send the Assessor details of their case, as well as the representations you made and their rejection of them. The operator will send you a copy of everything they send to the Assessor.

Submitting your appeal

Include any photographs or documents that you want the Assessor to consider.

You should try and submit everything at the same time as you appeal, whether online or by post but, if you do send anything separately, it must be before the decision is made. You can do this online but, if posting, please make sure that you mark it clearly with your verification code.

If additional evidence arrives shortly before the Assessor is due to consider your case, the matter may have to be adjourned. If it arrives after the decision is made, it will be too late to be considered.

The Assessor will not obtain evidence or contact witnesses on your behalf.

The decision

The Assessor will consider all the evidence presented by you and by the operator.

We aim to send out the decision to the parties within two working days of the Assessor deciding your appeal.

A decision to allow an appeal is binding on the operator who issued the parking
charge notice.

Frequently asked questions

What evidence should I send in?

You should send in any evidence that you believe
supports your case. Some examples of evidence are:

o crime reference number (e.g. if the vehicle was stolen)

o photographs (e.g. if you think that the signage was inadequate)

o pay and display voucher (e.g. if you say it was displayed and unexpired)

o witness statements

Please send clear copies rather than originals. If you wish to submit digital images you can attach them to your online appeal or else send them in hard copy or on disc.

Moving pictures should be sent on disc and JPEG is the preferred format. In view of the significant security issues associated with their use, we cannot accept evidence on a USB flash drive. Please note that we will retain anything you send, as we require a complete record of the evidence.

Will the Assessor collect evidence or contact witnesses on my behalf?

No, you should not, for example, say in your appeal: “If you want more information please contact xxxx on telephone number yyyy.”

How much time do I have to submit my appeal?

We must receive your appeal within 28 days from the date of the operator’s notice of rejection. The date the operator sent the rejection to you will be on the appeal form.
What if I am sending my appeal in late? In very limited circumstances, the Assessor may be able to extend the 28 day time limit. If you are submitting your appeal late you must state fully and clearly the reasons for the delay, enclosing any evidence for this, so that the Assessor can decide whether the appeal can be still be considered.

How does the Assessor make their decision?

Having considered the evidence presented by both parties the Assessor has to come to a conclusion about what actually happened (make findings of fact). The Assessor then considers the BPA Code of Practice and applies any relevant law.

Will the parking charge increase if I lose my appeal?

No. If your appeal is refused then the full parking charge will be due because the time for any early payment discount offered by the operator will have passed.
However, the parking charge will not increase whilst you appeal. Do not pay the charge now if you are appealing. If your appeal is allowed you have nothing to pay. If your appeal is refused, in order to avoid any further action by the operator, you should then pay the full parking charge within 14 days. Do not send any payment with this form.

Will I have to pay costs if I lose my appeal?

No, the Assessor cannot award costs, expenses or compensation for or against either party in any circumstances.

Can I still submit the appeal form manually?

Yes, but please write clearly, with your name, address and email details in BLOCK CAPITALS. Also, ensure that the envelope has sufficient postage affixed as POPLA cannot accept mail where this is underpaid.

END OF THEIR LETTER AND ATTACHMENT

Thanks for reading if you have got this far!

I'll compose a formal response in the next day or two after re-reading the latest forum posts, but here is the jist of what I'll be saying. As always, any advice much appreciated.

1. Can still claim it's not a GPEOL right? I'll find the right thing to say from the forums. But essentially, the big long list of expenses is irrelevant because they are doing that anyway.

2. Can still ask to see their contract with landowner. Is it the case that they need to show me this now, or does something more formal have to happen first?

3. Will query this thing she keeps saying abt enforcement dept contacting me separately. What does that mean exactly? 2nd time of mentioning by them.

4. Will make crystal clear that what they are saying abt the 28 day thing is an obfuscation i.e. it is 28 days from appealing - i have not yet officially appealed. I'll pull them up on the way they're trying to confuse the issue by attaching the POPLA form which is kind of irrelevant.

They can still take an appeal from me, reject it, then issue a POPLA code. Right? Is it a good idea to say that the reason I did not appeal was because I ignored the notices as there was high profile advice to do this (e.g. on Watchdog, here on MSE). Or no need to go into that?

OK, I'll set to work on writing a response, but if anyone has any bright ideas in the meantime, or the most up to date advice, it would be very much appreciated.

Coupon-mad

That is utterly pathetic of them to say 'here's what you could have won' effectively. Post #30 from Gan here has a suggested short reply you could add to and amend:

http://forums.pepipoo.com/index.php?showtopic=82895&st=20&start=20

Also, now use email so this rubbish costs you nothing and so you can engage in some email tennis with PE every other day or so, making yourself a thorn in their side!

[EMAIL="enforcement@parkingeye.co.uk"]enforcement@parkingeye.co.uk[/EMAIL]

castle347

hey thanks a lot for that tip - I'll check it out.

Also, re the email thing, I'll send a letter to them in reply to this (actually quite enjoy the rigmarole of sending letters in a way!) but ask them if I can use their email address in future.

It's quite interesting that the letter does not contain an email contact anywhere at all and Rachel Ledson is at pains to constantly distance herself from the enforcement team, who as we all know, are sending their own response, apparently (when?).

So it's a good way to clear that one up.

Cheers!