Excel PCN - no mention of POFA

Redx

I would treat it as an LBC as BW have started legal proceedings against others recently so looks like you are on their shortlist for the next batch of court claims

Northern_b

I've been looking at the zzzLazyDaisy thread on LBCCCs. Is it me or does the simplified Practice Direction massively reduce the requirements for the Claimant?

I'm trying to draft an acknowledgement to BW's "LETTER OF CLAIM" (sic) but not sure whether to simply point them at the PD and request a compliant letter or to pick apart what they've already sent in more detail. I'l post my draft once complete but would appreciate any input as it feels much of the Fightback thread relies on detail that is no longer present in the PD.

Thanks,

NB.

Redx

the PD changed last year so although that thread is a good guide it is out of date and any letters should follow the PD of 2015 , not earlier ones

Northern_b

That's what I'm saying, can anyone please point to any examples of good responses that use the 2015 PD? It seems to offer a lot less protection to the defendant than the older one!

Northern_b

How's this?
Anything to add in or that should be omitted you think?


Dear Sir/Madam,
I acknowledge receipt of your letter dated xx/xx/16, headed "LETTER OF CLAIM".
First I reiterate that the charge is disputed and will be defended vigorously should court action be brought. Your client has no grounds to pursue me as Registered Keeper of the vehicle and no liability under the PoFA (2012) has been established.
I note your statement in that letter that should payment of the alleged debt not be received you "will commence legal proceedings [...] without further notice".
I require clarification whether this is intended as a formal Letter Before Action as it is unclear from the letter itself. Nowhere do you refer to the Practice Direction – Pre-Action Conduct And Protocols, which must be followed before commencing legal proceedings, nor is the content compliant with said Practice Direction. I feel this is a gross oversight for a legal firm such as yourselves when corresponding with a layperson such as myself who does not have representation in place.
The information I would require to fulfil the requirements (a) and (b) of paragraph 3 of the Practice Direction has not been supplied with your letter. Please supply a copy of the terms and conditions for the car park in question which were in place at the time of the alleged event along with images showing that these were clearly visible from the interior of a vehicle entering the facility. Please also clarify what is the basis of the claim you intend to bring.
The letter does not explain, nor have I ever received, any explanation of the amount of the charge. Given the brief overstay involved in the parking event in question the amount of £100 does indeed seem unconscionable and can only be assumed to be punitive rather than recouping some actual loss. Please supply details of how this figure has been calculated and also the spurious £54 legal fees that have been added.
You will note that para 3, points (c) & (d) require the issue to be attempted to be resolved without proceedings and a form of Alternative Dispute Resolution to be considered. Given the widespread scepticism with which your clients' proposed ADR provision, the IAS, is viewed it was proposed that the independent and well regarded POPLA sevice be used instead. It should be noted that your client refused this, although it is still an option at this stage should your client wish to issue the requisite code for the matter to be referred to POPLA.
I look forward to your response within 14 days of this letter providing the necessary information as detailed above to which I will respond in full in due course.
Yours Faithfully,
NB

Coupon-mad

Given the brief overstay involved in the parking event in question the amount of £100 does indeed seem unconscionable

could be somthing like:

Given the brief timing of just 16 minutes from entry, in moving traffic, to exit with no evidence at all of any use of a parking bay nor of what ensued, this is not a contractual 'charge' but a punitive 'fine' aimed wrongly at a registered keeper who cannot be liable due to your choice of documentation. Bearing in mind that it can take 5/10 minutes to find a space when any retail park is busy, then in addition, the various parking industry Codes of Practice allow at least ten minutes for a driver to read a sign, decide not to stay and then leave at the exit [STRIKE]overstay involved in the parking event in question[/STRIKE] the amount of £100 [STRIKE]does indeed seem[/STRIKE] is very clearly unconscionable and cannot be said to be saved from the penalty rule. This is not a situation similar to the Beavis case where there was a licence to park, a parking event indisputably occurred and where there was an admitted overstay. Nor are the signs comparable with the 'clear notices with the charge in large lettering' that were held to be compelling at the Supreme Court in that unusual case.

Northern_b

Thanks CM, will adapt and include.

Northern_b

Hi all,

I'm now at the Court stage as they've issued a claim. Before I acknowledge and start a defence I want to be clear of what that entails - Do I understand correctly that unless Excel/BW can be persuaded to get cold feet and withdraw the claim it will require attending court in person?

If the defendant were to decide, at some point between acknowledging the claim and the hearing date, that they could do without the hassle would there still be an option to pay up (through gritted teeth) or is one committed to follow the entire process once the 'defend the claim in full' box is ticked?

Thanks

NB

Coupon-mad

Northern_b wrote: »

Hi all,

I'm now at the Court stage as they've issued a claim. Before I acknowledge and start a defence I want to be clear of what that entails - Do I understand correctly that unless Excel/BW can be persuaded to get cold feet and withdraw the claim it will require attending court in person?

Yes - at your local county court.

If the defendant were to decide, at some point between acknowledging the claim and the hearing date, that they could do without the hassle would there still be an option to pay up (through gritted teeth)

Yes. Always. But don't rush...

or is one committed to follow the entire process once the 'defend the claim in full' box is ticked?

Not at all...you can settle on the court steps on the day if you want, or the day before, etc. Not worth doing too soon because plenty of PPCs do discontinue cases despite pressing ahead at first. May as well call their bluff, we do this every time and it costs you nothing. Even if you lose it's likely you'd pay no more than they are claiming now (possibly less, no huge fees) and you might win.

You are on the ride so don't be in a hurry to get off. Enjoy it and try to win the game. So your first action is to acknowledge the claim as the paperwork explains, online on MCOL, by registering the password shown on the papers.

Leave the defence BOX completely BLANK but tick to say you intend to defend in full and fill in your details of course (same person who is named on the papers). Once you have done that, read as many court defence cases as you can search for and find on here and on pepipoo:

http://forums.pepipoo.com/index.php?showforum=60

But only read 2016 examples, nothing older. Show us your draft defence later this month, well before your 28 days is up.

Remember you are the registered keeper and as you stated rightly in your OP, you have no obligation to name the driver and their paperwork doesn't invoke 'keeper liability'. Dodgy signs are also a typical winner in the past, v Excel, so get plenty of pictures.

Northern_b

Hi All,

Belated thanks for your last post CM, most appreciated. Here's a holding defence I've pulled together looking at various other cases on the forum, would appreciate a critical eye (or more) being cast over it please. It contains a point referring to a Part 18 request - Any input/advice on this also please and I can send that off before submitting the defence.

Many thanks,

NB

Statement of Defence

I confirm that I am the Defendant in this matter and registered keeper of the vehicle in question.
The entirety of the claim is denied.

1: The Defendant was not the driver on the date in question and the Claimant has failed to fully comply with the strict requirements of the Protection of Freedom Act 2012 Schedule 4 therefore only the driver can be held liable.
i) A failure to give 'adequate notice' of any “parking charge” of £100
ii) The Notice to Keeper was delivered outside the timescales laid out in Para. 9 (6)
iii) The wording of the NtK is not compliant with the requirements of schedule 4 of the PoFA 2012.
2: The Claimant has yet to respond to a part 18 Request sent by the Defendant and delivered to BW Legal by email on xx/xx/2016. The Claimant has been requested to:

a) to confirm basis of claim, and if the claim is for alleged breach of contract or a contractual fee.
b) identify the party who contracted the Claimant as they are not the landowner or occupier
c) provide the full legal identity of the landowner or occupier
d) provide a full unredacted copy of the contract with the landowner which demonstrates the Claimants authority from the landowner to issue parking charges and litigate in their own name
e) provide copies of the signs conveying the terms and conditions in force at the time of the alleged event and provide the date these signs were installed, for example, a works schedule, maintenance record or invoice for the work.
f) Confirm that the signage was clearly displayed at the time of the alleged event and met Schedule 1 of the Code of Practice of the Independent Parking Committee
g) provide a breakdown and explanation of how the charge for the alleged event has risen to £160.14, particularly the £54 “contractual costs” described in previous correspondence as “initial legal fees”
3: Accordingly, it is denied that the Claimant has authority to bring this claim. As Excel Parking Ltd. is not the lawful occupier of the land it is reasonably believed that they do not have the authority to issue charges on this land in their own name and that they have no locus standi to bring this case. Strict proof is required that there is a chain of contracts leading from the landowner to Excel Parking Ltd.
4: This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this material case - The signage on the site in question is unclear, unremarkable and not prominent on site so no contract has been formed with driver(s) to pay £100, or any additional fee charged if unpaid in 28 days.
5: As the POFA 2012 restricts liability to the sum of the parking charge itself and the BPA Code of Practice has a ceiling of £100 which at the time, made it a condition that any charge issued must be based upon a GPEOL, the amounts claimed are excessive and unconscionable. It is not believed that the Claimant has incurred additional costs - be it legal or debt collector costs - and they are put to strict proof that they have actually incurred and can lawfully add the sum of 110.14 to the face value amount specified on the PCN and that those sums formed part of the contract in the first instance. [Is this applicable given that Excel are IPC? And the GPEOL bit? How should it be changed to be relevant if so?]

6: It is not believed that the signage on site at the time included any stated additional costs or surcharges nor even that the £100 was legible. No sum payable to this Claimant was accepted nor even known about by any driver; they were not given a fair opportunity to discover the onerous terms by which they would later be bound.
7: It is believed that this Claimant has not adhered to the IPC Code of Practice applicable at the time of the alleged parking even and is put to strict proof of full compliance.
8: Save as expressly mentioned above, the Particulars of Claim is denied in its entirety. It is denied that the Claimant is entitled to the relief claimed or any relief at all.
I ask the court to strike out the claim as showing no cause of action, or, to draw the reasonable conclusion that the claimant has no standing to offer parking contracts, nor to pursue them to court, in their own name and therefore to strike out the claim as the Claimant lacks standing.

I believe that the facts stated in this form are true.
Signed: