appeal letter for "no stopping at all" enforcement

HAMMERSTONES

Thanks for the advice , sorry for any confusion


starting a new thread for this as suggested but there is also an existing thread of mine

as suggested im reading the newbies thread and writing this alongside.

I received a PCN on 27/01/2016 for stopping in a no stopping zone, stayed long enough to read the signs and left, I appealed to the PPC as advised but received no direct reply from them, I then received numerous debt collection letters from ZZPS and Wright Hassal which I ignored, I have now just received an LBC from Gladstones, asking me to reply or pay within 30 days.
I was not the driver on the day but have not disclosed this information as of yet.


it gives you an option to log in and reply in accordance with para 4 PAP, would you advise doing it this way,


I intend first disputing I owe the debt firstly on the grounds I wasn't driving
secondly the PPC never replied to my appeal with the questions I was asking
thirdly the vehicle was stopped only for enough time to read the signs and move along , it was dark and signs couldn't be read whilst moving



im still reading but any advice along the way would be most appreciated

HAMMERSTONES

as a first step as I was not the driver should I reply to the LBC as in


(If you have a Letter Before Claim (LBC, sometimes referred to on forums as a LBCCC), you must respond robustly. Sometimes an assertively-worded reply sees the claim off and cancels the PCN, like here in a CEL case where I wrote a reply (post #11). Anyone can plagiarise it but don't copy irrelevant stuff like the Equality Act part if it is not right for your case:)


plagiarising it to suit my case

HAMMERSTONES

is the part (Schedule 4 of the POFA 2012) relevant to all PPC


Not the Driver: The Protection of Freedoms Act 2012 (POFA) gave PPCs the ability to pursue vehicle keepers if the driver's indentity is not known. In order to do so, their paperwork must comply with the strict wording of that legislation. If it does, then it doesn't matter whether you were driving or not, they can claim against you. If it does not (and you need to go through it with a fine toothcomb) AND you can show that you weren't driving, you can argue that they have no basis for keeper liability, and can only pursue the driver.

HAMMERSTONES

am I ok with this or way off track , as above concerned about the relevance of not being the driver at the time




Dear Gladstone Solicitors / ES Parking Enforcement Limited,

Re - your Letter before Claim re PCN xxxxxxxx

This is a formal response to your 'Letter before Court Action'. I remind you of the overriding objective that ES Parking Enforcement Limited has no cause of action in law, but that I do.

When your company / claimant issues a 'parking charge' you do not use Schedule 4 of the POFA 2012, therefore you have no basis whatsoever to write to a registered keeper, except for the single purpose allowed under the DVLA KADOE rules, namely to 'enquire who was driving'. You must not use the data for any other purpose whatsoever, and certainly not to pursue a registered keeper as if the alleged 'debt' was their liability in law.

Despite appealing to ES Enforcement Limited you have failed to reply to or address any of my concerns as originally outlined below
· If you are complying with your IPC’ code of practice part C 3.1 (b) then you should specify the period of parking to which the notice relates. You have however specified an incident time and a period of parking immediately preceding the incident.
· You say the charge is incurred for stopping/parking in an area where stopping is prohibited, you clearly have access to the DVLA database on the basis of parking enforcement, you are clearly enforcing a no stopping rule so you are arguably using my data in a way that it shouldn’t be used.
· If you are adhering to your IPC code of practice then this clearly does not cover “no stopping zones” so you are arguably acting outside of it.
· If you are following the Code of Practice, then that requires you to allow a grace period, making no stopping rules unenforceable.
· Given private parking tickets are issued based on a contract communicated by signage, how can the contract be adequately read and understood without stopping to read it?
· The Protection of Freedoms Act specifically discusses parking, and not stopping. Therefore it is arguably not covered anyway

You also failed to answer the following questions

1. Who is the party that contracted with your company for the provision of their services? I require their contact details.
2. What is the full legal identity of the landowner?
3. As you are not the landowner please provide a contemporaneous and unredacted copy of your contract with the landholder that demonstrate that you have their authority to both issue parking charges and litigate in your own name.
4. Is your charge based on damages for breach of contract, Trespass or a contractual charge.
5. If the charge is based on damages for breach of contract please provide your justification of this sum.
6. If the charge based on a contractually agreed sum for the provision of parking please provide your justification of this sum .
7. If the charge is based on a contractually agreed sum for the provision of parking please provide a valid VAT invoice for this 'service'.
8. Please provide a copy of the signs that purportedly were on site which you contend formed a contract with the driver on that occasion.


You have failed to supply any photographs or evidence of the driver, nor even the 'contract' (in this case presumably a sign), nor have you set out clearly, the basis upon which you are attempting to hold me liable. The charge is disingenuously described in your letter as 'your debt' and you have drawn up a draft claim form in my name, whilst failing to point out that this is/was a matter for a driver alone.

The driver's identity will not be supplied to a company like yours. There is no dispute that the driver was entitled to drive the car and I can confirm that they were. As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4.

Should you seek to proceed with a claim I will apply for it to be struck out, due to CPR Part 3.4:

(a) that Civil Enforcement's statement of case will disclose no reasonable grounds for bringing the claim;
(b) that the statement of case will be an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; and
(c) that there has been a failure to comply with a rule, practice direction or court order.

Breaches of the Pre-action Practice Direction (“the PD”):

Paras 3, 8 and 12 of the PD set out its purpose, which is to primarily to avoid litigation (para 8) by laying down a procedure which allows the parties to:
- understand each other’s positions (para 3)
- make decisions about how to proceed (para 3)
- explore settlement/consider ADR (para 3)
- support the “efficient management” of any proceedings and reduce costs (para 3)
- “stocktake” and review their respective positions after following the PD by exchanging information, to see if proceedings can be avoided and to “at least” narrow the issues (para 12).

Paras 6(a) & (c) oblige a Claimant to enter into a meaningful dialogue with a Defendant at an early stage by imposing specific obligations to:
- explain the claim in a Letter before Claim, and
- provide relevant core documents.

The only 'core document' you have enclosed is a mock-up of a claim form in the name of myself, the registered keeper. This will be drawn to the attention of the presiding Judge at the County Court Business Centre and then at my local Court, should a spurious claim of yours manage to get that far.

Since you have no cause of action against me as registered keeper, should you proceed with a claim I will file a counter-claim for not less than £500 in compensation for distress caused by your unwarranted demands arising from misuse of the data you obtained from the DVLA for one purpose, yet are now processing it for another purpose not covered by the KADOE regulations.

I am aware that when a counter-claim was heard in D6GM2199 Civil Enforcement Ltd v Mr B, at Bury County Court in May 2017, DJ Osborne found that the £500 sum claimed by the data subject defendant was not unreasonable. He accepted the argument regarding data misuse under the Data Protection Act 1998 (DPA); he accepted the tort of damages and stated that he was disappointed in the claimant bringing an unfounded case. Punitive costs of £405 were granted for unreasonable behaviour, and were paid by your company in addition to the £500 claim.

Further, I would like to draw your Legal Department's attention to a landmark 2017 judgment at the Leeds County Court, 3SP00071 - Blamires v LGO. This was a claim for damages including a matter of a breach of the DPA, for which an award of £2,500 was granted as compensation for distress. As is now relatively well known, the DPA’s original drafting appeared to preclude compensation for distress alone, but the Court of Appeal, in Vidal Hall & ors v Google [2015] EWCA Civ 311, it was held that this was contrary to the provisions of the Charter of Fundamental Rights of the European Union and that, accordingly, there was a right under the DPA to claim compensation for “pure” distress.

The award in Blamires was of “Vidal Hall” compensation, with the judge saying there was ''no doubt in my mind that the data breaches have caused distress to the claimant in their own rights as well as as a result of the consequences that flowed.'' The judge awarded a further £2,500 aggravated damages because of the manner in which the Defendant conducted its case, including the fact that, notwithstanding being told by the Claimant that its conduct/data was wrong, it took nearly two years for the Defendant to admit the mistake.

I expect ES Parking Enforcement Limited to now cancel this 'parking charge' and admit its mistake in attempting to misuse my data, and in trying to mislead me by suggesting that a registered keeper is liable for a non-POFA parking charge 'debt', and that I could be liable for escalated costs/legal fees. As you will be aware, the general costs rule in Small Claims is that there is no costs order.

However, in support of my own counter-claim, I must remind you that under CPR Rule 27.14(2)(g):

''costs can be awarded where a party behaves unreasonably''.

I refer ES Parking Enforcement Limited to paragraph 16 of the Practice Direction – Pre-Action Conduct:
''a party who has not complied with its pre-action obligations can be ordered to pay costs (even if the party has succeeded in its claim/defence) and there is also a power to remit/increase interest.''

I expect to hear from you within 14 days to confirm that the charge is cancelled. Should you fail to cancel this PCN and/or pursue a baseless claim without supplying any evidence of any breach of a relevant contract or relevant obligation, or photographs, or the contract, or your basis for pursuing a registered keeper outwith the POFA 2012, you may consider this adequate notice of my intention to sue Civil Enforcement Ltd, for the significant distress your actions have caused to a vulnerable family.

All letters exchanged will be used in evidence in court.



yours faithfully,

claxtome

Always respond to a LBC. The court sees your replies if it goes that far.

is the part (Schedule 4 of the POFA 2012) relevant to all PPC

Not the Driver: The Protection of Freedoms Act 2012 (POFA) gave PPCs the ability to pursue vehicle keepers if the driver's indentity is not known. In order to do so, their paperwork must comply with the strict wording of that legislation. If it does, then it doesn't matter whether you were driving or not, they can claim against you. If it does not (and you need to go through it with a fine toothcomb) AND you can show that you weren't driving, you can argue that they have no basis for keeper liability, and can only pursue the driver

Yes is the short answer.
If you read schedule 4 (not saying it is easy reading) then it gives in legal speak what a NTK should say and when it should be sent. Paragraph 8 applies if you got a PCN on the car. Paragraph 9 applies if you received a PCN through the post.

The ES NTK I have seen doesn't fully comply with it so this will be your main defence if it goes to court. What I mean is the NTK doesn't fully comply with Schedule 4 so the can't pursue the keeper.

In my limited experience your response to LBC you have drafted (impressed at detail) looks good. Will leave it for others to comment about it.