ES Parking Enforcement Ltd

nochargenotice

Hi,

Critique on the below is welcomed:

To acknowledge receipt of your latest letter dated XX/XX/XX.
Please be advised of the following:
1. You were advised in my previous letter (dated XX/XX/XX) for all correspondence relating to this matter. The address is again stated explicitly below:

(Address)

You should use the address quoted for any future correspondence. No liability will be accepted for any delay or failure of communication due to your clients use or your use of any other address. Your client has also continued to pursue this with incorrectly addressed correspondence, despite being informed since my first response of the correct address.

As your latest letter was posted to an incorrect address, it was received after the XX day response period quoted in your letter. As you were aware of the correct address you must now issue revised correspondence, to the above address, with a response time that allows for the revised date of issue.

2. Your letter still contains insufficient detail of the claim and fails to provide all copies of evidence your client places reliance upon.

Your client must know that on 01 October 2017 a new protocol is applicable to debt claims. Since proceedings have not yet been issued, the new protocol clearly applies and must be complied with.

Your letter lacks specificity and breaches both the requirements of the previously applicable Practice Direction - Pre-Action Conduct (paragraphs 6(a) and 6(c)) and the new Pre-Action Protocol for Debt Claims (paragraphs 3.1(a)-(d), 5.1 and 5.2. Your letter fails to address paragraph 2.1b in advising of an Alternative Dispute Resolution ) ADR. You should advise your client that the offer of an alternative to legal proceedings, namely the utilisation of the services of a completely independent ADR (Alternative Dispute Resolution) service suited to parking charges, and will be given full consideration. This does not include the IAS appeal service - which lacks any transparency and possibly any independence from the IPC - unlike the alternative offered by the British Parking Association, POPLA, which is transparent and has been shown to be independent. Your letter fails to address paragraph 3.3, you have been explicitly informed of the address for correspondence relating to this matter. Your letter also fails to address the requirements of paragraphs 6.1, 6.2, 6.3 and 6.4.

Please treat this letter as a formal request for all of the documents / information that the protocol now requires your client to provide. Your client must not issue proceedings without complying with that protocol. Rights are reserved to draw any failure of the Claimant to comply with the protocol to the attention of the court and to ask the court to stay the claim and order your client to comply with its pre-action obligations, and when costs come to be considered.

Regarding costs, you are reminded that paragraph 2.1 c of the Pre-Action Protocol for Debt claims requires you and your client to avoid running up costs. Further, the addition of any debt collector 'costs' is not my liability because the POFA 2012 can only potentially hold a registered keeper liable if certain provisions have been met and even then, the 'amount of the parking charge' is the only amount pursuable.

As solicitors you must surely be familiar with the requirements of both the Practice Direction applicable pre-1 October and the Protocol which applies thereafter (and your client, as a serial litigator of small claims, should likewise be aware of them). As you (and your client) must know, the Practice Direction and Protocol bind all potential litigants, whatever the size or type of the claim. Its express purpose is to assist parties in understanding the claim and their respective positions in relation to it, to enable parties to take stock of their positions and to negotiate a settlement, or at least narrow the issues, without incurring the costs of court proceedings or using up valuable court time. It is astounding that a firm of Solicitors is sending a consumer a vague 'Letter before Claim' with incomplete evidence in complete ignorance of the pre-existing Practice Direction and the new Protocol.

Nobody, including your client, is immune from the requirements and obligations of the Practice Direction and now the Protocol.

Your client is required to comply with its obligations by sending the following information/documents:

1. An explanation of the cause of action.
2. What the details of the claim are; where it is claimed the vehicle was parked, for how long, how the monies being claimed arose and have been calculated.
3. You state the claim is for a contractual breach. In this case, what is the date of the agreement? Provide names of the parties to it and provide a copy of that contract.
4. Is the claim for trespass? If so, provide details.
5. Provide me a copy of the contract with the landowner under which they assert authority to bring the claim, as required by the IPC code of practice section B, clause 1.1 “establishing yourself as the creditor”.
6. A plan showing where any signs were displayed.
7. Details of the signs displayed (size of sign, size of font, height at which displayed).
8. Provide details of the original charge, and detail any interest and administrative or other charges added.
9. Provide a copy of the Information Sheet and the Reply Form.

If your client does not provide this information then you are on notice that reliance will be placed on the cases of Webb Resolutions Ltd v Waller Needham & Green [2012] EWHC 3529 (Ch), Daejan Investments Limited v The Park West Club Limited (Part 20) – Buxton Associates [2003] EWHC 2872, Charles Church Developments Ltd v Stent Foundations Limited & Peter Dann Limited [2007] EWHC 855 in asking the court to impose sanctions on your client and to order a stay of the proceedings, pursuant to paragraphs 13 ,15(b) and (c) and 16 of the Practice Direction, as referred to in paragraph 7.2 of the Protocol.

Until your client has complied with its obligations and provided this information, it is not possible to respond properly to the alleged claim and to consider the position in relation to it, and it is entirely premature (and a waste of costs and court time) for your client to issue proceedings. Should your client do so, then an immediate stay, pursuant to paragraph 15(b) of the Practice Direction and an order that this information is provided, will be requested.
Please provide all information requested in this letter, to the correct address, within 30 days of the date of this letter.
Yours

Coupon-mad

Looks good to go.

nochargenotice

Hi,

I have now got Gladstone's response, again does not comply with practice direction. I'll respond to the lbc, and post again with defence.

nochargenotice

Hi All,
Before I compile my response (in accordance with Pre-Action Protocol) to Gladstones' incomplete LBC, would you advise on these points please:

- I have always responded as keeper, and have never named the driver. I will stick with this, but wondered if it will stand up in court?

- First response to ES was headed "without prejudice", now I understand this cannot be used in court. ES responded to the letter, which they said was a rejection of the "appeal" (the letter was a statement of fact and a list of questions, not an appeal). Can I use my letter in court, or use ES' response to demonstrate unreasonable behaviour in regard to the claim?

- I was hounded by Wright Hassal in the period between the incident and before Gladstones got involved. Is their correspondence admissible to include as demonstrating unreasonable behaviour?

Thanks again in advance.

Coupon-mad

I have always responded as keeper, and have never named the driver. I will stick with this, but wondered if it will stand up in court?

Yes it can, if you need to take that stance and can carry it off honestly, but:

- do you need to hide behind the POFA, were they non-compliant anyway?
- many situations are better defended as driver (if you were) to give an honest account of lack of signs, etc.

First response to ES was headed "without prejudice"

Why?

I was hounded by Wright Hassall in the period between the incident and before Gladstones got involved. Is their correspondence admissible to include as demonstrating unreasonable behaviour?

Yes, why not, it's all part & parcel of demonstrating the Claimant's intention: clearly not to negotiate or narrow the issues as per the pre-court protocol, but to frighten & intimidate consumers into being scared about court/bailiffs/CCJs such that people pay up in their droves.

nochargenotice

Thanks coupon-mad.

Responses:

“
I have always responded as keeper, and have never named the driver. I will stick with this, but wondered if it will stand up in court?
”
Yes it can, if you need to take that stance and can carry it off honestly, but:

- do you need to hide behind the POFA, were they non-compliant anyway?
- many situations are better defended as driver (if you were) to give an honest account of lack of signs, etc.

They issued the NTK in time, generally they were compliant.
From honesty point of view, would rather go with being the driver.

“

First response to ES was headed "without prejudice"
”
Why?

I thought that was best thing to do at the time.

Re: WH hounding, thanks, will include.

claxtome

A couple of flipped ticket cases gone to court this week where the judge sided with the defendant:
https://forums.moneysavingexpert.com/discussion/5779740

In the first you can see why it is important to Appeal and not ignore letters.

Don't give up hope

nochargenotice

Hi All,

PLease see below structure of my reponse to Gladstones LBCCC. I have attempted to lay this out using numbering that aligns with the Pre-Action Protocol. I will attempt to upload pertinent redacted correspondence by the weekend. (for guidance, the information in claxtome's posts is strikingly similar to the correspondence in my posession).

Any comments welcome.

Thanks in advance.

I refer to my letter to you dated XXX, in regard to your Letter Before Claim served by your company on XXX, and to subsequent correspondence.
Set out below is my formal response as required by the pre- action protocol for Debt Claims, dated 1 October 2017.
Please be advised of the following:
1. Pre-action protocol Section 4 – find completed Reply Form contained in Appendix A, enclosed with this letter.

2. The contact address to be used in any future correspondence related to this matter is, as previously advised:

XXX

No other address should be used.

3. Pre-action protocol Section 3 – please provide the following information:
3.1 (a):
(i) The amount of the debt. This has been previously stated as £XXX.
(ii) Confirm whether interest or other charges are continuing.
(iii) Debt arising from an oral agreement. Confirm this is not the case.
(iv) Debt arising from a written agreement. Confirm this is the case. Confirm the date of the agreement, the parties to it, and provide a copy of the agreement.
(v) Debt assigned. Confirm this is not the case.
(vi) Pre-Action Protocol Statement is not applicable.
(vii) Pre-Action Protocol Statement is not applicable.
(viii) The completed reply form will be sent to Gladstones Solicitors registered office.
(b):
(i) Provide an up-to-date statement of account for the debt, including details of any interest and administrative or other charges added.
(ii) Pre-Action Protocol statement is not applicable as no statement of account has been issued to date.
(iii) The Letter Before Claim does not state the amount of interest incurred and any administrative or other charges imposed since the debt was incurred.
(c):
The Letter Before Claim does not include a copy of the Information Sheet and Reply Form, as per Annex 1 of the protocol.
(d):
The Letter Before Claim does not include a Financial Statement.

3.2 Not used.

3.3 The contact address to be used in any future correspondence related to this matter is, as previously advised:

XXX

No other address should be used.

4. Response by the Debtor is enclosed in Appendix 1 of this letter, and information requested is identified within this letter.

5. Disclosure of Documents.

5.1 Please provide the following information/documents:

(i) Who is the party that contracted with your company for the provision of their services? Provide their contact details.
(ii) What is the full legal identity of the landowner?
(iii) As your client is not the landowner please provide a contemporaneous and unredacted copy of their contract with the landholder that demonstrate that they have the authority to both issue parking charges and litigate in their own name.
(iv) Provide a copy of the contract with the landowner under which they assert authority to bring the claim, as required by the IPC code of practice section B, clause 1.1 “establishing yourself as the creditor”.
(v) Is your charge based on damages for breach of contract? Answer yes or no. Presently it is understood that the charge is based on damages for breach, however confirmation is requested.
(vi) In the event that the claim is for a contractual breach, confirm what is the date of the agreement? Provide names of the parties to it and provide a copy of that contract.
(vii) If the charge is based on damages for breach of contract please provide your justification of this sum.
(viii) Is your charge based on a contractually agreed sum for the provision of parking? Answer yes or no.
(ix) If the charge is based on a contractually agreed sum for the provision of parking please provide a valid VAT invoice for this 'service'.
(x) Is the claim for trespass? If so, provide details.
(xi) Please provide a copy of the signs that purportedly were on site which your client contend formed a contract with the driver on that occasion.
(xii) Provide details of the signs displayed (size of sign, size of font, height at which displayed).
(xiii) Provide a plan showing where any signs were displayed.
(xiv) Provide details of the original charge, and detail any interest and administrative or other charges added.

6. Alternative Dispute Resolution.

You should advise your client that the offer of an alternative to legal proceedings, namely the utilisation of the services of a completely independent ADR (Alternative Dispute Resolution) service suited to parking charges, and will be given full consideration. This does not include the IAS appeal service - which lacks any transparency and possibly any independence from the IPC - unlike the alternative offered by the British Parking Association, POPLA, which is transparent and has been shown to be independent.

7. (Responses to pertinent items in Gladstones’ correspondence to be addressed here, e.g Beavis case, Elliot v Loake case)

8. (Bring Gladstones’ attention to recent similar cases where similar fluttering ticket claims have been dismissed from court to be referenced here (thanks claxtome).

9. (Advise Gladstones that costs incurred in dealing with this vexatious claim will be sought by the Debtor – all legitimate with receipts – to be included here)

10. Refer to Appendix 1 – Completed Reply Form to be included.

11. Refer to appendix 2 – Letter to Client including proof of valid ticket. (Note: Letter is Marked “Without Prejudice”, so will not be admissible in court, but the NTK and ticket will be admissable.)
I take this opportunity to remind you that your company must comply with all steps in the Pre-Action Protocol before starting court proceedings. I also refer you to Practice Direction – Pre-Action Conduct and Protocols (paragraphs 13 to 16) on non-compliance and sanctions.

Yours faithfully,

claxtome

Looks very thorough

nochargenotice

Hi All,

Just an update. My response was posted some weeks ago, and I have had no response back.

Will be back if I haer anything.

Thanks.