Popla appeal unsuccessful...Civil Enforcement

vicki1930

Should she respond to the LBA

Coupon-mad

vicki1930 wrote: »

Should she respond to the LBA

Yes, as you will find from all the other LBA threads. Tons of them here. This is beatable.

There's one under your thread right now with advice already there (read it as if it was for you, northseajoe's thread, recent posts).

DO NOT PAY.

Even if a small claim arrives, this is defendable and won't cost more than the silly amount now demanded, no CCJ, no effect on credit rating as long as you respond and keep up with any deadline (not a payment deadline unless you lose at a hearing and Judge tells you to pay = unlikely).

northseajoe

Best of luck with your daughter's troubles, Vicky. I'll keep my thread updated so you know what happens with my case.

vicki1930

Hi...I've done a response to the LBA using information from the sites as suggested...can you check for me and let me know if I'm on the right tracks....thanks:

Further to your letter dated 5 July 2016.

Firstly, the alleged debt is disputed and any court proceedings will be vigorously disputed.

Secondly, despite the wholly inaccurate statement that the letter has been sent “in accordance with Pre Action Conduct and Protocol, it is in fact woefully defective and appears to be a deliberate attempt to mislead the recipient.

Please therefore provide a letter before action which complies with the requirements of Annex A Para 2 of the Practice Direction on Pre Action Conduct.

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 the registered keeper 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.

I look forward to receiving a fully compliant letter before action in due course.

vicki1930

Would it be better to add a paragraph stating on what basis the claim would be defended ie the ticket was purchased therefore they suffered no loss etc, or will it make no difference at this stage

The_Deep

I would add "I regard this action as unreasonable, and reserve the right to claim for my time in dealing with this matter should a judge agree with me".

vicki1930

I've amended the response to LBA...can you spot any mistakes:


Further to your letter dated 5 July 2016.

Firstly, the alleged debt is disputed and any court proceedings will be vigorously defended on the grounds that you suffered no loss as a ticket was purchased and displayed on the date and time in question. The said ticket will be produced in court. The partial registration number was entered purely in error and in no way by the defendant to avoid making payment. As no loss was incurred then there can be no reason for you to pursue this matter, other than to make excessive money out of people who have complied and purchased a ticket, but in doing so made an innocent error, which in no way affected payment for the duration of stay. I regard this action as unreasonable, and reserve the right to claim for my time in dealing with this matter should a judge agree with me.

Secondly, despite the wholly inaccurate statement that the letter has been sent “in accordance with Pre Action Conduct and Protocol, it is in fact woefully defective and appears to be a deliberate attempt to mislead the recipient.

Please therefore provide a letter before action which complies with the requirements of Annex A Para 2 of the Practice Direction on Pre Action Conduct.

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 the registered keeper 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.

I look forward to receiving a fully compliant letter before action in due course.

Coupon-mad

The said ticket will be produced in court. The partial registration number was entered purely in error and in no way by the defendant to avoid making payment. As no loss was incurred then there can be no reason for you to pursue this matter, other than to make excessive money out of people who have complied and purchased a ticket, but in doing so made an innocent error, which in no way affected payment for the duration of stay.

I would suggest this bit gets changed to:

The said ticket will be produced in court. It appears that a partial registration number may have been recorded, either by inadvertent error of the driver or by failure of Civil Enforcement's own keypad or failure of the signage to make the full VRN a clear 'obligation' with risk of a penalty. No evidence has been produced either way by Civil Enforcement and it is not disputed by any party that there was certainly no attempt to avoid payment.

This situation is an 'ordinary' contract involving no overstay and no breach of the legitimate interests of the landowner. This was a simple consumer/trader transaction with a ticket for parking being produced by a machine and can be very easily distinguished from the case of ParkingEye Ltd v Beavis. Indeed, the Judges' findings at the Court of Appeal stage - which were not disputed nor overturned at the Supreme Court, so the findings stand as part of that binding case law - fully support my view (and my defence, should you pursue this with an unreasonable and vexatious claim) that the case of Kemble v Farren is the binding authority in support of this position.

At 47 in the Court of Appeal Judgment in ParkingEye Ltd v Beavis it was held:

''When the court is considering an ordinary financial or commercial contract, then it is understandable that the law, which lays down its own rules as to the compensation due from a contract breaker to the innocent party, should prohibit terms which require the payment of compensation going far beyond that which the law allows in the absence of any contract provision governing this outcome. The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829) 6 Bing. 141 at 148: “But that a very large sum should become immediately payable, in consequence of the non-payment of a very small sum, and that the former should not be considered a penalty, appears to be a contradiction in terms, the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times,endeavoured to relieve, by directing juries to assess the real damages sustained by the breach of the agreement.” ''

In addition, the Consumer Rights Act 2015 (the CRA, enacted after the Beavis parking event) supports a consumer's position in at least two ways:

- the signage failed to make any obligation and/or risk of penalty prominent, to enter the FULL VRN. The CRA states: ''A trader must ensure that a written term of a consumer contract or a written consumer notice is transparent. To be transparent it must be expressed in plain and intelligible language and be legible...any subject matter terms must not be hidden in any small print otherwise the price and the subject matter terms will be assessed for "fairness". ''

- Under Schedule 2 'Consumer contract terms which may be regarded as unfair' it includes: ''A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.''

As this charge is clearly punitive and is not saved from breaching the 'penalty rule' (i.e. Lord Dunedin's four tests for a penalty) by the Beavis case, which turned on completely different facts, then there can be no reason for Civil Enforcement to pursue this matter.
[STRIKE]other than to make excessive money out of people who have complied and purchased a ticket, but in doing so made an innocent error, which in no way affected payment for the duration of stay[/STRIKE].

I regard this action as unreasonable, and reserve the right to claim for my time in dealing with this matter should a judge agree with me.

vicki1930

Following my last post on this thread dated 9 July 2016 ...the letter was sent as advised to CEL and nothing else received until today...my daughter has now received a letter from ZZPS Ltd asking for the amount outstanding plus a further £60. Should she ignore it?

Thanks in advance

KeithP

Post #4 of the NEWBIES FAQ sticky thread gives comprehensive guidance on how to deal with debt collector's letters.