SCS Law Letter before claim for multiple PCNs-over £1000!!

DiegoFuego

Thanks I will get on and do that. Is there anything I say to SCS Law in response?

pappa_golf

http://www.lettersofnote.com/2013/08/arkell-v-pressdram.html

Fruitcake

12 month ADR requirement.

Changes in EU law last year say that appeals should be allowed (Alternative Dispute Resolution) for up to a year.

"It is the will of Parliament, as a result of the EU Consumer Rights Directive that ADRs must imminently be made available for not less than a year."

I don't have a link, but the directive begins with the following,

S T A T U T O R Y I N S T R U M E N T S

2015 No. 542


CONSUMER PROTECTION

The Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015

Made - - - - 16th March 2015
Laid before Parliament 17th March 2015
Coming into force for the purposes of Parts 1 to 3 7th April 2015
for the purposes of Parts 4 & 5 9th July 2015
The Secretary of State, as a Minister designated for the purposes of section 2(2) of the European Communities Act 1972(a), in relation to matters relating to consumer protection(b), makes the following Regulations in exercise of the powers conferred by section 2(2) of that Act.
PART 1
General
Citation and commencement
1.—(1) These Regulations may be cited as the Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015. (2) Parts 1 to 3 come into force on 7th April 2015. (3) Parts 4 and 5 come into force on 9th July 2015.

Edit.

Try this.

http://www.legislation.gov.uk/uksi/2015/542/contents/made

You will need to read it and find the 12 month bit yourself. I'm still wading through it.

beamerguy

I therefore conclude that soon, SCS law will go through the SRA washing machine

pappa_golf

and if they work at the same speed as the "Mr Swartz" case , we should see an answer by 2020

beamerguy

pappa_golf wrote: »

and if they work at the same speed as the "Mr Swartz" case , we should see an answer by 2020

Don't think so pappa, you down the pub with your missus again ??

DiegoFuego

Hi all. I have submitted my SRA complaint and am in contact with the retailers at the car park to try and get the tickets cancelled. But unfortunately in the mean time, SCS Law have submitted court papers to me for the whole claim including the random costs and also posted a letter called "Particulars of Claim". Not really sure what to do next now. What is my response?

Coupon-mad

Too late to get it cancelled by retailers now then; you cannot complain then sit and wait. This is what happens, even with an SRA complaint in.

You must acknowledge the claim urgently to buy time - do this online using MCOL's password on the claim form - then you defend this (worst case scenario is you should pay LESS than in the PoC, if you lose at a hearing in the end). Or they might discontinue/give up, or you may win!

So, this is not a time to give up & pay but equally you need to be 'on it', as regards deadlines.

Search the forum for 'UKPC claim' and read threads by people like TommyG5, badbrains89, Anthony94, IndigoMondayToyota and Bobby2k2.

And read the NEWBIES thread heading 'Small Claim?' especially the 2nd link to bargepole's advice about what happens when, what boxes to tick/not tick!

Tell us once you've acknowledged this and have started to draft a decent defence (there are LOADs on here to copy from, much of it generic).

Oh, and on this forum and/or on pepipoo do not reply to any private message from a poster with less than 1000 posts to their name here. We deal with these issues openly on the forum and any pm could be from anyone at all (even the parking firm) and any private message about this is not recommended to be replied to/read.

You can do this with our help and it is not the end of the World if you lose in the end, just do not drop the ball, keep the thread updated as soon as you have got the AoS done and a draft defence on the go.

DiegoFuego

Hi all!!

Taken a bit of time but I have my defence drafted. Hoping some of you can take a look before I send it in.

And also if there's anything else in this procedure I've missed. Been seeing mention of "part 18" in other threads. Not sure if that's relevant to me but anything else relevant will be greatly appreciated. Defence is now posted below:

1The Defendant denies any liability whatsoever to the Claimant for all of the following reasons, any one of which is fatal to the Claimant’s case:

i. The Claimant has no standing to bring a case
ii. The Claimant has no capacity to form a contract with the motorist
iii. The signage did not offer a genuine contract with the motorist
iv. Even if a contract could be formed, it would be void as in breach of the Unfair Terms in Consumer Contract Regulations
v. The Claimant has no Cause of Action
vi. Even if a debt existed, it would be due to the land-owner, not the Claimant
vii. The Claimant has misrepresented its day-to-day business costs as a loss
viii. The Claimant has included a solicitor charge that was not incurred

2. The Claimant manages the car park. The Claimant is not therefore the Land-owner. Neither has it claimed to be an Agent. The Defendant has the reasonable belief that it is merely a contractor. The Claimant has not therefore explained what authority it has to bring the claim. ParkingEye v Sharma (3QT62646 Brentford County Court) examined the contract and dismissed the claim for the reason that the Claimant had no ownership of, or proprietary interest in, the land ; it followed that the Claimant, acting as an agent, had no locus standi to bring court proceedings in its own name. ParkingEye v Gardam (3QT60598) similarly examined the contract and found the Sharma judgment persuasive. The Defendant also refers the court to ParkingEye v Somerfield (2012) (EWCA Civ 1338 case A3/2011/0909) that examined ParkingEye contracts. This stated that any debt was due to Somerfield and that ParkingEye did not have the authority to issue proceedings.

3. A contract is absent with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, the Defendant has the reasonable belief that the Claimant does 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.

4. The Defendant is aware that the Claimant relies on ParkingEye v Beavis. The Defendant submits that the present case can be distinguished for two reasons:

• It was established that ParkingEye paid a premium of £1000 per week to operate at the site. This was ruled to give them standing as Principal. In the present case they are acting as an contractor to the land-owner

• In the Beavis case there was also a clear chain of command between the land-owner and ParkingEye established by the production of original copies of the contracts

If the Claimant wishes to rely on Beavis, the Defendant is put to proof that such a contract exists and of its content.

Also the Claimant has claimed that “ParkingEye v Beavis confirms that any amount will be recoverable provided it is proportionate to a legitimate interest” which is not true. The Beavis case found that the sum of £85 in that case alone, with the particular signage and adequate notice in that case, was not a penalty.

5. As this case can be easily distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes and UKPC have not shown any valid 'legitimate interest' allowing them the unusual right to pursue anything more than a genuine pre-estimate of loss.

6. The provision is a penalty and not a genuine pre-estimate of loss.

• as the Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking on the site in question;

• the amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable;

• the penalty bears no relation to the circumstances because it remains the same no matter whether a motorist overstays by ten seconds or ten years; and

• the clause is specifically expressed to be a parking charge on the Claimant's signs

7. If the driver happened to see the signage (if any were present) on each occasion, signs are located at a distance in pale, unlit and placed so high creating an illegible condition to read the terms and conditions required to enter a contract. The doctrine of contra proferentem applies and the interpretation that most favours a consumer must prevail; that being that the driver(s) did not see or accept the sum the claimant says they did.

8. Even if a contract had been formed it would be void. The Claimant was not acting in good faith and was in breach of the Unfair Terms in Consumer Contract Regulations 1999. The Defendant refers the court to the concept of good faith as elucidated by the European Court of Justice in Aziz v Caixa d’Estalvis de Catalunya, Tarragona I Manresa [2013] 3 CMLR 5 (Para 69) regarding the Unfair Terms Directive :
With regard to the question of the circumstances in which such an imbalance
arises “contrary to the requirement of good faith”, having regard to the sixteenth recital in the preamble to the directive and as stated in essence by the A.G. in point AG74 of her Opinion, the national court must assess for those purposes whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to such a term in individual contract negotiations.

The Defendant further asserts that the Claimant has ignored the Government’s clear intention as expressed in the Department for Transport Guidance on the Recovery of Parking Charges :

Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken.
For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver.


9. The claimant’s charges are unlawful addressing the imbalance of power leaving the driver/s at a disadvantage thus the defendant denies entering a contract. If a breach of contract is identified by the court then the implications are marginal, as the driver followed majority of instruction.

10. The judgment in VCS v Ibbotson (2012) makes clear that only the costs that directly result from the parking may be included, not an arbitrary proportion of normal business costs. A Retailer v Ms. B & MS. K (1UC71244) citing R+V Versicherung AG v Risk Assurance and Reinsurance Solutions SA (2006 EWHC 42) and Aerospace Publishing Ltd v Thames Water Utilities Ltd (2007 EWCA Civ 3) dismissed a claim for the costs of security staff dealing with shoplifters who had deliberately attempted to cause a loss to the claimant, not merely made a mistake when using its Principal’s car park. The court stated that the claimant had to establish that the conduct caused significant disruption to its business. Security people, far from being diverted from their usual activities, were in fact actively engaged in them and doing just what they were paid to do. Neither could any administrative or security costs be claimed. The amounts spent by the claimant would have been identical if the defendants had stayed at home or limited their shop-lifting to other establishments
The Claimant’s perverse business model appears to rely entirely on the income from alleged breaches of terms and conditions, not from customers that adhere to them. The cost of administration staff involved with the processing of parking notices cannot be presented as a loss because their employment is essential to the Claimant’s revenue.

11. It is believed that this Claimant has not adhered to the BPA Code of Practice and is put to strict proof of full compliance. This Claimant has been exposed in the national press - and was recently investigated by the BPA - for falsifying photo evidence, which was admitted by the Claimant. It is submitted that this is not a parking company which complies with the strict rules of their Trade Body, which were held as a vital regulatory feature in ParkingEye v Beavis.

12. The POFA 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 an extra £60 to each PCN and that those sums formed part of the contract in the first instance.

13. The legal costs are not justified additionally it would have been factored within the additional £60 charge thus claiming again would be considered double charging creating financial gain.

14. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety, voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons.

Coupon-mad

You are citing a lot of old cases, knocked out by the Beavis case, and you mention the UTCCRs, which were replaced by the CRA in 2015.

So remove this from #2:

ParkingEye v Sharma (3QT62646 Brentford County Court) examined the contract and dismissed the claim for the reason that the Claimant had no ownership of, or proprietary interest in, the land ; it followed that the Claimant, acting as an agent, had no locus standi to bring court proceedings in its own name. ParkingEye v Gardam (3QT60598) similarly examined the contract and found the Sharma judgment persuasive. The Defendant also refers the court to ParkingEye v Somerfield (2012) (EWCA Civ 1338 case A3/2011/0909) that examined ParkingEye contracts. This stated that any debt was due to Somerfield and that ParkingEye did not have the authority to issue proceedings.

And remove #6 and #8 completely because the Beavis case killed any 'no loss' argument.

#9 and #10 do not look like current arguments with any legs either.


Posters called steady.alone (today) and bigsej (this month) both have threads which show a recent defence written out, albeit not a UKPC one but you will be able to see arguments that have nothing about 'loss' or GPEOL or old cases like PE v Gardam, or the Ibbotson case, or the UTCCRs. It looks as though this is based upon one from a few months back = too old.


Remind us, was this a retail park or a residential car park or what?

What was the contravention alleged? Was it true? What went wrong? If overstay, how long?

What were the signs like, if they were posted earlier here, please show them again as your thread is long!

Did UKPC serve you with a NTK in the post a month after a windscreen PCN?