Civil Enforcement - Letter before action

Coupon-mad

Just adding this here as an extra point if you get a claim, as I am now suggesting this wording for defences and POPLA appeals where a PPC is saying that either a VRN was not entered at all or was entered with a typo/error in the detail:

The operator is seeking to profit from their own (and/or their site client's) failure to draw attention to an onerous term with commercial intent. The 'Clean Hands Doctrine' applies and this operator has failed to act fairly, by negligently not ensuring that onerous terms are communicated to consumers in accordance with Denning LJ's 'red hand rule' in 'J Spurling Ltd v Bradshaw [1956] EWCA Civ 3':

''I quite agree that the more unreasonable a clause is, the greater the notice which must be given of it. Some clauses which I have seen would need to be printed in red ink on the face of the document with a red hand pointing to it before the notice could be held to be sufficient.''

There was no 'red hand' nor prominent large signs pointing to a requirement to use a keypad, not did the Gym Receptionist mention it nor ask the driver for the VRN. This is a failure by this operator to alert consumers to a term that will cause the consumer detriment and loss, when (as seems to be the intention) they remain oblivious. This is no 'agreed' contract term.

Clearly, for a parking company who only make money when consumers have to pay a parking charge (profiting from defaulters alone), it is in their interests that drivers are unaware of the risk and that their attention is not drawn to any keypad or requirement to give their VRN to the Receptionist. Hence, the private parking industry routinely provide the bare minimum of outdoor small-print signs and hope that courts will believe that is sufficient notice. I contend this cannot be considered adequate and cannot be a fair term.

The term is unfair under The Consumer Protection from Unfair Trading Regulations 2008 (CPUTRs) because the operator failed 'to identify its commercial intent'.

The true intent is to unfairly bind a driver by a punitive term which is unknown and not under their control (i.e. it appears the Gym Reception should have alerted visitors to it and certainly this operator had a duty to make it clear beyond doubt). The operator could easily set out a system whereby all Gym Members are exempt by default and will have any charges cancelled, or they could put up extra, very large lettering signs at the Reception desk alerting and warning of the risk of £100 penalty, or they could ensure that the keypad is established in practice, as the first thing mentioned by their client's employee as a person walks in. It chooses not to do so.

Misleading omissions

6.—(1) ''A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph (2)—

(a) the commercial practice omits material information,

(b) the commercial practice hides material information,

(c ) the commercial practice provides material information in a manner which is unclear, unintelligible, ambiguous or untimely, or

(d) the commercial practice fails to identify its commercial intent, unless this is already apparent from the context,

and as a result it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.''

I see the pepipoo poster 'Gan' has picked up on this too and is also using this sort of wording on pepipoo forum (he added the 'Clean Hands Doctrine' to my wording above, which has improved it). So I do believe it has legs for POPLA appeals & defences to do with any P&D machine/VRN machine allegation of fault against a driver.

Fruitcake

Have you complained to the BPA and DVLA that you never received a reply to your original appeal?

I know you need to work on a court defence, but every single failure needs reporting to both parties, plus your MP and Mrs May.

pappa_golf

hoohoo wrote: »

If the letters are from Michael Schwartz, consider complaining to the SRA

Email is [EMAIL="report@sra.org.uk"]report@sra.org.uk[/EMAIL]

I wish to file a complaint regarding Michael Schwartz, 118966

On your website at http://www.sra.org.uk/consumers/solicitor-check/118966.article it lists that Mr Schwartz was the subject of control of practice restraints which were imposed on 15 August 2016 and published on 15 September 2016.

These restrictions state: Mr Schwartz may act as a solicitor, only as an employee whose role has first been approved by the Solicitors Regulation Authority.

I enclose a copy of a (letter|claim form) dated xx October 2016, signed by Mr Schwartz, and therefore suspect that he is acting as a solicitor, but in a role for which he has not been approved.

brick wall time I am afraid , as posted on another thread:


heads in a jumble after speaking to the SRA ,

OK , the SRA cannot touch CEL
Swartz has applied for permission to work for CEL on salary
no decision has been made yet , and until it has , he is working without their authority (as per sanctions)
12 mth certificate runs out 31st oct , and his will be manually gone thru
no public access to show what companies he can work for available

"claimants legal representative" verbally agreed the minimum legal requirement with them , and they agree that he should not be working as a "claimants legal representative"

working for CEL as a claimants legal representative is banned under his sanctions , until a formal request as been granted by the SRA
working self employed for CEL is breaking the sanctions


and the final word

we give the sanctions (SRA) but we cannot apply them


felt like talking to the boss of the "boys" private club

Ajmer Singh Nahal (Mr)
Regulatory Supervisor
Supervision Unit
Solicitors Regulation Authority
The Cube, 199 Wharfside Street, Birmingham, B1 1RN
(Working hours: Mon 7:30am-4pm / Tues 7:30am-1:30pm / Weds to Friday 7.30am-3:30pm)
p 0121 329 6619

won,t give his email , coz he was ****** off I got it , emailed back and asked me to ring , evidently he does not want Ajmer.Nahal@sra getting to be known by the non members