Help with a notice before action

MR.A

Hi all,

Just wondered if anyone has any advice for me. I received a notice before action this week for a ticket issued in March this year. I appealed to the parking company, they ignored all of my points and refused it. I did not pay and have now received a NBA.

This is my planned (redacted) response and is hopefully self explanatory.

Thank you.

Re: Charge Number xxxxxx

Dear Premier Parking Solutions Ltd

Please note that I reserve the right to produce a copy of this letter to the court.

I am writing in response to your ‘Notice Before Action’ dated xx/xx/xx and received on xx/xx/xx. First, your intentions are not clear to me; the notice states that you ‘may’ begin proceedings in the county court whereas I would expect a notice before action to be exactly what it says, nonetheless I shall assume that you intend to begin proceedings and will therefore respond accordingly.

My second assumption is that you intend to sue for an alleged breech of contract. Would you please confirm that this is the case so that I can examine the legal basis of your claim.

In my correspondence dated xx/xx/xx I strongly refuted your claim that I owe any debt to PPS Ltd and gave a number of reasoned arguments why I believe this to be the case. None of these arguments were addressed, instead simply a reiteration that the ticket had been issued correctly and a further request to pay.

I deny that I ever entered into a contractual agreement with PPS Ltd and therefore I do not owe any debt. I have no intention of paying the charge and will vigorously defend myself if court action is taken against me. The practice direction on pre-action conduct is clear that attempts should be made to resolve this dispute before it reaches the county court. I kindly ask that you respond providing detailed answers to the following points.

I had the land owner’s permission to use the car park. They issued me with instructions via email detailing how to park at Plymouth Science Park (PSP). These instructions did not state that a permit must be displayed. They did state that I was entitled to use the Phase 2 car park, to park in a designated space and to sign in at reception with my registration number. I complied with these instructions. As you know from my initial appeal I had intended to print the entire email and place it on my dashboard to explain the purpose of my visit. I am...[mitigating circumstances] I was unable to print the email on the morning that I parked so rather than continue to struggle with my printer I instead left a hand written note to the parking attendant as a courtesy. I appreciate that mitigating circumstances do not form a legal argument but I include them to add context. I genuinely believed the attendant was a conference centre employee. At no time before you issued a charge notice was I aware of any signs in the car park. I would not have parked leaving only a hand written note in a car park that I knew to be privately operated and where charges apply for not displaying a permit.

I cannot see how you can claim that I have breached a contract when parking on land owned by PSP at their invitation and in accordance with their instructions. I have sent you a copy of these instructions.

Please state your full legal entity in relation to PSP and their car parks. I do not accept that you have the authority to either issue parking charges or to litigate in your own name. If you claim to have this authority I ask that you produce a contemporaneous and!un-redacted copy of your contract with the landowner where this is stated. If there was a financial loss incurred by my parking at PSP (and I refute that there was), this loss would be the land owner’s to recover.

My next point concerns the ‘contract’ itself. I have photographic evidence of your signs in the car park and they are both inaccurate and misleading. The entire text is written in very small letters of 10mm in height and is situated at the top of a lamp post in the car park. I have measured the text and have photographic evidence. There is another copy of the same sign at waist height situated at the entrance and not readable on entering the car park when driving. The core term of the contract is not at all clear. The following words: ‘£100.00 charge’ are written in text of 10mm in height and buried within a paragraph. This does not meet the minimum requirements set out in the BPA code of practice 2012, version 6 October 2015 or even the Independent Parking Committee (IPC) code of practice version 4 May 2016, which brings me to my next point.

Please confirm which trade body you belong to as all the signs in the car park contain the British Parking Association (BPA) approved operator scheme logo as does your website detailing how to appeal via Parking on Private Land Appeals POPLA.

Could you please explain why you have failed to provide when asked a POPLA code in order that I might take my appeal further than your own in-house process. As I have mentioned above, your signs show you to be BPA members and your website gives instructions on how to appeal via POPLA. This is still the case as of today, eight months after you supposedly moved to the IPC. I strongly feel that you have denied me the right of an independent appeals process and breeched the approved operator scheme code of practice. Misleading information on your website is also a breech of the IPC code of conduct, assuming that you are IPC members. I intend to make a formal complaint about this to the IPC.

Lastly, there is the matter of the charge itself. How can a charge of £100.00 possibly be a fair representation of loss of earnings or even be commercially justified in a free car park for conference delegates where I can prove that I was a conference delegate?

Assuming that I have breeched a contractual agreement (and this is denied), you would only be entitled to compensation for the amount of your loss. Please provide a full breakdown of your costs including the latest £30.00 charge that you have levied to the total amount.

If this case does reach the county court and your claim is unsuccessful I will counter claim against you for my expenses including loss of earnings for attending the hearing, travel costs and time spent responding to your letters up to the limit that I am entitled.

With respect I invite you to discontinue your claim.

Yours sincerely

Coupon-mad

My second assumption is that you intend to sue for an alleged [STRIKE]breech[/STRIKE] breach of contract. Would you please confirm that this is the case so that I can examine the legal basis of your claim.

Typo above. Shame you've already said who was driving but as you seem to have appealed admitting this earlier(?) you are stuck with not being able to rely on the POFA/no keeper liability now.



REMOVE THIS (below)!! Never ask them to prove loss...you are handing them the chance to spout the Beavis case as they DO NOT have to prove 'loss':

Lastly, there is the matter of the charge itself. How can a charge of £100.00 possibly be a fair representation of loss of earnings or even be commercially justified in a free car park for conference delegates where I can prove that I was a conference delegate?

You could make this stronger to show their was a prior agreed contract with Plymouth Science Park (PSP):

I had the land owner’s permission to use the car park. They issued me with instructions via email detailing how to park at Plymouth Science Park (PSP). These instructions constituted an offer and did not state that a permit must be displayed. They did state that I was entitled to use the Phase 2 car park, to park in a designated space and to sign in at reception with my registration number. I complied with these instructions and consideration flowed both ways and agreement was reached - therefore a contract had already been concluded, to which PPS was never a party.

The_Slithy_Tove

What have Plymouth Science Park had to say when you brought up PSP's behaviour to them? What was their reaction to PSP's latest letter?

You have been onto Plymouth Science Park, haven't you? They can kill this in an instant if you hassle them enough.

MR.A

Thanks Coupon-mad - you and I have spoken before about this case a long time ago on another forum and yes, unfortunately I gave away that I was driving within hours of receiving the ticket so POFA was never an argument for me. Excellent points that you mention. Thank you.

One thing, is it worth saying the charge is unconscionable and therefore a penalty? Or shall I steer clear of Beavis at all costs? They'll probably argue that £100 is not unconscionable. I wanted to mention Beavis if this gets to court from the point of view of lettering size of the core term.

The Slithy Tove - I have indeed been in contact with PSP, they couldn't care less. They said that PPS manage their car park and to take it up with them. They have no reputation to protect unlike a supermarket, a really aggressive style of management. I'm just a conference delegate so I don't matter.

Coupon-mad

MR.A wrote: »

One thing, is it worth saying the charge is unconscionable and therefore a penalty? Or shall I steer clear of Beavis at all costs? They'll probably argue that £100 is not unconscionable. I wanted to mention Beavis if this gets to court from the point of view of lettering size of the core term.

Yes you could say that:

It is clear that this case can be fully distinguished from ParkingEye v Beavis, not least because in that case there was no prior contract agreed between Mr Beavis and the landowner and as such, ParkingEye were entitled to offer parking spaces and form contracts with drivers. Not so here; in fact it would be unconscionable for a third party contractor to re-offer on more onerous terms and at a price, a space that has already been offered by the party with title in the land. In this regard the contract was already made, giving me every right to park as I did with full authorisation.

MR.A

Thank you very much. Here's the exact wording of the 'so called' permit:

---

Conference parking instructions:

1. All visitors must report to the main reception to sign in as a visitor to PSP
2. Conference visitors are permitted to park in the visitor and phase 2 areas
3. This pass is not transferable and is only valid for one day unless otherwise stated
4. It is important to park in the designated spaces, failure to do so may result in a civil penalty notice and fine of up to £100

*Please fold here and place on dashboard*

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Just noticed the 'please fold here and place on dashboard' part!

Also this is the exact (relevant) wording of the car park sign:

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Warning contractual agreement

Parking of motor vehicles must comply with the terms and conditions indicated. If you park in the car park contravening the terms and conditions listed, you are contractually agreeing to pay a parking charge to the sum of £100.

Terms:

All vehicles must display a valid ticket or permit in their front windscreen or on the vehicle's dashboard at all times.

---

Can anyone with a sharp legal mind advise if it is correct to 'contractually agree to pay a charge'. I'll not address the text size issue here as I believe that I have covered that already.

Thank you

Coupon-mad

Can anyone with a sharp legal mind advise if it is correct to 'contractually agree to pay a charge'.

Can't claim to have a 'legal mind' (no training) but usually us regulars are sharp enough and yes, they can say that. It's correct enough.

It helps that the permit says:

''Conference visitors are permitted to park'' = good!

''It is important to park in the designated spaces'' = you did.

''failure to do so may result in a civil penalty notice and fine of up to £100''. So that was the ONLY 'relevant obligation' to ''park in the designated spaces'' or you get a 'fine'. No other caveats, only a polite instruction to fold it and put it on the dashboard but there is no 'fine' for not doing that, in those instructions as drafted.

The doctrine of contra proferentem applies and the interpretation which most favours a consumer must apply. You didn't contravene the contract offered by the landowner.

And the landowner has admitted that these are fines/penalties!

HO87

MR.A wrote: »

Can anyone with a sharp legal mind advise if it is correct to 'contractually agree to pay a charge'. I'll not address the text size issue here as I believe that I have covered that already.

Thank you

PPS's case will be that there were sufficient prominent notices to have brought the terms and conditions to your attention and that your agreement to those terms - the contract, which included the payment of the contractual fee - is evidenced by your having parked (by "performance") in legal terms.

Given the circumstances I strongly recommend that you:

a. Redact you draft response to the LBA
b. Seriously edit it down to ensure that you provide no hostages to fortune.

As with so many responses to LBA's you are handing far too much information to PPS - indeed the whole substance of your defence whilst I will guarantee they have disclosed nothing of their case.

At this stage as the prospective claimant PPS should be providing you with a concise statement of their case, what they want from you, a breakdown of the costs and copies of the documents they intend to rely upon (Civil Procedure Rules, Practice Direction on Pre-Action Conduct & Protocols, para 6.).

They also have an obligation (as do you) to assist the court to achieve the overriding objective:

Dealing with a case justly and at proportionate cost includes, so far as is practicable –
(a) ensuring that the parties are on an equal footing;
(b) saving expense;

(my emphasis)

I suggest something very much more along the lines of:

Dear Sirs

Re: Letter Before Action, Premier Parking Solutions Ltd -v- Myself, Parking Charge Notice No ZXZXZXZX

Thank you for your letter of [insert date]

Although your intention is not entirely clear I will treat your letter as a Letter Before Action.

Based on an almost complete lack of detail I can only deny any liability in respect of the alleged debt and deny that any debt exists or has ever existed.

I refer you to the substance of the appeal previously submitted in this matter and draw your attention to the enclosed copy of the parking permit supplied to me by the landowner which I will rely on should you issue proceedings.

I note that beyond the briefest of details your letter fails to comply with the requirements of the Practice Direction on Pre-Action Conduct & Protocols and as such I am unable to provide a fuller response to your purported claim at this time.

I look forward to receipt of a compliant letter and at that stage will consider matters further.

Yours faithfully

MR.A

HTH

MR.A

Thanks HO87, I have responded with a much simplified letter, as indeed their letter does not comply with the practice direction. I appreciate what you are saying about showing my hand too early but when exactly do I respond to their claim in detail i.e. when can I rebut their claim raising all of the issues that I have with it? Also when do I back up my points with evidence from case law? I have seen from others that this happens relatively late on when drafting a final defence, am I correct?

MR.A

Coupon-mad

What happens when is already in a thread written just weeks ago by bargepole. Tells you all about it.

I linked it in the NEWBIES FAQs sticky thread under 'Small Claim?'

MR.A

I've been a bit quiet of late in case of prying eyes but have taken on board your points above. Just a quick question, if you look at post #6 I have pasted the wording of the sign. Does anybody think that this could be a forbidding contract? It says must display either a permit or ticket but this is not a pay and display car park, there are no ticket machines. Maybe not but I was just wondering.