Gladstones Letter Before Action

Coupon-mad

Has no-one heard of a counter-cheque (from your Bank branch) or a simple crossed Postal Order, these days? Come on!!

The advice was given for a valid reason to force the issue. I didn't think I also had to explain how people with no cheque book get around it...?!

snorbit wrote: »

Wouldn't the fact I have previously paid PCNs and electronic tickets undermine any argument that the signage is not clear etc? I.e. would they not argue I've acknowledged the validity of the charges previously by such actions?

These are the issues I don't want to have to address/work around in court.

They might do. That's why you'd be better defending at a hearing pointing out the facts of another charge have no relevance to this charge, but even so, like we said, a defended case heard on the papers could at least knock the added £60 x 2 into a cocked hat, the aim being you'd pay less than £320 even if the case was lost.

Loadsofchildren123

snorbit wrote: »

Wouldn't the fact I have previously paid PCNs and electronic tickets undermine any argument that the signage is not clear etc? I.e. would they not argue I've acknowledged the validity of the charges previously by such actions?

These are the issues I don't want to have to address/work around in court.

If they point it out (doubt they put that much work into their claims) you'd say it was irrelevant because you didn't realise what the law said then, but now you do.

snorbit

So, I have decided to put up a fight.

I have discovered that the land that is the subject of the LBC does not have planning permission as a car park. It had temporary permission a few years ago, but this has since expired.

Surely this is the killer argument to any claim?

Therefore, my reply letter has the following structure:

1. Planning Permission (let's save time/cost in the spirit of the PD by dropping this in light of lack of planning)
2. LBA Content/PD (if you wish to persist, at least provide me with the info req'd by the PD*)
Locus Standi (notwithstanding the issue of planning, does your client have landowner's auth to act on their behalf? Offer to write to them to do this)
3. Signage Infringements/IPC Code of Practice (is this even worthwhile?)
4. FoPA (No proof I was driver, NTK indicates attempt to claim from keeper, have not met req's)

*looks like the PD has been updated since the original advice on here. There is no Annex A and it appears far less detailed than previously - does this benefit claimants?

This will end up being a very long letter, circa 10 sides. Tactically, is it best to make all of my points from the get-go. I would think this would help if/when I end up in front of a judge

Loadsofchildren123

Bravo.

Para 1 - this is the principle Ex dolo malo non oritur actio :
The Claimant is not entitled to rely on an illegal or immoral act in order to profit from it, pursuant to the doctrine ex dolo malo non oritur actio. In this case, there are three acts which are illegal and/or immoral: the absence of planning consent to use of the land as a carpark and the installation/display of the Claimant’s signage on the Land/Site without advertisement consent (a criminal offence), the Claimant' breaches of Regulations and Statute, and the Claimant’s disregard of its own compulsory Code of Practice. The first is a criminal act, the last two while not criminal, are undoubtedly immoral and should not be sanctioned by the court.

The rationale for the doctrine is set out in the early case of Holman v Johnson where Lord Mansfield said:
“The objection, that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed; but it is founded in general principles of policy, which the defendant has the advantage of, contrary to the real justice, as between him and the plaintiff, by accident, if I may say so. The principle of public policy is this; ex dolo malo non oritur actio ["no action arises from deceit"]. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff's own standing or otherwise, the cause of action appears to arise ex turpi causa ["from an immoral cause"], or the transgression of a positive law of this country, there the court says he has no right to be assisted.”

The principle was reaffirmed in RTA (Business Consultants) Ltd v Bracewell [2015] EWHC 630 (QB) (12 March 2015) where, at paragraph 34 of the judgment the above passage was cited.

The Court’s attention is also drawn to )Andre Agassi v S Robinson (HM Inspector of Taxes. Whilst not wholly aligned to the issues in this case it has been produced because of the principle it extols that no one should profit from their unlawful conduct. The Court’s attention is drawn to paragraph 20 of the judgment
“It is common ground that, whatever costs may be recoverable by a litigant in respect of professional services such as those provided by Tenon to the appellant, they cannot include the cost of any activities which are unlawful”.
Paragraph 28 continues –
“cannot on any view recover the cost of activities performed by Tenon which it was not lawful for them to perform.”

Dealing with the planning/advertisement consent point:
[insert the history of the planning applications/consents for use as a carpark that you have found out - it is important that you make a formal complaint to the council about this - you probably need to submit an online complaint and they will probably email you to confirm - use this later if necessary).

The signage displayed on the Land/Site has no planning/advertising consent, which is required under the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (as amended). The signs are an “advertisement” under the definition in the Regulations.

Regulation 30 makes it a criminal offence to display advertisements (which these signs are) without the relevant consent. The local authority has confirmed orally that the signs have no planning/advertising consent [you can demonstrate this with a printout of the council website showing all applications/permissions regarding the site showing that there was only one application for use as a carpark granted temporarily which has expired and no application for advertisement consent].

The Claimant relies on the signs as having formed a contract with the driver [paragraph 2(ii) of Statement, [page ref]. If there was a contract between the Claimant and the driver, it was illegal at its formation because it was incapable ofbeing created without an illegal act (the erection of the un-consented signs stating theterms and conditions relied on by the Claimant).

Where a contract is illegal when formed, neither party will acquire rights under that contract, regardless of whether or not there was an intention to break the law; the contract will be void and treated as if it had never been entered into. As such, the asserted contract cannot be enforced

It was clearly unlawful for the Claimant to have in place the signs upon which it relies for the formation of that asserted contract. There has been a clear transgression of a law (the 2007 Regulations) and it is submitted that the Court should not “lend its aid” to this Claimant “who founds his cause of action upon an illegal act”.

Further, it must be contrary to public policy for a court to enforce a contract whereby a party will profit from its criminal conduct. ParkingEye v Somerfield Stores concerned an alleged illegal contract. Whilst the facts of that case are not relevant, the Judge’s comments at paragraph 29 are of importance:
“At common law, historically, a distinction has been drawn between cases where the guilty party intended from the time of entering the contractunlawfully and cases where the intention to perform unlawfully was only made subsequently”.

In Somerfield the contract was upheld because the Claimant had no intention, when creating the contract, to deliberately break the law. Differently in thiscase, the problem arose at theformation of the contract and not in relation to any subsequent act: the Claimant did deliberately break the law by erecting the parking signs which it asserts stated contractual terms, without first having in place the mandatory prior consentrequired by law. Thus a crime was committed then. Therefore, the illegality in this action wasnot merely incidental to the creation and part of the performance of the contract as in Somerfield but was central to it.Somerfield guides us that where there was a chance to remove the illegality from futureperformance the contract could remain in force. In this action the illegality of the Claimant’s signage that existed on the day of the parking cannot be undone, even by any subsequent grant of advertisementconsent.

At paragraphs 65-74 of the Somerfield judgment Laws LJ set out three factors which need to be considered in a defence of illegality. The Defendant submits that these should be considered and applied in this case:
1. the commission of an illegal wrong being present at the time of entering the contract means that the Claimant will not be able to enforce the contract;
2. the illegality is central to the contract and is not merely a minor aspect thus it should not be held to be too remote so as to render the contract enforceable;
3. the nature of the illegality: in this case it was a crime and not merely a civil tort as in Somerfield. The gravity of the illegality is therefore far greater.

If the Planning Authority has been unaware of the signs (as it has told the Defendant), and has not therefore taken any formal action against the Claimant, this is irrelevant. Even if the Claimant were to obtain consent, this cannot and will not grant authority and legality for display of the signage prior to the approval date so that the crime being committed when the car was parked will remain a crime for all time.

The crime committed in this case has all of the characteristics of a “crime” and, it is submitted, has to be appropriately regarded with all the gravity society gives to crimes.

The Claimant is under a duty to the Court to provide full and fair disclosure by informing it of all relevant issues. The Claimant has failed to advise the Court that a criminal offence was being committed by the display of its signage.

In relation to breaches of Regulations/Statute, the Claimant has breached the following Regulations/Acts:
Consumer Protection from Unfair Trading Regulations 2008 (“CPRs”)
Consumer Rights Act 2015
Consumer Contract (Information, Cancellation and Additional Charges) Regulations 2013

Loadsofchildren123

Cont...

Consumer Protection from Unfair Trading Regulations 2008:

Regulation 3: a commercial practice is unfair if it contravenes two requirements. The first strand concerns the requirements of professional diligence; the second is that a failure of professional diligence materially distorts or is likely to materially distort the economic behaviour of the average consumer with regard to a“product”.

Regulation 5: a breach of Regulation 3 is an offence. The Office of Fair Trading guidance on the 2008 Regulations at paragraph 10.1 indicates that “Regulations 3(1) and 3(3) of the 2008 Regulations set out the general prohibition on unfair business to consumer commercial practices, also known as the general duty not to trade unfairly. This prohibition allows enforcers to take action against unfair commercial practices, including those that do not fall into the more specific prohibitions of misleading and aggressive practices, or into the very specific banned practices. This means it acts as a safety net. It is designed to ‘future-proof the protections in the CPRs, by setting standards against which all existing and new practices can be judged”. Paragraph 10.4 of the OFT Guidance indicates that professional diligence should evidence “(a) honest market practice in the trader’s field of activity, or (b) the general principle of good faith in the trader’s field of activity”.

The Defendant submits that the first strand of Regulation 3 applies as a result of the criminal conduct involved in the Claimant’s parking enforcement. The second strand begs the question: “Would a consumer be likely to make a different decision about payment of damages if he were told that a crime had to be committed to eventuate in a demand for that payment?”. It is averred that a car park operator who fails to secure, or that its client fails to secure, the relevant mandatory advertisement consent required by law before managing thecar park and thereby commits a crime, will be acting in contravention of Regulation 3 of the 2008 Regulations. For having done so the Claimant fell below the standards of a reasonably competent professional having regard to the standards normally expected in its profession with particular regard to the CoP. Further, by failing to advise the Defendant, and this Court, of the criminal conduct associated with its parking enforcement when demanding damages for an alleged breach of contract, it is averred that the Defendant has also been acting with a lack of professional diligence.

Consumer Protection (Amendment) Regulations 2014: these came into force on 1 October 2014, and extended the definition of “product” provided by the 2008 Regulations. It now includes after 1 October 2014 the settlement (rather than the demand) of actual or purported liabilities such as those that the Claimant is seeking to recover from the Defendant by way of alleged damages (see regulation 2(9)). Therefore, taking a decision to settle damages falls within Regulation 3 of the 2008 Regulations. It is submitted that it is incumbent upon the Claimant to show that it was acting with professional diligence.

Regulation 5(3)(b) of the 2008 Regulations indicates that it is a misleading action where there is any failure by a trader to comply with a commitment contained in a code of conduct with which the trader has undertaken to comply. The Claimant was bound to comply with IPC’s CoP, which in turn provides that it must comply with the relevant laws relating to parking enforcement and consumer rights as a condition of its membership of its AOS (A2.4 and 6.8 of the CoP), but has clearly failed to do so. Regulation 5(3)(b) provides a defence in any civil claim.

Consumer Rights Act 2015
The parking charges sought amount to a penalty which is unenforceable and is an unfair term. Breaches of the Act include:
31.2.1 s.68: Requirement for transparency
(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.
The terms set out in the signage are not transparent, plan and intelligible, nor are they legible.

s.62 and Schedule 2 : the parking charges sought amount to a penalty which is unenforceable and is an unfair term, as is the Claimant’s

’’A term which has the object or effect of inappropriately excluding or limiting the legal rights of the consumer in relation to the trader or another party in the event of total or partial non-performance or inadequate performance by the trader of any of the contractual obligations…” ;

“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” (paragraph 2 of Schedule 2); and

''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.'' (paragraph 6, Schedule 2)

Consumer Contract (Information, Cancellation and Additional Charges) Regulations 2013: As this was a distance contract, formed when one party was not present, the information required by Regulation 13 should have been provided in advance, but was not.

Further, it is an established principle of the law that onerous contractual terms (in this case the £100 charge) should be highlighted, as per Lord Denning’s “red hand rule” set out in Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ 2. A reasonable interpretation of the “red hand rule” would require a charge and the terms upon which it becomes payable to be displayed far more obviously and in far larger lettering than on the Claimant's sign – there should be fewer words and more “white space” with background contrast suited to an outdoor sign. In Lord Denning’s words 'in red letters with a red hand pointing to it”. The signage in the Beavis case did not breach the red hand rule: the signage in this case does.

Loadsofchildren123

Cont...

The Claimant is in breach of various apsects of the IPC Code of Practice. The CoP is not a “take it or leave it” voluntary document. It is effectively binding on the Claimant for two reasons:
1. It is likely to be a fundamental term of the Parking Contract that the Claimant must comply with its AOS (paragraph []). The Claimant cannot bring a claim in relation to a contract of which it is fundamentally in breach - compliance with IPC’s CoP is paramount.

2. The Supreme Court in Beavis also considered compliance with the CoP also to be paramount in relation to the issue of the enforceability of a charge:
96. ''…The BPA Code of Practice is a detailed code of regulation governing signs,charges and enforcement procedures.''
111. ''And, while the Code of Practice is not a contractual document, it is in practice binding on the operator since its existence and observance is a condition of his ability to obtain details of the registered keeper from the DVLA. ''And, while the Code of Practice is not a contractual document, it is in practice binding on the operator since its existence and observance is a condition of his ability to obtain details of the registered keeper from the DVLA. In assessing the fairness of a term, it cannot be right to ignore the regulatory framework which determines how and in what circumstances it may be enforced."

The Claimant is a member of IPC's AOS and is therefore bound by its CoP. The initial paragraphs of the CoP make clear that compliance is mandatory (specify para numbers - my case incolved BPA so these are all references to their CoP although IPC's will be similar)) and that this is a condition of membership of the AOS (para...). Members are audited at least annually ensure compliance (para ...), are expected to have in place adequate internal procedures to ensure strict compliance (para...), to know and observe the law (para...). Importantly, it provides that members will be suspended or expelled from the AOS if they breach the CoP (para ...)

In spite of its obligations to observe the CoP, the Claimant is in breach of a number of important aspects of it (set these out in brief). This is yet another reason why the claim should be dismissed.

The Court’s attention has been drawn above to the Claimant’s failure to ensure that it has complied with the relevant legislation, thereby resulting in criminal conduct in thin their operation of parking enforcement. This is a clear breach of paragraph x of the CoP. If there is any liability argued on the part of the Defendant, then it is submitted that a contractual term cannot be fair if the requirements of the CoP are disregarded and a crime has been committed to create that term and/or the contract between a motorist and the parking enforcement company.

Loadsofchildren123

I've copied and pasted this from my court documents. I do not suggest you go into this detail at this stage, but it will help you to formulate your letter.

You will see that your point 3 IS worth running.

Loadsofchildren123

Try to make it as short as possible, without losing the points you are trying to make. I'm the world's biggest hypocrite when I say that because where 1 word will do I will always use 100!

Loadsofchildren123

Also, when you invite them to comply with the PD, list the info and documents you want. Be very clear what you are asking them for.

snorbit

Thanks for this everybody - my basic dilemma now is, do I go into full detail on all of my points, or just 'touch on' each of them.