Common sense

Coupon-mad

http://i65.tinypic.com/v6u0qu.jpg

There are no marked bays? Yet the only contravention is not parking in a marked bay...and the IAS decided this was all perfectly legit and that you *should* pay £10!

Another bizarre IAS 'decision' (ahem...).

Did the Notice in the post say the PCN was for not parking in a marked bay and did the photos show a car not in a marked bay...and are you saying there are none?

For one thing, the IPC Code of Practice has something to say (vaguely) I think, about operators having to add extra warning signs when new enforcement starts at a site.

This all looks very defendable.

neilsims

The site is just a lane and looks like adopted highway, though it is private land. The signs do not mention parking bays or similar. The signs were originally put on Council lamp posts until Council officials told them in no uncertain terms to remove them. The following day they put up their own posts with their signs on.
It says Vehicle Control Services Ltd. They don't exist but Vehicle Control Services Limited is registered at companies house with the same correspondence address. How can anyone enter in to a contract with an entity that does not exist legally?

beamerguy

Is this not yet another Gladstones / IAS case that they are working on the minimum wage ??

Gladstones just like Wright Hassall, BWLegal, SCSLaw, the "in and out" Miahs .... they all work for peanuts

neilsims

I have now received a letter from bw legal demanding payment plus costs and threatening court papers if I do not pay up. Can anyone help me form a defence? Happy to provide more info that already on here. he land had been used for years with no issue from the landowner. The signs erected say vehicle control services ltd. They do not legally exist. Vehicle control services limited do. How can I enter in to a contract with a legal entity who do not exist? I also intend to use the promissory estoppel defence as the uniformed employee gave advice in front of witnesses. Is it worth writing to the legal firm first with my defence?

Umkomaas

Can anyone help me form a defence?

You don’t need that unless/until a claim via MCOL is raised. You have nothing to defend at this stage. Wait to see what transpires.

But if you’re preparing for this eventuality here are some pointers.

1. Read the NEWBIES FAQ sticky, post #2 which provides advice and guidance (and links to example defences for adaptation) on the entire court process from LBA to the court hearing.

2. Do forum searches on ‘VCS Defence’ where you will find recent ones. These will help you get your own in motion (should it be necessary).

3. Read the newly introduced Pre-Action Protocol (PaP) which every LBA or MCOL claim must follow - makes it much more difficult for PPCs to launch robo-claims.

https://www.justice.gov.uk/courts/procedure-rules/civil/pdf/protocols/pre-action-protocol-for-debt-claims.pdf

Johno100

neilsims wrote: »

The signs erected say vehicle control services ltd. They do not legally exist. Vehicle control services limited do. How can I enter in to a contract with a legal entity who do not exist?

Sorry but you aren't going to get anywhere with that argument. It is perfectly permissible to abbreviate Limited to Ltd on letterheads, signs, cheques etc.

http://www.legislation.gov.uk/uksi/2009/1085/schedule/2/made

Coupon-mad

neilsims wrote: »

I have now received a letter from bw legal demanding payment plus costs and threatening court papers if I do not pay up. Can anyone help me form a defence?... I also intend to use the promissory estoppel defence as the uniformed employee gave advice in front of witnesses.

Is it worth writing to the legal firm first with my defence?

It is worth writing to ask them for a proper letter before claim and evidence, and as the land is owned by what is now Canal and River Trust, it would be good if you could check whether this land is covered by Byelaws and/or whether the Trust is in fact under the Statutory Control of the Local Authority.

So yes you need to start building your evidence and (NOW) make a robust reply. This is winnable but not on 'common sense'.

Like here, this is based on a version written by our solicitor poster, LOC123 and you can add a line about 'promissory estoppel' as the uniformed employee gave advice in front of witnesses to the driver (have you already blabbed about who was driving in the appeal you wasted to the IAS?):

Your address
Date:

Your Ref: xxxxxx

Dear Sirs,

I am in receipt of your Letter Before Claim of xxxxx 2017.

Your letter contains insufficient detail of the claim and fails to provide copies of evidence your client places reliance upon. Your client must know that on 01 October 2017 a new protocol is applicable to debt claims and must be complied with.

Your letter lacks specificity and breaches both the requirements of the previously applicable Practice Direction - Pre-Action Conduct (paragraphs 6(a) and 6©) and the new Pre-Action Protocol for Debt Claims (paragraphs 3.1(a)-(d), 5.1 and 5.2. Please treat this letter as a formal request for all of the documents / information that the protocol now requires your client to provide. Your client must not issue proceedings without complying with that protocol. I reserve the right to draw any failure of the Claimant to comply with the protocol to the attention of the court and to ask the court to stay the claim and order your client to comply with its pre-action obligations, and when costs come to be considered.

As solicitors you must surely be familiar with the requirements of both the Practice Direction applicable pre-1 October and the Protocol which applies thereafter (and your client, as a serial litigator of small claims, should likewise be aware of them). As you (and your client) must know, the Practice Direction and Protocol bind all potential litigants, whatever the size or type of the claim. Its express purpose is to assist parties in understanding the claim and their respective positions in relation to it, to enable parties to take stock of their positions and to negotiate a settlement, or at least narrow the issues, without incurring the costs of court proceedings or using up valuable court time.

It is astounding that a firm of Solicitors are sending a consumer a vague and unevidenced 'Letter before Claim' in complete ignorance of the pre-existing Practice Direction and the new Protocol. Nobody, including your client, is immune from the requirements and obligations of the Practice Direction and now the Protocol.

I require your client to comply with its obligations by sending me the following information/documents:

1. an explanation of the cause of action

2. whether they are pursuing me as driver or keeper

3. whether they are relying on the provisions of Schedule 4 of POFA 2012

4. whether Byelaws are in place at this location, which it appears is under statutory control. Please provide a Copy of the Byelaws, if they exist (whether or not your client contends they might be 'obselete' or inapplicable) and documentary evidence of the steps and communications undertaken as due diligence by your client, in accordance with the IPC Code of Conduct before commencing enforcement, to ensure that their practices are in accordance with the Byelaws or, alternatively, that they operate a scheme that is not prohibited by them.

5. an explanation of how a private firm is operating on land owned by the Canal and River Trust which appears to be 'non-relevant land' which cannot be operated as if it were private land (see Robert Goodwill MP's letter, one with which your client will be familiar)? If an agreement exists with the Trust, what is the date of the agreement and the names of the parties to it? Please provide to me a copy of that contract since your client will rely upon it in any proceedings.

6. an explanation of why signs were initially placed on Council lamp posts, and a copy of the correspondence/email or conversations with the Local Authority which led to those signs being removed.

7. what the details of the claim are; where it is claimed the vehicle was parked, for how long, how the monies being claimed arose and have been calculated and whether the claim is for trespass or alleged contractual breach?

8. provide me a copy of the contract with the landholder (whether or not this is with the Canal and River Trust) under which they assert authority to bring the claim, as required by the IPC code of practice section B, clause 1.1 “establishing yourself as the creditor”

9. provide a plan showing where any signs were displayed, and details of the signs displayed (size of sign, size of font, height at which displayed)

10. provide details of the original charge (PCN and Notice to Keeper), and detail any interest and administrative or other charges added, and evidence that these have in fact been incurred in this case and the breakdown of those costs

11. provide me with evidence of which the claimant wishes to use to disprove the fact the car was parked legally, including photos showing the front, rear and side of the car in line with the requirements of the IPC code of conduct

12. provide a copy of the Information Sheet and the Reply Form.

If your client does not provide me with this information then I put you on notice that I will be relying on the cases of Webb Resolutions Ltd v Waller Needham & Green [2012] EWHC 3529 (Ch), Daejan Investments Limited v The Park West Club Limited (Part 20) – Buxton Associates [2003] EWHC 2872, Charles Church Developments Ltd v Stent Foundations Limited & Peter Dann Limited [2007] EWHC 855 in asking the court to impose sanctions on your client and to order a stay of the proceedings, pursuant to paragraphs 13 ,15(b) and © and 16 of the Practice Direction, as referred to in paragraph 7.2 of the Protocol.

Until your client has complied with its obligations and provided this information, I am unable to respond properly to the alleged claim and to consider my position in relation to it, and it is entirely premature (and a waste of costs and court time) for your client to issue proceedings. Should your client do so, then I will seek an immediate stay pursuant to paragraph 15(b) of the Practice Direction and an order that this information is provided.

yours faithfully,


your name

Johno100

Coupon-mad wrote: »

It is worth writing to ask them for a proper letter before claim and evidence, and as the land is owned by what is now Canal and River Trust, it would be good if you could check whether this land is covered by Byelaws and/or whether the Trust is in fact under the Statutory Control of the Local Authority.

If I'm correct the Canal and Rivers Trust took over from British Waterways and they did have byelaws that covered parking.

http://www.britishwaterways.co.uk/media/documents/foi/legal/BW_General_Canal_Bye-laws.pdf (PDF)

I'd be surprised if they were ever rescinded.

neilsims

Is this defence any good?

Dear Sirs,

I am in receipt of your Letter Before Claim of XXX date.

Your letter contains insufficient detail of the claim and fails to provide copies of evidence your client places reliance upon. Your client must know that on 01 October 2017 a new protocol is applicable to debt claims and must be complied with.

Your letter lacks specificity and breaches both the requirements of the previously applicable Practice Direction – Pre-Action Conduct (paragraphs 6(a) and 6©) and the new Pre-Action Protocol for Debt Claims (paragraphs 3.1(a)-(d), 5.1 and 5.2. Please treat this letter as a formal request for all of the documents / information that the protocol now requires your client to provide. Your client must not issue proceedings without complying with that protocol. I reserve the right to draw any failure of the Claimant to comply with the protocol to the attention of the court and to ask the court to stay the claim and order your client to comply with its pre-action obligations, and when costs come to be considered.

As solicitors you must surely be familiar with the requirements of both the Practice Direction applicable pre-1 October and the Protocol which applies thereafter (and your client, as a serial litigator of small claims, should likewise be aware of them). As you (and your client) must know, the Practice Direction and Protocol bind all potential litigants, whatever the size or type of the claim. Its express purpose is to assist parties in understanding the claim and their respective positions in relation to it, to enable parties to take stock of their positions and to negotiate a settlement, or at least narrow the issues, without incurring the costs of court proceedings or using up valuable court time.

It is astounding that a firm of Solicitors are sending a consumer a vague and unevidenced 'Letter before Claim' in complete ignorance of the pre-existing Practice Direction and the new Protocol. Nobody, including your client, is immune from the requirements and obligations of the Practice Direction and now the Protocol.

I require your client to comply with its obligations by sending me the following information/documents:

1. an explanation of the cause of action

2. whether they are pursuing me as driver or keeper

3. whether they are relying on the provisions of Schedule 4 of POFA 2012

4. whether Byelaws are in place at this location, which it appears is under statutory control. Please provide a Copy of the Byelaws, if they exist (whether or not your client contends they might be 'obselete' or inapplicable) and documentary evidence of the steps and communications undertaken as due diligence by your client, in accordance with the IPC Code of Conduct before commencing enforcement, to ensure that their practices are in accordance with the Byelaws or, alternatively, that they operate a scheme that is not prohibited by them.

5. an explanation of how a private firm is operating on land owned by the Canal and River Trust which appears to be 'non-relevant land' which cannot be operated as if it were private land (see Robert Goodwill MP's letter, one with which your client will be familiar)? If an agreement exists with the Trust, what is the date of the agreement and the names of the parties to it? Please provide to me a copy of that contract since your client will rely upon it in any proceedings.

6. an explanation of why signs were initially placed on Council lamp posts, and a copy of the correspondence/email or conversations with the Local Authority which led to those signs being removed.

7. what the details of the claim are; where it is claimed the vehicle was parked, for how long, how the monies being claimed arose and have been calculated and whether the claim is for trespass or alleged contractual breach?

8. provide me a copy of the contract with the landholder (whether or not this is with the Canal and River Trust) under which they assert authority to bring the claim, as required by the IPC code of practice section B, clause 1.1 “establishing yourself as the creditor”

9. provide a plan showing where any signs were displayed, and details of the signs displayed (size of sign, size of font, height at which displayed)

10. provide details of the original charge (PCN and Notice to Keeper), and detail any interest and administrative or other charges added, and evidence that these have in fact been incurred in this case and the breakdown of those costs

11. provide me with evidence of which the claimant wishes to use to disprove the fact the car was parked legally, including photos showing the front, rear and side of the car in line with the requirements of the IPC code of conduct

12. provide a copy of the Information Sheet and the Reply Form.

If your client does not provide me with this information then I put you on notice that I will be relying on the cases ofWebb Resolutions Ltd v Waller Needham & Green[2012] EWHC 3529 (Ch),Daejan Investments Limited v The Park West Club Limited (Part 20) – Buxton Associates[2003] EWHC 2872,Charles Church Developments Ltd v Stent Foundations Limited & Peter Dann Limited[2007] EWHC 855 in asking the court to impose sanctions on your client and to order a stay of the proceedings, pursuant to paragraphs 13 ,15(b) and © and 16 of the Practice Direction, as referred to in paragraph 7.2 of the Protocol.

Until your client has complied with its obligations and provided this information, I am unable to respond properly to the alleged claim and to consider my position in relation to it, and it is entirely premature (and a waste of costs and court time) for your client to issue proceedings. Should your client do so, then I will seek an immediate stay pursuant to paragraph 15(b) of the Practice Direction and an order that this information is provided.

I will also add that your client claims a notice was left on my vehicle at the time of the alleged claim. The first the keeper was aware of it was a letter from your client several months after the alleged claim. Your client claims that a notice was placed on my vehicle yet has failed to provide any evidence to rove this. I cannot be held responsible for items that are allegedly left on my vehicle and that I am subsequently unaware of.

At the time of the alleged claim, a man wearing a uniform of your client and using a vehicle with the livery of your client on it, was seen in the area. When approached by 2 members of the public and asked what he was doing, he replied 'issuing parking tickets'. The two members of the public then advised the man that the signs were illegal and therefore so was what he was doing. The man replied 'don't worry, if you get a ticket just appeal as they always cancel them if you do'. I can provide witness statements to confirm this occurred.

It is therefore reasonable to assume that the man was employed by your client and the principle or promissory estoppel would apply in this case.

I am aware that when a counter-claim was heard in D6GM2199Civil Enforcement Ltd v Mr B,at Bury County Court in May 2017, DJ Osborne found that the £500 sum claimed by the data subject defendant was not unreasonable. He accepted the argument regarding data misuse under the Data Protection Act 1998 (DPA); he accepted the tort of damages and stated that he was disappointed in the claimant bringing an unfounded case. Punitive costs of £405 were granted for unreasonable behaviour, and were paid by your company in addition to the £500 claim.

Further, I would like to draw your Legal Department's attention to a landmark 2017 judgment at the Leeds County Court,3SP00071 – Blamires v LGO.This was a claim for damages including a matter of a breach of the DPA, for which an award of £2,500 was granted as compensation for distress. As is now relatively well known, the DPA’s original drafting appeared to preclude compensation for distress alone, but the Court of Appeal, inVidal Hall & ors v Google[2015] EWCA Civ 311, it was held that this was contrary to the provisions of the Charter of Fundamental Rights of the European Union and that, accordingly, there was a right under the DPA to claim compensation for “pure” distress.

The award in Blamires was of“Vidal Hall”compensation, with the judge saying there was''no doubt in my mind that the data breaches have caused distress to the claimant in their own rights as well as as a result of the consequences that flowed.''The judge awarded a further £2,500 aggravated damages because of the manner in which the Defendant conducted its case, including the fact that, notwithstanding being told by the Claimant that its conduct/data was wrong, it took nearly two years for the Defendant to admit the mistake.

I expect your client to now cancel this 'parking charge' and admit its mistake in attempting to misuse my data, and in trying to mislead me by suggesting that a registered keeper is liable for a non-POFA parking charge 'debt', and that I could be liable for escalated costs/legal fees. As you will be aware (or Wright Hassall can explain to you), the general costs rule in Small Claims is that there is no costs order.

However, in support of my own counter-claim, I must remind you that under CPR Rule 27.14(2)(g):

''costs can be awarded where a party behaves unreasonably''.

I refer your client to paragraph 16 of the Practice Direction – Pre-Action Conduct:
''a party who has not complied with its pre-action obligations can be ordered to pay costs (even if the party has succeeded in its claim/defence) and there is also a power to remit/increase interest.''

I expect to hear from you within 14 days to confirm that the charge is cancelled. Should you fail to cancel this PCN and/or pursue a baseless claim without supplying any evidence of any breach of a relevant contract or relevant obligation, or photographs, or the contract, or your basis for pursuing a registered keeper outwith the POFA 2012, you may consider this adequate notice of my intention to sue Civil Enforcement Ltd, for the significant distress your actions have caused to a vulnerable family.

All letters exchanged will be used in evidence in court.

Coupon-mad

Some changes suggested here:

I will also add that your client [STRIKE]claims[/STRIKE] suggests that a notice was left on my vehicle at the time of the alleged claim, but this is not the case and no proof of that document existence or placement has been provided. [STRIKE]The first the keeper was aware of it was a letter from your client several months after the alleged claim. Your client claims that a notice was placed on my vehicle yet has failed to provide any evidence to rove this. I cannot be held responsible for items that are allegedly left on my vehicle and that I am subsequently unaware of.[/STRIKE]

At the time of the alleged parking event [STRIKE]the alleged claim[/STRIKE], a man wearing a uniform of your client and using a vehicle with the livery of your client on it, was seen in the area. When approached by 2 members of the public and asked what he was doing, he replied 'issuing parking tickets'. The two members of the public then advised the man that the signs were illegal and therefore so was what he was doing. The man replied 'don't worry, if you get a ticket just appeal as they always cancel them if you do'.

It is therefore reasonable to assume that the man was employed by your client and the principle [STRIKE]or[/STRIKE] of promissory estoppel would apply in this case. I can provide witness statements to confirm this occurred. It seems likely that he was taking photographs of blank PCN envelopes and then removing them because no PCNs were seen actually on vehicles that day.

This is conduct is known as 'ghost ticketing' and should you proceed, I will put your client to strict proof regarding the record of this operative and will ask for him to be called as a witness to answer in person for his conduct.

I would remove ALL of this which makes no sense and is about CEL/Wright Hassall:

I am aware that when a counter-claim was heard in D6GM2199Civil Enforcement Ltd v Mr B,at Bury County Court in May 2017, DJ Osborne found that the £500 sum claimed by the data subject defendant was not unreasonable. He accepted the argument regarding data misuse under the Data Protection Act 1998 (DPA); he accepted the tort of damages and stated that he was disappointed in the claimant bringing an unfounded case. Punitive costs of £405 were granted for unreasonable behaviour, and were paid by your company in addition to the £500 claim.

Further, I would like to draw your Legal Department's attention to a landmark 2017 judgment at the Leeds County Court,3SP00071 – Blamires v LGO.This was a claim for damages including a matter of a breach of the DPA, for which an award of £2,500 was granted as compensation for distress. As is now relatively well known, the DPA’s original drafting appeared to preclude compensation for distress alone, but the Court of Appeal, inVidal Hall & ors v Google[2015] EWCA Civ 311, it was held that this was contrary to the provisions of the Charter of Fundamental Rights of the European Union and that, accordingly, there was a right under the DPA to claim compensation for “pure” distress.

The award in Blamires was of“Vidal Hall”compensation, with the judge saying there was''no doubt in my mind that the data breaches have caused distress to the claimant in their own rights as well as as a result of the consequences that flowed.''The judge awarded a further £2,500 aggravated damages because of the manner in which the Defendant conducted its case, including the fact that, notwithstanding being told by the Claimant that its conduct/data was wrong, it took nearly two years for the Defendant to admit the mistake.

I expect your client to now cancel this 'parking charge' and admit its mistake in attempting to misuse my data, and in trying to mislead me by suggesting that a registered keeper is liable for a non-POFA parking charge 'debt', and that I could be liable for escalated costs/legal fees. As you will be aware (or Wright Hassall can explain to you), the general costs rule in Small Claims is that there is no costs order.

However, in support of my own counter-claim, I must remind you that under CPR Rule 27.14(2)(g):

''costs can be awarded where a party behaves unreasonably''.

I refer your client to paragraph 16 of the Practice Direction – Pre-Action Conduct:
''a party who has not complied with its pre-action obligations can be ordered to pay costs (even if the party has succeeded in its claim/defence) and there is also a power to remit/increase interest.''

I expect to hear from you within 14 days to confirm that the charge is cancelled. Should you fail to cancel this PCN and/or pursue a baseless claim without supplying any evidence of any breach of a relevant contract or relevant obligation, or photographs, or the contract, or your basis for pursuing a registered keeper outwith the POFA 2012, you may consider this adequate notice of my intention to sue Civil Enforcement Ltd, for the significant distress your actions have caused to a vulnerable family.