SCS Law letter received regarding outstanding fines. Please help!

bargepole

Doodakoff wrote: »

My first action will be to appeal the tickets.

Appeal to whom? The time for appealing is long gone. You have to focus on the fact that this will most likely go to court, and you need to prepare a defence.

And I wouldn't spend a lot of time on your response to the LBC; chances are they won't even read it.

Doodakoff

To Marktheshark - The solitors have asked me to pay them, not the client. I shall ask them to provide copies of the credit collection licence and proof of claim.

To bargepole - I shall now concentrate on building my defence. Having visited the carpark, the signs are not clear and the general layout is very confusing. There are a number of different retailers and there seems to be 3 operating PPC's. The borders of each operator are not clear within the carpark. The signs themselves are not clear from all spaces and too small to read.

I shall continue to build my defence.

bargepole

Doodakoff wrote: »

To Marktheshark - The solitors have asked me to pay them, not the client. I shall ask them to provide copies of the credit collection licence and proof of claim.

To bargepole - I shall now concentrate on building my defence. Having visited the carpark, the signs are not clear and the general layout is very confusing. There are a number of different retailers and there seems to be 3 operating PPC's. The borders of each operator are not clear within the carpark. The signs themselves are not clear from all spaces and too small to read.

I shall continue to build my defence.

That's a potential winning point right there.

"The Claimant's signage is displayed at the material location along with signage from two other private parking operators, and it is unclear as to which set of signs relate to which section of the car parking area. The signage is, therefore, incapable of creating any contractual liability on the part of the Defendant, as any purported contractual terms are void for uncertainty".

Doodakoff

Hello all,

I have completed my reply to the LBCCC which I shall post below. Any critique would be greatly appreciated.

Dear Sirs,

Re: Debt owed to XXXXXXXX XXXXXXX

References
XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX

I note your letter before claim dated XXXXXX, received XXXXXXX.

I deny that I owe any debt to your client XXXXXXX and I require further information in writing.

The driver is not identified in your letter and your client has failed to meet the requirements of The Protection of Freedoms Act to pursue me as keeper.

You cannot presume that I am in possession of the documents referred to in your letter and I require a copy of the Notice to Driver and Notice to Keeper to inspect so that I can make an informed decision. Please send copies of these and any documents that will be produced in the event of your threatened action, including copies of all photographs taken and evidence of the contract itself (clear evidence of the terms on the signs at the time).

Please confirm that your client’s contract with the land-holder includes specific authority to take legal action and that this will be produced for the court.

Please also provide a copy of the credit collection license and proof of claim such as a signed deed of assignment for the debt.

In order to understand my legal position, I also require the following information:
1) Is your client’s intended action funded on a contractual charge, a breach of contract or trespass?
2) What is the basis of the £160.00 charges?
3) If it is for legal services, has your client already paid it?

When I receive the documents and your explanations I will be in a position to make a more detailed response.

It would be unreasonable to proceed with litigation before you have clarified your client’s course of action.

Yours sincerely,

XXXXX

I have taken advice and not focused too heavily on the reply. I believed the LBC does not comply with the PD and I am not sure if I should include references to this. For example, the LBC states that the matter is not suitable for an ADR, which if I've read correctly, is a breach. I may be wrong however.

I am in the process of building my defence and I am putting all of my focus into this. I have collected photos of the car park, including spaces where signs cannot be seen and the general confusing nature of the car park.

I am also reading into the POFA 2012 which Coupon-mad directed me to, however I am struggling to get my head around it. I know another user has used the POFA 2012 in his defence very recently in reference to NTK so I am attempting to research and learn.

Thank you all very much for your help.

Coupon-mad

Re: Debt owed to XXXXXXXX XXXXXXX

Never call it a debt and not 'owed'! Wrong heading. Just 'Re: Britannia Parking' would do.

Please also provide a copy of the credit collection license and proof of claim such as a signed deed of assignment for the debt.

Not the above, this means nothing, not sure where that came from. SCS are solicitors acting for Britannia (and licence as a noun, has no 's' but that's me in pedant mode!). Remove the entire line, they haven't bought a debt.

When you say 'my defence' you don't mean yours, you mean the registered keeper's defence. In their name.

For example, the LBC states that the matter is not suitable for an ADR, which if I've read correctly, is a breach. I may be wrong however.

Wow, what does it say about ADR?

Doodakoff

Thank you Coupon-mad, I shall make those amendments.

In relation to the ADR, it is the last line of the letter and it states:

Please also note that we do not consider that this matter is suitable for Alternative Dispute Resolution.

Coupon-mad

Please also note that we do not consider that this matter is suitable for Alternative Dispute Resolution.

Pick that point right up and say that, not only is ADR requireed to be offered for a term not less than 12 months (quote the newish ADR rules, Google it) but add that private parking tickets are always suited to the ADR of POPLA.

As this firm is a BPA member you request that this dispute is resolved out of court by POPLA and to minimise costs, the claimant should issue one POPLA code for one of the PCNs and agree to place the other disputed 'charges' on hold for the mere two months this process will take.

Finish by saying that POPLA is very clearly a reasonable resolution out of court and remind them of the 'overriding objective' (Google that too).

Doodakoff

Thank you Coupon-mad for your very helpful reply.

I have amended my previous letter and included your information.

Dear Sirs,

Re: Britannia Parking Group Ltd

References
XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX

I note your letter before claim dated XXXXXX, received XXXXXX.

I deny that I owe any debt to your client, Britannia Parking Group Ltd and I require further information in writing.

The driver is not identified in your letter and your client has failed to meet the requirements of The Protection of Freedoms Act to pursue me as keeper.

You cannot presume that I am in possession of the documents referred to in your letter and I require a copy of the Notice to Driver and Notice to Keeper to inspect so that I can make an informed decision. Please send copies of these and any documents that will be produced in the event of your threatened action, including copies of all photographs taken and evidence of the contract itself (clear evidence of the terms on the signs at the time).

Please confirm that your client’s contract with the land-holder includes specific authority to take legal action and that this will be produced for the court.

In order to understand the legal position, I also require the following information:
1) Is your client’s intended action funded on a contractual charge, a breach of contract or trespass?
2) What is the basis of the £160.00 charges?
3) If it is for legal services, has your client already paid it?

When I receive the documents and your explanations I will be in a position to make a more detailed response.

It would be unreasonable to proceed with litigation before you have clarified your client’s course of action.

It is noted that you do not consider that this matter is suitable for Alternative Dispute Resolution however, not only is an Alternative Dispute Resolution a requirement to be offered, I also wish to draw your attention to the EU ADR Directive of 21 May 2013 and The Alternative Dispute Resolution for Consumer Disputes Regulations 2015.

I wish to add that private parking tickets are always suited to the Alternative Dispute Resolution of Parking on Private Land Appeals. As Britannia Parking is a member of British Parking Association, I request that this dispute is resolved out of court by of Parking on Private Land Appeals, and to minimise costs, the claimant should issue one Parking on Private Land Appeals code for one of the Parking Charge Notices and agree to place the other disputed “charges” on hold whilst this process is completed.

I would remind you that Parking on Private Land Appeals is very clearly a reasonable resolution out of court and would draw your attention to the overriding objective Civil Procedure Rules, as this enables the court to deal with case justly and at proportionate cost, saves expenses and enforces compliance with rules, practise directions and orders.

Yours sincerely,

XXXXXX

In relation to the ADR rules and the Overriding objective -
I believe I have found the ADR section that relates to the 12 months that you referenced and I hope I have highlighted the appropriate sections of the overriding objective. Is it worth stating the schedules word for word? I am not sure if the way I have worded it in my letter is sufficient.
I'm also not sure if I can use abbreviations, such as POPLA for Parking on Private Land Appeals.

Thank you again for your help.

Doodakoff

Apologies for bumping this thread back up. Would anybody be able to advise me on my LBCCC reply please?

Coupon-mad

Yes looks good re ADR. Changes I would suggest would be, call POPLA 'POPLA' and use bargepole's wording to show the Solicitors there is a signage issue at this location which will form the defence.

I reckon make it MUCH longer, make them do some work to read it,make them think twice. I've drafted the following, using bargepole's words and also this is written partly in the style of Loadsofchildren123, who is legally qualified:




Dear Sirs,

Re: Britannia Parking Group Ltd

References
XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX

I note your letter before claim dated XXXXXX, received XXXXXX.

I deny that I owe any debt to your client, Britannia Parking Group Ltd.

I intend to defend any claim and I invite you to advise your client to withdraw at this early stage, before costs are incurred in defending a claim against me as registered keeper. I believe any claim by Britannia Parking Group Ltd is baseless and misconceived and is bound to fail.

Due to local knowledge and having inspected the signs at the location before responding to your letter, I am aware that whilst your client's signage is displayed at the material location, the terms are illegible from a driving seat. Moreover, the unremarkable boards placed sporadically by Britannia Parking Group Ltd compete with signage from two other private parking operators, and it is unclear as to which set of signs relate to which section of the car parking area. The signage is, therefore, incapable of creating any contractual liability on the part of any driver, as any purported contractual terms are void for uncertainty.

Further, your client has adduced no evidence whatsoever as to the identities of the drivers at the material times. There was, of course, no requirement in law for me to respond to the NTKs in question, so any suggestion of failure on my part will be robustly defended. Indeed I view the continued - increasingly threatening - demands as harassment. Had Britannia evidenced the driver(s) in their NTKs, I would have passed the purported 'PCNs' to those drivers, since these are not matters for which a registered keeper can be held liable in law. This position is entirely due to the choice of your client when drawing up a Notice to Keeper (NTK) document which does not in any way attempt to use nor rely upon the rights they might otherwise have been able to claim, under the Protection of Freedoms Act (the POFA) Schedule 4.

You have listed separate 'parking charge notices' in which the facts seem to be fairly identical but all of the NTKs are matters for an identified driver only. I am not liable and cannot be lawfully assumed to have been the driver on each or any occasion. Should you attempt to rely upon the cases of Elliott v Loake (irrelevant criminal case) and or Combined Parking Solutions v AJH Films (irrelevant employee/employer commercial liability issue), you should be aware and fairly warned now, to advise your client that these have never been reported as persuasive or even applicable to any robustly-defended private parking case.

Your client need to be aware of several recent cases where the Judges ruled Elliott v Loake as not relevant or applicable, including Excel v Mr C C8DP37F1 Stockport 31/10/2016, and Excel v Mr B C7DP8F83 at Sheffield 14/12/2016. Further, Excel v Lamoureux at Skipton C3DP56Q5 involved three unreasonable claims in which DJ Skalskyj-Reynolds examined the Parking Operator's NTK and found that it did not comply with the POFA. The claimant was warned not to bring further baseless non-POFA cases to that Court and were forced to discontinue the final vexatious claim. This transcript will be adduced in evidence in my defence:

http://nebula.wsimg.com/ab774da5f40c5d7082d483820e2241cb?AccessKeyId=4CB8F2392A09CF228A46&disposition=0&alloworigin=1

In addition, PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade clarified that with regards to keeper liability, "There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort" (POPLA Annual Report 2015). All AOS members with the British Parking Association (including your client) adhere to POPLA requirements and have been furnished with copies of all POPLA Annual Reports to date so there is no lawful excuse for proceeding against a registered keeper when an operator chooses not to use the POFA.

In each demand, your client has added in costs/administrative charges which are not defined in any contractual document. It is my belief that your client's additional costs are arbitrary and unsubstantiated and are an attempt at double recovery, which cannot be supported on the small claims track. Should your client attempt to rely upon another commonly trotted-out case in these baseless robo-claims for parking operators, namely Chaplair Ltd vs Kumari [2015] this can easily be distinguished from this matter, since that was an irrelevant decision about contractual fees set in lease terms, not 'costs' fabricated by a parking firm who already make a significant profit from paid 'PCNs' as was found in ParkingEye Ltd v Beavis [2015], where I would remind you that the parking firm were only entitled to claim for the £85 charge itself. This sum was held to be more than sufficient to cover the very minimal cost of operating a generic ANPR camera 'enforcement regime' with a few template letters generated automatically.

Since the POFA also states that the only sum that can be claimed from a registered keeper (subject to full compliance with Schedule 4) is the sum stated on the NTK itself - not allowing double recovery - it is clear that it is neither within the intentions of Parliament, nor was it held by the Supreme Court, that any parking firm can add further costs dressed up as 'damages' or loss, over and above the artificially high/already inflated parking charge sum itself.

If your client will not withdraw, then I ask for your response to the matters above and for the following documents:

i. The contract (or chain of contracts) between your client and the site landowner - not a site agent or other non-landholder - giving your client authority to carry out parking management and on what terms;

ii. Any and all photographs taken of my car on the material dates;

iii. A copy of any document your client asserts sets out the terms of the alleged contract between it and a driver (this may be the same as iv below);

iv. A copy of the signs on display and a dated plan of where in the car park they were displayed on those dates;

v. A map showing the boundary within the site, purportedly operated by Britannia Parking Group Ltd., as opposed to the other parking operators also operating at this location.

These are core documents, central to your client’s claim. As such, they are documents which are required to have been produced at an early stage (regardless of whether or not I asked for them) in this pre-action phase, pursuant to paragraph 6 of the Practice Direction – Pre-Action Conduct. I would have expected at the very least, that the contract requested under iii above should have been appended to the Letter Before Claim. I am requesting these documents because I clearly require them in order to be able to prepare a proper defence to any Claim and/or a meaningful POPLA appeal, as is my entitlement. The CPR clearly anticipate an early exchange of information, as per paragraph 6 of the Practice Direction – Pre-Action Conduct, Rule 16 and Practice Direction 16 – any failure to produce the information I have asked for will be nothing other than a deliberate attempt to frustrate my ability to defend the claim and a failure to comply with pre-action obligations.

Any failure by you/your client, to enter into meaningful dialogue in order to avoid unnecessary litigation will mean that you will have denied me the opportunity to “take stock” pursuant to paragraph 12 of the Practice Direction, or to enter into discussions with you pursuant to paragraph 13. I will seek the sanctions provided for by paragraph 15 of the Practice Direction.

It is noted that you have stated inexplicably, that you do not consider that this matter is suitable for Alternative Dispute Resolution (ADR). However, I disagree. Not only is ADR a requirement at this stage under the pre-action protocol but I also wish to draw your attention to the EU ADR Directive of 21 May 2013 and The Alternative Dispute Resolution for Consumer Disputes Regulations 2015.

Private parking tickets issued by AOS members are always suited to the ADR of an independent appeals service, which exists for this exact purpose. As Britannia Parking Group Ltd is a member of British Parking Association, should your client refuse to withdraw I hereby make the reasonable request that this dispute is resolved out of court by of Parking on Private Land Appeals (POPLA) and to minimise costs, the claimant should issue one POPLA code for one of the Parking Charge Notices and agree to place the other disputed “charges” on hold whilst this process is completed.

I would remind you that POPLA is very clearly a reasonable resolution out of court and since on your website you state that: 'the solicitors at SCS Law have vast experience of civil litigation, debt recovery and enforcement, which provides {...} a highly specialised and expert service' it should not even be remotely necessary for me to have to draw your attention to the overriding objective within the Civil Procedure Rules, enabling parties to deal with cases justly and at proportionate cost, saving expense for both sides in resolving a dispute. I protest at your suggestion that you can deny me my right to ADR. POPLA codes can be issued at any time, not just in the first 28 day arbitrary deadline (imposed in the interests of parking operators only, creating a significant imbalance in the rights of consumers). It may interest you to know that POPLA codes have been produced by parking operators many months/years after parking events, by order of the Courts and if your client refuses to withdraw I am formally asking for a POPLA code now and will make the same reasonable request of the CCBC when serving my Directions Questionnaire in due course.

Should your client deny my right to ADR and proceed despite being unable to invoke 'keeper liability' in law, I will consider the action to be indicative of wholly unreasonable and vexatious conduct in litigation. I will draw to the court’s attention to the issues, will claim my costs and will cite unreasonable conduct pursuant to Rule 27.14(2)(g).

Finally, since there is clear evidence that this proposed claim has no prospects of success and if pursued, will have been wrongly brought, I am advised that your client has breached the terms of the Data Protection Act by misusing my data to mislead me about liability.

Your client has accessed my keeper details from the DVLA on more than one occasion and despite having no information as to the driver on each occasion, it continued under an unreasonable and unlawful assumption to pursue me instead, when it had no right to do so. Whilst obtaining DVLA data to enquire who was driving is allowed under the KADOE rules, that data must not be further used for any purpose outside the basis upon which it was provided by the DVLA. Your client has stepped outside the DVLA provision of my data by continuing to cause me significant distress by harassing me, the registered keeper. There can be no doubt whatsoever that a Letter before Claim sent blindly to a person with no legal liability is likely to cause enormous distress and I confirm that this is the case.

I require you and your client to case and desist. To be clear, I decline any invitation to name the driver and this is my lawful right. There the matter must end, because Britannia Parking Group Ltd have no lawful excuse to use my DVLA data beyond the very basic cause, of enquiring as to the driver's identity. A line must now be drawn under this exchange.

Should this matter proceed then I put you on notice that I will make a counterclaim for damages in respect of such Data Protection Act (DPA) breaches, in respect of each and every individual PCN/DVLA data request. I understand that there is case law which supports a damages award of £750 for each breach (so a total of £6,000 in this case as a counterclaim). I believe I am entitled to claim an award of aggravated damages because your client must have been aware of the provisions of, and its duties pursuant to, the DPA and the limitations as to the use of the data they extracted under the KADOE. They are indisputably aware that they were operating a business model which gives them no rights whatsoever to claim against a registered keeper and I require them to withdraw immediately.

I expect a substantive response with the documents and POPLA code (or confirmation of cancellation of all PCNs) within 14 days of this letter.

yours faithfully,


(name and postal address of the registered keeper goes here - not anyone else, not you)