Another Letter

FTJEB

Good evening,


Using the advice on the NEWBIES thread I am preparing the letter below as a response to the LBC.


The LBC has come directly from VCS.


I would apreciate it if you could confirm that this letter is suitable, or offer any other advice.


Thanks in advance.






Your Ref:xxxxxxxxxxx

Dear Sirs,

I am in receipt of your Letter Before Claim of xxth xxxxxxxx 2018.
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. Since proceedings have not yet been issued, the new protocol clearly applies 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(c)) 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.

Your Legal Department 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 VCS 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 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. 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
5. Is the claim for a contractual breach? If so, what is the date of the agreement? The names of the parties to it and provide to me a copy of that contract.
6. Is the claim for trespass? If so, provide details.
7. Provide me a copy of the contract with the landowner under which they assert authority to bring the claim, as required by the IPC code of practice section B, clause 1.1 !!!8220 ; establishing yourself as the creditor!!!8221;
8. a plan showing where any signs were displayed
9. details of the signs displayed (size of sign, size of font, height at which displayed)
10. Provide details of the original charge, and detail any interest and administrative or other charges added
11. Provide a copy of the Information Sheet and the Reply Form


If VCS does not provide me with all of 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) !!!8211; 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 (c) 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

KeithP

That letter uses the term your client twelve times.

That is not appropriate when you are writing directly to the PPC.

Is this a response to the LBC you received last July, or has something else happened since then?

FTJEB

Thanks for your response. :-)

Based on the advice provided at the time, I sent the letter below in the summer of 2017 in reply to a 'Letter on Intended Court Proceedings'.

They responded a few weeks later with a letter from DRP.

This is the last correspondence from me and since then I have received numerous letter from DRP & Zenith which I have ignored.

I have now received an LBC from VCS and my understanding is that I need to respond, but am unsure how exactly.

Would appreciate pointing in the right direction regarding my response.


Thanks
FTJEB


Re - your Notice of Intended Court Proceedings

This is a formal response to your’ Notice of Intended Court Proceedings’. I remind you of the overriding objective and - if your company really has a 'Legal Department' - then the qualified staff member will recognize that Vehicle Control Services Limited has no cause of action in law, but that I do.

When your company issues a 'parking charge' you do not use Schedule 4 of the POFA 2012, therefore you have no basis whatsoever to write to a registered keeper, except for the single purpose allowed under the DVLA KADOE rules, namely to 'enquire who was driving'. You must not use the data for any other purpose whatsoever, and certainly not to pursue a registered keeper as if the alleged 'debt' was their liability in law.

You have failed to supply any photographs or evidence of the driver, nor have you set out clearly, the basis upon which you are attempting to hold me liable. The charge is disingenuously described in your letter as 'your debt' and you have drawn up a draft claim form in my name, whilst failing to point out that this is/was a matter for a driver alone.

The driver's identity will not be supplied to a company like yours. There is no dispute that the driver was entitled to drive the car and I can confirm that they were. As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4.

Should you seek to proceed with a claim I will apply for it to be struck out, due to CPR Part 3.4:

(a) that Civil Enforcement's statement of case will disclose no reasonable grounds for bringing the claim;
(b) that the statement of case will be an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; and
(c) that there has been a failure to comply with a rule, practice direction or court order.

Breaches of the Pre-action Practice Direction (“the PD”):

Paras 3, 8 and 12 of the PD set out its purpose, which is to primarily to avoid litigation (para 8) by laying down a procedure which allows the parties to:
- understand each other’s positions (para 3)
- make decisions about how to proceed (para 3)
- explore settlement/consider ADR (para 3)
- support the “efficient management” of any proceedings and reduce costs (para 3)
- “stocktake” and review their respective positions after following the PD by exchanging information, to see if proceedings can be avoided and to “at least” narrow the issues (para 12).



Paras 6(a) & (c) oblige a Claimant to enter into a meaningful dialogue with a Defendant at an early stage by imposing specific obligations to:
- explain the claim in a Letter before Claim, and
- provide relevant core documents.

The only 'core document' you have enclosed is a mock-up of a claim form in the name of myself, the registered keeper. This will be drawn to the attention of the presiding Judge at the County Court Business Centre and then at my local Court, should a spurious claim of yours manage to get that far.

Since you have no cause of action against me as registered keeper, should you proceed with a claim I will file a counter-claim for not less than £500 in compensation for distress caused by your unwarranted demands arising from misuse of the data you obtained from the DVLA for one purpose, yet are now processing it for another purpose not covered by the KADOE regulations.

I am aware that when a counter-claim was heard in D6GM2199 Civil 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 behavior, and were paid in addition to the £500 claim.

Further, I would like to draw your Legal Department's attention to a judgment last month 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, in Vidal 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 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 Vehicle Control Services 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 Vehicle Control Services 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 without the POFA 2012, you may consider this adequate notice of my intention to sue Vehicle Control Services Limited, for the significant distress your actions have caused to a vulnerable family.

All letters exchanged will be used in evidence in court.

I reserve the right to include your client (landowner/agent) in any claim made, since that party remains jointly and severally liable for the conduct of its agents on their land.

yours faithfully,

Coupon-mad

(a) that Civil Enforcement's statement of case will disclose no reasonable grounds for bringing the claim;

It's not Civil Enforcement, it's VCS!

The only 'core document' you have enclosed is a mock-up of a claim form in the name of myself, the registered keeper. This will be drawn to the attention of the presiding Judge at the County Court Business Centre and then at my local Court, should a spurious claim of yours manage to get that far.

No they didn't!

The thing to do is read the above letter more closely - it's in plain English (lots of words, but not complicated). And remove and edit things that make no sense. You could have spotted the above two things easily. You know it's VCS in your case and you know they haven't sent you a draft claim form.

The above is not an exhaustive list - and you can write your own version - just draft something asking for photos, evidence of contravention etc and arguing your side of why you are not liable and that there is no lawful 'reasonable assumption' that the keeper was the driver.

nosferatu1001

You need the long form response. You!!!8217;re not far off, just don!!!8217;t use !!!8220;client !!!8220; - that!!!8217;s fir when the lbc is from a solicitor.

brookybond

Good morning,

I have now received a response from VCS who are continuing to pursue the alleged debt aginst the RK:

The main points are:

1) They are relying on Schedule 4 of POFA 2012 to pursue the RK as the driver has not being disclosed

2) Interesting, as an alternative, they are also relying on the Law of Agency, stating that the driver must have had the authority of the RK to drive the vehicle.

3) The claim is for breach of contract not trespass.

4) They state that contract with the driver does not have to be in writing and was created when the vehicle allegedly stopped on private land. They are relying on ParkingEye v Beavis 2015 to support this.

5) VCS will not disclose the contract between themselves & the landowner as they claim that it is commercially sensitive. It has however being disclosed to IPC (surprise, surprise), and will be disclosed to a court.

6) Photographic evidence of the vehicle & signage was supplied.

Finally, VCS have included a reply form with four sections of tick boxes. If i dispute the debt I either have to supply further documents or requet more infoirmation from VCS.

I would appreciate advise on how to respond to this. Court proceedings have not yet being issued, but I suspect could be soon.

Regards

FTJEB

nosferatu1001

1) Did they meet POFA? Only you can know for sure
2) Having permission to drive a vehicle does not mean they have authority to enter into legally binding contracts on behalf of the keeper. VCS of course know this. You require them to detai the evidence they will rely upon to prove the Driver was acting as an Agent of the Keeper. Failure to provide this will mean the cause of disagreement cannot be narrowed.

4) Ask how they are reconciling their permission with teh requirement in the IPC code of practice for a grace period. As they are reliant on Beavis, they will be aware that the CoP is "effectively binding" on the operator, and that the SC stated that compliance with the CoP was necessary to allow the charge as not being a penalty.

5) You require this to narrow the cause of disagreement. They can redact the cmomercially sensitive elements, whcih would only be the fees and charges. A description of their legal authoritryt cannot possibly be commercially sensiti e, as were it to be known publicly it could only improve their position.

6) Explain this? Did they actually supply it with this response? If not, then state you require it, as you do not have it and they cannot assume you did.

You request more info. You can tic kbox D if you want.

Coupon-mad

Interesting, as an alternative, they are also relying on the Law of Agency, stating that the driver must have had the authority of the RK to drive the vehicle.

Not especially interesting - surely you were expecting that, from reading other VCS and Excel threads?

Search the forum for CPS v AJH Films, to save us typing it all out yet again; you really do need to read other threads if you had no idea they would try this drivel.

brookybond

Thanks for both

Regards,

FTJEB

FTJEB

Good afternoon,

I have finally being served with a court claim form, with VCS being the claimant.

I have responded earlier this week by stating that I intend to defend the claim and now I have 14 days to submit a defence. I need to do this by the end of next week due to AL.

Since my last post I have exchanged two letter with VCS asking them to provide the following:

a) Please provide the evidence that VCS will rely upon to prove that the driver was acting as an Agent of the Keeper

b) Please can you outline how VCS are reconciling permission with the requirement of the IPC code of practice for a grace period.

c) I am requesting a copy of the contract between the landowner & VCS again, with any commercially sensitive elements redacted. This should contain your legal authority to bring the claim which cannot be commercially sensitive.

Their response was to proceed to issuing court proceedings.

I would apprecaite help & guidance preparing my defence.

I have researched numerous posts on the newbies thread, but none seem to be similar to my case where all the signage & notices were complied with, and my defence is that I am the keeper but not the driver.

Thanks.