UK Car Park Management try very hard to enable Shedule 4.

bergkamp

Draft response to the LBC below.

XXXXXXXXX
XXXXXXXX
XXXXXXXX


Gladstones Solicitors
The Terrace
High Leigh Park Golf Club
Warrington
Cheshire
WA16 6AA

XX August 2018

Your Ref:XXXXXXXXXX

Dear Sirs,

I am in receipt of your Letter Before Claim, dated XX August 2018, and received on the XX August 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 the requirements of the 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 are familiar with the requirements of the Pre Action Protocol which applies (and your client, as a serial litigator of small claims, should likewise be aware of them). As you (and your client) must know, the Protocol binds 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 Action Protocol.

Nobody, including your client, is immune from the requirements and obligations 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 “establishing yourself as the creditor”
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. a copy of the Notice To Keeper parking charge notice.


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 (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.

As your client is already aware, I was not the driver on the date of the event. The ONLY law that they can rely on to hold the keeper liable is Schedule 4 of the Protection of Freedoms Act 2012.
The Notice To Keeper received has NOT met the conditions, that MUST be met, to enable keeper liability.

Yours faithfully


XXXXXXXXX

Supporting documents;
The following documents are from the IPC Code of Practice that are highlighted in the relevant places regarding keeper liability.

Also enclosed is a copy of Schedule 4 of the Protection of Freedoms Act 2012.
This is the only law that can allow keeper liability when the driver is not known.
As your client has not followed the strict requirements to meet keeper liability under this Act, then the keeper cannot be held liable.

Please don't embarrass yourselves and attempt to quote Elliott vs Loake, as this was a criminal matter with forensic evidence, that has no bearing on this situation. Nor does CPS vs AJH Films which is only applicable in an employee/employer situation.

Coupon-mad

Almost a year after the new PAP, surely this is a little out of date? I would make the reply shorter, remove this bit, which was good in Winter 2017 but less so now, IMHO:

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 the requirements of the 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 are familiar with the requirements of the Pre Action Protocol which applies (and your client, as a serial litigator of small claims, should likewise be aware of them). As you (and your client) must know, the Protocol binds 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 Action Protocol.

Nobody, including your client, is immune from the requirements and obligations the Protocol.

bergkamp

The mail boy at Gladies must be very busy, and not yet got to the response that was sent a month ago to the LBC.
Sent with proof of postage of course.

https://www.dropbox.com/s/9kbo8hikv9imj5j/GLADSTONES_Redacted.jpg?dl=0

Coupon-mad

Email it to Laura or whoever it is we have email addies for, an ask why they've apparently lost your letter down the back of the filing cabinet or under the IPC carpet.

bergkamp

Gladstones have made no attempt to follow the PAP, with no response to the RK's two letters regarding the two LBCs received.

Instead they have sent the RK a claim form.....

https://www.dropbox.com/s/wszmffoi5fvm6vo/REDACTEDCLAIMFORM.pdf?dl=0

bergkamp

Defence draft being worked on....
The POC are even more vague than usual - there is no vrm in it!

https://www.dropbox.com/s/wszmffoi5fvm6vo/REDACTEDCLAIMFORM.pdf?dl=0

DoaM

bergkamp

1st draft....

________________________________________
DEFENCE STATEMENT
________________________________________


1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The Particulars of Claim state that the driver of vehicle registration ( the ' Vehicle ' ) incurred the parking charge(s)... This makes no sense and makes it impossible for the defendant to know if it is their vehicle.

3. Furthermore, the Particulars of Claim state that the Defendant was the registered keeper and/or the driver of the vehicle(s). These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.!

4. If the Particulars of Claim do relate to a vehicle registered to the Defendant, then it is denied that they were the driver on the date of event.

5. The Protection of Freedoms Act 2012 ,Schedule 4 , is the only law that can transfer liability of a Parking Charge Notice to the keeper of a vehicle, if the drivers identity is unknown. UK Car Park Management Ltd have not followed the strict protocols of this Act to enable keeper liability.

6. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

7. !Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner.! The terms on the Claimant's signage are displayed in a font which is too small to be read , and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

8. !The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

9. !In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

I believe the facts contained in this Defence are true.!

Umkomaas

Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.!

I'm no expert on this side of things, and I've no intention of committing any more of my life to researching and attempting to bone up on the legal issues for which a simple private parking forum is increasingly being asked (unreasonably, IMHO) to delver simple solutions - but, hasn't the Practice Direction stuff been superseded by the Pre-Action Protocol for Debt Claims?

If I've got that wrong, clearly my unwillingness to go any further into the legal issues we're being dragged into, are exposed - and I apologise!

bergkamp

I may have used the wrong bargepole quote.... I had a few tabs open!