SCS for parking with permit!

Potatini

Hi Folks, first thing first - thank you for running this help section, who's being a life saver! This is my case. I hope you can help me through it and kick this "people" away for good!

I received a total of 5 parking fines for being parked in the staff car park at the hospital where I work, despite I have a valid permit disc on the dash and daily scratched scratch card. Together with the parking permit disc, the staff parking area is accessible only by swiping a name badge, which I also own. I used the facilities within standard working hours, although my permit is valid for 24/7. Colleagues told me that they had the same issue and recommended to discard the notices, as "they'll stop writing" ... but I received a standard LBC from SCS Law instead! I've been naive, I know. At least I kept all the "ignored" threatening paperwork.

The LBC (I can't attach a link) seemed to be complete with details of the fines and I think responds to the criteria given by the POFA. at least for what I can understand! I informed myself as much as I could, reading through similar cases on your forum, trying to understand what I could do to defend myself. I'm not very good in this, tho, but - I replied to their LBC as follows:

Dear Sirs, I have received your Letter Before Claim dated 22 February 2018. As requested in your reply form, please receive a detailed reply hereby. I deny any debt to CP Plus Ltd. The driver is not identified in your letter and your client has failed to meet the requirements of The Protection of Freedoms Act, schedule 4 to pursue me as keeper.

As the registered keeper of the vehicle I have not received a Notice to Keeper. As you can see, the law is unequivocal on this matter. A Notice to Keeper must be served where the driver has not been identified. Without this, the creditor does not have the right to recover the charge from the keeper of the vehicle. As there has been no admission regarding who was driving the vehicle and no evidence of this has been provided, the Private Parking Operator has failed to comply with the keeper liability requirements of Schedule 4 of the Protection of Freedoms Act 2012. Paragraph 4 of The Act states that: (1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2)The right under this paragraph applies only if: (a) the conditions specified in paragraphs 5, 6, 11 and 12 (so far as applicable) are met. The condition specified in paragraph 6 is “that the creditor (or a person acting for or on behalf of the creditor): (a) has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8; or (b) has given a notice to keeper in accordance with paragraph 9." Paragraph 9 states this notice to keeper must be given within a "period of 28 days following the period of 28 days beginning with the day after that on which the notice to driver was given" It would be unreasonable of CP Plus to rely on the assumption that the Registered Keeper was the driver (as in Elliot v Loake) which I would like to highlight was a criminal case with ample evidence against the driver.

Your Letter Before Claim refers to "a number of letters" sent to me by your Client - however I am now informing you that I was not in receipt of these items of correspondence and was therefore unable to act upon them at the time. Please provide copies of all documentation and correspondence, along with proof of dates of postage. When these are supplied, please also confirm whether the intended action is founded on a contractual charge, a breach of a contract or trespass.

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. Whilst I await your timely response, I would also like to remind you of the guidance given to operators in POPLA's 2015 Annual Report by Henry Greenslade, Chief Adjudicator in which he reminded them of a keeper's right not to name the driver whilst still not being held liable for an unpaid parking charge under Schedule 4 of POFA. "There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle. There is no 'reasonable presumption' in law that the registered keeper of a vehicle is the driver.

Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988“a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.'' I would like to remind both CP Plus and SCS Law that a PCN with the basic non-statutory wording that your client freely chooses to use, can only hold the driver liable. Therefore, please kindly show me your client's evidence of whom the driver was at each occurrence. 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 cause of action.

I've promptly received their reply, in which they said basically that they are claiming with me as a keeper, attaching their reasons and reiterate that if I don't pay £400, they'll take me to court with no further notice. However, there was no reply about who owns the land and what type of breech are they referring to, points that I'll surely reiterate in my next letter.

Sadly, due to house moving and holidays, I missed the 14 days term to respond to their second letter I know another envelope from SCS has reached my previous address yesterday (maybe calling for court proceedings?) and this is now on my way. If it can be of any use, I could try to call again the hospital, who owns the parking grounds and ask for grace, but I doubt they'll intervene, as they previously stated they "can't do anything to help, once CP is in the way" (Is that true?) when I got in touch beforehand. In addition to that, I'm not employed by the hospital anymore, so I'll probably be ignored.

I'll appeal to the all mighty forum, as this is going beyond my knowledge and all this reading is overwhelming! I'm writing my response, requesting once again proof of their the authority to take legal action and why am I receiving their correspondence, as the parking area can be accessed by an employee with a current swipe card only and there is a parking permit registered with the number plate of the "pirate car".

Should I contest their affirmation that POPLA doesn't apply to my case and request a POPLA code? What else should I add? Can anyone help writing this letter in the most effective way, please? Thanks for your support!

Redx

much too late for popla , there is no way the PPC will give you popla codes now unless a judge ordered them to do so as a method of ADR

your best bet is landowner cancellations, which will be the trust

they are jointly and severally liable for the actions of their contractor, CP , see this document from a few years ago

https://www.gov.uk/government/publications/nhs-patient-visitor-and-staff-car-parking-principles/nhs-patient-visitor-and-staff-car-parking-principles

keep up the LBC replies using post #2 of the NEWBIES FAQ sticky thread

however, if the latest letter is an MCOL from Northampton CCBC , then it will be a live court claim, that same post #2 helps you deal with an MCOL as well as LBC

I suggest you also use the return key more often to space out your paragraphs , like I have done , as your wall of text is difficult to read

Umkomaas

Horrendous wall of text.

Potatini

Sorry for the formatting, have now sorted it so its hopefully easier to follow. I tried using the <code> tags or my reply but that just made the formatting even worse, so I hope the <quote> ones are ok!

I have since received the letter I missed (I cant seem to add attachments yet so it's typed out below)

We write further to our previous Letter Before Claim sent to you dated <date> and subsequent correspondence

As no agreement has been reached between the parties our client CP Plus Ltd has instructed us to issue county court proceedings to recover the unpaid parking charge notice after 14 days from the date of service of this letter

Please treat this letter as the required noted pursuant to paragraph 8.2 of the Pre-Action protocol for Debt Claims

Yours sincerely

Is there any response that can be given to this letter, or is now everything in motion and wait the mentioned 14 days for the MCOL from Northampton CCBC?

Thanks again for the assistance

If there's any tips to make the formatting easier please let me know.

nosferatu1001

Did you look up that section to make sure it meets the requirements ? That would be an obvious step
Another one is that if you still have areas you can narrow, if they haven't sent docs, then of course you respond pointing out their failings 7nder the pap, and state that until they have complied court action would be premature.

Potatini

Thank you for the continued assistance :T

Legal English is confusing to follow, I've looked up section 8.2 for Debt Claims here (sorry cant post links)

justice.gov.uk/courts/procedure-rules/

and section 8.2 reads:

8.2 Where the debtor has responded to the Letter of Claim but agreement has not
been reached, the creditor should give the debtor at least 14 days’ notice of
their intention to start court proceedings, unless there are exceptional
circumstances in which urgent action is required (for example, because the
limitation period is about to expire).

So that seems to just be the same thing as the content of their letter, unless I've read it wrong.

Sorry if this is too many questions, this all seems quite daunting. I think the 3 main points are below - then I can draft another response.

In my initial letter I requested proof of the parking violation, all I received in return was the original letters with no photographic evidence of a parking infraction. Am I within my rights to demand photographic evidence of the infraction, particularly as one of the infractions was "not displaying a permit" when the permit was visible?

Whilst the permit with a permit no & number plate was displayed on the windscreen, so far proceedings have been against me as the keeper, not the driver, so the landowner hasn't disclosed or been asked to identify me as the driver - do I have any recourse there?

Also I requested proof that they had the authority to proceed with civil action, in response to this they only said yes they did, can I also request a copy of the documentation to back this up?

Thanks again

KeithP

You are looking at the wrong document.

The Pre-Action Protocol for Debt Claims that came into force on 1 October 2017 is here:

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

That link is in post #2 of the NEWBIES FAQ sticky thread.

That new protocol talks about 30 days, and also states all the things they need to supply to you.

Coupon-mad

Please read the NEWBIES thread second post (all about claims & defences & what to do when), it's all covered there.

Potatini

Hi again,
I've drafted a reply, after reading through more cases and I'm wondering if you could check it before I send it, please. I feel I'm not making my point loud enough..

Dear Sirs,
Thank you for sending me additional information about this.

I see your reply still contains insufficient detail of the claim and, again, fails to provide any mention of what evidence your client intends to rely on, or enclose copies of such evidence.
In fact, I found no proof of posting of the above mentioned letters. Neither I found photographic evidence of the episodes attached.

This action on the part of your client is a clear breach of its pre-action obligations set out in the Practice Direction - Pre-Action Conduct, with which as solicitors you must surely be familiar (and with which your client, a serial litigator of small claims, must also be familiar). As you (and your client) must know, the Practice Direction 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.

I require your client to comply with its obligations by sending me the following documents:
1. a Clear explanation of the cause of action
2. why they are pursuing me as the keeper
3. whether they are relying on the provisions of Schedule 4 of POFA 2012
4. proof of postage and photographic evidence related to the letters you claim were sent
5. a copy of the contract with the landowner under which they assert authority to bring the claim (which was already requested in the previous correspondence)
6. a copy of any alleged contract with the driver
7. If they have added anything on to the original charge, what that represents and how it has been calculated.

I am clearly entitled to this information under paragraphs 6(a) and 6(c) of the Practice Direction. I also need it in order to comply with my own obligations under paragraph 6(b).

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.

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 also have to remind you again that, outwith the POFA, there is no 'keeper liability', hence I am not liable in law. Your client has no cause of action against me and must take it up with the driver, and should have done so in a timely manner, establishing on the day who that party was, if they felt there was a parking charge due.

Finally, I would appreciate that you reconsider the grounds for this supposed claims.
The registration number of the car you refer to is in fact registered and authorized by the land owner, who issued a legitimate permit for the car to access the staff car park area.
This alone would nullify your claims, so please, cancel the meritless 'charge' you are chasing, to my huge distress.

Kind regards

Is there any necessary editing to be done?
This issue is upsetting me very much and I don't need this in my life now. Please can you help getting out of this?
Thank you!

Loadsofchildren123

You do need to edit this.

You are quoting from a draft that I had a hand in producing. It is based on a pre-October 2017 LBC - ie one sent under the old Practice Direction - Pre-Action Conduct.

On 1 October 2017 a new specific debt claim Protocol came into force, which replaces parts of the old Practice Direction.

Your references to paras 6(1)-(c) are to the old Practice Direction and so those need amending. There are similar obligations contained in the new Protocol so really you just need to change the references.

Loadsofchildren123

Dear Sirs,
Thank you for sending me additional information about this.

Your reply does not take us any further. I am still not in possession of sufficient detail of the claim. Your letter again fails to clarify what evidence your client intends to rely on, nor does it provide copies of such evidence.
COLOR="Red"]In fact, I found no proof of posting of the above mentioned letters. - delete this, there is no obligation on anyone to prove postage[/COLOR.
For example, your client must have photographic evidence, which I am entitled to see.

Your client is in breach of its obligations pursuant to the Protocol for Debt Claims - with which as solicitors you must surely be familiar (and with which your client, a serial litigator of small claims, must also be familiar). As you (and your client) must know, the Protocol binds all potential litigants, whatever the size or type of the claim. No party is immune to its provisions. In fact one might argue that compliance with it is even more important in a small claim against a litigant in person. Its express purpose is to assist parties in understanding the claim and their respective positions in relation to it, to enable them 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. Your client cannot deny me this opportunity.

I require your client to comply with its obligations by sending me the following documents:
1. a clear explanation of the cause of action
2. why it is pursuing me as the keeper
3. whether it is relying on the provisions of Schedule 4 of POFA 2012
4. proof of postage and photographic evidence related to the letters you claim were sent COLOR="Red"]not sure what you mean by photographic evidence, why on earth would they have photographic evidence of postage?????[/COLOR
5. a copy of the contract with the landowner under which it asserts authority to bring the claim (already requested in the previous correspondence, but ignored)
6. a copy of any alleged contract with the driver and how its terms were communicated to the driver (ie a copy of any signage and a plan of where it was displayed in relation to where the car was parked)
7. If your client has added anything on to the original charge, an explanation of what that represents and how it has been calculated.
8. Photographic evidence of the parking on which the claim is based

I am clearly entitled to this information under paragraphs [xxxx please look up the Protocol and insert the relevant para numbers, I think it is para 7] of the Protocol. I require it to deal with my own obligations to respond to the alleged claim under paragraph [insert relevant para number of Protocol]. None of this information will be difficult for your client to provide - it is obliged by its membership of COLOR="Red"]BPA/IPC - delete as appropriate[/COLOR to make and keep such records.

If your client does not provide me with this information then paragraphs 13-16 of the Practice Direction - Pre-Action Conduct (which continue to apply, as set out in the Protocol) are applicable and 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 (paragraphs 13 ,15(b) and (c) and 16 of the Practice Direction).

Unless your client complies with its obligations and provides this information, I am unable to respond properly to the alleged claim or to consider my position in relation to it, as I am entitled to do, and as I am obliged to do pursuant to the Protocol. Until then, 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.

The claim has no merit whatsoever, for two reasons:

1. Outwith POFA, there is no 'keeper liability', hence I cannot be held liable for any parking charge. Your client has no cause of action against me and must take it up with the driver, and should have done so in a timely manner, establishing on the day who that party was, if they felt there was a parking charge due.

2. In any event, the driver was authorised to park by the landowner - the car's VRN is in fact registered with the land owner, who has issued a legitimate permit for the car to access and park in the staff car park area. This alone nullifies any claim. Your client should already know this, but could easily check the position with the landowner. I expect it to do so now, and to cease writing to me requiring me to pay a "charge" which I am not obliged to pay.

The continual letters requiring me to pay monies for which I am not liable are causing me ongoing distress and inconvenience and I reserve all my rights in respect of a counterclaim for harassment and/or breaches of my data protection rights.

Should your client proceed, I put you on notice that, having spelled out to it that the claim has no merit, I will seek full indemnity costs pursuant to Rule 27.14(2)(g) on the basis that your client should, and did, know that the claim was entirely baseless.