Help for reply to LBC where they've done a drawing!

QuackNuts

I'm struggling to find any information on the McCylmont v Primecourt case but that did lead me to PADI (ex-BMPA) and onto a Section 18 letter. Under my Pre-Action obligations I feel I should be asking for the information I need to form a full defence even though the reply may be received too late. I understand that it might make them tighten up their defence and so it will be carefully worded - do I send it to the Claimant or as as it says on the Claim Form, "address for sending documents" which is their solicitors.
I know this may be a simple question but with all the other cases similar to the priimecourt case - moncreiffe v Jamieson, batchelor and marlow I've got startled rabbit syndrome.

QuackNuts

Also in the Section 18 letter, can I ask if the PPC's client is paying 16.6% of every paid parking notice to the HMRC as VAT? as unfortunately the HMRC website on VATSC57600 is a bit vague, it says about excess charges where a fee has been paid already. In my case, there is no 'charge' for parking unless the land owner sees you and finds out if you are associated with me so it's just 'an excess charge' as the HMRC would put it.

Loadsofchildren123

What's a section 18 letter? Do you mean a Part 18 Request for Information?
Part 18 does not apply in small claims.
However, that doesn't stop you submitting a request, but they will ignore it.


I'd do a list of questions/requests and say that it is being submitted pursuant to the Protocol for Debt Claims, because of their client's abject failure to comply with their pre-action obligations, which are clearly set out in the Protocol and before it the Practice Direction - Pre-Action Conduct. You can say it is curious that their client apparently considers itself immune from the provisions of the Protocol/Practice Direction, when their requirements are clearly intended to bind all parties to litigation, with no exceptions.


I wouldn't bother with things like VAT and tax, your questions should be limited to the claim against you.


you can ask things like:
1. Is the claim being brought under contract law?


2. If so, what is the contract relied upon:
2.1 What are its terms?
2.2 How were the terms communicated to the Defendant?
2.3 Please provide a copy of the contract.
2.4 Is it accepted that there are no signs displayed on the site?
2.5 what is the breach of the contractual terms which forms the basis of the claim?
2.6 how have the damages sought been calculated?


3. Or is the claim being brought in respect of a trespass?


4. If so:
4.1 in what manner is it claimed that the Defendant has trespassed on the land?
4.2 Is the Claimant the landowner? If not, how does the Claimant claim it has locus standi to bring the claim?


5. It is claimed that the Defendant was driving the vehicle. The Claimant is aware that the Defendant is not the registered keeper of the vehicle, but is a Director of x Ltd, which the keeper has informed the Claimant was in possession of the vehicle at the relevant time. What evidence does the Claimant rely on in asserting that the Defendant was the driver the relevant time?


6. The Defendant requires a copy of the contract between the Claimant and the landowner, pursuant to which it claims authority to operate on the land. If the contract does not clearly define the land then a separate plan/map should be provided. Please mark on the plan the precise location of where it is claimed the vehicle was parked.


7. Attached is a plan and a lease between xxx and x Ltd, of which the Defendant is a Director. The plan shows outlined in red the land which is the subject of the lease. Please note clause x of the lease which permits X Ltd to pass over other land in order to reach the land outlined in red. This route has been marked on the plan in blue. The Defendant understands the land outlined in blue (along with other land in the locality) is owned by xxxx, who has engaged you to carry out parking management. Please mark on this plan precisely where it is claimed the vehicle was parked. [it may be that the plan attached to the lease already marks these areas out, in which case I may have the colours wrong - if not clearly defined on a lease plan, make your own plan - I'd suggest you get a plan from Land Registry which will cost you I think £3.]


[8. If the car was parked on your land (what I've described as the red land): As you know, it is the Defendant's position that the car was parked on the land outlined in red on the plan above, and as such the Claimant has no authority to operate on that land. What authority does the Claimant claim to have to operate on the land outlined in red, which is leased to X Ltd?


You say the request is being made because the information required by paragraph 3.1 of the Protocol for Debt Claims has not been complied with, and it should also have been provided under paragraph 5.2 of the Protocol. If you requested any of this before proceedings were issued add the date you made that request and say that proceedings should never have been issued without the information/documents being supplied.


Issue a separate letter in relation to each PCN, not just the one they've issued a claim in relation to. You'll have to adapt each version (eg in the ones where there are no claims refer to the "proposed Defendant" and "proposed Claimant", and instead of saying things like "is the claim brought under....." you say "is it proposed that the claim will be brought....".


You might also add specific questions relating to each PCN - eg questions about why is it claimed that the car was not parked between lines when there are no lines, or when the car was parked on land leased by x Ltd.


This is a link to the way a solicitor would set out a Part 18 Request:
https://www.dropbox.com/s/trb6u5yjtke4ypc/PART%2018%20REQUEST%2027.01.17anonymised.docx?dl=0


But you don't have to set it out in this way, you can simply write it in a letter. I wouldn't necessarily describe it as a Part 18 request, because they'll just say they don't have to answer it in a small claim, I'd focus on the Protocol.


You can put in a preamble in the letter to say that you are having to ask for this information because of the non-compliant LBC and the sparse Particulars of Claim, none of which make out what the claim is actually for or how it will be evidenced, all of which you are entitled to know and understand in order to defend the claim properly, which is your right.


Just be aware though that they will most likely ignore this. You then have to defend as best you can, and refer to the request in your defence and your WS saying how disgraceful it is that they consider themselves immune from rules of the court which bind every litigant and which, in the case of the pre-action obligations, are designed to avoid litigation, or at least narrow the issues with which the court has to deal. In your case because of the lease plus the lack of any signage and therefore the absence of any contract, you can say that had the pre-action phase been properly conducted, it is unlikely the claim would ever have been brought because these matters would all have come to light.

Loadsofchildren123

In relation to the claim: write to the solicitors.


In relation to the other PCNs: if solicitors are communicating with you, write to them. Otherwise write to the PPC.

QuackNuts

Yes, Part 18 sorry.
I shall go through your suggestions a few more times to get things settled in my head. I'm a bit concerned about mentioning the trespass as I fear this may give them another angle of attack. This PPC learnt from their previous mistake of being out of time with NTK.

Or, as we have not changed the way we use the site for the last 30 odd years without force, secrecy or objection (until these parking charges started late last year!) then should I just grow a set and bring it on?

Loadsofchildren123

I think the latter


Even if your landlord didn't have the right of way, it/he granted to you, you've been exercising it long enough to have acquired the right to do so from now on (easement acquired by prescription is the legal lingo).


If your landlord who leases to you a different person/entity from the landowner of the other land, the land you cross to get there?


I think it would be helpful for you to do a drawing/plan.


Is what is going on here that landowner A (the villain of the piece) is claiming that landowner B (your landlord) has no rights of access and therefore that the land you lease is landlocked? So you have no rights to cross his land?


So why on earth are they trying to claim for parking, when you're parking on your leased land (B's land) and exercising rights granted to you to cross A's land? It's bizarre. You're not parking on A's land at all, just driving over it to get to B's land.


I think you should write to them to say they are harassing you and you reserve your rights in relation to a claim for damages and an injunction under the Protection from Harassment Act. Also they are breaching your data protection rights under the DPA because they have obtained keeper's details from DVLA, and from the keepers your details (which they are now processing) when there has been no parking at all!


You could also go to your landlord and ask him for assistance, since he/it granted you the access rights, and you are entitled to Quiet Enjoyment of your premises. Maybe B could take over the fight with A, because after all it's B who says it/he has the rights of access over A's land which have been granted to you.


There is much more behind this than the parking. I think A is gearing up to claiming B's land is landlocked and to hold B to ransom over the access. This is therefore B's argument: either that B has the formal right of way over A's land and can prove it, or B and those who have rights under him/it have exercised the access for over 20 years and have therefore acquired prescriptive rights.


You need to pin the PPC down on precisely what they are saying, and you do this with your request. The easiest way I think is the plan, so that they can demonstrate where they say you were parked. If it's on the blue land (A's land) you can show you weren't parked there, because it's an accessway and you always park on your land (B's land which you lease). Judges like plans.


DE are real sharks. I think they are the original ex clampers - most other PPCs have jumped on the private parking bandwagon because it's a licence to print money, but DE come from the old days of clamping.

nosferatu1001

It wont give them another angle of attack! Only the LANDHOLDER can sue for trespass. Pretty sure they are NOT the landholder!

Bring it on. Its not a massive amount IF you lose, and youve got a pretty good defence it seems.

Loadsofchildren123

This is all quite aside from the fact there are NO SIGNS


How on earth are they going to prove a contract if no signs are there (which they've conceded)?


I wouldn't worry about mentioning trespass. Damages for trespass are minimal anyway, and only the landlord could sue you. You'd then rely on your lease and say this is an argument between A and B not you and A.

Loadsofchildren123

I've misphrased my opinion a bit - I don't think a non owner can acquire prescriptive rights, but the landowner can. So landowner would rely on your continuous use of 20+ years to establish a right exists, if he can't establish a right was formally granted.


A quick land registry search of B's land may answer this. If there are formal rights they are probably on the register. Apply for the Official Copy Register Entries and title plan - I think the OCEs are £6 and the plan is £3. You'll get these costs back if you win. Call Land Registry, they are lovely and helpful.

QuackNuts

An update so far..

The Notice of Allocation went to one local court, they read it (and probably laughed their heads off) and sent it to a different local court, they read it (and probably laughed their heads off) and sent it back to the first court.

Not heard anything for just over 3 weeks now.