Fine in Own Space

creative-2008

@Coupon-Mad

I've got so much time and respect for your cynicism. Somewhat fueled by the fact that this ticket was issued at 5:45am on the day the parking scheme went live... and I've seen them once since.

You're right, someone parking in our bay does have an annoying knock on effect... where we leave ourselves liable to being fined for having to park in someone else's bay.

They're also proving to be somewhat ineffective in deterring people from using our space.

Coupon-mad

They're also proving to be somewhat ineffective in deterring people from using our space.

That's because 'parking management' is not their raison d'etre! Wise up!

Did you see the other links I just edited into my reply above, to make you learn more about the vicious fox your MA has allowed in the hen coop?

ALSO, if you 'agree' and comply, and display a permit, then get a PCN, guess what part of PCM's argument will be, when they sue you, and your neighbours, your friends, all visitors? (a court claim is inevitable, as there is NO APPEAL with PCM, that is ever worth trying).

Yep, you will have walked into the trap of being held to have AGREED to display a permit and thereby agreed and accepted the scheme...

Opt out of the permit scheme, remove your bay from PCM's authorised route, and you have no such disadvantage, and can sue PCM if they step near it, like in Roger Davey v UKPC.

I would:

- get a dashcam than runs as soon as movement by the car is detected, and

- opt out of this as soon as you possibly can, or

- move house (not joking).

This is seriously bad for your wealth, an utter scam.

[Deleted User]

The two ideas do conflict.


Coupon-mad makes some valid points. For example, he/she makes a good point about permits. She is absolutely right in saying (and I am paraphrasing) that, if you mention that the parking permits were late, it is tantamount to admitting that you were obliged to display a permit. The parking operator would use that against you later. So, our differences are more about tactics than principles.


Your job is to use The Pre-Action Protocol for Debt Claims to your advantage.


If the parking operator is not operating in accordance with your lease, it has no right to be using your parking space. So, it needs to make the case that it is operating in accordance with your lease. Let the parking operator try to make that case in its reply without putting any words into its mouth. Put another way, let the parking contractor hang itself - you do not need to help it.


When the parking operator issues a formal claim, you will then need to provide your defence which will rebut everything that the parking operator says (in response to your reply to the letter of claim) and make some other points too.


In addition, of course, if the parking operator had acted with due diligence before using your parking space for the purpose of its business, it would know what is in your lease because it would have already researched whether there were any pre-existing rights relating to parking.


That is why my draft says:-


"if you have applied due diligence, you will know that my parking on the land is governed by a lease which is of paramount importance and has primacy over any contract made by any of its parties with a stranger (such as your client) to the lease..."


and then carries on in that vein.

[Deleted User]

Below is a draft reply to the letter of claim. Obviously, if you require any clarification of what it says or it why it says it, please do not hesitate to ask.


Take the opportunity given to you by the Pre-Action Protocol for Debt Claims to ask for information and documents only. As I mentioned previously, do not volunteer any information at this stage. Save anything that you might like to add for what comes later, i.e. your defence and your witness statement.


If you have not read the Pre-Action Protocol for Debt Claims from beginning to end, do so. You can google it and click on the justice.gov.uk entry to access it. Section 3 INITIAL INFORMATION TO BE PROVIDED BY THE CREDITOR lists what the letter of claim should contain. You need to identify the information and documents missing from the letter of claim so that you can add something into <list here everything which you have found to be missing>.


Do remember that, when sending letters to parking companies and their solicitors, you should use first-class mail, hand over the envelope at a Post Office counter, and request a free certificate of posting.


Dear <salutation>,


Thank you for your letter of claim reference <their ref> dated <date of letter of claim>.


This letter serves two purposes: it is a formal response to the letter of claim; and it is a complaint about your behaviour not only by failing to provide a letter of claim which complies with the Pre-Action Protocol for Debt Claims.


Information and documents that should have been provided (but which you have failed to provide) in accordance with the Pre-Action Protocol for Debt Claims are as follows:-


< list here everything which you have found to be missing>


I shall be grateful if you will explain why you have failed to provide the documents and information mentioned above and, of course, provide them now.


I shall also be grateful if you will explain why you failed to “enclose a copy of the Information Sheet and the Reply Form at Annex 1 to this Protocol” as required in paragraph 3.1(c). <editing will be required if they have provided either of those.>


If you had supplied the requisite reply form, I would have ticked Box D and I would have stated that I still dispute the debt because, despite my previous representations, I have not received an adequate explanation as to why your client believes it has a right to any parking charge from me. In addition, I would have ticked Box I and would have stated that I need more documents or information in order to assess the validity or otherwise of your client’s claim.


The Pre-Action Protocol for Debt Claims does, of course, provide this further opportunity to narrow the issues between your client and myself following the issue of the letter of claim. Accordingly, I take that opportunity by requesting now the documents and information described below:-


I shall also be grateful if you will explain why you failed to send me “a copy of the Information Sheet and the Reply Form at Annex 1 to this Protocol” as required in paragraph 3.1(c).


If you had supplied the requisite reply form, I would have ticked Box D and I would have stated that I still dispute the debt because, despite my previous representations, I have not received an adequate explanation as to why your client believes it has a right to any parking charge from me. In addition, I would have ticked Box I and would have stated that I need more documents or information in order to assess the validity or otherwise of your client’s claim.


The Pre-Action Protocol for Debt Claims does, of course, provide this further opportunity to narrow the issues between your client and myself following the issue of the letter of claim. Accordingly, I take that opportunity by requesting now the documents and information described below:-


1. evidence of ownership of the land;


2. the parking contract between your client and the owner or occupier of the land purporting to grant the right to your client to charge for parking on the land;


3. if the land is owned and/or occupied by a company and the parking contract has not been signed by a director of the company (readily identifiable as such by reference to the company’s records at Companies House), corroborative evidence from a director of the company (who is readily identifiable as such by reference to the company’s records at Companies House) that the signatory has been authorised to enter into the parking contract on behalf of the owner or occupier of the land;


4. if the land is owned and/or occupied by a company, corroborative evidence from a director of the company (who is readily identifiable as such by reference to the company’s records at Companies House) that the site plan is a true and accurate representation of the land which your client purports is the subject of the parking contract;


5. the accredited trade association’s code of practice to which your client claims to adhere;


6. a copy of the site plan provided by your client to its accredited trade association;


7. a copy of the written contract for the alleged debt;


8. notes giving details of the due diligence process undertaken by your client to ensure that not only the contract between your client and its principal but also the purported contract between your client and the driver met the “Implied term about care and skill” requirement contained in the Supply of Goods and Services Act 1982 and the “Service to be performed with reasonable care and skill” requirement contained in the Consumer Rights Act 2015.


9. if your client had applied due diligence, you will know that my parking on the land is governed by a lease which is of paramount importance and has primacy over any contract made by any of its parties with a stranger (such as your client) to the lease;


10. if your client believes that my lease contains express provision to allow your client to operate a parking scheme on the land, a note of the specific clauses in the lease applicable to this situation;


11. if your client believes that any rules or regulations have been made in accordance with my lease’s provisions to allow your clientto operate a parking scheme on the allocated parking space:-


a. a copy of those rules or regulations duly signed, etc. by the person(s) who made them; and


b. a note of the specific clause(s) in the lease in accordance with which those rules or regulations were made;


12. as my lease granted a right to park on the land to me as the lessee, a copy of the instrument which either transferred those rights from me to the your client or transferred a share of those rights from me to the your client;


13. if your client believes that my lease’s terms permit third parties, e.g. your client, to enforce the lease’s terms in accordance with the Contracts (Rights of Third Parties) Act 1999, a note of the specific clause(s) in the lease applicable to this situation;


14. if your client does not believe that my lease’s terms permit third parties, e.g. your client, to enforce the lease’s terms in accordance with the Contracts (Rights of Third Parties) Act 1999, a note explaining how your client has concluded that the it has acquired such a right;


15. if the your client’s parking scheme has not been introduced in accordance with my lease’s provisions, a note explaining how your client has concluded that its parking contract with the owner or occupier of the land and the your client’s alleged parking contract(s) with driver(s) parking on the land have acquired primacy of contract over my lease;


16. a note giving your client's explanation as to how the current ticketing and charging regime accords with the legal principle of non-derogation from grant implied in all leases;


17. a note giving your client's explanation as to how the current parking regime with its exorbitant parking charges and threats of court action against lessees using their own allocated parking spaces accords with the legal principle of quiet enjoyment implied in all leases;


18. a transcript of any previous judgement or judgments in any case or cases involving the same land and your client;


19. any other information and documents on which the Company would rely in court in support of its belief that the current parking regime is valid.


As you are no doubt aware, paragraph 5 of the Protocol reads as follows:-


5 DISCLOSURE OF DOCUMENTS


5.1 Early disclosure of documents and relevant information can help to clarify or resolve any issues in dispute. Where any aspect of the debt is disputed (including the amount, interest, charges, time for payment, or the creditor’s compliance with relevant statutes and regulations), the parties should exchange information and disclose documents sufficient to enable them to understand each other’s position.


5.2 If the debtor requests a document or information, the creditor must –


(a) provide the document or information; or


(b) explain why the document or information is unavailable,


within 30 days of receipt of the request.


Naturally, I fully expect your client (or your firm on its behalf) to meet the requirements mentioned paragraph 5.2 above.


I do, therefore. look forward to receiving either the documents and information which I have requested or your explanation why they are unavailable within the deadline set by the Protocol.


Yours…

creative-2008

Thanks again @Eljayjay2

I've read the info on the justice.gov.uk through twice, and it makes a lot of sense. I've almost finished editing the letter, and will post a redacted version tonight.

That's helpful to know about posting, I was going to go to the trouble of sending it recorded, but I'll just get the receipt of posting.

Would I be right in thinking that they have to provide the information in section 3 before they can proceed to court?

Would you be hopeful that they will back down when they receive this letter? It seems unfeasible to imagine that they will be able to provide all of the information that I am going to request. I guess what I am wondering is can they just ignore my request and continue forward legally?

creative-2008

Dear Sirs,

Thank you for your letter of claim reference xxxxxx dated xxxxxxx. The address listed above should be used for all future correspondence.

This letter serves two purposes: it is a formal response to the letter of claim; and it is a complaint about your behaviour not only by failing to provide a letter of claim which complies with the Pre-Action Protocol for Debt Claims.

Information and documents that should have been provided (but which you have failed to provide) in accordance with the Pre-Action Protocol for Debt Claims are as follows:-

• whether interest or other charges are continuing;
• the date of the agreement, the parties to it and the fact that a copy of the written agreement can be requested from the creditor;
• the address to which the completed Reply Form should be sent;
• an up-to-date statement of account for the debt, which should include details of any interest and administrative or other charges added;

I shall be grateful if you will explain why you have failed to provide the documents and information mentioned above and, of course, provide them now.

I shall also be grateful if you will explain why you failed to “enclose a copy of the Information Sheet and the Reply Form at Annex 1 to this Protocol” as required in paragraph 3.1(c).

If you had supplied the requisite reply form, I would have ticked Box D and I would have stated that I dispute the debt because I have not received an adequate explanation as to why your client believes it has a right to any parking charge from me. In addition, I would have ticked Box I and would have stated that I need more documents or information in order to assess the validity or otherwise of your client’s claim.

The Pre-Action Protocol for Debt Claims does, of course, provide this further opportunity to narrow the issues between your client and myself following the issue of the letter of claim. Accordingly, I take that opportunity by requesting now the documents and information described below:-

The Pre-Action Protocol for Debt Claims does, of course, provide this further opportunity to narrow the issues between your client and myself following the issue of the letter of claim. Accordingly, I take that opportunity by requesting now the documents and information described below:-


1. evidence of ownership of the land;

2. the parking contract between your client and the owner or occupier of the land purporting to grant the right to your client to charge for parking on the land;

3. if the land is owned and/or occupied by a company and the parking contract has not been signed by a director of the company (readily identifiable as such by reference to the company’s records at Companies House), corroborative evidence from a director of the company (who is readily identifiable as such by reference to the company’s records at Companies House) that the signatory has been authorised to enter into the parking contract on behalf of the owner or occupier of the land;

4. if the land is owned and/or occupied by a company, corroborative evidence from a director of the company (who is readily identifiable as such by reference to the company’s records at Companies House) that the site plan is a true and accurate representation of the land which your client purports is the subject of the parking contract;

5. the accredited trade association’s code of practice to which your client claims to adhere;

6. a copy of the site plan provided by your client to its accredited trade association;

7. a copy of the written contract for the alleged debt;

8. notes giving details of the due diligence process undertaken by your client to ensure that not only the contract between your client and its principal but also the purported contract between your client and the driver met the “Implied term about care and skill” requirement contained in the Supply of Goods and Services Act 1982 and the “Service to be performed with reasonable care and skill” requirement contained in the Consumer Rights Act 2015.

9. if you have applied due diligence, you will know that my parking on the land is governed by a lease which is of paramount importance and has primacy over any contract made by any of its parties with a stranger (such as your client) to the lease;

10. if your client believes that my lease contains express provision to allow your client to operate a parking scheme on the land, a note of the specific clauses in the lease applicable to this situation;

11. if your client believes that any rules or regulations have been made in accordance with my lease’s provisions to allow your clientto operate a parking scheme on the allocated parking space:-

a. a copy of those rules or regulations duly signed, etc. by the person(s) who made them; and

b. a note of the specific clause(s) in the lease in accordance with which those rules or regulations were made;

12. as my lease granted a right to park on the land to me as the lessee, a copy of the instrument which either transferred those rights from me to the your client or transferred a share of those rights from me to the your client;

13. if your client believes that my lease’s terms permit third parties, e.g. your client, to enforce the lease’s terms in accordance with the Contracts (Rights of Third Parties) Act 1999, a note of the specific clause(s) in the lease applicable to this situation;

14. if your client does not believe that my lease’s terms permit third parties, e.g. your client, to enforce the lease’s terms in accordance with the Contracts (Rights of Third Parties) Act 1999, a note explaining how your client has concluded that the it has acquired such a right;

15. if the your client’s parking scheme has not been introduced in accordance with my lease’s provisions, a note explaining how your client has concluded that its parking contract with the owner or occupier of the land and the your client’s alleged parking contract(s) with driver(s) parking on the land have acquired primacy of contract over my lease;

16. a note giving the Company’s explanation as to how the current ticketing and charging regime accords with the legal principle of non-derogation from grant implied in all leases;

17. a note giving the Company’s explanation as to how the current parking regime with its exorbitant parking charges and threats of court action against lessees using their own allocated parking spaces accords with the legal principle of quiet enjoyment implied in all leases;

18. a transcript of any previous judgement or judgments in any case or cases involving the same land and your client;

19. any other information and documents on which the Company would rely in court in support of its belief that the current parking regime is valid.

As you are no doubt aware, paragraph 5 of the Protocol reads as follows:-

5 DISCLOSURE OF DOCUMENTS

5.1 Early disclosure of documents and relevant information can help to clarify or resolve any issues in dispute. Where any aspect of the debt is disputed (including the amount, interest, charges, time for payment, or the creditor’s compliance with relevant statutes and regulations), the parties should exchange information and disclose documents sufficient to enable them to understand each other’s position.

5.2 If the debtor requests a document or information, the creditor must –

(a) provide the document or information; or

(b) explain why the document or information is unavailable,

within 30 days of receipt of the request.

Naturally, I fully expect your client (or your firm on its behalf) to meet the requirements mentioned paragraph 5.2 above.

I do, therefore. look forward to receiving either the documents and information which I have requested or your explanation why they are unavailable within the deadline set by the Protocol.


Yours faithfully,

[Deleted User]

Personally, I like that letter.


In the second paragraph "not only" should be deleted. As that was my fault, please accept my apology.


You are a reasonable individual and, as such, you expect others to be reasonable too. The problem is that the world of parking is full of folk who are not reasonable. That being so, although tey should provide the information and documents requested by you, do not count on it.

Parking operators and their solicitors are not concerned with legal niceties. They are simply concerned with getting their victims to crack and pay them money. In your case, I suspect that a formal claim will be made against you and that, if they have any sense, they will discontinue it as near to the hearing as possible. As they would have deferred payment of the court fee, abusing the court system in this way would have cost them nothing.

What you have to do is hope for the best but prepare for the worst. My draft of your reply to the letter of claim helps that preparation.

Unless your case is truly exceptional, they will not be able to provide all the information and documents requested in your reply to the letter of claim. So, I suspect they will do one of two things: either they will make a half-baked attempt at trying to provide the information and documents (in which case you will go back to them and, with my help, ask where is this information and where is that document?); or they will send you no response and simply proceed with a formal claim against you.

In the event of receiving a formal claim, you will, with my help, turn the reply to the letter of claim into your defence and, later, into your witness statement. Your witness statement will note that, in accordance with the Protocol, you asked for information and documents, but that, in defiance of the Protocol, they failed to provide what was required.

When you submit your defence, you will need to make a counterclaim. By doing so, the case will have to be heard even if they discontinue their claim. Believe it or not, you need the case to be heard because it is the only way for you to achieve closure. You need to have your day in court and beat them by successfully defending the claim to prevent them having another go at you in the future - google res judicata. Residential parking claims are usually very easily defended.

Have no fears about going to court. It is not a criminal case where you stand the chance of going down for life (provided, of course, you do not seek closure by anything too extreme). It is merely the pretty informal small claims track of the civil county court system where a judge will settle the argument in, I firmly believe, your favour. It is worth the experience because you will never fear having to go through it again in the future.

creative-2008

Thanks for the detailed reply. At the minute everything is in my partner's name as she is the registered keeper. So the letter I've written is in her name and signed by her also.

If this were to proceed any further, there just isn't a chance she would go to court. Is it better to put this in my name now? Or is that suggesting that I was the driver.

[Deleted User]

Paying will not stop it happening again in the future.

In addition, when you win, you will be able to claim your travel costs and up to (I think it is) £95 for lost pay.

You mentioned in your first post that the parking operator has been using your parking space for the purposes of its business for 14 months. As that’s about 420 days, your counterclaim would be for 420 times the cost of a day’s parking in your nearest car park available to the public. If that is, say, £4, the counterclaim would be £1,680.

As this is a residential case, where POFA 2012 is pretty much an irrelevance, do not be shy about who the driver was. [See next post.]

[Deleted User]

I am presuming that the driver is a joint leaseholder.


If it is decided to out the driver, change the first paragraph to read:-


Thank you for your letter of claim reference xxxxxx dated xxxxxxx addressed to xxxxxxxxx. As I (<full name> of <full address>) was the driver of the vehicle when it was parked at <development> on <date parked>, I am replying to your letter of claim and you should send all future correspondence regarding this matter to me.