Hospital BoCN, assumption of driver and threaten to take to court

Baile

Hi, I have received a number of threatening letters from Trethowans LLP acting on behalf of Bolton Hospital NHS Trust.
It would be great if I could get some advice how to reply.

It started what looks like a letter before claim in October

'We are instructed by Bolton NHS Foundation Trust who manage the above car park. We are advised by our client that their car parking attendant observed a vehicle parked at the above location on the specified date and that the vehicle, which is registered in your name, did not adhere to the parking regulations as detailed o the notice boards. As a result, a Breach of Contract Notice was issued as detailed above to the driver, which remains unpaid.
The letter is being sent in accordance to the Pre-Action Protocol for Debt Claims (the Protocol_ contained in the Civil Procedure Rules. In particular we refer you to paragraph 7 of the Protocol regarding court's powers to impose sanctions for failing to comply with the provision of the Protocol.

We are now instructed to recover the full outstanding amount, as the 14 days period since the date the Notice was issued for appealing and/or paying the reduced sum of 20 has now passed. Accordingly, if the full amount of 50 is not received within 30 days form the date of this letter then our client's instructions to issue court proceedings for the recovery of that amount plus Court costs and interest may be taken.

The above debt arises from the written agreement which is the parking regulation as detailed on the notice boards and the date of agreement is the date the notice was issued. The parties to the agreement are you and our client and if you require a copy of the agreement please request this using the attached Reply Form within 30 days from the date of this letter.

As our client is unaware of the name and current address of the driver we are writing to you as the keeper and your details have been supplied on this basis. You have the choice to either pay the amount outstanding or if it is your contention that you were not the driver at the time of the offence, please provide us with the name and current address of the driver whereupon we will transfer liability. Alternatively if you would like to discuss a repayment arrangement, have a dispute or compliant or want complete the attached Reply Form please contact us in writing at the address detailed above within 30 day period. '

I've received 3 templated letter with reference to 3 BCNs claims. I have not received any NOK and the case is certainly non PoFA compliant.



I replied to their letter:
'I refer to your template letter dated ???.

I, as the registered keeper of the vehicle, deny that I owe any debt to your client, Bolton NHS Foundation Trust. I deny any liability or contractual agreement. There will be no admissions as to who was driving and no assumptions can be drawn. As you are undoubtedly aware, your client is not even a BPA Approved Operators unlike for example, Leeds Teaching Hospitals NHS Trust.

I intend to defend any claim and I invite you to advise your client to withdraw at this early stage, before costs are incurred in defending a claim against me as registered keeper. I believe any claim by Bolton NHS Foundation Trust is baseless and misconceived and is bound to fail.

Further, there is clear evidence that this proposed claim has no prospects of success and if pursued, will have been wrongly brought, I am advised that your client has breached the terms of the Data Protection Act 1998 (the DPA) by misusing my data to mislead me about liability.

There can be no doubt whatsoever that a Letter before Claim sent blindly to a person with no legal liability is likely to cause enormous distress and I confirm that this is the case. Your unreasonable and unlawful demand for payment is causing me significant distress and anxiety.

I require you and your client to cease and desist. To be clear, I decline any invitation to name the driver and this is my lawful right. There the matter must end, because Bolton NHS Foundation Trust have no lawful excuse to use my DVLA data beyond the very basic cause, of enquiring as to the driver's identity. A line must now be drawn under this exchange, apace with the breach of the PoFA.

Should this matter proceed then I put you on notice that I will make a counterclaim for all damages suffered including but not limited to Data Protection Act (DPA) breaches and I expressly reserve my right to claim for aggravated damages. I also demand that your client immediately cease and desist from processing my personal data, except to inform me that you have complied with this demand.

I would advise you to get your house in order before threating legal proceedings, the costs of which would grossly exceeds any damage which could hope to be recovered. I reserve my rights to claim my costs of defending this claim against your client on an indemnity basis should you proceed frivolously going forward.'



Now they have replied to me:

Bolton NHS Trust
Amount outstanding ???

We write further toy our letters of ???
For ease of reference, all three breach of contracts notices have now been added to one file. Please therefore take note of our reference number for further correspondence.

Our Client's claim is that the driver of the vehicle entered into a contract with them on the dates in questions. The vehicle was parked in a manner which gave rise to a breach of contract, which resulted in BCNs being issued.
Given our client was unable to identify the driver at the time of the breach and given the contact details of the driver were not provided to our client before the matter was referred to us, a request was filed wit the DVLA for the contact details of the register keeper. Our client's basis for this request is that, without evidence of the contrary, on the balance of probabilities the registered keeper was the driver on the relevant dates.

Your denial that you were the driver of the vehicle on the relevant dates is noted, however, given your refusal to provide the contact details of the purported driver out client is confident that it will satisfy the court on the balance f probabilities that you were indeed the driver and thus entered into a contract with our client.

For the avoidance of doubt, our client's claim is not being brought pursuant to the PoFA, but rather on contractual principles. For the reason and the reasons given above, it is denied that our client is in breach of the Act or any data protection legislation, as claimed or at all.

As to your request that our client cease and desist from processing your personal data, we understand that our Privacy Officer has already responded to you by way of letter dated ???

We trust the above clarifies our client's position and we invite you to remit to us the sum of ??? within 30 days of this letter. Should you fail to do so our client reserves the right to take issue court proceedings against you without further notice.

Should further action be necessary, our client will seek to claim interest and costs against you, meaning the sums for which you will be liable will increase. Any judgment entered against you is also likely to have an adverse impact on your credit rating.

We trust, however, that further action will not be necessary and we lock forward to receiving your payment.
We recommend that you seek independent legal advice in this matter.'



I am puzzled as to what is my position.
The contract is between the driver and the landowner.
Are they misusing my data to contact me as the registered keeper?
In essence I have not received any revised letter before claim, what about the threat that they can take it to court without further notice.
The whole case is not PoFA compliant to pursue keeper liability, which they say they are not pursuant to.
Any advice on what I should do now?

Redx

no they are not misuing your data , they have reasonable cause to contact you as keeper of the offending vehicle and can try to seek a judgment against you in the county court


to comply with the PaP they should have given you 30 days notice and included some financial forms , have they done both of these ?
if they have, then its an LBC and after 30 days they can and probably will issue a court claim via the Salford handling centre


POFA2012 liability will form a part of your legal defence



if it is an LBC, you should reply and deny the alleged debt

Baile

They send me three separate letters making reference to the Protocol, attached the reply form and some financial form, which are the first letters I have received. I replied to them with the letter above making reference to each.
This is their reply letter I just receive and it has not attached any form nor making reference to the protocol

Redx

its a follow up to their LBC that they clearly sent you earlier, the one with 30 days notice and the financial forms


it is likely that you will receive a claim form from the Salford CCMCC in due course , at which point you are embroiled in a court case at your local county court

Baile

Thank you! Should I reply to this letter? And how best should I put my argument?

Fruitcake

Baile wrote: »

Thank you! Should I reply to this letter? And how best should I put my argument?

Reply to each and every letter.

Point out that they can't have their cake and eat it. They cannot pursue the keeper yet say they are not relying on the PoFA 2012.
Assuming that the keeper was the driver is unreasonable as evidenced by numerous other cases where this has been rubbished by numerous judges.

Here is one example of this.

http://parking-prankster.blogspot.com/2017/01/skipton-judge-rubbishes-elliot-v-loake.html

… and another where the judge said the claimant shouldn't turn up if they didn't know the identity of the driver.

http://parking-prankster.blogspot.com/2017/07/excel-lose-in-count-witness-irrelevant.html

Finally on to POFA. The judge noted that he is unsure why Excel choose to disregard POFA when bringing these claims. There is no basis to assume that the registered keeper is the driver and Excel should not turn up to court without evidence of who was driving the vehicle unless they wanted to make life difficult for themselves.

Redx

as above, take apart their keeper liability declarations and if you were not the driver, say so, in no uncertain terms

it is their job to prove their case, including POFA2012 liability (if they are using it)

if they are not using it, then unless they can use something else to prove liability then they will fail

send them an SAR wanting copies of the NTK,s and paperwork, docs , landowner contracts , pictures , signage , all their evidence etc

also check your V5C has the correct details on it, your current name and address etc, check it did at the time of these pcn,s as well, seeing as you are disputing receiving any NTK,s etc

ensure you have all your ducks in a row , before the court claim happens

Coupon-mad

Our client's basis for this request is that, without evidence of the contrary, on the balance of probabilities the registered keeper was the driver on the relevant dates.

LOL @ Trethowans' desperation.

Did you say they are shaping up for 3 separate claims?

You can't let them do that, it's a lot more work for you, more than one hearing and potentially triple costs if you lost. If so, write and insist there will be a gross abuse of process if they file 3 claims for the same issue, and they must merge the PCNs and serve one claim which you will robustly defend.

Baile

I have written a reply now. Can anyone please advise?? Many thanks in advance!

Dear Sirs

Ref???

I write further to your letter dated

I, as the registered keeper of the vehicle, once again deny that I owe any debt to your client, Bolton NHS Foundation Trust. I was not the driver of the vehicle on the relevant dates whereby the alleged parking charge notices were issued and therefore I have not entered any contract. As a matter of justice and principle I intend to defend any claim, and once again I invite your client to withdraw the unfounded claim against me as the registered keeper of the vehicle.

In your letter you stated ‘without evidence of the contrary, on the balance of probabilities the registered keeper was the driver on the relevant dates. Your client has made a woefully wrong and baseless assumption and misled me about my liability. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my legal right in refusal to name the driver.

In your letter you stated your client’s claim is not being brought pursuant to the Protection of Freedom Act 2012 (POFA). I am perplexed by your client’s decision as the POFA empowers your client to pursue ‘keeper liability’ providing your client’s claim is compliant with the Act. They were not. In this case, no other party apart from an evidenced driver can be held liable for the parking charges in question. The burden of proof rests with your client to show that I, as an individual, have personally entered the contract and not complied with the terms and show that I am personally liable for their parking charge.

Furthermore, Henry Greenslade, the previous POPLA Lead Adjudicator, in his annual report 2015 highlighted the importance of full compliance with the POFA:

Understanding keeper liability
“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.''

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where your client cannot transfer the liability for the charge using the POFA.

In your letter you have threatened to take the issue to court proceedings without further notice. I will require the following documents in order to understand the nature of your client’s claim.

i. The contract (or chain of contracts) between your client and the site landowner, giving your client authority to carry out parking management and on what terms;

ii. Any and all photographs taken of my car on the material dates, copy of any Notice to Drivers (NTD) and Notice to Keeper (NTK) of the parking charges in questions.

iii. A copy of any document your client asserts sets out the terms of the alleged contract between it and a driver;

iv. A copy of the signs on display and a dated plan of where in the car park they were displayed on those dates;

These are core documents, central to your client’s claim. As such, they are documents which are required to have been produced at an early stage (regardless of whether or not I asked for them) in this pre-action phase, pursuant to paragraph 6 of the Practice Direction – Pre-Action Conduct and Protocols. I would have expected at the very least, that the contract requested under iii above should have been appended to the Letter Before Claim. I am requesting these documents because I clearly require them in order to be able to prepare a proper defence to any Claim, as is my entitlement. The CPR clearly anticipate an early exchange of information, as per paragraph 2 of the Protocol and paragraph 14 of the Practice Direction – Pre-Action Conduct, any failure to produce the information I have asked for will be nothing other than a deliberate attempt to frustrate my ability to defend the claim and a failure to comply with pre-action obligations.

Any failure by you/your client, to enter into meaningful dialogue in order to avoid unnecessary litigation will mean that you will have denied me the opportunity to “take stock” pursuant to paragraph 12 of the Practice Direction, or to enter into discussions with you pursuant to paragraph 13. I will seek the sanctions provided for by paragraph 15 of the Practice Direction.

In particular, I would consider that this matter is suitable for Alternative Dispute Resolution (ADR). Not only is ADR a requirement at this stage under the pre-action protocol but I also wish to draw your attention to the EU ADR Directive of 21 May 2013 and The Alternative Dispute Resolution for Consumer Disputes Regulations 2015.

Private parking charges despite are always suited to the ADR of an independent appeals service, which exists for this exact purpose. Were your client a member of the British Parking Association or International Parking Community, I would be entitled to an independent appeal process so that this sort of dispute is resolved out of court by of a Parking on Private Land Appeals (POPLA) or equivalent, and to minimise costs. Should your client deny my right to ADR and proceed despite being unable to invoke 'keeper liability' in law, I will consider the action to be indicative of wholly unreasonable and vexatious conduct in litigation. I will draw to the court’s attention to the issues, will claim my costs and will cite unreasonable conduct pursuant to Rule 27.14(2)(g).

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.

Yours faithfully,

Redx

seems to be ok to me


a good effort in fact, especially as they are NOT using POFA2012 so no keeper liability


well done

KeithP

In that excellent letter you mention that Bolton Hospital NHS Trust are not Approved Operators of either the BPA or IPC.

I wonder how the Trust managed to get keeper details from the DVLA?
Of course it's possible, but I wonder how they did it?

The NHS patient, visitor and staff car parking principles has a footnote which says:

There are two trade associations: the British Parking Association and the Independent Parking Committee. If the car park operator is a member of either, their relevant code applies and an appeals service is available to motorists. NHS organisations should consider imposing a requirement for contractors to be members of such an association.

By implication, surely the recommendation is that if the NHS Trust are 'doing their own thing', they too should be a member of one of the AOSs.

There are at least two NHS Trusts that are members of the BPA Approved Operator Scheme.