Letter of claim BW Legal - From and old thread in 2018

tangsoodo

Hi sorry to be a pain ive been trying to research this estoppel thing but you lot do like to write things in a weird legal language . It looks like my 2 PCN's are rolled into one claim on the LBC so im guessing it doesn't apply there. So am i right in saying that an estop would be argued on the fact that they issued an LBC 18 months ago and didn't action it so now the second LBC for the exact same thing could be regarded as grounds for it?



By filing the first claim and failing to advance their whole case at that time, any cause of action was immediately extinguished for any other similar fact parking charges against myself as Defendant.  The courts may estop a second/third claim where the cause of action is substantially the same.

But isn't this if they discontinue at court stage and LBC is only threatening court? I just need to really understand rather than copy and paste.

Coupon-mad

Nope - estoppel doesn't apply in your case.  You are right and are not meant to copy & paste!

The example LBC responses are to show you the "get stuffed" TONE to take. What you actually say in your response is whatever your dispute is, plus what I told you to put:

Coupon-mad said:

Yep.  That's a serious misuse of data and a breach of the DPA 2018 and GDPR, so you could conclude your rant by saying that: if they proceed with their inflated claim, you will file a counterclaim of not less than £300 for negligent or deliberate data abuse, which has dragged the matter out for three years and for it to resurface now when you thought it was over, is not the fair & professional pursuit of a 'debt'.  It is plain harassment and it is causing severe distress at this point in your life, which is actionable in terms of a claim for reasonable damages which has a great deal better propects of success than their imaginary 'DRA fee' false damages, given the DLUHC is believed likely to ban that extortion.

I think one of those links shows how to threaten a counterclaim with meaningful language.

Coupon-mad

This person has just written their own robust rebuttal "get stuffed" LBC response, based on what they gleaned from other threads:
https://forums.moneysavingexpert.com/discussion/comment/80112296/#Comment_80112296

tangsoodo

this is a draft. I will probably add that the LBC isnt PAP compliant and a bit more about stress and unprofessional persuit of a debt.

THE TEXT IN BOLD IS REALLY THE PARTS IN MY OWN WORDS ive just noticed the link that you posted above, think ive missed the mark again

Your Ref: xxxxxxx

PCN: xxxxxx

PCN: xxxxxx

15th June 2023

Dear Sirs

I am in receipt of your letter of claim dated 31st May 2023 and received 8th June

 

Your client has previously refused multiple times an Alternative Dispute Resolution in that your client issues me with a POPLA code (for which a POPLA code can be, and is, provided late by plenty of BPA members including ParkingEye at LBC stage). This would meet the PAP for debt claims and will keep the case out of court. I could then provide my own photos and evidence and of course your client can do the same so that the dispute can be resolved without burdening the courts.

Their response was

“As both PCNs are now with our legal/debt companies, we are not required to respond with a POPLA code”

They have confirmed in this statement that they are refusing to accept the ADR rather than unable to and are more than willing to jump straight to court stage. Furthermore, a letter before claim for ref xxxxx was previously sent nearly 18 months ago so this second identical template letter is clearly an attempt to add another 18 months interest on an already inflated invoice. It will be made known to the judge that both you and your client had multiple opportunities to avoid wasting the courts time. I have once again provided all the links below with regards to the aforementioned.

 

ADR: https://www.gov.uk/government/publications/alternative-dispute-resolution-for-consumers/alternative-dispute-resolution-for-consumers

 

The Regulations require almost all businesses which sell directly to consumers to point the consumer to utilise an alternative dispute resolution scheme – where they cannot resolve a dispute in-house – and declare whether or not they intend to use that scheme.

 

https://www.pumpcourtchambers.com/2019/09/06/adr-and-mediation-a-shifting-landscape/

 

It will be common ground that POPLA is the bespoke appeals service (effectively ADR) for the industry and it is known and easily checked with the BPA if this operator is unsure, that POPLA codes can be provided at any time and are provided, in disputed cases, by the more professional operators at LBC stage.

It is also common ground that the BPA expect AOS members and agents/DRAs and roboclaim 'legals' to adhere to the spirit of the FCA CONC rules, which include that pursuit/enforcement of 'disputed debt' must be suspended, if the consumer raises 'what may be valid grounds' for appeal/dispute.

In the case of PGF II SA v OMFS Co. Ltd [2014] 1 WLR 1386 the CA upheld the decision of a judge to disallow a successful defendant the costs he would have been entitled to... The court relied on the Jackson ADR Handbook (supra) 

https://global.oup.com/academic/product/the-jackson-adr-handbook-9780198867326?q=*&resultsPerPage=100&lang=en&cc=gb

and (at para.34): “firmly endorsed the advice given in Chapter 11.56 of the ADR Handbook, that silence in the face of an invitation to participate in ADR is, as a general rule, of itself unreasonable regardless whether an outright refusal, or a refusal to engage in the type of ADR requested, or to do so at the time requested, might have been justified, by the identification of reasonable grounds.”

In Gore v Naheed [2017] EWCA Civ 369there was a dispute between neighbours about a claimant’s right of way to a shared driveway for access and the defendant’s right to obstruct the driveway to unload lorries for their wine business. The trial judge found in the claimant’s favour and ordered that the Defendants pay the claimants costs. The defendant appealed arguing that the claimants failed to engage with their invitations to mediate and therefore the judge was wrong not to have made some deduction or allowance in the claimant’s costs.

The Court of Appeal upheld the lower court’s decision.  

However, Gore was decided before the Civil Justice Council ADR Working Group published its interim report in October 2017 on its review of existing forms of encouragement for mediation within the civil justice system in England & Wales. 

The Working Group was critical of the suggestion that Gore was an unsuitable case for mediation noting:

“Gore was ultimately about whether a van could park to unload in a particular place…a type of dispute ideally suited to ADR.”

 

 

If your client is still determined to attempt court, then the defendant will once again remind you that your client has provided data in a SAR that shows on the days of both issued pcn’s that the driver paid for parking in the morning and then again in the afternoon with a period in between where the driver left the car park between training sessions. This is clearly a problem with your ANPR/system and is a case of ‘double dipping’ which is known to be a common occurrence with ANPR technology. I’m sure you are aware that the burden of proof is upon yourselves to prove that these are not ‘Double Dip’ events. As you are aware the Private Parking Code of Practice section 7 states that

1.      The manual quality control check for remote ANPR and CCTV systems is particularly important for detecting issues such as “double dipping”, where image camera systems might have failed to accurately record each instance when a vehicle enters and leaves controlled land, and for checking images that might have been taken other than by a trained parking attendant (see Clause 15). The manual check might also reveal where “tailgating” – vehicles passing a camera close together – is a problem, suggesting relocation of the camera might be necessary.

Don’t reply again by requesting proof that the driver left the car park in between parking sessions as you are well aware the burden of proof is firmly with your client to prove otherwise and under the BPA code of practice they were required to manually check for 'orphan images' and certainly should never have deleted any captures of the vehicle in between the first entry and last exit. I have confirmation from your client that all other images of the vehicle have been deleted which evidences that other images were recorded. I can indeed either prove or on the ”balance of probabilities” show that the vehicle did leave the car park and return.

In addition to the above I will expect your client to explain to the court why you failed to protect the defendants personal data. Your client was informed in November 2018 of the defendants serviceable address and were told to update it on their systems. Your clients own documents provided in a subject access request show that they didn’t apply this address change until 31st January 2022. This is a staggering 3 years. What documents or correspondences were sent to my previous address? Well unfortunately we don’t know because from October 2018 up until the SAR in January 2022 there are 11 action entries on your system 10 of which have had their comments deleted.

These are serious breaches of GDPR where your client has obtained, used and shared the keepers personal data where they were not authorised to, and failed to protect and ensure that the personal data  of the defendant is correct. As such the defendant will be counterclaiming for negligent or deliberate data abuse for at least £300 if you proceed to a claim which is clearly a case of ‘double dip’

You must now cease and desist and stop trying to add false (now banned) 'debt recovery costs' that no court will allow now that the Government's new Code of Practice has declared the exaggerated add-ons in existing cases to be 'designed to extort money from motorists' (DLUHC's Neil O'Brien MP).

 

Yours

xxxxxxx

Fruitcake

The fake add on charges haven't been banned, and Neil O'Brien is no longer part of the DLUHC.
The new CoP has been temporarily suspended.

You need to use more up to date reference material.

Coupon-mad

Don't add old stuff about the LBC not being PAP compliant. I expect it is compliant.

tangsoodo

Thanks @Fruitcake, I've removed that part and have rechecked the other reference material. so due to the CoP being suspended does that mean that i can no longer defend as "double dip" even though that is what they were and i have evidence to show on the balance of probabilities that they were "double dip".  I believe this is my strongest defence so has the suspension of CoP blown this avenue out of the water

Coupon-mad

It makes no difference at all.

tangsoodo

Thanks both. I do appreciate your time, I know it must be frustrating for you all with us bumbling about and getting the basics wrong. I will keep the basics of what I’ve posted and tweak it with some of the more recent examples then send it off to the ppc and legals. 

tangsoodo

LBC reply sent. I am now starting to form my defence as I'm guessing I will soon be receiving court papers. My main defence is double dip but I've also got a question about the main sign as it was at the time of the pcn's. The tariffs were covered with a temporary tariff. Does this mean that the driver didn't have all of the relevant information to form a contract. The ppc have also sent photos of the sign without the temporary paper stuck to it when i requested it in a SAR.

 https://www.dropbox.com/s/cwmaki01hjojtyp/Photo%2027-06-2023%2C%2013%2045%2056.jpg?dl=0