Can a Without Prejudice appeal be used or even referenced in LoC or a Claim?

yetneveragain

A quick question for the experts… A PCN that I’m assisting in defending has reached the LBC stage. I became involved after the victim had already filed a late initial appeal. The PPC is iPark Services and the legals are DCB Legal.
This was the initial appeal, headed with a WOP statement:

Without prejudice -
On the xx/xx/xxxx, I drove on to the parking lot at xx:xx pm. I vacated the car together with a friend and walked across the road to XXXXXX restaurant. In the meantime, my husband adjusted the car seat but he couldn’t adjust the mirrors because the key fob had fallen apart which electronically blocks the ignition. He then got out of the car to look for the electronic components which had fallen on the floor. My husband then found the components to the Fob key and put them back together. He then started the car and immediately drove away and left the parking lot. The car was NEVER left unattended in the very very short time it was there. The car was used to DROP OFF PASSENGERS. I am refusing to pay this 'parking fine' and my intention is to take this to the county courts.

Since I became involved, there has been no mention of who was driving. Aside from the fact that this is being defended on the basis that the NtK was not PoFA compliant (it even says on the NtK “Non-POFA”, the signs are not prominent, not legible, no contract was formed, Jopson v Homeguard (vehicle was stopped for less than 5 minutes to unload passengers) etc., etc.
My question is, because the initial appeal was “Without prejudice”, I’m assuming the claimant cannot rely on that should it ever get as far as a hearing. As the NtK is 100% non-PoFA, can the defendant be held liable as the RK as there is no mention or evidence of them being the driver?
The initial appeal was submitted well after the 14 days for an IPC NtK but it was accepted. As expected, it was rejected and they immediately stated “We are therefore unable to cancel the PCN as it was issued correctly. We can confirm the discounted rate has lapsed due to receiving your appeal later than 14 days from the date of the notice. Please now make payment of £160 to reach us by xx/xx/xxxx.”
The initial NtK states that it is non-PoFA and there were 16 days between the event date and the deemed date of delivery. However, the reminder which was sent 28 days later, tries to reference PoFA stating “Under Schedule 4 of the protection of Freedoms Act 2012 sub paragraph (1).a 7.(2)a.b.c.d.e and f that the above named in relation to the above vehicle is liable for a Parking Charge in the above amount which, at the date of this notice, remains unpaid in full or part and for which the Balance Due remains outstanding.”
By the time DCB Legal become involved and having responded robustly to the LoC, they responded with the following:

“Please refer to the attached appeal and response whereby our Client clearly outlined the position that this PCN was issued correctly following your usage of the land regardless of time spent. It is unreasonable for you to use the private land, by parking up and dropping people off, and not adhere to the terms and conditions clearly stated on the signage. We act on behalf of our Client, and our position is clear.     

When parking on private land, the contractual terms of the site are set out on the signs. You are entering a contract and agreeing to the terms by parking and staying on the site. Parking in breach of the terms as stipulated on the signage means that you are then breaking the terms of the contract.    

In accordance with the British Parking Association Code of Practice, where the PCN becomes overdue and before Court proceedings have commenced, a reasonable sum may be added for the debt recovery fees. The correct recovery fees have been added and will not be removed. As such, the outstanding balance of £160.00 remains payable to prevent further action.     

To avoid any doubt your charges are rejected and will not be paid.     

You now have 30 days from the date of this email to make payment of £160.00. Failure to make payment will result in a Claim being issued against you without any further reference.”

Clearly, they have referenced the WOP appeal (without stating the content) and have also referenced the BPA which has nothing to do with iPark Services. Whilst we are waiting for the inevitable claim to be issued, is there any mileage in the facts that they have referenced a WOP statement in a LoC response and referenced the BPA?
I fully expect this to go the way of the usual DCB Legal claims and will be discontinued eventually after a robust defence. However, any insights from the regular team would be appreciated.

troublemaker22

A communication doesn’t qualify for the without prejudice privilege just because it is marked “without prejudice”. It has to have been sent in a genuine attempt to resolve a dispute. I suppose you can make a case for interpreting that letter as a genuine attempt to resolve the dispute over the parking charge by explaining why it isn’t payable. On the other hand, a blank refusal to pay …

yetneveragain

Sorry, I think you may have misunderstood me point. The "refusal to pay" is not the point. It is the ambiguity of the appeal where the defendant stated "I drove on to the parking lot at xx:xx pm". They then go on to state that "In the meantime, my husband adjusted the car seat..." and "...He then started the car and immediately drove away and left the parking lot."

The appeal could sound like the RK was driving when if fact they were being driven. The issue I was trying to get clarity on is if the claimant tries to say that the RK has admitted to being the driver due to the ambiguity of the wording/grammar in the initial appeal, are they able to use the WP appeal?

troublemaker22

And you’ve missed my point. I understand exactly why you want it to be inadmissible in evidence. I’m telling you that in order for a communication to be inadmissible by reason of the “without prejudice” privilege it needs to have been sent in a genuine attempt to resolve a dispute. Whether it contains information that is harmful to the sender’s case is irrelevant. 

troublemaker22

This article might help you if my explanation wasn’t clear enough https://www.ergolaw.co.uk/blog/https/wwwergolawcouk/blog/what-does-without-prejudice-mean

yetneveragain

Thank you for the link to that article. Can a written appeal to a spurious, speculative invoice for an alleged debt be considered to have been made in the course of "negotiations" as a genuine attempt to settle the dispute in question?

troublemaker22

That's the problem in a nutshell.  If it wasn't written in the course of "negotiations" as a genuine attempt to settle the dispute in question, it is not protected by the "without prejudice" privilege and may be disclosed to the court. A document isn't protected from disclosure just because the writer marked it "without prejudice".  Do you think it was written as part of a genuine attempt to settle a dispute?

yetneveragain

troublemaker22 said:

Do you think it was written as part of a genuine attempt to settle a dispute?

I don't know. It was written before I became involved.

The case has enough merit to win based on the atrocious signage at the location alone. The fact that it was a case of dropping off passengers and the car was less than 5 minutes at the location is another winnable point.

I suppose I was hoping to get an opinion based on the actual initial appeal which reads like it has disclosed the RK to be the driver because the PCN is a slam-dunk non-PoFA NtK. The case is being defended by the (MSE) book and, since the response to the LoC, DCB Legal have responded with more "shot-in-the-foot" rubbish by quoting BPA CoP points to back up their clients right to claim when their client is, in fact, an IPC member.