Letter before claim - Hire Car

ParkingChargeNoThanks

Hi – looking for advice regarding a reply to a Letter of Claim from UKPC (appears to be served via their in-house litigation team).

Background

I believe their case (and practices) would get eviscerated in court but would prefer to have it discontinued before that point if possible! In particular, I’d like to know whether the specifics of the case (hire vehicle, code of practice breaches) should have any bearing on my reply, and the best method through which to request all relevant documentation, as I think some of the guidance around SAR on the Newbies thread has recently changed (or been removed)? I have just under a fortnight remaining to respond to the letter of claim. A short timeline is as follows:

Timeline

May: Made aware of a windscreen parking charge notice for “Vehicle owner/driver left site” in a time period where I was the hirer of the vehicle in question. The evidence submitted in the appeals portal contained pictures of the car parked legitimately, and a photo of an arbitrary individual on some steps minutes after the ticket issuance. It’s not clear whether UKPC ever believed this person was related to the car in any way (they weren’t), and the charge notice appears to have been issued completely speculatively.

June: In accordance with the Newbies thread advice, I submitted an appeal to acknowledge my standing as the vehicle’s hirer and keeper per POFA, providing my contact details, declining to name the driver, and questioning the validity and legality of the notice issued. No NtK or NtH has ever been received. I also sent an email to the landowner, but never received a response.

July: After 28 days, UKPC email a request to name the driver, and to submit the information of the registered keeper. As they had clearly not read my appeal submission, I disregarded this. The timeline for an appeal decision (per UKPC and the BPA code of conduct) elapses, and I assume they have acknowledged the spurious nature of the charge notice and given up.

July: More than 50 days after my appeal submission, UPKC email to uphold their view that the charge was correctly issued. As I had already assumed the case was closed, I only noticed this communication well after the POPLA window would have passed.

Dec:  UKPC issue a Letter of Claim via their “Litigation Team”, following the Pre-Action Protocol for Debt claims.

Next steps

I’m aware I could have had this quashed at an earlier opportunity if I had noticed the appeal decision within a timeframe to submit to POPLA, but was caught out by UKPC not sticking to their own process. So… I am aware that the advice at this point was to ignore the reply form, and draft an independent letter. The PAP itself states that:

(4.2) If the debtor indicates that they are seeking debt advice, the creditor must allow the debtor a reasonable period for the advice to be obtained. In any event, the creditor should not start court proceedings less than 30 days from receipt of the completed Reply Form or 30 days from the creditor providing any documents requested by the debtor, whichever is the later.

Seeing as Box D (“I dispute the debt”) carries no obligation to fill out the Financial Statement or disclose finances (unlike eg Box F), it seems to me that selecting Box D and submitting document requests would give the same outcome as a separate email – and being fully aligned with the PAP process, may be viewed more favourably if this does go to court?

Either as the supplementary content for Box D on the PAP, or as a separate letter, I intend to outline the inadmissibility of the charge and the process breaches of UKPC, on the basis that they might (?) realise this is a futile exercise. This also seems like the best time to accrue all the information they have – is there any reason why a separate SAR request to the DPO is no longer advised on the Newbies thread, or should I do this in addition to the request for documentation below?

Help!

In summary, 3 questions!

1. How’s the below draft?
2. Is there any harm in using the PAP reply form (Box D, "I dispute the debt", no financial statement, attached letter), rather than sending the letter separately?
   
3. Should I submit a separate SAR to the UKPC Data Protection Officer, given that they appear to be pursuing this internally and should have to provide me with the documentation under the Pre-Action Protocol and their own code of practice?

Happy to provide any of the original documentation – eg, if it’s worth checking neither of the letters they sent out constitute a Notice to Keeper, or if you’d like to see my original appeal statement (submitted to ensure the car hire company didn’t pay up as Keeper)

Draft PAP response

Dear Sirs

REF: XXXXXXX

I refer to your Letter of Claim. The alleged debt is disputed and court proceedings will be vigorously defended.

In accordance with the Pre-Action Protocol for Debt Claims, I submit requests for documents and further information outlined in detail below. Per the protocol (PAP section 5.2), you will respond to these requests within 30 days, and will not commence proceedings sooner than 30 days following your complete response to these requests.

I require explicit response to each of the following points and sub-points:

1. I require copies of all documentation related to the Claim (XXXXX) and Charge reference number (XXXXX) prior to the Letter of Claim dated [date]. This includes, but is not limited to:

1.1 Information contained in original Parking Charge Notice (NoPC)

1.2 Any and all photographic evidence relating to the NoPC, as obligated by the BPA Code of Conduct (Section 23.3)

1.3 Information hosted and provided to relevant parties on the UKPC appeals portal in relation to the NoPC, including evidence submitted by UKPC at the time

1.4 Appeal submission data, including appeal submission content and accompanying letter (submitted [date])

1.5 Copies of UKPC responses to appeal submission (dated [date1] [date2])

1.6 Confirmation that 1.1-1.5 above comprises all documentation and communications relevant to this matter

2. Given that the appeal submission (1.4) contained explicit definition of my role as vehicle hirer in relation to this NoPC, I require an explanation of the grounds on which you are continuing to pursue any alleged debt, given that no Notice to Keeper or Notice to Hirer were received, and no keeper or hirer liability were correspondingly invoked. Doing so intentionally is in contravention of POFA Schedule 4 (Paragraphs 4, 6, 8, 13, 14) and the BPA Code of Conduct (Section 21.2)

3. An explanation of how the photographs submitted in supporting evidence of the NoPC “confirm the incident which you claim was unauthorised”, as required under the BPA Code of Conduct (Section 21.5a)

4. An explanation as to why the appeals outcome notification was issued over 50 days after the appeals submission, but only 21 days after an initial request (for information already provided within the appeal submission), in multiple contraventions of the BPA Code of Conduct. Under the BPA Code of Conduct (Section 23.8), “It is acknowledged that in exceptional circumstances, an investigation into an appeal may take longer than 35 days after such information has been received and in these instances the motorist must be advised accordingly and given a date by which they can expect a resolution. If this date cannot be achieved then the motorist must be written to again and a revised resolution date agreed. We may require you to demonstrate that you are keeping to these times”

5. A proposal as to how, given that the late issuance of the appeals outcome notification was directly responsible for my inability to initiate the POPLA appeals process, you intend to facilitate Alternative Dispute Resolution (ADR). This is an obligation of PAP prior to initiation of court proceedings.

6. A justification for the additional £70 Debt Recovery Fee applied to the Claim, and confirmation of whether this is inclusive or exclusive of VAT

7. Confirmation of whether the principal alleged NoPC sum is pursued as damages, or as consideration for parking (Is this relevant? Site does not charge for parking)

Under the Pre-Action Protocol (Section 5.1), you are expected to respond fully to the requests for documentation and information above, and not doing so will be noted during court submissions (Section 7.1) if the matter continues to escalate. Furthermore, where the Claim is not wholly and definitively withdrawn, each of the suspected BPA Code of Conduct breaches outlined above will be reported to the BPA with the aggravating context that you have been informed of, and continue to disregard (if you do so), these breaches.

Yours faithfully

XXXX

Fruitcake

I think you are making this too complicated. I suspect UKPC will ignore everything you have put and just go ahead with issuing the claim

I can't see anywhere in your proposed response that the hirer cannot be held liable under PoFA.

By asking for the documents relating to the claim, you run the risk that they might provide the docs stated in Paras 13 and 14 of the PoFA, and that a judge might decide they have fulfilled that requirement even though they must be provided with the NTH at the  time of issue.

If instead you state the driver has not been identified, the NTH was not PoFA compliant and therefore the hirer cannot be held liable, any claim would be vexatious, leaving the claimant to costs for unreasonable behaviour.

You can also add that in Vehicle Control Services Limited v Mr Ian Edward, the judge determined that "it is not appropriate to draw an inference that, on balance of probability, the registered keeper was driving on any given occasion."

This was an appeal case and therefore persuasive on the lower courts.

I would suggest that in your case, "it is not appropriate to draw an inference that, on balance of probability, the hirer/day to day keeper was driving on any given occasion."

Specialist Small Claims Law Firm: Disputing Parking Tickets and More (contestorlegal.co.uk)



What happened when you complained to the landowner and your MP?

Coupon-mad

The advice changed. No SAR.  And remove all of paragraph 1 in your response.  You DO NOT want all that detail before the claim.

Not_A_Hope

“Vehicle owner/driver left site” 

To put your mind at ease if this PCN is a result of the allegation that the ‘driver left site’ the claimant is very likely to fail in court. It is some years since a PPC took such a claim to court and they got a good spanking by the judge. They have zero evidence of who the person was and their signage which forms the contract that they allege has been broken will not have any maps detailing what ‘the site’ actual consists of. 

ParkingChargeNoThanks

Thank you all, very helpful comments.

@Fruitcake, if I could clarify a couple of your comments? Once I understand fully I'll redraft to hopefully fit the bill better. To your question, the landowner never even acknowledged the email, but I will try again.

I can't see anywhere in your proposed response that the hirer cannot be held liable under PoFA
I thought that the hirer could be held liable, but if and only if both an NtK or an NtH have been issued correctly. Are you saying that the hirer cannot be held liable under PoFA as the PoFA conditions were not met (this is what I understand)?

you run the risk that they might provide the docs stated in Paras 13 and 14 of the PoFA

As any NtH is contingent on the NtK, and no NtK was issued, surely this would not change things?

If instead you state the driver has not been identified, the NTH was not PoFA compliant and therefore the hirer cannot be held liable, any claim would be vexatious, leaving the claimant to costs for unreasonable behaviour.
Thanks, that's a great point! Again, the NtH was non-existent - is it important to make the distinction between issued but non-PoFA, and non-PoFA because not issued?

I would suggest that in your case, "it is not appropriate to draw an inference that, on balance of probability, the hirer/day to day keeper was driving on any given occasion."

Is this a matter for the actual claim rather than the Pre-Action Protocol?

Coupon-mad

No PPC ever ever ever sends a compliant NTH.  Say whatever you want at this stage to try to see off the claim, but do not say who was driving.

And DON'T ask for evidence or details. 

This is why we stopped suggesting a SAR. 

You actually want a badly pleaded claim to arrive, to which you can respond saying you've seen no evidence and the Defendant can't be held liable, etc.

ParkingChargeNoThanks

@Coupon-mad - you mean to remove the labelled paragraph 1, ie (1)-(1.6), or just the preamble? I had assumed that having everything they might rely on would help when it came to the Claim, as I could confidently state that eg. no NtK had been issued, rather than have them try to argue that they sent and it never arrived. I also assumed all photopraphs would help the argument that they never actually witnessed anyone leave the car at any point, and that the ticket was completely speculative

yetneveragain

No matter how well they word the PoFA requirement in either their NtK or NtH, they always fail to comply with PoFA paragraph 13(2)(a)(b) and ©, hence rendering it non-PoFQA compliant and therefore only the driver can be held liable. Unless the hirer has admitted to being the driver, they have nowhere to go with this.

Coupon-mad

I was very clear to remove ALL of para1.

DON'T ask for evidence or details. 

Fruitcake

To address your questions,

I thought that the hirer could be held liable, but if and only if both an NtK or an NtH have been issued correctly. Are you saying that the hirer cannot be held liable under PoFA as the PoFA conditions were not met (this is what I understand)?

You need to read the PoFA 2012, specifically paras 13 and 14. The PPC will not have complied with these paras because they will not have included the documents/statements from those paras with the NTH. They never do. The PoFA is an Act of Parliament, the law, and the inclusion of those documents is a mandatory requirement otherwise they cannot hold the hirer liable.

As any NtH is contingent on the NtK, and no NtK was issued, surely this would not change things?

You are not the registered keeper so the NTK will not have been sent to you, but to the hire/lease company. If you know for a fact that the hire/lease company did not receive a NTK, then say so. You could say you believe no PoFA compliant NTK was given to the hire/lease company, then say so if that belief is true. Put the claimant to strict proof that the contrary is true. If you do not know for certain that the hire/lease company did not receive a NTK, then don't mention it.

Thanks, that's a great point! Again, the NtH was non-existent - is it important to make the distinction between issued but non-PoFA, and non-PoFA because not issued?

State both. A PoFA compliant NTK capable of holding the hirer/lesse was never given; the hirer/lessee was never given a NTH.

Is this a matter for the actual claim rather than the Pre-Action Protocol?

If you want to go to court, leave it out. Personally I would want this killed off now before a claim is issued so I would include it in your response to the letter of/before claim.

I must stress, do not send an SAR. Do not request any information/documents.
Without the docs mandated by paras 13 and 14 of the PoFA. an NTH cannot be complaint and capable of holding the hirer/lessee liable, irrespective of whether an NTH was given. You do not want the claimant to send you those docs, so don't ask for them.

I suggest you show us your new draft response before you send it.

ParkingChargeNoThanks

@Fruitcake My assertion of no NtK is based on a conversation with the hire company, in which they said that if they received one they would pay without question and bill me retrospectively. Given that they did not, I am inferring no NtK. The assertion of no NtH is categorical, unless I somehow just never received it in the post - I just have to assume I'm right here unless they submit otherwise?

In the initial portal, the photos provided by UKPC as their own "evidence" of signage were completely illegible, including stickers covering parts of the text. I'd assume that including these photos in my own case would be a strong argument, on the premise that the parking company's photos would represent the signage in the best light possible. I've still taken this out of the basis of @Coupon-mad 's advice, and will provide my own photos instead?

Similarly, I notice that the defence statement generally asserts that the parking company is unlikely to have authority to pursue the claim on behalf of the landowners. Does stating that in the defence statement force them to address the issue in the hearing, and is this better than finding out in advance and tailoring a defence accordingly?

Amended letter below:

Dear Sirs

REF: XXXXXXX

I refer to your Letter of Claim. The alleged debt is disputed and court proceedings will be vigorously defended.

In accordance with the Pre-Action Protocol for Debt Claims, I submit requests for documents and further information outlined in detail below. Per the Protocol (Section 5.2), you will respond to these requests within 30 days, and will not commence proceedings sooner than 30 days following your complete response to these requests.

I require explicit response to each of the following points and sub-points:

1. The information sumitted to the UKPC portal on XX/XX defined my role in relation to this NoPC as vehicle hirer only, with your subsequent letter dated XX/XX admitting no knowledge of the the name and servicable address of the driver. In contravention of PoFA Schedule 4 (Paragraphs 4,6,8,14), the required Notice to Keeper and Notice to Hirer were not issued, and no keeper or hirer liability can be invoked. I require an explanation of the grounds on which you are continuing to pursue myself for any alleged charges, as to do so in knowledge of the above is vexatious, and will leave you liable to costs for unreasonable behaviour.
There can be no route other than as vehicle hirer under which you are attempting to pursue this, as per the judgment of Vehicle Control Services Limited v Mr Ian Edward "it is not appropriate to draw an inference that, on balance of probability, the registered keeper [/hirer] was driving on any given occasion."
Pursuing this case without having met the conditions of PoFA is also a contravention of the BPA AOS Code of Practice (Paragraph 21.2) and I will be reporting it as such.

2. An explanation as to why the appeals outcome notification was issued over 50 days after the appeals submission, but only 21 days after an initial request for further information (the majority of which was obviated by the information already submitted to the portal), in multiple contraventions of the BPA AOS Code of Practice. Under the BPA AOS Code of Practice (Paragraph 23.8), “It is acknowledged that in exceptional circumstances, an investigation into an appeal may take longer than 35 days after such information has been received and in these instances the motorist must be advised accordingly and given a date by which they can expect a resolution. If this date cannot be achieved then the motorist must be written to again and a revised resolution date agreed. We may require you to demonstrate that you are keeping to these times”. This was contravened by your actions, and I will additionally be reporting this.

3. Given that the late issuance of the initial appeals outcome notification was directly responsible for my inability to initiate the POPLA appeals process, I require a proposal on how you intend to facilitate Alternative Dispute Resolution (ADR). This is an obligation of the Pre-Action Protocol prior to initiation of court proceedings, and not an obligation that I agree to waive.

4. An explanation of how the photographs submitted in supporting evidence of the NoPC “confirm the incident which you claim was unauthorised”. This is required under the AOS Code of Practice (Paragraph 21.5a), and failure to do so will be reported as a further breach.

5. A explanation of the calculation of the £70 Debt Recovery Fee applied to the Claim

6. Confirmation of the basis on which the principal alleged NoPC sum is being persued, given that there is no paid parking at the site in question

Under the Pre-Action Protocol (Section 5.1), you are expected to respond fully to the requests for information above, and refusal to do so will be noted during court submissions (Section 7.1) if the matter continues to escalate. Furthermore, where the Claim is not wholly and definitively withdrawn, each of the suspected BPA AOS Code of Practice breaches outlined above will be reported to the BPA with the aggravating context that you have been explicitly informed of these breaches.

Yours faithfully
XXXX