No response to appeal - Civil Enforcement

Coupon-mad

We don't recommend you read the laughable POPLA Guide which is why it's not mentioned here.  The Newbies thread covers what you need to know.

No need to look at what biased POPLA say.  It's a waste of time reading it and that 'guide' will mislead you about how to appeal.

Tonibee9

DCBL have given up after four letters and I've now received a LETTER BEFORE ACTION. I've followed the advice in and from the NEWBIES thread and this one (https://forums.moneysavingexpert.com/discussion/4754020/parking-letter-before-county-court-claim-lbccc-fight-back-guidance-thread) and have prepared an initial response.

I only have a few days left before I need to send it and would appreciate views on whether I'm taking the right approach. Thanks.

PCN Number: xxxxx

Vehicle Reg: xxxxx

Thank you for your LETTER BEFORE ACTION of 25 September, received 30 September.

For the avoidance of doubt:

• I was not the driver of the vehicle

• As the keeper, I will vigorously dispute the alleged debt

• I have never received any reply or consideration to my appeal/complaint and the particulars contained therein, receipt of which was acknowledged on 22/12/23.

The pre-action protocol (PAP) for debt claims is derived from the Practice Direction – Pre-Action Conduct and Protocols (PACP) which has it’s origin in the Civil Procedure Rules (CPR). Having reviewed your letter, the CPR, the PACP and the PAP it’s clear that your letter, although issued in accordance with the PAP, unfortunately fails to comply with the requirements of the PAP and its aims stated in paragraph 2:

2.1 This Protocol’s aims are to –

(a) encourage...communication between the parties, including early exchange of sufficient information...;

(b) enable the parties to resolve the matter without the need to start court proceedings, ...;

(c) encourage the parties to act in a reasonable and proportionate manner in all dealings with one another...;

(d) ...

Therefore, whilst I seek advice and continue the preparation of my defence, I request that you re-issue your notice ensuring full compliance with the PAP as dictated by the over-riding objectives of the CPR, which includes, at paragraph 1.1(2)(g):

(g) enforcing compliance with rules, practice directions and orders

In the meantime, I will continue to seek advice and assistance and prepare my defence. When I receive your fully compliant letter before action I’ll send a detailed reply in accordance with the requirements of the PAP.

Yours faithfully

LDast

What was wrong with the suggested response letter in the second post in the Newbies/FAQ thread?

Le_Kirk

You are seeking debt advice NOT help writing your defence!

Tonibee9

LDast said:

What was wrong with the suggested response letter in the second post in the Newbies/FAQ thread?

As I said, I followed advice from the newbies thread and I looked at far more posts and threads than the two I mentioned. I'm unable to say if there's anything wrong with it, although there are a number of reasons I chose not to use (copy) the template which, as you acknowledge in your question, is a 'suggestion', although I certainly referenced it.

My draft:

• States my position clearly (not the driver and disputing)
• gives CE notice I've not had an appeal response
• claims, without expressing why, the LBA notice is deficient
• lets them know I'll continue to be a pain when it's reissued
• I liked and was encouraged by @zz@zzzLazyDaisy 's advice to use one's own words, phrases and tones. I don't like the hostile tone of the templates (though I certainly feel it) and by using my own wording it let's them know I'm taking it seriously, understand the process (??) and not a pushover. They m

The template in the newbies differs by adding specific questions about money, which could be taken as a document request (how I read it) or a deficiency in the notice (how I see it). I prefer the latter because it gives them another step - reissue the notice and then deal with the document request. It might also be the money questions are a 'standard' item that most newbies wouldn't know and why they're in the template?

I do have reasons for the notice being deficient and struggled with the advice to exclude them, which I feel is not going to sit well with my responsibilities for the PAP so I might yet include them. That advice is from an old thread (I'm working with the current version of the PAP and CPRs) which is helpfully specific about why it advises as it does.

So, all I need to know is does my response satisfy the requirements to keep me in line with PAP and out of court for longer? And should I include full reasons why the notice is deficient?

Tonibee9

Le_Kirk said:

You are seeking debt advice NOT help writing your defence!

Thank you for spotting that!  

Coupon-mad

I liked and was encouraged by @zzzLazyDaisy 's advice 

I liked it too, in the year it was written.

Trouble is, it is now hopelessly out of date (by years) & not a thread to ever read now, which is why it isn't linked or suggested in the Sticky thread.

Phrases like 'seeking debt advice' you have to use verbatim (not alter the phrase) or you won't get a 30 day hold (assuming you want one to try to get the landowner to step in).

Tonibee9

I've finalised and sent my response and await the next steps. For anyone that's interested, the pertinent paragraphs, paraphrased where appropriate to keep this shorter, are:

"

This is my response to your LETTER BEFORE ACTION [dates].

For the avoidance of doubt [facts re driver, dispute, appeal, correspondence address and date of posting]

I note that your letter claims to be issued in accordance with the The pre-action protocol (PAP) for debt claims. The PAP is derived from the Practice Direction – Pre-Action Conduct and Protocols (PACP) which has it’s origin in the Civil Procedure Rules (CPR). Its aims are stated in paragraph 2:

[2.1 of PAP: encourage communication to resolve informally in a reasonable and proportionate manner]

The appeal/complaint sets out my position in some detail, whereas as YOUR communications simply demand an arbitrary amount of money of YOUR choosing, where YOU claim to be the aggrieved party, by YOUR imposition of an alleged implied contract of YOUR creation, where YOU act as judge and jury. Nothing about that, or your practices & procedures, are reasonable, proportionate or encourage easily resolution.

It’s hypocritical of you to demand conformity with YOUR self-imposed terms whilst at the same time ignoring those terms YOU are required to comply with and, having reviewed your letter, the CPR, the PACP and the PAP it’s clear that your letter, although issued in accordance with the PAP, fails to comply with the requirements of the PAP as follows:

[haven't responded to appeal nor given a breakdown of the alleged debt, interest and charges]

The PAP goes on to require:

• An exchange of documents or information sufficient to enable the parties to understand each other’s position. I’ve provided that in the appeal/complaint, to which I’ve yet to receive a response (5.1), within which I complained about the restrictions you placed on the provision of evidence from your victim. In spite of your assertion that evidence not submitted with an appeal cannot be considered, I believe it’s my right to bring further evidence to the attention of the court in due course.

• The taking of appropriate steps to resolve the dispute without proceedings – you have not responded to the appeal/complaint (6) and, as mentioned in the appeal/complaint, your original ‘notice to keeper’ lacks the notice required notice in paragraph 9(8)(a) of schedule 4 to the Protection of Freedom’s Act 2012 for a means of initiating ‘informal representations about the notice and the matters contained in it’.

In addition, the PACP at paragraph 8 requires that litigation is the ‘last resort’. As you have failed to respond to the appeal/complaint and failed to provide an informal means of resolution it cannot be said that your actions in beginning litigation procedures are a last resort. Rather, I contend that you are a serial litigant using the court process as a bully tactic of first resort.

[A few MPs quotes taken from the Newbies thread (checked first in Hansard)] 

In conclusion, I request that you re-issue your notice ensuring full compliance with the PAP as dictated by the over-riding objectives of the CPR, which includes, at paragraph 1.1(2)(g) ‘enforcing compliance with rules, practice directions and orders.’

When I receive a considered response to the appeal/complaint and/or you issue a fully compliant letter before action I’ll review it and any evidence that accompanies it before sending a detailed response in accordance with my responsibilities in the PAP.

Coupon-mad

 Nice! That will have them scratching their heads.

Tonibee9

They didn't scratch for long and, as pleasant surprises go, this is up there! I was fully expecting the next communication to be a CC claim form.

Needless to say I'm overjoyed that the stress is over and I feel vindicated by my decision to fight. Learning the topic and the forums was a challenge but most of what I found to fight my corner was here. So my thanks to everyone who's replied (and suffered my frustrations), to Martin Lewis and the forum team for actually existing and @Coupon-mad whose obvious dedication and passion to the cause was evident from the many posts and comments I read. I literally couldn't have done it (been a credible pain in the !!!!!!) without you. Thank you 🙏👍