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    • zzzLazyDaisy
    • By zzzLazyDaisy 30th Aug 13, 10:44 AM
    • 12,134Posts
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    zzzLazyDaisy
    Parking - Letter Before County Court Claim (LBCCC) - Fight back! Guidance Thread
    • #1
    • 30th Aug 13, 10:44 AM
    Parking - Letter Before County Court Claim (LBCCC) - Fight back! Guidance Thread 30th Aug 13 at 10:44 AM
    Note this thread is primarily aimed at letters received from ParkingEye, including a 'walk through' of one of their LBCCCs, but the general advice about the Practice Direction on this thread applies to ALL PPCs.

    Please do not ask for advice on this thread as it is for guidance only. If at all possible, it is in your best interests to follow the advice on this thread and keep your correspondence with the PPC away from the forum (the PPCs do read the forums). But if you do need help, please start your own thread, and leave a short post on this thread with the title of your thread, and someone will come and find you.

    Daisy


    NOTE: this guide only applies to cases where the PPC has sent you a LETTER BEFORE COUNTY COURT CLAIM (also known as a Letter Before Action / LBA)

    If you have received court papers from Northampton county court you have missed the boat for using the Practice Direction to fight back. You need to start your own thread and ask for advice on what to do next.

    If you have just received the PCN or are in the early stages, the route to go is tp appeal direct to the PPC, with a view to receiving a verification code, so you can appeal to POPLA and close the thing down before it gets as far as court proceedings.

    If you are getting letters from debt recovery company you can continue to ignore, even if their letter says 'notice of intended litigation'. A debt collector can't take you to court. Only the PPC (or a solicitor acting on behalf of the PPC) can do that.

    If you remain unsure, go to Post 3 of this thread, where you will find an example of a Letter Before County Court Claim.

    That example is from ParkingEye (statistically the PPC most likely to issue proceedings) but you may also receive a Letter Before County Court Claim (also known as a Letter Before Claim, or a Letter Before Action) from other PPCs. The advice and process for dealing with this remains broadly the same.

    The first thing to note is that the LBC / LBCCC / LBA is the first step in the court procedure - so ignoring is not an option (unless you want to flag yourself up to the PPC as an easy target!)


    There are things you can do though:


    1 Scotland If you are the Registered Keeper, and you live in Scotland, it is still safe to ignore as PoFA 2012 does not apply in Scotland.


    2 Not the driver? - Reset the POPLA clock If you are the Registered Keeper, but you were NOT the driver at the time of the 'parking event', you have the opportunity to reset the POPLA clock by identifying the driver. In that case you write to the PPC, acknowledging the LBA, and tell them the driver's name and address.

    See post 13 below for sample letters

    The PPC must then send a PCN to the Driver, who can then go down the appeal route, first to the PPC for a POPLA code, and then to POPLA where the prospects of success are pretty much 100% if you follow the advice on the threads. (Note: this is only an option where the vehicle was 'caught on camera' and the PCN was received through the post by the RK. If the driver got a windscreen ticket, then s/he has already had their chance to appeal)


    3 Contact the landowner / retailer If your 'parking event' was at a retail store car park, speak to the manager (not the person on the customer service desk or the till, but the Store Manager) they have the power to get the charge cancelled - even if you have received a letter before action, it is not too late to do this. Same goes for cinemas, hotels, doctor's surgeries etc. If the manager can't/won't help, contact head office / the CEO. If the retailer/hotel etc tells you they are not the landowner, you may need to track down the landowner and contact them directly. NOTE PLEASE DO NOT IGNORE THIS OPTION IT REALLY DOES WORK AND COULD SAVE YOU A LOT OF AGGRAVATION - go to para 9 of this thread to see cases where this has succeeded in Coupon-mad's 'hall of fame'

    http://forums.moneysavingexpert.com/showthread.php?p=62837690

    But do NOT ignore the LBCCC / LBA while you are trying to get the retailer/landowner to cancel the charge. Time is ticking so you do still need to reply to the LBCCC / LBA (see point 5 below)

    4 Make a 'without prejudice offer' - see post 12 for more info
    Please note: This thread is about helping you to fight back and NOT give into their demands for money. But some readers may wish to make a payment to get the monkey off their back for personal reasons and want to do that in the most cost effective way possible. Others may wish to include a 'WoP' letter as part of their over-all strategy. Note a 'WoP' letter is NOT an admittance of liability and cannot be produced to the court when considering the case. It CAN be produced to the court on the issue of costs and this can work for or against you. So please, if you wish to make use of this, DO NOT offer them £1 or make a silly offer. DO make a sensible offer - eg one which can be shown to be a calculation of genuine loss, or one that reflects an earlier lower demand from the PPC.

    IMPORTANTLY do NOT take your eye off the LBCCC ball. Any 'WoP' offer runs in tandem with the Practice Direction procedure, and is essentially an invisible secret unless/until the PPC accepts the offer and confirms that the charge is satisfied.


    5 Reply to the LBC / LBCCC / LBA - make use of the Practice Direction and fight back!


    The first thing to be aware of is that you have 14 days to Acknowledge the LBCCC. After that, the PPC can start proceedings without further notice, so keep the 14 days in mind, and read on....




    The LBC is the first step in a formal court process called the Practice Direction on Pre-action Conduct. This literally sets out what the parties are supposed to do before the Claimant (that's the PPC) starts court action against you.

    Be aware that this Pre-action Conduct is a court procedure - the letters that follow form part of the court documents. This is very much in your favour, because under this procedure the PPC must give you certain information - and they don’t want to do this because then you will know what their case is (well yep, that's the idea). Remember, these letters will eventually be placed before the court (that's if it gets to court, but the point of this exercise is to make the PPC realise that you are far too much of a HOT POTATO, and hopefully they will go after easier targets. Are there any guarantees? No. Has this worked so far? Yes.

    So be clear about this - they will try every trick in the book to avoid following the court Practice Direction, every chance to mislead you, and every chance to try and use the court process to intimidate you into paying up - even telling lies in writing during this court process.... yep, really!


    So you are about to have a crash course on the Practice Direction and how using the court process in the way it is intended to be used can help you fight the PPC.


    So this is a guide to the Practice Direction on Pre-action Conduct (the PD)
    (please read it all the way through to the end - it's a bit long but it's not complicated).


    Here is a copy of the Practice Direction

    http://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_pre-action_conduct


    Here is a useful general guide by the CAB to the Practice Direction




    Don't just skim over those links - click on them and read the info. It is worth to grips with this stuff because the Practice Direction is your friend.


    The Practice Direction is automatically actioned when the PPC serves a Letter Before Claim / LBC (or as PE call it, a Letter Before County Court Claim / LBCCC ) on the RK/Driver (Note: Letter Before Claim /Letter Before County Court Claim / Letter Before Action are all the same thing).

    I am not going to give you chapter and verse about the PD - you need to read it for yourself, but I will give you snippets as we go along, so you get the idea. Remember - the PD is there to HELP you...

    So let's just look at the very first part of the PD (this is a direct copy)

    SECTION I – INTRODUCTION

    1. Aims

    1.1
    The aims of this Practice Direction are to –

    (1) enable parties to settle the issue between them without the need to start proceedings (that is, a court claim); and
    (2) support the efficient management by the court and the parties of proceedings that cannot be avoided.

    1.2
    These aims are to be achieved by encouraging the parties to –
    (1) exchange information about the issue, and
    (2) consider using a form of Alternative Dispute Resolution (‘ADR’).

    SO ONCE THE LBC (LBCCC / LBA) HAS BEEN SENT to you by the PPC, the court wants you and the PPC to talk to each other, and exchange information (and it tells the Claimant what information it must provide in the LBC to start the ball rolling).

    NOTE: this procedure is invoked by the LBC. If the PPC sends you a defective LBC which does not comply with the PD then you are entitled to ask them to remedy the defects, before proceeding with the PD process (you will see shortly that the LBC is almost certainly defective, because the PPC's DO NOT WANT TO GIVE YOU the information that the PD says they MUST give you).

    Just another extract from the PD, so you get the Picture:

    Annex A sets out Guidance on Pre-action Procedure, where there is no formal pre-action protocol..... (that's us)...

    1.1
    This Annex sets out detailed guidance on a pre-action procedure that is likely to satisfy the court in most circumstances where no pre-action protocol or other formal pre-action procedure applies. It is intended as a guide for parties, particularly those without legal representation, in straightforward claims that are likely to be disputed.

    GET IT? The court has written this Guidance to help ordinary people just like you, who are not represented by a solicitor. If you don't read any other part of the PD, read Annex A. It is an easy step by step guide to using the PD. Follow that guidance, it is Court Procedure, and there to help you.

    Another part that is worth reading is:

    Para 7 of the PD which sets out the steps that must be followed before the PPC starts proceedings. Knowledge is power.

    Note: the PD refers to ‘the Claimant’ (that's the PPC) and ‘the Defendant’ (that's the RK/Driver - YOU in other words!)


    Okay, enough talk - what am I supposed to do about this dreaded LBCCC?

    Right, the PD is automatically actioned by the Claimant (PPC) sending a Letter Before Claim (otherwise known as an LBA / LBCCC ) to the defendant (that's you).

    The PD says that the LBC must set out the details of the claim (that's ALL the details, not just the little bit they want you to know).

    So let's just check the LBC that you have received, against what the PD says it must tell you.....


    Here is the full text of The Practice Direction on Pre-action Conduct, Annex A Para 2:


    Read it, and then compare the information contained in your LBA to the information the PD says it must contain...

    2. Claimant’s letter before claim

    2.1
    The claimant’s letter should give concise details about the matter. This should enable the defendant to understand and investigate the issues without needing to request further information. The letter should include –

    (1) the claimant’s full name and address;
    (2) the basis on which the claim is made (i.e. why the claimant says the defendant is liable);
    (3) a clear summary of the facts on which the claim is based;
    (4) what the claimant wants from the defendant;
    (5) if financial loss is claimed, an explanation of how the amount has been calculated; and
    (6) details of any funding arrangement (within the meaning of rule 43.2(1)(k) of the CPR) that has been entered into by the claimant.

    2.2
    The letter should also –
    (1) list the essential documents on which the claimant intends to rely;
    (2) set out the form of ADR (if any) that the claimant considers the most suitable and invite the defendant to agree to this;
    (3) state the date by which the claimant considers it reasonable for a full response to be provided by the defendant; and
    (4) identify and ask for copies of any relevant documents not in the claimant's possession and which the claimant wishes to see.

    2.3
    Unless the defendant is known to be legally represented the letter should –
    (1) refer the defendant to this Practice Direction and in particular draw attention to paragraph 4 concerning the court's powers to impose sanctions for failure to comply with the Practice Direction; and
    (2) inform the defendant that ignoring the letter before claim may lead to the claimant starting proceedings and may increase the defendant's liability for costs.


    Okay, I am not normally a betting person, but I'd bet my house that the LBc does NOT give you all that information!

    In fact, if YOUR LBC is anything like the sample LBCCC copied at Post 3 below, it definitely DOES NOT comply with the Practice Direction (even though, cunningly, it claims that it does comply).

    So the first thing to do is to go through the LBC with a fine tooth comb and make a note of all information that it should have given you and hasn't.

    Go to Post 4 of this thread for some pointers on where the LBCCC at Post 3 of this thread fails to comply with the PD. Check these points against your own LBC / LBCCC / LBA and make notes of the failings of your own LBC

    Okay, you have made a list of all the ways in which your LBC fails to comply with the requirements of the Practice Direction. So what are you going to do about it?


    The Practice direction tells you what to do.


    First you must send the PPC an Acknowledgement within 14 days of receiving the LBA (if you don't do this, they can start court action against you, so don't ignore this).

    Note: even if you have missed the 14 day deadline, you can still jump in and kick start the PD procedure, right up until they start proceedings. But don't mess about, do it as soon as possible, as once they have started court action against you, the process gets even more formal and even more stressful. It's not fun and best avoided.

    So, back to the Practice Direction...

    The procedure for Acknowledging the LBA is set out here, at Annex A, Para 3
    http://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_pre-action_conduct


    Now, just to re-cap before we go any further... The Pre-action Conduct that the PD requires the parties to follow is this:

    1 The Claimant (PPC) sends a LBC to the defendant (YOU) setting out all the information required by Annex A para 2.

    2 The Defendant goes along to the Practice Direction, reads up about what s/he must do, discovers that s/he must send an Acknowledgment in a certain form, and then must subsequently provide a formal Response, giving the Claimant certain information about the case from their point of view (this will eventually form the basis of the formal defence).

    Did you get that? The LBC must contain the info set out at Annex A Para 2 of the PD

    So what do you do now? It is impossible for you to provide a formal Response to the LBc because it doesn't give you the information necessary to do that.

    Answer - you acknowledge the LBA, you refer the PPC to the Practice Direction, and you politely ask them to send you the required information.

    Posts 4 and 7 of this thread compare the LBCCC with the PD requirements and give you lots of pointers on where the LBCCC fails to comply with the PD.

    Post 9 gives you a suggested form of Acknowledgment. BUT PLEASE PLEASE DO NOT USE THIS AS A TEMPLATE. It is in your own best interests to personalise your letter as much as possible to the circumstances of your case, and to write your Acknowledgement in your own words, in your own style, and in a way that you understand if you are ever asked to explain what you said in the letter.

    However be aware that the PPC isn't going to read your letter. They are almost certainly just going to send you a template reply which doesn't answer the issues you have raised.

    So why bother? Because you are writing for the JUDGE!

    What!!!??? Well, it is simple when you think about it. This Pre-action Conduct procedure was written by the court. Both parties are expected to follow it. The letters between the Claimant and the Defendant form part of the court documents that will be placed before the Judge, if this case ever gets to court. The court will take a very dim view of a Claimant who refuses to comply with this procedure - so much so, that the PD (para 4) sets out what the sanctions are for non-compliance.

    That is why it is better for you to write your own Acknowledgment, in your own words, in your own style, changing the order and numbers of paragraphs, including anything that is specifically related to your own particular case, and personalised to your own circumstances as much as possible.

    Doing it this way will ensure that you have an understanding of what you are doing. If your style is naturally more formal, that's fine. If your style is towards a softer, less confrontational approach, that's also fine.

    It will also ensure that because your reply is not based on a template letter, it cannot be answered by a template letter. If the PPC does reply to your personalised Acknowledgement with a template letter, it will avoid the issues that you have raised in your letter - which will not endear the PPC to the Judge if this case ever goes to court.

    So, just be straightforward and calm, and follow the instructions in Posts 3 & 4 & 7 & 9 below.

    Once you are satisfied that you understand the issues, and exactly why the Letter Before County Court Claim is deficient (and most certainly not compliant, as they misleadingly suggest in their letter) .... then go to Post 9 and follow the instructions for writing a letter of Acknowledgment.

    (to be continued with the next steps in the process...)
    Last edited by MSE Andrea; 19-11-2017 at 1:17 PM.
    I'm a retired employment solicitor. Hopefully some of my comments might be useful, but they are only my opinion and not intended as legal advice.
Page 1
    • nigelbb
    • By nigelbb 30th Aug 13, 11:17 AM
    • 2,041 Posts
    • 2,845 Thanks
    nigelbb
    • #2
    • 30th Aug 13, 11:17 AM
    • #2
    • 30th Aug 13, 11:17 AM
    Please note, this thread is under construction. If you need urgent advice, and don't find it here, yet, please keep checking back. In the meantime please check the old guidance thread, as it is only PE's letter that has morphed - the basic advice has not changed.
    Originally posted by zzzLazyDaisy
    That excellent posting can be found here http://forums.moneysavingexpert.com/showthread.php?t=4705657
    • zzzLazyDaisy
    • By zzzLazyDaisy 30th Aug 13, 12:04 PM
    • 12,134 Posts
    • 18,762 Thanks
    zzzLazyDaisy
    • #3
    • 30th Aug 13, 12:04 PM
    • #3
    • 30th Aug 13, 12:04 PM
    Here is an example of PE's LBCCC - yours may not be exactly the same as they jig the letter about a bit from time to time - and DO READ THE BACK OF YOUR LETTER - as some of the info may be hiding there

    ---------------------------------------------

    Dear Sir/Madam,

    LETTER BEFORE COUNTY COURT CLAIM

    On [Date] we notified you that, as the registered keeper of this vehicle, you had become liable for this Parking Charge Notice (see above reference), which concerned a breach of the terms and conditions at [Location], on [Date].

    This was because the requirements of Schedule 4 of the Protection of Freedoms Act 2012 required for keeper liability had been satisfied. Further to this, we advised you that the amount payable was [£amount] for the Parking Charge Notice and that you were required to make this payment or further action would be taken.

    ParkingEye is still not in receipt of this payment. As such, we must inform you that unless payment of [£amount] is made within the next 14 days further action will be taken and court proceedings will be issued, which will incur further costs. These costs will include, but are not limited to £50.00 solicitor's costs and £15.00 court claim issue fee.

    Yours faithfully

    ParkingEye Legal Department.

    ..................
    Page.2
    ..................
    1) Please be aware this Letter Before County Court Claim is fully compliant with the Practice Direction on Pre-Action Conduct. We must draw attention to the practice direction at [link to PD] and in particular paragraph 4 concerning the court's powers to impose sanctions for failure to comply with the Practice Direction.

    2) It should also be noted that we are unable to use the POPLA service as Alternative Dispute Resolution at this stage. This is because POPLA will only accept an appeal after the motorist has made their appeal ('representations') to the operator who issued the Parking Charge Notice and that the operator has rejected these and issued a POPLA appeal form. You have not made representations to ParkingEye in the timescale required (i.e. 28 days from the date of our initial correspondence). You have been made aware of these timescales in our correspondence, which has stated;

    "All appeals and complaints must be put in writing and should be forwarded to one of the addresses below. All appeals must be received within 28 days from the date of our initial correspondence. Please include all information to assist with the appeal. This may include: a store receipt from the day in qquestion; proof of purchases via a bank statement etc. If the appeal is unsuccessful, you will be advised in writing and you will also be provided with details of the Independent Appeals Service (POPLA), their contact details and a unique appeal reference. Please note: The POPLA service is only available for parking events dated from 1st October 2012 and POPLA will not accept an appeal, if you have not appealed to ParkingEye in the first instance."

    3) The loss claimed in this Letter Before County Court Claim is in line with guidelines set out by the British Parking Association. ParkingEye have also ensured that their Parking Charge amount is not punitive and set on the basis of a strong commercial justification for charges of this nature.

    4) As court proceedings have not begun, and as no defence has been filed, it is impossible for ParkingEye to state exactly what documents will be relied on in court. These could include, but are not limited to; Protection of Freedoms Act 2012, British Parking Association Code of Practice, any defence submitted by you, any reply to defence submitted by us, any document proving ParkingEye's authorisation to operate on site and any signage plan or images of signage from the site in question. These will be provided at this stage and not sooner. Any commercially sensitive documentation will be provided if requested by the court, should this matter reach this stage.

    Note - if you receive a letter like this from ParkingEye, it is NOT compliant with the practice direction. PE KNOW this (they have received enough complaints from members of the public pointing this out to them) but they continue getting away with this because no-one complains to the Solicitors Regulation Authority about them.

    So before you get into a 'war of words' with them, consider sending THIS letter first....

    ------------------------------------------------------------------------------------------------------
    ParkingEye Ltd
    Legal Department

    Address

    Date

    For the personal attention of [Text removed by MSE Forum Team] (Supervising Solicitor)

    Dear [Text removed by MSE Forum Team]

    ParkingEye Ltd v [Name]
    Proposed Legal Proceedings


    Thank you for your letter of [insert date].

    First, the alleged debt is disputed and any court proceedings will be vigorously defended.

    Secondly, despite the wholly inaccurate statement that the letter is 'fully compliant with the Practice Direction' it is in fact woefully defective and appears to be a deliberate attempt to mislead the recipient.

    Please therefore provide a Letter Before Claim which complies with the requirements of Annex A Para 2 of the Practice Direction on Pre-action Conduct:

    http://www.justice.gov.uk/courts/pro...action_conduct

    I confirm that I shall then seek advice and submit a formal Response within 30 days of receipt, as required by the Practice Direction.

    Please ensure that someone does actually read and respond to this letter, providing the specific information relating to the county court claim that your client intends to make against myself as the defendant to the proposed legal proceedings. Please DO NOT send a generic FAQ letter in reply as to do so does not meet the requirements of the Practice Direction and will take this matter no further forward.

    Please note, a refusal to comply with the Practice Direction will result in an immediate referral to the Solicitors Regulation Authority for breach of the Principles contained in the SRA Handbook version 8, published on 1st October 2013.

    I trust this will not be necessary, and look forward to receiving a fully compliant letter before claim in due course.

    Yours faithfully

    PRINT NAME (sign with a squiggle.)

    -----------------------------------------------------------------------------------------------------
    You will note that the above letter does not even attempt to point out the various deficiencies of their LBCCC. That comes later, after they have ignored your letter and sent you their normal template FAQ letter! You will then go to post 9 and using that information, you will prepare an Acknowledgment explaining to them exactly why their LBCCC is defective (even taking into account the information contained in the FAQ letter!) You will then also send a copy of all four letters (LBCCC to Acknowledgment) to the SRA and make a formal complaint about the conduct of PE's legal department by following the instructions here:

    http://www.sra.org.uk/consumers/problems/report-solicitor.page#how-report-sra

    If you need help with the letter to the SRA go back to your own thread (or start a new one if you don't already have a thread) and we will find you. Your letter in its own won't make much of an impression, but when they start getting a steady stream of complaints, the SRA WILL investigate the firm's practices and general (non) compliance - and in serious cases they will close the firm/legal department down.

    See this thread for one such closure

    http://forums.moneysavingexpert.com/showthread.php?t=4788479&highlight=gpb

    At the very least they will get a lot of (to them) unwelcome attention and correspondence to deal with - think of it as Karma!

    While you are waiting for a reply, simply carry on to the next post and continue reading down to post 9, so that you are all clued up and ready to write a letter of acknowledgment when the expected template letter arrives.

    If you don't want to make a complaint to the authorities, then simply carry on to the next post and continue following instructions anyway. Trust me, by the time they have finished sending you template FAQs and duplicate LBCCCs you will be ready to make a formal complaint! In that case just come back here, tweak the above letter, and send it to them. Then when you get yet another non-compliant letter, send your file of papers to the SRA as indicated above.

    WHATEVER YOU DO, PLEASE DO NOT DROP THE LBCCC BALL.
    As soon as you miss a deadline in correspondence, the claimant is entitled to start court proceedings without further notice, and after a long quiet period, PE has recently started issuing proceedings against defendants who have received an LBCCC but failed to follow through with the correspondence.
    Last edited by MSE Andrea; 19-11-2017 at 1:11 PM.
    I'm a retired employment solicitor. Hopefully some of my comments might be useful, but they are only my opinion and not intended as legal advice.
    • zzzLazyDaisy
    • By zzzLazyDaisy 30th Aug 13, 12:13 PM
    • 12,134 Posts
    • 18,762 Thanks
    zzzLazyDaisy
    • #4
    • 30th Aug 13, 12:13 PM
    • #4
    • 30th Aug 13, 12:13 PM
    Okay, as we have already noted, Annex A para 2 sets out the information that the Claimant must provide in the Letter Before Claim. In the next post we will go through the requirements on a step by step basis.

    But before we do this, let's take a look at the LBCCC in the post above, and consider the information it DOES actually provide.

    So, turning to page 2 for a moment, let's look at what it really says...

    1) Please be aware this Letter Before County Court Claim is fully compliant with the Practice Direction on Pre-Action Conduct (At this point I am tempted to do a good old fashioned pantomime impression and shout "OH NO IT DOESN'T")... but you will draw your own conclusions as we progress...

    2) It should also be noted that we are unable to use the POPLA service as Alternative Dispute Resolution at this stage. (OH NO YOU'RE NOT!!!).

    The letter goes on to give a totally misleading explanation for why they are refusing to consider POPLA. So challenge them on this.

    The letter claims that you can only have a POPLA Code if you appeal to the PPC within 28 days of receiving the PCN. So - the logic goes - you are outside the 28 days, and therefore they cannot give you a POPLA Code.

    What you need to understand is that the BPA Code of Practice gives guidance to PPCs. Part of that guidance is that, providing the motorist appeals to the PPC within 28 days of receiving the PCN, the PPC MUST either uphold the appeal, or give the motorist a 10 digit verification code to appeal to POPLA. NOWHERE in the BPA Code of Practice does it state that the PPC may not provide the POPLA Code AFTER 28 days. Also NOWHERE on the POPLA website does it state this. It is not in fact true that the PPC CANNOT give you a POPLA code after the 28 days, what IS true is that the PPC has chosen not to use the appropriate form of ADR set up by the parking industry, and it SUITS them to stick to their OWN self imposed 28 day deadline.

    Leading in from that, the other thing to bear in mind is that we are now in a Court Pre-action Process. The BPA Code of Practice is just guidance, it is NOT law. The Court will consider the law. Once court proceedings are started, the PPC will be claiming that as a result of the defendant's actions, they have suffered "losses" (more about that later) PLUS as a result of the motorist failing to either pay the charge or use the appeal's process, the PPC has suffered further expenses in the form of court fees and solicitor's costs to try and recover those "losses".

    It is basic contract law that the Claimant must seek to mitigate their losses. That is to say, they must explore ways of minimising their losses. That is exactly why the Practice Direction states that the parties must consider an appropriate form of ADR AS AN ALTERNATIVE to starting court proceedings.

    So don't let them off the hook. Tell them why you don't accept that the 28 day time limit applies to County Court Proceedings, remind them of their duty to mitigate their losses and not to incur additional losses unnecessarily. Make it clear that you are willing to have this dispute decided by POPLA to avoid burdening the court with this matter, and invite them to reconsider their position and provide a POPLA Code. Also tell them that, should they refuse your invitation to use ADR and proceed to court, you will draw the court's attention to their failure to comply with Para 8 of the Practice Direction, concerning ADR. Tell them also that if they continue to refuse to consider POPLA as an appropriate form of ADR, then even in the extremely unlikely event that you lose the case, you will ask the court to refuse any order that you pay their court or solicitor's costs as, under the terms of the Practice Direction, this matter could and should have been dealt with by POPLA.

    3) The loss claimed in this Letter Before County Court Claim is in line with guidelines set out by the British Parking Association. ParkingEye have also ensured that their Parking Charge amount is not punitive and set on the basis of a strong commercial justification for charges of this nature.

    Okay, let's break this down...

    a) The loss claimed in this Letter Before County Court Claim is in line with guidelines set out by the British Parking Association.


    This is a pathetic attempt at 'smoke and mirrors'. The BPA Code of Practice states that any charge based on breach of contract must be a genuine pre-estimate of loss, and must not exceed a certain amount. That does NOT mean that any charge that falls within the maximum amount does in fact meet the criteria of 'genuine pre-estimate of loss' (if you go to the POPLA decisions thread, you will see that the PPCs have lost at POPLA on this precise point).

    b) ParkingEye have also ensured that their Parking Charge amount is not punitive and set on the basis of a strong commercial justification for charges of this nature. The Practice Direction states that they must tell you what their loss is, and how it has been calculated. Simply making a statement that the loss is NOT punative, does not take the matter any further, and it certainly does not comply with the requirements of the Practice Direction. It is rather like saying "Well Mr Judge, the charge is fair, because I say so". Strangely, the courts work on evidence, proof, and facts. All of which are conspicuous by their absence from this LBCCC

    4) As court proceedings have not begun, and as no defence has been filed, it is impossible for ParkingEye to state exactly what documents will be relied on in court. Sorry, but from the point of view of legal proceedings in general and the Practice Direction in particular, this is the most nonsensical part of the LBCCC. The PD states that the Claimant must provide a list of the documents that it intends to rely on. What this means is that the Claimant must tell the defendant (and the court) what documents it in tends to rely on to prove its claim against the defendant. Yes, it is true that once the defendant has filed a defence and disclosed the documents that it intends to rely on to rebutt the Claimant's case, THEN the Claimant may wish to produce additional documents to challenge the defendant's evidence. However, that does not change the fact that the Claimant knows (or should know) which documents it intends to rely on to prove the case against this particular defendant in this particular case (not any old defendant in any old hypothetical case). So challenge them, tell them that you have no objection at all to them producing further documents should that become necessary once they have seen your defence, but the point of the PD is that the Claimant's LBC must disclose a list of the documents that it intends to rely on to prove its claim against the defendant. This is their case, they must know what documents they will be relying on to prove the case against you, and you are entitled to be told what those documents are.

    Finally just flipping back to page one of the LBCCC

    It states that they are entitled to pursue this claim

    This was because the requirements of Schedule 4 of the Protection of Freedoms Act 2012 required for keeper liability had been satisfied.

    Assuming you are the Registered Keeper, they can ONLY pursue you if the requirements of PoFA are satisfied. So go back and look at those original documents, and double check that they are PoFA compliant. They probably won't be. If they are not PoFA compliant - point out that you do not accept this point and why, and tell them that if they insist on pursuing this claim against the RK, you will ask the court to strike out the claim as having no cause of action against the RK.

    Okay, that's enough about the LBCCC. But I think you get my drift....

    ... And that's without even considering all the PD information that they have totally ignored / left out! We will deal with that in the next post...
    Last edited by zzzLazyDaisy; 30-08-2013 at 1:13 PM.
    I'm a retired employment solicitor. Hopefully some of my comments might be useful, but they are only my opinion and not intended as legal advice.
    • zzzLazyDaisy
    • By zzzLazyDaisy 31st Aug 13, 9:39 AM
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    zzzLazyDaisy
    • #5
    • 31st Aug 13, 9:39 AM
    • #5
    • 31st Aug 13, 9:39 AM
    Okay, so in Post 1 we looked at the requirements of The Practice Direction on Pre-action Conduct, Annex A Para 2, which sets out the information that the Claimant must provide in the LBC.

    At posts 3 above, we looked at the current incarnation of PE's LBCCC (the one that is supposedly 'fully compliant with the PD!) and at Post 4 we examined the content of the LBCCC, in relation to the PD requirements and discovered what a load of non-compliant nonsense it is.

    In this post we are going to re-visit Annex A Para 2, and consider where the (supposedly fully compliant) LBCCC is silent on essential PD information, and also to consider whether there is any additional information you need in order to prepare your Response (which is the next step in the PD procedure).

    ----------------------------------------------------------------------------------------------

    So, once again, here is the full text of The Practice Direction on Pre-action Conduct, Annex A Para 2 (with my comments in brackets after each point....)

    2. Claimant’s letter before claim

    2.1

    The claimant’s letter should give concise details about the matter. This should enable the defendant to understand and investigate the issues without needing to request further information. The letter should include –

    (1) the claimant’s full name and address;

    (2) the basis on which the claim is made - i.e. why the claimant says the defendant is liable; (so the LBCCC should tell you the basis of the claim. In other words, the LBCCC must tell you if this claim is a Contract claim; A Trespass claim; or some other type of claim. Further - if this is a contract claim it must tell you if this is a claim for money agreed under the terms of a contract - ie a debt action - or if this is a Breach of Contract claim. You are entitled to be given this information - and in fact it is impossible for you to respond to the LBCCC without this info as the defence would be different, depending on the type of claim. It's not rocket science, they know what claim they are making against you. They should tell you what that claim is)

    (3) a clear summary of the facts on which the claim is based; (so check your own LBCCC - does it tell you where the parking 'event' took place, and why you got a charge in the first place? ie, did you fail to buy a ticket at all? was it an overstay? if it was an overstay, does it say how long the overstay was? Does the LBCCC expressly refer to the PARKING time rather than the time you were clocked driving into and out of the car park - remember driving round the car park, looking for a space, perhaps getting petrol or checking tyre pressure on a service area, non of these things are relevant to a PARKING event as you were not parked during that time so that time must be disregarded)

    (4) what the claimant wants from the defendant; (A big fat wad of cash??)

    (5) if financial loss is claimed, an explanation of how the amount has been calculated (The LBCCC goes on about the BPA and the charge not being punitive. What it DOES NOT do is tell you HOW the amount of the charge has been calculated. You are entitled to be given this information. )

    (6) details of any funding arrangement (within the meaning of rule 43.2(1)(k) of the CPR) that has been entered into by the claimant (this refers to some sort of financial backing such as insurance or trade union. This is unlikely to apply here, but having said that, there is no harm in asking them to confirm that this section does not apply)

    2.2
    The letter should also –

    (1) list the essential documents on which the claimant intends to rely (We have already discussed this at Post 4 above, and why what they say is a load of rubbish. Don't let them get away with this. Tell them that you are entitled to be given a list of the ESSENTIAL documents that the PPC intends to rely on in its claim against you personally. They have decided to make this claim against you, so they MUST know what essential documents they will be producing in evidence against you. Confirm that you have no objections to them adding to this list once you have seen your defence - but remind them that the defence will not be issued until after the start of proceedings, and this list of documents is required to be provided to you BEFORE proceedings have even been started, under the Pre-action Conduct steps, set down by the court )

    (2) set out the form of ADR (if any) that the claimant considers the most suitable and invite the defendant to agree to this; (Okay, so the LBCCC did set out the form of ADR it considers to be most suitable - ie POPLA - but instead of inviting you to agree to this as they are required to do, they attempted to justify their REFUSAL to comply with this part of the PD. Again, don't let them get away with this. Refer to the issues we discussed at Post 4, confirm that you are willing to have this dispute referred to POPLA, and invite them to issue a POPLA code)

    (3) state the date by which the claimant considers it reasonable for a full response to be provided by the defendant; (Check your LBC - they have probably given you 14 days to reply, which is reasonable) and

    (4) identify and ask for copies of any relevant documents not in the claimant's possession and which the claimant wishes to see. (Note, in this incarnation of the LBCCC, PE has dispensed with the long list of requests for further information and/or documents. But for future reference, the PPC cannot use this part to go on a fishing trip, by asking all sorts of nonsense questions in the hope that the defendant might tell them something useful. They can only ask for copies of any documents that they have identified as being relevant to this case)

    2.3
    Unless the defendant is known to be legally represented the letter should –

    (1) refer the defendant to this Practice Direction and in particular draw attention to paragraph 4 concerning the court's powers to impose sanctions for failure to comply with the Practice Direction; and

    (2) inform the defendant that ignoring the letter before claim may lead to the claimant starting proceedings and may increase the defendant's liability for costs.

    (You can ignore this last bit at 2.3, as it is about the only bit that they have actually complied with!!!!)

    ----------------------------------------------------------------------------------------------

    Okay, so now we have examined the LBC against the PD, and considered where it is defective. So the next step is to Acknowledge receipt of the Letter Before Claim, to politely point out that despite the statement in the LBC that it is fully compliant with the PD, this is not in fact the case, and to ask them to provide the missing information so you can prepare a formal Response. At this stage you may also want to ask for any additional information that you consider necessary to enable you to fully understand their claim against you. So let's proceed to Post 9 where there is a draft acknowledgement letter >>>>
    Last edited by zzzLazyDaisy; 12-10-2013 at 10:52 AM.
    I'm a retired employment solicitor. Hopefully some of my comments might be useful, but they are only my opinion and not intended as legal advice.
    • zzzLazyDaisy
    • By zzzLazyDaisy 31st Aug 13, 11:06 AM
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    zzzLazyDaisy
    • #6
    • 31st Aug 13, 11:06 AM
    • #6
    • 31st Aug 13, 11:06 AM
    Specimen Letter of Acknowledgment -

    PLEASE PLEASE PLEASE use your own words, write in your own style. Remember, if this case goes to court, these letters form part of the court correspondence. The court is looking for the parties to behave reasonably during this pre-action process, and to make genuine attempts to resolve the dispute. So be polite, and reasonable.

    Also, note that you will almost certainly get a template letter in reply, which will almost certainly still not be compliant with the PD. At that point you will write to them again.... for the moment, one step at a time...

    ----------------------------------------------------------------------------------------------

    NAME of PPC
    ADDRESS

    DATE

    QUOTE THE REFERENCE ON THEIR LETTER

    Dear Sirs

    Re: LETTER BEFORE COUNTY COURT CLAIM dated [insert date of LBCCC]

    I am writing to acknowledge receipt of the above letter.

    [Here say something about the fact that you have checked/read/examined the Practice Direction, as they have advised in their letter]

    [Now tell them that their letter states it is fully compliant with the Practice Direction, when this is clearly incorrect/untrue/misleading]

    [If you want to be more robust you might want to add in here an extra comment about what you think about this. Do you think that a legal department staffed by solicitors should be able to produce a compliant letter before claim? Do you feel concerned about the fact that you, as an unrepresented person with no legal training are having to explain to them what the Practice Direction requires from them? Do you want an explanation from them as to how they could have made such a fundamentally misleading mistake? Do you want to ask if the solicitor in charge of the legal department approved the letter before county court claim before it was sent to you? Do you want confirmation from them that they will review their standard LBCCC and ensure that future LBCCC's issued to motorists are in fact fully compliant with the Practice Direction. Or alternatively, you may just omit this paragraph.]

    [Now ask them to send you a fully compliant Letter Before County Court Claim, so you can deal with your own obligations under the Practice Direction]

    [Here you can tell them that you are attaching an extract of the Practice Direction dealing with the requirements for a Claimant's Letter Before Claim, for their information (see extract below) ... or you can just tell them that that since their LBCCC refers to the PD, they obviously know what is required and you expect them to comply with their obligations]

    [Finally - at some point in the letter - it doesn't matter of it is at the start or the end of the letter - address the issue of POPLA. Tell them that you do not accept what they say about POPLA. Explain to them that you believe that it makes sense to comply with the Practice Direction's requirement to refer this matter to POPLA, which is the appropriate form of ADR for parking disputes. Go back to Post 4 where this point is discussed and make brief reference to any other points you consider relevant - DO NOT cut and paste, remember you are not legally qualified, this is your OWN explanation of what YOU think about it].

    [Remind them of the Court's powers to apply sanctions for non-compliance with the Practice Direction under Para 4, and tell them that you expect to receive a fully compliant Letter Before Claim within 14 days. Warn them that if they do not send you a fully compliant Letter Before Claim as requested, you will seek the assistance of the court]

    [Consider including a paragraph along the following lines:

    'Please do me the courtesy of reading and replying to this letter. Please note, if you send me a generic template letter which does not address my requests for information, I shall copy the correspondence to the Solicitors Regulation Authority and ask it to investigate your breach of the Principles set out in the SRA Handbook version 8, published on 1st October 2013'. BUT ONLY DO THIS IF YOU ARE PREPARED TO FOLLOW THROUGH WITH A COMPLAINT TO SRA]


    Yours faithfully

    PRINT NAME



    ----------------------------------------------------------------------------------------------
    Extract from Practice Direction
    Annex A

    2. Claimant’s letter before claim

    2.1
    The claimant’s letter should give concise details about the matter. This should enable the defendant to understand and investigate the issues without needing to request further information. The letter should include –

    (1) the claimant’s full name and address;
    (2) the basis on which the claim is made (i.e. why the claimant says the defendant is liable);
    (3) a clear summary of the facts on which the claim is based;
    (4) what the claimant wants from the defendant;
    (5) if financial loss is claimed, an explanation of how the amount has been calculated; and
    (6) details of any funding arrangement (within the meaning of rule 43.2(1)(k) of the CPR) that has been entered into by the claimant.

    2.2
    The letter should also –
    (1) list the essential documents on which the claimant intends to rely;
    (2) set out the form of ADR (if any) that the claimant considers the most suitable and invite the defendant to agree to this;
    (3) state the date by which the claimant considers it reasonable for a full response to be provided by the defendant; and
    (4) identify and ask for copies of any relevant documents not in the claimant's possession and which the claimant wishes to see.

    ----------------------------------------------------------------------------------------------
    When you get a reply (which will almost certainly be a template reply which failes to address the issues you have raised) please start a new thread called "Parking LBCCC - reply to Acknowledgment letter received". This will enable us to find you and help you to take it from there.

    ----------------------------------------------------------------------------------------------

    Edit, I have heard of two of the smaller PPC's responding to an Acknowledgement by saying that the Practice Direction does not apply in their case because they fall within the exceptions to Annex A, as they are following an authorised pre-action procedure set down by the BPA.

    They even quote the Practice Direction in their letter as saying:

    'Annex A sets out detailed guidance on a pre-action procedure that is likely to satisfy the court in most circumstances where no pre-action protocol applies and where the claimant does not follow any other statutory or other formal procedure'.

    Sounds like they found a loop-hole, huh?

    Now read what the PD actually says...

    "This Annex sets out detailed guidance on a pre-action procedure that is likely to satisfy the court in most circumstances where no pre-action protocol or other formal pre-action procedure applies. It is intended as a guide for parties, particularly those without legal representation, in straightforward claims that are likely to be disputed. It is not intended to apply to debt claims where it is not disputed that the money is owed and where the claimant follows a statutory or other formal pre-action procedure."

    Don't be fooled by the deliberate mistake, and keep the correspondence going!

    The important thing to remember is that they won't actually read your letter, and they will reply with a template letter which looks legal and formal but doesn't actually address the issues. So you will need to write back and repeat your request.

    SEE NEXT POST
    Last edited by zzzLazyDaisy; 13-10-2013 at 9:59 AM.
    I'm a retired employment solicitor. Hopefully some of my comments might be useful, but they are only my opinion and not intended as legal advice.
    • zzzLazyDaisy
    • By zzzLazyDaisy 31st Aug 13, 11:07 AM
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    zzzLazyDaisy
    • #7
    • 31st Aug 13, 11:07 AM
    • #7
    • 31st Aug 13, 11:07 AM
    Okay, so you have received a reply to your acknowledgement letter?

    And the betting is that it is a formal looking letter that goes on about how their pre-estimate of cost is genuine, and signage is compliant, and they do have a contract which they will show the court if requested blah blah blah.... maybe with a few case references thrown in for good measure (which if you knew a bit more about the law, you'd also know that they are selectively misquoting bits and pieces as it suits them, so don't let them bamboozle you).

    So what now?


    You write back within the 14 days stipulated in their letter - calmly and politely, thanking them for their letter, pointing out that it does not in fact address the points raised in your earlier letter(s). Tell them that that several of the issues raised are in dispute and these matters will be dealt with in your formal Response (but don't get into a debate/argument about the points in their letter at this stage).

    Then repeat your request for information - at this stage you will need to go back to the Practice Direction Annex A Para 2 and SPELL OUT the information you need in numbered paragraphs. Follow the exact format of the info required by the PD with the same numbered paragraphs (where they have already provided information just write 'provided' or 'provided but not accepted') where information has not been provided or is clearly innaccurate or misleading, call them on this and insist that they provide the information required by the practice direction - for example, they steadfastly refuse to provide a list of the documents that they intend to rely on in court, saying that they cannot do this because proceedings have not started and no defence has been served - this defeats the whole purpose of the PD which is to exchange information and documents BEFORE they start court action and is a deliberate refusal to comply with the PD - of course they know what documents they intend to rely on in support of their OWN case - it is THEIR case, so insist that they provide the documents that they claim proves the case against you.

    Where para 2 refers to ADR tell them that you do not accept that their deadline of 28 days for using POPLA is legal/fair/reasonable. Tell them you are willing to use POPLA and invite them to agree to this. Tell them that if they refuse to consider POPLA ADR then you require documentary evidence that the 28 day time limit is imposed by POPLA (it isn't).

    Carry on going through the list of information for LBC in similar fashion.

    Remind them that they are obliged to follow the steps set out in the PD before starting legal proceedings and remind them of the sanctions under the practice direction for non-compliance, and give them 14 days to respond.

    What happens next?

    Well you'll get another template letter. In fact you may even get a duplicate of the one you had before, or even another LBCCC .... you will certainly get an idea of how disorganised and chaotic they are. But no worries - remember YOUR polite and reasonable letters and THEIR replies all form part of the set of court documents to be placed before the judge, should this case ever go to court - THEY know this and YOU know this, so the longer this shambolic mess goes on, the less likely it is that they will actually proceed to court.

    So you write back again. Still calm and polite, but probably more robustly - after all this is a complete waste of your time - they are the legal experts and you are just an ordinary member of the public with no previous experience of court procedure, so it does seem just a bit ridiculous that you are having to tell them how to do their job, doesn't it? So you might warn them that you will be making a complaint to their head of department if they don't deal with your request for information this time - or maybe you will complain to their CEO, that will make them quake in their boots! NOT! Maybe you'll complain to the Ministry or Justice. The point is to play their silly game, and keep the charade going.

    Once you've written a couple of letters and had two or three letters back from them, it is time to move onto the next stage - which is your Response (see next post).

    OH - just to say, if in the meantime you get the charge dropped, or if they go quiet and stop responding to your letters, do come back and tell us... all feedback is useful to help us to help others.
    Last edited by zzzLazyDaisy; 13-10-2013 at 11:07 AM.
    I'm a retired employment solicitor. Hopefully some of my comments might be useful, but they are only my opinion and not intended as legal advice.
    • zzzLazyDaisy
    • By zzzLazyDaisy 6th Sep 13, 12:16 PM
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    zzzLazyDaisy
    • #8
    • 6th Sep 13, 12:16 PM
    • #8
    • 6th Sep 13, 12:16 PM
    SO, you have played LBC ping pong with PE for a while and now have a file of correspondence showing how reasonable and patient you have been, and how unreasonable and unprofessional PE has been.

    What is the next step?

    You file your Response, as you are required to do, under the PD.

    So at this point I suggest that you send a letter to PE along the following lines:

    -------------------------------------------------------------------------------------------------------

    PE LTD
    LEGAL DEPARTMENT
    ADDRESS

    DATE

    Dear Sirs

    ParkingEye Ltd -v- Name
    Proposed County Court Proceedings


    I refer to the Letter Before County Court Claim served on behalf of your company on [insert date], and to subsequent correspondence.

    [you can add in here one short snappy paragraph with any additional comments that you wish to make about the way in which this case has been conducted to date - see examples below - or just keep the letter simple and leave out this paragraph]

    I am now seeking advice with regard to compiling my formal Response as required by the Practice Direction and confirm that I will provide this document within 30 days of the date of this letter.

    I take this opportunity to remind you that your company must comply with ALL steps in the Practice Direction BEFORE starting court proceedings. I also refer you to Para 4 of the Practice Direction on non-compliance and sanctions.

    Yours faithfully

    PRINT NAME

    --------------------------------------------------------------------------------------------------------

    NOTE:

    You can simply use the above letter as it stands;

    You can use it as a template and put it in your own words and style;

    OR

    You can beef it up and mark it for 'the personal attention of [Text removed by MSE Forum Team] (Head of Legal Department) or (Supervising Solicitor)' and include a first paragraph clearly pointing out that you hold her responsible for the flagrant abuse of court procedure by her staff, since as the solicitor in charge of the department she is responsible to the court for ensuring that her staff comply with court directions and you will be raising this matter with the court in the forthcoming proceedings;

    and/or

    You can make it clear that you fully intend to defend this claim in court and that you are now seeking advice in this regard;

    and/or

    You can add that you consider PE's conduct of these proceedings to date to be a cynical abuse of court process with a view to using the court process as a means to intimidate members of the public and you consider their conduct of this matter to date to be unbefitting of members of the legal profession.

    and/or

    any other comments you may wish to make at this point (but remember this is a court document that will be placed before the judge if this case ever goes to court, so keep it icily civil, calm and polite.

    ---------------------------------------------------------------------------------------------------------

    What next?

    Go back to Annex A of the PD, para 3 and check out what you are required to do, as the defendant.

    Note, this is the final stage in the pre-court action process.

    It is your chance to ask for information and documents that have not been forthcoming to date. So set out your response exactly as it is set out in the PD.

    Do it in letter form, so the letter will start off something like this:

    PE LTD
    LEGAL DEPARTMENT
    ADDRESS

    DATE

    Dear Sirs

    ParkingEye Ltd -v- Name
    Proposed County Court Proceedings


    I refer to my letter of [date] and am now writing to provide my formal Response as follows:

    1 The defendant disputes the claimant's claim in full.

    2 (continue following the numbered paragraphs of the Practice Direction)

    As this is the final pre-action stage, I suggest that you have a read around the forum for threads where people have already received court papers and read the advice on defending the claim. This will give you some ideas on issues you may wish to include in the Response.

    Don't worry that this might be 'showing your hand'. The idea is to comply with the PD AND to make PE realise that you are not going to roll over. You massively reduce the chances of PE issuing proceedings against you by doing this, because they will realise that you are going to be a 'hot potato'.

    When you have got this far, post your Response on your thread (or start a new thread if you have got this far on your own) and we will check out your Response before it goes. If for some reason we miss your post, just leave a short note at the end of this thread saying something like 'please check my Response' and we will find you through your username.

    PLEASE NOTE - do not miss the 30 day deadline as then PE can start court action without waiting for your Response. TBH that isn't likely, but still it isn't worth losing the moral high ground by playing fast and loose with the PD Process at this stage.

    Daisy
    Last edited by MSE ForumTeam2; 02-05-2014 at 10:20 PM.
    I'm a retired employment solicitor. Hopefully some of my comments might be useful, but they are only my opinion and not intended as legal advice.
    • zzzLazyDaisy
    • By zzzLazyDaisy 6th Sep 13, 12:17 PM
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    zzzLazyDaisy
    • #9
    • 6th Sep 13, 12:17 PM
    • #9
    • 6th Sep 13, 12:17 PM
    Here is a letter to send to the PPC if you wish to make an offer to settle.

    Why would you want to do that?

    Well the first reason is obvious - you might just want to pay up and get the monkey off your back, but you don't want to pay the full sum that they are now asking. So you offer them a lesser sum - which may be the first amount that they originally asked for.

    The second reason is less obvious - you may want to make a tactical shot across their bow by paying what you consider to be the genuine loss. For example if this is an overstay on an MSA case where the first three hours are free and then you can pay £10 to stay 24 hours, then you might offer something like £22.50 (£10 parking fee + £2.50 DVLA fee + £10 admin costs). This is just an example, you may calculate the actual amount differently. If they then proceed to court and lose (or win but get less than you have offered) then you can use this against them on the issue of costs.

    BUT in either scenario you must be prepared for the PPC to accept your offer and be willing to write a cheque, or ignore/reject your offer and be willing to fight on.

    Also note: If they do accept your offer, you MUST post the settlement cheque to them as soon as possible, as delay can cancel the offer and result in the letter being used against you.

    Please do NOT use this letter if you have already received court papers as there are other costs issues to consider at that stage.

    --------------------------------------------------------------------------------------------------


    NAME OF PPC's LEGAL DEPT (or Solicitor if acting)
    ADDRESS

    DATE

    WITHOUT PREJUDICE SAVE AS TO THE QUESTION OF COSTS

    Dear Sir


    [Name of PPC] -v- [Name of recipient of LBC]
    Proposed county court claim



    I refer to the Letter Before County Court Claim dated [xxxx].

    That letter is defective in that it fails to comply with the Practice Direction on Pre-action Conduct and I have written to you separately about that issue.

    For the avoidance of doubt liability is denied in full. Should your client choose to start court action against me, the claim will be vigorously defended.

    Nevertheless, and notwithstanding the above comments, in the spirit of disposing of this matter swiftly and conveniently, I am willing to make an offer of settlement in the sum of [£xx] [if this is a GPEOL calculation, then show the calculation here, if not delete this bit] in full and final settlement of your client's claim. This offer is made entirely on a 'without prejudice' basis and with no acceptance of liability.

    PLEASE NOTE: This offer will remain open for a period of 23 days from the date of this letter (namely 21 days plus two days for service) after which time the offer will be withdrawn and any court action will be defended in the normal way. In the event of you failing to achieve a judgment in excess of the sum offered in this letter, an application will be made for an order that your client pay the defendant's wasted costs of the action in full.

    I respectfully remind you of your client's duty to mitigate its losses and trust that you will advice your client accordingly.

    I look forward to receiving your written acceptance of this offer within the timescale stipulated in this letter.

    Yours faithfully

    PRINT NAME
    Last edited by zzzLazyDaisy; 18-10-2013 at 8:03 PM.
    I'm a retired employment solicitor. Hopefully some of my comments might be useful, but they are only my opinion and not intended as legal advice.
    • zzzLazyDaisy
    • By zzzLazyDaisy 12th Oct 13, 11:41 AM
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    zzzLazyDaisy
    PLEASE NOTE: IF THE RK WAS ALSO THE DRIVER, DO NOT SEND THIS LETTER. While it might be tempting to get someone else to 'take the fall' to make this go away, to do so could drop both you and your friend in serious hot water if things went wrong http://news.sky.com/story/1063212/chris-huhne-and-vicky-pryce-jailed

    Send this letter to PE* identifying the driver (it does not matter if you live at the same address, or if you have the same surname, it is the fact that the driver is a different person from the RK that matters). This means that they must then serve a PCN on the driver, and that person can then appeal and get this knocked on the head once and for all at POPLA. Do NOT delay sending the letter as 14 days after the LBCCC they can start court action against you as the RK without further notice. It will then be too late to identify the driver and restart the POPLA clock.

    Send the letter via their webmail address and via snail mail by 1st class post from a post office and get a (free) certificate of posting.

    * Obviously if YOUR PPC is NOT Parking Eye, then you will need to carefully read and change the letters that follow to ensure that they fit the facts of your own situation.

    ----------------------------------------------------------------------------------------

    ParkingEye Ltd
    Legal Department
    [Insert Address]

    [Insert Date]

    [Insert the reference quoted on their LBCCC]

    Dear Sir

    PCN Number xxxx
    Vehicle Registration Number xxxxx


    I am the registered keeper of the above mentioned vehicle.

    I am writing to acknowledge the letter before county court claim dated [insert date] and to inform you that I was not the driver of the vehicle on the date of the alleged 'parking event'.

    Therefore you must pursue the driver, whose details are:

    [INSERT NAME]

    [INSERT ADDRESS]

    PLEASE NOTE: This discharges my obligation as Registered Keeper under PoFA 2012 and any court proceedings will be defended on that basis.

    I look forward to receiving confirmation from you that you will cease all further action against me with immediate effect.

    Yours faithfully

    PRINT NAME

    -------------------------------------------------------------------------------------

    Watch out - PE has form for misquoting POFA and claiming that you are too late to identify the driver. This is a big fat lie. If you do receive a letter like that send you need to write back firmly, and also complain to the BPA and DVLA about their misbehaviour (see letters following)

    At that stage I also strongly suggest that you report the PE's Legal Department and its supervising solicitor, [Text removed by MSE Forum Team], to the Solictors Regulation Authority for serious breaches of the Principles set out in the SRA Handbook, which all solicitors (and firms of solicitors / legal departments) are bound by.

    -------------------------------------------------------------------------------------------------------
    ParkingEye Ltd
    Legal Department
    [Insert Address]

    [Insert Date]

    [Insert the reference quoted on their letter]

    For the personal attention of [Text removed by MSE Forum Team] (Head of Legal Department)

    Dear [Text removed by MSE Forum Team]

    PCN Number xxxxx
    Vehicle Registration Number xxxxx


    I am writing to make a formal complaint about the conduct of your staff.

    The grounds of my complaint are set out below:

    1 I am the Registered Keeper of the above vehicle, however I was not the driver on the day that of the alleged parking event - a fact which I am willing to prove in court if necessary.

    2 By a letter dated [xxx] I advised your department, in writing, of the name and address for service of the driver of the vehicle.

    3 By a letter dated [xxx] your staff acknowledged receipt of my letter identifying the driver but advised me that your company still intends to pursue me, as the Registered Keeper.

    Put simply, it is not open to you and/or your staff to pick and choose against whom to enforce this charge. You and your client are bound by the law of the land, in the same way as any other private parking company. Since you do now know who the driver is and where that person lives, that is the person who you must pursue.

    As a Solicitor of the Supreme Court, and Head of the Legal Department of a large parking company, I have no doubt at all that you are very well aware of the relevant legal provisions under which your company operates. Since the letter that I received from your staff is quite clearly a generic template letter, I can only assume that, as supervising solicitor, you have personally approved the form and content of that letter.

    Nevertheless, I refer you to The Protection of Freedoms Act 2012, specifically Sched 4, Paras 2 and 5. You will see that the legislation provides that in order to pursue the Registered Keeper, your company must be unable to take steps to enforce against the driver because it does not know the name of the driver and a current address for service.

    I also refer you to the flow chart at BPA Code of Practice Appendix E, which explains in simple terms the procedure that you must follow once the Registered Keeper has disclosed the drivers details (please see the blue part on the top right of the flow chart).

    You will see that, nowhere in the legislation, or the supplementary advice provided by the BPA, does it state that the Registered Keeper must provide the driver's details within the arbitrary time limit of 28 days which you are seeking to impose.

    As the template letter sent by your department acknowledges, I have already provided you with the name of the driver together with the driver's current address for service. This means that I have discharged my obligations under POFA 2012 and, as court action had not yet been started at that date, you no longer have any legal grounds to pursue legal proceedings against me, as the Registered Keeper.

    I suggest that you now do what is required of you, and serve a Notice to Driver on the driver of the vehicle on the day in question.


    Yours etc

    PRINT NAME

    cc david.m@britishparking.co.uk
    elizabeth.symons@dvla.gsi.gov.uk;
    report@sra.org.uk

    ----------------------------------------------------------------------------------------------------

    David Metcalf, Operations Manager, British Parking Association
    Email: david.m@britishparking.co.uk

    FORMAL COMPLAINT AGAINST BPA MEMBER ParkingEye Ltd

    Dear Mr Metcalf

    I wish to make a formal complaint about ParkingEye Ltd in respect of its clear breach of POFA 2012 schedule 4, para 5, and the guidance set out in the BPA Code of Practice.

    Specifically, ParkingEye Ltd has stated an express written intention to continue to pursue me as the Registered Keeper, notwithstanding that I have already provided the details of the driver on the day in question, and that no legal proceedings have yet begun in this case (please see the attached copy of their letter with my reply).

    As I am sure you are aware, the arbitrary time limit of 28 days for disclosing driver details which ParkingEye is seeking to impose does not feature anywhere in the legislation nor the BPA code of conduct. I can only assume that this is a cynical and deliberate ploy to mislead the recipient as to the legal provisions with a view to unlawfully eliciting payment from the Registered Keeper.

    I should be obliged if you would investigate this complaint as a matter of urgency, as I am in receipt of a Letter Before Action from this company and it would appear that legal proceedings are imminent.


    Yours etc

    cc DVLA

    ------------------------------------------------------------------------------------------------

    Letter to DVLA

    Please find attached a letter to Mr D Metcalfe of the BPA, with enclosures, the contents of which are self explanatory.

    It is my understanding that confirmation by the parking companies that they will comply with with the BPA code of practice is a pre-condition for accessing the DVLA database for Registered Keeper details. ParkingEye's letter to me clearly breaches this condition. Further, since it is clearly a standard template letter, there can be no doubt that this is not a 'one off' incident.

    I trust that you will now carry out a thorough investigation of ParkingEye's practices and take immediate steps to prevent it from unlawfully accessing Registered Keeper details.

    Yours etc
    Last edited by MSE ForumTeam2; 02-05-2014 at 10:21 PM.
    I'm a retired employment solicitor. Hopefully some of my comments might be useful, but they are only my opinion and not intended as legal advice.
    • zzzLazyDaisy
    • By zzzLazyDaisy 18th Oct 13, 3:56 PM
    • 12,134 Posts
    • 18,762 Thanks
    zzzLazyDaisy
    Thanks, I have just messaged crabman

    Also, after a long quiet spell, PE has now started issuing proceedings against people who have entered into LBCCC correspondence but subsequently let the ball drop and/or not proceeded to serve a final Response.

    I am in the process of preparing a template Response and will update this thread to deal with this development shortly.

    Daisy
    I'm a retired employment solicitor. Hopefully some of my comments might be useful, but they are only my opinion and not intended as legal advice.
    • Computersaysno
    • By Computersaysno 21st Nov 13, 9:08 PM
    • 1,036 Posts
    • 809 Thanks
    Computersaysno
    You end up in court.
    Originally posted by waamo

    Wrong. Wrong. Wrong.

    For most people nothing happens, other than more begging letters from the PPC.

    Many PPCs have never done court.

    A small number issue court papers and so a small number of people either settle, or go to court and then they win or lose.
    Welcome to the world of 'Protect the brand at the cost of free speech'
    • Umkomaas
    • By Umkomaas 21st Nov 13, 9:38 PM
    • 20,646 Posts
    • 32,560 Thanks
    Umkomaas
    Agree with compsaysno - but you do have to pick your PPCs carefully. Regulars will give an indication as to 'risk'.
    Please note, we are not a legal, residential or credit advice forum, rather one that helps motorists fight private parking charges, primarily at the 'front-end' of the process.
    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • waamo
    • By waamo 21st Nov 13, 10:58 PM
    • 4,908 Posts
    • 6,343 Thanks
    waamo
    Letter Before County Court. If a letter is given that name it's pretty certain it is Parking Eye who do court.
    • Umkomaas
    • By Umkomaas 21st Nov 13, 11:03 PM
    • 20,646 Posts
    • 32,560 Thanks
    Umkomaas
    Letter Before County Court. If a letter is given that name it's pretty certain it is Parking Eye who do court.
    Originally posted by waamo
    Or CEL, or SIP, or ANPR Ltd () or Vinci, or VCS/Excel, or (now) Gladstone Solicitors, and now we're on Sols - Trethowans (on behalf of Aintree Hospitals).

    As said above, choose wisely.
    Please note, we are not a legal, residential or credit advice forum, rather one that helps motorists fight private parking charges, primarily at the 'front-end' of the process.
    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • Coupon-mad
    • By Coupon-mad 21st Nov 13, 11:07 PM
    • 64,896 Posts
    • 77,471 Thanks
    Coupon-mad
    STOP!!!!!

    Did you not notice, this thread is from 2013??

    2013!


    Do not read parking threads that are this old, the legal arguments have long since changed and the pre-action protocol was updated in 2017.



    YOU HAVE BEEN WARNED, DO NOT READ OLD THREADS

    You are just TWO clicks away from the current advice and live forum help.

    See my signature, below...
    Last edited by Coupon-mad; 17-03-2018 at 1:10 AM.
    • Umkomaas
    • By Umkomaas 21st Nov 13, 11:11 PM
    • 20,646 Posts
    • 32,560 Thanks
    Umkomaas
    Or UKCPS or PCN (NW) or PCM or Napier or Devere to name a few more litigious PPCs!
    Originally posted by Coupon-mad
    Brain meltdown to have forgotten that lot

    My bad - must be slippin'
    Please note, we are not a legal, residential or credit advice forum, rather one that helps motorists fight private parking charges, primarily at the 'front-end' of the process.
    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • The Deep
    • By The Deep 22nd Nov 13, 11:27 AM
    • 11,009 Posts
    • 10,974 Thanks
    The Deep
    So, to sum up, if you ignore a letter before action, it will not harm your defence. As a landlord, I am no stranger to the CC, and I think that I would rather talk to the judge than jump through all of those LBA hoops.

    The fact is that nearly all of these claims have no foundation, PPCs will turn up at court mob handed and try to bamboozle you with 100 pages of dodgy argument. All you need do is find their Achilles Heel, be it contract, losses, faulty cameras, breach of COP, pre-signed witness statements, whatever, etc., and the balance of probabilities will swing in your favour.

    I would very much hope that Judges have now got the measure of these shysters and will bend over backwards to end this abuse of legal process.

    I suppose that most people have never attended a CC and the very thought of it terrifies them. I was summoned to court once after a motor accident. My insurance company supplied me with a barrister, (he was useless), the claimant put up another barrister who was even more useless. Mt barrister won. CC is no big deal.
    • Coupon-mad
    • By Coupon-mad 22nd Nov 13, 12:31 PM
    • 64,896 Posts
    • 77,471 Thanks
    Coupon-mad
    STOP!!!!!

    Did you not notice, this thread is from 2013??

    2013!


    Do not read parking threads that are this old, the legal arguments have long since changed and the pre-action protocol was updated in 2017.



    YOU HAVE BEEN WARNED, DO NOT READ OLD THREADS

    You are just TWO clicks away from the current advice and live forum help.

    See my signature, below...
    Last edited by Coupon-mad; 17-03-2018 at 1:11 AM.
    • The Deep
    • By The Deep 22nd Nov 13, 3:21 PM
    • 11,009 Posts
    • 10,974 Thanks
    The Deep
    You make a good case. If people do not turn up, or have not done their homework, then, given the way the law works, they deserve to lose. But it does seem an incredible amount of time and energy to fight off a speculative invoice, especially if you are working all hours to keep a job, or pay the gas bill. Is it any wonder people give in to get them off their back?

    What is needed is much more help from Trading Standards but their staff levels have been cut to the bone by local authorities in porder that they may continue to employ the requisite number of Diversity Co-ordinators.
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