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SIP Letter Before Claim
parkingpaul
post Tue, 16 Oct 2018 - 10:15
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Hi all,

Sorry for another one of these threads, however I can’t seem to find the exact response to this case.

In Feb 2018, a ticket was issued for parking outside a marked bay in an underground car park. The reasoning for this was that a trolley/object from the car park was in the way of the space and couldn’t be moved, therefore the car was parked slightly to the right to make sure the object wouldn’t fall on the car.

Having read forums, I ignored the letters that proceeded until today I received the letter before claim which asks me to pay £160 or potentially go to court. I understand the likelihood of this is low, but I also know now might be the time to respond.

I've heard people say ignore is the best remedy and the letters will go away as private car parks very rarely bother to go the full distance with the claim, but I feel like that's just wishful thinking.

What do you suggest I reply with for this case?

Any help would be greatly appreciated.

Thanks,
PP

This post has been edited by parkingpaul: Tue, 16 Oct 2018 - 12:31
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post Tue, 16 Oct 2018 - 10:15
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The Rookie
post Tue, 16 Oct 2018 - 10:44
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The likelyhood of it gong to court depends on the parking company, if it’s a genuinely letter before claim though it’s probably now greater than 50%.

Which operator? Circumstances? Signage?

You need a robust response to the LBC.


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There is no such thing as a law abiding motorist, just those who have been scammed and those yet to be scammed!

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Dave65
post Tue, 16 Oct 2018 - 10:56
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In the meantime edit your post and remove anything that may ID the driver, refer only to "the driver" did this or that
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Jlc
post Tue, 16 Oct 2018 - 11:29
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Some companies can be ignored and indeed a court claim never materialises. Unfortunately, this one is quite litigious but is in the usual roboclaim queue so not all is lost.

I presume this is a parked outside of marked bay?

In hindsight, ignoring them completely was not the best decision but nevertheless I wouldn't roll over and pay.


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information

Private Parking - remember, they just want your money and will say almost anything to get it.
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parkingpaul
post Tue, 16 Oct 2018 - 11:30
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The letter is from SIP Parking Ltd and they are claiming that the car was parked outside of a marked bay.

The car wheels were over the line as the original bay was blocked to the front by a trolley / tool that is used to carry heavy objects. In order for the trolley not to fall on the car, the car was parked slightly to the right over the bay next door. The bay next door couldn't be used as it isn't full sized and wouldn't fit a car.

Signage was above the parking meter and states 'you must also park fully within the confines of a marked bay' however doesn't mention anything about obstructions.
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SchoolRunMum
post Wed, 17 Oct 2018 - 00:35
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Why don't you just sit down & read the other thread at the top of the thread list right now, about SIP Parking issuing a PCN for parking out of a bay? It's at Witness Statement stage and shows you what NOT to do (a dreadful defence of nothing, that we have tried to rescue by shoe-horning some proper points in at Witness Statement stage before the hearing.

BTW if that case is lost next month it will be a rare one seen here, and NOT one where we assisted with a defence, so a cautionary tale, or a lucky win if it works out.

Most people work through a decent defence with our help and don't have such a hole to dig themselves out of, as that person does at their hearing! We normally see winsa and much more well argued cases. But at least you can see from the WS she wrote, what NOT to put!
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parkingpaul
post Wed, 17 Oct 2018 - 08:50
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Thanks, just read through and keen not to make those same mistakes! I'm currently sending off the below letter to SIP in response to the LBC.

They've not yet sent any photos or further info through. Once they do so I'll let you know their response before the appeal process.

Dear Sir/Madam,

I refer to a ‘letter before claim’ form issued on the 15th October 2018.

Your letter contains insufficient detail of the claim and fails to provide the photographic evidence required. It does not state what the cause of action is, nor does it contain any mention of what evidence your client intends to rely on, or enclose copies of such evidence.

I require your client to comply with its obligations by sending me the following information/documents:

1. an explanation of the cause of action
2. whether they are pursuing me as driver or keeper
3. whether they are relying on the provisions of Schedule 4 of POFA 2012
4. what the details of the claim are (where it is claimed the car was parked, for how long, how the monies being claimed arose and have been calculated, what contractual breach (if any) is being claimed)
5. a copy of the contract with the landowner under which they assert authority to bring the claim
6. a copy of any alleged contract with the driver
7. a plan showing where any signs were displayed
8. details of the signs displayed (size of sign, size of font, height at which displayed)
9. If they have added anything on to the original charge - what that represents and how it has been calculated.

I am clearly entitled to this information under paragraphs 6(a) and 6© of the Practice Direction. I also need it in order to comply with my own obligations under paragraph 6(b).

If your client does not provide me with this information then I put you on notice that I will be relying on the cases of Webb Resolutions Ltd v Waller Needham & Green [2012] EWHC 3529 (Ch), Daejan Investments Limited v The Park West Club Limited (Part 20) – Buxton Associates [2003] EWHC 2872, Charles Church Developments Ltd v Stent Foundations Limited & Peter Dann Limited [2007] EWHC 855 in asking the court to impose sanctions on your client and to order a stay of the proceedings, pursuant to paragraphs 13 ,15(b) and © and 16.

Under the Data Protection Act 2018, you have one month to supply the above at no cost to myself. Please advise if you intend not to comply with the request or the timescales so that I can take further advice from the Information Commissioner's Office.

Until your client has complied with its obligations and provided this information, I am unable to respond properly to the alleged claim and to consider my position in relation to it, and it is entirely premature (and a waste of costs and court time) for your client to issue proceedings. Should your client do so, then I will seek an immediate stay pursuant to paragraph 15(b) of the Practice Direction and an order that this information is provided.

Yours faithfully,
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parkingpaul
post Tue, 6 Nov 2018 - 09:02
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Hi all,

I received a response to the above letter.

They confirmed they are pursuing me as the RK and sent through photo evidence of the bay and signage. After having a look through a similar case, I've found the 'golden ticket' ruling which I think applies in this case. There was no mention of POFA on the PCN. Would the next steps be appeal to get a POPLA code?

Thanks,
PP
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Jlc
post Tue, 6 Nov 2018 - 09:28
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You won't get a POPLA code from an IPC member.

And they won't accept any appeal anyway at this late stage.

It's either pay or defend at court if they raise a claim.


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information

Private Parking - remember, they just want your money and will say almost anything to get it.
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parkingpaul
post Tue, 6 Nov 2018 - 09:35
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So does the fact that they do not know who is the driver not matter at this stage? They only have details of the RK of the vehicle and seems they cannot prove who was the driver on that day.
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The Rookie
post Tue, 6 Nov 2018 - 09:41
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Yes it matters, they are pursuing you as the RK, if they haven't met the requirements of PoFA (and its rare that they do) then they have no case against you as RK, merely against the driver whoever that may be.

In addition the penile nature of the charge is not saved by Beavis as there is no reasonable interest served by it as you were impeding a bay that couldn't be used as a bay anyway, so De Minimis applies.


--------------------
There is no such thing as a law abiding motorist, just those who have been scammed and those yet to be scammed!

S172's
Rookies 1-0 Kent

Council PCN's
Rookies 1-0 Warwick
Rookies 1-0 Birmingham

PPC PCN's
Rookies 8-0 PPC's
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kommando
post Tue, 6 Nov 2018 - 09:45
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QUOTE
So does the fact that they do not know who is the driver not matter at this stage?


In their mind no it does not matter, but you have a good defence in that you can show they did not comply with POFA 2012 and so cannot transfer liability from the driver to the keeper. Plus the parking over a line can be seen as De minimis.

https://en.wikipedia.org/wiki/De_minimis

So you continue to refer only to 'The driver', they are Robo claiming and using the court system to apply pressure even in hopeless cases, this is profitable for them as most people fold.
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parkingpaul
post Tue, 6 Nov 2018 - 09:45
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Okay great, thanks for that.

In that case, I've been reading the forum and the Newbies thread and have seen this response. Would this be suitable as next steps?



As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the Operator to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

Furthermore, the vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

Understanding keeper liability
'There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle. 

There is no 'reasonable presumption' in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.'

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA. 
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ManxRed
post Tue, 6 Nov 2018 - 09:57
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So, as they are pursuing you as the Registered Keeper, the onus is on them to prove either (a) 'on the balance of probabilities' the Registered Keeper was also driving. This will be tough, or (b) that they broadly complied with Schedule 4 of the Protection of Freedoms Act. The tone of the reply indicates (b).

You need to focus on defending (b) by compiling a list of where they have failed to comply.


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Sometimes I use big words I don't understand in an effort to make myself sound more photosynthesis.
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Jlc
post Tue, 6 Nov 2018 - 10:06
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One presumes a PCN was placed on the car at the time?

If so, they had to deliver the NtK from day 28 to 56 for even attempt keeper liability. Did the NtK make any reference to the Protection of Freedoms Act?

The reference NtK I have has the paragraph 'Please be warned: that if...'.

This post has been edited by Jlc: Tue, 6 Nov 2018 - 10:09


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information

Private Parking - remember, they just want your money and will say almost anything to get it.
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parkingpaul
post Tue, 6 Nov 2018 - 10:08
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QUOTE (ManxRed @ Tue, 6 Nov 2018 - 10:57) *
You need to focus on defending (b) by compiling a list of where they have failed to comply.


Excuse my ignorance, this is all new to me! Are there any general reasons as to where they usually fail to comply?

This post has been edited by parkingpaul: Tue, 6 Nov 2018 - 10:08
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Jlc
post Tue, 6 Nov 2018 - 10:10
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Have a look here.

They have to fully comply with the conditions and there's a lot of them. But there might be situations where the Judge might accept substantively complying...


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information

Private Parking - remember, they just want your money and will say almost anything to get it.
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parkingpaul
post Tue, 6 Nov 2018 - 10:12
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QUOTE (Jlc @ Tue, 6 Nov 2018 - 11:06) *
One presumes a PCN was placed on the car at the time?

If so, they had to deliver the NtK from day 28 to 56 for even attempt keeper liability. Did the NtK make any reference to the Protection of Freedoms Act?

The reference NtK I have has the paragraph 'Please be warned: that if...'.


Yes, there was a PCN on the car and the NtK came through after 6 weeks so 42 days later. There is no POFA mentioned but it does contain the "Please be warned: that if..." paragraph.

Hope that helps?
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Jlc
post Tue, 6 Nov 2018 - 10:19
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Then may be they can pursue you... Check all of the necessary items from the link above.

This post has been edited by Jlc: Tue, 6 Nov 2018 - 10:19


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information

Private Parking - remember, they just want your money and will say almost anything to get it.
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parkingpaul
post Tue, 6 Nov 2018 - 10:28
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The link is great, thanks for firing that over.

The NTK paragraph is the one that stands out to me. It seems they haven't included the below point on the NtK.

Details of the discount for payment within 14 days, The Discount should be at least 40% of the full charge under the BPA Code of Practice (applies to BPA Members only).

There is no mention of this at all on the NtK, it simply states that I must pay £100 by cheque/credit or debit card. It does mention it on the parking ticket itself, but from what I'm reading it also needs to be on the NtK?


This post has been edited by parkingpaul: Tue, 6 Nov 2018 - 10:31
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