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VCS LBC Albert Street
suggii
post Tue, 23 Oct 2018 - 12:34
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Hi, my husband received a Letter before claim from VCS.
His a private hire taxi driver and dropped a passenger in a VCS Albert Street car park. However his car started to give problems while trying to drive off. So he stopped to check his car bonnet. He even cancelled the next job he received to try and see if he can fix the problem. It took him a short while (29minutes according to VCS ANPR)while he was there.
He received a NTK and made the mistake of calling and explaining the situation. My husband even asked to check CCTV footage to see him trying to fix his car, to which they replied we don’t have CCTV at the car park.
We realised later this mistake after checking Online forums and knew we shouldn’t have called them.

My husband appealed and it was unsuccessful, to which he called them and they demanded the payment. He was told to email them and ask for the appeal result and demand the reason for the decision. Which he got no reply at all.
They sent letters increasing from £100 to £160, then debt collector letter from companies like zenith. We ignored all that from online advice.
We now have received the dreaded letter before claim, which they are claiming money and estimated amounts around £200 including court fees and interest.
They just demand a response to pay them the £160 within 30days of the letter. They sent a reply form to fill In details and a standard financial statement (which i wont be filling in, from forum advice.)

i am at the stage of writing a Rebuttal (from Daniel sans letter) and a SAR letter.

i will appreciate if anyone can give feedback to my letters i will post below. i have until sunday 28th to respond by.



Ref: XXX

Dear Sirs,

I am in receipt of your Letter Before Claim of DD MM 2018.

Your letter contains insufficient detail of the claim and fails to provide copies of evidence you place reliance upon.

You must know that on 01 October 2017 a new protocol is applicable to debt claims. Since proceedings have not yet been issued, the new protocol clearly applies and must be complied with.

Your letter lacks specificity and breaches both the requirements of the previously applicable Practice Direction - Pre-Action Conduct (paragraphs 6(a) and 6©) and the new Pre-Action Protocol for Debt Claims (paragraphs 3.1(a)-(d), 5.1 and 5.2. Please treat this letter as a formal request for all of the documents / information that the protocol now requires you to provide. You must not issue proceedings without complying with that protocol. I reserve the right to draw any failure of the Claimant to comply with the protocol to the attention of the court and to ask the court to stay the claim and order you to comply with its pre-action obligations, and when costs come to be considered.

As litigation department you must surely be familiar with the requirements of both the Practice Direction applicable pre-1 October and the Protocol which applies thereafter (and you, as a serial litigator of small claims, should likewise be aware of them). As you must know, the Practice Direction and Protocol bind all potential litigants, whatever the size or type of the claim. Its express purpose is to assist parties in understanding the claim and their respective positions in relation to it, to enable parties to take stock of their positions and to negotiate a settlement, or at least narrow the issues, without incurring the costs of court proceedings or using up valuable court time. It is astounding that a firm of Solicitors are sending a consumer a vague and unevidenced 'Letter before Claim' in complete ignorance of the pre-existing Practice Direction and the new Protocol.

Nobody is immune from the requirements and obligations of the Practice Direction and now the Protocol.

I require you 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 vehicle was parked, for how long, how the monies being claimed arose and have been calculated

5. Is the claim for a contractual breach? If so, what is the date of the agreement? The names of the parties to it and provide to me a copy of that contract.

6. Is the claim for trespass? If so, provide details.

7. Provide me a copy of the contract with the landowner under which they assert authority to bring the claim, as required by the IPC code of practice section B, clause 1.1 establishing yourself as the creditor

8. a plan showing where any signs were displayed

9. details of the signs displayed (size of sign, size of font, height at which displayed)

10. Provide details of the original charge, and detail any interest and administrative or other charges added

11. Provide a copy of the Information Sheet and the Reply Form

If you do 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 you and to order a stay of the proceedings, pursuant to paragraphs 13 ,15(b) and © and 16 of the Practice Direction, as referred to in paragraph 7.2 of the Protocol.

Until you have complied with your 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 you to issue proceedings. Should you 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


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


SAR Letter

Dear Sir

Ref: PCN ref xxxxxxxxxx

I am writing in reference to the recent letter before claim sent (Date) demanding for payment of the parking charge. I have explained previously through phone calls explaining the incident (date) at Albert Street car Park.

I am a private hire taxi driver, car registration (xxx xxx). On the day of the incident I was working and driving on the request of my passenger, whom wanted to be dropped off at the Albert Street Car Park, as it was easier for them to walk towards New Street Station. I have attached a journey route of the journey I had made to prove I was on duty at the said time.
However, upon leaving the car park my car broke down as it had an intermittent fault, due to this I couldn’t leave the car park as desired, the fault resolved after a short while and I left the car park.

This letter is not an appeal, it must be considered as a Subject Access Request. I would like to request for all data held and processed which is;
- All the photos taken on the day;
- All human intervention notes;
- All electronic data including automated decisions to generate letters;
- A close up of the sign on the day with the car parked/empty in the same view;
- All photos relating to this case, without holding none at all,
- Copies of the PCN and all letters sent.

This is a Subject Access Request but also an Objection to Processing and a formal request to Restrict Data Processing. As such, any litigation MUST be on hold and I will be making an Information Commissioners Office complaint for the mishandling of the Subject Access Request and Restricted Data request and misuse of my personal data evolving from; intrusive, unjustified, predatory and disproportionate collecting of photographic data of a car with a driver in it not parking at all and certainly nothing can be described as ‘reasonable cause’ to get DVLA data and demand money.

Kind regards
---------



Would this be ok to send as a SAR? or should i omitt the section on what happened on the day of the incident?
i would greatly appreciate any feedback on both the rebuttal and SAR letter.
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post Tue, 23 Oct 2018 - 12:34
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ManxRed
post Tue, 23 Oct 2018 - 14:12
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The SAR looks OK, but I would omit the 'what happened on the day'.

I'm not an expert on the LBC rebuttals.

Despite outing himself as the driver, one of the main defence points should be 'Frustration of Contract.'

This is an incident beyond his control which prevented him from complying with the terms of any contract that may have been formed by the signs at that location. Please Google the term.

Who knows, the sign itself may also be deficient. Does he have any photos?

This post has been edited by ManxRed: Tue, 23 Oct 2018 - 14:15


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suggii
post Tue, 23 Oct 2018 - 14:22
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Thank you ManxRed, for replying. I will omit the day of incident.
O/H called them once after receiving the NTK and told what happened. So I’m assuming they know his the driver. Later realised after reading online forums not to give out driver details.

Photos of the signs is a problem as he didn’t take any. I visited the site few weeks back. The car park no longer exists as it’s being taken over by the H2S planning. All the signs and stuff is no longer there.

The Frustration of Contract I wouldn’t need to add that yet to the letters? Or is that for later defence stage? (Sorry for these questions trying to understand all this)

Regards

Suggii
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ManxRed
post Tue, 23 Oct 2018 - 14:51
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QUOTE (suggii @ Tue, 23 Oct 2018 - 15:22) *
Thank you ManxRed, for replying. I will omit the day of incident.
O/H called them once after receiving the NTK and told what happened. So I’m assuming they know his the driver. Later realised after reading online forums not to give out driver details.

Photos of the signs is a problem as he didn’t take any. I visited the site few weeks back. The car park no longer exists as it’s being taken over by the H2S planning. All the signs and stuff is no longer there.

The Frustration of Contract I wouldn’t need to add that yet to the letters? Or is that for later defence stage? (Sorry for these questions trying to understand all this)

Regards

Suggii


Shame about the signs, fingers crossed they turn up with the SAR information, or as part of the LBC information - they're supposed to send you everything they intend to rely on.

The Frustration of Contract argument should be for when you actually respond to the LBC, rather than your current complaint about it being deficient. If they've sent you a copy of the signs and paperwork by then, then we can pick holes in that too, as well as query their legal standing on the land - did they have the correct contractual authority to operate there? - you'd be surprised at how many don't.


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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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suggii
post Tue, 23 Oct 2018 - 16:52
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The Frustration of Contract argument should be for when you actually respond to the LBC, rather than your current complaint about it being deficient. If they've sent you a copy of the signs and paperwork by then, then we can pick holes in that too, as well as query their legal standing on the land - did
QUOTE
they have the correct contractual authority to operate there? - you'd be surprised at how many don't.



I’m not sure about the contractual authority? How would I find that out? I’ve been told it’s run by Excel sister firm to VCS.
So should I add in a paragraph on frustration of contract on the LBC response (rebuttal) I have written above? Or wait for their reply of My rebuttal? I don’t know how to incorporate Frustration of contract into my rebuttal. Any suggestion would be good.
Am I making sense? Correct me if I am not.
I was going to send the rebuttal and SAR this week. So I doubt I will get a response that quick from VCS.

Thanks
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ostell
post Tue, 23 Oct 2018 - 20:13
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are the car park signs Excel or VCS. They may be sister companies but they can't chop and change between themselves.
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suggii
post Tue, 23 Oct 2018 - 20:49
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My O/H doesn’t remember as he didn’t pay attention to the signs at the time. He was just dropping off a passenger and wasn’t intending on staying there. So he didn’t really look at the signs.
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ostell
post Tue, 23 Oct 2018 - 21:45
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Which Alber street then we can look on Google.
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suggii
post Tue, 23 Oct 2018 - 21:57
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Albert Street Birmingham B5 5JH
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ManxRed
post Wed, 24 Oct 2018 - 08:17
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It appears to be Excel. So, VCS probably don't have Legal Standing!

In any event, no contract was formed with VCS Ltd. As pointed out, it doesn't matter that they are sister companies, they are different legal entities.

https://www.google.co.uk/maps/@52.4802043,-...33;8i6656?hl=en

Sorry, not sure how to do Google Street View links.


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ostell
post Wed, 24 Oct 2018 - 09:32
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The link works.

Yes, VCS have done it again. The driver has a contract with Excel and VCS, as a third party, can't come into the act. If you tell them now they may just swap horses and issue a corrct LBC from Excel. I would be tempted to let them actually raise a claim and then hit them with the defence that they were not a party to the contract and are the wrong claimants and cannot continue. Wonder what others think,

Ref your SAR. Leave out the personal bits at the beginning, a SAR is for just requiresting data.
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ManxRed
post Wed, 24 Oct 2018 - 09:44
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QUOTE (suggii @ Tue, 23 Oct 2018 - 17:52) *
I don’t know how to incorporate Frustration of contract into my rebuttal. Any suggestion would be good.


Google Frustration of Contract.

VCS are alleging that the driver formed a contract with them by reading the terms and conditions on the sign, and accepting them by remaining on site (as opposed to rejecting them and leaving). This is called acceptance by performance. Obviously the driver could only form a contract with Excel, not VCS, by virtue of the signs being in the name of Excel but that's an additional defence point (and probably the strongest).

In addition though, the contract was frustrated. Even if a contract had been formed with VCS (which is denied), then essentially the contract, or the parts of the contract relating to that aspect of the service (so in this case, the whole contract) is deemed null and void if either party is prevented - through no fault of that party - from upholding the terms and conditions of the contract. In this case the driver was prevented from adhering to the terms and conditions through a mechanical problem. If the contract is deemed void as a result then Excel cannot sue for breach (and nor can VCS).

This post has been edited by ManxRed: Wed, 24 Oct 2018 - 09:45


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suggii
post Wed, 24 Oct 2018 - 09:58
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Thanks for that ManxRed and Ostell. I will send the SAR (without the personnel info)
What is the best way;email the litigation department email on the LBC or post with proof of posting.
I will repost the final for SAR.

Was wondering if I should send the rebuttal as it is? As I need to respond this week (they gave 30days from the LBC being sent)

QUOTE (ManxRed @ Wed, 24 Oct 2018 - 10:44) *
QUOTE (suggii @ Tue, 23 Oct 2018 - 17:52) *
I don’t know how to incorporate Frustration of contract into my rebuttal. Any suggestion would be good.


Google Frustration of Contract.

VCS are alleging that the driver formed a contract with them by reading the terms and conditions on the sign, and accepting them by remaining on site (as opposed to rejecting them and leaving). This is called acceptance by performance. Obviously the driver could only form a contract with Excel, not VCS, by virtue of the signs being in the name of Excel but that's an additional defence point (and probably the strongest).

In addition though, the contract was frustrated. Even if a contract had been formed with VCS (which is denied), then essentially the contract, or the parts of the contract relating to that aspect of the service (so in this case, the whole contract) is deemed null and void if either party is prevented - through no fault of that party - from upholding the terms and conditions of the contract. In this case the driver was prevented from adhering to the terms and conditions through a mechanical problem. If the contract is deemed void as a result then Excel cannot sue for breach (and nor can VCS).



Thnx ManxRed
This is what I found on MSE. I cant find the link. But do I just write as that in the rebuttal?

Frustration of contract

I rely on the doctrine of Frustration of Contract. The contract was formed between the Claimant and the driver. There was, in this case, a change in circumstances which was not the fault of either party, and which rendered it impossible for the driver to perform the contract.

Where a contract is found to be frustrated, each party is discharged from future obligations under the contract and neither party may sue for breach. The allocation of loss is decided by the Law Reform (Frustrated Contracts) Act 1943, but in this case there was no loss to the Claimant at the time the contract was breached, and so they have no valid claim for £100 or any amount at all. The case of Nicholl and Knight v Ashton, Eldridge & Co [1901] 2 KB 126 provides authority for this.


QUOTE (ManxRed @ Wed, 24 Oct 2018 - 09:17) *
It appears to be Excel. So, VCS probably don't have Legal Standing!

In any event, no contract was formed with VCS Ltd. As pointed out, it doesn't matter that they are sister companies, they are different legal entities.

https://www.google.co.uk/maps/@52.4802043,-...33;8i6656?hl=en

Sorry, not sure how to do Google Street View links.



I can’t seem to find the street view clicking on the link. It takes me to maps but not at the location.

Amended SAR Letter. Is that better?

Dear Sir

Ref: PCN ref xxxxxxxxxx

I am writing in reference to the recent letter before claim sent (Date) demanding for payment of the parking charge.

This letter is not an appeal, it must be considered as a Subject Access Request. I would like to request for all data held and processed which is;
- All the photos taken on the day;
- All human intervention notes;
- All electronic data including automated decisions to generate letters;
- A close up of the sign on the day with the car parked/empty in the same view;
- All photos relating to this case, without holding none at all,
- Copies of the PCN and all letters sent.

This is a Subject Access Request but also an Objection to Processing and a formal request to Restrict Data Processing. As such, any litigation MUST be on hold and I will be making an Information Commissioners Office complaint for the mishandling of the Subject Access Request and Restricted Data request and misuse of my personal data evolving from; intrusive, unjustified, predatory and disproportionate collecting of photographic data of a car with a driver in it not parking at all and certainly nothing can be described as ‘reasonable cause’ to get DVLA data and demand money.

Kind regards
---------
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ManxRed
post Wed, 24 Oct 2018 - 10:00
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Search it yourself. Word of warning, its not in Albert Street at all (that's an NCP multi-storey), but in Seymour Street just to the east. The Google Street View actually goes around inside the car park so you can see all the signs fairly clearly (well, certainly enough to determine that they are Excel signs).


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suggii
post Wed, 24 Oct 2018 - 10:02
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Thanks ManxRed, will check it now.
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suggii
post Wed, 24 Oct 2018 - 10:16
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Yes, I just had a look. They are in the name Excel. It’s not clear but you can just about make its Excel.
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ManxRed
post Wed, 24 Oct 2018 - 10:19
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If you move the street view around it goes inside the car park where you can zoom in on the signs and almost read the words on them. It's very very clear. Especially the one by the exit saying Thank You.

This post has been edited by ManxRed: Wed, 24 Oct 2018 - 10:20


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suggii
post Wed, 24 Oct 2018 - 11:01
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yes that sign is much clearer. thanx ManxRed.

i will send the SAR, post and email (both or is email to litigation dept enough)?

would i need to address to them for my response that there is no contract if it is frustrated through mitigating circumstances? im stuck on this and confused how to go about including it into letter of response. what i am thinking is if i mention it now in the LBC response then can later pick on it in defence if it goes to court? is that how it works? i am not sure, if anyone can explain this if they have better knowledge of this.

kind regards

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nosferatu1001
post Wed, 24 Oct 2018 - 11:39
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Send by post to their Data Controller, first class, free proof of posting.

Frustration is NOT MITIGATING CIRCUMSTANCES. Frustration is *there is no longer a contract that can be charged for*

Literally, anything you write to them they can use later, if it helps them. Same as anythign THEY write YOU can use, if it helps you.
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suggii
post Wed, 24 Oct 2018 - 13:25
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thanx Nosferatu1001 i will just leave that bit out for now and just send the rebuttal as it is.

i dont know what the Data controller address is. I got 2 different VCS addresses on the NTK and LBC letter from litigation dept (registered Office). Which would i go with?

apologies if im being a pain.
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