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Letter before claim - old VCS PCN
idaho
post Mon, 24 Feb 2020 - 21:18
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Hi,

I have received a letter before claim from ELMS Legal representing VCS and wondering how best to proceed.

The original PCN was from 2016 at the Flora Street car park in Sheffield. The car was parked in what looked like a normal park of the car park, between 2 other cars in a group of about 10. When the driver returned to the car there was a ticket on the windscreen (of all the cars in this area) for parking in a restricted area (not sure of the exact wording as I no longer have the original PCN and haven't got a photo of the front of it - just the rear). VCS state that the area where the car was parked is restricted but there are no markings or signage to directly indicate this.

I used Private Parking Appeals to contest the charge and, despite a few emails to them, heard nothing back from them. Since I heard nothing about the PCN either way I assumed it had been resolved.

The original PCN was £100 (£60 if pay early). The new claim is £160 and if it goes to court £160 + £12 interest (estimated 8%), £50 court fees, £50 solicitors costs. Grand total £272.

What is my best course of action to appeal/challenge this?

Thanks in advance.
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post Mon, 24 Feb 2020 - 21:18
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idaho
post Thu, 4 Jun 2020 - 13:47
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Thanks for that Nosferatu.

I responded before you got back but strongly denied the debt stating keeper liability, signage, lack of legitimacy due to abuse of process and also raised their failure to follow practice direction.

They have sent me this as their response (attached) which for some reason was originally a really badly formatted .tiff file!

Interestingly, they have not mentioned the abuse of process. Is the best route to engage with this or simply to firmly re-state abuse of process/ keeper liability and I'll claim full costs. Thanks for the tip on indemnity basis - I had only considered standard costs. Not sure I'd go about calculating the number of hours spent - it's an amazing number of hours reading forums.
Attached File(s)
Attached File  Response_edited.pdf ( 1.03MB ) Number of downloads: 76
 
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nosferatu1001
post Thu, 4 Jun 2020 - 13:53
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Of course they wont mention abuse of poriocess. That isnt in their template, yet, and I imagine wont be.
FIrmly restate the position, and note their inaccuracies as regards POFA.
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idaho
post Sat, 6 Jun 2020 - 19:16
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Thanks Nosferatu.

I'd thought that was what needed to be done but it's good to get more knowledgeable advice. It did read as a standard template - I can't how amateurish they are!
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nosferatu1001
post Thu, 11 Jun 2020 - 12:51
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Its professional cost cutting.
Bespoke answers cost money.
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idaho
post Sun, 21 Jun 2020 - 12:15
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So I sent the letter below back to them:


Your assert that you claim is legitimate. Your response can only be in the form of a copy
and paste template as it totally fails to address the point I raised about abuse of process.
The reality is that you have not explained the legal authority to add £60 ?

The £160 charge was clear breach of POFA, due to paras 4(5) and 4(6), it is clearly
unconscionable, due to the Beavis case paras 98, 193, 198 and 287, and it is a clear
breach of he Consumer Rights Act 2015, Schedule 2, paragraphs 6, 10 and 14.

This well establish abuse of process has resulted in numerous similar claims being
summarily struck out. For reference:
• Judge Taylor in the Southampton Court, June 2019,
• Deputy District Judge Josephs, Warwick County Court, December 2019.
• District Judge Fay Wright, Skipton County Court,February 2020.

All of whom stated:
‘The claim contains a substantial charge additional to the parking charge which it is
alleged the defendant contracted to pay, This additional charge is not recoverable
under the protection of freedoms act 2012, Schedule 4 not with reference to the
judgement in parking eye v Beavis. It is an abuse of process from the claimant to
issue a knowingly inflated claim for an additional sum which it is not entitled to
recover.’


Furthermore, District Judge Grand, sitting in Southampton, November 2019, dismissed an
appeal to set aside Judge Taylor’s order, stating:
‘When I come to consider whether the striking out of the whole claim is appropriate,
that the inclusion of the £60 charge means that the whole claim is tainted by it, the
claimant should well know that it is not entitled to the £60. The very fact that they
bring a claim in these circumstances seems to me that it is an abuse of process of
the court, and in saying that, I observe that with any claim that can be brought
before the court that if a party doesn't put in a defence to the claim, default
judgements are entered. So, the Claimant, in bringing the claims is, in other cases,
aware that if the defendant doesn’t submit a defence, the Claimant is going to get a
judgement of a knowingly inflated amount.’


The addition of the purported £60 costs would also be against the principle in the Pre-
Action Protocol which states that the Claimant should not inflate the claim.
2.1 © encourage the parties to act in a reasonable and proportionate manner in all
dealings with one another (for example, avoiding running up costs which do not
bear a reasonable relationship to the sums in issue);


Since the the limitation on liability in POFA is an absolute, and the Bevis judgement clearly
states that the parking charge includes the recovery costs of operating a scheme, I ask
you under legal authority do you add the additional £60. This nothing but an obvious ploy
to circumvent the Small Claims costs rules regarding double recovery.


The Notice to Keeper is not compliant with POFA 2012. The Notice fails to use the correct
wording in 9(2)(f)
(f)
warn the keeper that if, after the period of 28 days beginning with the day
after that on which the notice is given—
(I)
the amount of the unpaid parking charges specified under paragraph
(d) has not been paid in full, and
(ii)
the creditor does not know both the name of the driver and a current
address for service for the driver,
the creditor will (if all the applicable conditions under this Schedule are met) have
the right to recover from the keeper so much of that amount as remains unpaid
;

A wording error that is also occurs in you last letter. A mistake that I am surprised to see in
communications from a legal firm. As you will be completely aware, there is no "reasonable
presumption" in *law* that the keeper is the driver. Since the NTK fails to comply with
POFA 2012, the keeper cannot be held liable.

The Letter Before Claim is very obviously not compliant with the requirements of Practice
Direction, as detailed in my letter (23 rd April 2020). I hardly consider refusal of engage in
any for of ADR or providing concise details of the claim, including the basis on which the
claim is made and a summary of the facts, to be a ‘minor deviation’ as your letter suggests.
A stance I’m sure the courts would agree on.

Should your client wish to initiate a court claim, I will require them to prove their claim in
full, and I will be seeking my full costs on the indemnity basis, assessed at the LIP rate of
£19 per hour. As VCS is fully aware that they have no prospect of success and so their
behaviour will meet the high bar for unreasonable behaviour.

The opportunity is still available for you to discontinue and you bear your own own costs
as I will bear my own costs.



I've attached their response:

I assume that this is the usual degree of bluster and best to ignore. A without prejudice phone call is suggested - is it right to assume that this isn't going to offer be anything and is a response to my pointing out their refusal to mention ADR? Is it best to decline or do it to show willing?

Also, getting quite fed up of letter ping-pong. Do I write something along the lines of see you in court then...



Attached File(s)
Attached File  Response.pdf ( 457.87K ) Number of downloads: 112
 
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Jlc
post Sun, 21 Jun 2020 - 12:51
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That pesky Internet.

Many Judges may allow a claim but will not allow the £60 fantasy costs.

Any attempt with mediate with them means paying the vast majority of their demand. But the court expect the parties to try and narrow the issues and not go to a hearing - I wouldn't say 'see you at court'.

This post has been edited by Jlc: Sun, 21 Jun 2020 - 12:51


--------------------
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, SAR=Subject Access Request

Private Parking - remember, they just want your money and will say almost anything to get it.
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nosferatu1001
post Mon, 22 Jun 2020 - 10:51
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Offer them a drop habnds - you wont pursue your costs and they walk away. Nothing else is acceptable, as you do not believe you owe any amount at all.

"Only" three? How many are needed to prove the point made in BEavis?
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