Recreated Topic - L.O.C. from BWL and PPL Options

[tommypenny]

The mods deleted the original thread at my request, so I will recreate it here with the main details and the advice I received from some helpful people:

NTK:




LOC:






I will make up the dates to protect privacy, but they are relative and therefore can be read as real….

The original PCN with ANPR photos states : “Issued Date: 7th December 2015” and “Entry time xxxx 28 November 2015”. The next letter about it came from DRP several months later and on that letter it states: “Parking Charge Date: 28 November 2015”. The original said 7th December it was “issued” - I know it’s splitting hairs, but that’s how our legal stuff works, is it worth splitting that particular hair?!



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Ostell comments:

Wish you had left in those dates, they may be relative but there is no indication if weekends and holidays were within the actual period. The Notice to Keeper must be delivered within 14 days. That is calendar days not including saturdays, Sundays or public holidays. It is presumed it is delivered within 2 working days.

Sitting in the car is still parking.

There is a contract created when the driver reads the sign. This has been agreed by the courts. It's still a speculative invoice. By not appealing you have missed the chance to appeal to POPLA, an independant second stage appeal, where your appeal would probably have been upheld because of the failures to comply with schedule 4 of The Protection of Freedoms Act 2012. Read paragraph 9 as there was no windscreen ticket.

These failings will be your defence.

Note that 9 (2) starts with "Must".

9 (2) (a) no period of parking given. Moving in front of a camera is not, by definition, parking.

9 (2) (e) failing to give the invitation to pay in the required format.

9 (2) (f) Failing to give the warning to keeper in the prescribed form. The period is not correct.

9 (2) (h) Failed to identify the creditor.

You may also have additional material under the Equality Act in that allowance must be made for the presence of a young baby and still nursing.

To your disadvantage is the fact that you have not responded at all to this previously.

The strength if the case is relatively high as they gave not complied with POFA


Whoever it us addressed to responds. f you are the registered keeper then you deal with it otherwise your wife deals, though nothing to stop you writing and get her to sign.

While the car is moving it is, of course, not parked. If it is stationary then it is parking, even if people are still with the car.

Yes, SAR to PPC but BWL have probably not got a lot. Letter to them is that to harrow the issues between you you require sight of all the documents that they intend to rely on in court.

So your best chance is non compliance with POFA, filled by an occupant of the car had protected characteristics and required additional allowances under the Equality Act. I believe this applies to a baby under a year. Check it out.

NTK has to be delivered within 14 working days, was it?

Sending by post then first class and get a free certificate of posting from a post office.


You ask BWL for all the documents they intend to use in order to narrow the issues between you, as required by Pre Action Protocols. Sooner rather than later so you hopefully get the info in good time. You also point out the POFA fails and it would be pointless taking thus to court as they will not win.


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Me: The reply to my SAR is pretty thin. They say I am not entitled to some things, and the included just the PCN and the "first reminder letter", but then the next thing on their computer system shows they passed it to a DCA. It's odd, why call it "first reminder letter" if there is no second?! A small issue, but I mention it in case they have breached any rules here. Pic attached:




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Ostell:

Have you at all investigated the equality Act which may be of some help for nursing mothers and young infants. extra allowances are required to be made. Non allowance could be subject to criminal sanction.


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Maca:

Maca: Don't just ask them to send all the documents that they intend to use to comply with the PAP as they will send very little. You should send them a list of all the documents that you are entitled to receive. Be explicit. They won't comply because it takes time and money. They might even shoot themselves in the foot by saying you are not entitled to see some documents. It will start to build a case that they are being unreasonable and importantly in non-compliance with the PAP.


They are listed in the PAP which you can access online. Remember that BWL are looking for easy wins and so your approach is to make it difficult for them. There will be plenty of easier wins on their list so just make sure you are well down the list in the 'too hard' section.

There has been recent flurry of the PP PCNs being dusted off by BWL. The passage of time is probably to catch people out who have lost all previous correspondence or even moved house etc. They are looking for easy wins. So don't be one!


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Redivi:

Dear Sir

Ref ****

I have received your letter dated **** that purports to be a Letter of Claim although it fails woefully to meet the requirements of the Pre-action Protocol for Debt Claims

Please address this failure and provide a properly formatted Letter Before Claim

In order to avoid further delays, please also provide the following documents and information:

1 Copies of all the documents and evidence that your client intends to rely on
2 Copies of any other documents/letters sent to me or the registered keeper
3 The information provided by the DVLA regarding the details of the registered keeper
4 Any photographs of the driver
5 Any other documents that identify the driver
6 A copy of your client’s contract with the land-owner under which it asserts the authority to bring a claim, as required by the IPC Code of Practice Section B clause 1.1
7 A copy of your own contract with your client that supports your addition of £60 legal costs
8 Copies of my emails and recordings of my telephone conversations with your company
9 A plan showing the distribution of the signage, and the location of the vehicle
10 Details of the signs displayed – size, content, font, height of display

Please also state clearly :

1 Is your client pursuing me as the driver or the keeper ?
2 Is your client relying on Schedule 4 of POFA 2012
3 Does your client still intend to rely on Elliott v Loake as stated in your email ?
4 If so, how does the case support your client’s position ?
5 Is the claim for a contractual charge, a breach of a contract or trespass ?
6 What is your client’s specific allegation :
No payment for parking was made ?
The vehicle overstayed the paid for period ?
The parking was paid for but the voucher was not displayed ?
7 Does your client dispute that a motorist that fails to pay for parking has not accepted a contract and is a trespasser ?
8 Why do you believe that your £60 Initial Legal Costs are exempt from CPR 27.14(2) ?
9 On what date did your client instruct you to commence legal action ?

I refer you to the instructions in the Protocol regarding the deadline to provide this information
Unless you are in the habit of sending Letters Before Claim without inspecting your clients' documents, it should already be in your possession
I also refer you to the instruction that you must not take legal action until to have complied with my request

When I have received a properly formatted Letter Before Claim and the requested documents/information I will provide an appropriate response

Yours Faithfully


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Maca: Redivi's letter is just what you need! Their LBC is woefully inadequate and they will not be happy to receive Redivi's letter! It is extremely unlikely that they will reply in full.


Yes I was referring to the woefull LBC you received from BWL. and yes you are effectively writing letters for the benefit of a court should it go that far. BWL legal will not take it seriously. They are just looking for an easy win which you are not providing.

Don't bother with POPLA or IAS. They are a waste of time and you are beyond that point anyway. BWL have started legal proceedings although if that is their best attempt it is pretty poor!



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Redivi:

Just remember that anything that isn't necessary has potential to be twisted against you or at least used as a distraction

Change #3 if BWL hasn't previously mentioned Elliott v Loake

3 Does your client intend to rely on Elliott v Loake ?


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Nosferatu:


Read up on it.
Its a case the PPCs try to use to claim the keeper is liable even if they werent driving and they havent met the POFA reuqirements. They state it creates a presumption the keeper was driving when the case *actually* states no such thing.



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Redivi: Use Pre-action Protocol for Debt Claims

It's the specific protocol that came into effect in October 2017 for businesses claiming a payment from an individual



You always defend it as keeper, never as driver

That leaves Premier the job of proving that the keeper was probably driving OR that it met the conditions of POFA

I don't know what you've written but it's a near certainty that it's superfluous

Arguing on the grounds of protocol is a waste of time
The court won't care

Much better to pepper any defence later with
The Defendant asked the Claimant's solicitor for this information but the request was ignored

Just keep the letter brief and polite, no abuse or threats
It will form part of the court documents

The letter in Post #26 that I drafted is all that you need
You don't have to inform them that you won't be replying to anything else
The letter says that, when they send the requested information, you will give a proper response to the Letter Before Claim
It naturally follows that, if BWL doesn't, you won't be able to respond


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SheffieldDave:

They are exceedingly unlikely to know the identity of the driver unless you let it slip, This most often occurs when appealing - e.g. the keeper sends an appeal in their own name, and somewhere in the appeal says something like "I didn't see any signs", thus confirming that that the keeper and driver are the same person.

If you haven't made any such admission to them, then you can safely assume they don't know who the driver is.

If the PPC comply with the strict wording of POFA, then the keeper becomes liable for anything the driver was already liable for, unless the keeper identifies the driver before it gets to court.

At no point is the keeper obliged to identify the driver, but the downside is that the keeper may then become liable.

If the keeper and driver are two different people, then identifying the driver is a way for the keeper to wash their hands of the matter ("here son, you parked my car, you deal with it").
If they are the same person, then there's never any benefit in naming the driver. It eliminates a defence point and potentially increases your liability.


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Nosferatu:

There is absolutely no obligation to name the driver. Whoever told you that is lying, or just badly informed. It only appleis when S172 applies and even then youre not forced to name the driver, you just get (heavily) punished if you dont - not quite the same thing, if functionaly similar in most cases.

The judge may of course ASK directly, but if the identity of the driver is truly not *known* as opposed to you are reasonably sure - well, reasonably sure isnt the same thing as knowing. ONe is an educated guess, the other isnt.


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Ostell:

Identifying the driver loses a lot of the extra defence points that POFA provides and can increase costs as there is no POFA protection of the amount that can be claimed.

If it gets to court it's nothing like what you see on TV. The hearing would be in a small room in the court building. Three desks in the room, the bigger one belongs to the judge. Not really anything to be really worried about. The judge would normally be helpful towards you.



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Umkomaas:



Once a court claim (proceedings) has (have) been issued, there can be no switching of liability - too late. Read PoFA.


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MacaPaca

The RK is being pursued and so the response should be from the RK! That is the simplest approach and is the best advice that you have received clearly on this forum.

Your best and simplest approach for the RK response to the LBC is to use the letter that Redivi posted for you as you have already been advised to use. That letter asks for the full 9 yards of information that the PAP entitles the RK to receive. BWL legal will not have all that information or the appetite to provide what they do have! Without providing the information then this is not going anywhere near court anytime soon! They do not want to go to court either as they will lose money!

Get the letter off ASAP and then you feel much better as you will have knocked the ball into their court!



You seem to be tying yourself in knots in a vain attempt to produce a perfect letter than will stop this in its tracks. I think you misunderstand how these companies operate. They do not want to spend money going through a detailed letter because it costs them money. As nosferatu has said they operate a robo process which applies zero intelligence. The letter that redivi advised you to send is not for BWL/PP's benefit because the robo process can't cope with replying to that. It is for your benefit because it builds up a picture that they are not being reasonable when they don't reply. It also signals that you are not going to just cave in and pay. The robo process then moves you down the list into the 'too hard' category.


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Me: I am not sure on something and hoping someone can advise...

Two documents I am studying carefully are the PAP for Debt Claims and POFA. Do both apply equally, or does one carry more weight than the other?
For example, when studying how they should deliver their LOC, I see both the CPR guidance and POFA refer to it, and set out how the letter should be formulated. Can I merge the two sets of guidance, or if not, which should I place more emphasis on (or which would a DJ care more about failures in?)


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Sheffield Dave:

FOFA is strict - they must dot every T and cross every I in order to make the Keeper liable.
PAP is more a set of guidelines. They are regularly flouted, and that flouting might at best (if you're very lucky) help support a claim for costs due to unreasonable behaviour. In practice it won't help getting their case thrown out.

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[Macapaca]

I don't think you are receiving conflicting advice at all. The issue is that you haven't got it clear in your mind yet hence you think it is is conflicting.

[tommypenny]

I don't think you are receiving conflicting advice at all. The issue is that you haven't got it clear in your mind yet hence you think it is is conflicting.

No, really, I have. In fact I haven't received conflicting advice, I have received utterly opposing advice. Not from YOU I might add, or indeed from any individual. I have just read advice from various (all experienced and/or qualified) people. Some say POFA all the way, some say driver defence can be stronger because a Judge can look at a technical defence as a bit disingenuous and weaseling out, hence they may just say (and do) "What the hell HAPPENED? Did you PAY? Did you act in good faith...." etc.

But yes, I certainly have received conflicting advice. Yes confusion about some of the issues is definitely applicable to me! But that's not why I say I have seen conflicting advice.

Anyway, it's not a complaint of any kind at all. Just a statement of fact, and a reason why I am a bit stuck on what to do, whether to write a new defence, or just amend this one and stick to the general direction I take with it. I am going to go with the latter, but I really hate to think anyone takes offence, it's not intended and shouldn't be taken that way at all. The advice is extremely appreciated, it's all unpaid volunteer work and I make a point of reguarly saying THANK YOU for it!! I am extremely appreciative.

This post has been edited by tommypenny: Fri, 16 Aug 2019 - 15:54

[nosferatu1001]

Your defence is surely more than just POFA, yes? And includes the legal defence is needing reasonable adjustments under the EA2010 due to a nursing infant?

Judges *can* ask. Do they do so regularly? no. But they can, so you have to make a decision on what risk you want to take.

Yes, they *can* ask for more than that *if the driver is the defendant and the driver reveals this to them*. Because ALL of POFA goes out the window. Because they dont need it any longer.

[tommypenny]

That's taught me a lot actually, thank you.

This post has been edited by tommypenny: Fri, 16 Aug 2019 - 15:54

[nosferatu1001]

Simple

"The D avers that the DRIVER was ...."

See. Notice how the two are not linked, but teh D (YOU) can talk about the events of the day?

Thats how you can maintain "defending as RK" while talking about the EA, etc.


You are still not understanding here.

They do not have toreissue anything. If the drivers identity is revealed, even in the way you propose, then they just revert to using basic contract liability. No need for POFA. No need to reissue. You seem to think they are liimited in how they claim against you - theyre not. IF the defendant and driver are the same, and the know this, their job becomes a lot easier.

I cannot elucidate further. This is a simple issue - your choice to make.

Defend, using all the protection of POFA and take a risk - or not
But if you hide away from teh events of the day you invite a question.

[tommypenny]

"The D avers that the DRIVER was ...."
Thanks
I get the feeling you see POFA as the stronger of the two, so I will keep POFA front and centre, with the other points beneath.

This post has been edited by tommypenny: Fri, 16 Aug 2019 - 15:53

[nosferatu1001]

I dont see it as the stronger per se - I just like that it allows you to put across TWO abuse of process arguments. AS POFA is utterly strict on what they cann claim, it is very, very strong.

[tommypenny]

Thanks. I am not actually sure how there are two, I will have to read up some more. £60 charge was the only one I thought constituted an abuse. There are plenty of POFA failures in my NTK too though.

The nerve of these people!
Letter received today regarding this claim. It's going to COURT! I have done the AoS to say I will be DEFENDING!! Do they really think this BS will make me cave in? Maybe no thought is involved at all, just automated. I wonder if its worth a mention re their behaviour and threats of CCJ over sums not recoverable via POFA!

[nosferatu1001]

The same amount being claimed gives rise to 2

1) It iss more than they are allowed to claim under POFA
2) The amount theyre claiming was never on ANY sign *stating £60* and contracts cannot be ambiguous, and so they are again claiming an amount they are not entitled to.

Two different ways.

[tommypenny]

Ah ok thanks. I thought 1 was POFA related, 2 was just general contract law, can't charge what didn't offer.

Good stuff.

[Macapaca]

That's just a pressure tactic letter. There isn't a pending CCJ against you at all. Yes it might still go to court or it might not but there will only be a pending CCJ if it actually goes to court and it goes against you. You would then have the option to pay up and avoid a CCJ. It is worded to make you think they are definitely going to court and that a CCJ is on it's way! It looks to me like they would still prefer you to pay up to avoid them having to go to court.

In their letter they claim that you have not responded with any reasons why you dispute the debt. That is incorrect. You might write back reminding of your previous letter and that they have still to issue a compliant LBC, a point that will be made strongly in court should they be foolish enough to proceed along that path.

[tommypenny]

Good call! Will do that. thanks


This post has been edited by tommypenny: Fri, 16 Aug 2019 - 15:52