L of C re: Private road, London Parking Solutionss & CSB Solicitors Options

[Proconsul]

A couple of weeks ago, a "Letter of Claim" was received from CSB Solicitors on behalf of London Parking Solutions.
A Draft reply is below.
Comments and suggestions gratefully received ....

Initial alleged "invoice" and debt chasers were ignored as scammers.

The PCN was for allegedly parking in a private access road that runs parallel to a main road - in an area of S.E London, unfamiliar to the driver.
The PCN states a single time for the "Parking Event" (HH:MM) - i.e. no "period" as required by PoFA 2012

The driver maintains that he stopped for perhaps a minute - maybe two - as he was unfamiliar with the area and wanted to check the map and seek directions.

Later investigations show:
- A row of houses along a poorly maintained (private) road - with open entrance and exit at either end to the main road.
- No markings, but ample space for visitors or delivery vans
- Some (but maybe not all) residents invited PPC to operate due to all-day parkers
- Some signs - but either damaged, or facing away - or visible when looking! Most text too small too read from a car

[ At first sight signs and PCN Notice as per:
http://forums.pepipoo.com/index.php?showtopic=116702&hl=\london+parking+solutions\
]

With the L of C threatening a Court Case, it seems wise to push back now - primarily asking for evidence.
Having searched the large amount of helpful (but hard to navigate) info, the following letter has been drafted:

DRAFT
>>>>
Your Client: London Parking Solutions

Dear Sirs,

I am in receipt of your Letter of Claim dated XX October 2018.

The delay in replying was because this appeared to be a scam.

The letter received does not provide sufficient detail of the claim.
It does not provide any evidence. It merely asserts that there is a debt.
The inference is that someone parked a car in a part of Burnt Ash Road deemed “Private”.

Therefore please obtain from your client:
a) An explanation of the cause of action

b) Whether they are pursuing me as driver or keeper

c) Whether they are relying on the provisions of Schedule 4 of POFA 2012

d) What the details of the claim are ? e.g.
i) where it is claimed the car was parked
ii) for how long, and the means by which this is recorded
iii) how the monies being claimed arose and have been calculated
iv) what contractual breach (if any) is being claimed

Please provide photographic evidence of i) and ii)
Please provide a plan showing i)

e) A copy of the contract with the landowner under which your client asserts authority to bring the claim, including a plan showing the area covered by the presumed contract

f) A copy of any alleged contract with the driver .... and/or keeper (is this bit wise?)

g) Details of the signs displayed (size of sign, size of font, height at which displayed), including a plan showing where any signs were displayed.

h) If the client has added anything on to the original charge, what that represents and how it has been calculated.

i) Whether / Is the claim for trespass and consequential damage? If so , please provide details.

I note from the Procedure Rules that you signposted, that Para. 4.1 says
“the debtor should request copies of any documents they wish to see”.
To which I would qualify, “alleged” debtor.
<<<<

All comments appreciated.
Does the Draft ask for too much - or not enough?
(Presumably defence arguments can come later ....? )

- Is Planning Consent worth a look ? (A sign was tied to a council lamp post)
- Are "Distance Selling" Regs worth pursuing - as no-one was present to "offer" the "contract".


Thanks very much

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[ManxRed]

The over-riding defence point here, if the car was stopped for a minute or two and then left, was that their contract (even if one was capable of being formed despite dreadful signage) was not accepted. Contracts formed through signs are based on acceptance by performance. By parking here you agree to.... etc.

But they didn't park up. They drove away again.

All the other arguments still apply, such as that no contract could be formed anyway because the signs were not clearly displayed, or that the signs convey no offer to anyone not displaying a permit, so are incapable of forming a contract anyway, or that the PPC must prove they have sufficient legal standing on the land, etc.

[SchoolRunMum]

The delay in replying was because this appeared to be a scam.

Present tense, I'd suggest:

The delay in replying was because this appears to be a scam.

- Is Planning Consent worth a look ? (A sign was tied to a council lamp post)

Not planning consent, but if there were Council lampposts, is this Council land? Look on the Local Authority website for maps and/or ask their Highways Dept to confirm if that area of street is adopted and where the boundary lies.

- Are "Distance Selling" Regs worth pursuing - as no-one was present to "offer" the "contract".

No.

It will be as ManxRed says, plus distinguishing the case from the Beavis case and showing this was a punitive charge, breaches grace periods and there was no agree contract at all. Unlike in the Beavis case, this unconscionable, predatory charge not an 'understandable ingredient' of a business model supporting a 'legitimate interest'.

[Proconsul]

Thanks to ManxRed and SchoolRunMum.

I've emailed the requests for info, broadly as in the OP - to London Parking Solutions - as Subject Access Requests.
I plan to send a copy to the solicitors, asking them (firmly) to desist.

In the meantime, attached are a couple of photos of signs.
Seen from the side, the "bent" sign is much harder to see.

Other photos are available - but perhaps better to see if a defence is necessary.

This post has been edited by Proconsul: Thu, 1 Nov 2018 - 15:34

Attached thumbnail(s)

 

[ostell]

So this is a forbidding sign. Parking is only permitted for vehicles displaying a permit. Allowing parking when parking is prohibited cannot be true and therefore there can be no contract in existence for non permit holders. They only claim can be by the landholders for trespass.

[Proconsul]

So this is a forbidding sign. Parking is only permitted for vehicles displaying a permit. Allowing parking when parking is prohibited cannot be true and therefore there can be no contract in existence for non permit holders. They only claim can be by the landholders for trespass.

Thanks for the prompt comment.

I get that the initial sign statement is "forbidding".
Surely they would argue that the later words ".. otherwise than ... the above ..." cover an alternative situation?

>>>
BY PARKING OR REMAINING AT THIS SITE OTHERWISE THAN IN ACCORDANCE WITH THE ABOVE, YOU THE DRIVER ARE AGREEING TO THE FOLLOWING CONTRACTUAL TERMS:

You agree to pay consideration in the form of a “Parking Charge Notice” in the sum of £100.00, etc
<<<

My email to LPS invites them to try "trespass".

[nosferatu1001]

No, because they fail to OFFER a contract to park

[ostell]

No they are forbidding something and then going on to allow the very thing that they are prohibiting.

[Proconsul]

No, because they fail to OFFER a contract to park

Thanks.

I think I get it.
"Contract" has to be about an "offer" not a response to an action (e.g. parking).

But being devil's advocate....
The parking industry's entire case is based on claiming that the driver's action of entering the site and more specifically parking, is the driver's "responding" to the offer.
And my impression is that some judges/courts have accepted this initial premise - meaning that most of the fight-back is about technicalities.

Back to the LPS sign.
The word "or" comes after the initial "forbidding".

My initial view was that the "or" creates doubt - so a helpful defence.
But it might also be interpreted as an alternative "offer", i.e. that someone can park for £100 .

(I'm not trolling - just want to prepare mentally for twists and turns...)

[nosferatu1001]

PPCs claim they offer a contract
The act of parking shows acceptance (accpetance by performance)

Without the intiial offer, tehre cannot be a contract, this is trite law.

Your understanding is not correct. Cases have decided there was no offer before now.

The OR does not create an offer. It cannot do.

[Proconsul]

Dear All,

Someone has replied - from a different entity - Solution Labs

The only new document attached was a page of 6 photos - all showing the front of a car.
All appear have been taken from the same spot - just different zooms.
3 of the photos are date-stamped for the same minute (i.e. no start and end time)

It is impossible to see whether a driver is present - let alone identify the driver.

I can see a number of flaws in the statements below - but is it wise to rebut them now, and reveal one's hand - or accept that it's going to Court ?

Thanks very much

>>>>>
Dear

I am in receipt of your email below, sent to both London Parking Solutions Ltd and CSB Solicitors, which you have classified as a Subject Access Request. Please find attached copies of all documents and data which relates to parking charge reference 123456789.

To address the individual points raised within your correspondence

Cause of Action
Our Client alleges that you parked in breach of displayed terms and conditions and as such incurred a Parking Charge Notice. Failure to pay the same is being pursued as a contractual charge.

In what capacity are you pursuing me
Our Client is holding you liable for this debt as the registered keeper of the vehicle in accordance with the provisions laid out in Paragraph 9, Schedule 4 of the Protection of Freedoms Act 2012.

What the details of the claim are
It is our Clients position that your vehicle was parked in a permit holders only parking bay without displaying the requisite parking permit for a period of at least 5 minutes. This event occurred on private land; namely Private Road, 83-111 Burnt Ash Road, London SE12 8RA and was recorded by way of a handheld recording device.

How the monies being claimed arose
The amount claimed is clearly displayed on large contractual warning signs on site (See photographic evidence). The amount claimed is a core contractual price term and is essentially the 'price' that you agreed to pay by choosing to park on the private land and not in accordance with the terms and conditions of parking.

A copy of the contract
We would refer you to the signs which form the basis of this charge. It will be noted that the charge arises out of a relationship in contract and that our Client is the principal (not an agent) in the contract. This site has been audited by our Clients Trade Association and a copy of the landowner’s authority has been provided to them as part of the audit process. 

Based on the above and whilst we maintain that our Client does, in fact, have the authority of the landowner to operate upon this site (being the principal in the contract); the existence of this document has no legal bearing on the contract with the motorist - see Vehicle Control Services v HMRC [2013] EWCA Civ 186, para 22 per Lewison LJ. As our Client's contract is a commercially sensitive document, and is irrelevant to the issues at hand, this is not provided as evidence in this appeal.

A copy of any alleged contract with the driver and/or keeper
The contract was entered into by the driver, by way of their conduct. As such and whilst our Client says a valid contract was in evidence, no physical contract exists (paper version).

Signage
Our client is a member of the International Parking Community ("IPC") who are an accredited trade association. As such, all signage needs to meet strict criteria. We confirm that the relevant signs on site have been audited and approved.

If any amount has been added to the charge
We confirm that upon your failure to pay the original sum of £100.00, the matter was referred to Ultimate Customer Solutions and an administration charge of £60.00 was added to the debt amount.

We trust the above resolves your enquiry and invite you, by return to contact us within the next 14 days with your proposals to settle this debt.

Regards

Legal Services Manager

W: solutionlabs.uk
E: charris@paymypcn.net
<<<<<


Rebuttals ?

i) Forbidding notice, so no "offer" ?
[ Still not entirely sure about this - given their Sign has an "or" between the "forbidding" and the alleged "contract"]

ii)
a) Where is the case laws that "conduct" (other than speaking or writing) is sufficient to establish a contract
b) And even if so, how can the act of stopping a car be deemed sufficiently clear as acceptance of such contract - esp. if the driver has not seen the alleged contract ?

ii) No evidence provided of a time period - and Schedule 4 of the Protection of Freedoms Act 2012, specifically requires a "period".

iii) The claim mentions a "marked bay". I'm pretty sure no "bays" are marked.

iv) The signage seems flawed

They claim that the client (LPS) is the principal and not agent. So what status does the landowner have ?
Surely LPS have to prove their right to issue the alleged contract - eventually ?

They have ducked some questions e.g.
- No plan provided of the area, including signage (or "marked bays")
- The Q about "trespass / damages"

Thanks very much

This post has been edited by Proconsul: Wed, 14 Nov 2018 - 23:49

[SchoolRunMum]

Where is the case laws that "conduct" (other than speaking or writing) is sufficient to establish a contract

ParkingEye v Beavis is the Supreme Court authority for that, so don't even go there with that point!

how can the act of stopping a car be deemed sufficiently clear as acceptance of such contract - esp. if the driver has not seen the alleged contract ?

It can if the car was there long enough to have had the opportunity to read the signs (or see VERY clear 'no stopping zone' red lines or hatchings plus 'no stopping' on large signs). 5 minutes is not enough to conclude that a contract was formed, if this was about photos taken over a 5 min period?

They claim that the client (LPS) is the principal and not agent. So what status does the landowner have ?
Surely LPS have to prove their right to issue the alleged contract - eventually ?

You are confusing two completely different meanings of the word 'contract'.

(a) LPS are the principal in the alleged contract with the driver.

but

(b) the landowner authority is another contract on the periphery that must exist to give the charge commercial justification and to give the PPC authority & standing.

[Proconsul]

Thanks for the reply.
(Too distracted yesterday to follow up...)

Anyway, my main question was about the pros and cons of rebutting the several obvious flaws NOW.
Does this risk "showing one's hand" ... or is there a reasonable chance that they will realise the keeper is serious and they not incur the expenditure of a Court Hearing ?

On two replies:

how can the act of stopping a car be deemed sufficiently clear as acceptance of such contract - esp. if the driver has not seen the alleged contract ?

It can if the car was there long enough to have had the opportunity to read the signs (or see VERY clear 'no stopping zone' red lines or hatchings plus 'no stopping' on large signs).
5 minutes is not enough to conclude that a contract was formed, if this was about photos taken over a 5 min period?

Context
The relevant area is unmaintained tarmac (i.e. breaking up in places with loose material.)
If there were ever road/space markings, none are obvious now.

Upon returning, 3 signs were found.
1st at ground level - and bent half across the grass
2nd edge on - so "invisible"
3rd high and with only the two "Ps" discernible from distance - i.e. unless one walks up to the council lamp post (which was another query ...)

Questions
i) The driver does not recall seeing any signs - although it is possible that the familiar blue "P" caught the eye.
Most of the text is smaller than on Council parking signs - and of course the quantity of text is a blur when moving or at distance.
Is there any case law around the text size, content and time to read a sign ? (I've seen commentary elsewhere.)

ii) Photos were not "taken over a 5 min period".
Three photos have the same minute - so no "period" has been evidenced ("period" is a requirement in Schedule 4 of PoFA 2012 )
The driver believes that the total time stopped was barely 1 minute.
(Just enough time to post a letter to a resident.)
Councils are now required to apply "grace" period.
Does private parking (or the Courts) recognise a "grace period".
Is there a distinction between "stopping" briefly and "parking" ?

iii) I do not believe that the quality of photos (zoomed from the same distant spot) proves the absence of a Permit (whether Resident or Visitor)
(Presumably this line could be counterproductive ? )

They claim that the client (LPS) is the principal and not agent. So what status does the landowner have ?
Surely LPS have to prove their right to issue the alleged contract - eventually ?

You are confusing two completely different meanings of the word 'contract'.

(a) LPS are the principal in the alleged contract with the driver.
but
(b) the landowner authority is another contract on the periphery that must exist to give the charge commercial justification and to give the PPC authority & standing.

Not confused. Quite clear that there would be two different contracts.

Surely it is relevant to challenge the Parking Co ?
a) Their right to issue the alleged contract #
b) The area of land it covers
c) Duration of contract
d) Conditions relating to signage, markings or anything else

I'm pretty sure I've read that, if it gets to Court, some (most) judges think such "proof" is perfectly reasonable if not necessary .

# Some have said that it isn't enough that a subset of residents has approved a Parking Company - but each and every landowner / leaseholder - and no Leaseholder can bind his/her successor by removing rights contained within their Deed and its Covenants.
Does anyone agree / disagree ?

Comments would be appreciated.
Thanks

[Redivi]

My personal view is that you never reply to a letter from a debt collector

The only exception is when you want to play email ping pong to drag a railway station penalty notice past the six months deadline for a prosecution

[Proconsul]

My personal view is that you never reply to a letter from a debt collector

The only exception is when you want to play email ping pong to drag a railway station penalty notice past the six months deadline for a prosecution

Thanks .... ... but we are past Debt Collectors.

- A "Letter of Claim " has been received from some lawyers.

- This was replied to with a request for info / evidence / justification etc

- A different law firm (?why?) replied with the answers in a post above.

So my question remains:
Which - if any - of their flawed evidence or statements do I challenge NOW ?
.....Rather than sit back and wait for the probable Court Summons (which they shouldn't trigger for at least a week.)

All comments gratefully received.

[Redivi]

Not worth a challenge any points now
You're not going to change any decision whether to issue a claim and will only put them on their guard

You could ask them to confirm the identity of (a) the landowner and (b) who employed LPS if different
Then check the ownership with the Land Registry

I would also take good quality photographs of all the signs and map them
Also take some wide angle views to show what a driver would actually see

You will then be in a position to point out errors in their witness statement when the time comes