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Received a LETTER BEFORE CLAIM for a PCN, Help Needed Please
saabi
post Tue, 23 Feb 2021 - 18:52
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Hi Hope you all well and safe!

I am new here, looking for some legal advice for this claim.
Basically I received a notice to keeper last year for stopping at the forecourt BP petrol station, East Midlands Airport, for stopping at ZONE A area, which I never did, Appealed, but they rejected it, and I ignored the letters.

This was Last year I went to drop my mate at East midlands Airport as he was flying to Dublin, when we reached there, I pulled out at the BP station for some snacks and coffee then went to drop him at the departure, but the guy (vehicle control service van parked up at BP) he took a picture of me while getting out of the car at the petrol pump, even he knows I did not stop at the ZONE A as I was the forecourt, and did not drop anyone, or picked up! then I received this pcn, sent letters to company that I believe my data has been misused, I asked them evidence for A ZONE are where they falsly claimed, but they never replied.

However I have just received this ELMS Legal ''Letter before claim'' stating that I have until the 25/02/2021 to respond either by paying or commence legal proceedings against me.

Any advice on how I deal with this please?! and it would be very much appreciated!

Thanks
Regards
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post Tue, 23 Feb 2021 - 18:52
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saabi
post Sat, 10 Apr 2021 - 19:33
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QUOTE (Sheffield Dave @ Sat, 10 Apr 2021 - 20:11) *
So acknowledge online immediately - you have nearly run out of time, Contest all of claim, don't contest jurisdiction, and leave the defence COMPLETELY blank - this will be submitted later.

Did you respond to their Letter Before Claim? Did you get a reply, and if so, what did it say?


Appreciate your swift response,

Now I have acknowledged it online,

I dispute the whole claim against the claimant, and did not contest the jurisdiction.

Dfence section is blank

I replied to them and they said the reason is breach of contract for breaching the terms and condition set on the private land, which is in the terms & condition sign.

I contacted BP head office, and they gave me the BP patrol station owner contact email, I explained them about this and waiting for them, because I wanted to get my purchase receipt.

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saabi
post Wed, 14 Apr 2021 - 21:32
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Hi could you kindly help me with what to do next please?

Filling the defence section?

Thanks
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ostell
post Thu, 15 Apr 2021 - 08:12
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You should have been preparing your defence already. Post it on here for critique before you send.

It needs to be with the court the shorter of 28 days from acknowledgment or 33 days from date of issue of the claim
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The Rookie
post Thu, 15 Apr 2021 - 09:13
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Look through the completed cases forums for links to some cases, get a similar defence and work on that as your defence, post here for critique as soon as you have a first draft.


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nosferatu1001
post Sun, 18 Apr 2021 - 12:40
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The template defence over at MSE aos a good starting point as well.

You have to get used to going more quickly than you have. If you miss dates, you lose.
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saabi
post Tue, 27 Apr 2021 - 03:29
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Sure thanks
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saabi
post Wed, 28 Apr 2021 - 18:51
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QUOTE (The Rookie @ Thu, 15 Apr 2021 - 10:13) *
Look through the completed cases forums for links to some cases, get a similar defence and work on that as your defence, post here for critique as soon as you have a first draft.


Hi can you check my defence template belwo please?

The claim is denied in its entirety except where explicitly admitted here. I assert that I am not liable to the Claimant for the sum claimed, or any amount at all, for the following reasons, any one of which is fatal to the Claimant's case.

i. The Unfair Terms in Consumer Contract Regulations 1999 applies
ii. The signage does not offer a contract with the motorist
iii. The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 applies
iv. The Claimant has no standing to bring a case
v. The charge is not a genuine pre-estimate of loss and is therefore an unenforceable penalty


The claimant has not provided enough details in the particulars of claim to file a full defence. In particular, the full details of the contract which it is alleged was broken have never been provided. As the claimant has not provided this information, and the details may not be correct. Minor variants in text may occur. All references to signage, therefore, are subject to change once the full particulars of claim have been provided.



i The Unfair Terms in Consumer Contract Regulations 1999 applies
1. It is asserted that the Claimant’s charges are unlawful, as they are in breach of the Unfair Terms in Consumer Contract Regulations 1999, specifically regulation 8(1) of the Regulations and article 6(1) of the Unfair Terms Directive (in providing that an unfair term is not to be binding on the consumer), which is to redress the imbalance between the contracting parties’ bargaining power, and to re-establish equality between them, so that the contract terms which bind the parties are such as the parties would have agreed if they had negotiated the contract on equal terms.

2. The European Court of Justice case of Aziz v Caixa d’Estalvis de Catalunya, Tarragona I Manresa [2013] 3 CMLR 5 provides authority for this, and it is submitted that European Court of Justice decisions must be taken judicial notice of by lower courts in England and Wales. The test for unfairness and imbalance in that case is as follows (para 77);

Article 3(1) of Directive 93/13 must be interpreted as meaning that:

– the concept of ‘significant imbalance’ to the detriment of the consumer must be assessed in the light of an analysis of the rules of national law applicable in the absence of any agreement between the parties, in order to determine whether, and if so to what extent, the contract places the consumer in a less favourable legal situation than that provided for by the national law in force. To that end, an assessment of the legal situation of that consumer having regard to the means at his disposal, under national law, to prevent continued use of unfair terms, should also be carried out;

– in order to assess whether the imbalance arises ‘contrary to the requirement of good faith’, it must be determined whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to the term concerned in individual contract negotiations.

3. It is asserted that no reasonable person, of whatever means, would willingly agree to pay a charge of £100 as a consequence of grabbing coffee in a service station, if they had the opportunity to negotiate the contract on equal terms with the other contracting party.


4. It is submitted that the European Court of Justice definition of imbalance must take precedence.

5. However, in any case the instant case is not saved from being unfair. In this particular location council charges for parking are £50 discounted to £25, not £160. As the charge is 100% greater than that which a motorist could expect to pay for stopping over at service station for less than 5 minutes as a genuine customer with genuine intention, there is a clear imbalance.

6. Regulation 7 of UTCCR 1999 may also apply depending on the words of the signage.


ii The signage does not offer a contract with the motorist

7. The claim is for breach of contract. However, it is denied any contract existed.

8. The Claimant states, in their Particulars of Claim, that the signage is ‘clearly displayed’ but this is not agreed. Thus, the necessary elements of offer and acceptance to form a contract were not present.

9. The claimant states, breach of contract However, it is wholly denied by the defendant, as the Defendant was strictly adhering to the requirements as per BP customer and their terms & condition they rely upon, states “Strictly No Drop off or Pick up at the fuel pump” however there was neither no dropped off or picked anyone up, Neither breach of any contract.

10. Although the Claimant has not provided a signage map for the BP customers, signs are positioned in such a way as to create ‘entrapment zones’ where signage is not clearly visible. The Claimant is put strictly to proof that this is not the case on this site.

11. The elements of offer, acceptance and consideration both ways have therefore not been satisfied and so no contract can exist.

iii The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 applies

12. Any alleged contract would be a distance contract for services as defined in The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.

13. The regulations define three types of contracts; distance contracts, on premises contract and off-premises contracts.

14. The definitions concern themselves with how a contract is concluded (and in particular if face to face contact occurs during this process) and not where the contract is eventually performed. Thus, if a consumer books a hair styling appointment over the web, that is a distance contract even though they go to the salon for the actual styling. If they re-book at the salon, that will be an on-premises contract. If they meet their stylist in Tesco, arrange for an appointment and immediately phone the salon to confirm, that will be an off-premises contract. All these contracts are performed on-premises, but concluded in different ways.

15. The regulations define an on-premises contract as:
“on-premises contract” means a contract between a trader and a consumer which is neither a distance contract nor an off-premises contract;

16. Thus a contract cannot be on-premises if it is a distance contract. The regulations define a distance contract as:
“distance contract” means a contract concluded between a trader and a consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded;

17. This is clearly an organised service-provision scheme (for parking)
The contract is clearly concluded without the simultaneous physical presence of the trader and the consumer.
There is clearly the exclusive use of one means of distance communication (signage) up to and including the time at which the contract is concluded.

18. This is therefore a distance contract.

19. None of the exemptions in regulation (6) apply. No vending machine or automated premises was used to conclude the contract. Any contract would be concluded by parking and walking away.

20. Regulation 13 lists information to be provided before making a distance contract. The contract fails to provide the required information listed in Schedule 2 or a means to have a copy of the contract on a durable medium. Accordingly, 13.1 states the contract is not binding on the consumer.


iv The Claimant has no standing to bring a case

21. The claim form states that the land is ‘managed by VCS limited’. They are therefore acting as agents of the landowner.

22. The Claimant’s has not provided copies of the alleged contract in the letter before claim or particulars of claim. However it is believe the signage contains further clauses which show that the Claimant is acting as an agent of the landowner, not the principal, which are identical or similar to the following; ‘VCS Limited is authorised by the landowner to operate this EMA Patrol service station for an on its behalf’ and ‘Parking for shopping at the BP is at the absolute discretion of the Landowner’.

23. Any consideration to the motorist of a grant of parking space flows from the landowner; the signage is believed to have a clause identical to or similar to, ‘Parking is at the absolute discretion of the Landowner’. There is no consideration from the motorist as parking is prohibited.

24. Although each case turns on its own facts, in all cases where VCS Limited contract with the landowner has been fully disclosed, the charge for breach of contract is collected by VCS Limited on behalf of the landowner. This further confirms VCS Limited act as agent for the landowner HKS retail limited.

25. VCS Limited provide the landowner with a web interface where they can check parking charges issued and paid. This was disclosed when I contacted the PB Head office and they confirmed the EMA BP petrol station operated by HKS Retail Limited. It is further disclosed on their web site. Thus, VCS Limited is acting as an agent of the landowner.

26. If VCS Limited deny acting as an agent, then they are put to strict proof by disclosing the appropriate parts of their contact (usually clauses 3.11 and 8) with the landowner.

27. Fairlie v Fenton establishes the situation regarding agency.

a. If the agent is acting on behalf of an undisclosed principal, they can sue and be sued
b. If the agent is acting on behalf of a named principal, they cannot sue
c. If the agent is acting on behalf of a principal whose name is not disclosed, then they can only sue if they assume the risk; in other words, if they can be sued if they fail to uphold their part of the bargain.

28. This case is clearly ©. The signage states VCS Limited are acting on behalf of the landowner but does not state who the landowner is.

29. VCS Limited therefore have no standing to bring this case. Only the landowner has the right to do this.


v The charge is not a genuine pre-estimate of loss and is therefore an unenforceable penalty

30. The claim is for breach of contract. In such cases, it is trite law that any charge is intended to put the recipient back in the position they were had the breach not occurred. If the charge is larger, as in this case, then it is a penalty and the whole charge is unenforceable.

31. As previously explained, the charge amount is due to the landowner, not the claimant. The Claimant collects it on the landowner’s behalf. The Claimant has suffered no actual, or genuine pre-estimate of, loss as a result of any alleged overstay. There is no initial loss to the Claimant, and they have no standing to bring any case.

32. The charge for breach of contract is collected on behalf of the landowner, according to clause 3.11 of the landowner contract. However, all costs for issuing parking charge are borne by VCS Limited. The landowner therefore suffers no loss at all. This bizarre business arrangement means that there is no cause of action.

33. Each case must turn on its own fact and the facts of that case are different to this.

34. The Court of Appeal ruled that is a charge was not a genuine pre-estimate of loss it could nevertheless be saved as a penalty if (i) there was social justification, and (ii) the charge was no more than needed to deter, which was established by comparison with council charges at that site.

35. The social justification was because the car park was in a town centre near to a railway station and so might be abused by commuters who stayed all day. Additionally, it was alleged that retailers would suffer if motorists stayed longer than allowed, and other motorists would not be able to find a space when they wanted to shop. ParkingEye have not established any social justification in this particular case.

36. In this case equivalent average council fines are £30 rising to £60 after 14 days. In comparison to this the sum demanded is clearly far more than that needed to deter, far more than genuine losses, and is therefore disproportionate.

37. Additionally, the sum is roughly equivalent to a week’s state pension or a day and a half take home pay at average earnings. It is therefore a huge sum, completely disproportionate to the costs involved in any overstay.




Solicitor Costs

38. The claim includes a sum of £50, described as ‘Legal representitive’s costs’. The Claimant is known to be a serial litigant, issuing up to 1,000 similar claims on a weekly basis, using the bulk processing service, generating up to £50,000 of income. Given a standard working week, the claimant’s solicitor can spend no more than a few minutes per claim, hardly justifying the £50. Since these are fully automated, no intervention is required by a solicitor, and the Claimant is put to strict proof to show how this cost has been incurred. The Claimant maintains case notes for each person who has accessed the case, and it is suggested this would be sufficient. The Claimant cannot rely on Nossen’s Letter Patent (1969) to justify the charge, as this is part of their everyday routine, and no ‘expert services’ are involved. The £50 is not valid because it is not incurred by the claimant, generating over £1.5 million a year in profit.

39. Additionally, as this is already included as part of the costs of the claimant, factored into the £100 parking charge, this is essentially double charging.

40. To put this into context, if the work was done by an outside solicitor who charged VCS Limited £10 (which is believed to be the going rate for this type of work) then VCS Limited would only be able to claim £10, and not £50.

41. The defendant therefore puts the claimant strictly to proof, by way of timesheets or otherwise, that work was done by the litigant’s expert staff to the value of £50.





Additionally

42. VCS Limited are known to attempt to discredit defences by claiming they come from online forums. Although there is nothing wrong with using online forums, and most legal professionals use the internet for research, I confirm that my defence has been individually researched and does not come from an online forum.

43. In any case, VCS Limited cases all explore the same few areas of law and it is therefore not surprising that as VCS Limited file an estimated 50,000 claims a year that many defences will be similar in nature.

44. VCS Limited are known to preface any ‘reply to defence’ with a generic 13-page template which is largely irrelevant to any specific case and in any event is full of misleading information. I also contend this is an abuse of the small claims process, which aims to keep costs down. The size of the document is also not in proportion to the size of the claim. Any generic document should have either been served along with the letter before claim, or listed as a document they will rely on in court. I therefore will address any inaccuracies or misleading information in my Witness Statement, and Skeleton Argument.

45. For all or any of the reasons stated above, the Court is invited to dismiss the Claim in its entirety, and to award the Defendant such costs as are allowable on the small claims track, pursuant to Civil Procedure Rule 27.14. Given that the claim is based on an alleged contractual parking charge of £100 - already significantly inflated and mostly representing profit, as was found in Beavis - but the amount claimed on the claim form is inexplicably £235, the Defendant avers that this inflation of the considered amount is a gross abuse of process.

46. I believe that the facts stated in this defence are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.


The above points will be explained fully in the Witness Statement, and Skeleton Argument, which I shall serve not later than 14 days before the date of any hearing.

Yours sincerely
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Sheffield Dave
post Wed, 28 Apr 2021 - 20:06
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I only took a very brief look at that draft defence, and noticed that it mentions genuine pre-estimate of loss, which went out of the window after Beavis in 2015 - so it looks like you're using a very out of date template.
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saabi
post Wed, 28 Apr 2021 - 20:15
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QUOTE (Sheffield Dave @ Wed, 28 Apr 2021 - 21:06) *
I only took a very brief look at that draft defence, and noticed that it mentions genuine pre-estimate of loss, which went out of the window after Beavis in 2015 - so it looks like you're using a very out of date template.



Thank you very much, Okay I will take that bit off then, anything else please?

Alos the defence period is 28 days, but I am confused, is it start from the date I received the Claim form or 28 days from the online acknowlegement?

This post has been edited by saabi: Wed, 28 Apr 2021 - 20:20
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ostell
post Wed, 28 Apr 2021 - 21:20
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Mention the wilkinson case. It is persuasive in that the additional charge was found to be an abuse of process and the claim dismissed.
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nosferatu1001
post Thu, 29 Apr 2021 - 11:24
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QUOTE (saabi @ Wed, 28 Apr 2021 - 20:15) *
QUOTE (Sheffield Dave @ Wed, 28 Apr 2021 - 21:06) *
I only took a very brief look at that draft defence, and noticed that it mentions genuine pre-estimate of loss, which went out of the window after Beavis in 2015 - so it looks like you're using a very out of date template.



Thank you very much, Okay I will take that bit off then, anything else please?

Alos the defence period is 28 days, but I am confused, is it start from the date I received the Claim form or 28 days from the online acknowlegement?

Given you've used an out of date template, as you know, I'd go find a better one. For example the MSE forum has a template defence.

Neither. It is 28 days from the date served, assumed to be 5 days after issue
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ostell
post Thu, 29 Apr 2021 - 15:11
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Or 28 days from the date acknowledged if this is less,
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saabi
post Sat, 5 Jun 2021 - 21:05
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Hi all, I just received this letter today!
https://ibb.co/rMyGfNx

Please advice on this what to do next.

Thanks
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Glacier2
post Sat, 5 Jun 2021 - 21:24
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Do nothing till you have the judges directions.
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nosferatu1001
post Sat, 5 Jun 2021 - 21:25
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MSE forum tells you the entire court process.
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saabi
post Sat, 5 Jun 2021 - 21:36
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QUOTE (Glacier2 @ Sat, 5 Jun 2021 - 22:24) *
Do nothing till you have the judges directions.



Okay cool thanks i will wait then but do you know roughly how long they take?

Thanks

QUOTE (nosferatu1001 @ Sat, 5 Jun 2021 - 22:25) *
MSE forum tells you the entire court process.


Perfect I will check it out now but you know any possibility that the VCS will withdraw the claim? becuase I read somewhere that the VCS withdrawn the claim when the defendant receive this letter.
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nosferatu1001
post Sat, 5 Jun 2021 - 21:40
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Er,m, no. This is the exact stage every claim goes through. Given VCS get to many hesrings they don't dc at this point.

How's your witness statement going?
We don't know what defence you actually entered.
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saabi
post Sat, 5 Jun 2021 - 22:01
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QUOTE (nosferatu1001 @ Sat, 5 Jun 2021 - 22:40) *
Er,m, no. This is the exact stage every claim goes through. Given VCS get to many hesrings they don't dc at this point.

How's your witness statement going?
We don't know what defence you actually entered.


well I did not start the witness statment yet,

My defence is, I entered in to the EMA Patrol station with genuine intetion of purchasing the service they offer, but this VCS claimed that I enetrerd there to drop someone in a zone where strictly no dropping and picking up

I posted my defence above you can check and advise me. However I am a bit nurvous about court hearing rolleyes.gif
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DWMB2
post Sat, 5 Jun 2021 - 22:09
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As others pointed out at the time, the template you'd based your original draft defence on was out of date - did you amend the one you posted on here before submitting? (nosferatu1001 pointed you in the direction of the MSE forum for a more up-to-date template)

The MSE forum also includes some decent examples of witness statements, to give you an idea of their format. There will also be some examples on here if you have a search around, although of course these are only a guide to the format, as it'll need to be written to suit the circumstances of your particular case.

This post has been edited by DWMB2: Sat, 5 Jun 2021 - 22:09


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nosferatu1001
post Sat, 5 Jun 2021 - 22:25
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You got that feedback! We told you it was out of date...
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