Good Morning
Having reviewed the content of your defence, we write to inform you that our client intends to proceed with the claim.
In due course, the Court will direct both parties to each file a directions questionnaire. In preparation for that, please find attached a copy of the Claimant's, which we confirm has been filed with the Court.
Without Prejudice to the above, in order to assist the Court in achieving its overriding objective, our client may be prepared to settle this case - in the event you wish to discuss settlement, please call us on 0203 434 0433 within 7 days and make immediate reference to this correspondence.
If you have provided an email address within your Defence, we intend to use it for service of documents (usually in PDF format) hereon in pursuant to PD 6A (4.1)(2)(c). Please advise whether there are any limitations to this (for example, the format in which documents are to be sent and the maximum size of attachments that may be received). Unless you advise otherwise, we will assume not.
1. The Defendant denies the claim in its entirety. The Defendant asserts that there is no liability to the Claimant and that no debt is owed. The claim is without merit and does not adequately disclose any comprehensible cause of action.
2. There is a lack of precise detail in the Particulars of Claim (PoC) in respect of the factual and legal allegations made against the Defendant such that the PoC do not adequately comply with CPR 16.4.
3. The Defendant is unable to plead properly to the PoC because:
(a) The contract referred to is not detailed or attached to the PoC in accordance with PD 16, para 7.3(1);
(b) The PoC do not state the exact wording of the clause (or clauses) of the terms and conditions of the contract (or contracts) which is/are relied on;
(c) The PoC do not adequately set out the reason (or reasons) why the claimant asserts the defendant has breached the contract (or contracts);
(d) The PoC do not state with sufficient particularity exactly where the breach occurred, the exact time when the breach occurred and how long it is alleged that the vehicle was parked before the parking charge was allegedly incurred;
(e) The PoC do not state precisely how the sum claimed is calculated, including the basis for any statutory interest, damages, or other charges;
(f) The PoC do not state what proportion of the claim is the parking charge and what proportion is damages;
(g) The PoC do not provide clarity on whether the Defendant is sued as the driver or the keeper of the vehicle, as the claimant cannot plead alternative causes of action without specificity.
4. The Defendant submits that courts have previously struck out materially similar claims of their own initiative for failure to adequately comply with CPR 16.4, particularly where the Particulars of Claim failed to specify the contractual terms relied upon or explain the alleged breach with sufficient clarity.
5. In comparable cases involving modest sums, judges have found that requiring further case management steps would be disproportionate and contrary to the overriding objective. Accordingly, strike-out was deemed appropriate. The Defendant submits that the same reasoning applies in this case and invites the court to adopt a similar approach by striking out the claim due to the Claimant’s failure to adequately comply with CPR 16.4, rather than permitting an amendment. The Defendant proposes that the following Order be made:
Draft Order:
Of the Court's own initiative and upon reading the particulars of claim and the defence.
AND the court being of the view that the particulars of claim do not adequately comply with CPR 16.4(1)(a) because: (a) they do not set out the exact wording of the clause (or clauses) of the terms and conditions of the contract which is (or are) relied on; and (b) they do not adequately set out the reason (or reasons) why the claimant asserts that the defendant was in breach of contract.
AND the claimant could have complied with CPR 16.4(1)(a) had it served separate detailed particulars of claim, as it could have done pursuant to PD 7C, para 5.2, but chose not to do so.
AND upon the Court determining, having regard to the overriding objective (CPR 1.1), that it would be disproportionate to direct further pleadings or to allot any further share of the Court’s resources to this claim (for example by ordering further particulars of claim and a further defence, with consequent case management).
ORDER:
1. The claim is struck out.
2. Permission to either party to apply to set aside, vary or stay this order by application on notice, which must be filed at this Court not more than 7 days after service of this order, failing which no such application may be made.
You can email back with the following (also CC yourself):[/quote]
[Name]
Subject: Your non-compliant Letter of Claim – PAPDC disclosure still outstanding (Ref: [reference])
Dear Sirs,
Thank you for your email dated [date]. It does not remedy the deficiencies identified in your Letter of Claim.
For the avoidance of doubt:1. Your client has still not complied with the Pre-Action Protocol for Debt Claims (“PAPDC”) para 3.1(a)–(d) and §§5.1–5.2, nor with Practice Direction – Pre-Action Conduct (“PD-PAC”) §6(a) and §6(c). You have not provided the key documents necessary for me to understand and respond to the claim.
2. Your suggestion that I should supply “evidence” before you have even disclosed the basics (contract, authority, signage/terms, and the legal basis/quantum) inverts the Protocol. PAPDC/PD-PAC require the prospective claimant to set out and evidence its case first so that meaningful pre-action engagement can occur.
To enable protocol-compliant engagement, please provide within 7 days:• The Notice to Keeper relied upon (and confirmation of any PoFA 2012 reliance).
• Contemporaneous photographs of the signage at the material time and the exact term(s) allegedly breached.
• The written landowner agreement/chain of authority that proves standing.
• An intelligible breakdown of the sum claimed, stating whether the principal is consideration or damages, and clarifying the status/VAT treatment of any “debt recovery” add-on.
• A copy of any “contract” you contend was formed with the driver/keeper.
• The full name, role and SRA status of the person with conduct of this matter (please confirm that a solicitor is supervising and will be the point of contact).
Telephone discussions are inappropriate; I require the above in writing. Pending receipt, I cannot complete the PAPDC Reply Form substantively. On receipt of a compliant Letter of Claim with the documents above, I will then provide a full response within 30 days as contemplated by PAPDC §5.2.
If you commence proceedings without first complying with PAPDC/PD-PAC, I will apply for an immediate stay and invite the court to impose sanctions per PD-PAC §§13, 15(b)–(c) and 16 (cf. Webb Resolutions Ltd v Waller Needham & Green [2012] EWHC 3529 (Ch); Daejan Investments v Park West Club [2003] EWHC 2872; Charles Church Developments v Stent Foundations [2007] EWHC 855). I will also seek my costs for unreasonable conduct (see CPR 27.14(2)(g) and related authorities).
Please confirm by return that: (i) you will not issue within 30 days after providing the above documents, and (ii) a named, authorised fee-earner now has conduct.
If the recipient is not conversant with the PAPDC and PD-PAC obligations set out above, please escalate this matter to a suitably qualified and authorised fee-earner without delay.
Yours faithfully,
[Name]
As a firm of supposed solicitors, one would expect you to be capable of crafting a letter that aligns with paragraphs 3.1(a)–(d), 5.1 and 5.2 of the Protocol, and paragraphs 6(a) and 6(c) of the Practice Direction. These provisions do not exist for decoration—they exist to facilitate informed discussion and proportionate resolution. You might wish to reacquaint yourselves with them.I love this :)
Subject: Response to you Letter of Claim Ref: [reference number]
Dear Sirs,
Your Letter Before Claim contains insufficient detail of the claim and fails to provide copies of evidence your client places reliance upon and thus is in complete contravention of the Pre-Action Protocol for Debt Claims.
As a firm of supposed solicitors, one would expect you to be capable of crafting a letter that aligns with paragraphs 3.1(a)–(d), 5.1 and 5.2 of the Protocol, and paragraphs 6(a) and 6(c) of the Practice Direction. These provisions do not exist for decoration—they exist to facilitate informed discussion and proportionate resolution. You might wish to reacquaint yourselves with them.
The Civil Procedure Rules 1998, Pre-Action Conduct and Protocols (Part 3), stipulate that prior to proceedings, parties should have exchanged sufficient information to understand each other’s position. Part 6 helpfully clarifies that this includes disclosure of key documents relevant to the issues in dispute.
Your template letter mentions a “contract”, yet fails to provide one. This would appear to undermine the only foundation upon which your client’s claim allegedly rests. It’s difficult to engage in meaningful pre-litigation dialogue when your side declines to furnish the very document it purports to enforce.
I confirm that, once I am in receipt of a Letter Before Claim that complies with the requirements of para 3.1 (a) of the Pre-Action Protocol, I shall then seek advice and submit a formal response within 30 days, as required by the Protocol. Thus, I require your client to comply with its obligations by sending me the following information/documents:1. A copy of the original Notice to Keeper (NtK) that confirms any PoFA 2012 liability
2. A copy of the contract (or contracts) you allege exists between your client and the driver, in the form of an actual photograph of the sign you contend was at the location on the material date, not a generic stock image
3. The exact wording of the clause (or clauses) of the terms and conditions of the contract(s) which is (are) relied upon that you allege to have been breached
4. The written agreement between your client and the landowner, establishing authority to enforce
5. A breakdown of the charges claimed, identifying whether the principal sum is claimed as consideration or damages, and whether the £70 “debt recovery” fee includes VAT
6. The full name and role of the person with conduct of this matter and their regulatory status/authorisation to conduct litigation
I am clearly entitled to this information under paragraphs 6(a) and 6(c) of the Practice Direction. I also need it in order to comply with my own obligations under paragraph 6(b).
If your client does 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 your client and to order a stay of the proceedings, pursuant to paragraphs 13, 15(b) and (c) and 16 of the Practice Direction, as referred to in paragraph 7.2 of the Protocol.
Until your client has complied with its 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 your client to issue proceedings. Should your client 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,
[Your name]
I assume the matter is closedI wouldn't assume that yet.
@sinaloa, was this ever pursued i.e. did such a letter from DCB Legal or otherwise manifest?
I've received a NtK in the post detailing almost exactly the same circumstances: a motorcycle "not parked correctly within the markings of the bay or space" at Bell Green Retail Park in the same paved area as indicated in your photos. The only difference is that in the case of which I speak, the silly rider was only 'parked' there for 7 minutes, which one would imagine falls well within the reasonable 'consideration period'.
Amusingly, and what may help similarly targeted riders in their appeals, is that the sign at one of the entrances to the car park referenced in a previous post, which has already been (quite rightly) decried as unclear & virtually impossible to safely read while entering the car park, is (at the time of writing) facing the wrong way, i.e. facing drivers exiting the car park as opposed to entering.
(https://i.imgur.com/JabRQZ8.png)
(https://i.imgur.com/M85yN44.jpeg)
The appellant is appealing on behalf of the registered keeper. I have received the PCN, and I am satisfied this meets the requirements of the Protection of Freedoms Act 2012 and the relevant sections raised in the British Parking Association code of practice therefore, I am considering the registered keeper’s liability for the PCN. When assessing an appeal POPLA considers if the operator has issued the parking charge notice correctly and if the driver has complied with the terms and conditions for the use of the car park. The operator has provided photos of the signs displayed on site. The signs state that there is a maximum stay of 3 hours. All vehicles must be parked within a marked bay. Failure to comply with the terms will result in the issue of a parking charge notice of £100. The appellant says there is no mention of the period of parking or the land in which the vehicle was parked on, on the PCN which fails to comply with the requirements of The Protection of Freedoms Act Section 9(2)(a) and (b). Upon review of the parking charge provided by the operator I can see the operator has provided both the period of parking, which in this case is 16:36:44 and the land in which the driver parked the vehicle on which was Bell Green Retail Park. As such I am satisfied the parking charge notice contains the information required by the PoFA. The signage fails to comply with the British Parking Association code of practice 2010. The appellant says from where the vehicle was parked, none of the signs can be seen. They say the sign on entry is impossible to read. The British Parking Association (BPA) has a Code of Practice which set the standards its parking operators need to comply with. Section 19.2 of the BPA code of practice states: “Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of. Entrance signs must follow some minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this. See Appendix B for an example of an entrance sign and more information about their use” Having reviewed the signage within the case file, I am satisfied that the signs have met the requirements of section 19.2. this is because the operator has shown that there is an entrance sign displayed on entry to the car park, which the driver had the opportunity to see on entry to the car park. This sign advised them to read the further terms and conditions within the car park. Therefore, it was down to the driver to read the further terms and conditions within the car park itself. I note the appellant says the sign refers to a 2 hour maximum stay however upon review of the image provided by the appellant I can see the entrance sign refers to a 3 hour maximum stay. The entrance sign provided by the appellant also advises motorists to see further terms inside the car park. The appellant says there are no signs within the area to specify whether it is designed for motorcycles only, bikes only or both. The BPA Code of Practice, paragraph 19.3 states: “signage tells drivers what your terms and conditions are, including the parking charges. You must place signage containing the specific parking terms throughout the site so that drivers are given the chance to read them at the time of parking or leaving.” Paragraph 19.3 also explains that signs “must be conspicuous and legible and written in intelligible language so that they are easy to see, read and understand.” The driver of the vehicle does not need to have read the terms and conditions of the contract to accept it. There is only the requirement that the driver is afforded the opportunity to read and understand the terms and conditions of the contract before accepting it. It is the driver’s responsibility to seek out the terms and conditions, and ensure they understand them, before agreeing to the contract and parking. Reviewing the photographic evidence of the signage on display at the site and the site map, I am satisfied that the driver was afforded this opportunity. The appellant says the motorbike was parked on the paved area designed for bikes. In this case upon review of the signs it is clear that all vehicles must be parked within a marked bay. Whilst i note the signs do not specifically refer to motorcycles or bikes, there is no requirement for the signs to refer to them. I am satisfied it is clear that by parking on site, whether that be a car, van or motorcycles, all vehicles be parked in a marked bay. The operator has provided photos of the vehicle parked. This shows the vehicle was parked on a pedestrian paved area. There are no signs or markings to suggest this area is for motorbikes or bicycles. The appellant says no evidence has been provided to show the operator has the landowners permission to issue the PCN. The British Parking Association Code of Practice sets the standards by which its members must abide by. Section 7.1 of the code confirms that if an operator does not own the land on which it is carrying out parking management, it must have the written authorisation of the landowner or their appointed agent. This must confirm the operator has the authority to carry out all the aspects of car park management for the site that it is responsible for. In particular, it must say that the landowner or agent requires the operator to keep to the Code of Practice, the details of the land and that it has the authority to pursue outstanding parking charges. In response to this ground of appeal, the operator has provided a copy of the contract, and on reviewing this, I am satisfied that the operator has sufficient authority to pursue charges on the land. The appellant has stated the operator has failed to comply with Section 2.4, 21.1 of the BPA code of practice. When there is relevant legislation and related guidance, this will define the overall standard of conduct for all AOS members. All AOS members must be aware of their legal obligations and implement the relevant legislation and guidance when operating their businesses. Examples of relevant law and guidance within this sector are: • contract law • tort of trespass • data protection law • consumer protection law • Protection of Freedoms Act 2012 (POFA), including Schedule 4 (included as Appendix C to the Code) • DVLA Guidelines for Accredited Trade Associations • equalities law. When looking at appeals, POPLA considers whether a parking contract was formed and, if so, whether the motorist kept to the conditions of the contract. As this issue holds no impact on the appellant’s ability to comply with the terms on the date of the parking event, I cannot consider it relevant to the assessment. Should the appellant wish to pursue any dispute regarding this matter, they would need to contact the operator directly. Having review both the appellants grounds of appeal and the comments raised, I conclude that the terms and conditions of the car park have not been met and the operator has issued the PCN correctly, as such the appeal is refused.
Hi, I just got one of these also! I was parked to the left of where you were parked @sinaloa, so just in front of the bicycle bay, but to the left so the bike didn't obstruct anyone or anything. I had parked there many times in the past since it wasn't in the way and there weren't any signs to say you couldn't!! I couldn't find any reference to motorcycles on any signs and given I was off the car parking area and away from everything, I thought I was fine! I tried to upload a photo but it says the upload folder is full (anyway, it was just to the left of your bike as described).
I now have a ZZPS letter since had gone on holiday a day after parking there and had been away for all the UKPC letters.
What's the upshot? I'm so upset! Cheers. Raf
1. No mention of period of parkingExplain how. Explain what 9(2)(a) and (b) of PoFA require, then compare that with what UKPC have actually provided. Explain why this is not sufficient, and then explain that for this reason, they are unable to recover the charge from you as the registered keeper.
UKPC has failed to fully comply with the strict requirements of PoFA 9(2)(a) and (b). There is no mention of period of parking on the PCN.
2. Poor or lack of signageSame as above - don't expect them to just take your word for it. Include images of the signage in-line in your appeal document, set out what the Code of Practice requires, and explain how their signage fails to meet these requirements.
The signage at the car park was not compliant with the British Parking Association standards and here was no valid contract between the parking company and the driver. From where the vehicle is parked, none of the signs can be seen.
3. The motorbike was parked on the paved area designed for bikesAgain, more detail - show them the evidence you have that the paved area is designed for bikes (i.e. some sort of signage indicating that the area is for bike parking).
Another question, would it at all be advisable to say the driver had parked correctly, but somebody moved the bike while they were shopping?Did they?
Please stop wasting both our time. The level of intellectual malnourishment evidenced in your letter requesting that, as the keeper, I should provide UKPC with the drivers details is nothing short of embarrassing.
As the keeper, I am under no legal obligation to identify the driver and I shall not be doing so. The fact that UKPC is unaware of why the NtK is not fully compliant with PoFA and therefore incapable of holding the keeper liable, just goes to prove my point about the intellectual capability of whoever in UKPCs appeals department decided to send the letter in the first place.
Just get on with it, reject my appeal and give me a POPLA code where I will point out UKPCs failure to be able to hold the keeper liable.
I'd be minded to find out whether UKPC's authority to enforce parking on the site ends at the kerb before waxing lyrical about breaches of KADOE contracts and breaches of GDPR, otherwise it might end up looking like ill-informed bluster.Whilst I would agree that it is better to get that information, I would wager that you would be unsuccessful. UKPC are not going to bother digging out the detail of their contract at this stage. They will only produce that if it went to court and I can guarantee that they would discontinue before it ever went that far.
This is an appeal by the registered keeper - No driver details will be given. Please do NOT try the usual trick of asking for driver details in order to get around the fact your NtK does not comply with PoFA. As there are obvious failures to fully comply with the strict requirements of PoFA 9(2)(a) and (b), there can be no keeper liability.
Additionally, as you have not complied fully with the requirements of PoFA, you have also breached the BPA Code of Practice at 2.4, 19.4, 21.2, 21.12 and 21.13.
The vehicle was not parked on the car park, therefore you have no authority to issue a PCN. Unless you can evidence landowner authority to issue PNCs to vehicles that are not parked on the car park, you had no right to request the keeper details from the DVLA. I will be making a complaint to the DVLA about this serious breach of the KADOE rules.
As you have breached the KADOE rules, you have also breached my GDPR and I will not hesitate to follow this up should you not cancel the PCN and issue an apology. As there is no keeper liability, therefore, liability cannot flow from the driver to the keeper and so, is an automatic win at POPLA. Please cancel the notice or issue a POPLA code at which point you will auto withdraw.
A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met. The notice must specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates; inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full.