Respond to the LoC with the following by email to help@moorsidelegal.co.uk and CC in yourself"
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.
Because your letter lacks specificity and breaches the requirements of the Pre-Action Protocol for Debt Claims (paragraphs 3.1(a)-(d), 5.1 and 5.2) as well as the Practice Direction - Pre-Action Conduct (paragraphs 6(a) and 6(c)), you must treat this letter as a formal request for all of the documents/information that the protocol now requires your client to provide. Your client must not issue proceedings without complying with that protocol.
As solicitors you must surely be familiar with the requirements of both the Practice Direction and the Pre-Action Protocol for debt claims and your client, as a serial litigator of debt claims, should likewise be aware of them. As you (and your client) must know, the Practice Direction and Protocol bind all potential litigants, whatever the size or type of the claim. Its express purpose is to assist parties in understanding the claim and their respective positions in relation to it, to enable parties to take stock of their positions and to negotiate a settlement, or at least narrow the issues, without incurring the costs of court proceedings or using up valuable court time. It is embarrassing that a firm of Solicitors are sending a consumer a vague and un-evidenced 'Letter of Claim' in complete ignorance of the pre-existing Practice Direction and the Pre-Action Protocol.
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. An explanation of the cause of action
2. whether they are pursuing me as driver or keeper
3. whether they are relying on the provisions of Schedule 4 of POFA 2012
4. what the details of the claim are; for how long it is claimed the vehicle was parked, how the monies being claimed arose and have been calculated
5. Is the claim for a contractual breach? If so, what is the date of the agreement? The names of the parties to it and provide to me a copy of that contract.
6. If the claim is for a contractual breach, photographs showing the vehicle was parked in contravention of said contract.
7. Is the claim for trespass? If so, provide details.
8. Provide me a copy of the contract with the landowner under which they assert authority to bring the claim, as required by the BPA/IPC Private Parking Single Code of Practice (PPSCoP).
9. a plan showing where any signs were displayed
10. Photographs of the signs displayed (size of sign, size of font, height at which displayed) at the time of any alleged contravention.
11. Provide details of the original charge, and detail any interest and administrative or other charges added
12. Am I to understand that the additional £70 represents what is dressed up as a 'Debt Recovery' fee, and if so, is this nett or inclusive of VAT? If the latter, would you kindly explain why I am being asked to pay the operator’s VAT?
13. With regard to the principal alleged PCN sum: Is this damages, or will it be pleaded as consideration for parking?
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]
The lease company can absolve themselves completely as long as they transferred liability to the Hirer as required under PoFA. If they have followed the instructions in the PCN on transferring their liability, then they are out of the picture and PCM cannot later come back to the to demand payment.
They have to transfer liability by following the requirements of PoFA Paragraph 13(2) (https://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted) which states:
The creditor may not exercise the right under paragraph 4 to recover from the keeper any unpaid parking charges specified in the notice to keeper if, within the period of 28 days beginning with the day after that on which that notice was given, the creditor is given—
(a)a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement;
(b)a copy of the hire agreement; and
(c)a copy of a statement of liability signed by the hirer under that hire agreement.
As long as the lease company has done that, that is the end of the matter as far as they are concerned.
Next, in order to be able to transfer liability from the unknown driver to the Hirer, PCM must follow the requirements of PoFA Paragraph 14(2). The main thing that every operator fails to do is is comply with sub section (a) which states:
the creditor has within the relevant period given the hirer a notice in accordance with sub-paragraph (5) (a “notice to hirer”), together with a copy of the documents mentioned in paragraph 13(2) and the notice to keeper;
So, did the Hirer (your company) receive copies of the following documents together with the Notice to Hirer (NtH):
1. A copy of the original NtK that was sent to the else company.
2. A statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement;
3. A copy of the hire agreement; and
4. A copy of a statement of liability signed by the hirer under that hire agreement.
So, that is copies of 4 separate document copies that should have been given together with the NtH. Were they? I doubt it.
So, when you appealed, did you do so as the representative of the Hirer or did you name yourself as the Hirer when in fact it should have been in the name of the company?
Have you in any way compromised your best defence by making an appeal on the wrong basis in your own name? Does PCM know the identity of the driver?
That PCN was easily appealed if you'd used their failure to comply with the requirements of PoFA for the following reason:
Key Dates:
• Notice to Driver (NtD): Issued on 26/09/2024.
• Notice to Keeper (NtK): Posted on 26/11/2024, given on 28/11/2024.
PoFA Requirements:
Under Paragraph 8(5) of PoFA, when a Notice to Driver (NtD) has already been issued, the Notice to Keeper (NtK)
must be served no earlier than 28 days and no later than 56 days after the contravention date.
• The contravention date (date of parking) is 26/09/2024.
• The NtK was posted on 26/11/2024 (61 days after the contravention date).
This timeline clearly exceeds the 56-day limit for serving the Notice to Keeper.
Conclusion:
PoFA compliance was not met. The NtK was issued too late to hold the Keeper liable under PoFA 2012. This makes the NtK invalid for transferring liability from the driver to the keeper. Therefore, the parking company cannot pursue the registered keeper for the parking charge unless they can prove that the keeper was the driver. They can't unless the Keeper identifies the driver, inadvertently or otherwise.
Hence my questions about who was the NtK addressed to and who and in what capacity did you appeal?