Free Traffic Legal Advice

Hi all,

carrying over post from pepipoo: http://forums.pepipoo.com/index.php?showtopic=149253&st=20

Need advice on two points as the well seems to have dried up over there:

• How can I determine if CPM has complied with Pofa and hold the keeper liable? they assert:
  
  Quote

  Please be advised that the parking charge notice was issued as a breach of contract occurred. The vehicle was parked in a manner whereby the driver became liable for a Parking Charge Notice and therefore The Protection of Freedom Act 2012 is irrelevant and does not apply.

  http://forums.pepipoo.com/index.php?s=&showtopic=149253&view=findpost&p=1785856
  
• as the prev. RK, I have sold the car and have expatriated (for at-least a couple of years)* In the members' experience, would it be reasonable to expect a PPC (CPM) to give up because of this, or would they still pursue (based on response to q1, i.e. RK liability)?
  *Update to HMRC on the changed tax status is pending but will be done shortly, but inevitably some form of assets will remain in the UK.
  

Thanks

Need advice on two points as the well seems to have dried up over there:

In all honesty you do not need advice on these points at present.

As per DWMB2, all that remains procedurally if they wish to pursue the matter is to take you to court to do which they need a serviceable address.

Let's not dance around this point: you are abroad for an extended period but are keeping a foot on the ground here. Presumably you have not cut yourself off from everyone, both formal and informal, therefore there will be an address at which you can be contacted. IMO you should always ensure they can contact you.

It is a relief to know that the IAS appeal isn't a mandatory step in this process (and now with that hindsight, the comment on pepipoo from the rookie makes sense to me).

The success rate at the IAS is so low that they're described by many as a kangaroo court - if one has the time, and a particularly strong case, then appealing to them provides another roll of the dice before court, but given the slim chance of success then not doing so doesn't matter too much.

What a bizarre response - they can't access the DVLA's data again so that is irrelevant. They also don't need to use the electoral register as you have provided them with your new permanent address.

If they're sending the post to your old address, that is because you didn't actually tell them to erase your old address. You now need to email the DPO at both CPM and Gladstone's with the following:

---

To the DPO,

This is a data rectification notice. I require you to rectify your records with my current address for service of documents.

My current address is:

XXX Current address XXX

Once you have updated your records I require you to erase my old address. If you have disclosed my personal data to others, you must contact each recipient and inform them of the rectification. I also require you to inform me about these recipients.

You must comply with a request for data rectification without undue delay and at the latest within one month of receipt of this request.

Failure to follow or comply with this data rectification request will render you and your agents liable under the UK GDPR (Article (5)(1)(d)).

---

With regards to the LoC, you should respond robustly with something along these lines:

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.

I am the registered keeper of the vehicle. I am not obliged to identify the driver and I decline to do so. As there is no legal presumption that the keeper of a vehicle was its driver on any particular occasion, your client cannot pursue me as driver as per VCS v Edward H0KF6C9C [2023].

As you and your client are well aware, there can be no keeper liability as defined in Schedule 4 to the Protection of Freedoms Act 2012 as they have already stated that they are not relying on the Act. So your client cannot pursue me as keeper.

As your client cannot pursue me as driver or keeper, it would be an abuse of the court’s process for your client to issue a claim against me and I will defend any such claim vigorously and seek costs in relation to your client’s unreasonable and vexatious conduct under Part 27.14(2)(g)

As 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 Before 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 IPC Code of Practice v8 Appendix 1.
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

If they're sending the post to your old address, that is because you didn't actually tell them to erase your old address. You now need to email the DPO at both CPM and Gladstone's

Hi,

Thanks for the information both.

I did actually include the CPM DPO when I notified them initially of my move abroad and included the UK forwarding address in that email. At that time, I wasn't aware who they would solicit for their claim so I couldn't have notified Gladstones about it.

Granted that I didn't headline the email with the suggested:This is a data rectification notice ; or included the instructions to erase my old address, but I thought it was pretty clear in the message that the old address would not be in use anymore and all correspondence should be to the new address.

I did not receive any acknowledgement reply from the DPO inbox (automated or otherwise).


Email here dated 15/08/23, showing the DPO inbox in email recipients:

https://ibb.co/7vJMd2m


Does the above change anything regarding liability under GDPR? They clearly didn't comply as my old address was passed on to Gladstones. Should I still notify the DPO at Gladstones or the course of action should be different now?

Thanks - done on both counts: 1) emailed and complained to CPM and Gladstones regarding data

2) responded to the PAP on Gladstones website using the dispute reasons kindly provided.

Will keep you posted.

This is long overdue HMRC investigation.

But potentially not one BertieW wants to spearhead, at least until he's dealt with the claim at hand. I wonder whether any 'extracurricular' complaints to HMRC et. al. might be best saved until after the claim has been dealt with.