Paragraph 4.2 Pre-action Protocol???

[crundy]

Hi all

 

First post, I've tried searching for the info I require, so apologies if it's already been posted elsewhere.

 

I won't go into the case as it's pretty standard stuff as in other threads - got a letter claiming as RK I was libel, and I'm not, etc.

 

I followed the template letters virtually to the letter and following my second letter asking them to provide evidence of driver and case history, they've sent me a letter saying I must provide the name and address of driver of the vehicle on the day in question otherwise this may constitute (key word 'may') a non-compliance of the pre-action protocols (they quote Paragraph 4.2 of the Pre-Action Protocol earlier in the letter).

 

I know I should have just ignored it, but I'm actually enjoying myself!! My next and final letter will be as per the templates i.e. no evidence so cease & desist and thats the last they'll hear from me. However, I am intrigued as to what the "pre-action protocol" is, and hopefully posting this might help anyone else who gets this quoted in a letter.

 

Any ideas?

[Al27]

You are under no obligation to reveal any information.

[lamma]

an often seen attempt by a PPC to scare a victim. As I recall that protocol is related to costs NOT the facts of the case. (it is from the Civil Procedure Rules - CPR - available on the web) the fact that the PPC didn't say it was CPR means they didn't want you to look it up. I wonder why - or do I

[crundy]

So Civil Procedure Rules have absolutely no bearing on this type of claim? Or put another way, their claim is not within a CPR?

[lamma]

yes - CPR applies ( on thevery very long odds it ever gets to court). the pre action protocol referenced does not. have read CPR - Rules & Practice Directions this are 'piddling' little cases - all that matters is the facts of the case.

[legaladviser99]

I think you will find that the Pre-Action protocol applies in EVERY case and 4.2 of the Pre-Action Protocol does state

d) the parties conducting genuine and reasonable negotiations with a view to settling the claim economically and without court proceedings.

 

It then, and this is the important bit states

:If the defendant does not accept the claim or part of it, the response should

(a) give detailed reasons why the claim is not accepted, identifying which of the claimant's contentions are accepted and which are in dispute;

(b) enclose copies of the essential documents which the defendant relies on

© enclose copies of documents asked for by the claimant, or explain why they are not enclosed

(d) identify and ask for copies of any further essential documents, not in his possession, which the defendant wishes to see; and (The claimant should provide these within a reasonably short time or explain in writing why he is not doing so.)

(e) state whether the defendant is prepared to enter into mediation or another alternative method of dispute resolution.

That is why I suspect just a standard "go away, it wasnt me, take it up with the driver and I dont have to tell you who it is" may fail..

The company could then issue proceedings and even if they lost then CPR 44.3 could apply

1) The court has discretion as to –

(a) whether costs are payable by one party to another;

(b) the amount of those costs; and

© when they are to be paid.

And more importantly deciding what order (if any) to make about costs, the court must have regard to all the circumstances, including (a) the conduct of all the parties.If the court feels the defendant has not assisted, sent templates and in reality probarly did know who was driving but did not say .. This could be classed as unreasonable and the costs could be awarded (which was probarly more than the claim anyway).

Edited October 10, 2008 by legaladviser99

[lamma]

oh deary me - I am going to assume that legaladviser99 works for a PPC. I will plump for CPS at the moment. Not been much visible sign of them of late so I assume there is some action due. Never engage with the PPC - what they want more than anything is engagement and identification of the driver. PPCs make claims (many think outrageous claims) based on no written contract with the motorist whatsoever. As such the burden is entirely upon the PPC to prove their 'case'. the BPA Code of practice is designed to avoid difficulties with The Consumer Protection from Unfair Trading Regulations 2008 No. in particular Section 7. many other statutes and regulations that PPCS need to abide by. Anyone with PPC paper should look here FAQs - PPCs - fighting back. The forces are aligned and don't bother using a stamp on the PPC. If and when they issue real court papers (very rare though CPS have a track record of doing so - they also have a track record of using internet postings to trap victims) and then get a proper defense. never seen a PPC case yet where absence of pre-action protocol 4.2 meant diddly squat. All the PPCs want is to identify victims easily - they work on a percentage game don't forget. but thanks to this forum and the other one word just keeps getting around. So just let them struggle with their game while the victims send off letters to the DVLA and the BPA (copied to TS, your MP etc).

[legaladviser99]

You are partly correct lamma, I do not work for a PPC but work for a company who collect advanced debts and issues court proceedings for PPCs (and other companies).

All parties have a legal obligation to comply with the pre-action protocols and I know of a few cases (PPC and other debts) where proceedings have been brought because a debtor has been 'difficult and evasive' ... At the court hearing the case has not been proven for whatever reasons and costs have been awarded to the claimant as the defendant could have given all the information on receipt of the 14-day warning letter and only did so after legal action began.

[Al27]

I assume you're talking about the case the other month where no details were given and the PPC jobsworth buggered off as soon as he had posted a couple of bits of half-information.

 

We don't even know if the defendant even turned up or what his defence was. I'd be a bit peeved if I was the judge and the guy's defence was in tatters and/or he didn't show.

 

All parties have a legal obligation to comply with the pre-action protocols

It's always an option to request a stay for mediation on the allocation questionnaire if you haven't been in touch with the PPC. Even then, you are under no obligation to divulge drivers at the time etc.

[lamma]

my advice doesn't change. A proper defense will see off the PPC case. no need to be evasive at all - the best form of defense is attack ! can't get the formatting to work on my new thread re the statutes that PPCs love to break (as part of the business model).

[Steve__M]

Here is the relevant link, which (I think) is as the PPC representative states:

 

PRACTICE DIRECTION – PROTOCOLS

 

I think that "the claimant has not identified the driver or shown that they have a contract with the driver" is a sufficiently detailed reason for rejecting the claim.

 

It seems highly unlikely that the defendant in a parking case is relying on a document that would identify the driver. The defendant is not required (as far as I can see) to release a document that the claimant would like to rely on (eg. an insurance policy naming the driver).

[lamma]

indeed not - the onus is entirely upon the claimant.