Excel & BW Legal

Umkomaas

Have you complained yet to the SRA?

Mahone1302

Not as yet...

Mahone1302

So here's my draft so far:



Dear Sir/Madam,
RE: Your reference xxxxxxx



I write in response to your letter dated November 2016. Please note that this appears to be a duplication of a letter which you sent to me on July 2016 & August 2016. As such I refer you to my response that was sent to you on September 2016, as below:


I write in response to your letter dated August 2016, attached to which was a letter dated July 2016, which was sent by yourselves to an incorrect address despite you having been informed of the correct address.


As I have previously informed you I maintain no responsibility for this 'balance'. Your client, Excel, have written to me as the registered keeper of a vehicle, of which they allege that on November 2015, the driver of that vehicle breached the terms and conditions of one of their car parks. Excel have failed to meet the requirements of the Protection of Freedoms Act 2012, and as such have no legal basis upon which they can hold me, the registered keeper, liable for this 'balance.' As I can not legally be held liable for this balance, I require BW Legal & Excel to cease processing my data. Please take this as a Section 10 Notice under the Data Protection Act.


In your letter you brought my attention to 'Elliot v Loake.' I am indeed acutely aware of this criminal case, whereby the registered keeper was presumed to also be the driver due to overwhelming evidence, including forensic evidence. I do not however see how this is relevant to a breach of parking conditions on Excel's car park. Should there be forensic evidence that as yet I have not been made privy too, I look forward to seeing this. Should it not be forthcoming then I will inform the Solicitors Regulation Authority that you are wrongly citing criminal case law in relation to a completely unrelated and dissimilar civil matter.


It should not be for an unrepresented member of the public such as my self, to point out to a professional law firm that they are trying to pursue a debt without the necessary legal basis to do so. Should BW Legal or Excel continue to pursue me for this 'balance' then I require an explicit and clear reason as to what legal basis exists to hold me responsible.


Should my request under S.10 DPA not be fulfilled, I will report you to the ICO.


It should also not be necessary that I, as a consumer, must remind you that your £54 legal charges cannot be recovered in the Small Claims Court. They are not my concern and I refer you to CPR 27.14.


Should you continue to pursue me for a 'balance' without legal basis, I will report you to the Solicitors Regulation Authority.


Further to this I bring your attention to comments of Henry Greenslade, barrister and previous lead adjudicator for POPLA, on Keeper Liability in the POPLA 2015 Annual Report: "However keeper information is obtained, there is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort."


I would be most grateful if you could bring this to the attention of Excel.


Furthermore I wish to remind you of the following County Court cases where BW Legal and Excel brought a claim against a registered keeper of a vehicle, provided no evidence that he was the driver, attempted to use Elliot v Loake to presume the keeper was the driver, but was unsuccessful:


Excel v Mr L at Skipton – 17/11/2016 - The judge dismissed the claim, summing it up as follows, saying it boiled down to two things:
1. Either the claimant could prove the defendant was the driver, which they did not.
Or
2. They could comply with Protection of Freedoms Act 2012 to pursue the defendant as the keeper, which it was proved they did not.


Excel v Mr C C8DP37F1 at Stockport - 31/10/2016 - Claim dismissed as Excel had not complied with the mandatory requirements of the Protection of Freedoms Act 2012 to invoke keeper liability, Excel did not provide evidence of who the driver was, and Elliot v Loake was not persuasive and could be distinguished.


It is quite clear in law that compliance with the Protection of Freedoms Act 2012 is the only way that an operator can hold the registered keeper liable for a parking charge without providing evidence that they were the driver at the time of the parking event.


In addition to your claim for £54 legal costs being unrecoverable in a small claims court as per CPR 27.14, I also bring your attention to schedule 4, paragraph 4(5) of the Protection of Freedoms Act 2015: The maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper under paragraph 8(2)(c) or (d) or, as the case may be, 9(2)(d) (less any payments towards the unpaid parking charges which are received after the time so specified). The Notice to Keeper sent to myself on December 2015 quite clearly states £100, not £154.


I have now informed you on two occasions (emails dated October 2016 and September 2016) that absent of any lawful basis upon which to hold me liable for this charge, BW Legal nor Excel have any reason to continue processing my data and as such must cease immediately as per Section 10 of the Data Protection Act. Should this third request not be adhered to I will complain to the Information Commissioner and may pursue your client for damages. I refer you to Google v Vidal-Hall and also Halliday v Creation Consumer Finance Ltd [2013] All ER (D) 199, which provides authority that a reasonable sum for compensation would be £750.

Umkomaas

Well you need to get that off soonest. One of your main points of complaint is their misleading use of the E-v-L case to exert pressure when this has now clearly been confirmed at court that it does not apply to private parking cases.

http://parking-prankster.blogspot.co.uk/2016/11/football-story-nothing-to-do-with-wayne.html

http://parking-prankster.blogspot.co.uk/2016/10/excel-parking-youve-been-gladstoned.html

Fruitcake

You really must get on with the complaints to the SRA and ICO. You should have sent a letter each and every time you got one from BWL. This would add more weight than one long list of complaints.

Please, please find time to send a raft of complaints. The only way this sort of rubbish will stop is if everyone affected bombards the SRA and ICO about their dreadful behaviour.

In addition, this bit from your post 34 doesn't make sense.

In addition to your claim for £54 legal costs being unrecoverable in a small claims court as per CPR 27.14, I also bring your attention to schedule 4 ...

Shouldn't that be, recoverable? (It reads as though they claim the 54 quid is unrecoverable.)

Coupon-mad

Mahone1302 wrote: »

So here's my draft so far:



Dear Sir/Madam,
RE: Your reference xxxxxxx


I write in response to your letter dated November 2016. Please note that this appears to be a duplication of a letter which you sent to me on July 2016 & August 2016. As such I refer you to my response that was sent to you on September 2016, as below:

I write in response to your letter dated August 2016, attached to which was a letter dated July 2016, which was sent by yourselves to an incorrect address despite you having been informed of the correct address.


As I have previously informed you I maintain no responsibility for this 'balance'. Your client, Excel, have written to me as the registered keeper of a vehicle, of which they allege that on November 2015, the driver of that vehicle breached the terms and conditions of one of their car parks. Excel have failed to meet the requirements of the Protection of Freedoms Act 2012, and as such have no legal basis upon which they can hold me, the registered keeper, liable for this 'balance.' As I can not legally be held liable for this balance, I require BW Legal & Excel to cease processing my data. Please take this as a Section 10 Notice under the Data Protection Act.

In your letter you brought my attention to 'Elliot v Loake.' I am indeed acutely aware of this criminal case, whereby the registered keeper was presumed to also be the driver due to overwhelming evidence, including forensic evidence. I do not however see how this is relevant to a breach of parking conditions on Excel's car park. Should there be forensic evidence that as yet I have not been made privy too, I look forward to seeing this. Should it not be forthcoming then I will inform the Solicitors Regulation Authority that you are wrongly citing criminal case law in relation to a completely unrelated and dissimilar civil matter.

It should not be for an unrepresented member of the public such as my self, to point out to a professional law firm that they are trying to pursue a debt without the necessary legal basis to do so. Should BW Legal or Excel continue to pursue me for this 'balance' then I require an explicit and clear reason as to what legal basis exists to hold me responsible.

Should my request under S.10 DPA not be fulfilled, I will report you to the ICO.

It should also not be necessary that I, as a consumer, must remind you that your £54 legal charges cannot be recovered in the Small Claims Court. They are not my concern and I refer you to CPR 27.14.

Should you continue to pursue me for a 'balance' without legal basis, I will report you to the Solicitors Regulation Authority.

Further to this I bring your attention to comments of Henry Greenslade, barrister and previous lead adjudicator for POPLA, on Keeper Liability in the POPLA 2015 Annual Report: "However keeper information is obtained, there is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort."

I would be most grateful if you could bring this to the attention of Excel.

Furthermore I wish to remind you of the following County Court cases where BW Legal and Excel brought a claim against a registered keeper of a vehicle, provided no evidence that he was the driver, attempted to use Elliot v Loake to presume the keeper was the driver, but was unsuccessful:

Excel v Mr L at Skipton – 17/11/2016 - The judge dismissed the claim, summing it up as follows, saying it boiled down to two things:
1. Either the claimant could prove the defendant was the driver, which they did not.
Or
2. They could comply with Protection of Freedoms Act 2012 to pursue the defendant as the keeper, which it was proved they did not.

Excel v Mr C C8DP37F1 at Stockport - 31/10/2016 - Claim dismissed as Excel had not complied with the mandatory requirements of the Protection of Freedoms Act 2012 to invoke keeper liability, Excel did not provide evidence of who the driver was, and Elliot v Loake was not persuasive and could be distinguished.

It is quite clear in law that compliance with the Protection of Freedoms Act 2012 is the only way that an operator can hold the registered keeper liable for a parking charge without providing evidence that they were the driver at the time of the parking event.


In addition to your claim for £54 legal costs being unrecoverable in a small claims court as per CPR 27.14, I also bring your attention to schedule 4, paragraph 4(5) of the Protection of Freedoms Act 2015: The maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper under paragraph 8(2)(c) or (d) or, as the case may be, 9(2)(d) (less any payments towards the unpaid parking charges which are received after the time so specified). The Notice to Keeper sent to myself on December 2015 quite clearly states £100, not £154.

I have now informed you on two occasions (emails dated October 2016 and September 2016) that absent of any lawful basis upon which to hold me liable for this charge, BW Legal nor Excel have any reason to continue processing my data and as such must cease immediately as per Section 10 of the Data Protection Act. Should this third request not be adhered to I will complain to the Information Commissioner and may pursue your client for damages. I refer you to Google v Vidal-Hall and also Halliday v Creation Consumer Finance Ltd [2013] All ER (D) 199, which provides authority that a reasonable sum for compensation would be £750.

Love that letter! :T

DoaM

It is quite clear in law that compliance with the Protection of Freedoms Act 2012 is the only way that an operator can hold the registered keeper liable for a parking charge without providing evidence that they were the driver at the time of the parking event.

I'd be tempted to put it that way ... underline the word evidence.

@Fruitcake ... I think it's worded OK ref. £54.

Mahone1302

So here's my final draft, I've changed the formatting a little, but the wording is the same, however I've added some stuff to the end of the letter.

I write in response to your letter dated 9 November 2016. Please note that this appears to be a duplication of letters which you sent to me on July 2016 & August 2016. As such I refer you to my response that was sent to you on September 2016, as below:


I write in response to your letter dated August 2016, attached to which was a letter dated July 2016, which was sent by yourselves to an incorrect address despite you having been informed of the correct address.


As I have previously informed you I maintain no responsibility for this 'balance'. Your client, Excel, have written to me as the registered keeper of a vehicle, of which they allege that on November 2015, the driver of that vehicle breached the terms and conditions of one of their car parks. Excel have failed to meet the requirements of the Protection of Freedoms Act 2012, and as such have no legal basis upon which they can hold me, the registered keeper, liable for this 'balance.' As I can not legally be held liable for this balance, I require BW Legal & Excel to cease processing my data. Please take this as a Section 10 Notice under the Data Protection Act.


In your letter you brought my attention to 'Elliot v Loake.' I am indeed acutely aware of this criminal case, whereby the registered keeper was presumed to also be the driver due to overwhelming evidence, including forensic evidence. I do not however see how this is relevant to a breach of parking conditions on Excel's car park. Should there be forensic evidence that as yet I have not been made privy too, I look forward to seeing this. Should it not be forthcoming then I will inform the Solicitors Regulation Authority that you are wrongly citing criminal case law in relation to a completely unrelated and dissimilar civil matter.


It should not be for an unrepresented member of the public such as my self, to point out to a professional law firm that they are trying to pursue a debt without the necessary legal basis to do so. Should BW Legal or Excel continue to pursue me for this 'balance' then I require an explicit and clear reason as to what legal basis exists to hold me responsible.


Should my request under S.10 DPA not be fulfilled, I will report you to the ICO.


It should also not be necessary that I, as a consumer, must remind you that your £54 legal charges cannot be recovered in the Small Claims Court. They are not my concern and I refer you to CPR 27.14.


Should you continue to pursue me for a 'balance' without legal basis, I will report you to the Solicitors Regulation Authority.


Further to this I bring your attention to the comments on ‘Keeper Liability’ of Henry Greenslade, Barrister and previous Lead Adjudicator for POPLA London Councils in the POPLA 2015 Annual Report: "However keeper information is obtained, there is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort."


I would be most grateful if you could bring this to the attention of Excel.


Furthermore I wish to remind you of the following County Court cases where BW Legal and Excel brought a claim against the registered keeper of a vehicle, provided no evidence that he was the driver, attempted to use Elliot v Loake to presume the keeper was the driver, but was unsuccessful:


Excel v Mr L at Skipton – 17/11/2016 - The judge dismissed the claim, summing it up as follows:
1. Either the claimant could prove the defendant was the driver, which they did not.
Or
2. They could comply with Protection of Freedoms Act 2012 to pursue the defendant as the keeper, which it was proved they did not.


Excel v Mr C C8DP37F1 at Stockport - 31/10/2016 - Claim dismissed as Excel had not complied with the mandatory requirements of the Protection of Freedoms Act 2012 to invoke keeper liability, Excel did not provide evidence of who the driver was, and Elliot v Loake was not persuasive and could be distinguished.


It is quite clear in law that compliance with the Protection of Freedoms Act 2012 is the only way that an operator can hold the registered keeper liable for a parking charge without providing evidence that they were the driver at the time of the parking event.


In addition to your £54 legal costs being unrecoverable in a small claims court, as per CPR 27.14, I also bring your attention to Schedule 4, Paragraph 4(5) of the Protection of Freedoms Act 2015: “The maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper under paragraph 8(2)(c) or (d) or, as the case may be, 9(2)(d) (less any payments towards the unpaid parking charges which are received after the time so specified).” The Notice to Keeper sent to myself on December 2015 quite clearly states £100, not £154.


I have now informed you on two occasions (emails dated October 2016 and September 2016) that absent of any lawful basis upon which to hold me liable for this charge, BW Legal and Excel have no further reason to continue processing my data and as such must cease immediately as per Section 10 of the Data Protection Act. Should this third request not be adhered to I will complain to the Information Commissioner and may pursue your client for damages. I refer you to Google v Vidal-Hall and also Halliday v Creation Consumer Finance Ltd [2013] All ER (D) 199, which provides authority that a reasonable sum for compensation would be £750.


- I have no liability for this 'balance'
- Your client has failed to meet the requirements of the Protection of Freedoms Act 2012 and as such their claim is against the driver of the vehicle.
- Elliot v Loake is irrelevant and does not apply in this case.
- There is no reasonable assumption in law that the registered keeper was the driver.
- Excel nor yourselves have any legal basis to hold me responsible for this 'balance'
- If you believe that such a basis does exist, I wish to be informed of this.
- In the absence of such a basis, I require Excel and yourselves to cease processing my data as required by Section 10 of the Data Protection Act (Please note: as this requirement has been ignored, your breach will be reported to the ICO)


Furthermore a complaint to the Solicitor Regulation Authority is now being put together due to your misleading claims surrounding various case law, attempts to claim for legal costs that the Civil Procedure Rules do not allow for, and failure to adhere to the DPA.


As previously stated, your clients claim is against the driver. Unless you or your client can demonstrate a lawful basis upon which to hold me liable, I expect no further correspondence from yourselves other than confirmation that my personal data has been removed from your systems and that your clients claim against me has been discontinued. Should it be your client’s intention to start court proceedings, they must provide a Letter Before Claim which complies with the requirements of the Practice Direction on Pre-action conduct. Please note that a failure and/or refusal to comply with the Practice Direction will result in a complaint being made to the court and an application for a stay of action and costs pursuant to the provisions of paragraph 4 of the Practice Direction on non-compliance and sanctions.


I look forward to hearing from you within 7 days.

Mahone1302

Well they've written back, almost 4 weeks later.

---

The jist of the letter being that their client do not rely on POFA 2012 so the points in my letter are irrelevant.

It is reasonable to presume keeper as driver, as per 'the leading case of Elliot v Loake 1982 which is similar to the case in question'

They note my comments regarding processing of RK details, and have included a paragraph from the 'DVLA Release of Information document' about why they will continue to process my details.

They note that I have refused to pay the PCN and will be seeking their clients instructions on court proceedings.

---

What a poor response to my very detailed and clear letter. These guys honestly haven't a clue. Before anybody asks about SRA/CSA complaints, I have still not done these. I won't be either, not at this stage. It is quite clear that despite the numerous complaints made, nothing is being done. Should this matter go to court and should I win, I'll complain to the SRA and CSA then. I will also be considering a misuse of personal data claim too.

beamerguy

Mahone1302 wrote: »

Well they've written back, almost 4 weeks later.

---

The jist of the letter being that their client do not rely on POFA 2012 so the points in my letter are irrelevant.

It is reasonable to presume keeper as driver, as per 'the leading case of Elliot v Loake 1982 which is similar to the case in question'

They note my comments regarding processing of RK details, and have included a paragraph from the 'DVLA Release of Information document' about why they will continue to process my details.

They note that I have refused to pay the PCN and will be seeking their clients instructions on court proceedings.

---

What a poor response to my very detailed and clear letter. These guys honestly haven't a clue. Before anybody asks about SRA/CSA complaints, I have still not done these. I won't be either, not at this stage. It is quite clear that despite the numerous complaints made, nothing is being done. Should this matter go to court and should I win, I'll complain to the SRA and CSA then. I will also be considering a misuse of personal data claim too.

BWLegal still misleading themselves regarding Elliot v Loake.

THAT WAS A CRIMINAL CASE AND NOTHING TO DO WITH YOU

It's no wonder they are seen as being so incompetent