Excel & BW Legal

Umkomaas

jeremiahjingle wrote: »

Hi, any update at all?

Likely to be a few weeks for things to move on this. If it goes to court, 3-4 months.

Mahone1302

So yesterday through the letter box came the Claim Form from the County Court Business Centre. Today I receive a seperate letter from BWL - Notice of County Court Claim Issued.


I've been out of the loop from this forum for well over a year now, but presumably I still have a good defence and nothing has changed over the past year or so?


I understand my next action is to acknowledge service of the claim and then prepare a defence?

nosferatu1001

Yes
Acknowledge on line, today
Do not delay this

What is the ISSUE DATE of the claim form?

Mahone1302

Issue date is the 7th Dec.

KeithP

Mahone1302 wrote: »

Issue date is the 7th Dec.

With a Claim Issue Date of 7th December, you have until Thursday 27th December to do the Acknowledgement of Service, but there is nothing to be gained by delaying it. To do the AoS, follow the guidance offered in a Dropbox link from post #2 of the NEWBIES FAQ sticky thread.

Having done the AoS, you then have until 4pm on Wednesday 9th January 2019 to file your Defence.

That's four weeks away. Loads of time to produce a perfect Defence, but don't leave it to the very last minute.


When you are happy with the content, your Defence should be filed via email as suggested here:

Print your Defence.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
   
5. Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
   
6. Do not be surprised to receive a copy of the Claimant's Directions Questionnaire, they are just trying to put you under pressure.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.

Mahone1302

Thanks for your reply and apologies for my late response! I completed the online AOS within the 14 day period. Work and personal life have been hectic over the past couple of weeks due to Christmas, however I'm going to prepare and file my defence over the next few days. I've had another look at the Claim Form and the particulars of claim, in short are that a PCN was issued on 03/11/15 (this would be the window PCN left on the vehicle on the date of the parking,) and that the terms of this PCN allowed for the 'Defendant' to pay the charge within 28 days, which hasn't been done. Total claimed is £100, approx £20 interest and £54 contractual costs.


The "Particulars of Claim" seem somewhat vague to me; they don't actually state what supposed parking/contractual breach was committed. Should they?



I've had a read through my previous correspondence with BWLegal and in at least two letters they have admitted that Excel are not relying on POFA but instead Elliot v Loake, which I assume means:


1) Properly defended, they have little chance of winning this one, and;
2) Elliot v Loake is still a load of nonsense in these circumstances?

Mahone1302

Finally got time to do a bit of research and it appears that I should have completed a SAR upon receipt of the LBC. Now that the claim has already been put in motion and I've received the initial court papers, is it too late to make the SAR or should I do so anyway? I see that the advice is also to inform BWLegal that I've made a SAR and ask them to put the case on the hold, is this also applicable at the stage I'm not at?

KeithP

Mahone1302 wrote: »

Finally got time to do a bit of research and it appears that I should have completed a SAR upon receipt of the LBC. Now that the claim has already been put in motion and I've received the initial court papers, is it too late to make the SAR or should I do so anyway? I see that the advice is also to inform BWLegal that I've made a SAR and ask them to put the case on the hold, is this also applicable at the stage I'm not at?

Yes, send the SAR asap. Hopefully you will have the results before you have to prepare your Witness Statement and evidence.

Why not send the letter to BWL too?
It won't stop them, but it will create work for them.

Mahone1302

Thanks, can I still request that they put the case on hold? Or is this irrelevant now we're at county court stage?

Mahone1302

So here's an initial draft of my defence that I've managed to chop together this morning. I've got a bit more spare time tonight and then Sunday and Monday evening, but I'm conscious that I'm getting close to the deadline here:


[FONT=Times New Roman, serif]IN THE COUNTY COURT

CLAIM No: xxxxxxx

BETWEEN:

Excel Parking Services Ltd (Claimant)

-and-

xxxxxxxxx (Defendant)

________________________________________
DEFENCE
________________________________________

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The facts are that the vehicle, registration XXXXXXX, of which the Defendant is the registered keeper, was parked on the material date in a marked bay.[/FONT]


[FONT=Times New Roman, serif]3. The Particulars of Claim does not state whether they believe the Defendant was the registered keeper and/or the driver of the vehicle. These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

4. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.[/FONT]
[FONT=Times New Roman, serif]
5. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.[/FONT]


[FONT=Times New Roman, serif]6. The Protection of Freedoms Act[/FONT] 2012, Schedule 4 states that A Notice to Keeper compliant with the aforementioned legislation is required to be served upon the registered keeper within the period of 28 days that follows the period of 28 days beginning the day after the notice to driver was given, as required under Schedule 4, Paragraph 8(5) of POFA 2012. The claimant omitted in their Notice to Keeper (dated XXXXXX) to state that they did not know the drivers details and that the keeper (the Defendant) can be held liable, as is required. In the absence of any reliance upon the POFA 2012 Schedule 4, it would be for the Claimant to establish who the driver was.


[FONT=Times New Roman, serif](Is this too wordy and detailed? Should it instead say….. [/FONT][FONT=Times New Roman, serif]6. The Protection of Freedoms Act[/FONT][FONT=Times New Roman, serif] 2012, Schedule 4 [/FONT][FONT=Times New Roman, serif]states that [/FONT][FONT=Times New Roman, serif]A Notice to Keeper compliant with the aforementioned legislation is required to be served upon the registered keeper. [/FONT][FONT=Times New Roman, serif]The [/FONT][FONT=Times New Roman, serif]Claimant did not serve a Notice to Keeper compliant with this legislation. In the absence of any reliance upon the POFA 2012 Schedule 4, it would be for [/FONT][FONT=Times New Roman, serif]the Claimant [/FONT][FONT=Times New Roman, serif]to establish who the driver was.)[/FONT][FONT=Times New Roman, serif]

[/FONT][FONT=Times New Roman, serif]7[/FONT][FONT=Times New Roman, serif]. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £[/FONT][FONT=Times New Roman, serif]54[/FONT][FONT=Times New Roman, serif], for which no calculation or explanation is given, and which appears to be an attempt at double recovery.[/FONT]


[FONT=Times New Roman, serif]7.1 These have been variously described as ‘legal costs' (in the pre-action exchange of letters) and/or a 'debt collection charge'. Suddenly in the Particulars there is also a second add-on for purported 'legal representative costs of £50' on top of the vague £54, artificially hiking the sum to £251.60. This would be more than double recovery, being vague and disingenuous and the Defendant is alarmed by this gross abuse of process.[/FONT]


[FONT=Times New Roman, serif]7.2 Not only are such costs not permitted (CPR 27.14) but the Defendant believes that the Claimant has not incurred legal costs. Given the fact that BW Legal boasted in Bagri v BW Legal Ltd of processing 'millions' of claims with an admin team (and only a handful of solicitors), the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste PPS robo-claims at all, on the balance of probabilities.[/FONT]


[FONT=Times New Roman, serif]7.2.1 According to Ladak v DRC Locums UKEAT/0488/13/LA the claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration cost. [/FONT]


[FONT=Times New Roman, serif]8. County Court transcripts supporting the Defendant's position will be adduced.

9. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

I believe the facts stated in this Defence are true.

Name
Signature
Date[/FONT]


[FONT=Times New Roman, serif]Is it also worth mentioning something about grace periods? Is that relevant here? The PCN was issued 13 minutes after the expiry of the paid parking ticket.[/FONT]


[FONT=Times New Roman, serif]Re point 6, should I be mentioning somewhere that BW Legal have openly stated, in pre action letters, that Excel do not rely on POFA?[/FONT]