Excel PCN from 2013, new letter from BW Legal- help!

Umkomaas

This complaint is now sent to the SRA as a result of receiving online advice as regards the fact that these statements breach the SRA Code and such conduct should not be allowed to continue.

Leave 'online' out of it. They don't need to know from where you received the advice. It could have been from a QC. Let them guess.

therefore again clearly taking unfair advantage [STRIKE]against[/STRIKE] of an unrepresented addressee.

The_Deep

I'll get my letter off too, every little helps.

LoveNorfolk

Called the CSA as they also look into the breaches. Guy isn't back until Tuesday, so he's down to give me a call. I'll see where they stand before replying, but will start putting together the letters ready. I'm going to try and visit the car park today to have a look for myself what it's like, the signs, etc and take photos.

The_Deep

... I'm not happy with Excel or BW and have no intentions of paying them anything.


It will probably end up with THEM paying YOU. Just keep reminding them that if they behave unreasonably you will make them pay.
.

LoveNorfolk

Lets hope so! I'm editing Pappa Golf's letter and also putting together another to reply to BW regardless of outcome from CSA, although I will be waiting to send it first to detemine exactly what to say.

LoveNorfolk

OK, this is what I have so far on a first draft of Pappa Golf's letter, Iwill take another look at it, but am just trying to get my info in first to work it all out. I would appreciate anything that might sound better in the Beavis statement, regarding the letter I posted where they mention it on page 4 of this thread. They are basically saying the £100 is justified and using Beavis to try and prove this. Any thoughts welcome, thanks!

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I am complaining about BW Legal’s assertions in their letter dated XXXXXX (a copy of which is included) with reference XXXXXXXX which I received on the XXXXXXX and also their letter dated XXXXXX with reference XXXXXXX, which I received on the XXXXX (a copy of which is also enclosed). These letters include the following statements by BW Legal which I found alarming and I am advised that these are misleading and untrue:

(1) “Should we successfully obtain a County Court Judgement (CCJ), this may have a detrimental effect on your future creditworthiness and employability [...]”[/FONT]


[FONT=Arial, sans-serif](2) They state that their client also ''reserves the right to commence enforcement proceedings...for recovery of the balance due'' as if a CCJ is a fait accompli.

(3) “Please pay the Balance within 16 days from the date of this letter to prevent legal action from being taken. For the avoidance of doubt the Balance relates to the £100.00 parking charge and £54.00 for our client’s initial legal fees, which were detailed in the car park terms and conditions.”

(4) They also make reference to the case of ParkingEye Limited v Beavis [2015] UKSC 67 where they say, ''the Supreme Court held that PCN charges serve a legitimate commercial interest and are deemed lawful''. Making the assumption that this along with relevant codes of practice give guidance that £100.00 is a reasonable sum to charge.

I am advised that those assertions and statements are contrary to the SRA’s Code of Conduct 2011, Chapter 11: Relations with third parties, and particularly are covered under Indicative Behaviours IB(11.7) and IB(11.8).

These statements take unfair advantage of the addressee’s lack of legal knowledge where they have not instructed a lawyer, by stating untruths and making unsubstantiated and unreasonable claims. I am an unrepresented consumer and was distressed to read the letters from BW Legal and was certainly misled by them. I have previously complained to the CSA for breach of their Code of Practice, which BW Legal deny as seen in the letter dated XXXXX which I think is ridiculous. Having spoken to the CSA after receiving this letter their stance on the matter was that BW Legal INSERT RESULT HERE!! This complaint is now sent to the SRA as a result of receiving advice as regards to the fact that these statements breach the SRA Code and such conduct should not be allowed to continue.

Regarding statement (1) and (2) I am advised that BW Legal will know that, even if they were to bring County Court proceedings for their client against the addressee, and even if those were successful, they would not automatically end in a CCJ against the addressee as the letter suggests; of course a CCJ would only be obtained in such a situation if the addressee, after being taken to court successfully and after being ordered by the County Court to pay BW Legal’s client, would then still not pay. It is unfounded and unsubstantiated for BW Legal to assert that this is a likely scenario and describe 'successfully obtaining a CCJ Award' as if it is almost inevitable. This assertion is made to coerce the addressee of BW Legal’s letter into paying their demand. This is taking unfair advantage against an unrepresented addressee and I was certainly alarmed and distressed to read such statements.

Statement (3) is a clear demand by BW Legal on behalf of their client for a sum of £54.00 that is not legally recoverable. BW Legal will know that it has been held countless times that when instructed to collect a simple debt, demanding from the debtor the debt recovery costs is taking unfair advantage since it cannot be said at that stage that such a cost is legally recoverable; particularly since those costs have not been substantiated at all. This is therefore again clearly taking unfair advantage of an unrepresented addressee.

Statement (4) is absolutely irresponsible. To inform a recipient of a letter about a parking charge which does not in any way match the facts of the Beavis case, and to use this in an attempt to frighten the addressee into thinking that from this one case, all others cannot b beggars belief and again, I was completely misled by this assertion. Consumers are being coerced into paying charges which bear no relation to the circumstances of the fairly unique 'Beavis case', which I am advised the Supreme Court were at pains to 'Tweet' straight after their decision, turned on the specific legitimate interest of the landowner in a particular retail park, based on the clear terms on the signs in that car park alone. My case is nothing like that case. To mention just one clear matter of possible defence open to me (among others), the signs were wholly different and illegible with the terms of the car park not only displayed upon signs that started approximately eight feet up off the ground, but from what could be read, stating contraventions that would be considered a breach of their terms and conditions, including parking in a restricted area, but not giving details of any areas in which this applied. But if I was to believe BW Legal's letter I would have thought - as I initially did, in a panic - that due to the Beavis case, I have no defence and must just pay their client.

It is understood that BW Legal is sending out identical Letters of Claim/Final Notices on an industrial scale (for the same client and for other private parking companies) to addressees all of whom will be legally unrepresented. I would therefore respectfully request the SRA to take swift enforcement action to ensure that BW Legal stops issuing assertions and statements which are clearly used to coerce consumer recipients into paying unjustified and unenforceable demands. [/FONT]

LoveNorfolk

beamerguy wrote: »

Why send a copy to BWLegal, let them wake up and smell the coffee

I was just going to at least send them a letter (I'm doing it paperbased to keep a trail) to tell them I do not accept their findings from the complaint and to reply to the extremely poor 'evidence' by the way of photographs of a car parked with no visible restrictions, and basically tell them where to shove it. If "their client" cannot provide evidence of where these alleged "restricted areas" are, as they don't on their signage, or by floor markings, or by other signs/notices, then they cannot reasonably expect users of their car park to become psychic in order to know where these are!

Coupon-mad

Yes you should reply to all BW legal letters.

State that you require them and their clients to cease processing your data, as you are not liable because their client does not use POFA compliant wording, so as keeper, you cannot be pursued for parking charges by this parking operator, under any applicable law.

LoveNorfolk

Coupon-mad wrote: »

Yes you should reply to all BW legal letters and remind them that a CSA complaint is pending and that your position is unchanged. State that you require them and their clients to cease processing your data, as you are not liable because their client does not use POFA compliant wording, so as keeper, you cannot be pursued for parking charges by this parking operator, under any applicable law.

If you have not tried this tactic already, finish by telling them to treat this as a Section 10 Notice under the DPA and that you expect a response within 21 days; failure to comply with which will result in a complaint to the ICO.

Well I am not replying to them until I have heard from the CSA which will be Tuesday. They have said time frame to reply is 14 days, so I don't expect to hear anything yet. I will yet again remind them as I have drafted in another letter, that they do not us the correct wording. I will add the DPA part on too, I'm guessing this still applies even if the CSA don't uphold my complaint, but whilst I complain to the SRA? Thanks. I'll post a copy of the letter thinking of sending for your perusal

LoveNorfolk

This is the letter to BW so far, I will add DPA later. This may also change depending on the CSA outcome.




[FONT=Arial, sans-serif]Dear Sir or Madam,[/FONT]


[FONT=Arial, sans-serif]I write in reply to your last letter dated XXXXXX. I regret to inform you that I do not accept your findings in result from the complaint made to the Credit Service Association (CSA). I am not at all surprised that you as a company, that represents those such as your client, feel that the way in which you conduct yourself is by all means adequate. I must inform you that your last letter replying to my CSA complaint did not reach me within the time frame as set out in your own complaints procedure which you kindly enclosed in your letter dated XXXXXX which was the receipt of the complaint. You stated within that, “we will investigate your complaint and endeavour to send a formal response to you within 4 weeks of receipt of you complaint. If we are unable to provide you with a formal response within this time frame, we will send you an update on the progress of your complaint at this time”. You further state that “we will endeavour to send you a final response to you within 8 weeks of receipt of your complaint [...]”. A response to my complaint from yourselves was not received until 5 weeks after the receipt of the complaint, 1 week over your time scale. Also, you mention that “for ease of reference, attached are ways in which you are able to discharge your indebtedness to our client”, this is not included within your letter.[/FONT]


[FONT=Arial, sans-serif]I thank you for the photographic evidence as provided by your client in your last letter, which allow me to perfectly point out my grievance to the alleged contravention and balance. They are able to show that in no way can any obstruction have occurred where the vehicle was parked. I bring your attention to the first photograph taken at the front, please note that the car is bordered on one side by another car (as can be seen from the shadow to the left) between which is a white bay line which due to the poor quality of the photograph is not easily visible until photographs X and X (in the order provided to me), even then due to the markings being in a poor state it is not easily seen. It is bordered on the other side by a kerb and concrete post and wire mesh fence, clearly shown in the photograph. As you will also see behind the vehicle is the continuation of the concrete post and wire mesh fence from the side where the kerb is situated. All these prevent any access to any other area (not that such areas exist) regardless of any vehicle being parked there and as such cannot be deemed an obstruction as there is nothing to obstruct.

Regarding the area in which the vehicle parked, allegedly 'restricted', I bring to your attention that in all the photographs provided there is no evidence of any markings, other than the extremely faded white bay line, that would bring to the attention of users of your clients car park, that parking is not permitted there or in any other area they deem 'restricted', as there is an absence of any markings throughout the car park other than those denoting a parking space. Also, within these photographs, you will notice the sign which is approximately 8 feet up from the ground and near on illegible from that height, but that I know does not state what a restricted area is within your clients car park (nor do those adjacent to ticket machines). There are no other signs or notices to indicate that parking is restricted or not permitted within that area to users of your clients car park. When entering a car park which is on private land, users are deemed to have agreed to abide by any terms and conditions, if clearly displayed and stated. If such an area has no parking permitted, it is up to your client to bring it to the attention of users of their car park. Unless your client believes that users of their car park are psychic, it is not therefore reasonable to expect users to be able to make clear from your clients terms and conditions within the car park, where they must not park in order to avoid a PCN. This shows that the terms and conditions within your clients car park are not clear enough to provide all the necessary information. I have recently visited the car park in question and there are notices on the entry to the car park where there are no double yellow lines and where parking may be seen as acceptable, clearly stating “no parking”, but no further notices within the car park, including the area shown on the photographs provided. This seems to show scant regard for the users of your clients car park and appears to be a distinct attempt to mislead users into falling foul to restrictions that are not clearly displayed and allow your client to profit from thus.[/FONT]
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I need not remind you again, surely, that your client does not use POFA (2012) compliant wording and therefore as keeper, I cannot be pursued for parking charges by a parking company such as your client under any applicable law. As such, the alleged balance is still disputed and payment will not be forthcoming. Please inform your client to desist in this farcical act. [/FONT]