Another one about B W Legal

The_Painter

Hi, I hope someone can help me here.
Sorry to start another new thread but couldn’t find anything quite like this one.

I have been served Court papers a couple of weeks ago. I’ve replied saying I’m going to defend it. Problem is I don’t know what my defence is.
I’ve read loads of stuff on here but seem to be getting more confused and my defence has to be in before Friday

Briefly, I received a letter back in 2015, a NTK I think for parking in the Broomfield area of Sheffield. At first I thought it was a scam as I’ve not been to Sheffield recently so I just ignored it.
The letters kept coming so I checked the date of the alleged offence and it turns out I was on holiday abroad at the time and my vehicle should have been at home on my drive. I’ve asked everyone who had access to my house while I was away and no one is owning up to using it while I was away so I couldn’t fill in the NTK even if I wanted to
The company involved is VCS and being dealt with by BW Legal.

I’ve read on here that VCS cannot pursue the registered keeper but the more I read the more I’m not sure.
It’s a works vehicle, the registered keeper being a company, which is basically me. (same address etc) I am the sole user of the vehicle and am the only person on the insurance.

As I don’t know where it was parked I can’t argue about signage. On the NTK it says it was either parked while failing to display a valid ticket or a permit and it either had a ticket put on the vehicle or it was Caught using cameras ( not exact wording) so I can’t check whether they sent stuff on time etc.
I have had no contact with either VCS or BW
So my question is, is being abroad at the time of the alleged offence enough of a defence or do I need more?
I’m confused
Thanks in advance for any help given

Fruitcake

VCS can hold the keeper liable by using the Protection of Freedom Act 2012 if they don't know who was driving.

Your point that you were out of the country should win this but there are many other points that can be used.

I suggest you read the Parking-Prankster's blogspot. He posted recently about one of these cases that was thrown out by the judge before the hearing because it was "incoherent." The Prankster may be interested himself in your case if you contact him.

The court procedure is detailed in a step by step guide from a post by bargepole that you can find near the beginning of the Sticky thread for NEWBIES.

beamerguy

The_Painter wrote: »

Hi, I hope someone can help me here.
Sorry to start another new thread but couldn’t find anything quite like this one.

I have been served Court papers a couple of weeks ago. I’ve replied saying I’m going to defend it. Problem is I don’t know what my defence is.
I’ve read loads of stuff on here but seem to be getting more confused and my defence has to be in before Friday

Briefly, I received a letter back in 2015, a NTK I think for parking in the Broomfield area of Sheffield. At first I thought it was a scam as I’ve not been to Sheffield recently so I just ignored it.
The letters kept coming so I checked the date of the alleged offence and it turns out I was on holiday abroad at the time and my vehicle should have been at home on my drive. I’ve asked everyone who had access to my house while I was away and no one is owning up to using it while I was away so I couldn’t fill in the NTK even if I wanted to
The company involved is VCS and being dealt with by BW Legal.

I’ve read on here that VCS cannot pursue the registered keeper but the more I read the more I’m not sure.
It’s a works vehicle, the registered keeper being a company, which is basically me. (same address etc) I am the sole user of the vehicle and am the only person on the insurance.

As I don’t know where it was parked I can’t argue about signage. On the NTK it says it was either parked while failing to display a valid ticket or a permit and it either had a ticket put on the vehicle or it was Caught using cameras ( not exact wording) so I can’t check whether they sent stuff on time etc.
I have had no contact with either VCS or BW
So my question is, is being abroad at the time of the alleged offence enough of a defence or do I need more?
I’m confused
Thanks in advance for any help given

Can you prove you were on holiday abroad at the time ?

If so, a two stage attack on BWLegal.

"The keeper was on holiday abroad which can be proven and the keeper denies any debt"

they will want to know who the driver was ...

"As stated in my previous letter I was abroad at the time and have no knowledge who the driver could be"

Who then will BWLegal sue ?

A great one for a judge to get his teeth around as if you can provide proof you were abroad, there can no probability factor

The_Painter

Hi, thanks for the quick responses.
I have a record of the hotel I was staying at and a cashpoint withdrawal that I did two days after the alleged offence. I can get a witness statement from the person I was travelling with so that should be ok.

I read the sticky on the Newbies thread about procedure, I know what I have to do next, it's just that I'm not much good with letters and I don't know how to frame my defence other than saying it wasn't me.

I'll try to find The Parking Pranksters blogspot and have a read tonight. I've only got this week to do my defence so time is a bit tight.
Thanks again for your help

The_Deep

It is my understanding that BWL are being investigated by the SRA for all sorts of bad behaviour. If they are asking for more than £50 in legal costs complain to Duncan Allen at the SRA

http://www.sra.org.uk/consumers/problems/report-solicitor.page

There is a draft letter at post 10 by Gan which you may care to crib if the circumstances fit.

http://www.pepipoo.com/forums/lofiversion/index.php/t98605.html

The_Painter

Right, I've done a lot of reading and I've come up with this. Can some of the experts on here have a look please. I have to file tomorrow so any help would be appreciated.
I can't be near a computer tonight so will look at any suggestions in the morning.
Thanks again


Case no xxxxxxx




It is admitted that Defendant is the keeper of the vehicle in question. The registered keeper is a company that I own and I have sole use of the vehicle

However the claimant has no cause of action against the defendant on the following grounds:-


The Protection of Freedom Act 2012 Schedule 4 has not being complied with. The registered keeper has not been proven as the driver, as such the keeper can only be held liable if the claimant has fully complied with the strict requirements.


The Claimant states they may pursue the keeper on the assumption that they were the driver. In this instance no assumptions can be made as the Defendant can prove his whereabouts on the date the alleged contract was formed. I was on holiday in the Canary Islands and have receipts to show this

I also bring to your attention the following:


This is the position on private land according to the applicable law, as confirmed by the experienced PATAS and POPLA Lead Adjudicator and barrister Henry Michael Greenslade who confirmed in 2015:

''Understanding keeper liability
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle. 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. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver...If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

If the claimant is not using POFA then the claimant has no right to pursue the keeper only the driver, which as stated above I can prove I wasn’t

The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have actually been incurred. Even if they have been incurred, the Claimant has described them as "legal expenses". These cannot be recovered in the Small Claims Court regardless of the identity of the driver.

The Claimant solicitor BW Legal have informed me they will rely in court on the case Parking Eye v Beavis. Having now read about this case I can state that it has absolutely no relevance to this dispute at all. The most obvious being Beavis was the driver, I wasn’t.

Although at this time I am unaware where the vehicle was actually parked, if the claimant wishes to continue with this unfounded claim I will require evidence of adequate signage on the day in question. Also as according to letters received this incident happened at 9pm in January I will also require proof of adequate illumination of said signs.

It is with all the above points in mind that I ask the Court to throw out this claim as no contract ever existed between the Defendant and the Claimant

Herzlos

Don't mention who has use of the vehicle, you run the risk of letting them conclude who the driver was.

Instead try:

The registered keeper is a company that I own and cannot have been the driver of the vehicle since it is not a person

Herzlos

I'd also add points about you believe that the claimant has a well known track record of having insufficient signage to form a contract, or any legal rights to the property at all, so you put them to strict proof that the signage and contract are in good order. Obviously, since you don't actually know where this incident is supposed to have occurred, you can't provide any further details.

You should also suggest that the incident claimed didn't actually happen.

Coupon-mad

Firstly read their particulars of claim and check that you have answered every point they've made (denying each point, except for the fact you are the registered keeper of that vehicle, which you admit).

Herzlos wrote: »

You should also suggest that the incident claimed didn't actually happen.

Good point, after all this keeper was abroad and no driver has said they used the car to visit that location on that day, so the evidence is lacking.

@The Painter, I would then number your points, which looks far better in a defence as it's easier to read for the Judge.

This one needs a number and then you could break it down into sub-points (i), (ii), (iii) and (iv):


The Claimant solicitor BW Legal have informed me they will rely in court on the case Parking Eye v Beavis. Having now read about this case - despite it being about a 'parking charge' - I can state that it has absolutely no relevance to this dispute at all.

(i) The most obvious being Beavis was the driver. I was not driving; was not in the Country. I cannot be held liable.

(ii) Also, the Supreme Court decision turned on the 'complex' commercial justification for that charge which arose after a free licence to park for two hours. Not so at this location it seems, although the facts are vague, it appears the Claimant is suggesting a lack of displayed permit or P&D ticket. These are ordinary financial transactions (or trespass, depending upon the situation) not the complex set of circumstances cited in the Beavis case which turned on facts relating to that location and charge alone.

(iii) The registered keeper is a company that I own and cannot have been the driver of the vehicle since it is not a person.

(iv) Further, the signage was deemed adequate (with unusually prominent large lettering for the parking charge) in that case, unlike overly-wordy VCS signage where any charge is routinely (and I believe deliberately) hidden in small print unsuited to an outdoor sign.




Also this could be number 1 with the rest as sub-points:

1. The Defendant was the Registered Keeper but was not the driver. The Protection of Freedom Act 2012 Schedule 4 has not been complied with, so there is no possibility of 'keeper liability' in law. A keeper can only be held liable if the claimant has fully complied with the strict requirements of Schedule 4 which VCS did not.

(i) The Claimant (incorrectly) states they may pursue the keeper 'on the assumption' that they were the driver. In this instance no assumptions can be made as the Defendant can prove his whereabouts on the date the alleged contract was formed. I was on holiday in the Canary Islands and have receipts to show this.

[STRIKE]I also bring to your attention the following:[/STRIKE]

(ii) This is the position on private land according to the applicable law, as confirmed by the experienced PATAS and POPLA Lead Adjudicator and barrister Henry Michael Greenslade who confirmed in 2015:

''Understanding keeper liability
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle. 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.

Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver...If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

[STRIKE]If the claimant is not using POFA then the claimant has no right to pursue the keeper only the driver, which as stated above I can prove I wasn’t[/STRIKE].

Add in Herzlos' suggestion that there is no clear evidence that this alleged contravention ever occurred, nor gave rise to any charge under any contract. [STRIKE]and am the only person on the insurance.[/STRIKE]

Finally you need a statement of truth at the end, maybe finish it like this:

It is with all the above points in mind that I ask the Court to [STRIKE]throw[/STRIKE] strike out this claim as having no prospects of success, since no contract ever existed between the Defendant and the Claimant. The facts and information in this defence are true and the Defendant is not liable for the sum claimed, nor any sum at all.

The_Painter

Herzlos wrote: »

Don't mention who has use of the vehicle, you run the risk of letting them conclude who the driver was.

Instead try:

[/COLOR]

Thanks for the advice Herzlos. I have made adjustments regarding your second post but I don't quite see how by stating I have sole use of the vehicle (or so I thought) can do me any damage as at the time of the incident I was 3000 miles away. If anything I thought that would strengthen my case here as they are trying to claim the keeper was the driver and I can prove I wasn't

Coupon-mad

I am a bit concerned that maybe the date of the parking event was earlier (before you went away) and BW Legal have stated the date of the Notice in the particulars? Does it actually state 'date of parking event'?

Someone drove that vehicle there...highly unlikely not, unless they got the VRN wrong.