Another BW Legal thread, please advise

Sirgaz

Like a lot of people on here, I am currently in "discussion" with BW Legal of an alleged offence that took place nearly six years ago at the beginning of April 2011 and it's quite different to a lot of cases on here. I'm not going to be able to go into too many specifics in case someone from Excel or BW Legal are on these forums but I'll say what I can.


Back in April/May of 2011 (I can't remember the exact date), I received a Notice to Keeper for parking in a disabled bay without showing a blue badge as I was the registered keeper. I researched fully and like most people, ignored it as the registered keeper cannot be held liable, only the driver. After a couple of months and various letters it all went away.


I did park in the car park in question on occasion around that time but I did not see any PCN on the car on any day that I parked there and no one else who used the car saw one either. Whether some practical joker thought it funny to remove it I do not know but the first notice I got was the NtK.


In September 2016, I received a letter from BW Legal, who seem to have been given a load of back cases by Excel judging by the forums, and this was pretty much the standard letter as seen on here. It requested payment of the £100 I owed plus £54 legal fees. It also had the usual text about CCJs and the like which many have pointed out is in breach of the Solicitors Code.


I wrote back on October 6th confirming I was the registered keeper of the car at the time but as this was prior to PoFA then I could not be held liable and that they take the matter up with the driver. I also requested that they remove my details from their system as this was now in breach of the Data Protection Act as I had pointed out the case should not involve me.


On Friday 4th Nov I received their response which was that their client does not use PoFA and that they were now consulting with their client about court proceedings. They also specifically said that they would not remove my details from their system.


I'm drafting a response which I will put on here later.


I am fully aware of the requirement for a blue badge on private land, it has no legal standing as this is a council run process that is for public roads only. I am also aware that requiring a blue badge to park in a disabled bay on private land is also illegal as it contravenes the Equality Act 2010. I myself am disabled under the Equality Act (diabetes with aches in my feet and an old ruptured disc in my back that flairs up now and again) but I do not feel disabled enough to warrant applying for a blue badge as my mobility issues are minor and infrequent. And I am a little too proud to admit help.


I would like to point out that I do not condone able bodied people parking in disabled bays.

I do not have any of the original documentation that were sent as this is well over 5 years ago, there was no correspondence for a long time and I moved house requiring a lot of trips to the dump. So it all got binned.


What I'm really after is how to construct the responses. As registered keeper I don't think I have a need to mention about the blue badge or the contravention of the Equality Act as that is not the point, the point is they are chasing the registered keeper and not the driver. So do I focus on that?


What really bugs me is that at no point has anyone just asked me who the driver was. It's all threats.
I will be asking for photo or video evidence of the driver so I can help them identify who it was, so that I appear helpful should this go to court. I want this partly to see if they have anything like that in the first place but also to see if I can remember who was driving at the time.
Several people had access to drive the car and at the time my wife was heavily pregnant and was probably starting to develop pre-enclamsia so we were at the hospital almost every week for tests. I couldn't say for definite who was driving just from my memory.

Carthesis

Firstly, edit your post with a few extra carriage returns to break up the wall of text.

Secondly, all you have to do is play letter-tennis with them to drag this out for 6 months until it becomes statute barred.

Use any tactic and technique you can think of to delay the process.

Continue pointing out that it is pre-POFA, hence RK Liability Transfer is not an option to them. Continue to ask that they provide evidence of the driver.

Basically do anything that they have to reply to to drag this out for as long as you can.

Sirgaz

Edited with carriage returns

Coupon-mad

Carthesis wrote: »

all you have to do is play letter-tennis with them to drag this out for 6 months until it becomes statute barred.

Use any tactic and technique you can think of to delay the process.

Continue pointing out that it is pre-POFA, hence RK Liability Transfer is not an option to them. Continue to ask that they provide evidence of the driver.

Basically do anything that they have to reply to to drag this out for as long as you can.

Seconded. And you should report them to the SRA and CSA, to tie them up over Christmas and into the New Year, like you see on LoveNorfolk's BW Legal thread.

The_Slithy_Tove

Carthesis wrote: »

Continue pointing out that it is pre-POFA, hence RK Liability Transfer is not an option to them. Continue to ask that they provide evidence of the driver.

And don't make it easy for them to do so by revealing who the driver was in the initial post! Edit it!

Sirgaz

Thanks for the posts
I see what you are saying about trying to get beyond the 6 years but seeing as the last letter I received, which was only their second to me, said that they were consulting with their client about court proceedings then I can't see it going more than a month or two, not six. I'll complain to the SRA and CSA as well as it is extremely threatening amongst all the other issues with their letters
And I didn't say who the driver was, I genuinely can't remember for the specific day. I said I had used that particular car park around that time and at no point did I see a PCN on the car, I didn't say was driving on the day. It's a popular car park as it's cheap compared to other around it. I'll edit the post to make that clearer though.

Sirgaz

Here's the letter I'm going to send, I'm trying to sound serious but at the same time not blocking them out right so that if it went to court I can been to be helpful.. Let me know your thoughts please.


I again deny any debt to Excel Parking Services or BW Legal.

I note from you most recent letter that your client does not rely on the Protection of Freedoms Act 2012. As the alleged offence took place before this Act was passed then they couldn't if they wanted to, so stating that is irrelevant.

May I point out to your client that PATAS and POPLA Lead Adjudicator and barrister Henry Greenslade recently clarified that there is no reasonable presumption in law with regards to keeper liability so please do not assume that as the Registered Keeper that I am liable.

I also note that you are refusing to remove my details from your records, you are therefore in breech of the Data Protection Act and any further communication will be dealt with as such. I ask you politely one more time, as registered keeper of the vehicle in question on the date of the alleged incident, I cannot be held accountable and you are not legally allowed to pursue me and therefore there is no case to answer. Please remove my details from all of yours and your clients systems immediately. Fines for breaching the Data Protection Act may go up to £500,000 so please do not treat this lightly.

And please do not state that the case of ParkingEye Limited v Beavis [2015] 67 eliminates my main defense should this matter go to court. The amount is a penalty, and the penalty rule is still engaged, so can be clearly distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes for the following reasons:-
a) The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question without displaying a Blue Badge
b) The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable

Additionally, Elliott v Loake does not apply as this was a criminal case and relied on forensic evidence. This was recently dismissed as "not persuasive and could be distinguished" in the case of Excel v Mr C (C8DP37F1 Stockport 31/10/2016).

I also note that in your original letter you stated a charge for your client’s initial legal fees of £54. The Civil Procedure Rules state that legal costs are not recoverable.

I am finding this process quite stressful in that I am having to point out legal arguments to a firm of solicitors who should in all fairness be aware of them from the outset. I can only conclude that you are trying to threaten me and bully me into paying this illegal "fine". If I am wrong on this assumption then please enlighten me and I apologise if that is not your intent.

I will be sending a formal complaint to the SRA and CSA about your threatening letters as well as the fact that you are declaring that if I were to lose in court then I would have a CCJ against my name which is incorrect. If I were to lose then I would have 14 days to pay and if done so then there would be no CCJ.

Having detailed all of the above, I am not someone who likes to hide behind the fact that proper processes are not being followed and I would like to help. If you can provide me with photographic or video (e.g. CCTV) evidence of the driver of the car on the date the alleged incident took place then I will be happy to identify them for you. Several people have driven that car in the past I cannot in all honesty remember who drove it on a particular day over 5 years ago without help. But if you can provide any evidence then I will be more than willing to help identify the driver for you.

The_Deep

The £54 "legal fees" are in fact illegal. Complain to the SRA that they are trying to claim monies to which they have no entitlement, fraud.

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

They are being investigated for this and other irregularities, perhaps your will be the final straw.

Sirgaz

Just for reference, the letter I received recently is as follows:


We acknowledge receipt of your letter dated xxxx

We confirm that our client does not intend to rely upon The Protection of Freedom Act 2012. We therefore do not accept your assertion that you are not liable for the PCN.

Accordingly we will not be removing your details from our database and we will now seek our client's instructions to issue Court proceedings.

We trust this clarifies our client's position


And that's it.

Coupon-mad

Their reply is unreasonable - definitely time for a ICO complaint.

I will be sending a formal complaint to the SRA and CSA about your threatening letters as well as the fact that you are declaring that if I were to lose in court then I would have a CCJ against my name which is incorrect. If I were to lose then I would have [STRIKE]14[/STRIKE] 30 days to pay and if done so then there would be no CCJ.


Change as above - also I wouldn't have this because there is no way they will be fined anything like that sum and you don't want to give them an inch:

[STRIKE]Fines for breaching the Data Protection Act may go up to £500,000 so please do not treat this lightly.[/STRIKE]

The_Deep

In that case you are on a winner. Be sure to acquaint yourself wiih CPR 27.14(2)(g)), unreasonable behaviour.