BW Legal Letter of Claim

geekfusion

Hi all,

This relates to a PCN recieved at the Peel Centre, Stockport from Excel Parking. I have read the newbies thread but would like some advice before responding to this letter. Also I have assumed that a 'Letter of Claim' is the same as a 'Letter Before Claim'? (Having read The Practice Direction, Annex A Para 2 I am not sure it contains the required information)

A brief history of this PCN...

I was not the driver at the time but have not yet stated this or given any information about who the driver was.

I replied to the initial notice with a suggested response I found on a forum, stating that the driver had not been identified and asking for information about the landowner and details on how they calculate their loss, along with a couple of other questions. (Unfortunately I do not have a copy of my response as it was sent from an email account I no longer have access to. I asked excel parking for a copy but they did not provide one.)

This was taken as an appeal and rejected with the offer to appeal to the IAS. I decided not to do this but, taking more advice from these forums, sent an email offering to use a different ADR entity, such as the Consumer Ombudsman, because the IAS does not meet the statutory requirements for such an organisation and is therefore not fit for purpose.

This was also rejected and after a couple of ignored letters here we are.

If anyone has any advice on how to proceed it would be very welcome. I would rather not go to court if at all possible.

Thanks in advance

Redx

its likely to go to court regardless of what you want , unless a full payment is made (I am not saying you should pay , just telling you how it is at the moment)

assuming you do not wish to pay , you should always reply to BW LEGAL using the replies others have used in the dozens of similar threads on here, replies formulated by GAN over on pepipoo forums

use the forum search box to find them , on here and on pepipoo , then use the ones that rebut everything they say

EXCEL have 6 years to try an MCOL, probably via BW LEGAL, there have been a lot already with more in the pipeline , so put PEEL CENTRE into the search box to find out more

and read the following

THE NEWBIES STICKY THREAD AND BARGEPOLE POSTS

PARKING PRANKSTERS COURT GUIDE

parking pranksters blogs , especially the PEEL ones

Coupon-mad

geekfusion wrote: »

Hi all,

This relates to a PCN recieved at the Peel Centre, Stockport from Excel Parking. I have read the newbies thread but would like some advice before responding to this letter. Also I have assumed that a 'Letter of Claim' is the same as a 'Letter Before Claim'? (Having read The Practice Direction, Annex A Para 2 I am not sure it contains the required information)

A brief history of this PCN...

I was not the driver at the time but have not yet stated this or given any information about who the driver was.

I replied to the initial notice with a suggested response I found on a forum, stating that the driver had not been identified and asking for information about the landowner and details on how they calculate their loss, along with a couple of other questions. (Unfortunately I do not have a copy of my response as it was sent from an email account I no longer have access to. I asked excel parking for a copy but they did not provide one.)

This was taken as an appeal and rejected with the offer to appeal to the IAS. I decided not to do this but, taking more advice from these forums, sent an email offering to use a different ADR entity, such as the Consumer Ombudsman, because the IAS does not meet the statutory requirements for such an organisation and is therefore not fit for purpose.

This was also rejected and after a couple of ignored letters here we are.

If anyone has any advice on how to proceed it would be very welcome. I would rather not go to court if at all possible.

Thanks in advance

Read Lamilad's thread, he beat Excel this month. A keeper can't be held liable by Excel, as they do not follow the POFA.

To find literally DOZENS of threads exactly like yours (most of which never go near a court, even after that silly letter) simply search the forum for 'BW Legal letter'. Tons and tons of examples about how to string them along and report BW Legal for pursuing a keeper despite not relying on the POFA. They can't do that.

We can't keep repeating it all in detail again and again on every BW Legal thread, so get searching and reading first.

geekfusion

Thanks for the advice. I have drafted a response - any comments would be very much appreciated.

[FONT=&quot]Dear Sir/Madam,[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Your Ref:[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]I acknowledge your letter of 23 November 2016 and am treating it as a letter before action.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]I deny responsibility for the charge as I was not the driver when the alleged contravention took place. I will therefore not be paying the balance due and will robustly defend any legal action taken against me.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]As your client has failed to identify the driver and has also failed to comply with the PoFA 2012. Their assumption that I, as the registered keeper, was also the driver has no legal standing. I refer you to the 2015 POPLA report in which Harry Greenslade states ‘there is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver’. I am under no legal obligation to name the driver and your client cannot legally hold me responsible for this charge as the registered keeper. I would also like to point out that Elliot vs Loake is not applicable as there is no evidence of the identity of the driver.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]I would also like to point out that your ‘initial legal costs’ are excessive, not a genuine pre-estimate of loss and are considered a penalty. I refer you to ParkingEye vs Somerfield. [/FONT][FONT=&quot]As regards your attempt to recover legal costs at this point I refer you to CPR 27.14. I will also be reporting you to the SRA.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Further to this the signage at the place of the alleged contravention is still woefully inadequate and any contract with the driver is denied. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this material case.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]
[/FONT]
[FONT=&quot][/FONT][FONT=&quot]As your client has no legal reason to pursue the registered keeper in this case I now consider this matter closed. I expect confirmation of this in writing.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Yours Sincerely[/FONT]

Coupon-mad

Don't call it 'the balance due'. I said the same thing just the other day to a poster. Don't legitimise the myth of a debt due.

I would also state the stuff about the letter being a Section 10 Notice under the DPA and giving them 21 days to respond. You will find several examples of that by searching this forum board for: '21 days Section 10'.

geekfusion

Thanks for the response.

I have changed 'the balance due' to 'the unlawful invoice'?
I have also added this sentence to the bottom...

[FONT=&quot]'You should consider this a Section 10 Notice which gives you 21 days to respond or I will make a complaint to the ICO as well.'


Do these sound ok?[/FONT]

Coupon-mad

You need to tell them not to process your data and that you object because they have no reasonable cause to use it now they know you were not driving (that goes before you mention to treat it as a S10 notice).

geekfusion

Thanks again for all the advice. Here is the letter so far - does it look ok to you?

[FONT=&quot]Dear Sir/Madam,[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Your Ref:[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]I acknowledge your letter of 23 November 2016 and am treating it as a letter before action.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]I deny responsibility for the charge as I was not the driver when the alleged contravention took place. I will therefore not be paying the unlawful invoice and will robustly defend any legal action taken against me.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Your client has failed to identify the driver and has also failed to comply with the PoFA 2012. Their assumption that I, as the registered keeper, was also the driver has no legal standing. I refer you to the 2015 POPLA report in which barrister Harry Greenslade states ‘there is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver’. I am under no legal obligation to name the driver and your client cannot legally hold me responsible for this charge as the registered keeper. I would also like to point out that Elliot vs Loake is not applicable as there is no evidence of the identity of the driver.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]I would also like to point out that your ‘initial legal costs’ are excessive and are considered a penalty. I refer you to ParkingEye vs Somerfield. As regards your attempt to recover legal costs at this point you should note that Civil Procedure Rules state that legal fees are not recoverable.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Further to the above stating that ParkingEye vs Beavis eliminates my main defence is misleading. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this material case. The amount is a penalty and the penalty rule is still engaged.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Further to this, the signage at the place of the alleged contravention is still woefully inadequate and any contract with the driver is denied.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]As your client has no legal reason to pursue the registered keeper in this case I now consider this matter closed. I expect confirmation of this in writing. I request that you remove my data from yours, and your clients, systems immediately[/FONT] [FONT=&quot]as you have no reasonable cause to continue processing it now you are aware that I was not the driver, on the date of the alleged contravention. You should consider this a Section 10 Notice which gives you 21 days to respond or I will make a complaint to the ICO.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Yours Sincerely[/FONT]

Coupon-mad

Did they actually say that the Beavis case 'eliminates' any defence you may have? I thought they'd stopped saying that when the SRA started look at complaints. If they have not used that word, don't use that paragraph. Keep it on point.

I would add the word 'wrong' here:

Their wrong assumption that I, as the registered keeper, was also the driver

And you could end it:

You should consider this a Section 10 Notice which gives you 21 days to respond or I will make a complaint to the ICO.

Further, if you and/or your client continue to process my data I will seek damages for distress for this continued data protection contravention. Vidal-Hall v Google [2014] EWHC 13 (QB) establishes that misuse of personal data is a tort and that damages that damages for a breach of the DPA could include non-pecuniary damage. The case of Halliday v Creation Consumer Finance Ltd [2013] All ER (D) 199 provides authority that a reasonable sum for compensation would be £750 so you may consider yourselves and your clients on notice of my intention and the distressing effects on me, of your data mishandling.

geekfusion

Thanks for all the help - I have added those bits in.

The letter does use the word 'eliminates' so should I leave that paragraph in?

It is followed by some fairly threatening and misleading stuff about CCJs - is it worth mentioning that?

Coupon-mad

Yes and yes. Wow, I thought they'd stopped saying that Beavis eliminates 'any' defence. That is one for an SRA complaint.