BW Legal Letter of Claim

Coupon-mad

If you want to really throw more at it, some of this was submitted in a recent defence I saw - could be written into a letter, not just for defences:


1. I choose not to name the driver, preferring to defend this matter as the keeper but as already stated (and will be evidenced at any hearing) I was not driving. In 2011/2012, Parliament and stakeholders including the DVLA, refused to bow to the British Parking Association’s lobbying for the POFA Bill (as it then was) to create an obligation upon a keeper to divulge driver’s details. No adverse inference can be inferred and there is no lawful presumption that a keeper was the driver.

2. In evidence to support my defence, I will show transcripts of County Court cases won by defendants in 2016 where Judges up and down the Country have dismissed Excel claims outright, either on unclear signage or on the single basis that keepers cannot be held liable outwith the POFA.

3. Further, the reason why Excel were banned from obtaining DVLA data immediately before the POFA was enacted, was highly relevant to their stance in this claim and that reason was exposed in an FOI request here:

https://www.whatdotheyknow.com/request/139931/response/342099/attach/html/2/

‘‘DVLA received a number of complaints where members of the British Parking Association’s (BPA) Approved Operator Scheme (AOS) were allegedly stating or implying on their documentation/signage that the vehicle owner/keeper is liable for the payment of charges imposed in respect of parking contraventions, or that the vehicle owner/keeper had a legal responsibility to provide information as to who the driver was. This behaviour is a significant breach of the AOS Code of Practice.

A complaint was made to DVLA in September 2012 about signage used by Excel… which apparently claimed that the vehicle keeper was liable in terms of charges imposed for parking contraventions. Following an investigation, and in line with guidance and communications issued by BPA, the Agency took the decision to suspend Excel’s access to keeper data for three months.’’

4. Excel later took a decision, well after the POFA was enacted, not to use the rights conferred under it (the DVLA agreeing that Parking Operators could opt out but would be obtaining data under the old pre-POFA rules, to enquire who was driving and no more).

By now suing me as keeper and suggesting I had ‘failed’ in some sort of obligation to name the driver, it follows that Excel are exposing themselves to a claim under the DPA for unlawful data misuse with no ‘reasonable cause’. And it seems, they potentially risk another DVLA ban because they are making the same misleading statements that the DVLA banned Excel for, in 2012.

5. Excel is known for incoherent and sparse signage at the Peel Centre. A well-known and respected Blogger whose informational postings have been used by Defendants in defences, recently stated that he considers that 'the Peel Centre is the worst run car park in the entire country'. Instead of the signage improving after criticism from the judiciary in 2011, it is now worse, the machines hidden from clear view and the numbers of people receiving PCNs and being sued has escalated. In a well-run car park, one would expect the numbers of PCNs to significantly reduce as the regime does its purported job, as expected by landowners.

In Excel Parking Services Ltd v M R Cutts at Stockport County Court in 2011, claim 1SE02795, DDJ Lateef dismissed the claim by Excel. Moreover, she personally visited the site to view the signs in situ and found that the parking charge terms were hidden in small print, so that Excel had not taken reasonable steps to draw them to Mr Cutts’ attention.

geekfusion

Thanks for the advice again Coupon-mad. I have added a couple of extra parts in - any more thoughts would be much appreciated.

Dear Sir/Madam

I am writing in response to your letter of the 30th December 2016.

Your clients presumption that I, as the registered keeper, was also the driver, continues to be incorrect and without legal standing. I am also under no obligation, legal or otherwise, to name the driver and, as your client does not rely on the POFA 2012, they cannot establish keeper liability. In 2011/2012, Parliament and stakeholders including the DVLA, refused to bow to the British Parking Association’s lobbying for the POFA Bill (as it then was) to create an obligation upon a keeper to divulge driver’s details. No adverse inference can be inferred and there is no lawful presumption that a keeper was the driver. I also refer you back to barrister Henry Greenslade in the 2015 POPLA report.
As I have previously stated my assertion that I was not the driver will be made under a Statement of Truth, and I will provide a letter from my employer at the time confirming that I was at work near Aberystwyth, West Wales at the time of the alleged contravention.
On this basis your client has no legal reason to pursue me and further attempts to scare me into paying the alleged ‘balance due’ will be considered harassment.

Notwithstanding the above I have reasonable belief that your alleged ‘costs’ have not in fact been incurred. Unless proof of contract and payment of the costs is provided, the charge will be considered a Conditional Fee, and in accordance with CPR 48.2 and the Conditional Fee Agreement Order 2013 no liability is accepted.
In addition there remains the fact that I was not the driver. POFA Para(5) states that the maximum sum the parking company can recover is the amount specified in the Notice to Keeper. That is the amount unpaid no later than the day before the notice was sent (POFA 9(2)(d)(ii)).

Further to the above, I again request that you cease mishandling my data. Your client took a decision well after the POFA 2012 was enacted not to use the rights conferred under it. The DVLA agreed that parking operators could opt out, but would be obtaining data under the old pre-POFA rules, to enquire who was driving and no more. By pursuing me as the registered keeper your client is exposing themselves to a claim under the DPA for unlawful data misuse with ‘no reasonable cause’.
I will be making a complaint to the ICO concerning the distressing effects that your continued mishandling of my data is having on me. Please confirm in writing that you have deleted my details from your records.

Yours faithfully

The_Deep

Our Client is entitled to reasonably presume you were the driver at the time of the PCN.

They are in la la land

http://parking-prankster.blogspot.co.uk/2017/01/skipton-judge-rubbishes-elliot-v-loake.html

geekfusion

Hi again

After multiple requests for BWLegal to stop mishandling my data they continue to do so.

I was wondering if anyone had any advice about phrasing a complaint to the ICO?

Thanks in advance

geekfusion

A little more info - I received a letter offering a discounted amount "as a last oppurtunity to reslove things amicably" plus the obligatory paragraph about CCJ's.

I have drafted this reply...

Dear Sir/Madam,

I acknowledge your letter dated the .

My previous communications with you have provided detailed grounds for disputing this punitive charge and I continue to deny any liability as I was not the driver of the vehicle at the time of the alleged contravention.

I repeat that your clients continued presumption that I, as the registered keeper, was also the driver, is both incorrect and without legal standing. My assertion that I was not the driver will be made under a Statement of Truth. I am also under no obligation, legal or otherwise, to name the driver and, as your client does not rely on the POFA 2012, they cannot establish keeper liability. On this basis your client has no legal reason to pursue me.

As you continue to process my data unlawfully despite all my reasonable requests not to, and having been served a Section 10 notice, I have no alternative but to pursue damages for the distress this has caused me.

Yours faithfully



Any thoughts would be much appreciated

Thanks

geekfusion

I have rewritten slightly...

Dear Sir/Madam,

I acknowledge your letter dated the .

My previous communications with you have provided detailed grounds for disputing this punitive charge and I continue to deny any liability as I was not the driver of the vehicle at the time of the alleged contravention.

I repeat that your clients continued presumption that I, as the registered keeper, was also the driver, is both incorrect and without legal standing. My assertion that I was not the driver will be made under a Statement of Truth. I am also under no obligation, legal or otherwise, to name the driver and, as your client does not rely on the POFA 2012, they cannot establish keeper liability. On this basis your client has no legal reason to pursue me.

Further it is noted that you have again failed to respond to my Section 10 notice and continue to process my data unlawfully. I want to emphasise that your mishandling of my data in this way, coupled with your continued harrasment, is causing me considerable distress.


Yours faithfully


I have written this as my complaint to the ICO - any advice on anything else I should add much appreciated. Thanks again


1. What do you think the ICO can do to help?
Please use this space to explain how you think the ICO can help you. We will respond, even if we think we cannot achieve what you want.


I require BW Legal to stop processing my data immediately and delete it from their system. I have repeatedly provided them with the facts as to why they have no legal reason to continue processing my information and have also issued them a Section 10 notice which has been ignored. Their communications also uses language which is designed to intimidate and their behaviour is both harassing and extremely distressing.

Coupon-mad

Have a look at this one I wrote, feel free to use anything from it:

https://forums.moneysavingexpert.com/discussion/comment/74046847#Comment_74046847

Just don't copy the bit about the Equality Act or stuff about a chronic pain condition.

geekfusion

Hi - thanks for the advice. I have borrowed a few sections from your letter. Let me know if you think I should change anything.

[FONT=&quot][/FONT]
[FONT=&quot][/FONT][FONT=&quot]Dear Sir/Madam,

I acknowledge your letter dated the .

My previous communications with you have provided detailed grounds for disputing this punitive charge and I continue to deny any liability as I was not the driver of the vehicle at the time of the alleged contravention.

I repeat that [/FONT][FONT=&quot]your clients continued presumption that I, as the registered keeper, was also the driver, is both incorrect and without legal standing. My assertion that I was not the driver will be made under a Statement of Truth. I am also under no obligation, legal or otherwise, to name the driver and, as your client does not rely on the POFA 2012, they cannot establish keeper liability. Your client has no cause of action against me and must take it up with the driver, and should have done so in a timely manner, establishing on the day who that party was, if they felt there was a parking charge due.

[/FONT][FONT=&quot][/FONT]
[FONT=&quot]This continued contact and demands for money from a person who is not liable in law, is a significant nuisance that is continuing to affect my peace of mind, distracting me from my work and my daily life. Hours of my time have already been wasted on this matter, only to receive more threatening and misleading letters. The entire rogue ticketing operation and the constant bombardment of legalese and threatening letters indicates a course of unwarranted harassment in pursuit of money I do not owe to anyone.

Should your client proceed, I will have no hesitation in seeking my full costs on the indemnity basis, and will invite the Court to dismiss the claim and to award such Defence witness costs as are permissible, pursuant to CPR 27.14.[/FONT]
[FONT=&quot]
[/FONT][FONT=&quot]
Further it is noted that you have again failed to respond to my Section 10 notice of 07/12/16 and continue to process my data unlawfully. [/FONT][FONT=&quot]

[/FONT]
[FONT=&quot]For the avoidance of any doubt this is another formal cease and desist letter, and a Section 10 notice under the DPA. You and your client must now stop processing my data and delete it from your records after cancelling the meritless 'charge' you are chasing.

I want to emphasise again that your mishandling of my data in this way, coupled with your continued harrasment, is causing me a considerable amount of distress.

If your client proceeds to court, I will file a counter-claim in excess of the sum your client is unreasonably demanding, seeking Vidall Hall compensation for my distress.

I am aware of the following two cases in the past year:

- on Friday 16th March, in case D8HW7G7P in the Slough County Court, another notorious ex-clamper parking firm (UKPC) lost an unreasonable claim against a beleaguered motorist and were found liable for the Defendant's ordinary costs and his £500 counter-claim for distress for a DPA breach by processing his data contrary to the Data Protection Principles.

- in May 2017, in case D6GM2199 CEL v Mr B, Bury County Court, before DJ Osborne, a motorist was awarded £900 because another ex-clamper parking company of the same type as your client (in this case, Civil Enforcement Limited) committed data protection breaches against him. Mr B. was the vehicle keeper but was not the driver on the day. As the NTK was not POFA compliant (same as your client's NTK), the parking firm had no valid claim against the keeper. In addition, Wright Hassall (mirroring the conduct of BW Legal's robo-claim modus operandi) had acted unreasonably in artificially inflating the claim from £100 to £300 by adding spurious amounts.

Mr B filed a counterclaim and this was upheld. In his judgment, DJ Osborne ruled a data breach had occurred, the tort of damages was applicable and that £500 was not an unreasonable amount in the circumstances. He added an additional £405 in costs, part of which were awarded on the indemnity basis, under rule 27.14.2(g) for the unreasonable behaviour of CEL. The Judge also stated he was disappointed in the claimant bringing an unfounded case, and in the behaviour of Wright Hassall who were otherwise a respectable law firm.

I urge you to avoid the same, and confirm this charge is immediately cancelled and my data as registered keeper is removed from all records held by you and your clients.


Yours faithfully[/FONT]
[FONT=Calibri,Arial,Helvetica,sans-serif][/FONT]
[FONT=Calibri,Arial,Helvetica,sans-serif] [/FONT]

Coupon-mad

Yep that looks good, albeit I skim read.

geekfusion

Thanks again Coupon-mad - your advice is much appreciated.