BW Legal - Prep for Court?

gre24l18

So, I'm pretty late to this party. I've done lots of research and looked at different evidence on the site and managed to get as far as submitting the first letter. The response from BW Legal has stumped me as to where to go next.

Long story short is that I followed the advice of friends as opposed to the people on here and just binned everything that came through, I'm now fully aware that I had I not done this and tackled it head on I could have got the invoice cleared years ago. The invoice is from Nov 2013 and after ignoring everything that came through they left me alone for about a year or so but the letters started coming again once i'd moved. I came on here and sought advice this led me to send the first template letter. I have received a response with numerous photographs attached but they are from two years later (Aug 2015) they also state in the letter they do not intend to rely on POFA.
The evidence they state they intend to rely on is 'Combined Parking Solutions Ltd vs AJH Films Ltd (2015), 'ParkingEye Ltd vs Beavis (2015) and Chaplair Ltd vs Kumari (2015)



Basically they have rebuffed the first letter I sent, which we knew they would and have basically given me 14 days to pay otherwise court action.

I thought about responding with the letter lamilad posted on the last thread as it seems very well written but I don't know whether it would be any good as it more or less replicates the first letter I sent just more in depth and I also want to raise the fact that the photographs are almost 2 years after the alleged offence.



Does anyone have any thoughts?

Coupon-mad

I thought about responding with the letter lamilad posted on the last thread as it seems very well written but I don't know whether it would be any good as it more or less replicates the first letter I sent just more in depth and I also want to raise the fact that the photographs are almost 2 years after the alleged offence.

Yes you could adapt that one. Remove any repetition you said before. In fact I would not tip them off about holes in their evidence, if this is before a court claim...let them fall into that hole about the signs and it will add to your defence later.

I assume this is Excel? Was it the Peel Centre, or Cavendish Retail park, or where?

I would include this:

The original PCN posted four years ago by this Claimant, Excel Parking Services Ltd, states 'liability lies with the driver'. As Excel did not use the POFA in their Notices in 2013 and could only hold a driver liable, please show me your clients' evidence of who that person was and I will pass the letters on to them.

In 2012, the year before this alleged parking event, Excel were sanctioned (banned) by the DVLA for stating or implying in signs or documents that a registered keeper could be held 'liable for the payment of charges' and/or had any 'legal responsibility' to name the driver. It is contended that this is exactly what Excel are now doing in preparing a vexatious and wholly unreasonable 'jumping on the Beavis bandwagon' claim. Implying that a keeper could be liable/responsible for the actions of a driver was identified by the DVLA as 'a significant breach' of the Trade Body Code of Practice which was with the British Parking Association at the time. So serious a matter was this, Excel were banned from obtaining data by the DVLA for three months.

It is apparent that your clients have a spurious intention to rely on 'Combined Parking Solutions Ltd vs AJH Films Ltd (2015), 'ParkingEye Ltd vs Beavis (2015) and Chaplair Ltd vs Kumari (2015), none of which have any application to the matter in hand. As you will be aware, if BW Legal have applied any diligence in this case and read the case law, CPS v AJH Films dealt with a company keeper/employee driver (not the case here) and ParkingEye Ltd vs Beavis dealt with a unique commercial justification in a free car park but it was stated that in other straightforward parking 'charge' claims would rarely need to be explored further than Lord Dunedin's 4 tests for a penalty, a doctrine which was held to have useful application and would remain the main test in less complex cases.

Finally, it is my belief that no defined additional/indemnity costs were stated on any signs in 2013 and indeed, the 'parking charge' itself was likely to have been hidden in small print in Excel's typical crowded signage, criticised in Excel v Cutts when DJ Lateef threw the claim out at Stockport County Court. Therefore, far from supporting attempts at double recovery by adding imaginary 'indemnity costs' Kumari can be fully distinguished from this matter, since that was an irrelevant decision about contractual fees set in lease terms, not random 'costs' bolted on afterwards to an already significantly inflated, disproportionate and not 'agreed' parking charge.

Should your client proceed to court with no evidence of the driver and no reasonable cause to pursue me as keeper (in a flagrant disregard for the DVLA ban applied to them for asserting just this sort of baseless misinformation) I will make a formal complaint to the Information Commissioner and in addition to robustly defending the claim I will, when I prevail, use the ICO complaint and DVLA ban evidence along with this successfully defended case, to sue your client for compensation for data misuse, in breach of the DPA Principles.

I strongly urge you to advise your clients to cancel this unwarranted harassment of the wrong party. The only excuse for obtaining my data in 2013 was to enquire (and no more) as to who was driving. This is not something I can assist your client with, nor am I obliged to do so under any law. Therefore, you and your clients are urged to take formal note that the excuse/reason for processing my data in 2013 is long since exhausted.

This reply is my formal objection to processing under section 10 of the DPA. You are obliged to respond within 21 days or an ICO complaint will be lodged immediately.

gre24l18

Coupon-mad wrote: »

I assume this is Excel? Was it the Peel Centre, or Cavendish Retail park, or where?

.

Yes it was the Peel centre,


thanks for your quick response Coupon-Mad


I assume that the out of date evidence wouldn't be upheld if it went to court? Also, I am stating that the letter to my new home address is the only one so should I adapt the above to suit that or should I not state that this is the first letter or does it not matter that it slightly contradicts itself

Coupon-mad

Yes it was the Peel centre,

Good, that's where Martin Cutts case was and DJ Lateef laid into the signs, which were not improved much at all in 2013 (some of us have long memories for such facts/dates!).

And that's also good because the stuff I wrote about the Beavis case makes sense to distinguish any Peel Centre case from that case law, because Peel Centre wasn't a similar free car park and had woeful signs.

gre24l18

gre24l18 wrote: »

Yes it was the Peel centre,

I assume that the out of date evidence wouldn't be upheld if it went to court? Also, I am stating that the letter to my new home address is the only one so should I adapt the above to suit that or should I not state that this is the first letter or does it not matter that it slightly contradicts itself

I'm nearly ready to send the email, what do you think about my position on the above? I've not mentioned the photographs being out of date mainly just the bit about me not receiving correspondence before I moved

Coupon-mad

You can state (maybe early on in the letter/email) that no letters were received prior to xx/xx/17 because Excel were using an old address, as is typical of this abuse of MCOL. According to publicly available information, my circumstances are far from being unique. The private parking industry’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and the justice system across the country. This is a topical issue: I note that the Justice Minister The Rt Hon Sir Oliver Heald QC MP announced on the 23rd December 2016 a consultation and information campaign to ''better protect consumers'' against the scourge of spurious debt claims sending paperwork and even claim forms to old addresses.

Reiterate the correct address for service.

then carry on as suggested. They won't read it but it then sets the scene by April for an ICO complaint.

gre24l18

So I've waited a few days for a response to the letter as their 21 days was up on the 21st April, the only thing I have received was the standard run of the mill chase up for money letter of which I've had a few but nothing in relation to the email I sent which stated that if I has no formal response I would complain to the ICO. I'm currently searching template letters I assume there is one. I will submit this complaint.


Is this going to court or could it still be quashed?

gre24l18

Sorry guys - don't know if I'm just being thick but I can't find a template for the ICO complaint.


I have been on their website but I can't tell which category I fall under? Can anyone point me in the right direction

gre24l18

So... this is the response i've had form the ICO. Doesn't seem like they would back any claim... anyone else had a similar response or does anyone know what I should do now?


"I have now reviewed the information you have provided. It would appear you contacted BW Legal Services (BW) regarding your concern on 29 March 2017, as BW was acting on behalf of Excel Parking Services (Excel) in this matter.

I note you have asked BW to treat your letter as a section 10 notice. Please be aware that for a section 10 notice to be valid it needs to explain why the processing of personal data is causing substantial and unwarranted damage or distress. It does not appear you have done this in your letter so it would not be a valid section 10 notice. Therefore you may wish to submit a valid section 10 notice. Please refer to our website for further guidance.

If a parking company, such as Excel is attempting to contact an individual about a parking charge notice, they may use services such as the DVLA to trace an individual. Therefore, they are able to retrieve new contact details from the DVLA if an individual moves. They may also share these details with other organisations if they have a legitimate reason for doing so, such as they are considering further action or passing a debt on to a debt collection agency. We would consider it reasonable for the DVLA to disclose personal data about an individual in these circumstances. In any event, it would appear one was provided on the signs in the car park. Please find further information on our website.

The Data Protection Act 1998 does not specify how long personal data should be retained by an organisation. This is because different types of personal data may need to be retained for longer than others. It appears Excel has a legitimate reason for continuing to retain and process your information. Please find further information on our website.

I trust this information explains why we are not considering further action in relation to your concerns."

Coupon-mad

Therefore, they are able to retrieve new contact details from the DVLA if an individual moves.

No they are not! That is completely wrong.

I would reply to the ICO and tell them this (above) is simply not correct and they are wrong to state an incorrect understanding of the DVLA KADOE use and process, to consumer complainants. A parking firm may only contact the DVLA once about a parking event, and cannot use them as a form of tracing agent, nor ask the DVLA again for a new address.

Moreover, the parking firm may ONLY use the data for the VERY limited reasons stated in the DVLA KADOE rules, which is to 'enquire who the driver was'. The registered keeper is under no lawful obligation to give that information and there is no lawful presumption that a keeper was driving.

Operators are forbidden under the KADOE, to use the data for other purposes (only to ENQUIRE WHO THE DRIVER WAS), and Excel in their documents in 2015, did not use the only applicable law that would have allowed them to pursue the registered keeper. They are stuck because they don't know who was driving but that does not give them any lawful excuse to abuse the registered keeper's data and pretend they can pursue them for the money instead.

Thus, their current use of the data to unreasonably PURSUE the keeper as if they are liable (when they are patently not), is unlawful under the DPA.

Ask the ICO to revisit the law and KADOE in this respect, and not to make the mistake of assuming that the POFA 2012 (Schedule 4) allows all parking firms to pursue all registered keepers, because it most certainly does not. A cursory glance at Excel's 2015 Notice to Keeper shows that the document is only capable of holding a driver liable and creates no obligation on the keeper whose data they are currently using without 'reasonable cause', outwith the scope of the KADOE.

gre24l18

Oh wow! Thanks for the response?... do you mind if use someone of that in my response?
Also, what should I do about BW? I've not heard anything from them since March until a couple of weeks ago when I had received a couple of voicemails.