VCS and BW Legal - Have we killed our chances of winning?!

KeithP

_llama, you might find this video helpful:

https://www.youtube.com/watch?v=n93eoaxhzpU

_llama

Thanks everyone for the info, we really appreciate all the help!

Fruitcake - that's really useful, thanks for the tips! I will definitely ask those questions in my response. Would it be worth posting my response here before sending so one of you lovely people can check it's consistency?

Coupon-mad - again, thank you! It's great to know how successful you are here and definitely gives us confidence!

Keith P - that's a really interesting video and definitely helps with my confidence so should help to appease my partner's nerves too!

Again thank you so much to you all for your kind help!

Coupon-mad

Would it be worth posting my response here before sending so one of you lovely people can check it's consistency?

Always recommended, yes. We are here waiting to see draft wording to comment on.

_llama

Hi all,

I have spent the morning crafting a reply to BW Legal's "Letter of Claim", and hopefully one of you lovely people can glance over it and see if it is fit for purpose.

I have borrowed a good few bits from the excellent example of Daniel san in the Newbie thread - hopefully this is okay and the letter is good to go.

Obviously reference numbers and addresses will be filled in before sending.

Thanks again!

Dear Sirs.


I write with regards to your most recent letter, entitled "Letter of Claim", dated May 2018
Your letter contains insufficient detail of the claim and fails to provide copies of evidence your client places reliance upon.


Obviously as a firm of solicitors, you will be aware of the new protocol which was put in place as of 1st October 2017, which is applicable to small claims. As proceedings have not yet been issued, the protocol clearly applies and must be complied with.


Your letter lacks specificity and breaches both the requirements of the previously applicable Practice Direction - Pre-Action Conduct (paragraphs 6(a) and 6(c)) and the new Pre-Action Protocol for Debt Claims (paragraphs 3.1(a)-(d), 5.1 and 5.2. Please treat this letter as a formal request for all of the documents / information that the protocol now requires your client to provide. Your client must not issue proceedings without complying with that protocol. I reserve the right to draw any failure of the Claimant to comply with the protocol to the attention of the court and to ask the court to stay the claim and order your client to comply with its pre-action obligations, and when costs come to be considered.


Please note that these documents have been requested numerous times in my correspondence with you, and you have so far failed to provide these documents in their entirety. These documents MUST be provided before any court proceedings can be issued.


In addition to this, my numerous prior emails to yourselves have also requested further information that you have, as yet, failed to provide. This information is in accordance with both the Practice Direction (applicable pre-1st October 2017) and the new protocol which applies thereafter. As a law firm, I am sure you are aware of the purpose of these protocols (as should your client, who are serial litigators), but as you have still failed to provide me with this information I feel I must set out the reason for which I require it:

The Practice Direction and Protocol bind all potential litigants, whatever the size or type of the claim. Its express purpose is to assist parties in understanding the claim and their respective positions in relation to it, to enable parties to take stock of their positions and to negotiate a settlement, or at least narrow the issues, without incurring the costs of court proceedings or using up valuable court time. It is astounding that a firm of Solicitors are sending a consumer a vague and unevidenced 'Letter before Claim' in complete ignorance of the pre-existing Practice Direction and the new Protocol.

As is obvious from both the Practice Direction and the Protocol, no one, including your client, is exempt from them.
Therefore, as previously requested in my prior correspondance with yourselves, I require your client to fulfil its obligations and by providing me with the following documents/information. Again, I feel I must state here that this information has NOT been previously provided to me (dispite your claims otherwise).


1. An explanation of the cause of action
2. Whether they are pursuing me as driver or keeper
3. Whether they are relying on the provisions of Schedule 4 of POFA 2012
4. What the details of the claim are; where it is claimed the vehicle was parked, for how long, how the monies being claimed arose and have been calculated
5. Is the claim for a contractual breach? If so, what is the date of the agreement? The names of the parties to it and provide to me a copy of that contract.
6. Is the claim for trespass? If so, provide details.
7. Provide me a copy of the contract with the landowner under which they assert authority to bring the claim, as required by the IPC code of practice section B, clause 1.1 - Establishing yourself as the creditor
8. A plan showing where any signs were displayed
9. Details of the signs displayed (size of sign, size of font, height at which displayed)
10. Provide details of the original charge, and detail any interest and administrative or other charges added
11. Provide a copy of the Information Sheet and the Reply Form


I would like to bring to your special attention points 5 and 7 above (although all are essential and must be explained/provided). As previously stated in my emails, the driver of the vehicle had parked the vehicle in their work carpark at the time of this alledged incident, and I believe the contract between your client and the landowner does not extend the right to bring claim against persons employed by business granted access to the car park.


In addition to the above, I would request the evidence your client intends to use to show that the driver did not "clearly display" their permit in their vehicle. I beleive that the driver did indeed have a permit visible on their dashboard (even if the permit was inverted it could still clearly be seen to be there regardless of whether the details your was hoping to see could be seen). I (as the owner of the vehicle) even proceeded to provide your client with a copy of the permit in its entirety (at your clients request) shortly after the alleged incident, however your client deemed this unaceptable and continued to persue this matter with myself. I would assert that by displaying the permit in the windscreen of the car, the driver had fulfilled any obligation your client may have had for them to do so. The fact that your client's agent was unable to read the information displayed on the permit was more than negated when the permit was produced to your client at their request.

At this stage, I would also like to point out that the much-used cases of Elliot v Loake (1982) ,CPS v AJH Films and Chaplain v Kamere are extremely unlikely to be applicable in this case. The use of Elliot v Loake (1982) would be inapplicable as it is a criminal case and would therefore bear no weight in a small claims court. It would also be an incorrect representation of the case as there was, as determined by an appeal judge, ample evidence to ascertain that the appellant was the driver of the vehicle involved. This is contrary to the assertion that he was the driver because of a lack of any evidence as to who the driver was. In the case, there was sufficient evidence put to the magistrates to conclude that the appellant was driving his car at the time in question. In addition to this, a crucial piece of evidence in this case was forensic evidence that demonstrated that the appellant had lied, as well as other material facts that he had the only set of keys for the vehicle in his position on the night in question and he was the only person permitted to drive the car. Because of these facts, the case does not introduce any binding legal principal as the case turned on its own facts. The only principle that could be alluded to would be that once a witness is proven to have lied in one respect, it is likely that their evidence elsewhere cold also be incorrect.

In addition to this, I would like to make clear to yourselves that CPS v AJH Films would not apply in this instance either, as was shown in Excel Parking Services v Smith (appeal) Stockport, 08/06/2017 C0DP9C4E and C1DP0C8E. Appeal M17X062. As this case deals with a relationship between employer and employee, and therefore is less than applicable in this case as no contractual agreement can be shown between the registered keeper and the driver in this situation.
Finally, Chaplain v Kamere is obviously completely inapplicable as it deals with a landlord - tenant relationship.

As legal professionals, however, I am sure that you are more than aware of the failing of these cases in this application from the copious times they have been dismissed in cases previously.

If your client does not provide me with this information then I put you on notice that I will be relying on the cases of Webb Resolutions Ltd v Waller Needham & Green [2012] EWHC 3529 (Ch), Daejan Investments Limited v The Park West Club Limited (Part 20) – Buxton Associates [2003] EWHC 2872, Charles Church Developments Ltd v Stent Foundations Limited & Peter Dann Limited [2007] EWHC 855 in asking the court to impose sanctions on your client and to order a stay of the proceedings, pursuant to paragraphs 13 ,15(b) and © and 16 of the Practice Direction, as referred to in paragraph 7.2 of the Protocol.
Until your client has complied with its obligations and provided this information, I am unable to respond properly to the alleged claim and to consider my position in relation to it, and it is entirely premature (and a waste of costs and court time) for your client to issue proceedings. Should your client do so, then I will seek an immediate stay pursuant to paragraph 15(b) of the Practice Direction and an order that this information is provided.
If yourselves and/or your clients insist on continuing this discussion with myself I would request that all further correspondence from you/them be provided via mail to the most recent postal address I have provided to you. Replies must not be sent by return email.
Sincerely,

The_Deep

IMO if this went to court they would have an uphill climb. Judges must be getting sck and tired of these scams, especially when the motorist has a right to park where he/she has done and the PPC is asking silly mponey for a minor infringement of their unfair T&Cs.

This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors.

Parking Eye, CPM, Smart, and another company have already been named and shamed, as has Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each year). They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

Hospital car parks and residential complex tickets have been especially mentioned.

The problem has become so rampant that MPs have agreed to enact a Bill to regulate these scammers. Watch the video of the Second Reading in the HofC recently.

http://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41

and complain in the most robust terms to your MP. With a fair wind they will be out of business by Christmas.

_llama

Thanks The Deep - I'm starting to feel more and more confident with this one now.


That video was really interesting to watch also - especially calling out BW Legal by name. I'll be sure to send all the correspondence onto my local MP too.


Thanks again.

wolvesmat

Hope it gets thrown out.
My first thoughts are was there any bad blood or did he leave his previous employer on bad terms of any issues with contacting former management for them to provide a statement to say you had full entitlement and permission to park your vehicle at the time of offence. If the ticket company just controlling the parking then surely the landowners can force a ticket to be cancelled. Or do the parking ticket company own the land.

Theres too many companies trying to get money out of people using bully boy and fear tactics and there's many vulnerable people taken advantage of or made to feel too ashamed into asking for help. I've seen quite a few posts about bw legal in the past employing illegal and fraudulent ways of frightening people into pay. Some cases of them tracing the debtors friends and family to try persuade them to pay the debt. I've also seen other examples of them sending letters made to look like there from the County Court and paying the amount in full before a certain date will prevent a CCJ being registered.
This is not from personal experience it's just examples of what I came across on the internet accidentally when trying to Google information on County Courts there name came up on a few hits high up.