BW legal - Letter of Claim

Coupon-mad

You need these facts in #2 of your defence, as per earlier advice on this thread:

Coupon-mad wrote: »

...the car as not parked in a bay but was merely picking up a passenger for the few minutes that took, and no contract or 'parking charge' was seen, let alone agreed, nor could contractual parking terms be expected to apply during a grace period for drop off/pick up.

Remove #9.1 which adds nothing useful about NCP.

Add in this form of wording below about the 'NCP 0 taxman 1 thread' case, instead of your #4 (remove it as you already have the same thing in #5 anyway!). This is taken from this important Appeal case below, that you MUST put in as evidence at WS stage (no attachments go yet!):

https://www.bailii.org/ew/cases/EWCA/Civ/2019/854.html

4. In HMRC v NATIONAL CAR PARKS LIMITED [2019] EWCA Civ 854 (i.e. a case involving this same Claimant), paragraph 18 is relevant reading in regards to the time that a parking contract is 'brought into being' in any pay & display car park.

4.1. Lord Justice Newey held in the above Court of Appeal case: ''English law, of course, generally adopts an objective approach when deciding what has been agreed in a contractual context. Here, it seems to me that [...] looking at matters objectively, that NCP was willing to grant an hour's parking in exchange for coins worth at least £1.40. In the hypothetical example, the precise figure was settled when the customer inserted her pound coin and 50p piece into the machine and then elected to press the green button rather than cancelling the transaction. The best analysis would seem to be that the contract was brought into being when the green button was pressed. On that basis, the pressing of the green button would represent acceptance by the customer of an offer by NCP to provide an hour's parking in return for the coins that the customer had by then paid into the machine''.

4.2. Thus, unlike in the free car park in ParkingEye Ltd v Beavis [2015] UKSC 67 ('the Beavis case') which this Claimant erroneously tries to rely upon, the contract in a pay & display car park does not begin when the car passes the entrance camera. In a 'straightforward damages' case, the penalty rule stays engaged and trying to charge (say) 100 times more than the tariff would be punitive, unjustified, unconscionable and an abuse of process.

4.3. This is especially true, given the facts of this case where the driver merely entered, stopped and left after picking up a passenger. As an analogy, if this innocent everyday driving conduct was considered on a par with the Beavis case then every taxi driver would receive unfair PCNs in retail parks every day, being unreasonably expected to get out and read contractual 'parking' signage and either pay or leave without their passenger.

4.4. In fact in the Beavis case at the earlier Court of Appeal stage, the learned Judges said that a case regarding an ordinary transactional contractual fee (such as in a pay and display car park with a quantifiable tariff) was 'entirely different' from the 'complex' situation in a free car park. Para 47: ''...When the court is considering an ordinary financial or commercial contract, then it is understandable that the law [...] should prohibit terms which require the payment of compensation going far beyond that which the law allows in the absence of any contract provision governing this outcome.''

4.5. This was further confirmed at the Supreme Court. At para #22, the Supreme Court explored Lord Dunedin's speech in Dunlop: ''the essential question was whether the clause impugned was unconscionable or extravagant. [...] The four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts.'' And at para 32: ''...In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin's four tests would usually be perfectly adequate to determine its validity.'' Finally, at para 199: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a scheme serving legitimate interests.''

4.6. The Defendant submits that the two binding cases above support this defence and that it cannot be said that a driver who collects a passenger and leaves at the exit within 12 minutes, having actually stopped only briefly, can be fairly charged £100 in a pay & display car park where no contract was agreed.

Mountains

Many thanks for this! I will add this in and send off the defense.

Juse out of curiosity is it worth putting in a counter claim in for the time this has wasted on my part?

Coupon-mad

No, time taken is not a counter claim.

£19 per hour can be asked for, as costs when you win. Rarely granted, but sometimes.

Mountains

Hello

I just thought I would update you all!

The defence has been submitted, acknowledged and shared with the Claimant.

It appears BW legal are sending come typical template letters...

Shortly after putting in the claim against me they wrote to me asking for a payment by 2nd November if not a CCJ would be issued. Shortly before the defence was due they wrote again with threats of a CCJ and how they would claim the money. On this occasion, if they received payment by 17th Nov they would drop the "CCJ"

Since submitting the defence they have written again saying they will proceed irrespective of the defence submitted and are confident they will win and when they do they will claim on top of what they are asking for. As always if they receive payment by a certain date they will drop the case!

Now I'm not phased by any of this but it is quite interesting how they lie about how CCJs work to make you think one will be upheld against you by default to trick you into paying! It also seems they are trying for triple recovery now by claiming some more!! :rotfl::rotfl:

Umkomaas

Now I'm not phased by any of this but it is quite interesting how they lie about how CCJs work to make you think one will be upheld against you by default to trick you into paying! It also seems they are trying for triple recovery now by claiming some more!!

If you've the time, why not complain to the SRA, with copies of those letters?

Mountains

I've submitted the DQ and received a copy of the DQ from BW legal. They wanted medication ( i said no as mentioned on the sticky), they put 0 witnesses and signed it off as BW legal. I'm not sure if the latter is even allowed?!

I sent the DQ to DW via email and received the following from them via email (a method I am not keen on receiving any more correspondence from them even though I have stated I wanted correspondence to my address in my original response to their letter of claim)

XXX NCP v XXXX *ticket number*: DQ-XXX ***WITHOUT PREJUDICE - SAVE AS TO COSTS***

Dear Sir

Thank you for your Directions Questionnaire. You must quote the above subject header (rather than the court claim number).

Under CPR the courts require parties to make every effort to settle their cases without going to a hearing as you’ll already be aware given the level of CPR detailed in your defence. We note you’ve refused the Small Claims Mediation which we feel is unreasonable conduct, for which we’d seek costs accordingly

There is no attempted double recovery here, in addition to the PCN, the claimant is entitled to reasonable recovery charges under the code of conduct.

Could you please clarify whether you’ve obtained independent legal advice drafting the Defence or whether its taken from Internet Forums, as the document is supported by your own Statement of Truth. Whilst clear on some issues, your Defence is vague as to driver, was this not you? The point is academic as you’re pursued as registered keeper but please clarify.

From a purely commercial view we’d accept the discounted sum of £160 to avoid trial and the additional court hearing fees and advocates on the day which we’d otherwise incur and seek to recover from you.

If you are agreeable then kindly confirm by return email and make payment on the details below.

We would then discontinue the claim without adverse credit entry or CCJ.

BW Legal Bank Details

£160

Bank: XXXXXX

Sort code: XX-XX-XX

Account Number: XXXXXXXX

Account Name: BW Legal Services Limited

Payment Reference: XXXXXXXX

Please confirm either way how you wish to proceed. We reserve the right to produce this to the court on the question of costs.

Obviously they recognise that this case is a lost cause to some degree as they are willing to accept a lower amount. Should I respond to this?

Umkomaas

They wanted medication

Well that might make a difference! :rotfl:

Coupon-mad

They wanted medication

Some parking firms need it...!

Mountains

sorry that was a typo I'm sure you knew it was mediation!!

Am I right in just leaving this?

Le_Kirk

Of course but we all need some fun. Unless you WANT to pay £160 for nothing, then yes, ignore it.