BW Legal 'Letter Of Claim'

Quentin

Le_Kirk wrote: »

What a shame Word of the Day has already been awarded to Coupon-mad!

This is so bad.

How come this forum gets away with awarding word of the day only half way through it.

Hope this gets sorted

System

the power should be exercised only where the court is satisfied either (1)
that the default has been intentional and contumelious, e.g. disobedience to a
peremptory order of the court or conduct amounting to an abuse of the process
of the court; or (2) (a) that there has been inordinate and inexcusable delay on
the part of the plaintiff or his lawyers, and (b) that such delay will give rise to a
substantial risk that it is not possible to have a fair trial of the issues in the
action or is such as is likely to cause or have caused serious prejudice to the
defendant either as between themselves and the plaintiff or between each other
or between them and a third party.

In order to get a strike out you have to show a Claimant has been contumelious. So not a word of the day but one for the long term if seeking strike outs.

Coupon-mad

OK, thanks, we can add that in future to the end of any defence suggesting a strike out.

Bowler01

If you really want to stick it to BW Legal make a complaint as they are regulated by the Financial Conduct Authority (FCA) under number 619068 Its all on their website about how to complain if you want to check


As per FCA rules they must
1. Acknowledge in writing within 5 business days
2. Make a formal written response within 4 weeks.
3. Provide a final written response within 8 weeks


If you're not happy with their response (and you wont be will you) you can then make a complaint to the FCA.


The FCA gives them 25 free cases then they are charge £550 for each and every complaint after that regardless of the outcome of the complaint


They will be out of business in a month if everyone dealing with them makes a complaint
1000 complaints x £550 is £550 K


Below is from the financial ombudsmen website
http://www.financial-ombudsman.org.uk/faq/businesses/answers/funding_a5.html


We don't charge a business for the first 25 cases we deal with during the year. For the 26th and each subsequent complaint, we charge a case fee of £550.


THE CONSUMER/COMPLAINANT NEVER PAY
why consumers don't pay

why don't consumers have to pay to bring a complaint to the ombudsman?

All ombudsman schemes in the UK provide their services free to consumers. This is fundamental to the ombudsman concept - providing a free, open and accessible public service available to everyone.
When the Financial Ombudsman Service was set up - and again when its remit was extended to cover consumer-credit disputes - it was agreed in parliament that free consumer access to the ombudsman was essential, to underpin public confidence in financial services.


THE BUSINESS ALWAYS PAY
paying if a consumer loses

why should I pay a case fee if a consumer complains about me to the ombudsman - and loses?

Our rules (set out in the FCA's Handbook) say that if we consider a complaint against a business, the case becomes chargeable whatever the outcome.

stud26

OK deadline is tomorrow, how about this defence which now includes the bits previously mentioned:

The defendant asserts that she is not liable to the Claimant for the sum claimed, or any amount at all, for the following reasons:

1. The defendant was unable to leave the car park by the required time as she was breastfeeding her four-month-old daughter in the safety of her vehicle. The defendant’s appeal to the claimant stating this reason was rejected.

2. The defendant has been discriminated against under the Equality Act 2010:

Section 11 of the Equality Act 2010 provides that sex is a protected characteristic.
Section 13 of the Equality Act 2010 provides:
‘(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.’
and
‘(6) If the protected characteristic is sex-
(a)less favourable treatment of a woman includes less favourable treatment of her because she is breast-feeding;’

Section 17 of the Equality Act 2010 provides:
'(3)A person (A) discriminates against a woman if, in the period of 26 weeks beginning with the day on which she gives birth, A treats her unfavourably because she has given birth.

(4)The reference in subsection (3) to treating a woman unfavourably because she has given birth includes, in particular, a reference to treating her unfavourably because she is breast-feeding.'

Section 19 of the Equality Act 2010 states this section note This sectionnoteType=Explanatory Notes has no associated

(1)A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.

(2)For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if-

(a)A applies, or would apply, it to persons with whom B does not share the characteristic,

(b)it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(c)it puts, or would put, B at that disadvantage, and

(d)A cannot show it to be a proportionate means of achieving a legitimate aim.

Section 26 of the Equality Act 2010 provides: E+W+S
'This sectionnoteType=Explanatory Notes has no associated
(1)A person (A) harasses another (B) if-

(a)A engages in unwanted conduct related to a relevant protected characteristic, and

(b)the conduct has the purpose or effect of-
(i)violating B's dignity, or
(ii)creating an intimidating, hostile, degrading, humiliating or offensive environment for B.'

3. Despite being discriminated against, the defendant’s personal data was later passed on to third-parties in an attempt to recover the debt. This was in breach of the Data Protection Act 2018.

4. Having responded to one of the third parties, explaining the circumstances of the case and breach of the Equality Act 2010 and Data Protection Act 2018, the defendant continued to receive correspondence from them and they pursued with the case to its current state.

5. The claimant failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to theClaimants contractual authority to operate there as required by the Claimants TradeAssociation's Code of Practice B1.1 which says

6. If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowner’s behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions.

7. 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. As far as I can ascertain, based upon the very vague particulars of claim and complete lack of evidence and photographs, and without having been furnished with the alleged signage contract, none of this applies in this material case.

8. In the absence of any proof of adequate signage contractually bound the Defendant then there can have been no contract and the Claimant has no case

a. The Claimant is put to strict proof at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs
b. In the absence of strict proof I submit that the Claimant was committing an offence by displaying their signs and therefore no contract could have been entered into between the driver and the Claimant
c. Inadequate signs incapable of binding the driver this distinguishes this case from the Beavis case:

i. Sporadic and illegible (charge not prominent nor large lettering) of site/entrance signage - breach of the POFA 2012 Schedule 4 and the BPA Code of Practice and no contract formed to pay any clearly stated sum
ii. It is believed the signage was not lit and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Consumer Rights Act 2015 in requiring a huge inflated sum as compensation from by an authorised party using the premises as intended
iii. No promise was made by the driver that could constitute consideration because there was no offer known nor accepted. No consideration flowed from the Claimant
iv. The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
v. The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.

d. BPA CoP breaches this distinguishes this case from the Beavis case:

i. The signs were not compliant in terms of the font size, lighting or positioning
ii. The sum pursued exceeds £100
iii. There is/was no compliant landowner contract

9. No standing this distinguishes this case from the Beavis case: It is believed BW Legal do not hold a legitimate contract at this car park. As an agent, the Claimant has no legal right to bring such a claim in their name which should be in the name of the landowner.

10. The Beavis case confirmed the fact that, if it is a matter of trespass (not breach of any contract), a parking firm has no standing as a non-landowner to pursue even nominal damages.

11. UK Car Park Management are not the lawful occupier of the land. I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no rights to bring action regarding this claim.

a. The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.
b. The claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question
c. The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third-party agent, the Claimant may not pursue any charge

12. The Claimant has at no time provided an explanation how the ‘parking charge’ has been calculated, the conduct that gave rise to it or how the amount has escalated from £60 to £242. This appears to be an added cost with apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.
a. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.
b. The driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.

Thanks for your help.

stud26

Any comments on this would be much appreciated as it has to be submitted today.

System

At #1 put in the date they were told and how they were told. e.g.

In an appeal on xx/xx/xx (attached) the Claimant was informed of my protected characteristics under the Equality Act. This was xx months prior to the start of court action. The defendant has a reasonable expectation of not being discriminated against.

The rest is fine. You want this information up at the top so the Allocating Judge (at the DQ stage) can decide to take your case out of the system or let it go through. It should also be clear to BW about the case. But for belts and braces, send a copy of the defence to NCP too as it stops NCP saying BW never told us about the Defendant.

Just setting the scene for a costs claim later.

stud26

So we've received our questions from the court? Any advice on what to fill in, do we go via mediation etc?

Le_Kirk

Do you mean the DQ? If you go for mediation, you will not get your day in court and the ability to defend.

stud26

That's right, the DQ. BW Legal have opted for meditation.