Letter of Claim from BW Legal

tor140

Happy new year to everyone, just a quick question.

I've had the LBC, to which I responded, and then a second letter, which I responded to again pointing out the distress this is causing to myself and family and I've now had a 3rd letter from BW. Does it look better at court stage to respond yet again to all letters following the LBC or do I just ignore now until I get the court papers?

Le_Kirk

What was the contents of the second and third letters?

KeithP

I would ignore any more letters and wait patiently for a Claim Form to drop through your letter-box.


Other opinions are available.

tor140

Le_Kirk - Second letter was above, just their template response to my first rebuttal to the LBC, which I responded to denying liability as driver unknown. 3rd letter from BW Legal simply just demanded the same amount again and said they would seek court proceedings if not paid.

tor140

Hi again, sorry for yet another question. I've just had my SAR returned by post from the PPC saying that enclosed is everything they have on file for me and the VRD but it clearly does not contain all correspondences that I've received previously nor all photos that have been previously sent by BW Legal! Not sure what I should do now, should I return saying that I 'know' this is not the full extent of information that they hold?

beamerguy

tor140 wrote: »

Hi again, sorry for yet another question. I've just had my SAR returned by post from the PPC saying that enclosed is everything they have on file for me and the VRD but it clearly does not contain all correspondences that I've received previously nor all photos that have been previously sent by BW Legal! Not sure what I should do now, should I return saying that I 'know' this is not the full extent of information that they hold?

These people are just donkeys. Give them 7 days to provide to full information or it will be passed to the ICO

tor140

Hi, I now have the claim form from Northampton so that didn't take long! Will get on and acknowledge service asap and start preparing my defense.

Had a letter from BW Legal at the same time saying they've issued legal proceedings, not sure if it's relevant, but although the totals match, the claim amount is calculated differently on the BW letter to the 'Particulars of Claim'.

BW Legal: Principle Debt - £100
interest - £7
Court fee - £25
Solicitors costs - £110
Total £242

Claim form: Amount claimed - £167
Court fee - £25
Legal representative - £50
Total £242

I assume this is where I need to try to argue the £60 is double recovery?

Particulars of Claim - Issue date 07/01/19
The Claimant's Claim is for the sum of £100.00 being monies due from the Defendant to the Claimant in respect of a Parking Charge Notice (PCN) issued on XX/XX/XXXX (Issue Date) at XX:XX:XX at
XXX - XXX. The PCN relates to XXXXX under registration XXXXXX The terms of the PCN allowed the Defendant 28 days from the Issue Date to pay the PCN, but the Defendant failed to do so. Despite demand having been made,the Defendant has failed to settle their outstanding liability The Claim also includes Statutory Interest pursuant to section 69 of the County Courts Act 1984 at a rate of 8% per annum a daily rate of 0.02 from XX/XX/XXXX to XX/XX/XXX being an amount of £7. The Claimant also claims £60.00 contractual costs pursuant to PCN Terms and Conditions. The Claimant believes that the facts stated are true and I am duly authorised by the claimer statement.

nosferatu1001

Thyeve tried to hide the "solicitors costs" within the initial amount claimed, because they KNOW FULL WELL they are NOT entitled to claim for them
Should be worthy of a complaint to the SRA. MIsleading a consumer AND misleading the court.
its nto that the £60 is double recovery, it is a sum specifically prohibited from being claimed in small claims court.

Also the amount claimed cannot be £167as interest must be split out so it can be seen that it is an interest charge.

KeithP

With a Claim Issue Date of 7th January, you have until Monday 28th January to do the Acknowledgement of Service, but there is nothing to be gained by delaying it. To do the AoS, follow the guidance offered in a Dropbox link from post #2 of the NEWBIES FAQ sticky thread.

Having done the AoS, you have until 4pm on Monday 11th February 2019 to file your Defence.

That's a month away. Loads of time to produce a perfect Defence, but don't leave it to the very last minute.


When you are happy with the content, your Defence should be filed via email as suggested here:

Print your Defence.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
   
5. Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
   
6. Do not be surprised to receive a copy of the Claimant's Directions Questionnaire, they are just trying to put you under pressure.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.

tor140

Morning all, please see below my 'first draft' defense. Would love your input/critique and much appreciate any time given.

IN THE COUNTY COURT
CLAIM No: xxxxxxxxxx
BETWEEN:
xxxxxxxxx (Claimant)
-and-
xxxxxxxxxxxx (Defendant)
________________________________________
DEFENCE
________________________________________
1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The Particulars of Claim state only that the PCN relates to ‘car make’ under registration XXXXXX and the claimant has failed to identify the driver. The Claimant is put to strict proof.

3. The facts are that the vehicle, registration XXXX, of which the Defendant is the registered keeper, was parked on the material date in a marked visitor bay at [location]. The defendant is unclear who the driver was on this date over a year ago and there is no presumption in law as to who parked a vehicle on private land nor does there exist any obligation for a keeper to name a driver. I choose to defend this claim as the registered keeper, as is my right.

4. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA")

5. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
5.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
5.2. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
It is not admitted that the Claimant has complied with the relevant statutory requirements.

6. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

7. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

8. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. They merely state that vehicles must be parked with authorization in a designated bay.

9. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

10. It is clear from the evidence that the vehicle in question was parked correctly in a marked ‘VP’ bay. From the defendant’s own research there was found to be a sign at the rear of the parking bay, which from the claimant’s own evidence shows to be obscured by a reverse parked vehicle and could easily have been missed by the driver.

11. Notwithstanding, this sign is misleading with no clear indication that the visitor parking is under the control of a parking permit system.

12. As an alternative, there is no evidence provided as to any grace period allowed for the driver to have parked, read the signage, visited the occupant of (location) and returned to the vehicle to attach a visitor permit.

13. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

14. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

15. There also appears to be an attempt to hide this additional £60 charge from the court as a ‘Contractual Cost’ that has been referred as varying additional charges throughout the Claimants and their Solicitors correspondences, most recently hidden as a £110 ‘Solicitor Costs’ fee on BW Legal letter dated xx/xx/xx, which is a sum in excess and specifically prohibited from being claimed in small claims court.

16. It is not believed that the Claimant has incurred additional costs - be it legal or debt collector costs and they are put to strict proof that they have actually incurred and can lawfully add extra sums and that those sums formed part of the permit/parking contract formed in the first instance.

17. Section B.1.1 of the IPC Code of Practice outlines to operators:
1.1 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.

a. The Claimant is put to strict proof they have such authority to operate on site and to take action in their own name. The same is a requirement of any contract based on conduct.
b. 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.
c. The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question
d. 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

18. If in the alternative it is the claimant's case that his claim is founded in trespass (which is in any event denied) then in a residential car park setting any damages in trespass can only be assessed based on a calculation of the proportion of income lost based on the time of the alleged occupation. Any sum sought could therefore only be minimal and de-minimis
Only the landowner can pursue a case under the tort of trespass not this Claimant, and as the Supreme Court in the Beavis vs ParkingEye (2015) [2015] UKSC 67 case confirmed, such a matter would be limited to the landowner themselves.

19. It is denied that the Defendant or lawful users of the vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above mentioned vehicle to be parked by the current occupier and leaseholder of [address], whose tenancy agreement permits the parking of visitors vehicle within any visitor parking space. The Defendant avers that with Primacy of Contract there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide the right to park a vehicle in the relevant allocated bay, without limitation to ownership of vehicle, the user of the vehicle or the requirement to display a parking permit. A copy of the lease will be provided to the Court.

20. The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.

21. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

I believe the facts contained in this Defence are true.

Name
Signature
Date