BW Legal - Letter of Claim received - 3 PCNs

rightlyfrustrated

I have read the NEWBIES section and other threads but have some specific questions that I think could have been avoided if I had been fully conversant with this brilliant forum. So my apologies for starting this new thread. Summary below, if you need further background there is a 'wall of text' further down. :-)


Overview
I was not aware the road was a 'park & pay' zone. Poor signage and, at the time, the area was a temporary construction site with a large skip and builders vans was the primary contributor to my lack of awareness.

• All PCNs received by mail, hence the volume (x4), as we only used the parking space until I received the first PCN some 30 days later.
  
  
• First PCNs (x2) appealed to Operator, they were rejected as expected. Not knowing better at the time, I identified myself as the driver.
  
  
• PCN (x1) appeal to IAS. Upheld due to defense of signage not being prominent enough (I supplied images as evidence the Operator did not). I didn't appeal to IAS for the other one based on advice provided within the forum and the date to appeal had elapsed by the time the first appeal outcome was known.
  
  
• Further PCN (x2) appeal to Operator as 'keeper' using a letter based on a template from this forum. I actually wasn't the driver in this instance, but still did not identify the driver. I did not bother to appeal to IAS.

I have now received a 'letter of claim' from BW Legal (now at £500+) and this has pushed my stress levels up and is preventing me from approaching this logically and hence calling upon the experts in this forum for their guidance and wisdom. My questions now relate to the strategy I should employ given the missteps, I believe I've made along the way (it is a minefield if you don't know your rights).

1. Should I respond to BW Legal regarding the "letter of claim"? If so, should I send them all the supporting evidence or leave that for court, if it comes to that?

2. With the outstanding PCN where I admitted being the driver, would the precedent in my successful IAS appeal be applicable as a defense? As the situation is almost identical and I still retain the photos from the original appeal (and the photo has a datetime stamp embedded in the meta data) and I suspect the Operator would not have followed up with any images around the same time.

3. With the PCNs where I have appealed as 'Keeper', can I shift the 'burden of proof' onto the Operator to identify the driver (as per Henry Greenslade's oft quoted opinion)? Is this argument still accepted by the courts? I have yet to inform the Operator that I was not the driver.

4. The Operator is saying they require an administration fee for putting together a Subject Access Request. Is this allowed, given it states that it is free in the NEWBIE section?

Any knowledgeable guidance would be much appreciated.

Further Background
My naivety in relation to PCNs has lead me to receive a Letter of Claim from BW Legal. I received a number of PCNs in quick succession (Sep 2017) due to me not realising it was a 'park & pay' zone. I received my first PCN (by mail) some time after the other subsequent 'supposed' infractions. I did some quick research but was leaving on holiday so felt pressured to appeal two of the Operator's PCNs there and then. They of course rejected both and feeling frustrated I appealed using the IAS on one of the PCNs, whilst I undertook research on the other PCN which I intended to appeal upon my return.

However, after a little more research across the forums, I decided not to appeal to IAS on the second PCN as it was suggested that it was of little value and could possible be disadvantageous should it ever reach court.

Surprisingly, the appeal to IAS was upheld, due to signage not being prominent enough, as I supplied my own photos and the Operator did not. In addition, the Operator admitted in the appeals process that "...it was possible for a driver not to see the signage the first time they entered the area...".

After returning from holidays, I undertook further research in this forum and utilised a suggested template for the third and forth PCNs I'd received. I was not the driver in these instances, but did not want to identify the driver unless absolutely necessary. Again, I appealed against the PCN and not the NTK which I later understood to be a better approach. This appeal was rejected by PAS and I never appealed to IAS.

Subsequently, I have been bombarded by "Final Notices" and debt collector letters which has caused enough anxiety to last me a few years. Whilst, I tried to ignore the debtor letters, I succumbed, responding to them once, only stating that I deny any debt being owed to the Operator and registered my concern that they were processing my personal data on improper grounds.

Again, any helpful advice would be appreciated.

P.S. BW Legal have already started with the email & SMS spam.

Respectfully

Rightfully Frustrated

KeithP

4. The Operator is saying they require an administration fee for putting together a Subject Access Request. Is this allowed, given it states that it is free in the NEWBIE section?

The NEWBIES thread is correct.

Since 25th May 2018 recipients of a Subject Access Request are generally no longer able to charge for providing the information.

Redx

rightlyfrustrated wrote: »

I have now received a 'letter of claim' from BW Legal (now at £500+) and this has pushed my stress levels up and is preventing me from approaching this logically and hence calling upon the experts in this forum for their guidance and wisdom. My questions now relate to the strategy I should employ given the missteps, I believe I've made along the way (it is a minefield if you don't know your rights).

1. Should I respond to BW Legal regarding the "letter of claim"? If so, should I send them all the supporting evidence or leave that for court, if it comes to that?

2. With the outstanding PCN where I admitted being the driver, would the precedent in my successful IAS appeal be applicable as a defense? As the situation is almost identical and I still retain the photos from the original appeal (and the photo has a datetime stamp embedded in the meta data) and I suspect the Operator would not have followed up with any images around the same time.

3. With the PCNs where I have appealed as 'Keeper', can I shift the 'burden of proof' onto the Operator to identify the driver (as per Henry Greenslade's oft quoted opinion)? Is this argument still accepted by the courts? I have yet to inform the Operator that I was not the driver.

4. The Operator is saying they require an administration fee for putting together a Subject Access Request. Is this allowed, given it states that it is free in the NEWBIE section?

1) IMPOSSIBLE to say because we have no proof that this is a real LBC that conforms to the PaP oct2017 rules, if it does , respond , if not , dont respond , but the rebuttal is a denial, dont give them any proof , save it for the court


if you had told us that it has a 30 days response time + financial forms to fill in, we would know that it complies with the PaP as far as those 2 caveats are concerned


2) you would think so, so use it


3) yes, use POFA2012 as an extra set of arguments


4) NO it is not allowed, it is now free since last may under the GDPR, so if they refuse to issue the SAR for free, report them to the ICO


lastly , there is no S in DEFENCE

rightlyfrustrated

Redx wrote: »

1) IMPOSSIBLE to say because we have no proof that this is a real LBC that conforms to the PaP oct2017 rules, if it does , respond , if not , dont respond , but the rebuttal is a denial, dont give them any proof , save it for the court


if you had told us that it has a 30 days response time + financial forms to fill in, we would know that it complies with the PaP as far as those 2 caveats are concerned


2) you would think so, so use it


3) yes, use POFA2012 as an extra set of arguments


4) NO it is not allowed, it is now free since last may under the GDPR, so if they refuse to issue the SAR for free, report them to the ICO


lastly , there is no S in DEFENCE

Thank-you very much for your response, it has helped clarify my approach...and improve my spelling :-)

1. Given BW Legal is a prominent player in this space, I would think they would have their templates in order. Though, having said that, they neglected to complete the 'respond by date' in one section of the letter but don't think it matters as it is referenced elsewhere. The 30 days and financial statements were present, therefore I assume it is correct.

2. Good to know, will safe for the court if it proceeds that far.

3 & 4 Again, good to know.

Therefore, based on my readings my approach to this matter is:

a. Lodge a SAR with the Operator requesting the information listed in the NEWBIES section

b. Inform BW Legal to suspend processing my data until such time it is received. Does this require them to provide a new 'respond by date'? Or should I adhere to the existing one?

c. Provide a denial response to the 'Claim Letter' with minimal information (save for court if required), referencing POFA2012 and Henry. Send response as close to the respond due date as possible.

Am I right to expect the next step is then to wait for a response from BW Legal if it is to take the matter further?

Respectfully

Rightfully Frustrated

Redx

yes, you seem to have understood the current state of play and where you are in the "game"

eventually it is likely an MCOL will arrive in the post, hence why you get their evidence beforehand , whilst there is still time

if they fail the SAR request, its an added defence point about obstruction, plus a complaint point for the ICO

you can also request the same info in your rebuttal to B W LEGAL and inform them that you have issued the SAR to their client as well (putting them both on notice)

this ping pong is just the hors douevres to the main course, its sparring time, a pre match warm up only, but useful if they do (or dont) comply

and it gives them work to do

rightlyfrustrated

OK. The current state of play...

The SAR submitted to the operator was turned around in 48hrs, which suggests they are learning. However it failed to include everything asked for. Perhaps, justly, it provided only that information pertaining to to my personal data. The exception being:

• all sources used to obtain my personal data; and
  
• all organisations/companies that you have provided my personal data to for further processing.

What was asked for and not provided (and may not qualify as personal data):

• Contract with landowner evidencing lawful right to issue tickets for that date range;
  
• a close up of the signs on the day in question;
  
• evidence that Parking Awareness has paid a debt collector (though in the "Letter of Claim" there is no reference to Debt Collectors in the breakdown of costs - so possibly not required or misleadingly classified as "Principal Debt & Initial Legal Costs); and
  
• any evidence you intend to rely upon in legal proceedings.

Q1: I believe I should request the information above, but does it really classify as a SAR? Or should it be requested via some other mechanism?

I'm yet to receive a response (except the standard auto-response) from BW Legal on the same SAR request.

Two things of interest I note on the SAR are:

I had 5 PCNs, 1 is closed (upheld on IAS appeal), 3 with which they are pursuing and a final one which is not mentioned in the letter of claim (but I had previously appealed).

Q2: Am I correct in understanding that if they were to make a "claim" they should include all outstanding PCNs on the claim?

Q3: If they are not pursuing me on the missing PCN from the "Letter of Claim" can I ask for this to be dismissed outright? Was incurred around the same time - 2 days later.

The second thing of interest, which was either a mistake or naivety on my part. For one of the appeals, I lodged it as 'keeper' but clearly the appeal is written as admission of being the driver at the time.

Q4: Therefore, will this impact my case in the other two PCN claims where I was not the driver, but have not identified the driver?

Any thought would be appreciated.

The_Deep

It is the will of Parliament that these scammers be put out of business. Hopefully that will take place in the near future. The Bill has passed through the HOC without hitch, and goes to the Lords soon. In the meantime involve your MP, the poor dears are buckling under the weight of complaints about these scammers. Read this one which I wrote earlier

This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of alleged contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors. Is has been suggested by an MP that some of these companies may have connections to organised crime.

Parking Eye, CPM, Smart, (especially Smart}, and others have already been named and shamed in the House of Commons as have Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each week), hospital car parks and residential complex tickets have been especially mentioned. They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

The problem has become so widespread that MPs have agreed to enact a Bill to regulate these scammers.

Sir Greg Knight's Private Members Bill to curb the excesses, and perhaps close down, some of these companies passed its Third Reading in late November, and, with a fair wind, will become Law next year.

All three readings are available to watch on the internet, (some 6-7 hours), and published in Hansard. MPs have an extremely low opinion of the industry. Many are complaining that they are becoming overwhelmed by complaints from members of the public. Add to their burden, complain in the most robust terms about the scammers.

rightlyfrustrated

This is likely to be a silly question. I think I'm getting a little confused with the process and when 'Notification of Service' is required.

Is it fair to say, that if I receive a 'Letter of Claim' from BW Legal, I should simply send them the attached pro-forma 'Reply Form' - ticking Box D (I dispute the debt) with no further detail and then ask for a list of documents that evidences their claim (contracts with landowner, photos of signage from the day, etc.). And I should submit this form on or just before the due date specified in the letter (30 days). Is this the recommended approach?

And then only if and when I receive a summons should I then need to concern myself with the 'Notification of Service'?

In addition, after doing further research, I note that one of the PCNs relates to a friend who was a driver at the time and has now moved overseas. Should I simply identify them as the driver rather than use the Henry and POFA2012 defence, as it is unlikely that they would pursue that PCN? Do I need a supporting witness statement if I went down this path? Or is simply identifying them sufficient?

Thanks in advance

Umkomaas

And then only if and when I receive a summons should I then need to concern myself with the 'Notification of Service'?

In what context are you reading 'Notification of Service'?

You won't be getting any 'summons' - that's for the criminal court. You're potentially looking at a MCOL Claim.

In addition, after doing further research, I note that one of the PCNs relates to a friend who was a driver at the time and has now moved overseas.

You need to do this before any issue of a MCOL for this particular ticket, otherwise the keeper carries the burden of defending. So you need to formally identify the driver's details and an address for service and send this to the PPC (the NtK should have information/notification slip to enable you to do so). You additionally pass a copy of the notification to BWL.

It would help if the driver could write to confirm that he was the driver and confirm his (foreign) address for service. There is little to no chance that the PPC can or will pursue him abroad.

But don't think this will be an easy transfer of liability, you will need to be dogged in dealing with the likely outfall from the PPC/BWL in pushing it through.

Redx

the recommended approach on here is to NOT FILL IN THEIR FORMS, period !

just to issue the LBC REBUTTAL and ask for the information required under the PaP oct 2017 , which is the info NOT PROVIDED by the SAR

there wont be any "summons", because this is a civil case, not a criminal matter

any court case will be an MCOL via the Civil Court system

you can and should reply to the LOC within the 30 days window

you can name the driver, in writing, with a serviceable address (even one in another countery) at ANY TIME up until an MCOL is issued, so yes, do that now, in writing, with proof that you have done so

so if by email, copy your own email into the RECIPIENT box, as well as to the PPC (and/or their solicitors as well - more is better than less)

if by post, make a copy and attach the free CERTIFICATE OF POSTING you get from the P O Counter (not recorded , not signed for , not special delivery either)

the letter is deemed to be "delivered" 2 days later if by Royal Mail

rightlyfrustrated

Some more 'noddy' queries regarding the best approach to the expected MCOL I will be receiving. Hopefully someone can offer some sage advice, as always it will be greatly received.

1. Hypothetically, if the appeals to the Operator are based on 'keeper of the vehicle' and if the Operator has complied with the "keepers liability" process (POFA2012) does this not make it likely any claim against the 'Keeper' will be upheld? I also assume taking a position as 'keeper' in this situation would inhibit the ability to argue against the claim on an 'improper signage' defence as the 'driver' would be best suited to argue this. Is this a fair assumption? If so, then would it be best to name the driver?
   
   
   In regard to the SAR to the Operator and BW Legal, I included the following requests (but did not reference PAP October 2017):
   
   
   • contract with landowner evidencing right to issue tickets for that date range;
   • details of additional costs (e.g. legal fees, debt collector fees, etc.);
   • close up images of the signs on the day in question; and
   • any evidence the Operator intends to rely upon in legal proceedings.
   
   
2. As I have requested at the time of the SAR, I believe the PAP items requested still stand and they have 30 days from that request to provide the information requested or an explanation as to why they cannot supply the requested information. Would this assumption be correct?
   
   
3. With the LBC rebuttal, is it advisable to remind them of the previous request and the days left to provide the requested information referencing PAP and the original SAR request? Or simply refer to it not being supplied when completing the MCOL?

Regards

Rightly Frustrated