LBC BW Legal/Britannia Parking

AnotherVoice

nosferatu1001 wrote: »

So no copy of the ntk etc?
Wow
Clearly they've missed data you know they have,,meaning they've breached the dpa2018. Ico complaint time.

They included two PCNs, neither are headed as an NTK.
The first, dated 19 days after the alleged contravention, is requesting payment, discounted if paid within 14 days. It lists the times of entry and exit, and that no valid payment was made. It does not say if i have overstayed following a payment of x, it doesnt say they got my details from the DVLA.

The second, which i assume is their NTK received 15 days after that (total 34 days from alleged contravention) is a final reminder, for the full £85 informing me i am the keeper and liable for the charge, and that they wrote to the DVLA after i didn't pay the first notice.

They have not provided evidence of the contract, signage or anything else.

Not sure if any of this is relevant but sharing for info.

Edit:
Having now gone back and re-reading this, http://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted im thinking that this second notice, which i will refer to as the NTK fails to meet the requirements for POFA because it does not offer the same discounts as the driver had, does not have any appeal information, says i only have 14 days to pay and probably a number of other reasons i havent picked up on yet. Am i on the right lines here?

I know this is probably all covered in the newbies thread but id appreciate a confirmation i am on the right track.

KeithP

A Subject Access Request id a request for personal information held.

Signage and a contract copy is not personal information.

AnotherVoice

You're right of course, although i did specifically ask for that (following template letter) and other info relating to their claim and evidence of costs etc.

AnotherVoice

________________________________________
DEFENCE
________________________________________
1. The Defendant was the registered keeper of vehicle registration number XXXXXX on the material date. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all. The Defendant is unable to admit or deny being the driver, due to the years that have passed and a complete lack of evidence to support any cause of action against a registered keeper. The Claimant is put to strict proof of who was driving on the material date, given that they can only pursue a known driver because the Claimant chose not to use any of the Protection of Freedoms Act 2012 'the POFA' (Schedule 4 paragraph 9) mandatory wording on their Notice to Keepers in 2016. There can be no keeper liability without the POFA.
2. The Defendant asserts this claim is premature and in breach of the GDPR by unreasonably and unfairly processing data for a claim before the Claimant has supplied the SAR data and information requested in good faith by the Defendant, in addition it is extremely unreasonable for the claimant to store DVLA data for several years then serve a claim with no due diligence nor evidence.
3. The facts of the matter are that the Defendant has no memory of visiting the car park in question on the date in 2016, nor does the defendant admit they failed to make a valid payment. The defendant has visited the car park in question multiple times, visiting one of the two restaurants on the site. The car park layout is such that the bays directly behind the restaurants contain no signage from the claimant and appear to be for the use of restaurant customers.
4. Accordingly, it is denied that the Defendant breached any of the Claimant's purported contractual terms, whether express, implied, or by conduct.

5. The Claimant is put to strict 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, unless specifically authorised by the principal. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim.

6. The Defendant has the reasonable belief that the Claimant has not incurred £60 costs to pursue the alleged debt, the defendant denies any interest is owing to the claimant. The Protection of Freedoms Act 2012, in Schedule 4, Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper (NTK).
6a. No NTK was ever received by the Defendant, meaning the Defendant was unaware of the charge and had no way of appealing the charge.
7. The Claimant’s solicitors BW Legal are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action. The defendant has reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to the defendant’s significant detriment, instead relying on intimidating letters and threats of CCJs against the Defendant if they fail to pay their inflated demand immediately.
8. In summary, the Claimant's particulars disclose no legal basis for the sum claimed, the sum claimed is vastly inflated due to the addition of unspecified charges which the defendant asserts is a gross abuse of process and the Court is invited to dismiss the claim in its entirety and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14.

Statement of Truth:

I believe that the facts stated in this Defence are true.

Coupon-mad

The Defendant asserts this claim is premature and in breach of the GDPR, and displays a total disregard to the intentions of the CPRs and pre-action protocol for debt claims, the purpose of which is to provide data, detail, facts and evidence and narrow the issues in an effort to avoid litigation. For a firm of solicitors to issue a premature claim when a SAR is awaited, as the Defendant has no details, photographs or any data to take stock and consider his/her position, is surely an abuse of process and wholly unreasonable conduct, which will be noted when it comes to the matter of the Defendant's costs.

Added something above.

Add in something about their added costs, near the end, like this (assuming the PCN was £100):

8. The POFA, 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 being a maximum of £100 depending on the Claimant's full compliance with the POFA and establishing a breach of a 'relevant obligation' and/or 'relevant contract'.

9. This claim inflates the total to an eye-watering £2xx.xx, in a clear attempt at double recovery. The Defendant trusts that the presiding Judge will recognise this wholly unreasonable conduct as a gross abuse of process and may consider using the court's case management powers to strike the claim out of the court's own volition. The acid test is whether the conduct permits of a reasonable explanation, but the Defendant avers it cannot.

10. According to Ladak v DRC Locums UKEAT/0488/13/LA the claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration costs allegedly incurred by already renumerated clerical staff working for BW Legal in issuing robo-claims.

11. Not only are such costs not permitted (CPR 27.14) but the Defendant believes that the Claimant has not incurred legal costs at all. The Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste claims at all.

12. It was held in the Supreme Court in Parkingeye v Beavis [2015] UKSC 67 (where £85 was claimed, and no more) that a private parking charge already includes a very significant and high percentage in profit and more than covers the costs of running an automated regime of template letters. It is also a fact that debt collection agencies act on a no-win-no-fee basis for parking operators, so no such costs have been incurred in truth. Thus, there can be no 'damages' to pile on top of any parking charge claim, and the Defendant asks that the Court takes judicial notice of this repeated abuse of consumers rights and remedies, caused by parking firms artificially inflating their robo-claims.

13. It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial, the Defendant will seek further costs, pursuant to Civil Procedure Rule 27.14(2)(g).

AnotherVoice

Thanks will do.

AnotherVoice

Submitted now, will report back when i hear more.

AnotherVoice

Received another BW Legal threat today claiming i have ignored all communication and now im going to get a CCJ etc etc, and also the confirmation from the CCBC acknowledging receipt of my defence.

Still not received the SAR from BWL (only from Britannia) so today will be drafting up complaints for the ICO and SRA.

AnotherVoice

Is there such a thing as a template complaint for the SRA? had a quick scan on newbies but could not see one.
Happy to share my draft for comment.

beamerguy

AnotherVoice wrote: »

Is there such a thing as a template complaint for the SRA? had a quick scan on newbies but could not see one.
Happy to share my draft for comment.

Because SAR's will be different, it's best in your own words

However is BWL are making scary threats about giving you a CCJ, that is up to the judge not some jumped up legal who will probably lose in court

False and misleading information can be unlawdul and you are protected ..... You can report them to Trading Standards

MISLEADING AND AGGRESSIVE COMMERCIAL PRACTICES
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/721872/misleading-aggressive-commercial-practices-guidance.pdf

Part 1: Liability for misleading and aggressive
practices
The 2008 Regulations make misleading actions unlawful
(see regulation 5). An action by a trader is misleading if it
contains false information or if it is likely to mislead
the average consumer in its overall presentation.

Consumer payments and “civil recovery”
The Regulations amend the definition of a “transactional decision”
to expressly cover demands for payment from a consumer in full
or partial settlement of the consumer’s liabilities or purported
liabilities to the trader (see reg 2(1A) of the 2008 Regulations).
This means that misleading and aggressive practices in respect of
such demands would now clearly lead to both criminal sanctions
(under the 2008 Regulations)