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Letter of claim from BW Legal - Getting serious HELP!
JG1977
Posts: 7 Forumite
I have recently started receiving postal correspondence from BW legal over a parking fine for an event in 2015 relating to an overstayed welcome in a free car park run by TPS. TPS challenged this back in 2015 and it got as far as a LBC in 2016, which i responded to with a template letter based on the then legal requirements, as advised on these forums. All went quiet until recently. As I had done before - I ignored the first flurry of letters requesting payment, as advised on the forums and then eventually received a LBC from BW Legal a couple of weeks ago. I followed the latest advice on the MSE forum and - using a template letter as a base - prepared a suitable response, which I submitted via email last week. I have a response, that seems to suggest that they are not going to back down on this occasion and am now unsure on how to progress. I want to keep fighting this but need someone in the know to look over the contents of their response. I have noticed one issue already - the amount of the original charge - which was £70 and not £100. I am hoping there are many more faults and i can push back, but not sure? Please can I have some advice on what I should do next?!
Here is the redacted email thread. The email also included attachments of the photo's of the car entering and leaving the car park and copies of the original parking charge notices from TPS dated from October 2015:
Good Morning
Thank you for your email, the contents of which we note.
Please see below our response to your points raised.
1. Our Client's cause of action is that you breached the Terms and Conditions of the contract which you entered into by parking your vehicle in the car park, by parking in an area controlled by our client longer than the maximum time permitted.
2. Our Client is pursuing you as the registered keeper of the vehicle on the date of the contravention. Schedule 4 of the Protection of Freedoms Act 2012 sets out the procedure that should be followed if the registered keeper was not driving the vehicle on the date which the Parking Charge Notice (PCN) was issued. It details that the keeper has 28 days from the date of the Notice to Keeper to disclose driver details. As these details were not forthcoming, Our Client is entitled to purse you as the registered keeper of the vehicle.
Without prejudice to the above, we would be grateful if you would furnish us with details, including the full name and address, of the alleged driver of the vehicle on the contravention date. Upon receipt of this information, we will take further instructions from Our Client and revert back to you in due course. If you withhold this information, we reserve the right to draw the Court’s attention (if County Court proceedings have been issued) to your conduct which may be perceived to be unreasonable in refusing to comply with our reasonable request for information. We also reserve Our Client’s position in terms of costs.
3. Our Client does intend to rely Schedule 4 of Protection of Freedoms Act 2012.
4. The details of the claim are that your vehicle parked in an area controlled by our client longer than the maximum time permitted. The vehicle was observed at St. Peter's Retail, Burton on Trent car park on 27 September 2015. The vehicle was observed by the Automatic Number Plate Recognition (ANPR) cameras from 10:54 to 13:50.
The £100.00 charge is regarded as a charge for contravening the Terms and Conditions. The sum payable following the issue of the Parking Charge Notice occurs on the happening of a specific event (i.e. a material breach of the Terms and Conditions) and is therefore a core term of Our Client’s contract with you.
It is irrelevant whether or not the charge as displayed bears any relation to the cost for parking (even where there is no cost involved). Our Client relies on the leading authority of ParkingEye Limited v Beavis [2015] UKSC 67, where the Supreme Court held that Parking Charge Notice charges, like this charge, serve a legitimate commercial interest. The relevant car parking Codes of Practice, also give guidance that £100.00 is a reasonable sum to charge.
The signage in situ makes provision for Our Client to recover any additional costs (Contractual Costs) incurred by them in relation to the Parking Charge Notice. The Contractual Costs referred to above formed part of the Terms and Conditions (of the parking contract) which were accepted by you in the course of staying at the car park. Save for the fact that the sum of £60.00 attributable towards these costs are entirely reasonable for nature and type of work involved in recovering the parking charge, such costs are recoverable under the relevant parking code of practice.
5. Please be aware that the contract between Our Client and the landowner is a legally privileged document which you have no right to inspect. However, should this matter progress to court, the contract will be adduced as evidence.
6. The Parking Charge Notice which you have been issued with is for a breach of contract. The only right which you have to enter the land in question are on the Terms and Conditions which apply. The signage at the car park is prominent and the Terms and Conditions are clearly displayed. It is unnecessary to apply an analysis of offer, acceptance and consideration quite simply because the contract was formed on mutual promises. By parking your vehicle in the car park you have entered into a unilateral contract with Our Client. Acceptance does not have to be communicated, the act of parking your vehicle is acceptance.
7. As established members of the British Parking Association, Our Client adheres to their Code of Practice for Private Enforcement on Private Land and Unregulated Car Parks ('Code of Practice'). This Code of Practice gives recommendations in regards to the signage within the car park. The signs within the car park comply with the recommendations in the Code of Practice and are therefore deemed reasonable.
8. Our Client is under no obligation to supply this.
9. £100.00 remains unpaid for the Parking Charge Notice. Additionally, you are also liable for our £60.00 instructions fee as your file has been passed to us.
As a result of the breach, Our Client is well within their contractual rights to issue the Parking Charge Notice and take all necessary steps (including bringing legal proceedings) to recover the outstanding charge. Please note that Our Client will not accept a settlement for this Account, therefore the Outstanding Balance remains Due and Owing.
We trust that they above resolves your outstanding query. It is important that you contact us within 14 days of the date on this letter to avoid further collections activity on this Account. Should you not be willing to arrange an affordable repayment plan for this Outstanding Balance we strongly recommend that you seek your own independent legal advice.
Should you have any queries please contact our office on 0113 487 0432 or alternatively sign in or register on our Online Customer Portal at
Kind Regards,
bwlegal
Dear Sirs,
Thank you for your letter dated 17th June 2019.
When your client's prior debt collectors first contacted me in 2016, I asked them for legally compliant correspondence containing details of the basis upon which money was being claimed. No such evidence has been provided.
Three years later, you have now sent a Letter of Claim on their behalf. However, once again, your letter contains insufficient detail of the claim and, again, fails to provide the detail which I requested in July 2016. Your letter does not even state the cause of action. Nor does it contain any mention of what evidence your client intends to rely on, or enclose copies of such evidence.
Your client must know that on the 1st October 2017 a new protocol is applicable to debt claims. Since proceedings have not yet been issued, the new protocol clearly applies and must be complied with. As you must know, the Practice Direction and Protocol bind all potential litigants, whatever the size or type of the claim. Its express purpose is to assist parties in understanding the claim and their respective positions in relation to it, to enable parties to take stock of their positions and to negotiate a settlement, or at least narrow the issues, without incurring the costs of court proceedings or using up valuable court time. It is astounding that a firm such as yourselves are sending a consumer a vague and un-evidenced 'Letter before Claim' in complete ignorance of the pre-existing Practice Direction and the new Protocol.
Your letter clearly breaches both the requirements of the previously applicable Practice Direction - Pre-Action Conduct (paragraphs 6(a) and 6(c)) and the new Pre-Action Protocol for Debt Claims (paragraphs 3.1(a)-(d), 5.1 and 5.2. Please treat this letter as a formal request for all of the documents / information that the protocol now requires your client to provide. Your client must not issue proceedings without complying with that protocol. I reserve the right to draw any failure of the Claimant to comply with the protocol to the attention of the court and to ask the court to stay the claim and order your client to comply with its pre-action obligations, and when costs come to be considered.
Nobody, including your client, is immune from the requirements and obligations of the Practice Direction.
I require your client to comply with its obligations by sending me the following information/documents:
1. An explanation of the cause of action.
2. Whether they are pursuing me as driver or keeper.
3. Whether they are relying on the provisions of Schedule 4 of POFA 2012.
4. What the details of the claim are (for how long the car was alleged parked, how the monies. being claimed arose and have been calculated, what contractual breach (if any) is being claimed)
5. A copy of the contract with the landowner under which they assert authority to bring the claim.
6. A copy of any alleged contract with the driver.
7. A plan showing where any signs were displayed.
8. Details of the signs displayed (size of sign, size of font, height at which displayed).
9. If they have added anything on to the original charge, what that represents and how it has been calculated.
I am clearly entitled to this information under paragraphs 6(a) and 6(c) of the Practice Direction. I also need it in order to comply with my own obligations under paragraph 6(b).
If your client does not provide me with this information then I put you on notice that I will be relying on the following cases in asking the court to impose sanctions on your client and to order a stay of the proceedings, pursuant to paragraphs 13 ,15(b) and (c) and 16.
Webb Resolutions Ltd v Waller Needham & Green [2012] EWHC 3529
Daejan Investments Limited v The Park West Club Limited EWCH 8211
Buxton Associates [2003] EWHC 2872
Charles Church Developments Ltd v Stent Foundations Limited & Peter Dann Limited [2007] EWHC 855
I will draw attention to the court the fact that I expressly requested this information back in July 2016, yet your client has still to provide it.
Until your client has complied with its obligations and provided this information, I am unable to respond properly to the alleged claim and to consider my position in relation to it, and it is entirely premature (and a waste of costs and court time) for your client to issue proceedings. Should your client do so, then I will seek an immediate stay pursuant to paragraph 15(b) of the Practice Direction and an order that this information is provided.
I look forward to your response.
Here is the redacted email thread. The email also included attachments of the photo's of the car entering and leaving the car park and copies of the original parking charge notices from TPS dated from October 2015:
Good Morning
Thank you for your email, the contents of which we note.
Please see below our response to your points raised.
1. Our Client's cause of action is that you breached the Terms and Conditions of the contract which you entered into by parking your vehicle in the car park, by parking in an area controlled by our client longer than the maximum time permitted.
2. Our Client is pursuing you as the registered keeper of the vehicle on the date of the contravention. Schedule 4 of the Protection of Freedoms Act 2012 sets out the procedure that should be followed if the registered keeper was not driving the vehicle on the date which the Parking Charge Notice (PCN) was issued. It details that the keeper has 28 days from the date of the Notice to Keeper to disclose driver details. As these details were not forthcoming, Our Client is entitled to purse you as the registered keeper of the vehicle.
Without prejudice to the above, we would be grateful if you would furnish us with details, including the full name and address, of the alleged driver of the vehicle on the contravention date. Upon receipt of this information, we will take further instructions from Our Client and revert back to you in due course. If you withhold this information, we reserve the right to draw the Court’s attention (if County Court proceedings have been issued) to your conduct which may be perceived to be unreasonable in refusing to comply with our reasonable request for information. We also reserve Our Client’s position in terms of costs.
3. Our Client does intend to rely Schedule 4 of Protection of Freedoms Act 2012.
4. The details of the claim are that your vehicle parked in an area controlled by our client longer than the maximum time permitted. The vehicle was observed at St. Peter's Retail, Burton on Trent car park on 27 September 2015. The vehicle was observed by the Automatic Number Plate Recognition (ANPR) cameras from 10:54 to 13:50.
The £100.00 charge is regarded as a charge for contravening the Terms and Conditions. The sum payable following the issue of the Parking Charge Notice occurs on the happening of a specific event (i.e. a material breach of the Terms and Conditions) and is therefore a core term of Our Client’s contract with you.
It is irrelevant whether or not the charge as displayed bears any relation to the cost for parking (even where there is no cost involved). Our Client relies on the leading authority of ParkingEye Limited v Beavis [2015] UKSC 67, where the Supreme Court held that Parking Charge Notice charges, like this charge, serve a legitimate commercial interest. The relevant car parking Codes of Practice, also give guidance that £100.00 is a reasonable sum to charge.
The signage in situ makes provision for Our Client to recover any additional costs (Contractual Costs) incurred by them in relation to the Parking Charge Notice. The Contractual Costs referred to above formed part of the Terms and Conditions (of the parking contract) which were accepted by you in the course of staying at the car park. Save for the fact that the sum of £60.00 attributable towards these costs are entirely reasonable for nature and type of work involved in recovering the parking charge, such costs are recoverable under the relevant parking code of practice.
5. Please be aware that the contract between Our Client and the landowner is a legally privileged document which you have no right to inspect. However, should this matter progress to court, the contract will be adduced as evidence.
6. The Parking Charge Notice which you have been issued with is for a breach of contract. The only right which you have to enter the land in question are on the Terms and Conditions which apply. The signage at the car park is prominent and the Terms and Conditions are clearly displayed. It is unnecessary to apply an analysis of offer, acceptance and consideration quite simply because the contract was formed on mutual promises. By parking your vehicle in the car park you have entered into a unilateral contract with Our Client. Acceptance does not have to be communicated, the act of parking your vehicle is acceptance.
7. As established members of the British Parking Association, Our Client adheres to their Code of Practice for Private Enforcement on Private Land and Unregulated Car Parks ('Code of Practice'). This Code of Practice gives recommendations in regards to the signage within the car park. The signs within the car park comply with the recommendations in the Code of Practice and are therefore deemed reasonable.
8. Our Client is under no obligation to supply this.
9. £100.00 remains unpaid for the Parking Charge Notice. Additionally, you are also liable for our £60.00 instructions fee as your file has been passed to us.
As a result of the breach, Our Client is well within their contractual rights to issue the Parking Charge Notice and take all necessary steps (including bringing legal proceedings) to recover the outstanding charge. Please note that Our Client will not accept a settlement for this Account, therefore the Outstanding Balance remains Due and Owing.
We trust that they above resolves your outstanding query. It is important that you contact us within 14 days of the date on this letter to avoid further collections activity on this Account. Should you not be willing to arrange an affordable repayment plan for this Outstanding Balance we strongly recommend that you seek your own independent legal advice.
Should you have any queries please contact our office on 0113 487 0432 or alternatively sign in or register on our Online Customer Portal at
Kind Regards,
bwlegal
Dear Sirs,
Thank you for your letter dated 17th June 2019.
When your client's prior debt collectors first contacted me in 2016, I asked them for legally compliant correspondence containing details of the basis upon which money was being claimed. No such evidence has been provided.
Three years later, you have now sent a Letter of Claim on their behalf. However, once again, your letter contains insufficient detail of the claim and, again, fails to provide the detail which I requested in July 2016. Your letter does not even state the cause of action. Nor does it contain any mention of what evidence your client intends to rely on, or enclose copies of such evidence.
Your client must know that on the 1st October 2017 a new protocol is applicable to debt claims. Since proceedings have not yet been issued, the new protocol clearly applies and must be complied with. As you must know, the Practice Direction and Protocol bind all potential litigants, whatever the size or type of the claim. Its express purpose is to assist parties in understanding the claim and their respective positions in relation to it, to enable parties to take stock of their positions and to negotiate a settlement, or at least narrow the issues, without incurring the costs of court proceedings or using up valuable court time. It is astounding that a firm such as yourselves are sending a consumer a vague and un-evidenced 'Letter before Claim' in complete ignorance of the pre-existing Practice Direction and the new Protocol.
Your letter clearly breaches both the requirements of the previously applicable Practice Direction - Pre-Action Conduct (paragraphs 6(a) and 6(c)) and the new Pre-Action Protocol for Debt Claims (paragraphs 3.1(a)-(d), 5.1 and 5.2. Please treat this letter as a formal request for all of the documents / information that the protocol now requires your client to provide. Your client must not issue proceedings without complying with that protocol. I reserve the right to draw any failure of the Claimant to comply with the protocol to the attention of the court and to ask the court to stay the claim and order your client to comply with its pre-action obligations, and when costs come to be considered.
Nobody, including your client, is immune from the requirements and obligations of the Practice Direction.
I require your client to comply with its obligations by sending me the following information/documents:
1. An explanation of the cause of action.
2. Whether they are pursuing me as driver or keeper.
3. Whether they are relying on the provisions of Schedule 4 of POFA 2012.
4. What the details of the claim are (for how long the car was alleged parked, how the monies. being claimed arose and have been calculated, what contractual breach (if any) is being claimed)
5. A copy of the contract with the landowner under which they assert authority to bring the claim.
6. A copy of any alleged contract with the driver.
7. A plan showing where any signs were displayed.
8. Details of the signs displayed (size of sign, size of font, height at which displayed).
9. If they have added anything on to the original charge, what that represents and how it has been calculated.
I am clearly entitled to this information under paragraphs 6(a) and 6(c) of the Practice Direction. I also need it in order to comply with my own obligations under paragraph 6(b).
If your client does not provide me with this information then I put you on notice that I will be relying on the following cases in asking the court to impose sanctions on your client and to order a stay of the proceedings, pursuant to paragraphs 13 ,15(b) and (c) and 16.
Webb Resolutions Ltd v Waller Needham & Green [2012] EWHC 3529
Daejan Investments Limited v The Park West Club Limited EWCH 8211
Buxton Associates [2003] EWHC 2872
Charles Church Developments Ltd v Stent Foundations Limited & Peter Dann Limited [2007] EWHC 855
I will draw attention to the court the fact that I expressly requested this information back in July 2016, yet your client has still to provide it.
Until your client has complied with its obligations and provided this information, I am unable to respond properly to the alleged claim and to consider my position in relation to it, and it is entirely premature (and a waste of costs and court time) for your client to issue proceedings. Should your client do so, then I will seek an immediate stay pursuant to paragraph 15(b) of the Practice Direction and an order that this information is provided.
I look forward to your response.
0
Comments
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Immediately remove your personal information, including your reference from the latter half of your post (your email to them).
* Also they are pursuing you as the Registered Keeper, not the Driver... So it would make sense to also remove any reference to who the Driver was in your post...
I would also suggest creating another account that isn't using your real name. (It is literally the first thing you're told NOT to do in the NEWBIES thread).
TPS monitor this forum actively and attempt to intimidate users by responding to them using their forum name, but it is fairly obvious who you are now...
P.S. Hi Tito, what's the weather like in Hell today?0 -
Firstly, REMOVE THE REFERENCE NUMBERS IN THE EMAILS and remove your NAME FROM THE BOTTOM OF YOUR EMAIL to remain unidentified by the PPC's.
Secondly, start reading up on the newbies thread on https://forums.moneysavingexpert.com/discussion/4816822/newbies-private-parking-ticket-old-or-new-read-these-faqs-first-thankyou , read the 2nd post as it relates to you now. It will guide you on how to handle a LBC step by step.
I would say it is time to start reading up on defences for similar cases, re visit the car park and take pictures of the poor signage and use this in your defence. Begin writing up your defence from now, one of the points you can include is how BWLegal are including a fake add-on charge of £60 also known as ABUSE OF PROCESS. - Read up more on it here where they got whooped in court https://forums.moneysavingexpert.com/discussion/6014081/abuse-of-process-district-judge-tells-bwlegal0 -
Email a SAR to the DPO at TPS asap with a copy of the V5C attached as proof of ID and get all Docs , pics and data from TPS, including all PCN,s and letters etc
Edit your posts, remove personal info and get the username anonymised as well0 -
Thanks for the swift advice on personal details...very new to the forum posting world and did not realise the implications. So obvious now! Doh... I have edited to remove details and will amend my profile name.0
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We are really unsure who writes this rubbish from BWLegal ???
Our Client relies on the leading authority of ParkingEye Limited v Beavis [2015] UKSC 67, where the Supreme Court held that Parking Charge Notice charges, like this charge, serve a legitimate commercial interest. The relevant car parking Codes of Practice, also give guidance that £100.00 is a reasonable sum to charge.
Beavis has nothing to do with your case. But ..... it's true that the authority did say that £100 was a reasonable sum to charge. They DID NOT say that a fake £60 could be added at a whim
The signage in situ makes provision for Our Client to recover any additional costs (Contractual Costs) incurred by them in relation to the Parking Charge Notice. The Contractual Costs referred to above formed part of the Terms and Conditions (of the parking contract) which were accepted by you in the course of staying at the car park. Save for the fact that the sum of £60.00 attributable towards these costs are entirely reasonable for nature and type of work involved in recovering the parking charge, such costs are recoverable under the relevant parking code of practice.
They mention contractual costs ? Unless the fake £60 is easliy seen, as the parking charge, then it's probably hidden away in the small terms and conditions. You need to photo these signs
BUT .... THEY THEN GO ON THE SAY .......
Additionally, you are also liable for our £60.00 instructions fee as your file has been passed to us.
SO WHAT IS IT BWLegal ??? Contractual costs or your fee ???
A judge might ask the same question just as much as a judge may well strike out the fake claim for ABUSE OF PROCESS.
Two Judges have done just this to BWLegal recently and you must make this very clear to a judge making reference to the two cases of ABUSE OF PROCESS
READ HERE:
Abuse of Process ... District Judge tells BWLegal
https://forums.moneysavingexpert.com/discussion/6022785/letter-of-claim-from-bw-legal-getting-serious-help
And when it comes to ABUSE OF PROCESS, rest assured the judges are an authority on this0 -
Jez_Greene wrote: »Thanks for the swift advice on personal details...very new to the forum posting world and did not realise the implications. So obvious now! Doh... I have edited to remove details and will amend my profile name.
You'll also want to amend the second sentence of your first paragraph which discloses who the Driver is.0 -
In your SAR (as advised by Redx in post #4), make sure to ask for a copy of the original Notice to Keeper. After a computer system upgrade, we understand that head honcho - Tito, lost lots of the records on the previous system :doh: and can't supply that vital* document.
* Only 'vital' if there has been no identification of the driver made in previous correspondence.Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.Private Parking Firms - Killing the High Street0 -
This event is 4 years ago now. Can someone still email a SAR to the DPO at TPS even if they are no longer the registered keeper and no longer have the V5?0
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Of course.0
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what would be the proof of ID without a V5?0
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