BW Legal LoC

not_the_messiah

Umkomaas said:

I found the NtK - phew. Sorry for the confusion. 

Scan and upload both sides of it and we can tell you whether there is any mileage in arguing a PoFA fail. 

Thanks. Link to NtK: https://www.dropbox.com/s/4p5wioq3pd2ghvp/BRW606DC7668DB5_000019.pdf?dl=0

Castle

You have left your name and address on the NTK

not_the_messiah

Castle said:

You have left your name and address on the NTK

Oh !!!!!! - thanks!

Coupon-mad

POFA para 8(2)f is not in that NTK.  Easy to see in two seconds flat when comparing it to the POFA link in the 2st post of the NEWBIES thread.

And no, the driver does not get named nor provides a WS.  They are not involved here but it is important to show you were not driving and state it clearly and highlight that a person can't be held liable outwith the POFA. 

The keeper appellant should append proof in their bundle that the car was insured for more than one driver, without showing the full/first names of the 'named drivers' (pretty sure this is among the WS 'evidence tips' in the NEWBIES thread 2nd post, along with things like putting an image of the yellow/black Beavis case sign - simple to Google for - next to an image of this sign, to show the huge difference in size and font size). 

Also Excel v Smith (persuasive appeal transcript from the Parking Prankster's case law pages) should be used as per all the other 'not the driver' defences and Henry Greenslade's words as an exhibit, from the UNDERSTANDING KEEPER LIABILITY section of the POPLA Annual Report 2015.

Umkomaas

Agree with CM on the PoFA point. Can you tell us the Date of Sending and the Date of Issue shown on the NtK please - you've redacted them, both important if you really want to nail No Keeper Liability down?

not_the_messiah

Umkomaas said:

Agree with CM on the PoFA point. Can you tell us the Date of Sending and the Date of Issue shown on the NtK please - you've redacted them, both important if you really want to nail No Keeper Liability down?

Thanks both

Date of Sending is 11/06/2019 and Date of Issue is 19/04/2019.

Regarding the attack mode, I don't have much of an opinion. My defence was mostly written by @Coupon-mad, so I just went with their suggestions. If you Legal Eagles think that No Keeper Liability is a strong option, I'll go with that. Would the fact that the signage (link: https://forums.moneysavingexpert.com/discussion/comment/76533894/#Comment_76533894) is woefully inadequate be a better aspect to focus on? I was also going to pursue the Abuse of Process angle, given they've added £60 to the claim. 

I've mentioned all three in my defence and I have been following the advice in this thread to pull together my evidence pack: https://forums.moneysavingexpert.com/discussion/6130456/telephone-hearings-re-parking-firm-claims-can-we-all-discuss-strategy-and-outcomes-here/p10

TIA

Coupon-mad

Date of Sending is 11/06/2019 and Date of Issue is 19/04/2019.

That scrapes in by one day on deadlines, if 19/04/2019 was the parking event day, but as already said, the wording fails.  So it's not capable of holding a keeper liable.

If you Legal Eagles think that No Keeper Liability is a strong option, I'll go with that.
Would the fact that the signage (link: https://forums.moneysavingexpert.com/discussion/comment/76533894/#Comment_76533894) is woefully inadequate be a better aspect to focus on?
I was also going to pursue the Abuse of Process angle, given they've added £60 to the claim. 

Obviously the WS and evidence adduces all of those points.  As you see in every example WS bundle - look at those put together by @keypulse and @Chefdave - and yours will have the POFA point added as well.

not_the_messiah

Hi Everyone,

I recently wrote to BWLegal and asked about the legal authority they had to add the £60 charge. Their response is as follows:

Thank you for confirming the security details.
 
As you are aware we act for ‘KBT Cornwall Ltd t/a Amtrac Security’ in relation to a parking contravention that occurred on XXXXXXXX. The parking charge notice (PCN) was issued as you failed to display a valid pay and display ticket, which was a breach of our client’s terms and conditions of parking.
 
As a result of your failure to pay the PCN the claim against you has been issued. The balance of our Client’s claim is broken down as follows:
 
                PCN: £100.00
                Contractual Costs: £60.00
                Fixed Costs: £50.00
                Fee: £25.00
                Interest: £4.30
 
Whilst your reference to other cases is noted, each case has its own merits and the above breakdown can be summarised as follows.
 
PCN
 
The PCN charge is regarded as a charge for contravening the terms and conditions. The sum payable following the issue of the PCN 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. Our Client relies on the leading authority of ParkingEye Limited v Beavis [2015] UKSC 67, where the Supreme Court held that PCN 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 Protection of Freedoms Act 2012 (POFA) also states that the maximum amount that can be recovered for the PCN itself is the amount stated on the initial PCN, in this case being £100.
 
Contractual Costs
 
We refer you to paragraph 4(6) of Schedule 4, POFA which says “Nothing in this paragraph affects any other remedy the creditor may have against the keeper of the vehicle or any other person in respect of any unpaid parking charges (but this is not to be read as permitting double recovery)”. It is our client's position that this does not prevent the parking operator from claiming debt recovery charges/contractual costs.
 
The signage in situ at the car park makes provision for our Client to recover any additional costs (Contractual Costs) incurred by them in relation to the PCN. 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 International Parking Community (IPC) code of practice.
 
The Contractual Costs provision is an express term to compensate our client for any loss or damage after the relevant period to pay the discounted amount of the PCN has lapsed– one could equate this to be treated in the same vein as a late payment charge. It is essentially a promise to pay money on the happening of specific event in the form of an indemnity vis-à-vis to protect our client from suffering financial loss arising from your conduct, or at the very least where you have control over such an event. Given that our client has had to chase the PCN, the indemnity clause has kicked in. Our client, being the innocent party, has therefore suffered financial loss as a result of your direct failure to perform your contractual obligations.
 
In any event our Client relies on section 67 of the Consumer Rights Act 2015 which confirms that the PCN charge and Contractual Costs are separate elements to this claim and the parking contract continues so far as practicable to have effect in every other respect. Therefore our Client does not accept the outcome of the cases you have provided as precedent for this case.
 
It is our client’s position that you remain liable for the PCN and the entire claim should not be struck out on the basis of Contractual Costs.
 
Fixed Costs and interest
 
Our Client is entitled to add fixed costs under the Civil Procedure Rules (CPR 45) and interest under section 69 of the County Courts Act 1974.
 
Our client is satisfied that you remain liable for the PCN and will be proceeding with the claim against you.
 

Now, I have proof from my SAR request that I did indeed have a valid ticket. How should I proceed on this?

TIA

nosferatu1001

Writing back and pointing out there was a valid ticket, as their own clients evidnce shows, renders tehir entire claim unsustainable
You require them to exaplin how a valid ticket has given rise to a charge and the course of harassment they are currently engaged in. 
Their response will be copied to the SRA as part of a complaint, that they are aware they are going behind the Beavis case - which you even acknowlegd - which makes it utterly clear that *all* costs are included in the original PCN. 

not_the_messiah

nosferatu1001 said:

Writing back and pointing out there was a valid ticket, as their own clients evidnce shows, renders tehir entire claim unsustainable
You require them to exaplin how a valid ticket has given rise to a charge and the course of harassment they are currently engaged in. 
Their response will be copied to the SRA as part of a complaint, that they are aware they are going behind the Beavis case - which you even acknowlegd - which makes it utterly clear that *all* costs are included in the original PCN. 

Thanks I did start to pen a reply, but checked myself and decided to check on here first that that was the right thing to do.