BW Legal LoC

beamerguy

not_the_messiah said:

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

As nosferatu1001 says above.   At least you got an answer albiet more geeky stuff

Dear Sirs,

Further to your letter dated xxx.   You appear to be in total denial of reality.  The reality is that you have not once explained your legal authority to add £60 ?  You are in denial of POFA2012, you are in denial of the Supreme court ruling 198, you are in denial of the S71(2) of the Consumer Rights Act 2015 and you are in denial of the Court's own ruling regarding double recovery.

You state that your Client does not accept the outcome of the cases you have provided as precedent for this case?
That indeed is to be expected but as you continue to add unlawful amounts to your claim, your client should expect that this will be yet another case that will rest on Abuse of Process. It will not be a court that sets a precedent but your persistence in adding an amount of £60 when you fail entirely to explain your legal authority ?

You make reference to the IPC code of practice as if this was lawful when infact the code invites members only to act in an unlawful manner.  This code is not for a motorist and is not a contract or an excuse for legal authority

Furthermore, I require you to explain how a valid ticket has given rise to a charge and the course of harassment you are currently engaged in.

I of course reserve the right to show this letter and your letter to the court and will require you or your agent to explain your legal authority to a judge.  I will also highlight to the court the numerous cases you bring whereby the courts strike out such cases as Abuse of process for adding unlawful amounts.

The opportunity is still available for you to discontinue and you bear your own own costs as I will bear my own costs.  If you wish to proceed to court, I will expect you to comply with the new CPR rules and in particular your legal authority to add amounts you are not entitled to. As you will expect, I will claim costs against your client.

Your urgent response is required as I have no desire to play ping pong letters with you

Yours faithfully,

not_the_messiah

Thanks @beamerguy

nosferatu1001

Show us the draft here, because obv. youve seen their response

not_the_messiah

nosferatu1001 said:

Show us the draft here, because obv. youve seen their response

Seems I jumped the gun a bit - oops. Off the back of your reply, I sent the following:

Hi Olivia,

Thank you for your reply.

I am rather confused as to the reason for issuing the PCN however as there was a valid ticket displayed, as shown in the photographs provided by your client, in response to my SAR request.

I would therefore require you to exaplin how a valid ticket has given rise to a charge and the course of harassment that you are currently engaged in.

 
You should note that any response I receive will be copied to the SRA as part of a complaint.

Further, you must surely be aware that they are aware that you are going behind the Beavis case - ackknowleged by myself in my past correspondance - which makes it utterly clear that *all* costs are included in the original PCN.

Your Faithfully

After BG's reply, I then followed up with his draft, changing the obvious details.

nosferatu1001

....yeah that was a copy and paste and not formatted to read as something to the lawyers at all! 

not_the_messiah

nosferatu1001 said:

....yeah that was a copy and paste and not formatted to read as something to the lawyers at all! 

No worries!

Coupon-mad

The main problem they have in trying to use that part of the CRA, IMHO, is that, even if the 'costs' fall away and yet they reckon they can still pursue the £100 PCN itself, then that £100 is unsupported by the rationale that upheld the £85 PCN in the Beavis case. 

So, how exactly are PPCs gonna justify their £100 PCN if they admit it DOESN'T include operational costs?   GPEOL?!

not_the_messiah

Hi Everyone!

Another one bites the dust!

Thank you for your email.

Since your last contact we have been discussing the matter further with our Client and were waiting to receive a full response from them before replying to your emails. After these discussions it was agreed that this matter should be discontinued and a letter was sent out to you on 1 May 2020 to inform you of this.

 

Please see the attached copy of our letter and notice of discontinuance in case you did not receive it.

The court have been informed accordingly and no further action will be taken against you.

Thank you for everyone's input up till now - very much appreciated

So based on this, I assume it is worth pursuing for costs? What about pursuing in the small claims court along the lines of what was suggested by @zhonguonuren here: https://forums.moneysavingexpert.com/discussion/comment/77059614/#Comment_77059614

Thanks again all!

beamerguy

That's good

So, can we assume that the letter above had the right result ?

not_the_messiah

beamerguy said:

That's good

So, can we assume that the letter above had the right result ?

Yep - certainly appears to have done