BW legal - Letter of Claim (advice request and letter to check)

Conky_2

Good morning,

I have recently received two letters from BW Legal on behalf of their client relating to a late 2017 alleged parking contravention. The last letter is a Letter of Claim with threatened court action if I don’t respond by early/mid October 2019.

The issue involves a ticket placed upside down – not a ‘fluttered’ ticket and I think my initial appeal may have scuppered that avenue to pursue. In fairness it could have blown over, but the most logical assumption could be that it was placed upside down.

The parking provider is IPC registered and I’ve checked this. At the time I think they were with the IAS as their response to my appeal stated this.

I don’t have photos of the signage.

As stated, I initially appealed the fine once, directly to the parking provider upon receipt, with a brief reason stating that my partner had put the ticket upside down and has sight issues (she does but not that would fall under the Equality Act or registered as a disability). I’ve not said I was the driver though this could be inferred.

The requested charge from BW Legal is now £150.

I will post a copy of the salient points of their latest letter shortly.

I have submitted a SAR to the parking provider, received a response and then asked BW Legal to hold off (no response on this and its over a week ago). The SAR shows photos of the vehicle and the upside-down ticket on the dash. Clearly visible but upside down.

Aware of the Beavis case so not sure I have any room to move in court and wondering whether to just pay it at £150.

I’m not sure if the following is of any use:

In the SAR I asked for two things which have not been provided or commented upon in their response:

• A PDT machine record from that day, of payments made.
• Please advise how you have obtained my latest address as the vehicle XXXXX has never been registered at XXXXX.

Re the last point, I initially provided my address at the point of receiving the PCN in 2017 but have since moved and now receiving letters from BW legal at the new address, which has never been provided. The car that the PCN relates to has never been registered at my new address.

Also:

• BW Legal are the second legal firm to take this up – initially it was MIL Collections.
• The response to my initial appeal direct with the parking provider yielded a section that said the following:

‘Thank you for your letter of appeal with regards to Parking Charge Notice XXXXXXX, issued by us on XXXX 2017. After much deliberation and having carefully considered the evidence provided by you, XXXXX Services Ltd has decided NOT to cancel this Parking Charge Notice and therefore have rejected your appeal for the following reasons:

1. We have looked at the photographs that the operative had taken of your vehicle at a number of angles and it is clear that a valid permit or ticket to park was not displayed, therefore you were in breach of the terms and conditions of parking at this site. If it was sufficient to display the back of the ticket and one did not have to show the time and date, there would be no need for a ticket to be printed at all. With adequate signage placed around the site stating that ‘All vehicles are to display a valid permit or ticket at all times and must clearly be displayed through the front windscreen. It does not state that it is free parking for National Trust members.

When parking on private land, a motorist freely enters into an agreement to abide by the conditions of parking in return for permission to park, it is the motorist’s responsibility to ensure that he or she abides by any clearly displayed terms and conditions of parking and to ensure that a valid permit or ticket was clearly displayed. By failing to display a valid permit or ticket, the driver became liable for a parking charge notice, in accordance with the terms of parking displayed. It is the driver’s responsibility to ensure that a valid ticket or permit was clearly displayed before leaving the car park or parking area. We cannot cancel every PCN when drivers fail to abide by the terms and conditions because parking enforcement quickly becomes ineffective.'

Regarding the underlined highlighted the bold section – this was never in my appeal. Not sure if this is an oversight or just badly phrased and goes in all responses but it infers this was part of my defence and it wasn’t.

Regarding the section before (just in bold only), I did display a valid ticket through the front windscreen – just upside down. BW Legal’s comment which you’ll see in the next post says:

‘…On XXXX 2017 you breached the Terms and Conditions by Not Displaying a Valid Pay and Display Ticket.’

Not sure if there is any mileage in this?

Having heard nothing back from BW Legal re the SAR I am considering sending the below (will post in a minute) though I would be interested to hear if this went to court would my initial appeal give me no room to win. If so, I’ll pay up and moan to myself.

I have read the Newbie and BW specific threads so hope I’m not jumping in too early.

Any comments very gratefully received.

Conky

Conky_2

**Latest letter from BW Legal**

LETTER OF CLAIM

Dear XXXX
Date of Contravention: XXXX 2017
Balance Due: £150.00
Our Client: XXXX Services Ltd
Account Number: XXXX
Vehicle Registration: XXXX
Contravention Location: XXXX
Contravention Description: Not Displaying A Valid Pay And Display Ticket

We have been instructed by XXXX Services Ltd to commence legal action in the form of issuing a Claim against you in the County Court in respect of the above debt. If payment or a response is not received before XXXXXX October 2019, we are instructed to issue a Claim against you in the County Court without further notice. If you dispute this debt, please tell us why so that we can help resolve this matter.

Estimated Claim
Such legal action may result in you being liable for court fees, solicitors' costs and statutory interest which are estimated below.

Enclosures Enclosed with this letter are:
Information Sheet: a sheet explaining what to do next, including how to avoid Court action.
Reply Form: a form to complete and return containing four sections.
Income and Expenditure Form: a form to complete and return to outline your financial circumstances.

Principal Debt + Initial Legal Costs £150.00
Estimated Interest £22.32
Estimated Court Fees £25.00
Estimated Solicitors' Costs £50.00
Estimated Total £247.32

What You Need To Do Now
Payment of £150.00 or your reasons for non-payment are required by XXXXX 2019 to avoid the above legal action. If you are unable to pay the Balance in full, Our Client is willing to enter into a payment arrangement which is affordable for you taking into account your financial circumstances.

[removed how to get in touch waffle]

Pre-Action Protocol For Debt Claims
This letter is being sent to you in accordance with the Civil Procedure Rules Pre-Action Protocol for debt claims, a link to which is contained on the foot of the enclosed information sheet. In particular, we refer you to paragraph. which sets out the expectations of the court in terms of complying with the Protocol.

Particulars of Debt
On XXXXXX, you were granted a limited contractual licence to enter the land known as ("Site"), which is managed and operated by Our Client. In return, you were to abide by certain terms and conditions ("Terms and Conditions") which were prominently displayed on the signage erected in situ by Our Client. On XXXXXX, 2017, you breached the Terms and Conditions by Not Displaying A Valid Pay And Display Ticket ("Breach"). The Breach resulted in Our Client issuing a Parking Charge Notice "PCN on XXXXXX, which, despite our clients attempts to engage with you and agree a suitable payment arrangement, remains unpaid.

Statement of Account
The following summary statement shows the transactions applied to your account since the PCN was issued by Our Client:

Statement For Period: XXXXXX, 2017 to XXXXXX September 2019
Principle Balance + Initial Legal Costs 150.00
Total Payments £0.00
Total Adjustments £0.00
Total Interest £0.00
Current Balance £150.00

Our Client's entitlement to the total Debt Recovery Costs referred to in the table above is expressed in the Terms and Conditions, which you accepted upon entering the Site. Such costs are recoverable in any event under the relevant Parking Code(s) of Practice. Warning of Court Proceedings If payment or a response is not received from you by XXX October 2019, we are instructed to issue a County Court Claim without further reference to you, together with applying the interest, fees and costs highlighted on the previous page.

If payment or a response is not received following a County Court Claim, a County Court Judgment "CCJ") may be entered against you. If a CCJ were to be entered, it would be recorded on your credit file for 6 years pay the Judgment debt in full within a month of the CCJ being entered. A CCJ on your credit file may affect your ability to obtain future credit. If a CCJ were to be entered and you were to fail to comply with the CCJ order, we may apply to the County Court to take further enforcement action which you would be notified of separately.

Conky_2

** Suggested response to BW Legal**
[Will put on headed paper etc]

I write further to your Letter of Claim dated XXXXX.

Your letter contains insufficient detail of the claim and fails to provide copies of evidence your client places reliance upon.

Your client must know that on 01 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.

Your letter lacks specificity and breaches both the requirements of the previously applicable Practice Direction - Pre-Action Conduct and the new Pre-Action Protocol for Debt Claims (paragraphs 6 and 7) 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.

As solicitors you must surely be familiar with the requirements of both the Practice Direction applicable pre-1 October and the Protocol which applies thereafter (and your client, as a serial litigator of small claims, should likewise be aware of them). As you (and your client) 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 of Solicitors are sending a consumer a vague and unevidenced 'Letter of Claim' in complete ignorance of the pre-existing Practice Direction and the new Protocol.

Nobody, including your client, is immune from the requirements and obligations of the Practice Direction and now the Protocol.

I require your client to comply with its obligations by sending me the following information/documents:

1. An explanation of the cause of action [not sure if needed as they have outlined this already?]
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. Is the claim for a contractual breach? If so, what is the date of the agreement? The names of the parties to it and provide to me a copy of that contract.
5. Is the claim for trespass? If so, provide details.
6. A plan showing where any signs were displayed.
7. Details of the signs displayed (size of sign, size of font, height at which displayed)
8. Provide details as to how my new address, XXXXXX, has been identified.
9. Prior to my direct request to your client in my Subject Access Request of XXXX date, provide A PDT machine record from that day, of payments made (this point has not been responded to or acknowledged to date).

If your client does not provide me with this information then I put you on notice that I will be relying on the cases of Webb Resolutions Ltd v Waller Needham & Green [2012] EWHC 3529 (Ch), Daejan Investments Limited v The Park West Club Limited (Part 20) ; Buxton Associates [2003] EWHC 2872, Charles Church Developments Ltd v Stent Foundations Limited & Peter Dann Limited [2007] EWHC 855 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 of the Practice Direction, as referred to in paragraph 7.2 of the Protocol.

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.

Please either reply via my XXXXX postal address (my address for service) as outlined above.

Yours faithfully

beamerguy

I think we are all starting to feel very sorry about this rubbish that BWLegal sends out ????

FACTS
POFA2012, the law, makes it very clear that any extra charges are not permitted
This additional charge is not recoverable under the protection of freedoms act 2012, Schedule 4

This is why BWLegal are being spanked in court for ABUSE OF PROCESS

Abuse of Process ... District Judge tells BWLegal
https://forums.moneysavingexpert.com/discussion/6014081/abuse-of-process-district-judge-tells-bwlegal

Couple to this they are attempting to circumvent the courts own rules of double recovery.

BWLegal are ignoring the Supreme Court who said in the Beavis case
198. ''...The charge has to be and is set at a level which enables the managers to recover the costs of operating the scheme...''
IE: The charge includes the costs to recover the debt
<<< All part of operating the scheme

If payment or a response is not received following a County Court Claim, a County Court Judgment "CCJ") may be entered against you. <<<<<< That's only if they win. But they will be spanked again for abuse of process and you can claim costs against them.

The most important point to ask is ON WHAT AUTHORITY DO THEY HAVE TO CIRCUMVENT THE LAW.
So far they have failed to answer but a judge can ask the same question ...... ???

Such a response should be reported to the SRA as the courts are now telling BWL that what they are doing is abuse of process
BWLegal are now ignoring the courts with continued mal-practice

Castle

Conky wrote: »

Our Client's entitlement to the total Debt Recovery Costs referred to in the table above is expressed in the Terms and Conditions, which you accepted upon entering the Site. Such costs are recoverable in any event under the relevant Parking Code(s) of Practice.

Amongst all the other standard rubbish that statement alone needs to be reported to the SRA as it's deliberately false and misleading.

beamerguy

Castle wrote: »

Amongst all the other standard rubbish that statement alone needs to be reported to the SRA as it's deliberately false and misleading.

Totally agree, BWLegal and the other rabble should be investigated.

Such costs are recoverable in any event under the relevant Parking Code(s) of Practice

Are they referring to the BPA/IPC code of practice which is only applicable to parking operators and NOT the public

The public relies on the law POFA2012

The_Deep

Nine times out of ten of these tickets are scams, this one particularly so, so consider complaining to your MP.

Parliament is well aware of the MO of these private parking companies, many of whom are former clampers, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, persistent offenders denied access to the DVLA database and unable to operate.

Hopefully life will become impossible for the worst of these scammers, but until this is done you should still complain to your MP, citing the new legislation.

http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies

Conky_2

These responses are great thanks. Really appreciated!

Is anyone also able to comment on the appropriateness of the letter/if it is worth pursuing the matter particular to my case?

beamerguy

Conky wrote: »

These responses are great thanks. Really appreciated!

Is anyone also able to comment on the appropriateness of the letter/if it is worth pursuing the matter particular to my case?

You do need to ask them which codes they refer to
Such costs are recoverable in any event under the relevant Parking Code(s) of Practice

If they ignore you, there is always the judge.

The_Deep

In fairness it could have blown over, but the most logical assumption could be that it was placed upside down.

Placed upside down or blown over by the wind, it is still a claim that a judge is likely to dismiss as a trifle. The Law does not concern itself with trifles.

https://en.wikipedia.org/wiki/De_minimis

This, along with abuse of process, and misrepresentation , is very likely to get this thrown out by a judge imo.

They would not be wise to take this to court, but wisdom is in short supply in this industry. Place your faith in the judge's common sense.

Conky_2

Hi everyone,

I've had a response to my above letter of the 30th September from BW Legal.

Can any one assist with a response as at this juncture, I'm unsure what to say.

Also:

Regarding point 8 - is this lawful, the vehicle that this alleged charge relates to was never registered at my new address.

Point 9 - my ticket was photographed upside down and it has a stamped long code on it which mirrors a code on the front. I do therefore think it is relevant to provide me with this information.

Any assistance with a written response would be gratefully received.

---

Our Client: XXXXXX Ltd
Account Number: XXXXXX
Balance Due: XXXXXX

We write in reference to the above and your recent letter.

We reject your claim that we are breaking any practice direction or protocols and note your lack specific objections to our letter of claim.

In response to the points raised in your recent correspondence:

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 without displaying a valid Pay and Display Ticket.
   
2. Our Client is pursuing you as the Registered Keeper of the vehicle. As the Registered Keeper of the vehicle, and given that you had not provided Our Client with the full name and serviceable address of the driver within 28 days from the date of the Parking Charge Notice, Our Client is able to hold you liable for the unpaid parking charge under Schedule 4 of the Protection of Freedoms Act 2012.
   
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 without displaying a valid Pay and Display Ticket. The vehicle was observed at XXXXXX. The vehicle was observed by the Parking Attendant at XXXXXX.
   
   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.
   
   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. We have enclosed a picture of the signage at the site for your records.
   
   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 £50.00 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. Our client is not pursuing you on a basis of trespass.
   
6. We have enclosed a site plan as requested.
   
7. As established members of the International Parking Community, 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. We have enclosed a photograph of a sign mentioned previously.
   
8. BW Legal undertook trace activities through a search using credit reference agencies which may leave a "soft" search result not visible to lenders. This gave us your new address
9. Your request for details from the ticket machine are not relevant to this contravention, as whether or not a ticket was purchased is not relevant to this case as no ticket was displayed in the vehicle with the details of the ticket showing. We would also point out that this isn't a car park which requires you to enter your registration and therefore there would be no way to tie any tickets purchased to your vehicle and therefore no relevant information could be gleamed from this data. We hope this answers your queries.
   
10. We would suggest that you make a payment proposal within 14 days to avoid any further action.

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