BW Legal LBC

Sistemax

Good morning all,
Have received an LBC from BW Legal (shock) and have been following numerous threads about them including the Newbies thread and will be reading the various links for defences posted on that thread and using them to draft up my own defence when I do receive the court summons. 
As a background:
I received a few letters from debt collectors around June 2019 relating to two unpaid PCN's from April 2019 stating that the driver parked in a manner which they became liable for a parking charge. Essentially, the driver parked without paying for the period of parking whilst visiting a bar, I have since gone back to view the signage placed around this car park and it is most certainly confusing. Right at the entrance there is a sign stating parking is for patrons only, followed by a list of shops including the bar that was visited during the parking period - there is also bank statements to prove that the bar was attended by the driver. On top of this, there is further signs near a coin payment machine that states vehicle registration must be entered at the terminals inside 2 restaurants and the gym for free parking, but nothing mentioned about the bar - whether it is free parking or not. 

The appeal period was missed as I had recently moved house and had not yet updated my address with the DVLA therefore when Premier Park Ltd (who own the car park) looked up my details, they found my old address just before I had updated it and therefore sent all correspondence to this address meaning I had no idea about any of this until the debt recovery letters started popping through at my new address. Am well aware that I should have updated my details quicker at the DVLA, but unfortunately that boat is long sailed so I followed the advice from this thread about ignoring all debt collector letters until they hit you with an LBC.

I initially responded to BW Legal with a similar response used in this thread on reply #8 > https://forums.moneysavingexpert.com/discussion/5862411/bw-legal-letter-of-claim/p1 and typically they responded back with a template of their own that had a few errors in. Firstly they attached photographic evidence of the car, as well as the NTK's sent, however only included this evidence relating to ONE of the PCN's they're chasing. No evidence of the second, however they still claim they're chasing £200 for the PCN (before adding on their 'legal fees') and also stated in several occasions that "you parked your vehicle here" but are coming after me as registered keeper under Schedule 4 of the PFA2012, without providing any evidence for their claim that I was the driver at the time.

So I will now send a SAR to Premier Park Ltd to see their supposed evidence on the 2nd PCN as well as sending this to BW Legal, and will likely build a defence based on confusing signage but as this is likely to go to court, wanted to start a thread to get other people's opinions on the matter as well. Happy to post the latest reply I had from BW Legal after my initial response as well as my own evidence of the confusing signage if you guys want. 

One additional note, is I am in the process of selling the vehicle (likely this week) and not sure if that affects anything relating to this PCN - I assume not! As well as the fact that I am leaving the country to go travelling long term but have heard that small claims courts are all usually done online so I should not have a problem dealing with this whilst away.

P.S. sorry for the long post! 

nosferatu1001

What status are they at? Any new deadlines?
Pictures of signage is of course great. 
Selling the vehicle is completely irrelevant. 
The actual HEARING is in person
Do you have na overseas address yet? If so, GIVE THEM THAT ADDRESS FOR SERVICE as soon as you can
They CANNOT make a claim overseas (well, tehyy can but they wont, as it costs an awful lot)

beamerguy

All par for the course with BWLegal.  They have added a fake £60 and that is ABUSE OF PROCESS
You will find your defence for this in post # 14 by coupon-mad here ..

Abuse of Process ... District Judge tells BWLegal
https://forums.moneysavingexpert.com/discussion/6014081/abuse-of-process-district-judge-tells-bwlegal/p1

Sistemax

The latest email from BW Legal is below:

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Good Afternoon

 

Thank you for your email, the contents of which have been noted on file.

 

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 not paying for the entire passing session.

 

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 in a car park and failed to pay for the entire parking session. The vehicle was observed at xxx. The vehicle was observed by the Parking Attendant at xx:xx.

 

 

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 £100.00 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.   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.

 

6. This is not a claim for trespass.

 

7. Our Client is under no obligation to supply this

 

8.   Our Client is under no obligation to supply this.

 

9.   £200.00 remains unpaid for the Parking Charge Notice. Additionally, you are also liable for our £100.00 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 the 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.

 

In order to access this evidence, you will need to enter your vehicle registration in full and in capitals.  

 

Should you wish to discuss this matter further, please contact our office on 0113 487 0432.

 

Kind Regards,

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Photos below as well, Riley's was the bar visited on the first post but no mention of them in the signage. Is it stupid to assume that sign could mean free parking?

nosferatu1001

You didnt answer the questions. Do so.
The sign does not state free parking for everyone. It is relatively clear that it is pay car parking.
Theyre of course talking crap. Firstly, PFOA does not state 28 days of date of issue, its 28 days starting the day after the notice is GIVEN ie received. But BW legal are incompetent trolls so STILL dont know this, 8 years in
Of course youre not liable for £100. Ask them 
1) How they intend to get around POFA2012 4(5) which clearly limits the amount the Keeper is liable, for, how they intend to get around the CRA2015, how they intend to get around Beavis - which tjhey are relying upon, and so will you - AND how they intend to get around that the actual signs do not make ANY mention of ANY amount additiojnal being allowed. Also, for giggles, how they get around the CPR27.14 restriction of small claims court. 
KNowingly claiming an amount they know is not recoverable is an abuse of process
BW Legals first duty is to the court, not their client. They must NOT file a claim including an amount they cannot recover. So, if theydo, you will file an application to have the claim struck, including sanctions against BW legal specifically, AND you will complain to the SRA who's file on BW Legal is getting rather thick by now.

2) So is this Contracttual Costs or Breahc of Contract, which would be damages? It cannot be both. 
3) Re 7) and 8), they ARE obliged to supply this as this will "narrow the causes under dispute" namely, your client lacks any authority to bring charges against anyone nor pursue them to court. UNder the overriding objective, yuor clients refusal to supply their contract privinfg their entitlemetn will be brought to the courts attention. No, this is not a privileged docuemnt, before your give us THAT templated reply again, and yes it MSUT be disclosed, else your schedule will include costs for unreasonable behaviour pursuant to CPR27.14(2)(g). Unlike YOUR two bit legal firm, I understand and FOLLOW the CPRs.
4) I am seeking debt advice, so guess what - you must restrict processing for 30 days
Obviously, dont copy and paste this verbatim OP...

beamerguy

As per nosferatu1001 above

Is it just one ticket @ £100 ?    How do they explain £200

BWLegal still have not learned much about the Supreme court ruling.   The Supreme court ruled that £85 was acceptable (not £100) and then they ruled @......198. ''...The charge has to be and is set at a level which enables the managers to recover the costs of operating the scheme...'' .... that means that a ticket value of £100 includes all costs to recover the debt.

Quoting the code of practice is utter cr*p because that only applies to members of an ATA, it's not a law and it's not a contract for the motorist

What is the breakdown of £200

D_P_Dance

The signage in situ makes provision for Our Client to recover any additional costs (Contractual Costs) 

They might struggle convincing a judge of that.  Make this a key part of your defence and report this dishonest  law firm here.

https://www.sra.org.uk/ 

Nine times out of ten these tickets are scams, so consider complaining to your MP, it can cause the scammer extra costs and work, and has been known to get the charge cancelled.

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.

Sistemax

Apologies nosferatu1001, in answer to your original questions:
The '14 day' deadline for a response to their letter that I've posted above will be this Friday.
No overseas address, I have moved property (yet again) and I gave them that address for service for forwarding all correspondence too but instead they're replying to me via email which is also fine. I have also kept every single letter that BW Legal, and the previous debt recovery companies had sent to my new address.

I will draft up a response to BW Legal later today/tomorrow and pop it on here before I send it to them, and will add in the key points about the CPR.

There is 2 PCN's that they are attempting to claim for 2 separate dates within April, both PCN's are £100 each (totalling £200 for the PCN's) and then they are adding on a £100 "instructions fee" so a final total of £300 

beamerguy

Sistemax said:

There is 2 PCN's that they are attempting to claim for 2 separate dates within April, both PCN's are £100 each (totalling £200 for the PCN's) and then they are adding on a £100 "instructions fee" so a final total of £300 

OK, well this seems to be a new attempt to disguise their fake add-on.
Think about it, if you instructed a solicitor, it would be you who pays.  Therefore the PPC instructed BWLegal
If they win (very doubtful given their form), they could try to claim this cost but as a county court is for small claims a judge is unlikely to award this, especially if they add the accepted £50 solicitors costs to their claim.
Mind you because their communications are so poor they might be thinking £50 x 2 ......... wrong thinking as this is just one claim.

This would be abuse of process and an attempt to circumvent the courts ruling of double recovery.

However, when you win and it certainly looks like it's going that way, you can claim £95-£100 for your costs

Sistemax

Hi all, I have drafted up the below 2nd response to BW Legal. I am not sure whether to separate my SAR from this email and send them two emails (this one and the separate SAR). As well as this, I am not sure whether to include point 4 where I mention about Section 23.1b of the BPA's CoP as this 'sort of' counteracts my other points?

I also wanted to ask, as if they do take me to court there is a high chance I will not be in the country, and have read under section 27.9(1) of the CPR that as long as I notify the court within 7 days of the hearing, and tell them I am happy for them to decide the claim in my absence this is ok. But curious whether my non-presence will have a negative affect, or will a submitted defence be enough... Have read that you cannot have someone go on behalf of you as well.

Draft letter to BW Legal below (let me know your thoughts):

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Good Afternoon,

 

In response to your email below on the 6th February, I am still not fully aware as to the clarity of your claim. As you have mentioned, I am being pursued as the Registered Keeper of the vehicle under Schedule 4 of the Protection of Freedoms Act 2012, however under your points 1 and 5 you state that I had personally breached the terms of contract thereby implying that you have identified me as the driver of the vehicle. As such, I request that you provide me evidence to support this claim.

 

I am also interested to know under what statute the keeper is liable for the £100 instructions fee as

 

1. You will already know this is not claimable under part 27.14 of the Civil Procedure Rules 1998
2. You will know that this is not claimable under the Protection of Freedoms Act 2012 as this legislation limits the Keeper to the amount served on the notice to Keeper and nothing more.
3. You state that you will rely on the ParkingEye Limited v Beavis [2015] UKSC 67 case, for which the defendant was ordered to pay only the already inflated parking charge of £85, and not any additional costs outside of the PCN as this charge was and had to be set at a level which enables managers to recover the costs of operating the scheme. Therefore the amount specified on your clients Notice to Keeper will include all potential costs to recover any debt.  
4. Section 23.1b of the BPA’s Code of Practice – of which your client is an Approved Operating member of – states that a “debt recovery fee” must not exceed £70 unless prior approval from the BPA has been granted. I would like to request evidence of this approval, and I will be following this up with the BPA to ascertain whether this approval was granted by them and under what basis.
5. You mention that “the signage in situ makes provision for Our Client to recover any additional costs (Contractual Costs)”. Again – please provide evidence where this is stated.

Knowingly claiming for an amount that you as solicitors will know is not legally recoverable is an abuse of process. If a court claim is issued with an amount any extra than what is issued on the Notice to Keeper, then an application file will be submitted to have the claim struck, which will include sanctions against BW Legal specifically alongside a complaint to the Solicitors Regulation Authority.

 

In regards to my request from my initial email below which you claim your Client is under no obligation to supply:

 

“...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)...”

 

If your client refuses to supply the supposed contract that the driver of the vehicle entered into, proving your clients entitlement to the claim, then I will also be bring this up to the courts attention if they were to be engaged. Furthermore, I will refer to part 27.14(2)(d) of the CPR to include in my schedule, costs for unreasonable behaviour by the pursuant based on this refusal to provide information.

 

I will shortly be sending a Subject Access Request to your client,  Premier Park Ltd therefore I request a restriction of data processing and that the case be put on hold due to the one month deadline that your Client will have to respond to this request. As well as this I am currently seeking advice, and request a minimum of 30 days for me to obtain my advice, alongside the above request.

 

Finally, I would also like to submit a Subject Access Request under the GDPR to yourselves, BW Legal, and request that you supply to me the data that I am entitled to under data protection laws relating to myself, of which you also are entitled to a period of 30 days to respond within. At a minimum I would like to request the below:

 

• All photos taken and involved in my file.
• All previous letters both sent and received, including any appeal correspondence earlier.
• The PDT machine record from the day(s) of the supposed above contravention(s).
• All data that yourselves will rely on including full copies of all PCN’s issued against my file.
• Any other data held and/or contained within my file on your systems.

As a reminder, my current address of service as of the writing of this email is below:

 

xxx

xxx

xxx

xxx

 

Yours faithfully,

 

Sistemax

Redx

no a submitted defence is not enough , because its only half the job that you are required to do

you are ALSO required to issue a WS + Exhibits later in the process, so read what is required and when by studying the NEWBIES FAQ sticky thread

yes you can have it heard on papers, but the usual timeframe is 14 or more days before the hearing , not 7

yes it can have a detrimental effect, you are not there to be quizzed , you are not there in order to object to anything the claimant or their witnesses say, nor their costs either , so it can make your options worse and the payout could be greater if you lose

Normally a SAR is only emailed to the parking company , to their DPO, nobody else