BWLegal Particulars of Claim now come with 11 paras of Debt Recovery Cost Justificatition

EwanHusarmee

Just wondering if there is anything in them that can be used to sharpen up the Abuse of Process defence template? Typed out as Newbies can't link
16. The court will note that at the base of the annexed signage at page 1, it clearly states:
16.1 "Failure to pay within 28 days will result in the registered details being requested from the DVLA. Additional charges may apply."
17. The construction of this part of the contract between the Defendant and the Claimant is set up so that if the Contractual Charge is not paid in accordance with the CPP, the defendant agrees to pay the the Claimant's additional costs of debt recovery (Debt Recovery Costs).
18. The Claimant has issued its notices, inviting the Defendant to pay a discounted sum within the discount period, allowing sufficient time for an appeal, and in the default of payment thereafter, pursued the full amount of the outstanding Contractual Charge.
19. The claimant is not in the business of collecting debt and issuing legal proceedings. Their business is predominantly providing a parking scheme and generating profit. When a Contractual Charge is levied as a result of the user's breach of contract, it is payable at the specified amount within the CPP. That is what the Contractual Charge covers. It does not accommodate the eventualities of a user's failure to pay with the prescribed timeframe.
20. Once the CPP has expired, the Claimant would necessarily incur further expenditure by having to instruct agents and/or solicitors to recover the unpaid Contractual Charge. The Claimant, being the innocent party [boo hoo], has therefore suffered financial loss as a direct failure of the Defendant failing to perform his contractual obligations by paying the contractual charge. it therefore follows that the defendant should indemnify the Claimant for such a failure.
21. The fact that a clause entitling the Claimant to Debt Recovery Costs in default of payment of the Contractual Charge within the CPP may not be a genuine pre-estimate of loss, or that it may be regarded as a deterrent against breach, does not mean that it is a penalty or unenforceable. This is because the clause protects the legitimate interest of the Claimant beyond the recovery of compensation for their loss, as with the Contractual Charge itself; in this scenario, this would be to compensate the Claimant from the increased costs of debt recovery.
22. Further, the Debt Recovery Costs act as a deterrent as it should encourage non-payers from avoiding payment until the final hurdle of debt collection or pre-legal stage. beyond the CPP, the Claimant has incurred the expense of having to do teh above, whereas the Defendant is unjustly in a no worse position by not paying the Contractual Charge within the CPP.
23. [Bored now] ....sites the BPA Code of Practice
24. The Debt Recovery Costs therefore fall within the scope of the Claimant's Accredited Trade Associations's Code, being an organisation approved by the Secretary of State.
25. For the above reasons, it is also submitted that the above provision does not fall foul of the Consumer Rights Act 2015, though this would require an analysis of the claim for Debt Recovery Costs against sections 62(4) & (5). And even if it did (which is denied), section 67 of the Act means "the contract continues so far as practicable to have effect in every other respect".
26. Further technical submissions can be made at any hearing as appropriate/required.

These are amended Particulars of Claim as the Judge threw out the original due to their being crap - which is probably a good thing as my original defence was based on Parking Eye v. Cargius and ambiguity of the signage.

nosferatu1001

Wow good to know, thanks
That is of course fcomplete codswallop. You cannot contract for ambiguous terms. It fails the first element of construction. 

EwanHusarmee

nosferatu1001 said:

Wow good to know, thanks
That is of course fcomplete codswallop. You cannot contract for ambiguous terms. It fails the first element of construction. 

:

Coupon-mad

OK, adapt the template defence by removing the bits that ask for the claim to be struck out (near the start) because it won't be.

Also remove the stuff about the Britannia v Crosby case and replace it instead with the stuff about that case and the Semark-Jullien appeal, that is in the example witness statement linked in the NEWBIES thread. 

The WS by @robertcox999 is recent and deals with the fact that the Salisbury appeal did not say that PPCs can add double recovery costs.

I will when I get a chance, re-write the template defence, sometime next month.  Snowed under!

Timeouts

oh boy ....... seems like BWLegal have a new script writer ?   has this person been surfing the internet ? with reference to "Debt Recovery Costs act " ??? 

That won't help them, not in the parking industry and the courts.
Why do they still say the BPA CoP is their authority for fakery ??

You can understand why the courts spank them ?

henrik777

Get a hold of the "no win no fee" evidence and then use that to batter them.

"May incur costs" but they don't as it's no win no fee.

Job done.

1505grandad

DRP archived webpage (takes a while to load):-

https://web.archive.org/web/20180729191014/http://www.debtrecoveryplus.co.uk/pcn-collection

EwanHusarmee

henrik777 said:

Get a hold of the "no win no fee" evidence and then use that to batter them.
"May incur costs" but they don't as it's no win no fee.
Job done.

In the material from my SAR, the PCo show the debt recovery cost as £50.00. I had assumed the difference was VAT, but am I now right to infer that the missing £10.00 is the win fee for  Zenith/Gladstones/.... etc

Umkomaas

There's no VAT anywhere in this game. 

EwanHusarmee

Umkomaas said:

There's no VAT anywhere in this game. 

Thanks - So inferred then. 

EwanHusarmee

1505grandad said:

DRP archived webpage (takes a while to load):-

web.archive.org/web/20180729191014 www.debtrecoveryplus.co.uk/pcn-collection

Anyone got a screen shot of this - web.archive.org is not responding at all today