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

EwanHusarmee

EwanHusarmee said:

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

How's this? 
1.      The Debt Recovery Cost has been applied to the Defendants debt since at least 26/03/2019. In the information provided by the Claimant following a Subject Access Request (appendix 3), the cost is listed as a ‘Debt Recovery Charge’ of £50.00.

 2.      From this point the Defendant received a number of pro-forma letters demanding payment from a succession of debt recovery companies for £160.00.

 3.      It is the Defendant’s contention that the £10.00 variance is the ‘win fee’ that the debt recovery companies would receive if the debt had been settled.

 4.      In the Claimant’s Particulars para 20. the Claimant argues that they ‘would necessarily incur further expenditure by having to instruct agents’. If the Claimant is operating with its Debt Recovery agents on a 'No win, no fee' basis, then it is untrue that they face additional costs.

5.It is known that Debt Recovery Plus a sister company of many of the Debt Recovery companies that operate in this sphere, including Zenith Collections who were initially assigned this debt, has operated on a no win no fee basis.

KeithP

Now read @Castle's most recent post on your thread.

EwanHusarmee

SORRY GUYS - DID NOT SEE THE NEW PAGES - THOUGHT I WAS GOING DOOLALLY!

EwanHusarmee

Given the VAT update, I'll skip my junior Sherlock Holmes act, drop 3 and end with

4.  In the Claimant’s Particulars para 20. the Claimant argues that they ‘would necessarily incur further expenditure by having to instruct agents’. This is untrue. Debt Recovery Plus Ltd. which trades inter alia as Zenith Collections and who were initially assigned this debt, operates on a no win no fee basis (appendix 4).

Coupon-mad

Are you not also using the wording I pointed you to use, from the rationale in the example WS I told you to crib from?

Coupon-mad said:

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!

EwanHusarmee

Coupon-mad said:

Are you not also using the wording I pointed you to use, from the rationale in the example WS I told you to crib from?

This is how I have added the semark information

1.      The Claimant’s claim is entirely tainted by their ‘forum-shopping’ business model which relies on routine abuse of process and disregard for the protections in the CRA.  The Defendant avers that parking firm claims which add a duplicitous ‘costs’ sum to the private PCN are easily identified to be unlawful from the outset, without any need for a hearing to determine where the truth lies in terms of evidence.  The Court is, therefore, invited to strike out the claim ab initio as an abuse of process, using its case management powers pursuant to CPR 3.4 and also give serious consideration to Practice Direction 3C, as to whether the level of similar abusive (and thus, wholly without merit) claims cluttering up the courts may provide grounds for issuing an Extended Civil Restraint Order to protect consumers in future from this Claimant and to save the courts time and money.

 

2.      The Claimant’s notices/demands vaguely allude to unidentified sums being ‘Additional charges may apply’ basis.  Such imprecise terms would be considered incapable of binding any person reading them under common contract law, and would also be considered void pursuant to Schedule 2 of the CRA. 

 

3.      This matter was recently determined by District Judge Grand, sitting at Southampton County Court on 11 November 2019, where the Claimants sought to have multiple strike out Orders set aside. The application was dismissed.

 

4.      Whilst it is known that another case that was struck out on the same basis was appealed to Salisbury Court (the Semark-Jullien case), the parking industry did not get any finding one way or the other about the illegality of adding the same costs twice. The Appeal Judge merely pointed out that he felt that insufficient information was known about the Semark-Jullien facts of the case (the Defendant had not engaged with the process and no evidence was in play, unlike in the Crosby case) and so the Judge listed it for a hearing and felt that case (alone) should not have been summarily struck out due to a lack of any facts and evidence.

 

5.       The Judge at Salisbury correctly identified as an aside, that costs were not added in the Beavis case. That is because this had already been addressed in ParkingEye's earlier claim, the pre-Beavis High Court (endorsed by the Court of Appeal) case ParkingEye v Somerfield (ref para 419): ht[still cant post links]

''It seems to me that, in the present case, it would be difficult for ParkingEye to justify, as against any motorist, a claim for payment of the enhanced sum of £135 if the motorist took the point that the additional £60 over and above the original figure of £75 constituted a penalty. It might be possible for ParkingEye to show that the additional administrative costs involved were substantial, though I very much doubt whether they would be able to justify this very large increase on that basis. On the face of it, it seems to me that the predominant contractual function of this additional payment must have been to deter the motorist from breaking his contractual obligation to pay the basic charge of £75 within the time specified, rather than to compensate ParkingEye for late payment. Applying the formula adopted by Colman J. in the Lordsvale case, therefore, the additional £60 would appear to be penal in nature; and it is well established that, in those circumstances, it cannot be recovered, though the other party would have at least a theoretical right to damages for breach of the primary obligation.''

 

6.      This stopped ParkingEye from using that business model again, particularly because HHJ Hegarty had found them to have committed the 'tort of deceit' by their debt demands. So, the Beavis case only considered an £85 parking charge but was clear at paras 98, 193 and 198 that the rationale of that inflated sum (well over any possible loss/damages) was precisely because it included (the Judges held, three times) 'all the costs of the operation'. It is an abuse of process to add sums that were not incurred. Costs must already be included in the parking charge rationale if a parking operator wishes to base their model on the ParkingEye v Beavis case and not a damages/loss model. This Claimant can't have both.

 

7.      This Claimant knew or should have known, that by adding £60 in costs over and above the purpose of the 'parking charge' to the global sum claimed is unrecoverable, due to the POFA at 4(5), the Beavis case paras 98, 193 and 198 the earlier ParkingEye Ltd v Somerfield High Court case and the Consumer Rights Act 2015 ('CRA') Sch 2, paras 6, 10 and 14.

 

8.      The quantum claimed is unconscionable and the falsely added sum not there at all on the car park sign.  As such, the Defendant avers that the charge offends against Schedule 2 of the CRA, where s71(2) creates a duty on the Court to consider the fairness of a consumer contract.  The court’s attention is drawn (but not limited to) parts 6, 10, 14 and 18 of the list of terms that are likely to be unfair and the CMA Guidance linked earlier, and the Defendant invites the court to find this Claimant in breach. 

 

9.      Even if the Claimant had shown the global sum claimed in the largest font on clear and prominent signs - which is denied - they are attempting double recovery of costs.  The sum also exceeds the maximum amount which can be recovered from a registered keeper as prescribed in Schedule 4, Section 4(5) of the Protection of Freedoms Act 2012 (‘the POFA’).  It is worth noting that in the Beavis case, even though the driver was known, the Supreme Court considered and referred more than once to the POFA because it was only right that the intentions of Parliament regarding private PCNs were considered.

EwanHusarmee

I'm also arguing failure to mitigate loss - I offered them a settlement that would comfortably compensate them for being late in a P&D car park ( I was only aware of Parking Eye v. Cargius at the time). They are now offering me  a bigger discount on the debt to settle than if they had taken the £10.00 20 months ago.

Timeouts

If they thought they will win, they would not keep on offering discounts ?
BWL play a very feeble game of musical chairs and probably know you will be the last one sitting on the last chair

Of course you are now unable to accept discounts due to your own costs (which you will claim)
You would accept an offer that they discontinue and pay your costs.  You also need a judge to reference the added amounts.

Play the game

EwanHusarmee

I must admit, I thought they would have dropped out ages ago, especially after the judge struck out their original particulars of claim.  The last fight I had was on my sons behalf - who had racked up 11 PCNs - so the claim was over £1500 and that got dropped. I think between me, my wife and my son, I have dealt with over 20 PCNs and never paid a penny.

Timeouts

EwanHusarmee said:

I must admit, I thought they would have dropped out ages ago, especially after the judge struck out their original particulars of claim.  The last fight I had was on my sons behalf - who had racked up 11 PCNs - so the claim was over £1500 and that got dropped. I think between me, my wife and my son, I have dealt with over 20 PCNs and never paid a penny.

BWLegal were damaged with the start of abuse of process.  They are on a mission to prove the courts are wrong and it's doubtful they will achieve that.  Couple this with the addition of other legals copying this terrible business model, they now have more competitors after the same business. With covid destroying the parking companies with no end in sight,  how much money they are prepared to throw into timewasting claims, we will see. When the new CoP is in action, their wings will be clipped