Letter of claim BW Legal - From and old thread in 2018

tangsoodo

Hi all, ive previously had a thread for this PCN but i am unable to update it as its been closed. Todays LBC is with regards to 2 PCNs at the same car park in 2018. I will be requesting a SAR from Premier Park Ltd and send the appropriate response to BW Legal. After a  previous SAR in 2018 the PPC never sent ALL of the information that i had requested. Is there anything that i can add into this SAR that could hold them liable in court for not sending the information requested? BW legal have in the past couple of months sent me the signage but these do not exactly match the photos that i took at the time. Is this something that i should keep for court or would it harm my case not to share these with the ppc? 

KeithP

For completeness, here is a link to your old thread...

Premier Park PCN to wrong address

Coupon-mad

I think respond to BW and state what's missing and that the signs don't match.  Encourage them to tell their client to go swivel.

tangsoodo

thanks coupon-mad, i have told them that the signs don't match and they have asked me to forward my photos to them. I've told them that as their client has refused an appeal then i will keep the photos for court. I'm just looking over the data from the SAR that i received in 2018 so that i can point out what they ignored last time.

NOTE is there a way that i can forward my sign photo to any of the admins rather than posting it up here as i think what they did to the sign could be a good point for court. Could do with some advise on it

Coupon-mad

Why not reply robustly and specifically suggest as an ADR, POPLA (for which a POPLA code can be, and is, provided late by plenty of BPA members including ParkingEye at LBC stage).  That is, if you've not yet used a POPLA code?

Tell BW that this would meet the PAP for debt claims and will keep the case out of court, and state that you would then of course provide your own photos and their client can produce theirs, to resolve the dispute without burdening the courts.

Add this for BW to chew on:

ADR: https://www.gov.uk/government/publications/alternative-dispute-resolution-for-consumers/alternative-dispute-resolution-for-consumers

The Regulations require almost all businesses which sell directly to consumers to point the consumer to utilise an alternative dispute resolution scheme – where they cannot resolve a dispute in-house – and declare whether or not they intend to use that scheme.

https://www.pumpcourtchambers.com/2019/09/06/adr-and-mediation-a-shifting-landscape/

It will be common ground that POPLA is the bespoke appeals service (effectively ADR) for the industry and it is known and easily checked with the BPA if this operator is unsure, that POPLA codes can be provided at any time and are provided, in disputed cases, by the more professional operators at LBC stage.

It is also common ground that the BPA expect AOS members and agents/DRAs and roboclaim 'legals' to adhere to the spirit of the FCA CONC rules, which include that pursuit/enforcement of 'disputed debt' must be suspended, if the consumer raises 'what may be valid grounds' for appeal/dispute.

In the case of PGF II SA v OMFS Co. Ltd [2014] 1 WLR 1386 the CA upheld the decision of a judge to disallow a successful defendant the costs he would have been entitled to... The court relied on the Jackson ADR Handbook (supra) 

https://global.oup.com/academic/product/the-jackson-adr-handbook-9780198867326?q=*&resultsPerPage=100&lang=en&cc=gb

and (at para.34): “firmly endorsed the advice given in Chapter 11.56 of the ADR Handbook, that silence in the face of an invitation to participate in ADR is, as a general rule, of itself unreasonable regardless whether an outright refusal, or a refusal to engage in the type of ADR requested, or to do so at the time requested, might have been justified, by the identification of reasonable grounds.”

In Gore v Naheed [2017] EWCA Civ 369there was a dispute between neighbours about a claimant’s right of way to a shared driveway for access and the defendant’s right to obstruct the driveway to unload lorries for their wine business. The trial judge found in the claimant’s favour and ordered that the Defendants pay the claimants costs. The defendant appealed arguing that the claimants failed to engage with their invitations to mediate and therefore the judge was wrong not to have made some deduction or allowance in the claimant’s costs.

The Court of Appeal upheld the lower court’s decision.  

However, Gore was decided before the Civil Justice Council ADR Working Group published its interim report in October 2017 on its review of existing forms of encouragement for mediation within the civil justice system in England & Wales. 

The Working Group was critical of the suggestion that Gore was an unsuitable case for mediation noting:

“Gore was ultimately about whether a van could park to unload in a particular place…a type of dispute ideally suited to ADR.”

tangsoodo

Thanks coupon, I've had a read through the links and that looks a good idea. I've started to draft the first part of the reply but do i need to add the part about seeking debt advise or shall i wait for their reply. I'm expecting them to reject giving a POPLA code but it at least shows that I've tried to keep it out of court 

Coupon-mad

Start with

Dear Sirs,

Then the line about seeking debt advice and requiring a 30 day hold or cancellation. In the alternative, you suggest the following:

(then all my wording)

Yours faithfully

your name

tangsoodo

Hi Thanks again. I have sent a SAR request to premier. I will send the response as you have advised to BW legal. Can i ask what is the reason that its not recommended anymore to challenge the LBC for not following the PAP such as them not disclosing what documents that their client will be relying upon etc etc. Surely this was useful to show a judge that they were not following the PAP

Coupon-mad

Because you are getting all those documents from the SAR.  So it doesn't mean you've missed anything.

tangsoodo

Can somebody explain the differences between defending as Keeper/driver and keeper/not driver.

Are there things that you cant use as defense in either scenario. So can keeper non driver still defend saying that driver couldn't have made a contract because of signage, terms, double dipping etc or can the keeper not point out such things because they were not there

Le_Kirk

You defend as keeper but not driver if: -
a) it is true and the keeper was not driving
b) the original PCN was not POFA compliant
The reason for this is because. according to POFA the keeper cannot be held liable if he/she wasn't driving at the time of the event.
If you are keeper and driver then POFA plays no part (in helping you) and you must use other forms of defence such as you did buy a ticket, you did not overstay, you did have and display a permit.
Not good to lie in court so only use non-driver if true as the judge may/will ask "were you driving on the day?"

can the keeper not point out such things because they were not there

In this scenario it is normal to state that research has been carried out after receiving the PCN and the driver informs you that ..........