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

tangsoodo

Today I have received a Letter of Claim from BW legal. This is the second letter of claim and is identical to the one received in January 2022 (except obviously increased estimated interest). I will request another SAR, is there anything in particular that i should ask for on top of the usual interrogate you machine for payments/close VRN match, all correspondences, times of alleged breach and not just period of parking not paid for etc.

Also shall i just send the same response to the Letter of claim as previous.

Dear Sirs

Following from your letter of claim dated xxxxxxxxxx

 

I am seeking debt advice, but I deny any debt and the case must be put 'on hold' for not less than 30 days under the PAP for debt claims 2017.

I suggest as an Alternative Dispute Resolution in that your client issues me with a POPLA code (for which a POPLA code can be, and is, provided late by plenty of BPA members including ParkingEye at LBC stage). This would meet the PAP for debt claims and will keep the case out of court. I could then provide my own photos and evidence and of course your client can do the same so that the dispute can be resolved without burdening the courts.

 

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.”

 

 

Please note that I have sent a SAR to your client.

tangsoodo

I can also resend this one to Premier Park Limited as well as the acknowledgement of the letter of claim (also sent in jan 2022)

Dear Sirs

I note from a previous SAR that you have stated that as both pcn’s are with legal/debt collection companies that you are not required to respond with a POPLA code. You can issue a POPLA code but are refusing rather than unable to, and contrary to the Alternative Dispute Resolution recommendations you are unwilling to consider resolving this matter and are intent on wasting the courts time.

You have provided data in the SAR that shows on the days of both issued pcn’s that the driver paid for parking in the morning and then again in the afternoon with a period in between where the driver left the car park between training sessions. This is clearly a problem with your ANPR/system and is a case of ‘double dipping’ which is known to be a common occurrence with ANPR technology. I’m sure you are aware that the burden of proof is upon yourselves to prove that these are not ‘Double Dip’ events. As you are aware the Private Parking Code of Practice section 7 states that

1.      The manual quality control check for remote ANPR and CCTV systems is particularly important for detecting issues such as “double dipping”, where image camera systems might have failed to accurately record each instance when a vehicle enters and leaves controlled land, and for checking images that might have been taken other than by a trained parking attendant (see Clause 15). The manual check might also reveal where “tailgating” – vehicles passing a camera close together – is a problem, suggesting relocation of the camera might be necessary.

 

This is a serious breach of GDPR where you have obtained, used and shared the keepers personal data where you were not authorised to and as such the defendant will be counterclaiming for data misuse for at least £300 if you proceed to a claim which is clearly a case of ‘double dip’.

You must now cease and desist and stop trying to add false (now banned) 'debt recovery costs' that no court will allow now that the Government's new Code of Practice has declared the exaggerated add-ons in existing cases to be 'designed to extort money from motorists' (DLUHC's Neil O'Brien MP).

I expect to hear that this case is now closed.

B789

A bit late for POPLA. Unless you are sure that the PPC has information that they did not disclose to you when you originally SARd them, there is no point in sending another one. If you think or know there is missing data then you should SAR them again but also complain about them to the ICO.

You can request another 30-day hold for debt advice if you really want to prolong this but if you do, don't send that request until a few days before the 30 days they have given you are about to expire. However, if there is no real reason to delay, why not let them get on with it? You can rebut their LoC if you think it will make a difference or just wait to see if they actually do issue a claim and then defend it as per the robust defence templates on here.

Coupon-mad

BW Legal are issuing shedloads of second LBCs on previously dormant cases this Summer.

I wonder if any of their clients have deliberately stalled cases for a year or more, in order to gain another year's 8% interest and knowing that some people will have thought that it's all over when no claim was filed last year and will have moved house, or are likely to be away from home when the claim arrives in the school holidays, and won't see it in time?

Due to the extra interest walloped on top, excessive £300 CCJs by default aren't to be sneezed at.

Especially when you play out this whole game in massive bulk against the unsuspecting and often easily-duped public, using a team of fresh-faced clerks.  Oh there's a solicitor somewhere in the chain but the 'work' is automated like a conveyor belt and done by minions.

And presumably (we think) some of these roboclaim firms appear to pocket up to two thirds of the money.  Seems very likely that some or all of this sub-industry 'only' return £100 per PCN to ex-clamper firms (maybe even less?  Depends on the 'arrangement').

Absolutely shocking.

MPs called this pseudo-legal rip-off an "outrageous scam" in 2018 and the DLUHC Minister called it out in 2022, as "extorting money from motorists".

I UTTERLY DETEST THE CONDUCT OF THE BULK LITIGATORS ATTACHED TO THIS ROGUE INDUSTRY.

tangsoodo

It’s funny you should say that @Coupon-mad, this is 2 tickets going on for 5 years and I was expecting something soon. I’ve noticed they always start again before the summer hols and just before Christmas. I hadn’t thought about the people moving address so I will reply to them just so they know I’m still in it. 

Coupon-mad

You could always ask a question or two.  Keep the minions scratching their heads.  They might file it in a drawer again.

Write officiously asking for disclosure of documents as allowed under the PAP (section 2 maybe, it's in the PAP somewhere - find it and quote it). Ask for proof of landowner authority and tell them this to keep them busy:

As stated in ICO guidance,

"a Section 41 exemption does not generally apply to contracts, and if it does, the main part of the contract can generally be provided with the sensitive information redacted."

(https://ico.org.uk/media/for-organisations/documents/1432163/information-provided-in-confidence-section-41.pdf) 

NB: once at court, it cannot be redacted. Ref Hancock v Promontoria (Court of Appeal binding precedent).

tangsoodo

please can you see if this is a suitable response (i have found this reply and altered it slightly)

Also how serious a breach is it if the ppc didnt update my address on their systems if i had requested that they do so. I told them in a SAR in 2018 and the records on their system of a second SAR shows that they update the address in 2022 (at the time of my second SAR request)

Dear Sirs,

I am in receipt of your Letter Before Claim dated xxxxxxx and received xxxxxx (7 days later)

Your letter contains insufficient detail of the claim and fails to provide copies of evidence you place reliance upon.

You must be fully aware that on 01 October 2017 a new protocol became 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 (paragraphs 6(a) and 6(c)) and the new Pre-Action Protocol for Debt Claims (paragraphs 3.1(a)-(d), 5.1 and 5.2. Please treat this letter as a formal request for all documents and information that the protocol now requires your client to provide. Your client must not issue proceedings without complying with the 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.

 

It is also noted that your previous Letter before claim in January 2022 was also not compliant and my response was not acknowledged or replied to. I will attach my acknowledgement of the first Letter before Claim for your files as this will be included as part of my defence.

As you 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.

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

1. An explanation of the cause of action
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. What the details of the claim are; where it is claimed the vehicle was parked, for how long, how the monies being claimed arose and have been calculated
5. 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.
6. Is the claim for trespass? If so, provide details.
7. Provide me a copy of the contract with the landowner under which they assert authority to bring the claim, as required by the IPC code of practice section B, clause 1.1 “establishing yourself as the creditor”.  
8. A plan showing where any signs were displayed.
9. Details of the signs displayed (size of sign, size of font, height at which displayed), Including the entrance sign and its position.  Also provide information of any alterations and or terms and conditions that were made even if temporarily to any of the signs at the time of the incidents. 
10. Provide details of the original charge and detail any interest, administrative or other charges.
11. Your client’s explanation for refusing a proposed ADR in my first Letter before Claim acknowledgement.

12. As for the last SAR information that you provided, an explanation as to why your client has deleted 45% of comments on your system with regards to PCN xxxxxxx and 25% of comments with regards to PCN xxxxxxx. In the first case all comments have been deleted for the past 3 years.  

13. Provide a copy of the Information Sheet and the Reply Form

If you do 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.

Yours faithfully

 

Coupon-mad

No that's really old. Not sure how you found that. 

Robust replies to LBCs are great.  Makes the icklewickle 'legal' clerk sitting at his or her hotdesk (or 'working' from home) have to put it on the 'too hard' pile, for a while at least.

Here are a few examples I wrote that end 'Arkell v Pressdram yours faithfully' which is the right tone to take IMHO:

DCBLegal:
https://forums.moneysavingexpert.com/discussion/comment/79609792#Comment_79609792

Gladstones:
https://forums.moneysavingexpert.com/discussion/comment/79609792#Comment_79609792

BW Legal:
https://forums.moneysavingexpert.com/discussion/comment/78430852#Comment_78430852

And another BW Legal one where they backed down:
https://forums.moneysavingexpert.com/discussion/comment/77778681#Comment_77778681

I encourage you (and anyone with a LBC from a parking roboclaim 'legal' firm) to be much angrier and ruder to these bulk litigators who we know run these cases like a conveyor belt.

It is impossible that a solicitor has looked at the details of these cases because these firms boast about running millions of them, using a group of fresh-faced young minions to engage with victims, using template dross.

I hope the Government squash them like flies.

tangsoodo

Thanks i will look through the links and try again. Any view or angle to go at with them not updating my address for 3 years?

Coupon-mad

Yep.  That's a serious misuse of data and a breach of the DPA 2018 and GDPR, so you could conclude your rant by saying that: if they proceed with their inflated claim, you will file a counterclaim of not less than £300 for negligent or deliberate data abuse, which has dragged the matter out for three years and for it to resurface now when you thought it was over, is not the fair & professional pursuit of a 'debt'.  It is plain harassment and it is causing severe distress at this point in your life, which is actionable in terms of a claim for reasonable damages which has a great deal better propects of success than their imaginary 'DRA fee' false damages, given the DLUHC is believed likely to ban that extortion.

I think one of those links shows how to threaten a counterclaim with meaningful language.