LOC from BW Legal - advice requested

jd576

I've read the very helpful pinned NEWBIE thread and template defence, as well as several of the county court judgements that are relevant to the case and still have a few questions about responding to the BW Legal letter of claim that I, as the registered keeper, received recently. Hopefully the forum members can help with some pointers.

I believe, based on the specifics of the case, that there is a good defence as to why the case can be disengaged from Beavis vs ParkingEye. Should the legal reasoning be cited in the response to their letter of claim? Or can this wait until the defence is submitted? There is some reluctance to "tip the hand" at this stage of the process.

Having read the template defence and many of the threads in this forum, the claim is one that includes debt recovery costs in the claimed principal debt. It appears based on the case law, that this claim in and of itself is sufficient to get the case dismissed (I'm flabbergasted that BW Legal continue to issue claims with these illegal debt recovery costs tacked on despite multiple instances of their cases being thrown out of court). 

Does this reasoning about double recovery need to be exposed in the response to the letter of claim by questioning how they arrive at the charge? 

The reply currently has the following paragraph as it pertains to the debt recovery charge

Please cite the legal basis, including statutes and suitable case law under which you’re claiming these “debt recovery costs” of £60 added to the principal debt amount shown in your Letter of Claim of [date]. 

Please also show where, since you assert that these costs were agreed to in the alleged contract with your client, the amounts were clearly laid out in the alleged contract. The draft Private Parking Code of Practice Impact Assessment (IA) published on 30th July 2023, paragraph 5.19 clearly notes that the average cost of debt recovery stands at £8.42, leading to the inescapable conclusion that this is not only an unlawful, but also a grossly exaggerated claim.

The claim against the keeper is supported by two entry and exit photos from an ANPR camera positioned on a private road and taken at night, such that there's no guarantee that the vehicle was actually parked. It may simply have been stopped waiting for someone. In the photos, one can only make out the license plate, nothing else, since they're dark to the point of being black. There are no photos of a parked vehicle and it's also arguable that the parking management company simply doesn't have the authority to manage parking spaces included in someone else's lease, since their contract is with the landowner. There are multiple leaseholders in the area. Should photos clearly demonstrating the vehicle was parked in one of the managed bays be requested at this stage?

Lastly, in terms of service of the reply, how does one send it? Recorded delivery, by email, or by using their "customer portal", or a combination of the three. I, as the registered keeper, am reluctant to use their portal, since I'm not a "customer".

nopcns

jd576 said:

I've read the very helpful pinned NEWBIE thread and template defence...

Lastly, in terms of service of the reply, how does one send it? Recorded delivery, by email, or by using their "customer portal", or a combination of the three.

Unfortunately, you may have to go back and re-read the Newbies/FAQ thread again as your question about service of reply is well covered in there. We never recommend using Recorded (or Signed For as it is now called) Delivery. Email is always, by far, the best option as it is instant and provides "proof of posting".

There is another very important question you should include in your response which asks:

I have two questions, and under the PAP I am entitled to specific answers:

1. Are you stating that the additional £70 added to the principal debt represents is a 'Debt Recovery' fee, and if so, is this nett or inclusive of VAT? If the latter, would you kindly explain why I am being asked to pay the operator’s VAT?

2. With regard to the principal alleged PCN sum: Is this damages, or will it be pleaded as consideration for parking? 

jd576

nopcns said:

Unfortunately, you may have to go back and re-read the Newbies/FAQ thread again as your question about service of reply is well covered in there. We never recommend using Recorded (or Signed For as it is now called) Delivery. Email is always, by far, the best option as it is instant and provides "proof of posting".

Thanks @nopcns

I did read it and I did see several comments to that effect, however from a technical point of view, email is not a guaranteed medium and can never be construed to be "proof" of anything. Only recorded delivery provides the necessary burden of proof. Thus my question is implied to be "does the court accept that email is a legitimate means of service" and how do I "prove" it was sent if I choose to use email?

nopcns said:

There is another very important question you should include in your response which asks:

I have two questions, and under the PAP I am entitled to specific answers:

1. Are you stating that the additional £70 added to the principal debt represents is a 'Debt Recovery' fee, and if so, is this nett or inclusive of VAT? If the latter, would you kindly explain why I am being asked to pay the operator’s VAT?

2. With regard to the principal alleged PCN sum: Is this damages, or will it be pleaded as consideration for parking? 

Yes, they clearly stated and labelled that the additional £60 is "debt recovery costs", so no need to ask that question. They added it to the principal debt claimed. I found the question about VAT superfluous. Could you explain why it's relevant, as that's not clear to me?

Yes, the letter already has question #2 in it. I didn't reproduce it here.

Coupon-mad

There IS a need to ask those questions - the VAT question is far from superfluous - and email is the right way to respond.

Not signed-for post.

The VAT point is based in the fact that DRA and admin fees are VATable (parking charges aren't) and none of the roboclaim firms are answering the question "is the £70 added for your 'costs' nett or inclusive of VAT?"

They all avoid the question and some just reply "parking charges are VAT exempt" but it's not the PCN element that's being asked about.

HMRC have clarified that VAT on enforcement or debt admin fees can't be passed in to a consumer, which is why when you find other DRA webpages (non-parking) online, you see this phrase again and again:

"The VAT element of our fee cannot be reclaimed from your debtor."

e.g. 

https://mvllp.co.uk/debt-recovery/

But that is conspicuously not stated in either the BPA or IPC CoPs and is not mentioned in any parking DRA or by any roboclaim solicitor dealing with parking charges.

Parking 'specialist' debt crawlers Include:

BWLegal

DCB Legal

DCB Ltd

ZZPS 

TNC debt recovery

Trace Debt Recovery

Debt Recovery Plus Ltd

CIS ('credit investigation' services)

QDR solicitors

Elms Legal

Gladstones solicitors

CST Law

Empira Ltd

To our knowledge, not a single one has answered the question or mentions VAT on the £70 (per PCN) fee they are trying to 'extort' (DLUHC's word) from motorists.

The point is that you are asking "WHY am I being asked to pay VAT on a service not supplied to me? Or is the £70 nett of VAT?"

The fact the won't answer has seen several already reported to HMRC:

https://forums.moneysavingexpert.com/discussion/comment/80669693/#Comment_80669693

KeithP

jd576 said:
Only recorded delivery provides the necessary burden of proof.

Does it?
What about when the intended recipient refuses to sign for it?

jd576

@Coupon-mad thanks, very illuminating response. You're correct that BW Legal's letter does not mention VAT. I'll duly include the question, and thanks also for the confirmation on an email response.

One of the other principal questions I had, and perhaps not articulated as clearly as I should have in the original post, is "does one need to expose the legal reasoning / defence as to why their claim is contested" in this initial letter of response, or is it advisable to wait until filing the defence in order to do so. 

nopcns

Recorded delivery can, at best prove that it wasn't delivered. If you insist on using postal service then the only thing you need is a free "proof of posting" certificate from the post office. Email can be, if necessary, forensically traced through the headers in every email. As long as an email isn't rejected and returned as undelivered, it can be considered delivered, especially if you include yourself in a cc. Additionally, the CNBC and many other organisations will email back an auto response to the sender which is also proof of delivery and is instantaneous.

The point additional question is not whether the the £70 is a debt recovery fee but whether it is net or inclusive of VAT. There is an ongoing question about the practices of these scamming roboclaim solicitors and debt collection companies that add the extortionate debt collection fees without declaring the VAT element and we are urging everyone who does not receive a full explanation to report them to HMRC for alleged VAT fraud as we do not believe that they are declaring it.

Coupon-mad

I really hope that HMRC run with this series of VAT complaints and if any of the parking DRA motley crew are not properly accounting for VAT from the PPC on top of any collected 'DRA fees', that they damn well get clobbered.

  

To the OP: you can add whatever you want to say to the LBC response but don't make it too long.  You don't have to show your hand yet.

jd576

Hmm, BW Legal have now blocked all these email addresses: contact@bwlegal.co.uk,disputeresolution@bwlegal.co.uk and parking@bwlegal.co.uk

They really are dirtbags this crowd. I am NOT their customer. 

Any advice on how to serve a reply?

Coupon-mad

Complaints@

nopcns

SAR@bwlegal.co.uk is a published email address for them in their privacy policy. If you need to serve them, that address is valid and you could just instruct whoever receives that email to forward it to the person/dept that needs to deal with it.