LOC from BW Legal - advice requested

Coupon-mad

moralobligation7 said:

moralobligation7 said:

Hi all, interesting thread. Have been following some time. 

In any case, I have had a recent response from BW Legal after sending multiple messages to clarify the VAT position. They clarified no VAT on the notice, but did not comment on the added fee itself.

I wonder what the next step is then? As this is a letter before action. They have not yet been dissuaded. There is clear information in these threads referencing court cases, and also government comment on unlawful extortion.

Please report BW Legal to HMRC ticking 'VAT concerns' - a matter potentially worth £millions to HMRC - and recount this solicitor's refusal and failure to tell you whether you are being asked to pay the VAT element within the fee (that's not lawful) or whether they are or are not accounting for VAT from their clients in relation to their own 'debt recovery fee'.

jd576

I have finally received the court claim documents, to which I have made an acknowledgment of service online.

I'm now in the process of collating the information necessary to write the defence.

I wanted to run the principal points of defence past the members of this forum in order to get some advice if any of these lines should not be pursued. 

These are the current elements I plan to include in the defence:

1. The claim is an exaggerated claim with disproportionate debt recovery costs of £60 added. Enough said, lots of information on the forum about this.

2. The signage and parking area is unlit in hours of darkness and the alleged contravention occured at night. There are no lights over the signs or even sufficient ambient light to read them.

3. There is no evidence of parking anywhere, only a photo taken by an ANPR camera where even the vehicle is unidentifiable except for the license plate. The photo is literally black. 

4. The parking management company is appointed by the landowner and not by the tenant (an enterprise). The tenant's lease gives the tenant, in whose bays I was properly parked (and from their perspective, authorised to use), the right to use these spaces. So the tenant has not mandated the parking management company and does not deal with them. Would Jopson vs HomeGuard / PACE v Mr N apply here?

5. The signage in the area in which the driver parked says that parking is for "Validated staff and visitors" and that the vehicle registration should be entered into the terminal at reception. All the parking in this entire area is for authorised users only, that is to say, it's not public parking in any way. It's for the tenants and their authorised visitors. 

The driver is a frequent visitor to one of the tenants and doesn't recall ever having forgotten to enter the vehicle registration details on the terminal. In this case, the driver is reasonably confident they did so, but can't be 100% sure. 

The tenant who the driver was visiting has supplied documentary proof that the driver was a valid visitor at that exact date and time. Said proof was supplied to the parking management company, who rejected it out of hand. The parking management company declined to supply a list of vehicle registrations or to prove in any way that the vehicle was not registered. It's simply their word that it wasn't.

So, the driver was not Joe Public parking in this bay, but a legitimate visitor availing themselves of facilities expressly provided for their use. 

Based on my current understand of Beavis vs ParkingEye, the judgement ruled that the parking management companies have a legitimate purpose in deterring unauthorised parking and using these parking charges to fund their operation. 

In clause 32 of the judgement, however, it notes that "The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation. The innocent party can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance."

I'm perhaps misinterpreting this, but it appears to me that the obligation to register on the terminal is simply a secondary obligation to establish that the user of the parking bay is indeed an authorised user. 

Assuming for one second that the driver did forget to register, but post-facto established conclusively that they were a legitimate visitor and supplied that proof to the parking management company, then surely the "impugned provision" in this case is the requirement to register and that it is a secondary obligation (the primary being the need to be a legitimate visitor), so it's imposing a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation and is thus an unrecoverable penalty charge?

KeithP

jd576 said:

I have finally received the court claim documents, to which I have made an acknowledgment of service online.

What is the Issue Date on your Claim Form?

Upon what date did you file an Acknowledgment of Service?
Your MCOL Claim History will have the definitive answer to that.

jd576

KeithP said:

jd576 said:

I have finally received the court claim documents, to which I have made an acknowledgment of service online.

What is the Issue Date on your Claim Form?

Upon what date did you file an Acknowledgment of Service?
Your MCOL Claim History will have the definitive answer to that.

The 3rd of July. I acknowledged service today. Yes, I know I could have waited a few days longer before the AOS, but I don't find it necessary. I have ample time and I'm clear on the deadlines thanks to the helpful info on this forum.

Coupon-mad

jd576 said:

I have finally received the court claim documents, to which I have made an acknowledgment of service online.

I'm now in the process of collating the information necessary to write the defence.

I wanted to run the principal points of defence past the members of this forum in order to get some advice if any of these lines should not be pursued. 

These are the current elements I plan to include in the defence:

1. The claim is an exaggerated claim with disproportionate debt recovery costs of £60 added. Enough said, lots of information on the forum about this.

2. The signage and parking area is unlit in hours of darkness and the alleged contravention occured at night. There are no lights over the signs or even sufficient ambient light to read them.

3. There is no evidence of parking anywhere, only a photo taken by an ANPR camera where even the vehicle is unidentifiable except for the license plate. The photo is literally black. 

4. The parking management company is appointed by the landowner and not by the tenant (an enterprise). The tenant's lease gives the tenant, in whose bays I was properly parked (and from their perspective, authorised to use), the right to use these spaces. So the tenant has not mandated the parking management company and does not deal with them. Would Jopson vs HomeGuard / PACE v Mr N apply here?

5. The signage in the area in which the driver parked says that parking is for "Validated staff and visitors" and that the vehicle registration should be entered into the terminal at reception. All the parking in this entire area is for authorised users only, that is to say, it's not public parking in any way. It's for the tenants and their authorised visitors. 

The driver is a frequent visitor to one of the tenants and doesn't recall ever having forgotten to enter the vehicle registration details on the terminal. In this case, the driver is reasonably confident they did so, but can't be 100% sure. 

The tenant who the driver was visiting has supplied documentary proof that the driver was a valid visitor at that exact date and time. Said proof was supplied to the parking management company, who rejected it out of hand. The parking management company declined to supply a list of vehicle registrations or to prove in any way that the vehicle was not registered. It's simply their word that it wasn't.

So, the driver was not Joe Public parking in this bay, but a legitimate visitor availing themselves of facilities expressly provided for their use. 

Based on my current understand of Beavis vs ParkingEye, the judgement ruled that the parking management companies have a legitimate purpose in deterring unauthorised parking and using these parking charges to fund their operation. 

In clause 32 of the judgement, however, it notes that "The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation. The innocent party can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance."

I'm perhaps misinterpreting this, but it appears to me that the obligation to register on the terminal is simply a secondary obligation to establish that the user of the parking bay is indeed an authorised user. 

Assuming for one second that the driver did forget to register, but post-facto established conclusively that they were a legitimate visitor and supplied that proof to the parking management company, then surely the "impugned provision" in this case is the requirement to register and that it is a secondary obligation (the primary being the need to be a legitimate visitor), so it's imposing a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation and is thus an unrecoverable penalty charge?

Yes to ALL pf the above and we agree re your interpretation of Beavis. Nice preparation.  You'll be fine.

jd576

The Claim Form sent to me is below

Looking at the second paragraph of the template defence, unless I am mistaken, this POC appears compliant with 16.4 / 16PD3 / 16PD7, so this paragraph needs to be removed from my defence.

Is there anything non-compliant? The address particulars of the claimant (the parking company) and the Defendant are correct and contain postcodes. 

Coupon-mad

No do not remove anything from the template because 'unauthorized parking' is vague and does not specify the term breached by the driver. Not do they say why they are pursuing you (presumably the registered keeper).

I have that early paragraph in the Template Defence (i.e. used in every case) because no parking POC really complies.

It's poor and it's boilerplate vague rubbish.

In your facts paragraph, include that the Defendant appealed and at all times disputed the allegation that the vehicle was somehow 'unauthorized'. The tenant who the driver was visiting supplied documentary proof months ago, to the Claimant, that the driver was a valid visitor at that exact date and time. The parking management company rejected it out of hand and refused to supply a list of vehicle registrations or to prove in any way that the vehicle was unauthorized. This conduct by the Claimant disadvantaged the Defendant, failed to narrow the issues and as such, it was in clear breach of the Pre-Action Protocol for debt claims, as was the series of inflated demands which are inappropriate in a 'disputed debt' case.

jd576

Coupon-mad said:

No do not remove anything from the template because 'unauthorized parking' is vague and does not specify the term breached by the driver. Not do they say why they are pursuing you (presumably the registered keeper).

I have that early paragraph in the Template Defence (i.e. used in every case) because no parking POC really complies.

It's poor and it's boilerplate vague rubbish.

Great, understood thanks.

Responding now to the comment you made in the other thread I posted asking for copies of judgements (so as to keep the discussion in this thread)

https://forums.moneysavingexpert.com/discussion/comment/80880033#Comment_80880033

Coupon-mad said:

jd576 said:

I've managed to download a couple of judgements where claims have been struck for abuse of process / double recovery, although I've seen many more that are unsuitable to submit as evidence since they're heavily redacted..

Does anyone have a link to a bundle of such judgements in a form / quality suitable for submission as evidence in a defence?

But that's not used any more.

If it was it would be in the NEWBIES thread. It's really old news. Cases are not struck out for that any more. You've been reading old threads. Stick with the current info only. The Template Defence.

I am indeed using the Template Defence. However, I do note that it has specific points dealing with exaggerated / enhanced claims, so I am presuming that there is still a strong case for finding against the plaintiff on the basis of these added debt recovery charges? This is where the request came from: surely then one should then submit copies of some of these judgements where the case was thrown out for double recovery / abuse of process in the witness statement?

Thanks by the way for all this really invaluable help and the time you've dedicated to making these resources available to everyone. 

Coupon-mad

There is no plaintiff.

The template already more than bashes to smithereens the added fake fee extortion that the Government must ban.  

Cases are no longer struck out without a hearing on the basis of double recovery though, because a credulous Circuit Judge made an appeal decision against that approach. Hence there is no point suggesting it before a hearing.

jd576

Coupon-mad said:

There is no plaintiff.

The template already more than bashes to smithereens the added fake fee extortion that the Government must ban.  

Cases are no longer struck out without a hearing on the basis of double recovery though, because a credulous Circuit Judge made an appeal decision against that approach. Hence there is no point suggesting it before a hearing.

Sorry, wrong terminology. I should have put "Claimant"

So, no moving for the case to be struck on this basis pre-hearing any longer, but it's certainly an element in any defence (12, 14, 17 of the template which also refers to some of these cases such as Skipton).

Surely then these relevant judgements should be submitted along with the witness statement or else they can't be relied on in court?