LOC from BW Legal - advice requested

jd576

LDast said:

You have put down that there will be 2 witnesses. Any reason for that?

Yes. One other, including myself (the question asks, "how many witnesses including yourself" - I'm assuming (perhaps mistakenly) that I'm automatically a witness if I am giving evidence on my own behalf?

The other witness is intended to be somebody who manages the tenant's lease. I haven't asked them yet and it's possible they'll be resistant, in which case I'm unlikely to want to compel them and have a potentially hostile witness.

Failing a friendly witness, I intend to possibly compel a witness from the landlord who manages the relationship with the parking company to give evidence on the arrangements with the parking company and how it was imposed on the tenant. I may decide to simply subpoena the lease agreement and relevant documents/emails instead, but unless I put in that I intend to call a witness here, I won't have that option at the hearing, correct?

LDast

It's primarily for the allocation of a hearing location that can accommodate the number of witnesses. I don't think it will matter much if you don't manage to get another witness. Can you not simply get a statement from any potential witness rather try and compel someone to take time out to attend a hearing?

jd576

LDast said:

It's primarily for the allocation of a hearing location that can accommodate the number of witnesses. I don't think it will matter much if you don't manage to get another witness. Can you not simply get a statement from any potential witness rather try and compel someone to take time out to attend a hearing?

Yes, ideally I will get a witness statement from the tenant. I would not want to compel a friendly witness.

If I am unable to to get a witness statement because the tenant is unwilling for whatever reason, then I can accomplish more or less the same thing by compelling the landlord to come and supply the same information; given that the landlord is the one who appointed the parking management company, they're going to be hostile to me regardless.

I could perhaps just subpoena the relevant documents from the landlord, however it occurs to my cynical disposition that there might be some kind of kick-back arrangement in place between the landlord and the parking management company to share the revenue from the PCNs and they would only reveal this information under cross-examination.

Such a kick-back arrangement would definitely not sit very well with the primacy of contract that results from the tenancy agreement. Furthermore, the landlord is already levying charges on the tenant in the form of an annual £60 e-permit renewal fee according to a copy of one of the letters the tenant supplied to me. Such fee is not provided for in the tenancy agreement.

So, I might want to call an actual witness from the the landlord and thus wanted to provide for that possibility. 

jd576

This bottom-feeder BW Legal continues to astound me. During my replies to their initial demand, I sent my response by email to disputeresolution@bwlegal.co.uk.

This is the email address they have supplied on their own N180 form. I duly copied my DQ submission to this email address, as that's the one they gave.

I was floored to see my email bounce because they have explicitly added my email address to a blocklist (see the very last line in the attached image).

The degree of obstruction coming from this company is beyond reasonable.

LDast

So get another email address and send it from that. Plenty of free email service providers. Gmail for starters.

https://support.google.com/mail/answer/56256?hl=en-GB

jd576

LDast said:

So get another email address and send it from that. Plenty of free email service providers. Gmail for starters.

https://support.google.com/mail/answer/56256?hl=en-GB

Sure, did that already before I even commented here. It didn't bounce. I was just highlighting what utter bottom-feeders this company is, as if we didn't know that already 

jd576

The process so far has been moving forward as expected, with the case now being allocated to my local court, although CNBC appears to have lost the submitted defence and directions questionnaire, as the local court has written to me asking for copies of the defence and the directions questionnaire, which I've duly supplied.

The mediation appointment went ahead and I simply declined the offer to mediate, saying that there is no room for mediation (of course BW Legal had made an offer to settle which was derisory and rejected out of hand). I told the mediator that they say I owe them money and I say I don't and I'll see them in court. The call ended after about 5 minutes.

Today, there was an unexpected development: I received a letter from BW Legal. This letter is a "Response to your Defence" in which they specifically call out elements of the submitted defence and attempt to rebut them. It was on a BW Legal letterhead and is not an official court request or correspondence. 

In their rebuttal, they demand evidence be submitted to them by a specific date 3 weeks from the date of this letter.

At the end, they state that their client is willing to "resolve matters on an amicable basis, but you must contact us within 21 days of the date of this letter so that we can discuss the options available to you": basically, pay up and withdraw your defence.

I see nothing in the rules that obliges me to respond to this letter or to submit the evidence. I believe I only need to do this in the official witness statement.

This appears to be yet another attempt by BW Legal to strong-arm me into paying up without going through the court process. Am I reading this correctly and there is no obligation on me to respond or to submit the evidence to them directly (thereby giving them more time to prepare their case)?

Coupon-mad

Normal. Ignore that.

BW Legal always do a Reply To Defence. Standard stuff; it must scare some people into giving up. Choose three unusual keywords from the reply to defence and pop them into the search box along with 'BW' (to narrow it down) and you'll find your letter.

jd576

I'm currently commencing drafting my witness statement for the hearing scheduled towards the end of August.

Not having read this forum for a number of months, it would be helpful to catch up on any material events that might have bearing on my witness statement since I drafted and submitted my defence a year ago.

Earlier on in this thread, I posted a number of points of reasoning to rely on in my witness statement. I'm interested to know if these all remain valid and should be addressed with evidence in the witness statement, or if some of these are not or no longer relevant for any reason?

jd576 said:

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.

Paragraph 7 of the current updated template defence seems to indicate that this is still a perfectly valid line of reasoning. It appears that Beavis, ParkingEye vs Somerfield should be supplied as evidence. Should I also be referring to and submitting Excel vs Wilkinson? Any other transcripts I should submit to support the fake DRA fees argument?

jd576 said:

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.

I have multiple photos of the unlit signage. These can easily be supplied in print. Can I supply video evidence and if so, how does one supply it, since it must be supplied in digital form? I captured a video from the perspective of the driver that clearly shows lack of lighting and signage that is not at all visible and how it looks from the perspective of the driver at night and the video is quite compelling. The alleged infraction occurred right at the end of astronomical twilight, with no moon in the sky, so it was pitch dark to say the least.

jd576 said:

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.

Is it worth pursuing this point in the WS? Their claim is that their ANPR capture my license plate on entry and exit. There is no evidence that the car was parked in any spot (different parking spots within the area "managed" by PPM are allocated to different leaseholders, who may all have different terms in their lease agreements). Given that I actually admit I was there and where I parked, this may not be relevant. 

jd576 said:

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?

Primacy of contract: does Jopson vs HomeGuard / PACE v Mr N apply here and should be supplied as evidence? Any other relevant case law to cite and supply as evidence?

I need the lease agreement between the landowner, presumably the client of PPM, and the leaseholder. I have only an extract of the lease agreement rather than the whole document. This was previously supplied by the tenant / leaseholder.

This leaseholder is not easy to deal with (slow, super bureaucratic, only one external email address for the entire organisation) and the person who handled my requests a year ago has moved on.

The new person has no history and so I need to spin them up and ask for the lease agreement. As a fallback, I might need to subpoena the lease agreement and any relevant documents from the leaseholder.

I see I use an N20 for this purpose. What is the process for issuing the N20 to the 3rd party (the leaseholder)? Do I simply fill it in myself and send a copy to both the leaseholder and the court, or do I need to ask the court to send it to the leaseholder (and if so, how). If the court needs to issue it, is there time to do so knowing that the case goes to court in 4th week of August?

jd576 said:

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?

This is reasoning for disputing the charge of "unauthorised parking" cited on the claim form. Is it worth going into this detail in the WS?

Coupon-mad

All looks reasonable for inclusion in your WS to me but I have no idea about this (below). Sounds like an Americanism and over the top for a small claim:

As a fallback, I might need to subpoena the lease agreement and any relevant documents from the leaseholder. 
I see I use an N20 for this purpose. What is the process for issuing the N20 to the 3rd party (the leaseholder)?