3 questions re: BW Legal claim

Johnersh

Mediation if done properly needn't just be about ££. If D were to ask for proper disclosure before agreeing to mediate on the basis that neither side can evaluate properly without that, C might be persuaded that their house was built on sand more frequently.

The PPCs routinely seek to ambush with new material and supplements which is plainly back to front.

Coupon-mad

Johnersh said:

Mediation if done properly needn't just be about ££. If D were to ask for proper disclosure before agreeing to mediate on the basis that neither side can evaluate properly without that, C might be persuaded that their house was built on sand more frequently.

The PPCs routinely seek to ambush with new material and supplements which is plainly back to front.

This is a good point as ever, @Johnersh

I think this - disclosure of documents - will be our new tactic for cases forced down the road to pathetic mediation bullying. And we'll have to coach Defendants not to cave in when a Mediator tells them that "parking charges are enforceable" and asks them how much they are prepared to offer (no laughing at the back!).

Ukay1

@Coupon-mad - have received the following letter on Fri from BW Legal.  I pretty much used the latest template defence at the time but added my own bit about how effectively they were only deprived of £0.60 so it was entirely disproportionate for them to seek £50 which has since ballooned to £160 (£100 of PCN and £60 BW Legal’s costs).

I include the relevant text of the letter below.  Would be grateful for any advice that you and others might share with me.

======

Response to your Defence

It is noted that your Defence has not been signed. We are therefore unable to verify if the defence filed has been completed by yourself and its validity. This shall be highlighted to the court should this matter proceed to a hearing.

The underlying purpose of our correspondence is to deal with purely the factual elements of our Client's claim. Whilst your defence raises a swathe of technical arguments, the source of which appears to be an online template, we do not intend to rehearse any technical arguments at this stage, as the suitable forum for this would be by way of submissions at the relevant hearing. We do not consider these arguments to be relevant as the evidence in our Client's possession supports their position that you breached the Terms and Conditions. As such, our Client maintains that you are liable for the parking charge. We respond to the remainder of your defence below.

The Particulars of Claim are a sparse statement of case and fail to state the facts necessary

The Claim Form was issued using Money Claims online. This was fuly compliant with Practice Direction 7C, which supplements CPR Part 7. The particulars clearly set out the basis of our Client's claim, i.e., the fact that it is contractual ni nature, the relevant date and location and sum being claimed as a result of the Terms and Conditions being breached by the driver. Further, the particulars of claim explain hte location, date and vehicle involved in the conduct that formed the contract, thus satisfying PD 16, paragraph 7.5

You left the Car Park on foot and realised your payment hadn't gone through. You paid for your parking at 15:50 which ended at 18:51. You paid effectively for 4 hours parking as 3 hours and 1 minute of parking tips into 4 hours.

As you have stated, you purchased a cashless payment session from 15:50 until 18:51. Your payment authorised your Vehicle to remain in the Car Park for 3 hours between this timeframe only however hte Automatic Number Plate Recognition (ANPR) cameras show the Vehicle entered the Car Park at 14:39 and remained for a duration of 3 hours and 47 minutes.

The signage at the Car Park clearly states "You must display a valid pay &display ticket within the windscreen or be in the possession of a cashless payment session for the entire parking period." As payment was not made until 15:50, 1 hour and 1 minutes after your Vehicle entered the Car Park, the Vehicle did not have a valid parking session for the entire time it was parked. As such, you parked in breach of the Terms and Conditions of hte Car Park, resulting ni liability for the PCN. It was your responsibility ot ensure that you purchased a ticket for the Vehicle upon entering the Car Park.

There was only a shortfall of 60p . The Claimant has suffered no financial loss.

Our Client has contracted with you, subject to compliance with their Terms and Conditions. Following your breach of these terms, our Client is simply enforcing their contractual position by recovering the parking charge from you.

The claim is unfair and inflated with exaggerated fees.

The signage in the Car Park informs the driver of the parking charge should any of the Terms and Conditions displayed on the signage be breached. The signage also informs you that non-payment wil result in debt recovery charges being added to the parking charge. Debt recovery charges are permitted to be charged due to the further work incurred to recover the unpaid PCN.

As payment was not received, we were instructed by our Client on the matter and a £60.00 instruction fee was added to the balance due. As a claim has now been issued legal costs have been incurred which our Client is entitled to recover from your Client.

The government published a statutory Parking Code of Practice

The draft Code of Practice was withdrawn by the Government ni June 2022. There is no current draft Code, and therefore nothing to even guide what might be implemented in the future.

The Consumer Rights Act creates a statutory duty upon courts to consider the test of fairness. 

PCNs are unregulated and not subject to the Consumer Rights Act 2015.

 

It is not accepted that the Claimant has authority to form contracts at the site in their name/lack of landowner authority.

Our Client relies on its contract with the driver as the basis of its claim (where the driver breached our Client's Terms and Conditions). Our Client's agreement with the landowner is not relevant, and you have no legal standing ot interfere with our Client's commercial rights, as a third party.

We confirm our Client acts on behalf of the landowner and are therefore authorised to manage and enforce the Terms and Conditions displayed in the signage, issue PCNs and enforce them.

What to do next

Our Client is willing to resolve matters with you 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 ot you. If you do not contact us by the above date, we wil proceed with the claim on our Client's behalf and your account could incur additional costs &fees if the case progresses to a hearing.

We would like to bring to your attention the following options available to conclude the matter:

• Payment in full as a lump sum within 21 days.
• etc. etc.

LDast

Coupon-mad said:

Johnersh said:

Mediation if done properly needn't just be about ££. If D were to ask for proper disclosure before agreeing to mediate on the basis that neither side can evaluate properly without that, C might be persuaded that their house was built on sand more frequently.

The PPCs routinely seek to ambush with new material and supplements which is plainly back to front.

This is a good point as ever, @Johnersh

I think this - disclosure of documents - will be our new tactic for cases forced down the road to pathetic mediation bullying. And we'll have to coach Defendants not to cave in when a Mediator tells them that "parking charges are enforceable" and asks them how much they are prepared to offer (no laughing at the back!).

Which is precisely what the “short” defence and draft order, put together by a long serving district judge, is designed to do. 

KeithP

BW Legal said:
The Consumer Rights Act creates a statutory duty upon courts to consider the test of fairness. 

PCNs are unregulated and not subject to the Consumer Rights Act 2015.

I wonder why they think Parking Charge Notices - and by implication, the whole private parking regime - are not covered by The Consumer Rights Act?

Or are those two sentences really saying "yes we know PCNs are unfair, but the CRA allows us to get away with that"?

Coupon-mad

PCNs are unregulated and not subject to the Consumer Rights Act 2015.

Haha! Balderdash!

Some clueless clerk is getting muddled up with the CCA 1974.  Stooooopid. Embarrassing from a supposed 'legal' firm.

Castle

KeithP said:

BW Legal said:
The Consumer Rights Act creates a statutory duty upon courts to consider the test of fairness. 

PCNs are unregulated and not subject to the Consumer Rights Act 2015.

I wonder why they think Parking Charge Notices - and by implication, the whole private parking regime - are not covered by The Consumer Rights Act?

Or are those two sentences really saying "yes we know PCNs are unfair, but the CRA allows us to get away with that"?

Something the SRA should consider as a complaint about a possible breach of 1.4 of the Code of Conduct.

You do not mislead or attempt to mislead your clients, the court or others, either by your own acts or omissions or allowing or being complicit in the acts or omissions of others (including your client).

Ukay1

“ PCNs are unregulated and not subject to the Consumer Rights Act 2015.”

Yes, I did find that an odd statement.  Isn’t the whole point of the CRA that it protects consumers from unscrupulous business practices…as in precisely this situation?  

Coupon-mad

Yep.

And it is even cited as absolutely fundamental in the incoming statutory Code of Practice, because I pointed it out to the DLUHC 4 years ago to make sure the signage/notices aspects of the new Code would be properly based upon it. Along with the Equality Act 2010 and its connected EHRC Code which also get a mention.

It's a proper parking CoP unlike the joke concocted by the IPC & BPA recently.

Of course those consumer protections relate to alleged contractual parking scams. This makes me so angry.

How DARE BW Legal mislead consumers.

Ignorance of the law is no excuse...

Ukay1

@Coupon-mad

I guess the question I have is am I right to think that a mediator or judge would not be swayed either by fact that PCNs are subject to the CRA 2015 and that there is a withdrawn code of practice by the government?

If that’s correct then would my situation not ultimately come down to the applicability or otherwise of the principles laid down in Parking Eye?  For instance, could Parking Eye be distinguished as it involves a car park with a free time limit whereas in my case it was a paid for car park which I did pay for but for which there was a £0.60 shortfall due to an error with the parking payment app?  

It just seems more than a little unjust that they were mistakenly deprived of £0.60 and as a result are now seeking £160 from me.   

Is it even worth responding to their letter and if not what course of action would you suggest?

Be grateful to hear any other thoughts you may have.

Thanks again.