Excel & BW Legal

Mahone1302 · 10 June 2016 at 5:55PM

A few days ago I started a thread about Parking Eye. This one is still on going however I did mention during that thread another ticket I had received, from Excel. This one had gone quiet but has now come back and I need advice on what to do here.

Back in November my car was parked by the driver in an Excel P&D car park. A ticket was bought and displayed for 2 hours parking however however this was overstayed by approx 15 minutes. A PCN/NtD from Excel Parking was left on the windscreen for the driver.

Due to personal issues of the driver, the ticket got lost among a load of paperwork and completely forgotten about.

It wasn't until early March when I picked up some letters from an old address (where I had lived until the December, and would have been the RK address at the time) that I opened two up from 'Rossendales Collect' dated at the beginning and middle of February. The first one talked about how 'since our last letter' I hadn't made arrangements to pay, and the second stating if I didn't pay up the debt would be returned to Excel. I did a bit of research and noted two things:

1) For Excel to hold me liable as keeper, they'd need to serve an NtK within 56 days (I think?) of the parking event. No NtK had been received.
2) The advice was to ignore debt collectors.

At the time I was obviously way out of appeals time anyway, and as I hadn't received an NtK I wasn't too concerned as I didn't think Excel would be able to ultimately hold me liable and didn't feel it necessary to inform them that I had moved house. Unfortunately a few days ago I picked up some more letters, one of which was an NtK from Excel dated 10/12/2015; and thus within the 56 days from the parking event. This must have got lost and not passed on immediately.

I picked up some more letters today and one was from BW Legal. It is dated 06/06/16 states "FINAL NOTICE". It begins by stating that further to their letter on 06/05/16 the balance of £154 hadn't been paid.. I haven't received any such letter however recent history has taught more that this doesn't mean it wasn't sent. :doh:

I've done a bit of research on this forum and what appears to be the most important bit of this letter is the bit that states:

"Our client now requires full payment of the Balance within 10 days from the date of this letter, this date being 16 June 2016, failing which our client has instructed us to commence County Court proceedings against you........"

Would this be a Letter Before Court?

If so, what is my next step? I'm aware that I've damaged by chances of beating this ticket by not appealing within the relevant times etc, however am I right in thinking that even if it did go to court (which I understand can be a lottery) and I did lose, the amount I'd be ordered to pay wouldn't be much more than the £154 I'm currently being asked for anyway? I'm aware that should I lose at court then I won't get a CCJ until I fail to pay what I'm ordered to pay.

I'll be popping to the car park tomorrow with a view to looking at signage etc for defence in court. Any other advice?

Redx · 10 June 2016 at 11:14PM

same advice as this VCS one , same company, same owner anyway

http://forums.moneysavingexpert.com/showthread.php?t=5197821

a typical court case judgment may be around £200 if you lost , could be more , could be less

pay it promptly and no CCJ

if you win you pay nothing and can claim up to about £90 in expenses etc

neither Excel nor VCS use POFA 2012 , they work on the presumption that the keeper and the driver are one and the same

if you feel the letter is an LBC, respond robustly

Mahone1302 · 13 June 2016 at 10:59AM

At this stage what should my robust response include? I had a quick look at the car park yesterday, but didn't have chance to take photographs of the signs. There is a sign on entry, and the exact same sign is positioned next to both ticket machines. There are also several slightly different and smaller signs dotted around the car park. I didn't get chance to read them (only had time for a quick drive through) however I noticed that the bottom third of the big signs is filled with tiny writing that whilst driving, even whilst parked up, is impossible to read. I didn't get chance to get out and go over and have a read of this small writing, but it doesn't seem to fit "large lettering" requirement, however I'd have to double check what is on the rest of the sign.

Furthermore I'm just having a good read through POFA and it appears that their NTK isn't particularly compliant. Even at this stage can I run with the no keeper liability argument?

Coupon-mad · 13 June 2016 at 2:12PM

You will see plenty of other threads like this here and on pepipoo showing a robust response, here's an example showing Gan's recommended initial reply and then my recommended reply a second time, to throw it back at them (that's me, posting as SchoolRunMum yesterday):

http://forums.pepipoo.com/index.php?showtopic=106157&st=0

it appears that their NTK isn't particularly compliant.

Excel NTKs are not at all compliant (not meant to be). They make no attempt to hold a keeper liable because they don't have to, they assume 'driver liability' and that's why you see on other threads like the above, responses saying the driver can't be assumed and that 'Elliot v Loake' (which is what Excel would rely upon) is inapplicable.

You can run with no keeper liability as long as no-one appealed or rang them earlier and gave away who was driving.

BTW if this was a retail park like the Peel Centre, then it could be argued the 15 minutes was spent driving in/out and reading the signs as well as the 'driver' quite possibly collecting a takeaway from KFC (which has its own 15 minute free parking offered on a separate sign). As this was a windscreen PCN, was the car there and still parked for 15 minutes beyond the expiry? Makes it harder to argue that a grace period should have applied.

You should certainly compain to any retailers used (if any are onsite) before this goes to court papers. Often retailers can insist on cancellation for customers but not once court papers are served.

Mahone1302 · 17 June 2016 at 2:43PM

Here's my response:

Dear Sir/Madam,
RE: Your reference xxxxxx

Regarding the above reference number quoted to me in your letter dated 6 June 2016; I maintain that no responsibility for the “offence” alleged, and I deny any debt at all, I have no intention of paying the money demanded by your client and any court proceedings will be vigorously defended.

As keeper I have visited the car park in question since receiving correspondence from yourself and I believe that the signage of the car park in question is inadequate, failing the 'large lettering' requirement and as such any contract with the driver is denied, and in any event I am under no obligation to name the driver and you have no legal basis to make an assumption that as the registered keeper, I was the driver.

Your client has failed to comply with the Protection of Freedoms Act (POFA) 2012 and therefore you have no cause of action against myself as keeper. The requirements being that Excel failed in their Notice to Keeper (dated 10/12/2015) to state that they did not know the drivers details and that the keeper can be held liable, as is required under POFA 2012, Schedule 4, Paragraph 9(2)(e). A Notice to Keeper compliant with the aforementioned legislation is required to be served upon the registered keeper within the period of 28 days that follows the period of 28 days beginning the day after the notice to driver was given, as required under Schedule 4, Paragraph 8(5) of POFA 2012. In the absence of any reliance upon the POFA Schedule 4, it would be for Excel to establish who the driver was, and that a contract existed with that person. So far, no such evidence has been supplied.

There is no evidence your client has any proprietary interest in the land. Please provide a copy of the contract(s) authorising Excel to offer contracts for parking in their name and pursue unpaid parking charges including through court proceedings in their name on the material dates.

The amount charged bears no relation to the parking fee. Your debt collection costs of £54 are not appropriate. The amount is also excessive. I refer you to ParkingEye v Somerfield where debt collection costs of £60 were found to probably be a penalty by HHJ Heggarty.

Should it be your client’s intention to start court proceedings, they must provide a Letter Before Claim which complies with the requirements of the Practice Direction on Pre-action conduct. Please note that a failure and/or refusal to comply with the Practice Direction will result in a complaint being made to the court and an application for a stay of action and costs pursuant to the provisions of paragraph 4 of the Practice Direction on non-compliance and sanctions.

This charge is disputed and you must now refer this matter back to your client and cease and desist all contact with me. If you persist, I will not hesitate to report BW Legal to the SRA.

Regards

Coupon-mad · 17 June 2016 at 5:12PM

Yep, that's robust and marks you out as someone whose plan is 'fight' not 'flight'. We suspect they are more likely to proceed against weak responses, idiots and hapless victims who phone them to talk about it, and people who carry on ignoring with their head in the sand.

If they try a small claim it is not a huge risk at all and can be defended.

Mahone1302 · 14 July 2016 at 11:43AM

Further letter receives from BW Legal. Unfortunately I have no idea what it says - it was posted to my previous address (where all previous correspondence was sent to) and was returned to sender rather than forwarded to myself. This is despite my previous email to them (above) having my current postal address on the top right, as well as the final line clearly stating that my new postal address is at the top of the email and not the address with postcode XXXXXX etc.

I've emailed them this morning to this effect and warning them that any further correspondence sent to my old address would be a clear breach of the DPA and may lead to the contents being disclosed to unauthorised persons and I will not hesitate to report any further breaches to the ICO.

Mahone1302 · 7 August 2016 at 7:03PM

So finally BW have written to me at my current address, no apology or acknowledgement that they were sending letters to the incorrect address despite being told the correct one! Just another offer of 7 days to pay the 'balance' of £154.

They attached a copy of the previous letter - the one that I didn't get to read. Oddly they refer to "VCS's claim is for the sum of £154 in relation to monies (and legal expenses) owed pursuant to the PNC" even though this was an Excel parking ticket. I'm aware that Excel and VCS are in some way related, however is this normal for them to refer to VCS?

They point out that in my previous letter I suggest that I was not the driver at the time, and would be grateful if I could tell them the drivers name and address. "We bring your attention to the case of Elliott v Loake [1982]" they say! Now I don't know much about this case but from what I've read on here, it's one that is often bandied around by these companies even in circumstances where it would be irrelevant? Can anybody elaborate on this for me?

Below that it says "Further, we can confirm that our previous letters were putting you on notice of the consequences of not making payment should legal action be taken against you" What a load of absolute clap trap, designed to cause fear by confusion.

Other than that, just a mention of how I was allowed 28 days from date I received (yes, received apparently!) to dispute it or appeal through an independent service, and that as both of these options have no expired my recourse for dispute is through the county court process which could increase my liability further. So more misleading content. However they're very amenable to resolving the matter within 7 days, apparently. However failure to do so they will seek their clients instruction on issuing court proceedings. Clearly not an LBA then.

Coupon-mad · 7 August 2016 at 7:08PM

I would always reply even if you just re-hash what you sent before. Have the last word, do not leave the ball in their court at any time.

Elliott v Loake is exactly as you've read, an irrelevant case which was not about contract law and was a case where there was evidence as to who was driving. Not like here at all.

Mahone1302 · 7 August 2016 at 7:18PM

Ahh having done some research on Elliot v Loake, I now know from where I remembered the names - I didn't realise that it was a criminal case. How they can suggest it to be relevant is beyond me.

Mahone1302 · 7 August 2016 at 7:22PM

Coupon-mad wrote: »

I would always reply even if you just re-hash what you sent before. Have the last word, do not leave the ball in their court at any time.

Elliott v Loake is exactly as you've read, an irrelevant case which was not about contract law and was a case where there was evidence as to who was driving. Not like here at all.

I shall do. I'll write a reply on Tuesday evening once the kids have gone to their mothers! The impression I'm getting from BW Legal is that they've no particular appetite to take me to county court just yet, but are trying the scare tactics anyway. Having been grilled by defence Barristers in criminal court on several occasions, I'm not particularly worried about BW Legal and their flimsy legal arguments and their clients inability to adhere to the very legislation that would have allowed it to pursue me as RK. I wonder if it is worth asking BW Legal to confirm whether or not they/Excel are relying on POFA2012 to hold me liable?

Excel & BW Legal

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