Letter of Claim received (BW Legal) - help please!

Lamilad · 8 February 2018 at 3:46PM

clarification of whether they are pursuing me as driver or keeper; and if as driver, then please also provide the evidence that I was the driver at the time of the alleged contravention (which I dispute)
3. written confirmation that they are!not, as previously stated in correspondence, relying on the provisions of Schedule 4 of POFA 2012

You don't need to ask these questions if they've already answered them previously but you can certainly tell them that they must have proof of who was driving of they are not relying on PoFA, and you would like to see that proof.

chica0208 · 14 February 2018 at 10:47PM

Ok... how's this!? I'm still not clear on what "an explanation of the cause of action" means?

Dear Sirs,

I am in receipt of your Letter of Claim, dated (xxx) 2018.

I!!!8217;m afraid your letter contains insufficient detail of the claim and fails to provide copies of evidence your client is presumably relying upon. As such I must ask you to provide further information as detailed below, before I can decide how to proceed.

As of 1st October 2017 a new protocol has been applicable to debt claims, known as the Pre-Action Protocol for Debt Claims. I presume that your client, Vehicle Control Services Ltd (hereafter VCS), is aware of this? Since court proceedings have not yet been issued, this new protocol clearly applies and must therefore be complied with, by all parties.

Your Letter of Claim lacks specificity, and as such I believe it breaches both the requirements of the previously applicable Practice Direction - Pre-Action Conduct (paragraphs 6(a) and 6(c)) and the new Pre-Action Protocol for Debt Claims (paragraphs 3.1(a)-(d), 5.1 and 5.2. Please treat this letter as a formal request for all the currently outstanding documents and information that the protocol now requires your client to provide. Your client must not issue proceedings without complying with that protocol. I reserve the right to inform the court of any failure of the Claimant to comply with the protocol, and furthermore to ask the court to stay the claim and order your client to comply with its pre-action obligations.

As solicitors, authorised and regulated by the Solicitors Regulation Authority, who specialise in legal recovery, you must surely be familiar with the requirements of both the Practice Direction which was applicable before 1st October 2017, and of the new Protocol which applies thereafter. Your client VCS should also be aware of them. As you (and your client) must know, the Practice Direction and Protocol bind all potential litigants, whatever the size or type of the claim. The objectives of pre-action conduct and protocols are to assist parties in: understanding the claim and their respective positions in relation to it; to make decisions about how to proceed; to try to settle the issues without court proceedings; to consider a form of Alternative Dispute Resolution to assist with settlement; to support the efficient management of those proceedings; and to reduce the costs of resolving the dispute. I therefore find it wholly inappropriate that a firm of solicitors who specialise in legal recovery are sending a consumer (myself) a vague and unevidenced 'Letter of Claim' in complete ignorance of the pre-existing Practice Direction and the new Protocol.

Nobody, including your client, is immune from the requirements and obligations of the Pre-Action Protocol for Debt Claims. As such, I require VCS to comply with its obligations by sending me the following information/documents:

1. an explanation of the cause of action
2. The evidence they have that confirms that I was, as they claim, the driver at the time of the alleged contravention (which I dispute)
3. what the details of the claim are; where it is claimed the vehicle was parked, for how long, how the monies being claimed arose and have been calculated
4. Is the claim for a contractual breach? If so, what is the date of the agreement? Please provide the names of the parties to it along with a copy of that contract.
5. Is the claim for trespass? If so, provide details.
6. Provide me a copy of the contract with the landowner under which authority to bring the claim is asserted, as required by the IPC code of practice section B, clause 1.1: !!!8220;establishing yourself as the creditor.!!!8221;
7. a map showing where any signs were displayed, including those upon entering the business park where the alleged contravention took place
8. details of the signs displayed (size of sign, size of font, height at which displayed)

As your client has previously stated in prior correspondence, they are not relying on the provisions of Schedule 4 of POFA 2012, and therefore cannot claim keeper liability. As such, I can only assume they are pursuing me as the driver, and I would like to see their evidence of who was driving the vehicle. As PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified in 2015 with regards to keeper liability: !!!8220;there is no !!!8216;reasonable presumption!!!8217; in law that the registered keeper of a vehicle is the driver, and operators should never suggest anything of the sort.!!!8221;

If your client does not provide me with the above information, then I will ask the court to impose sanctions on your client and to order a stay of the proceedings, pursuant to paragraphs 13 ,15(b) and (c) and 16 of the Practice Direction, as referred to in paragraph 7.2 of the new Protocol.

Until your client has complied with its obligations and provided this information, I am unable to respond properly to the alleged claim and to consider my position in relation to it, and it is entirely premature (and a waste of costs and court time) for your client to issue proceedings in the meantime.

Yours faithfully, (etc etc)

Thank you in advance!

Coupon-mad · 15 February 2018 at 2:05AM

I'm still not clear on what "an explanation of the cause of action" means?

An explanation of what happened, that gave rise to a charge, which in turn gives rise to a claim.

chica0208 · 19 February 2018 at 3:21PM

Any further suggestions or advice on the above letter, or am I good to go? Should I just send it as is? Thanks!

Coupon-mad · 20 February 2018 at 2:32AM

Yes, send it in the morning, ordinary 1st class (NOT SIGNED FOR). Don't go to a postbox, instead get a FREE certificate of posting from your local PO Counter, a receipt, and keep it in your file.

chica0208 · 26 March 2018 at 10:08PM

Quick update - we have received a very quick response from BW Legal, writing off the majority of our concerns from this letter.

However, a few days later they also very helpfully sent "the information I have requested" - basically a copy of a parking ticket, photographs of a parked car (outside and inside) from various angles... but here's the best bit, we've never seen this vehicle before in our lives, nor were we in the location they state on the ticket, on the date the ticket states... Basically, they have sent a whole bunch of "evidence" presumably intended for somebody else's case, to us! Or else, they've mixed up their evidence files.

Either way - can we respond to this now to blow them out the water and hopefully prevent a court summons!? Something along the lines of "the evidence you have supplied only serves to confuse me further, I can categorically state that I have never driven nor indeed seen the vehicle (reg. no.) in my life" etc etc?

As an aside, they have stopped referring to Elliot v. Loake as their 'case in point' which supposedly proves that they will win in court, and are now using 'Combined Parking Solutions vs. AJH Films Ltd.' (I think this is the employer/employee one, right? e.g. not applicable in our case!)

Any advice on how to proceed here? Should we just sit tight and wait for a court summons now, or should we be responding in some way to (a) their first letter sent in response to our letter (questioning their methods, the pre-action protocol etc, as above), or (b) their second letter with all the incorrect evidence included!?!?

Thanks in advance for any wisdom! :-)

Coupon-mad · 27 March 2018 at 12:23AM

However, a few days later they also very helpfully sent "the information I have requested" - basically a copy of a parking ticket, photographs of a parked car (outside and inside) from various angles... but here's the best bit, we've never seen this vehicle before in our lives, nor were we in the location they state on the ticket, on the date the ticket states... Basically, they have sent a whole bunch of "evidence" presumably intended for somebody else's case, to us!

Woah! A DPA breach. Marvellous.

Now send a formal complaint to:

- BW Legal
- VCS
- the IPC (yes you will have to register to make a complaint)
- the DVLA
- the SRA (Solicitors Regulatory Authority)
- your MP

and ask how on earth can a 'law firm' like BW Legal have been so lax as to send you someone else's data, photos, name & address, car VRN, the lot, and just before the advent of GDPR? Rant and ask, how often is this happening, they need investigating by the SRA, the firm should not be allowed to handle the millions of robo-claims they deal with, their processes are failing and in your experience and opinion not GDPR-ready, you fear they've shared your data with someone else and can't trust them, etc. As such, you await the outcome of a full investigation by all parties and have copied in your MP, and will also be making a formal complaint to the ICO once you have the results of the investigation, and therefore BW Legal had better report their clear breach to the ICO first!

they have stopped referring to Elliot v. Loake as their 'case in point' which supposedly proves that they will win in court, and are now using 'Combined Parking Solutions vs. AJH Films Ltd.' (I think this is the employer/employee one, right? e.g. not applicable in our case!)

Yep, Excel v Smith (on appeal) debunked that, as mentioned in this ranty letter I wrote for someone:

http://forums.moneysavingexpert.com/showthread.php?p=74071023#post74071023

Copy anything you want from that one, if applicable.

Should we just sit tight and wait for a court summons now,

No, seize this chance to cause major problems. The first thing most PPCs do when sussed for data mishandling is to cancel a PCN to try to brush it all under the carpet. This could help you.

The_Deep · 27 March 2018 at 10:24AM

Please do not "brush this under the carpet". You have an opportunity here of causing this low rent law firm some serious harm. Many of us would love to be in your shoes.

chica0208 · 27 March 2018 at 7:57PM

Thanks Coupon-Mad. Happy to give this a go, certainly! Just wanted to clarify though - they didn't send us any personal identifiable information (such as name and address) - the cover letter was correctly addressed to my husband, it's just all the photos that followed which were somebody else's. No way of us actually identifying the other driver/registered keeper. So, I suppose it's not technically a breach of data protection - is this sufficiently bad for us to still make all these complaints as you've suggested? Obviously I can go down the "how do I know you haven't shared my information from somebody else, how do we know these breaches aren't even more personal" etc, but what do you think? Still grounds?

Coupon-mad · 27 March 2018 at 9:09PM

Yes it is, a VRN alone has been declared to be personal data, by the ICO.

Letter of Claim received (BW Legal) - help please!

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