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    • marknopark
    • By marknopark 8th Jun 18, 12:38 PM
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    marknopark
    BW Legal 'letter of claim'
    • #1
    • 8th Jun 18, 12:38 PM
    BW Legal 'letter of claim' 8th Jun 18 at 12:38 PM
    Hi all. Received a 'letter of claim' from BW Legal advising potential legal action in the form of a claim against myself in county court in respect of a parking debt.

    Backstory;

    The driver was visiting their Dad and parked by the gate that is used to gain entrance to his front door, was unaware at the time that the land was not his (have parked there a number of times) and actually belonged to the neighbouring block (there is a sign displayed to advise against unauthorised parking on the land etc)


    The register keeper of the vehicle received the original 'fine' and subsequent correspondence including debt collection letters but has chosen to ignore all of them up until now.

    After finding this forum it would seem that the 'letter of claim' is the catalyst for the registered keepr to begin to take action, after reading the newbies thread the keeper is about to send the following letter, a copy of Daniel san's as detailed in the newbies thread by Coupon-mad;



    Dear Sirs,

    Thank you for your letter of claim dated xxxxxxx, reference: xxxxxxxxx.

    Your letter contains insufficient detail of the claim and fails to provide copies of evidence your client places reliance upon.

    Your client must know that on 01 October 2017 a new protocol is applicable to debt claims. Since proceedings have not yet been issued, the new protocol clearly applies and must be complied with.

    Your letter lacks specificity and 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 of the documents / 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 draw any failure of the Claimant to comply with the protocol to the attention of the court and to ask the court to stay the claim and order your client to comply with its pre-action obligations, and when costs come to be considered.

    As solicitors you must surely be familiar with the requirements of both the Practice Direction applicable pre-1 October and the Protocol which applies thereafter (and your client, as a serial litigator of small claims, should likewise 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. Its express purpose is to assist parties in understanding the claim and their respective positions in relation to it, to enable parties to take stock of their positions and to negotiate a settlement, or at least narrow the issues, without incurring the costs of court proceedings or using up valuable court time. It is astounding that a firm of Solicitors are sending a consumer 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 Practice Direction and now the Protocol.

    I require your client to comply with its obligations by sending me the following information/documents:

    1. an explanation of the cause of action
    2. whether they are pursuing me as driver or keeper
    3. whether they are relying on the provisions of Schedule 4 of POFA 2012
    4. 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
    5. Is the claim for a contractual breach? If so, what is the date of the agreement? The names of the parties to it and provide to me a copy of that contract.
    6. Is the claim for trespass? If so, provide details.
    7. Provide me a copy of the contract with the landowner under which they assert authority to bring the claim, as required by the IPC code of practice section B, clause 1.1 !!!8220;establishing yourself as the creditor!!!8221;
    8. a plan showing where any signs were displayed
    9. details of the signs displayed (size of sign, size of font, height at which displayed)
    10. Provide details of the original charge, and detail any interest and administrative or other charges added
    11. Provide a copy of the Information Sheet and the Reply Form


    If your client does not provide me with this information then I put you on notice that I will be relying on the cases of Webb Resolutions Ltd v Waller Needham & Green [2012] EWHC 3529 (Ch), Daejan Investments Limited v The Park West Club Limited (Part 20) !!!8211; Buxton Associates [2003] EWHC 2872, Charles Church Developments Ltd v Stent Foundations Limited & Peter Dann Limited [2007] EWHC 855 in asking 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 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. Should your client do so, then I will seek an immediate stay pursuant to paragraph 15(b) of the Practice Direction and an order that this information is provided.





    Yours faithfully




    Just want to make sure the keeper is not doing anything wrong or taking any mis-steps before sending the letter.

    Would appreciate any input.

    thanks
    Last edited by marknopark; 22-07-2018 at 6:14 PM.
Page 2
    • Umkomaas
    • By Umkomaas 22nd Jul 18, 7:03 PM
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    Umkomaas
    Based on the info in my earlier posts what is the best lines for defense?
    You haven't really given much info about the important issues like:

    Was the Notice to Keeper PoFA compliant?

    What does the signage say at the location? Is it 'contractual', 'permit only' or 'prohibitive'? Do you have your own photos of it? Do you have your own site map with the location of each sign shown on it? Was there a sign in close proximity to where your vehicle was parked? Do you have a photo of the parking spot showing no sign in proximity?

    You have to challenge their landowner authorisation to issue charges and whether that authorisation allows them to pursue through the courts?

    You need to do some forum searches on 'BWL Residential Defence' to find other similar (but won't be exactly the same) recent cases with well developed defences from which you can copy and paste sections.

    Doesn't the NEWBIES FAQ sticky, post #2 link to a residential defence? Have a look.
    The fact that I have commented on your thread does not mean I have become your personal adviser. A long list of subsequent questions addressed for my personal attention is unlikely to receive a reply.
    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • marknopark
    • By marknopark 30th Jul 18, 9:12 PM
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    marknopark
    You haven't really given much info about the important issues like:

    Was the Notice to Keeper PoFA compliant?

    What does the signage say at the location? Is it 'contractual', 'permit only' or 'prohibitive'? Do you have your own photos of it? Do you have your own site map with the location of each sign shown on it? Was there a sign in close proximity to where your vehicle was parked? Do you have a photo of the parking spot showing no sign in proximity?

    You have to challenge their landowner authorisation to issue charges and whether that authorisation allows them to pursue through the courts?

    You need to do some forum searches on 'BWL Residential Defence' to find other similar (but won't be exactly the same) recent cases with well developed defences from which you can copy and paste sections.

    Doesn't the NEWBIES FAQ sticky, post #2 link to a residential defence? Have a look.
    Originally posted by Umkomaas

    Here is the PCN - http://i68.tinypic.com/1snwk9.jpg


    And here are the signs that were up, The vehicle was parked pretty much underneath the first sign;
    http://i63.tinypic.com/qqv69h.jpg
    http://i64.tinypic.com/kcf7ra.jpg
    • KeithP
    • By KeithP 30th Jul 18, 10:01 PM
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    KeithP
    But your latest post doesn't answer any many of the questions posed by Umkomaas.

    This is a self help forum.

    You need to study the NtK and compare it with the legislation (there's a link to that in post #2 of the NEWBIES thread) and decide whether it is PoFA compliant or not.

    You need to look at the signs and decide whether they are 'contractual', 'permit only' or 'prohibitive'.


    What is the Date of Issue on your Claim Form?
    .
    • marknopark
    • By marknopark 30th Jul 18, 10:15 PM
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    marknopark
    But your latest post doesn't answer any many of the questions posed by Umkomaas.

    This is a self help forum.

    You need to study the NtK and compare it with the legislation (there's a link to that in post #2 of the NEWBIES thread) and decide whether it is PoFA compliant or not.

    You need to look at the signs and decide whether they are 'contractual', 'permit only' or 'prohibitive'.


    What is the Date of Issue on your Claim Form?
    Originally posted by KeithP



    As far as I can see it seems to be POFA compliant.


    I am assuming as the signs say 'contractual' on them they would be regarded as contractual.


    The date of issue on my claim form is 17/07
    • KeithP
    • By KeithP 30th Jul 18, 10:28 PM
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    KeithP
    The date of issue on my claim form is 17/07
    Originally posted by marknopark
    With a Claim Form Date of Issue of 17th July and the AoS having been done in a timely manner, you have until 4pm on Monday 20th August 2018 to file your Defence.

    That's nearly three weeks to hone your Defence to perfection, but please don't leave it until the last minute.


    When you are happy with the content, your Defence should be filed via email as described here:

    1) Print your Defence.
    2) Sign it and date it.
    3) Scan the signed document back in and save it as a pdf.
    4) Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
    5) Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
    6) Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
    7) Wait for the Directions Questionnaire and come back here.
    .
    • marknopark
    • By marknopark 30th Jul 18, 10:41 PM
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    marknopark
    With a Claim Form Date of Issue of 17th July and the AoS having been done in a timely manner, you have until 4pm on Monday 20th August 2018 to file your Defence.

    That's nearly three weeks to hone your Defence to perfection, but please don't leave it until the last minute.


    When you are happy with the content, your Defence should be filed via email as described here:

    1) Print your Defence.
    2) Sign it and date it.
    3) Scan the signed document back in and save it as a pdf.
    4) Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
    5) Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
    6) Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
    7) Wait for the Directions Questionnaire and come back here.
    Originally posted by KeithP

    OK thanks. I have just noticed whilst re-reading this thread that on the signage pictures I attached it states ''VEHICLES MUST BE PARKED WITHIN A MARKED BAY' but the pictures of the car parked that BW legal have provided show there are no bays marked out. Is this something that could used in the defense or is that trivial at this point?
    • Redx
    • By Redx 30th Jul 18, 10:43 PM
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    Redx
    there is no S in defence, so please change to the english spelling

    yes, no marked bays where the signage talks about marked bays is a defence point


    ie:- poor and indequate signage also means signs on the floor , bays , markings etc, not just on a sign up a pole or on a lamppost
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • KeithP
    • By KeithP 30th Jul 18, 10:53 PM
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    KeithP
    That Notice to Keeper says "A Parking Charge Notice (Notice to Driver) was affixed to the windscreen of the vehicle at the Issued Time".

    Is that true? You haven't mentioned a NtD.


    Your second sign picture shows two signs.
    One stating "Countrywide Parking Management Ltd", and the other stating "Bluemarlin Limited".

    At best that combination of signs are confusing.
    Even if a contract was entered into, it really isn't clear who the other party to the contract might be.


    This tells me that both the CPM signs are forbidding:



    Note the words - NO EXCEPTIONS.
    Last edited by KeithP; 30-07-2018 at 11:05 PM.
    .
    • marknopark
    • By marknopark 30th Jul 18, 11:23 PM
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    marknopark
    That Notice to Keeper says "A Parking Charge Notice (Notice to Driver) was affixed to the windscreen of the vehicle at the Issued Time".

    Is that true? You haven't mentioned a NtD.


    Your second sign picture shows two signs.
    One stating "Countrywide Parking Management Ltd", and the other stating "Bluemarlin Limited".

    At best that combination of signs are confusing.
    Even if a contract was entered into, it really isn't clear who the other party to the contract might be.


    This tells me that both the CPM signs are forbidding:



    Note the words - NO EXCEPTIONS.
    Originally posted by KeithP

    Apologies - Yes there was a notice to driver on the windscreen, and they have provided a picture of the car and the NtD on the windscreen.


    I too noticed the other parking companies sign, there was also a third sign which read along the lines of 'unauthorized parking will be clamped' or something to that effect although this sign was a basic sign with no T&Cs and looked like one you would get at B&Q or somewhere like that.
    • KeithP
    • By KeithP 30th Jul 18, 11:27 PM
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    KeithP
    ...there was also a third sign which read along the lines of 'unauthorized parking will be clamped' or something to that effect although this sign was a basic sign with no T&Cs and looked like one you would get at B&Q or somewhere like that.
    Originally posted by marknopark
    As clamping is now illegal in that situation, a picture of that sign will also help your case.
    Last edited by KeithP; 30-07-2018 at 11:45 PM.
    .
    • marknopark
    • By marknopark 7th Aug 18, 11:42 AM
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    marknopark
    First draft of my defense, would appreciate any feedback;





    Preliminary1. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defense. The Defendant reserves the right to seek from the Court permission to serve an Amended Defense should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

    1.1 The Claimant!!!8217;s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action. HMCS have identified thousands of similar poorly pleaded claims.

    1.2 The Defendant believes the term for such conduct is !!!8216;robo-claims!!!8217; which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. I have reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to my significant detriment as an unrepresented Defendant.

    2. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct.






    Background

    3. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark xxxxx which is the subject of these proceedings.

    4. It is admitted that on xx/xx/xxxx the Defendant's vehicle was parked at xxxxxxx.

    5. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.
    5.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA")
    5.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
    5.2.1. there was a ;relevant obligation; either by way of a breach of contract, trespass or other tort; and
    5.2.2. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
    It is not admitted that the Claimant has complied with the relevant statutory requirements.

    5.3. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offense has been committed. Those provisions do not apply to this matter.


    Authority to Park and Primacy of Contract
    6. It is denied that the Defendant or lawful users of his/her vehicle were in breach of any parking conditions or were not permitted to park.

    7. It is denied that there was any agreement as between the Defendant or driver of the vehicle and the Claimant
    7.1. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.




    Alternative Defence - Failure to set out clearly parking terms


    8. In the alternative, the Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to consider the imposition of a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.
    8.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate.
    8.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation also the Defendant avers that the operator's signs along with multiple other signs at the location are at best confusing and at worst deliberately ambiguous. There are signs from multiple parking enforcement companies, one of which claims !!!8220;vehicles must be parked within a marked bay!!!8221; when there are no marked bays at the location.
    8.1.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee's ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and
    8.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3
    8.2. The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The Claimant has not suffered loss or pecuniary disadvantage. The penalty charge is, accordingly, unconscionable in this context, with ParkingEye distinguished.
    9. It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement.

    10. It is denied that the Claimant has any entitlement to the sums sought.

    11. It is admitted that interest may be applicable, subject to the discretion of the Court on any sum (if awarded), but it is denied that interest is applicable on the total sums claimed by the Claimant.



    STATEMENT OF TRUTH
    I confirm that the contents of this Defense are true.
    • Le_Kirk
    • By Le_Kirk 7th Aug 18, 11:44 AM
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    Le_Kirk
    It's DEFENCE
    It's HMCTS
    • marknopark
    • By marknopark 7th Aug 18, 11:49 AM
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    marknopark
    It's DEFENCE
    It's HMCTS
    Originally posted by Le_Kirk

    changed, thanks for spotting.
    • KeithP
    • By KeithP 7th Aug 18, 12:57 PM
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    KeithP
    8.1.2. It's International Parking Community
    .
    • marknopark
    • By marknopark 14th Aug 18, 5:11 PM
    • 20 Posts
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    marknopark
    thank you for all your help so far, I have made the above changes just want to check there is nothing else I need to change/tweak before submitting?
    • Coupon-mad
    • By Coupon-mad 14th Aug 18, 5:18 PM
    • 62,736 Posts
    • 75,658 Thanks
    Coupon-mad
    8.2. The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The Claimant has not suffered loss or pecuniary disadvantage. The penalty charge is, accordingly, unconscionable in this context, with ParkingEye v Beavis distinguished.
    You need to add the word above, the Supreme Court case is not 'ParkingEye' alone.
    Last edited by Coupon-mad; 14-08-2018 at 5:29 PM.
    • Coupon-mad
    • By Coupon-mad 14th Aug 18, 5:27 PM
    • 62,736 Posts
    • 75,658 Thanks
    Coupon-mad
    Think about your words for a Judge! Put it another way, as per that link.
    Last edited by Coupon-mad; 14-08-2018 at 11:42 PM.
    • marknopark
    • By marknopark 14th Aug 18, 5:40 PM
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    marknopark
    Of course you don't DENY being the driver, in a court document, if it is a lie.

    https://forums.moneysavingexpert.com/showthread.php?p=74163259#post74163259

    Been said loads of times and it is obvious. Think about your words for a Judge! Put it another way, as per that link.

    I will remove my post above now and you should too, in case PPCs read this.
    Originally posted by Coupon-mad

    great thanks so much for the help
    • marknopark
    • By marknopark 6th Sep 18, 7:14 PM
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    marknopark
    Hi all, have just received the directions questionnaire, assume I just fill it out according to the directions in the following thread - http://forums.moneysavingexpert.com/showthread.php?p=71763411#post71763411
    • Coupon-mad
    • By Coupon-mad 6th Sep 18, 7:25 PM
    • 62,736 Posts
    • 75,658 Thanks
    Coupon-mad
    Yes, IamEmanresu knows his stuff.

    But you didn't need to look for that other thread - how to fill in the DQ is covered by bargepole in the 'what happens when' section of the NEWBIES thread post #2. He also spells it out, Q by Q.

    You are best reading the NEWBIES thread as it tells you about all stages.
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