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Recreated Topic - L.O.C. from BWL and PPL
tommypenny
post Wed, 26 Jun 2019 - 12:02
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The mods deleted the original thread at my request, so I will recreate it here with the main details and the advice I received from some helpful people:

NTK:




LOC:






I will make up the dates to protect privacy, but they are relative and therefore can be read as real….

The original PCN with ANPR photos states : “Issued Date: 7th December 2015” and “Entry time xxxx 28 November 2015”. The next letter about it came from DRP several months later and on that letter it states: “Parking Charge Date: 28 November 2015”. The original said 7th December it was “issued” - I know it’s splitting hairs, but that’s how our legal stuff works, is it worth splitting that particular hair?!



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Ostell comments:

Wish you had left in those dates, they may be relative but there is no indication if weekends and holidays were within the actual period. The Notice to Keeper must be delivered within 14 days. That is calendar days not including saturdays, Sundays or public holidays. It is presumed it is delivered within 2 working days.

Sitting in the car is still parking.

There is a contract created when the driver reads the sign. This has been agreed by the courts. It's still a speculative invoice. By not appealing you have missed the chance to appeal to POPLA, an independant second stage appeal, where your appeal would probably have been upheld because of the failures to comply with schedule 4 of The Protection of Freedoms Act 2012. Read paragraph 9 as there was no windscreen ticket.

These failings will be your defence.

Note that 9 (2) starts with "Must".

9 (2) (a) no period of parking given. Moving in front of a camera is not, by definition, parking.

9 (2) (e) failing to give the invitation to pay in the required format.

9 (2) (f) Failing to give the warning to keeper in the prescribed form. The period is not correct.

9 (2) (h) Failed to identify the creditor.

You may also have additional material under the Equality Act in that allowance must be made for the presence of a young baby and still nursing.

To your disadvantage is the fact that you have not responded at all to this previously.

The strength if the case is relatively high as they gave not complied with POFA


Whoever it us addressed to responds. f you are the registered keeper then you deal with it otherwise your wife deals, though nothing to stop you writing and get her to sign.

While the car is moving it is, of course, not parked. If it is stationary then it is parking, even if people are still with the car.

Yes, SAR to PPC but BWL have probably not got a lot. Letter to them is that to harrow the issues between you you require sight of all the documents that they intend to rely on in court.

So your best chance is non compliance with POFA, filled by an occupant of the car had protected characteristics and required additional allowances under the Equality Act. I believe this applies to a baby under a year. Check it out.

NTK has to be delivered within 14 working days, was it?

Sending by post then first class and get a free certificate of posting from a post office.


You ask BWL for all the documents they intend to use in order to narrow the issues between you, as required by Pre Action Protocols. Sooner rather than later so you hopefully get the info in good time. You also point out the POFA fails and it would be pointless taking thus to court as they will not win.


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Me: The reply to my SAR is pretty thin. They say I am not entitled to some things, and the included just the PCN and the "first reminder letter", but then the next thing on their computer system shows they passed it to a DCA. It's odd, why call it "first reminder letter" if there is no second?! A small issue, but I mention it in case they have breached any rules here. Pic attached:




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Ostell:

Have you at all investigated the equality Act which may be of some help for nursing mothers and young infants. extra allowances are required to be made. Non allowance could be subject to criminal sanction.


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Maca:

Maca: Don't just ask them to send all the documents that they intend to use to comply with the PAP as they will send very little. You should send them a list of all the documents that you are entitled to receive. Be explicit. They won't comply because it takes time and money. They might even shoot themselves in the foot by saying you are not entitled to see some documents. It will start to build a case that they are being unreasonable and importantly in non-compliance with the PAP.


They are listed in the PAP which you can access online. Remember that BWL are looking for easy wins and so your approach is to make it difficult for them. There will be plenty of easier wins on their list so just make sure you are well down the list in the 'too hard' section.

There has been recent flurry of the PP PCNs being dusted off by BWL. The passage of time is probably to catch people out who have lost all previous correspondence or even moved house etc. They are looking for easy wins. So don't be one!


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Redivi:

Dear Sir

Ref ****

I have received your letter dated **** that purports to be a Letter of Claim although it fails woefully to meet the requirements of the Pre-action Protocol for Debt Claims

Please address this failure and provide a properly formatted Letter Before Claim

In order to avoid further delays, please also provide the following documents and information:

1 Copies of all the documents and evidence that your client intends to rely on
2 Copies of any other documents/letters sent to me or the registered keeper
3 The information provided by the DVLA regarding the details of the registered keeper
4 Any photographs of the driver
5 Any other documents that identify the driver
6 A copy of your client’s contract with the land-owner under which it asserts the authority to bring a claim, as required by the IPC Code of Practice Section B clause 1.1
7 A copy of your own contract with your client that supports your addition of £60 legal costs
8 Copies of my emails and recordings of my telephone conversations with your company
9 A plan showing the distribution of the signage, and the location of the vehicle
10 Details of the signs displayed – size, content, font, height of display

Please also state clearly :

1 Is your client pursuing me as the driver or the keeper ?
2 Is your client relying on Schedule 4 of POFA 2012
3 Does your client still intend to rely on Elliott v Loake as stated in your email ?
4 If so, how does the case support your client’s position ?
5 Is the claim for a contractual charge, a breach of a contract or trespass ?
6 What is your client’s specific allegation :
No payment for parking was made ?
The vehicle overstayed the paid for period ?
The parking was paid for but the voucher was not displayed ?
7 Does your client dispute that a motorist that fails to pay for parking has not accepted a contract and is a trespasser ?
8 Why do you believe that your £60 Initial Legal Costs are exempt from CPR 27.14(2) ?
9 On what date did your client instruct you to commence legal action ?

I refer you to the instructions in the Protocol regarding the deadline to provide this information
Unless you are in the habit of sending Letters Before Claim without inspecting your clients' documents, it should already be in your possession
I also refer you to the instruction that you must not take legal action until to have complied with my request

When I have received a properly formatted Letter Before Claim and the requested documents/information I will provide an appropriate response

Yours Faithfully


-----------

Maca: Redivi's letter is just what you need! Their LBC is woefully inadequate and they will not be happy to receive Redivi's letter! It is extremely unlikely that they will reply in full.


Yes I was referring to the woefull LBC you received from BWL. and yes you are effectively writing letters for the benefit of a court should it go that far. BWL legal will not take it seriously. They are just looking for an easy win which you are not providing.

Don't bother with POPLA or IAS. They are a waste of time and you are beyond that point anyway. BWL have started legal proceedings although if that is their best attempt it is pretty poor!



--------


Redivi:

Just remember that anything that isn't necessary has potential to be twisted against you or at least used as a distraction

Change #3 if BWL hasn't previously mentioned Elliott v Loake

3 Does your client intend to rely on Elliott v Loake ?


--------


Nosferatu:


Read up on it.
Its a case the PPCs try to use to claim the keeper is liable even if they werent driving and they havent met the POFA reuqirements. They state it creates a presumption the keeper was driving when the case *actually* states no such thing.



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Redivi: Use Pre-action Protocol for Debt Claims

It's the specific protocol that came into effect in October 2017 for businesses claiming a payment from an individual



You always defend it as keeper, never as driver

That leaves Premier the job of proving that the keeper was probably driving OR that it met the conditions of POFA

I don't know what you've written but it's a near certainty that it's superfluous

Arguing on the grounds of protocol is a waste of time
The court won't care

Much better to pepper any defence later with
The Defendant asked the Claimant's solicitor for this information but the request was ignored

Just keep the letter brief and polite, no abuse or threats
It will form part of the court documents

The letter in Post #26 that I drafted is all that you need
You don't have to inform them that you won't be replying to anything else
The letter says that, when they send the requested information, you will give a proper response to the Letter Before Claim
It naturally follows that, if BWL doesn't, you won't be able to respond


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SheffieldDave:

They are exceedingly unlikely to know the identity of the driver unless you let it slip, This most often occurs when appealing - e.g. the keeper sends an appeal in their own name, and somewhere in the appeal says something like "I didn't see any signs", thus confirming that that the keeper and driver are the same person.

If you haven't made any such admission to them, then you can safely assume they don't know who the driver is.

If the PPC comply with the strict wording of POFA, then the keeper becomes liable for anything the driver was already liable for, unless the keeper identifies the driver before it gets to court.

At no point is the keeper obliged to identify the driver, but the downside is that the keeper may then become liable.

If the keeper and driver are two different people, then identifying the driver is a way for the keeper to wash their hands of the matter ("here son, you parked my car, you deal with it").
If they are the same person, then there's never any benefit in naming the driver. It eliminates a defence point and potentially increases your liability.


---------

Nosferatu:

There is absolutely no obligation to name the driver. Whoever told you that is lying, or just badly informed. It only appleis when S172 applies and even then youre not forced to name the driver, you just get (heavily) punished if you dont - not quite the same thing, if functionaly similar in most cases.

The judge may of course ASK directly, but if the identity of the driver is truly not *known* as opposed to you are reasonably sure - well, reasonably sure isnt the same thing as knowing. ONe is an educated guess, the other isnt.


——————


Ostell:

Identifying the driver loses a lot of the extra defence points that POFA provides and can increase costs as there is no POFA protection of the amount that can be claimed.

If it gets to court it's nothing like what you see on TV. The hearing would be in a small room in the court building. Three desks in the room, the bigger one belongs to the judge. Not really anything to be really worried about. The judge would normally be helpful towards you.



——————

Umkomaas:



Once a court claim (proceedings) has (have) been issued, there can be no switching of liability - too late. Read PoFA.


—————


MacaPaca

The RK is being pursued and so the response should be from the RK! That is the simplest approach and is the best advice that you have received clearly on this forum.

Your best and simplest approach for the RK response to the LBC is to use the letter that Redivi posted for you as you have already been advised to use. That letter asks for the full 9 yards of information that the PAP entitles the RK to receive. BWL legal will not have all that information or the appetite to provide what they do have! Without providing the information then this is not going anywhere near court anytime soon! They do not want to go to court either as they will lose money!

Get the letter off ASAP and then you feel much better as you will have knocked the ball into their court!



You seem to be tying yourself in knots in a vain attempt to produce a perfect letter than will stop this in its tracks. I think you misunderstand how these companies operate. They do not want to spend money going through a detailed letter because it costs them money. As nosferatu has said they operate a robo process which applies zero intelligence. The letter that redivi advised you to send is not for BWL/PP's benefit because the robo process can't cope with replying to that. It is for your benefit because it builds up a picture that they are not being reasonable when they don't reply. It also signals that you are not going to just cave in and pay. The robo process then moves you down the list into the 'too hard' category.


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Me: I am not sure on something and hoping someone can advise...

Two documents I am studying carefully are the PAP for Debt Claims and POFA. Do both apply equally, or does one carry more weight than the other?
For example, when studying how they should deliver their LOC, I see both the CPR guidance and POFA refer to it, and set out how the letter should be formulated. Can I merge the two sets of guidance, or if not, which should I place more emphasis on (or which would a DJ care more about failures in?)


———————


Sheffield Dave:

FOFA is strict - they must dot every T and cross every I in order to make the Keeper liable.
PAP is more a set of guidelines. They are regularly flouted, and that flouting might at best (if you're very lucky) help support a claim for costs due to unreasonable behaviour. In practice it won't help getting their case thrown out.


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tommypenny
post Thu, 15 Aug 2019 - 16:13
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Member No.: 72,547



Good call! Will do that. thanks


This post has been edited by tommypenny: Fri, 16 Aug 2019 - 15:52
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Posts in this topic
- tommypenny   Recreated Topic - L.O.C. from BWL and PPL   Wed, 26 Jun 2019 - 12:02
- - ostell   And your query is ???   Wed, 26 Jun 2019 - 14:06
- - tommypenny   Sorry Ostell. There wasnt one, just want my thread...   Wed, 26 Jun 2019 - 15:37
- - tommypenny   My letter to BWL: ----------- Their reply:...   Wed, 26 Jun 2019 - 19:14
- - ostell   They are claiming keeper liability under POFA but ...   Wed, 26 Jun 2019 - 20:11
- - tommypenny   Thanks Ostell. No, the only thing I have sent them...   Wed, 26 Jun 2019 - 21:19
- - Macapaca   Their claim for £60 is not valid. It is disallowe...   Wed, 26 Jun 2019 - 22:57
- - tommypenny   Thanks Maca. Yes, I have read it a couple of times...   Wed, 26 Jun 2019 - 23:13
- - ostell   POFA 4(5) for the maximum that can be claimed   Thu, 27 Jun 2019 - 08:43
- - tommypenny   Thanks   Thu, 27 Jun 2019 - 10:42
- - tommypenny   Hi all. I have 5 days until my defence must be in,...   Thu, 8 Aug 2019 - 20:45
- - Redivi   How did we get from Letter Before Claim to five da...   Thu, 8 Aug 2019 - 22:36
- - tommypenny   Sorry, I should have mentioned.... I couldn't ...   Fri, 9 Aug 2019 - 09:37
- - Macapaca   My suggested answers to your questions: 1 No. Why ...   Fri, 9 Aug 2019 - 10:19
- - tommypenny   Thanks Maca.... 1. Given our personal situation h...   Fri, 9 Aug 2019 - 10:52
- - Macapaca   A drop hands offer is a sign of weakness and so it...   Fri, 9 Aug 2019 - 11:17
- - tommypenny   Undertood, thanks. I hadn't thought of how suc...   Fri, 9 Aug 2019 - 11:34
- - Macapaca   You need to ask yourself why the PPC never issued ...   Fri, 9 Aug 2019 - 12:13
- - tommypenny   Thanks Maca. Yes, I am well aware how non-complian...   Fri, 9 Aug 2019 - 12:32
- - tommypenny   edited   Fri, 9 Aug 2019 - 20:19
- - tommypenny   Draft defence being updated   Sat, 10 Aug 2019 - 11:56
- - Macapaca   Paragraph 1 is not numbered and is a sparse statem...   Sat, 10 Aug 2019 - 13:40
- - tommypenny   Excellent feedback, thanks Maca. Yes I did wonder ...   Sat, 10 Aug 2019 - 13:47
- - Macapaca   When compiling a defence like this it is clearly n...   Sat, 10 Aug 2019 - 14:05
- - tommypenny   And you're spot on. Thanks again, very much   Sat, 10 Aug 2019 - 14:17
- - tommypenny   Grateful for any comments on my revised defence. P...   Tue, 13 Aug 2019 - 14:57
- - Macapaca   It's an improvement but my previous comments a...   Tue, 13 Aug 2019 - 19:58
- - nosferatu1001   Indeed Have you found the MSE forum yet? Newbies ...   Wed, 14 Aug 2019 - 10:41
- - tommypenny   Thanks both of you. My first draft was 4500 words...   Wed, 14 Aug 2019 - 12:53
- - tommypenny   Spent all day pruning. I can't reduce it witho...   Wed, 14 Aug 2019 - 22:17
- - nosferatu1001   Is £50 the amount listed to file the claim? You k...   Thu, 15 Aug 2019 - 08:24
- - tommypenny   Thanks very much for your reply. I am in a right m...   Thu, 15 Aug 2019 - 12:25
- - nosferatu1001   Yes so theyre claiming £50 to file the claim - th...   Thu, 15 Aug 2019 - 12:45
|- - tommypenny   QUOTE (Macapaca @ Thu, 15 Aug 2019 - 14...   Thu, 15 Aug 2019 - 13:33
- - Macapaca   No don't change tack now! You were given t...   Thu, 15 Aug 2019 - 12:47
- - tommypenny   Thanks Maca   Thu, 15 Aug 2019 - 12:53
- - Macapaca   The additional £50 and £25 refer to the costs of...   Thu, 15 Aug 2019 - 13:00
- - nosferatu1001   I am correct in this. They can claim £50 to file...   Thu, 15 Aug 2019 - 13:03
- - tommypenny   I am just trying to work out if I was wrong in my ...   Thu, 15 Aug 2019 - 13:14
- - nosferatu1001   You are wrong to say they cannot claim £50 at all...   Thu, 15 Aug 2019 - 13:20
- - tommypenny   Ah, i understand now, I think! Thanks. So th...   Thu, 15 Aug 2019 - 13:24
- - Macapaca   I don't think you are receiving conflicting ad...   Thu, 15 Aug 2019 - 13:27
- - nosferatu1001   Your defence is surely more than just POFA, yes? A...   Thu, 15 Aug 2019 - 13:40
|- - tommypenny   That's taught me a lot actually, thank you.   Thu, 15 Aug 2019 - 13:55
- - nosferatu1001   Simple "The D avers that the DRIVER was .......   Thu, 15 Aug 2019 - 14:05
- - tommypenny   "The D avers that the DRIVER was ...." T...   Thu, 15 Aug 2019 - 14:17
- - nosferatu1001   I dont see it as the stronger per se - I just like...   Thu, 15 Aug 2019 - 14:29
- - tommypenny   Thanks. I am not actually sure how there are two, ...   Thu, 15 Aug 2019 - 14:43
- - nosferatu1001   The same amount being claimed gives rise to 2 1) ...   Thu, 15 Aug 2019 - 15:54
- - tommypenny   Ah ok thanks. I thought 1 was POFA related, 2 was ...   Thu, 15 Aug 2019 - 15:56
- - Macapaca   That's just a pressure tactic letter. There is...   Thu, 15 Aug 2019 - 16:10
- - tommypenny   Good call! Will do that. thanks   Thu, 15 Aug 2019 - 16:13


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