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BW LEGAL AGAIN!, Registered Keeper of the vehicle but not the driver.
DisadvantagedMot...
post Thu, 18 Jul 2019 - 03:26
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Hi all,

Following is a brief introduction of facts,

MY wife and I lived in a residential complex last year, my car (which was registered to my wife) had access to underground parking garage whereas my wife's car (registered to me) had to be parked in the communal spaces which had pay and display machines @ £1.90 an hour, residents were issued parking booklets (8 hours per slip, 1 booklet a month, 20 slips in a booklet)

We moved out of the residence complex earlier this year and in May I received court summons from BW LEGAL (nightmare serial issuers) for a ticket from MAY 2018.

My wife and I were going through some troubles and not communicating at all for nearly 9/10 months and i was unaware of any tickets being issued, I did not receive any letters from Bw as I was working most of times and I believe my wife was hiding them from me.

Upon, receiving court summons, I browsed through the forums and followed the instructions on there, filing an SAR as well a restriction of data processing which was denied.

The SAR obtained results of nearly 24 parking tickets (none of which I was aware) in that period.

I panicked and although there is a lot of information on these forums, it gets rather confusing and with work pressures and time constrains, I wrote up a defense to the best of my ability, the particulars of which are
1. I am the registered keeper, however not the driver.
2. My wife was the driver and I was unaware of any tickets until court papers.
3. I agreed to the case being referred to POPLA and being bound by POPLA's decision.

I realise that I mightve made a mistake not researching more throughly as to what kind of a defence to file. I have now received court notification that this is now a defended claim and the case is being referred to a county court.

I cannot afford any legal help however, I really am in need of some advice on how to defend this claim.

The residential complex had a very complicated and rather terrible system of complex management, the parking attendants would put on tickets with no cause sometimes, the timings of most tickets put on is between 6 and 7 am.

My wife said she went into the office many times to complain about this however, she was spoken to rudely and turned away.

I believe many other residents have suffered similar issues and someone once made a police complaint regarding ticketing officer conduct.

There were many times that ticketing officers were physically and verbally abused by many people due to aggressive and unfair ticketing conduct.

Sometimes they would put on tickets even when there was a valid ticket slip displayed.

I am at a complete loss for how to defend this claim even though there are is so much unfair conduct on behalf of estate management and the parking management company (Napier Parking)

Any help or advise in the matter would be greatly appreciated.

DisadvantagedMotorist
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post Thu, 18 Jul 2019 - 03:26
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Redivi
post Wed, 24 Jul 2019 - 17:13
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That's not a Notice to Keeper
It's a Notice to Driver - a windscreen ticket

The Notice to Keeper is the letter that Napier sends after it's obtained your details from the DVLA

That's what we need to see

You've said that your wife was driver
Was she the day-to-day keeper of the car ?

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ostell
post Wed, 24 Jul 2019 - 17:21
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I would say that the two excerpts you post are saying that the agreemnt gives you the right to park in a communal area. "the agreement gives the tenant the right to use." Strangely worded but can be viewed is giving a right to park.
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Redivi
post Wed, 24 Jul 2019 - 18:02
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The existence and content of the Notice to Keeper is essential to your defence

Has it been included in the SAR response or not ?

If so, let's see it

If not, Napier has a problem :

If the NtK doesn't exist, their claim is dead in the water
If they produce one for the court, it's either a fake or a document they failed to disclose in response to the SAR
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DisadvantagedMot...
post Thu, 25 Jul 2019 - 03:58
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QUOTE (Redivi @ Wed, 24 Jul 2019 - 18:02) *
The existence and content of the Notice to Keeper is essential to your defence

Has it been included in the SAR response or not ?

If so, let's see it

If not, Napier has a problem :

If the NtK doesn't exist, their claim is dead in the water
If they produce one for the court, it's either a fake or a document they failed to disclose in response to the SAR


When I applied for the SAR, Napier did a bit of document dump on me, they sent me 5 emails full of cluttered info. They sent me nearly 75 pages per PCN (NTK was the last page) Ive attached the first page here.

The rest of it is here as there isnt available attachment space on this thread.


QUOTE (Redivi @ Wed, 24 Jul 2019 - 17:13) *
That's not a Notice to Keeper
It's a Notice to Driver - a windscreen ticket

The Notice to Keeper is the letter that Napier sends after it's obtained your details from the DVLA

That's what we need to see

You've said that your wife was driver
Was she the day-to-day keeper of the car ?


Yes she was the day to day keeper. although we didnt get around to officially changing it with the DVLA as we had personal issues.

And thats the reason the claim's been issued to me instead of her. (not to mention the ignoring of letters)

is there a difference between registered keeper and day to day keeper?

Many thanks for your help.
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Redivi
post Thu, 25 Jul 2019 - 07:31
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You don't attach pictures to this thread

You follow the instructions in the FAQ to host them somewhere like tinypic and post a link

POFA allows the company to recover payment from the keeper if it doesn't know who was driving
It assumes that this is the registered keeper unless it is proved this is somebody else

You were not therefore the keeper and Napier has never had any right to recover payment from you

We need to see your actual defence to see if it needs changing or if it can simply be beefed up in your witness statement later

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DisadvantagedMot...
post Thu, 25 Jul 2019 - 10:49
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Tbh I’ve totally goofed up the defence as I panicked and didn’t have enough time to do research or even ask for help( wasn’t even aware of these forums until recently)

I think it might actually need to be fully changed, any advice is greatly appreciated.

Following is the defence I submitted.


Save as specifically admitted in this defence the Defendant denies each and every allegation set out in the Particulars of Claim.

Preliminary matters:
I am not liable to the Claimant for the sum claimed, or any amount at all
I assert that I am the registered keeper of the vehicle in question in this case. I was not the driver. My wife, MRSXXX) is the primary user of the vehicle (I can provide insurance certificates to further evidence this). She was also the driver of the vehicle at the time of the alleged contravention.

I was completely unaware of any FCN issued and thus unable to use my right to appeal the FCN. The claimant’s solicitor claims to have sent several warning letters addressed to me however I did not receive even a single one. I never received a notice to the Keeper or “letter before claim” or ever saw any letter from BW Legal, I believe my wife might have received those and hid them from me or perhaps made the decision to ignore them without my knowledge. The court summons was the first time I was made aware of such an FCN being issued. My wife and I had a falling out last year and do not share good terms with very limited communication even though we reside at the same address due to severe financial constraints.

I applied for an SAR with the claimant upon receiving the court summons as I was completely in the dark about any kind of communication from the claimant or the claimant’s solicitors over the specified period of time. Once again, I assert that the sole control and sole user of the vehicle from Febuary 2018 until May 2019 was my wife.
In order to address this lack of exchange of information so far, in a way that would not waste any court time, I request that the court considers an Order for the claim to be stayed pending the allowance of both parties to undertake ADR in the form of a 'Parking on Private Land appeal (POPLA).

I am a common consumer who has to work very hard (almost round the clock) in order to make rent, I am neither qualified nor able to afford any kind of legal help in this matter. However, I researched the claimant’s solicitors and they are known to be a serial issuer of generic claims similar to this one, with no diligence, no scrutiny of details nor even checking for a true cause of action. HMCS have identified over 1000 similar sparse claims. I believe the term for such conduct is ‘roboclaims’ which is against the public interest, unfair on unrepresented consumers and parking companies using the small claims track as a form of aggressive, automated debt collection is not something the courts should be seen to support. On the basis of the above, I request the court to stay the case so that the claimant may pursue the correct individual responsible for the alleged contravention.

A POPLA decision will almost certainly resolve the case without need for court, within 90 days of the claimant issuing a POPLA verification code if the court orders this form of ADR. In the interests of saving the court's time and resolving the matter fairly, I hereby agree to accept the findings of POPLA, even though in the normal course of events their decisions are not binding on a motorist. POPLA make a final adjudication decision in every case and so it is an ADR which would have 100% prospects of success.

I urge the court to consider my difficult circumstances and allow me an opportunity to not be punished for another individual’s decisions.

The facts and information in this defence are true and the Defendant is not liable for the sum claimed.

This post has been edited by DisadvantagedMotorist: Thu, 25 Jul 2019 - 15:29
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DisadvantagedMot...
post Thu, 25 Jul 2019 - 14:58
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Ive been reading up on POFA and i've a question.

name & address of driver must be given to PPc within 28 days of receiving the NTK?

What if the driver has been identified to the PPC after 28 days but before court case has been issued?

Can the keeper still be held liable in that case? NVM Ive found the answer

This post has been edited by DisadvantagedMotorist: Thu, 25 Jul 2019 - 15:06
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Redivi
post Thu, 25 Jul 2019 - 15:06
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Some parking companies like to pretend it's too late to name the driver after 28 days but they're lying

The point, however, is irrelevant in your case

1 They had already issued the claim
2 You weren't the keeper

Your request for the matter to be dealt with by POPLA has no chance
This is only available if the company is a member of the British Parking Association

Napier is a member of the rival IPC association and independent appeals are handled by the IAS
The IAS is owned by the IPC and guarantees to reject at least 85% of appeals

Unfortunately the IAS is also the only approved provider of a legally binding ADR service
Napier might agree to your request but propose the IAS

Edit the post with your defence and remove the identification details
You've left the vehicle registration and the driver's name

Parking companies follow this forum and will use any information they find

This post has been edited by Redivi: Thu, 25 Jul 2019 - 15:17
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DisadvantagedMot...
post Thu, 25 Jul 2019 - 15:14
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QUOTE (Redivi @ Thu, 25 Jul 2019 - 16:06) *
Some parking companies like to pretend it's too late to name the driver after 28 days but they're lying

The point, however, is irrelevant in your case

1 They had already issued the claim
2 You weren't the keeper


I was looking into that cuz the SAR revealed more than 24 pending FCNs and despite having identified the driver BWL keep sending me these letter before claims for different FCN's

every other day theres a new letter.

Ive emailed reminding them that POFA (1)(b) doesnt apply but there has been no acknowledgement or response.
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Redivi
post Thu, 25 Jul 2019 - 15:25
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Do the SAR responses include the DVLA applications ?
If not, contact the DVLA and check for all the occasions that your details have been requested

Napier must make an individual application for every PCN
It can't use the details on file

This is the first condition of POFA
Any claim for a PCN that isn't supported by an application to the DVLA must fail
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DisadvantagedMot...
post Thu, 25 Jul 2019 - 15:40
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Thank you so much, DVLA applications are not included in the SAR, Ill contact the DVLA to check this.

I really did bugger up the defence, do you reckon it needs changing? (im happy to pay the £100 fee )

if yes, what sort of points could I raise? Can the lease be helpful ?

Thanks so much for all the advice.
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ostell
post Thu, 25 Jul 2019 - 16:08
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Yes the lease can be helpful. It determines your right, or otherwise, to park. If your lease gives you a right go park then you have no need of another contract to park offered by the signs
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DisadvantagedMot...
post Fri, 26 Jul 2019 - 03:18
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QUOTE (ostell @ Thu, 25 Jul 2019 - 16:08) *
Yes the lease can be helpful. It determines your right, or otherwise, to park. If your lease gives you a right go park then you have no need of another contract to park offered by the signs


And if the lease does not explicitly mention anything about parking rights or any requirement to pay and display, does that mean that the contract offered by the signs is valid?

The clauses that you said can be vaguely viewed as giving me right to park are the only clauses that actually mention any thing about parking.

Here is a copy of the lease for reference.

Can I build a defence on those 2 clauses? is there anything else I can use in the defence?

Many thanks for all your help.
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ostell
post Fri, 26 Jul 2019 - 08:12
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Can't read the lease

Is there a mention of quiet enjoyment?

This post has been edited by ostell: Fri, 26 Jul 2019 - 08:13
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nosferatu1001
post Fri, 26 Jul 2019 - 09:05
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Dont use gdrive. I wont follow, and cant due to work laptop.

Use imgur, tinypics, etc.

If you want to change your defence, then it might cost you £255; if the C objects, you need to go to a hearing.
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DisadvantagedMot...
post Fri, 26 Jul 2019 - 14:39
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QUOTE (nosferatu1001 @ Fri, 26 Jul 2019 - 09:05) *
Dont use gdrive. I wont follow, and cant due to work laptop.

Use imgur, tinypics, etc.

If you want to change your defence, then it might cost you £255; if the C objects, you need to go to a hearing.


Apologies posted the wrong link

LEASEhere is the tinypic version.

There is a clause that says "tenant has the right to possess and enjoy the property without any unlawful interruptions from the landlord or any other person claiming through or in trust for the landlord"

I also phoned the DVLA for occasions on which my details were requested, they denied at first but upon persuasion agreed to send in 2 working days.

This post has been edited by DisadvantagedMotorist: Fri, 26 Jul 2019 - 14:42
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nosferatu1001
post Fri, 26 Jul 2019 - 14:55
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It mentions about "any communal parking space" yet i cant see anyting stating you have such.

GO through again. Why do you think you have rights to use a parking space? I cannto see ANY such right in teh tenancy.
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DisadvantagedMot...
post Fri, 26 Jul 2019 - 15:27
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QUOTE (nosferatu1001 @ Fri, 26 Jul 2019 - 14:55) *
It mentions about "any communal parking space" yet i cant see anyting stating you have such.

GO through again. Why do you think you have rights to use a parking space? I cannto see ANY such right in teh tenancy.


Thats my impression too, there is no clause in the lease explicitly giving me any right to use the communal parking space.

Ostell mentioned in an earlier comment that clause 7.37 & 7.38 "...communal parking space which the agreement gives the tenant the right to use" could be vaguely viewed as giving me the right to use communal space?

Im not very familiar with interpreting legal language, Im trying to establish if the lease can be raised in a defence or is it a total dud?

Thanks.
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nosferatu1001
post Fri, 26 Jul 2019 - 16:04
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It's worth a try.
It infers rights bit it's not explicit.

Anything else that tells you that you can park? Advert for the property?

This post has been edited by nosferatu1001: Fri, 26 Jul 2019 - 16:05
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