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BW Legal letter - no other correspondence
Wane
post Tue, 16 Jan 2018 - 23:43
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Hi, new user here... I've tried to go through all the FAQs and advice threads but posting here because I still have questions. I hope I don't transgress too many of the rules and thanks in advance for any advice.

I received this letter about an unpaid parking ticket (date on letter was towards the end of 2017 but I've been moving house and it was sent to my mother's address so I only just received it). The letter says that this is their second letter but this is the first correspondence of any kind that I have received from either company. I have redacted the deadline for payment, however lets just say that it is imminent.

The letter is addressed to me as the registered keeper and while a google search for the "contravention location" seems to point to a different carpark, the driver was in that town on the date provided. The driver remembers parking and checking to see if there was an available parking meter (there wasn't) and then went to have a chat with a mortgage advisor before browsing through a couple of the shops that open directly onto the carpark. The driver doesn't recall any signs that stipulated a maximum parking duration and frankly has no idea how long they stayed but wouldn't describe it as excessive. The driver would also have happily have paid if there was an opportunity. It is entirely plausible that there were signs and the driver did accidentally exceed whatever the maximum duration was - the infringement is dated to almost half a year ago and it's hard to recall the specifics.

So far as I can tell from this forum the general advice is that the fine shouldn't be paid, however is this true even if there is a genuine possibility that the driver overstayed the limit in the carpark?

In many ways my inclination is to simply pay the fine to make it just go away. I'm still hunting for a mortgage and although the £124 is a massive PITA, ending up with a County Court case would be far worse for my credit rating. That said, it seems like this is exactly how these companies build their business model... if you act all scary then people will just pay you to go away, and that seems really unfair. Plus the charge of £124 is ridiculous compared to the standard £50 charged by my local council (reduced to £25 for prompt payment).

Does anyone have experience of these, are they in any way enforceable and if I don't pay are they really going to pursue it? If push comes to shove I value my credit rating more than the money.



This post has been edited by Wane: Wed, 17 Jan 2018 - 22:32
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post Tue, 16 Jan 2018 - 23:43
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Jlc
post Wed, 17 Jan 2018 - 09:10
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QUOTE (Wane @ Tue, 16 Jan 2018 - 23:43) *
are they in any way enforceable and if I don't pay are they really going to pursue it?

In short, they potentially are. TPS aren't known to actually issue many claims.

Pictures of the signage (or lack of) would be helpful. I definitely wouldn't be paying it given what's happened so far.

QUOTE (Wane @ Tue, 16 Jan 2018 - 23:43) *
If push comes to shove I value my credit rating more than the money.

Your credit rating will not be impacted. Even if they do issue a claim and you lose then you have 1 month to pay.


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information, SAR=Subject Access Request

Private Parking - remember, they just want your money and will say almost anything to get it.
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nosferatu1001
post Wed, 17 Jan 2018 - 10:26
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...and if you pay within that time the ccj is removed.

Edit the post. Do not identify the driver. Call them “the driver” and nothing else.
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Wane
post Wed, 17 Jan 2018 - 23:09
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Thank you both.

QUOTE
In short, they potentially are. TPS aren't known to actually issue many claims.

Pictures of the signage (or lack of) would be helpful. I definitely wouldn't be paying it given what's happened so far.


Apologies for being slow, but when you say "they potentially are" do you mean that the parking fine is potentially enforceable or that they are potentially going to pursue it?

Unfortunately I do not live locally to the location of the alleged parking contravention so it isn't easy for me to gather photos myself.


QUOTE (nosferatu1001 @ Wed, 17 Jan 2018 - 10:26) *
Edit the post. Do not identify the driver. Call them “the driver” and nothing else.


I have tried to edit the post accordingly.

So the general advice is that I should challenge the letter? If so on what grounds and how should I go about making such a challenge?

Presumably the next action would be for me to write to BW Legal complaining about their intimidating letters and asking them for more details... perhaps something along the following lines:

----------------

Dear BW Legal,

I recently received a letter from you dated [******], reference [******] in which you claim that my car overstayed the allotted time in [*******] carpark and threatening me with the commencement of County Court Proceedings if I do not pay a large fine. Your letter states that this is the second letter that you have sent regarding this matter, however I was surprised and upset to read this since this is the first communication that I have received regarding any infringement and feel that it is unreasonable for you to initiate communications in such an aggressive and threatening manner.

As the registered keeper, I will require further details of your accusation before I am able to identify the driver and before I am able to decide on an appropriate course of action. I therefore request that you describe, in full, the details of your case including providing timestamped photos of my vehicle entering and leaving the carpark as well as photos of surrounding signage.

Yours Faithfully

-----------------

Perhaps since this is the first time they have contacted me I should offer to pay them £35 (50% of the parking charge) as a gesture of goodwill and prompt payment?

This post has been edited by Wane: Wed, 17 Jan 2018 - 23:11
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ostell
post Wed, 17 Jan 2018 - 23:21
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Forget about offering anything in payment, this will be taken as an admission of liability.

Just tell them that as this is the first indication of the charge then its delivery is far in excess of the delivery time mandated by Schedule 4 of the Protection of Freedoms Act 2012 and therefore the keeper cannot be held liable for the charge.

It is not a fine, it is an invoice.
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Wane
post Wed, 17 Jan 2018 - 23:42
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Cheers, so how about this updated draft?

----------------

Dear BW Legal,

I recently received a letter from you dated [******], reference [******] in which you claim that my car overstayed the allotted time in [*******] carpark and threatening me with the commencement of County Court Proceedings if I do not pay a large fee. Your letter states that this is the second letter that you have sent regarding this matter, however I was surprised and upset to read this since this is the first communication that I have received regarding any infringement and feel that it is unreasonable for you to initiate communications in such an aggressive and threatening manner. Since this is the first indication of the charge then its delivery is far in excess of the delivery time of 28 days as mandated by Schedule 4 of the Protection of Freedoms Act 2012 and therefore the keeper cannot be held liable for the charge.

Yours Faithfully,

-----------------

p.s. the offer of payment was at least partly tongue in cheek :-)


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ostell
post Thu, 18 Jan 2018 - 08:14
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No windscreen ticket = 14 days to deliver. Add in paragraph 0 of POFA to pinpoint you know what you are talking about.
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nosferatu1001
post Thu, 18 Jan 2018 - 09:23
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Para 9, schedule 4 of POFA 2012
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Wane
post Thu, 18 Jan 2018 - 15:11
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Thank you.

Just finalising the letter and will send tomorrow.

Just to clarify a couple of points though:

1) What are the strongest grounds for defence in a case like this? and what is the likelihood of success?

2) I note that paragraph 9.6 of POFA states that "A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered...". In this case I know that I haven't received any other letters relating to this case but surely all that TPS and BWL need to do is to say they sent them and the onus will be on me to prove the contrary?

Cheers
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ostell
post Thu, 18 Jan 2018 - 16:28
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No, the onus is on them to show that they sent them. That's why it's normally suggested that free proof of posting is obtained when writing to PPCs. Bet you BW and TPS haven't got proof of posting !
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nosferatu1001
post Thu, 18 Jan 2018 - 19:50
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A WS signed under a statement of truth is evidence and thus proof.
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Wane
post Tue, 20 Feb 2018 - 15:06
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An update on this...

Shortly after our conversation above I sent a copy of my suggested letter to BW Legal, obtaining proof of postage.

About a week later I received a "LETTER OF CLAIM" from BW. The letter of claim was dated to a couple of days after I sent my letter and so I reasoned that they might not yet have received my letter so I waited to receive a response. However we are now several weeks on and the I have received no further correspondence or acknowledgement of my letter.

The letter of claim states that if BW legal has not received either they payment, or a response by [A DEADLINE] then they are instructed to issue a claim against me in the County Court. The aforementioned deadline is now approaching and so I suppose I should send BW a followup to my previous letter before the deadline passes.


-----------

Dear BW Legal,

I am writing concerning the following case (reference number *******).

I recently received a letter from you dated [******], reference [******] in which you claim that my car overstayed the allotted time in [*******] carpark and threatening me with the commencement of County Court Proceedings if I do not pay a large fee. Your letter stated that this was the second letter that you had sent regarding this matter, however I was surprised and upset to read this since this was the first communication that I had ever received from your company or your client, and the first time that I had received notification of any infringement.

Schedule 4 of the Protection of Freedoms Act 2012 states that in order to claim parking charges from the registered keeper, the first indication of any charge should be delivered within 28 days. Since your letter fell considerably outside this time period I wrote to you on [DATE] to say that the keeper could not be held liable for the charge. Since my letter, I have received no reply from you addressing my concerns, only a "letter of claim" which continues to threaten me with County Court Proceedings and makes no attempt to respond to my letter.

I am therefore writing to you a second time, firstly to reiterate that your original letter [DATE/REFERENCE] fell outside the conditions laid out in Para 9, schedule 4 of POFA 2012, and secondly to request that if you insist on pursuing this claim that you provide documented evidence of your claimed attempts to engage with me.


Yours Faithfully,

------------




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nosferatu1001
post Tue, 20 Feb 2018 - 15:15
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You need to make reference to your previous letter, which theyve ignored.

I imagine this doesnt comply with the new PAP for Debt claims, so you need to use the LONG FORM response on MSE Forum

You MUST NOT ignore these types of letters for so long - you made an assumption and thats dangerous to do!
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Wane
post Tue, 20 Feb 2018 - 15:15
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P.s.

QUOTE (nosferatu1001 @ Thu, 18 Jan 2018 - 19:50) *
A WS signed under a statement of truth is evidence and thus proof.


So if I understand this correctly, BW can sign a statement saying they sent the letters and that this is sufficient to counts as proof? Isn't there a requirement for any kind of corroborating evidence, otherwise they could say whatever they wanted?
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nosferatu1001
post Tue, 20 Feb 2018 - 15:19
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BW couldnt sign anything. They would not have sent the original NtK. Not sure wh yyou think they would have done - theyre solicitors.

Again, you have not understood what was said. This is in relation to a notice sent first class is deemed delivered UNLESS THE CONTRARY IS PROVEN. YOU writing a WS stating no such NtK was ever received IS PROOF - and like all proof, the amount of weight given is for a court to decide.

Have you ever read a WS with the accompanying statement of truth? Have yo ulooked up "perjury"?
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Wane
post Tue, 20 Feb 2018 - 16:11
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QUOTE
Again, you have not understood what was said. This is in relation to a notice sent first class is deemed delivered UNLESS THE CONTRARY IS PROVEN. YOU writing a WS stating no such NtK was ever received IS PROOF - and like all proof, the amount of weight given is for a court to decide.


Apologies, I had interpreted your post as a response to Ostell's post, not in response to mine... my misunderstanding.

Thank you for your responses and I will look up the long form letter on MSE.
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Wane
post Tue, 20 Feb 2018 - 18:01
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OK so this letter is based on the letter by @Daniel san on MSE (here: http://forums.moneysavingexpert.com/showth...1#post72358831) as listed on post #2 of their newbies thread (here: http://forums.moneysavingexpert.com/showth....php?t=4816822)

I have made some minor edits and the introductory paragraph of my version also refers to the current lack of correspondence or acknowledgement.

My main worries are the sections marked in bold. So far as I can tell, their Letter of Claim does seem to comply with the new Pre Action Protocol... most of the requirements listed in 3.1 are referenced in the Letter of Claim and the Protocol is directly mentioned on page 2 of their letter, however I feel that the details are still extremely superficial. Should I tone these bold sections down a little bit?

(The PAP is here: https://www.justice.gov.uk/courts/procedure...ebt-claims.pdf).

Any comments or suggestions before I post it tomorrow?


-----------------------

Dear Sirs,

I am in receipt of both your letter dated [********] and now your “Letter of Claim” dated [********].
 
Schedule 4 of the Protection of Freedoms Act 2012 states that in order to claim parking charges from the registered keeper, the first indication of any charge should be delivered within 28 days. Both of your letters fell considerably outside this time period and I wrote to you on the [********] to raise this concern and to note that under such circumstances the keeper could not be held liable for the charge. Since my letter on the [********], I have received no reply from you addressing my concerns, only the aforementioned "Letter of Claim" which continues to threaten me with County Court Proceedings and makes no attempt to respond to my letter.

Furthermore, your letters contain insufficient detail of the claim and fail 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 contains only superficial details of the claim and “particlars of the debt” and breaches both the requirements of the previously applicable Practice Direction - Pre-Action Conduct (paragraphs 6(a) and 6©) 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 will be familiar with the requirements of both the Practice Direction applicable pre-1 October and the Protocol which applies thereafter. 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 establishing yourself as the creditor
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

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); 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 © 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

------------------------------

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nosferatu1001
post Tue, 20 Feb 2018 - 19:42
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If they’re superficial, they’re superficial. If you cannot clearly, without reference to anything else, entirely understand their entire case, they haven’t privided enough detail.
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ostell
post Tue, 20 Feb 2018 - 20:54
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Without a windscreen ticket the notice to keeper has to be received within 14 days, not 28
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Wane
post Thu, 22 Mar 2018 - 20:20
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So... BW legal have ignored my letter (as seen in my post below) and have sent me a "Notice of County Court Claim Issued". I have also received a "Claim Form" and "Response Pack" from the County Court Business Centre.

On my previous browsing I remember seeing a thread (or more specifically a post in one of the helpful FAQ threads) that said something along the lines of "What to do when you receive a County Court Claim" but for some reason I can't find it now... I'll continue searching but any advice on where I can rediscover this info would be much appreciated!

** EDIT - Found it - it was on MSE (posted here so I can find it again :-) http://forums.moneysavingexpert.com/showth....php?t=4816822). I will look at these threads and try to compose a response. The main thing I notice from skimming their examples is that I can't see any where BW legal ignore all my correspondence and just press on regardless. **

This post has been edited by Wane: Thu, 22 Mar 2018 - 20:34
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