BW Legal / VCS 2012

[123gone]

Sound like this letter will ease them off me because it will show them that I know the law and what steps to take to tackle their bull**** demanding payments & i'm ready to defend myself..

[ericsbrother]

no, it will show that you have cut and pasted a load of stuff off the internet and know little. Just send the very short F*** off letter and make them do all the running. That way they will have to pay a small fortune to find out what you do know rather than you showing yourself up for free. they are in this for the money, spending it for no return isnt good business practice so the more effort they have to put in the better for you.

By all means send it as a complaint to the SRA but not to BW, they wont give a sh!*

[silverfox1961]

Hopefully this works.

 

[Your name]

[Your Address]

 

 

[bW Legals name and address] [Date]

 

 

 

 

FORMAL COMPLAINT

 

 

Dear Sir/madam,

I wish to raise the following complaints, which I believe are failures to abide by the codes of conduct of the Credit Services Association (CSA), Solicitors Regulatory Authority (SRA) and Financial Conduct Association (FCA), all of which you are members of or regulated by.

 

1) In your letter dated (xx/xx/xxxx) you state, “ the balance due includes [...] our clients initial legal costs of £54.00 which are detailed in the car park terms and condition”. I do not believe this is true. Please therefore provide an explanation as to why you stated charges of £54 are detailed in the car park terms and conditions and a full copy of those terms and conditions.

Providing false information is against the Credit Services Association code of practice. (is this bit needed)

1.y. Communicate with customers fairly and transparently, and not intentionally mislead them.

1.aa. Treat customers fairly and not subject customers (or their authorised representatives) to aggressive practices, or conduct which is deceitful, oppressive, unfair or improper, whether lawful or not.

 

10.k Only impose such costs and interest on customers as it is lawfully entitled. Additionally, the Solicitors code of practice clearly forbids adding a charge which is not legally recoverable.

IB(11.8) Demanding anything for yourself or on behalf of your client that is not legally recoverable, such as when you are instructed to collect a simple debt, demanding from the debtor the cost of the letter of claim since it cannot be said at that stage that such a cost is legally recoverable.

 

BW Legal will know that it has been held countless times that when instructed to collect a simple debt, demanding from the debtor the debt recovery costs is taking unfair advantage Since it cannot be said at that stage that such a cost is legally recoverable; particularly since those costs have not been substantiated at all. This is therefore taking unfair advantage against an unrepresented addressee.

 

2) Your letter also makes a number of other false and misleading claims: (1)“You should also note that if your claim has already been processed through an Independent Appeal Service (IAS) and an IAS has dismissed your appeal, then it is likely that a county courtwill come to a similar conclusion and your defence will be unsuccessful.”

(2a) “If our client successfully obtains a County Court Judgement (CCJ) against you (which is likely)...

(2b) Should we successfully obtain a County Court Judgement this may have a detrimental effect on your future credit-worthiness and employability.

(2c) In the event County Court proceedings are issued you may be liable for Court fees, further solicitors' costs and statutory interest . Should we successfully obtain a County Court Judgement this may have a detrimental effect on your future creditworthiness and employability.

(2d) In the event County Court proceedings are issued you will be liable for Court fees, further solicitors' costs and statutory interest . Should we successfully obtain a County Court Judgement this may have a detrimental effect on your future creditworthiness and employability

 

 

 

 

We wish to bring your attention to the case of ParkingEye Limited v Beavis [2015] UKSC 67 in which the Supreme Court held that parking charges serve a legitimate commercial interest and are neither extravagant nor unconscionable. This case eliminates the main defence that yo will have should the matter got to Court and will be relied upon, by our client, in any County Court proceedings

 

1. BW Legal know that the Independent Appeal Service (IAS) is a form of non-regulated and non-binding private arbitration service which is provided by a private entity who regularly brings claims for private parking companies (including BW Legals client) and whose decisions are therefore not independent nor impartial. BW Legal will also know that the IAS decisions will have no impact whatsoever on any County Court proceedings. BW Legal will also know that countless decisions reached by the IAS are not correct, found contrary to existing law and based on flawed assumptions.
   BW Legals assertion that it “is likely” that a County Court judge would come to a similar conclusion to the IAS is unfounded, unsubstantiated and plainly wrong, and it is made to coerce the addressee of BW Legals letter into paying their demand. This is therefore clearly taking unfair advantage against an unrepresented addressee.
    
   Regarding statement (2a) it is absolutely irresponsible, as well as unfounded and unsubstantiated, for BW Legal to assert that this is a likely scenario, and this assertion is again made to coerce the addressee of BW Legals letter into paying their demand. This is therefore again clearly taking unfair advantage against an unrepresented addressee. Regarding statement (2b) This is simply not true. You will be well aware that provided a judgement is settled within the allowed timescales, the CCJ will not appear on any record. This is therefore a deliberate attempt to mislead me
    
   Regarding statement (2c) This is simply not true. You will be well aware that I will only be liable for these charges if your client wins the claim. You will also be well aware that provided a judgement is settled within the allowed timescales, the CCJ will not appear on any record. This is therefore a deliberate attempt to mislead me
    
    
   (3) (a) Social media reports show that since the Supreme Court judgement the majority of properly contested hearings are won by motorists. This may be because parking companies have been encouraged to file specious claims.
   (b) BW Legal have no idea what my ‘main defence’ is in this case
   © The Beavis case was concerned only with the level of parking charges and ruled that a charge of £85 was not a penalty even though the parking company had suffered no loss. The level of parking charges was never a major reason why parking claims were dismissed in the courts and is essentially a red herring. POPLAs statistics show that the main reason appeals are upheld are signage and ticket issues.
   In any case, the Beavis case is not a silver bullet and BW Legal have not shown that in the particular circumstances of this case, Beavis is more favourable to themselves than the motorist. Beavis sets certain signage obligations on the operator and as these were not met, the charge reverts to a penalty.
   BW Legal have not shown these obligations were met.
   There is therefore no basis for this statement and BW Legal have provided no evidence that this is true. This is a bullying attempt to discourage motorists from defending claims. Statements (1), (2) and (3) all clearly take unfair advantage of the recipients lack of legal knowledge where they have not instructed a lawyer, by stating untruths and making unsubstantiated and unreasonable claims, and are all bullying attempts to discourage motorists from defending claims..
   These are all violations of the CSA code of practice 1.y. Communicate with customers fairly, transparently and not intentionally mislead them 1.aa. Treat customers fairly and not subject customers (or their authorised representatives) to aggressive practices or conduct which is deceitful, oppressive, unfair or improper, whether lawful or not
    
   10.c Not mislead customers as to the consequences or inevitability of consequences arising from any legal or bankruptcy action. Those assertions and statements are also clearly contrary to the SRA’s Code of Conduct 2011, Chapter 11: Relations with third parties, and particularly are covered under Indicative Behaviours IB(11.7) and IB(11.8).
   Next. Actions as per the CSA code of practice I require you to cease collection activities while this complaint is investigated. If your explanation is not sufficient I will escalate to the CSA/SRA/FCA as appropriate. As per the CSA code of practice I require all communications to be by letter post and not by phone or email.
   The Debt Is Denied In order for me to fully provide details why the debt is denied I require the following information, which I view as reasonable under the CSA code of practice, and also the information requirements for pre-action protocol.
   1. to comply with all reasonable requests for information made by customers or their representatives, regulators, clients and creditors, whether statutory or not, and upon payment of the statutory fee if applicable:
   a) A copy of the parking charge notice(s)
   b) A copy of the signage, if your client is claiming this creates a contract
   c) A copy of the signage map, if your client is claiming a contract is created by performance
   d) Whether your client considers they are acting as agent or principal
   e) The name of the land owner, if not your client
   f) Whether your client considers the charge is for trespass, breach of contract or a contractual charge
   g) Whether your client is claiming keeper liability exists Following receipt of this information I will provide my reasons for disputing the debt within 14 days. As per the CSA code of conduct I require you to cease collection activities until the dispute is resolved.
   3.j. Cease recovery activity whilst investigating a valid dispute.
   Alternative Debt Resolution. I am open to using alternative debt resolution. I suggest the Consumer Ombudsman as an appropriate body. The IAS has been well-documented to be a kangaroo court and would not be appropriate.
    
    
   

[123gone]

Thanks Silverfox. But its no use sending according to Ericsbrother as he has mention above.

[silverfox1961]

This is where EB and I part company. Generally it is wise to send them a two word letter and he is quite right that you don't want to show your hand as yet but I feel being pro active is better. EB will disagree and that is only right as we must respect other opinions.

 

Your letter is VERY long winded and went over 3 pages when I copied it over to my WP program. They will get bored after the first page.

 

What I would do is; on the first page, lay out in bullet points where you feel they are wrong then you can refer them to the rest as required. It is my opinion that by sending a complaint and spelling out your grounds,it puts them on notice that you won't back down. BW legal may just refer it back to their client or ignore you. Unfortunately, the amount of brain cells needed to respond are sadly lacking with this company.

 

I suspect court action will follow despite their utter failings and then you rely on other things besides their failings.

[123gone]

much appreciated advice Silverfox, I will take some time to think about how to proceed..

[dx100uk]

pers I wouldnt state anything other than the simple two liner

 

 

you'll open yourself up to unlimited letter tennis by stating all those issues

and what if you are wrong or don't understand it..

you'll look a pratt in court when they argue their point about your missive where you mentioned XYZ

 

 

dx

[123gone]

Hmmm to be honest I don't understand all of it... good point.

[dx100uk]

exactly

if it comes to the need to use that stuff

it can be addressed when/if they issue a court claim.

 

 

get the 2 liner denial letter running.

 

 

the quicker the better

and then they know you're not a walkover and not an ignore case

so thus might sway them against issuing a claimform.

 

 

those that ignore usually find a claimform gets attempted hoping that will be ignored too thus a default judgement

[123gone]

Yeah I know what you mean, I have been ignoring it to this point and its time I communicate with them via the letter and also mention my new address and not parent.

[dx100uk]

but just the 2 liner one

 

 

can we take your war and peace down please?

as we don't ideally want others copying it and making the same mistakes?

 

 

dx

[123gone]

You mean that long complaints letter....yeah.

[dx100uk]

Yes

[123gone]

Hello people I did reply to BW Legal with the following: -

 

"I acknowledge receipt of your letter dated 26/10/2016, reference number VCS/***** and its contents are noted.

 

 

The payment is denied due to the fact that the alleged claim by your client is prior to Protection of Freedom Act 2012 was enacted and therefore only the driver is liable NOT the registered keeper. "

 

AND their response was the following:

 

 

- "We confirm that our client does not rely on upon The protection of freedom act 2012.

we note from your correspondence that you were not the driver at the time of the PCN.

 

 

As details of the driver have not been forthcoming to suggest otherwise, our clientt, in the absence of the drivers details, reasonably presumes you were the driver and we refer you to the case Elliott v Loake (1982)"

 

what do you make of the response and how shall I respond to this??

Edited November 22, 2016 by honeybee13
Paras.

[silverfox1961]

They throw out Elliott vs Loake on a regular basis to scare people. The fact is that case was a criminal case and has no bearing whatsoever in the civil courts. In that case there was a crash and the car drove off. The Keeper denied being out that night despite forensic evidence left at the site which matched his car.

 

Basically BWL are saying they can use criminal case law in a civil matter and as they are not relying on PoFA they cannot chase the keeper but what they do is assume the driver was also the keeper and you are under no obligation to inform them otherwise.

 

I suggest you now ignore them until they either send a LBA or court papers. If that happens, that's when you hit them.

 

Now, if this was me, I would raise a formal complaint with BW Legal and when they reject you, take it to the Legal Ombudsman but also report them to the SRA. Not saying you should do that but I just happen to like being an awkward bugger

[123gone]

I think I should saying the Elliott v Loake does not apply to my case and was a criminal case just to get them to do more work.. Shall I raise a formal complaint simultaneously with both BW Legal, Ombudsman & SRA at the same time?? what complaint shall I raise t with BW Legal..on the grounds of harassment??

[silverfox1961]

Like I said, it is what I would do. Not advocating someone else to do it as they may drop themselves in it.

 

Do a search to see what others have done.

 

I am going to lose my broadband any time now so I won't be on for a while. (got a fault)

[123gone]

Ok. thanks silverfox @ericsbrother - what your view on the reply I have received from BW Legal??

[123gone]

BW Legal still sent the letter to my parents address even though I clearly stated my new address on my previous letter to them but they chose to ignore it!!

[ericsbrother]

They lose at court when they rely on Elliott v Loake for 2 reasons,

1) there was bags of other evidence to show who was the driver, including witnesses and

2) it is not relevant or applicable to a civil case where no other liability is formed by the action of the driver/any other person.

 

they are hoping that both you and any judge thy want to put this in front of is ignorant and impressionable.

 

You have said your piece.

dont bother responding as it is up to them what they want to do next.

 

 

They may risk losing their client a small fortune because you can show that they are being unreasonable in pursuing this matter and thus claim a full costs recovery.

 

 

Normally you need to notify the courts of this intention before the hearing but the plus side is you can claim £95 for your reseach time plus loss of earnings, travel stationery etc.

 

 

They know that so even if they start a legal action the liklihood is they will discontinue to stop their losses at £25 for the application fee once a defence is submitted. 85% of court claims are not defended so they work on a numbers game.

[123gone]

I'm thinking of replying with the following: -

 

I acknowledge receipt of your letter dated 16/11/2016, reference number VCS/***** and its contents are noted.

 

Can you STOP sending me letters to my previous known address because I have clearly stated my new correspondence address on my previous letter and this one.

 

The payment is denied due to the fact that the alleged claim by your client is prior to Protection of Freedom Act 2012 was enacted and therefore only the driver is liable NOT the registered keeper.

 

Your client does not intend to rely upon the Protection of Freedom Act 2012 shows that they don’t comply with the Act and therefore cannot pursue the registered keeper by presuming that I was the driver of the vehicle at the time of the event.

 

The case of Elliott v Loake (1982) refers to a criminal case where the driver crashed their car and drove off.

The Keeper denied being out that night despite forensic evidence left at the site which matched his car & other witnesses.

This criminal case has no bearing in the civil courts or relation to my case.

 

Is it worth replying with above AND does it require editing??

[ericsbrother]

no,

just tell them that they should use your current address as the service address for any documents or letters.

 

They already know they are talking out of their bum so dont need you to tell them they are wrong, it is about greed and to some extent, stupidity.

 

 

Anything you say will be usd against you so dont say any more, they are lawyers so need no lessons in the interpretation of the law and it may well come back to bite you to expand on this.

 

If they then continue to send letters to the old address you can take that up formally via several methods, including a complaint to the SRA

[123gone]

if this does go to court I intend to defend myself, wouldn't be getting a lawyer. I may reply but delete the Elliott v Loake paragraph.