Excel / BW Legal

[Pinkychick16]

Hi, in 2011 I received a parking fine, from Excel. I ignored as per all the advice. I thought it had disappeared, but recently they wrote to me asking for £174 (£54 legal fees) so I wrote them a letter back as advised on Martins Money Tips forum stating them were harassing, not entitled to my details etc. Now I have received this reply and wondered if you guys have any advice for me as its stating to make me ill. I have health problems and a blue badge.

'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 client, in the absence of the drivers details, reasonably assumes you were the driver and we refer you to the case of Elliott v Loake (1982). We also refer to schedule 4 of the Protection of Freedoms act which states the same.
Please note harassment has been referred to and therefore we feel obliged to point out that under S1(3)(c) of the The Protection from Harassment Act 1997, a course of conduct that someone alleges to be harassment will not be deemed so if the person who pursued it shows that in the particular circumstances the pursuit of the course of conduct was reasonable. Under the circumstances our course of action has been entirely reasonable and in no way reaches the high threshold of harassment.
We also wish to draw your attention that you were previously allowed 28 days from the date you received the PCN to dispute the PCN and/or appeal the PCN through an independent appeal service. Both of these options have now expired and your recourse for dispute is through the county court process, which could increase your liability further.
Furthermore, our legal fees of £54 are reasonable for a professional law firm dealing with this type of legal work and payment of such fees was detailed in the terms and conditions located within the car park.
Notwithstanding the above, our client wishes to resolving the matter within 7 days without the need to incur any further cost, failure to which we will seek our clients instruction on issuing County Court proceedings'.

[mystery1]

Re: Excel / BW Legal

They have an interesting take on Elliot v Loake. The case can be read here. http://www.davidmarq.com/bama/Elliot...%20LR%2036.pdf

The ex head of popla said this :-

''Understanding keeper liability
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle. There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver...If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''


Harassment is a high hurdle to prove but that doesn't mean they can't be sued. Unlikely that you would given a parking matter stresses you out though.


Remind me on Friday and i'll see if i can do a suitable response.

M1

[Pinkychick16]

Re: Excel / BW Legal

Thank you so much for your help. I loo, forward to your help on Friday 😊

[Pinkychick16]

Re: Excel / BW Legal

Hi there, just reminding you re reply 😊 I really do appreciate any help with this as completely stuck as to what to put. Many thanks.

[mystery1]

Re: Excel / BW Legal

Dear BW legal,

Thank you for your letter of xxxxx the contents of which are noted.

I note that you will refer your client to Elliot v Loake. Clearly this case does not set the precedent you seem to think. There was other evidence aside from ownership which allowed the court to find as they did. This included the owners statements that they had the keys, did not let anyone use the car, forensic evidence which placed the car at the scene and a statement that the vehicle had not been stolen as well as lies from the owner. This is far removed from stating that the registered keeper is assumed to be the driver because your client has no idea who was driving.

Henry michael Greenslade, the former lead adjudicator for Popla said, whilst still in his position,

''Understanding keeper liability
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle. There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver...If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

Obviously there is a degree of common sense to be applied also, why would the government bring in legislation to provide for keeper liability if one could just assume it was ? It is clear that parliament believe that Elliot v Loake was not suitable and that they felt the need to hold registered keepers liable but only with strict conditions attached.

I note that you believe your fees are reasonable but refer you to what is allowable on the small claims track under CPR 27 and PD 27.

Yours Sincerely

M1

[Pinkychick16]

Re: Excel / BW Legal

Good morning

Many many thanks for your reply, it's fantastic. I'll get this sent off today and I'll keep you updated.

Pinkychick16

[Pinkychick16]

Re: Excel / BW Legal

Hi M1,
I have now received a letter from BW Legal stating I have not paid and/or issued a reply to their letter, it is quite threatening quoting another case re what will happen 'if' this gets to court, threatening CCJ/bailiffs and that the fee has now gone up to £304. I will reply stating that I did reply to them, enclose a copy of my letter and the tracking number stating exactly when they did receive it, and ask them to reply to MY letter before sending any more to me. Would you agree, or take a different stance?
Many thanks.

[mystery1]

Re: Excel / BW Legal

I'd agree but i would email to save time and postage.

M1

[Pinkychick16]

Re: Excel / BW Legal

Thank you, email sent.

[Pinkychick16]

Re: Excel / BW Legal

Hi M1

In response to my email asking them to reply to the letter you kindly drafted me, they have now sent me another letter enclosing a copy of the previous letter we replied to, with this:

'Please be advised that the letter you have referred to is our letter before action. We have confirmed our position to you in previous correspondence and refer you to our correspondence dated 22 August 2016, a copy of which we attach.
Given that payment was not forthcoming, we had no option but to issue you with the letter before action which provides you with the details of our client claim.
In order to prevent further costs from being incurred we would be grateful if you would contact us within 7 days from the date of this letter to pay the balance.
In the event you are unable to pay the balance in full, please contact our helpful team, on the details above, to discuss our suitable pay,net options.'.

I also received a reply from the SRA a couple of weeks ago saying they were investigating my complaint about BW Legal and that they would be in touch in due course.

Please could you advise how I would reply to the latest letter from BW Legal, if at all?

Many thanks,
Pinkychick16

[mystery1]

Re: Excel / BW Legal

Does their claim that the letter before claim provides details of the claim hold up ?

M1

[Pinkychick16]

Re: Excel / BW Legal

No, I don't think so. I should maybe email them again to say they are under investigation by the SRA and this case is therefore on hold?

[mystery1]

Re: Excel / BW Legal

Nah i wouldn't do that because it's not on hold.

I'll get back to you soon.

M1

[mystery1]

Re: Excel / BW Legal

Dear BW Legal,

Thank you for your letter of xxxx th contents of which are noted.

I have previously asked you for information which you seem reluctant to supply. I remind you of the releveant cprs.

The overriding objective
1.1
(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.
(2) Dealing with a case justly and at proportionate cost includes, so far as is practicable –
(a) ensuring that the parties are on an equal footing;
(b) saving expense;
(c) dealing with the case in ways which are proportionate –
(i) to the amount of money involved;
(ii) to the importance of the case;
(iii) to the complexity of the issues; and
(iv) to the financial position of each party;
(d) ensuring that it is dealt with expeditiously and fairly;
(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; and
(f) enforcing compliance with rules, practice directions and orders.


Duty of the parties
1.3
The parties are required to help the court to further the overriding objective.


Court’s duty to manage cases
1.4
(1) The court must further the overriding objective by actively managing cases.
(2) Active case management includes –
(a) encouraging the parties to co-operate with each other in the conduct of the proceedings;
(b) identifying the issues at an early stage;
(c) deciding promptly which issues need full investigation and trial and accordingly disposing summarily of the others;
(d) deciding the order in which issues are to be resolved;
(e) encouraging the parties to use an alternative dispute resolution(GL)procedure if the court considers that appropriate and facilitating the use of such procedure;
(f) helping the parties to settle the whole or part of the case;
(g) fixing timetables or otherwise controlling the progress of the case;
(h) considering whether the likely benefits of taking a particular step justify the cost of taking it;
(i) dealing with as many aspects of the case as it can on the same occasion;
(j) dealing with the case without the parties needing to attend at court;
(k) making use of technology; and
(l) giving directions to ensure that the trial of a case proceeds quickly and efficiently.





Introduction
1. Pre-action protocols explain the conduct and set out the steps the court would normally expect parties to take before commencing proceedings for particular types of civil claims. They are approved by the Master of the Rolls and are annexed to the Civil Procedure Rules (CPR). (The current pre-action protocols are listed in paragraph 18.)
2. This Practice Direction applies to disputes where no pre-action protocol approved by the Master of the Rolls applies.

Objectives of pre-action conduct and protocols
3. Before commencing proceedings, the court will expect the parties to have exchanged sufficient information to—


(a) understand each other’s position;
(b) make decisions about how to proceed;
(c) try to settle the issues without proceedings;
(d) consider a form of Alternative Dispute Resolution (ADR) to assist with settlement;
(e) support the efficient management of those proceedings; and
(f) reduce the costs of resolving the dispute.


Steps before issuing a claim at court
6. Where there is a relevant pre-action protocol, the parties should comply with that protocol before commencing proceedings. Where there is no relevant pre-action protocol, the parties should exchange correspondence and information to comply with the objectives in paragraph 3, bearing in mind that compliance should be proportionate. The steps will usually include—
(a) the claimant writing to the defendant with concise details of the claim. The letter should include the basis on which the claim is made, a summary of the facts, what the claimant wants from the defendant, and if money, how the amount is calculated;
(b) the defendant responding within a reasonable time - 14 days in a straight forward case and no more than 3 months in a very complex one. The reply should include confirmation as to whether the claim is accepted and, if it is not accepted, the reasons why, together with an explanation as to which facts and parts of the claim are disputed and whether the defendant is making a counterclaim as well as providing details of any counterclaim; and
(c) the parties disclosing key documents relevant to the issues in dispute.




In Expandable Ltd & Anor v Rubin [2008] EWCA Civ 59 (11 February 2008) LJ Rix said

" The general ethos of the CPR is for a more cards on the table approach to litigation. If a party thinks it worthwhile to mention a document in his pleadings, witness statements or affidavits, I do not see why, subject as I say to the question of privilege, the court should put difficulties in the way of inspection. I look upon the mention of a document in pleadings etc as a form of disclosure. The document in question has not been disclosed by list, or at any rate not yet, but it has been disclosed by mention in what, for the purposes of litigation, is another important and formal category of documents. If so, then the party deploying that document by its mention should in principle be prepared to be required to permit its inspection, and the other party should be entitled to its inspection. What in such circumstances is the virtue of coyness?"

So why are you being coy with documents you will require to successfully litigate ? Why is a firm of solicitors acting without regard to the rules of the court when they have a duty to the court as well as their client ?

I further remind you of cpr 27.14 (2) (g)

"such further costs as the court may assess by the summary procedure and order to be paid by a party who has behaved unreasonably"

I look forward to better dialogue more in line with the professional duties a firm of solicitors is bound to take and await the further information and documents requested.

Yours sincerely

M1

[Pinkychick16]

Re: Excel / BW Legal

M1,

Thank you so much. The help you provide is amazing. I'll let you know if they reply to this one!

Pinkychick16.