BW (il) Legal - Letter of Claim and response overdue

[terry178]

5 years ago we received a PCN which was ANPR automated and showed a photo of our vehicle entering and leaving a car park:


I know it's apparently a no go, but I would really like to challenge a ticket for "PARKING" when there is not a shred of evidence that any PARKING took place! For instance, how do we know they didn't take a photo as the vehicle entered, we then left, came back a couple of hours later and drove in and out again, snap. Just showing those two pictures from earliest in, latest out, they could make a dodgy claim. I would love to challenge this, despite being informed it's a waste of time. (Isn't that what courts are all about usually anyway?!)

For a few weeks we got pathetically naughty threatening letters DCAs. Ignored all. (I thought best thing was to ignore, but now know that's old news). Then a few weeks ago this comes through from BW 'Legal':





I have done a lot of research and have written a reply to BW (much later than their deadline), I would love to send that to someone on here for advice on whether it's ok or not. It's basically a snotty letter which states that it took me so long to reply purely due to their deliberate failure to include reference to the Pre Action Protocols, so it has taken me weeks to just get conversant with things and even be able to reply appropriately. I refute their LOC, tell them it isn't one, so they can't pursue action and reminded them there are sanctions available to a court to penalise firms who break the guidelines (PAP). Two things I am confused about are:

1. Do I use Practice Direction on Pre Action Conduct & Protocols, OR PAP on Debt Claims, OR BOTH? Are they both relevant, or did the latter wipe out any relevance of the former?
2. POFA and Equality Act - Do I mention these now, or wait until I get a compliant Letter Of Claim before going into those as both I think help my case. (EA - Nursing mother).

Grateful for any help, and if anyone is happy to skim over my drafted letter, please say and I will PM it (regular posters only, law firm maggots need not apply)

[ostell]

If the driver has not been identified then you point out that the PCN that was issued failed to comply with the requirements of Schedule 4 of The protection of Freedoms Act 2012 and to continue with a claim against the keeper is vexatious and bound to fail.

failures:
9 (2) (a) No period of parking. Moving in front of a camera is not, by definition, parking
9 (2) (b) is missing in its entirety
9 (2) (e) the invitation is not there
9 (2) (f) the warning of keeper liability is not correct
9 (2) (h) the creditor has not been identified
9 (2) (i) date of posting not given

Also they cannot claim more than the initial PCN, 4(5)

[terry178]

If the driver has not been identified...

Not entirely sure what constitutes being "identified". I suspect not, but the photo shows the driver. Does that mean "identified"?

If the driver has not been identified then you point out that the PCN that was issued failed to comply with the requirements of Schedule 4 of The protection of Freedoms Act 2012 and to continue with a claim against the keeper is vexatious and bound to fail.

Wow, thanks OStell - glad I asked here. But I thought POFA only applied earlier during the time where I couldve appealed to POPLA? Can I still use POFA arguments after that stage? thanks, sounds like they nailed their own coffin with a little help from you!

P.S. - My draft letter to them actually asks them "Does your client intend to rely on POFA 2012?"

I read that line on the forum somewhere so included it. Maybe I shouldn't ask that, as surely they HAVE to abide by that law? Should I remove that and replace with the list of reasons from you as to how they failed to comply with it, or leave the question in and hope they answer yes before mentioning those points?

[terry178]

I have just noticed on the very first letter (NTK?) - they actually mention POFA themselves (in a non compliant NTK?!)...


I assume this means I shouldnt bother asking if they intend to rely on it, as they already have invoked it?

So maybe my long-winded letter can be replaced with something much shorter, namely......

'You failed to comply with POFA. This makes your actions futile. Go swivel.' (Perhaps not quite the exact wording I should use!)

[charitynjw]

It is perhaps for this reason that ostell asked whether the driver (at the time of the alleged contravention) has been sufficiently ID'd.
If so, the parking co are at liberty to abandon PoFA in favour of common law breach of contract against the driver.
This would circumvent the PoFA failures.

[ostell]

A photo of the driver is not identifying the driver. How do you put a name and address to a face in a picture. They are trying to rely on POFA as they do not, I hope, know the identity of the driver bu have spectacularly failed. POFA is LAW and applies all the time.

Look at POFA paragraph 5

[terry178]

A photo of the driver is not identifying the driver.

Thanks. I have been involved in criminal cases (I know I know, this is civil...) which may be causing me some of my confusion, as I have seen people convicted purely based on a photo which shows judge and jury a likeness plenty good enough to be beyond any reasonable doubt. Again, I know civil law doesn't work on beyond reasonable doubt, it's actually far less demanding on proof, 51% is good enough. And I could imagine SOME Judges "deciding" that the picture shown on NTK is enough to "identify the driver". Hence my concerns about going down a path I may regret later.

Having said all that, as you pointed out, they seem to be relying on POFA and as their letter actually mentions (invokes) POFA, I think it's well worth bringing POFA to my defence wherever possible. They said in NTK: "If within 28 days we have no received full payment or driver details, under Schedule 4 of the Protection Of Freedoms Act 2012, we have the right, subject to the requirements of the Act, to recover the parking charge amount that remains unpaid from the keeper of the vehicle".
Actually, reading that again, I realise now that as far as THEY are concerned RIGHT NOW, the driver is technically unidentified. I only worry that identification may be something which happens in court if the judge decides so.

That text also raises another question, they claim (and thereby attempt to convince me) that the RK is liable for payment if driver is not identified. If that's not true, it's a lie, smells of obtaining money with menaces to me .

Ok I am not at court yet, but today I absolutely must get some sort of written response to them. Hopefully I get it right. I may just risk it and post the letter here in case anyone is kind enough to look it over. Thanks again, very much indeed.

[charitynjw]

I only worry that identification will be clear when my wife walks into court (unless I attended without her as her rep).

Are you qualified to have that right of audience?

[terry178]

Are you qualified to have that right of audience?

No. I only found out about that after reading this post. I thought you could have "Mackenzie Friends" and other forms of lay assistance/representation. I assume that's not the case now. Hmm. That complicates things, there is NO way my wife (RK) will go to court, she would rather pay an unfair charge or even a bill she doesn't owe. There's no way she could argue this in court. I guess I better go and win this without court, and if that fails, a letter to the judge to explain my wife's issues with public situations like that, offer her best defence and accept whatever comes

[charitynjw]

No. I only found out about that after reading this post. I thought you could have "Mackenzie Friends" and other forms of lay assistance/representation. I assume that's not the case now. Hmm. That complicates things, there is NO way my wife will go to court, she would rather pay an unfair charge or even a bill she doesn't owe. There's no way she could argue this in court. I guess I better go and win this without court, and if that fails, a letter to the judge to explain my wife's issues with public situations like that, offer her best defence and accept whatever comes

You can have a MacKenzie Friend, but only to 'hold your hand', not to speak on your behalf.
You can also have a lay rep in Small Claims court (where this is likely to end up should it go the distance), but the Defendant must also be present at the hearing.

Or, as you've intimated, ask for it to be heard 'on papers'.

[terry178]

You can have a MacKenzie Friend, but only to 'hold your hand', not to speak on your behalf.
You can also have a lay rep in Small Claims court (where this is likely to end up should it go the distance), but the Defendant must also be present at the hearing.

Or, as you've intimated, ask for it to be heard 'on papers'.

Extremely useful info, thank you. Lay rep, so long as that meant I could speak on her behalf (I understand she could be asked direct questions by magistrate, and she would answer if so, albeit painfully!)

"Heard on papers" - So that is acceptable, great to know, thanks again.

[charitynjw]

Not wishing to be a pedant, but magistrates hear criminal cases.
Yours would be a civil case heard in a county court, probably on the Small Claims Track & probably with a District Judge (or a DDJ) sitting.

[terry178]

"Not wishing to be a pedant" - Why ever not? I AM GLAD YOU ARE

(I actually wish more people were )

Yes, DJ or DDJ. That's drummed in nicely, thanks, and will ensure I don't blabber out a "Your Worship" which would have been more than a tad embarrassing

[charitynjw]

"Not wishing to be a pedant" - Why ever not? I AM GLAD YOU ARE
(I actually wish more people were )
Yes, DJ or DDJ. That's drummed in nicely, thanks, and will ensure I don't blabber out a "Your Worship" which would have been more than a tad embarrassing

Not even a good old Rumpole "M'Lud"?

[terry178]

Time to watch a Perry Mason re-run!