BW Legal - keeper liability

[Roadrage]

Hi, this is my very first post so please be gentle if I ramble.

I recently received a letter before claim from BW legal threatening court action for an alleged unpaid pcn dating back to 2017. The driver had appealed the pcn with
the parking company which they rejected based on the driver not appealing within a 28 day period. At some point the ppc obtained keeper details from DVLA and allegedly sent a notice to keeper to me. I actually deny receiving this.
There has been a lot of correspondence between BWL and myself since receiving their letter before claim, but in the first instance I would be grateful for an option on
the following - the driver attempted to appeal the pcn albeit late. Therefore the parking company had every opportunity to ask for more details including a serviceable address but did not. They rejected the appeal and then hope to claim the alleged charge over 3 years later from the keeper. Notwithstanding many other possible breaches of POFA and the parking company’s code of practice, does this look like a case BWL could even conceivably win?
Thank in advance for your comments.

[ostell]

If they don't know the driver and they did not comply with POFA then there is a good chance that they will not win. But tne there is not a lot of detail about the circumstances.

[Roadrage]

Hi, Thank you for the quick response. Basically the driver, who is not the keeper, allegedly parked in a pay and display area at the university they were attending. They received a pcn for not displaying a valid parking ticket. There is some question as to if the area is even covered by the pay and display or not, as the university have permit parking on most of the campus. My question about PoFA is that if it is the drivers responsibility to pay , assuming any breach of contract occurred and the driver makes contact with the parking company to appeal, what right in PoFA does the parking company have to ignore the driver and chase the keeper instead?

[ostell]

POFA Schedule 4 is exactly about that. It permits them to transfer liability to the keeper if they do not know the identity of the driver.

If the parking company know the identity of the driver then they cannot use POFA. Condition 5 (1) (b) is no longer met.

Can you show that they knew the identity of the driver?

Write to BWL telling them that you were not the driver at the time, the driver made himself know to the parking company and therefore there is no liability under POFA for the reason above. Also query why they accessed your details, as the keeper, from the DVLA and used them when they had no justifiable reason to do so and therefore made themselves in breach of GDPR.

[Roadrage]

I can show that the driver emailed the parking company to appeal and that the parking company subsequently emailed the driver with an appeal denied letter. My assertion is that they had the name of the driver and a means of contact, they could have easily asked for a serviceable address but did not. Or am I being too simplistic?

[Roadrage]

so, things have moved along somewhat now, having received a letter before claim and stalemate while attempting to avoid court action following the pre action protocol. Have not received notification of court proceedings yet but I think it is coming. As recommended on this site I went back to the basics instead of assuming pcc’s and their legals could be reasoned with(sorry, guilty as charged) and found what I believe are some non conformances in the windscreen pcn and the ntk, I am the keeper not the driver. I am happy to upload the documents, is it safe to leave the description of the land where the alleged breach took place, as this is one of the critical errors the pcc has made?

[ostell]

Yes post up the documents suitably redacted but leave dates. Leave in the location. Even if they attempt to correct a NTK they are too late

[Roadrage]

ntk.PNGpcn.PNG
I hope these are ok. If you compare the pcn(received as a SAR) to the ntk, the written location is different. The postcode in the ntk is the postcode for the
location in the pcn, the actual pictures of where the alleged breach took place confirms a different location that has a different postcode. It does appear though that the ppc have attempted to conflate 2 different locations in the ntc. Any advice gratefully received.

[ostell]

Yes, the NTK should repeat the information on the NTD. However the NTK fails to give the invitation required by 8 (2) (e)

[Roadrage]

Thank you Ostell. Do you mean that the ntk has to repeat 8 (2) (e) verbatim, i.e. "the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—
(i)to pay the unpaid parking charges; or
(ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;"

I notice in the ntk they refer to 'we' in their IMPORTANT NOTE and dont mention creditor at all?

[Roadrage]

Quick question if I may. I complained to BPA about the conduct of the ppc in regards to them threatening legal action through bwl but so far failing to provide signage etc that allegedly created a contract and non compliance with POFA. BPA have actually invited me to provide my evidence for review. Is there any risk to my defence if I do this? How impartial do you believe BPA to be?

[ostell]

The BPA are not impartial, it's a members group. However they do take action against members who have breached the CoP.

[Roadrage]

Thanks OSTELL, I will give them a chance and see what happens.

[Roadrage]

Hi OSTELL, Small update re BWL/TPS. After raising a formal complaint to BWL and a threat to report them to the SRA, they very quickly provided the missing signage(attached) I had requested back in March this year. Notwithstanding the fact this signage appears to be from a different location to that where the vehicle was parked at the time of the alleged breach of contract, it appears to be forbidding in nature if I understand some of your threads correctly? The PCN suggested that the the vehicle did not display a valid pay and display ticket or the ticket had expired. Am I correct in thinking that only the land owner can pursue damages for trespass? Also and perhaps ironically, the evidence provided by TPS shows a valid day permit in the window of the vehicle which the driver had to get on a daily basis as he was travelling from off sight. On that basis, has TPS issued an invalid NTC?

TPS.PNG

[Roadrage]

....sorry that should be NTK not NTC.