No problem, I consider myself pretty good at forming an argument and expanding on the points of defence, the judge also denied that grace of 5 mins should be added to the consideration period although the fact that I was not intending on buying a ticket as I was loading.

Re ANPR accuracy, it was suggested that if I had a WS from the driver to say otherwise then it might have been a stronger factor but it seemed she saw no reason to disbelieve the date stamped photos provided by the claimant

When I say C19, I mean Covid 19

No transcripts provided, only reference in the judges summing up

Well Caggers, After having this issue over my head for more than 2yrs, the day in court finally came today. I'm still a bit bemused but disappointed to report that judge Pryce found in favour of the Claimant!!!!

We started 15 mins after the hour and it seemed she had done her homework on the case law and it didn't feel like there was going to be a positive outcome from the off. She started by saying she was OK with people using template WS's but that they should ensure the case law they referred to was accurate and the latest ruling on the matters

Harry turned up in person and didn't say much. I was asked which defences I was relying on, I said all of then but expanded on parking not loading, De minimis and frustration as the top 3.

In her summing up, whilst she acknowledged that I made some good points she,  She cited various aspects of case law to rebuff my arguments, I'll try t list them for others to be wary of or comment

Apparently C19 is not classed in law as a frustration or even a temporary frustration- Bank of NY Mellon vs ?? 1st Feb 21

Rejected that any consideration / grace periods were applicable due to the fact it was clear that he vehicle/ driver was not attempting to park

Wasn't interested of the signs or ANPR were legal or had planning or if the dates stamps were accurate, same goes for validity of contract with Landowner, saying if there was no contract then the landowner would take action against any parking company - Ref Wilshaw case judgement which apparently in para 32 says you don't need an agreement ??

No considered Gov COP- Harry chipped in and said it has never become law

Her view was that there WAS clear signage at the entrance around the site and that I was not a delivery vehicle nor did Jopson vs Homeguard or Ashby vs Tollhurst apply as they were specific instances of loading, the former furniture to a flat and the latter a stolen vehicle.

She made a lot of references to the above cases and a  Simpkiss summation

Claimant dropped the additional £70 at the offset so total bill will be £100 the original amount claimed and 112 costs £212 total

Not the result but it will have cost them more than me and hopefully some lessons for others out there

Thanks for all your help

Yes fair enough, Just looking to put the tin lid on it and pile up the arguments and ensure it can be kicked out on multiple counts

Wonderful, thank you for the confirmation of my ripostes to the nonsense they have spouted out

As I pull this to a close and review my substantial body of research around this topic, I have found another potential angle which I would like your advice on relating to the OPS contract with the landowner

Further investigation on companies house revealed that there is no one of the name shown on the contract from OPS Exhibit 1, listed as a director of the company who own the land (Perriworld) and as such it is offered that there is in fact no contract in place. Companies house legislation state that any change in directors details should be advised within 14 days of said change. Ref Companies act 2006, Section 163, clause 291. There is someone listed with the same first name and potentially a maiden name on CH who may have got married to one of the other directors all who have the same surname as the person who signed the contract. But this is not refelcted on the CH records.

The contract with OPS and Perriworld states above the signature blocks- "In witness of which the parties have signed this agreement the day and year first above written."

Above the customer signature block it is written "Signed by the Freeholder/ Leaseholder or authorised party managing agent on behalf of the freeholder. Leaseholder (customer)"

Above the OPS signature block it is written " Signed for and on behalf of OPS"

Based on this and the below extract from the recent case vs OPS for the same car park (from Andyroch )where they make the following points, Is the contract valid at all????

LANDOWNER CONTRACT EXHIBIT L 49. This document dated 2016 is the landowner contract which was in effect at the time. This document has only been signed by one person (Gavin Price) who according to Companies House was not listed as a Director until March 2019 – instead of being signed by two Directors, nor by one Director in the presence of attesting witnesses, and as such cannot – according to the Companies Act – to be considered a validly executed contract. The network of contracts are key in these cases, since the parking charges are argued to be contractual and the authority to sue visitors must flow from the landowner, not an agent.

So in order for it to be a validly executed contract. do one or both parties ned to be directors of the companies they are representing and/or have their signatures witnessed??

Thank you for that, I fully agree, Court has written to me advising that the case will still be heard next Tuesday so any last minute thoughts before then are appreciated

I wrote to ask that the SWS be deemed inadmissible and the reply I got stated they were only admin staff and could not advise on legal matters? They suggested raising it on the day -  I will follow up again

Lots for you all to digest, heres my off the cuff thoughts in response to their SWS- Appreciate your input advice particularly re the NTK compliance with POFA

1.      Re their point 4-The Claimant is reiterating that their exhibit 2 (copies of signage) makes it clear that parking on the land is only permitted for motorists with a valid parking session and refer to terms of a contract. As I have outlined in my original witness statement, loading is not parking and it denied that any contract was entered into. To state that the signs are clear is laughable on several fronts due to the size of font and poor location of signage meaning many cannot be seen from inside a vehicle or are blocked those already parked. In a recent case in this court vs the same claimant for the same location, the WS ( Should I attach and extract as an exhibit) expands in much greater detail than I did on the poor conditions of the location. This case was dismissed by Judge Sullivan.

2.      Re their point 4-The claimant suggests the dropping off the cycles is a privilege that should have been paid for ? The defendant asserts that loading/ unloading is a regular activity carried out millions of times a day across the UK on public and private land and would challenge the claimant to proof of how many of these activities attract a fee for the privilege. The contract between the landowner and OPS clearly state that loading is an accepted activity which dies not require a ticket and that those doing so should not be issued a fine.

3.      Re their point 5- The claimant suggests Covid 19 impacts should not be considered as frustration of contract and therefore not considered as mitigating circumstances. Why when the vast majority of inhabitants on this Earth could provide evidence of how Covid impacted their daily lives and added time and inconvenience to previously simple tasks should OPS choose to ignore these aspects and exercise good judgement and apply the guidelines as well as consider this fact as universally accepted mitigation to our everyday lives. The specific measures in place at the shop were not known about until arriving at the door nor was the actual amount of time required to complete the action calculable. The intention was to unload, deliver, load and go, An activity which the defendant would be happy to undertake under timed conditions in these post Covid times to re enforce the point of mitigation.

4.      Re their point 6- Consideration and grace are not periods of free parking as the claimant states from the BPA. The vehicle was not parked so this does not apply and it is argued that no user of the facility can be deemed to have parked until they have entered into the contract and paid the fee. This can only be accomplished by firstly locating the sign and familiarising oneself with the terms. The consideration period allows for this and if a driver deicides that they do not want to enter then contract then the grace period allows them to exit without having ‘parked’

5.      Re their point 6- The suggest the Gov COP is irrelevant due to its withdrawal after the date of the event in question. Defendant asserts that the guidance was in pace at the time of the event and as such is admissible but furthermore it only reinforces the BPA’s own guidelines

6.     Re their point 7- This is simply a difference of opinion on the point of confusing or adequate signage. There is a huge body of evidence from real users of such facilities who sav the same opinion as the defendant and almost as many judges who have ruled in favour of these defendants

7.      Re their point 7- To suggest the photos provided in the defendant witness statement cannot be proved to be at the time of the contravention. The defendant is happy to provide proof of the date of photos on their mobile phone camera records and it is churlish to think that the defendant would have reason to collect photos of random locations unless there had been a claim tabled against them. This is contrary to OPS who are supposedly the operators of the location who only provided photos date stamped almost 2 years before the date of this event.

8.      Re their point 8- Claimant seems to have missed the point here and it is reiterated that the defendant and others who have searched has not found planning permission from Brighton and Hove council permitting either the signage or installation of cameras at this location nor has it been provided by OPS as requested in the CPR31.4 letter. In addition there is no explicit agreement in their contract with the landowner from use if ANPR system. Per point 39 of my original Witness statement, no proof of calibration or accuracy of time stamps on cameras has bene seen and furthermore the extent of magnification required to pick out the vehicles number plate from one the photos further supports the low level environment that they are operating in.

9.      Re their point 9- Claimant reiterates that their NTK is compliant but has not addressed the specific reasons from my WS points 50,51 & 52. No appeal was made as this is not a binding independent process this is not a binding independent process and research demonstrated that rarely is the original decision to apply a penalty is overturned

Yes that was my feeling, unless others have any counterviews, I will concentrate on addressing the issues in the form of a SWS just in case but also as a memory jogger for the day

Just had a mail from the court saying  the hearing is double booked, will be advised of their proposed action to address it tomorrow

Thanks for your comments guys, so are you advocating not to respond with SWS myself? If I am taking the line that it is after the deadline and should be inadmissible then it would be hypocritical to try to send a SWS myself wouldn't it ?

I would like to prepare my counters to their comments if either it is deemed admissible or they roll it out as their defence/ counter points in court

I guess as well as being worried about the strength of my WS, they might be a bit upset that I had the opportunity to review and attack their first WS and incorporate responses in my WS

What's the groups opinion on their point 6 as to whether I am eligible to Consideration and grace periods as I was not parked and how to counter the claim that Gov COP's should be ignored as they were withdrawn- Is it valid to say that they were in force at the time of the event and have been withdrawn for review and update I believe ?

Thanks as always particularly Fruit salads lead which I note is a recent case- Was it thrown out I wonder, I will look further

It does seem to address all the points I have made

In the meantime, please find the SWS attached

2023-05-22 OPS SWS.pdf

Just when I thought it was sit and wait till D day in the courts, young Harry has ben busy scouring my WS and has today sent a supplementary WS dated 19th May so last Friday which is after the 14 day period court requires all WS's as per their guidelines- Is this even admissible as evidence ??

I'll redact and scan tomorrow but heads up on his counters to the points I made in my WS

1. Says their ex 2 from WS1 (pics of signs) states land only permitted for valid parking sessions, I should have paid for the 'privilege' of parking. terms on signs were sufficient and I breached the terms

2.dismisses frustration due to C19, says I admit to using the land for 17 mins and that's unreasonable to do so without taking notice of the prominently located signs ??? says 1 in 1 out irrelevant and without that I still should have bought a ticket even if I was there less than the 10 min grace period

3.They ref BPA 13.6 as not consideration and grace not being free periods of parking, because  say I wasn't parked I should not be eligible to either of these periods. Also sate Gov COP withdrawn in Jun 22

4. Says signs were adequate font size and location, say my photos were not date stamped- I can prove this on my phone if required, there's were blatantly before the event

5. Challenge my claim of illegal signage - no planning and refer to a clause in their contract with landowner where it mentions the word planning?? They need council planning permission though don't they for signage ?

6.ANPR provided by NTP 3rd party which they have no authority to edit but doesn't address the accuracy of the timings.

7. They say I allege no evidence of ANPR being used to manage the site but that it says it on the signs ?? My actual claim was that they do not have the landowners permission to install cameras or use them to manage the car park

8.The deny their NTK is not compliant with 2012 POFA

Should I send a response to this, do I have time?

I also tracked down the landlords address and called them to speak to the person who signed the agreement, seems its a lawyers office but the person I spoke to said they would pass on a message- I wrote outlining the situation and gave them to opportunity to speak to me about it or simply get OPS to cancel their action and avoid unnecessary court fiasco 

Appreciate your swift responses folks

Yes e mailed the court with WS as advised and asked for confirmation of receipt and received the following response

AUTO RESPONSE – DO NOT REPLY**

WE AIM TO REPLY TO CORRESPONDENCE WITHIN 30 WORKING DAYS HOWEVER AT BUSY TIMES THIS MAY BE LONGER

If you are getting in touch about an upcoming hearing date or something urgent we will reply as soon as we can.

IF SENDING BY EMAIL DO NOT SEND BY HARD COPY AS WELL

As for sending to DCBL, I was able to send the WS to my wife to print and post it off by registered mail

So lets see how this unfolds, I'm feeling pretty confident and will watch out on the off chance they see sense and drop the claim but they seem stupid enough to see it through

Thanks for everyone's input- lets hope we can chalk up another win against the parasites

Had a go around and tried to weave in all points- see attached

No Locus standi looks a bit weak now they have provided the contract - is the point in 55 now redundant based on point 13 of the latest contract which talks about taking photo graphs and point 18 which says OPS will provide the charge system- or does this relate to pay machines ?

Couldn't create Exhibits and attach the web links but I'm not so worried about that- one is a video

V poor internet so spent all day on and off trying to edit this, will probably have to send it before you have time to comment given time difference but if there are any howlers please shout

Thanks again for all your guidance and advice

14-05-23 WS Rev6 forum.pdf

Input much appreciated guys

I've just landed in west coast USA but will consolidate comments and update once the world stops spinning

Thanks 

Appreciate the feedback

I have slimmed the preamble

Added numbers for each para and included reference to the updated contract in the 3 sections you suggested

Does the receipt of their WS render the NO locus standi section largely redundant and as such should it be removed or slimmed down??

Updated  WS attached

13-05-23 WS Rev6 forum.pdf

OK Caggers, I hope you are available to review and comment this weekend - patience has paid off and OPS WS came in the post just now

I've hopefully redacted my details and attach the first 24 paged of the 63 page doc

The do include an updated contract where the 15 mins with engine running comment removed BUT check page 12 half way down in the box where it seems the landlord has added the note to specifically allow 15min grace period for any approved delivery vehicle that is delivering loading/ unloading to the onsite retail units!!!!!!!!!! BINGO- Well if this doesn't cover apply to my circumstances I don't know what does plus C19 mitigation- sounds like a slam dunk doesn't it ???

So how would you suggest updating modifying my WS in light of this- i think including the previous contract shows a leniency which is followed through with the intent of the above clause- Not sure whats redacted below that of course could be more damming or just someone's name

I still don't see planning permission for signs or installation of cameras or proof of camera accuracy

I've not included all the other exhibits but a summary of the waste of paper below 

2- You've seen before - I would argue they are not prominently displayed- knee height and 10 pages of photos of various signs around the site, not all on the underground floor I parked on 

3- An e mail from Jan 16 to some block called Peter who was retiring from the BPA and says the signs are compliant - no copy of the actual signs submitted

4- ANPR photos of the vehicle entering and exiting

5- Unreadable pay and display log

6-A plan of the site and location of signs- proving what??

7- All the letters they have sent to me 

8- Screenshot- so what?

2023-05-11 OPS WS.pdf

Fair comment LFI !! I stand corrected

OK so, I have brought it all together and attach the final draft WS for your collective review

I haven't included the exhibits as you have all seen those before and they are the same as previously posted in this thread

Need to send off Sat AM latest so appreciate any final tweaks or input to strengthen what appears to already be an open and shut case

if they thought that I would back out with their continued intimidation them they can think again, Bring it on and I look forward to my day in court!

Thanks in advance

11-5-23 WS Forum draft.pdf

Getting close to me needing to send off my WS, I assume via e mail is OK to the court and post to the Claimant ???-

Question I have is

- Do I send it to OPS who are listed as the claimant on the small track hearing letter or DCB legal who are listed as the address for service on the previous small claims questionnaire OR both ??

Appreciate your feedback 

Some very strong arguments in the defence, thanks for al your input, Any one of the elements we have defined would get it thrown out so together surely they are cast iron

I've just checked with the court and the dingbats have indeed paid the hearing fee!!

I was hoping it would have all gone away but it does indeed look like I will be getting a day in court- Or an hour at least!

Will continue to refine and polish and recirculate ones last time before submission

In response to post 171 from LFI

To clarify the case you referred me to was at Vantage point, the exact same location in question in my claim so the contract I attached applies specifically to my case.

Therefore - in principal does the approach I have taken work for you in the highlighted para at the end of loading is not parking ?

Indeed Jopson is a key mitigation and parallel to the above argument I would suggest

Brassnecked, thanks for your input- do you have a source for the 20min baseline for courier deliveries statement please ?

Removed that point 6  in the confusing signage section ?? and amended the reference in No Keeper liability

Thanks for your continual polishing of this- lets se if they pay the fee due next Tuesday to determine if we ever get to use it in anger

Whats your view on point 4 of confusing signage, As mentioned I have written some signs say payment has to be made straight away, Its been so long since I wrote that, looking back I can't see from any of the photos that any signs specifically say that but is it implied by the 'pay and display' wording or if in doubt should I delete it ?

I attach the photos with sings from closest to the time of the event below :

Exhibit D Photos from April 2021.pdf

No I have not received a contract directly from OPS but found the copy I put in the Exhibit in the WS they sent in the case you directed me to, The name was not redacted on one of the attachments so I used it to better direct the judge to another failed case for OPS in the exact same location

I know its a bit back to front using evidence from their contract when I  am saying I have not received it first hand but there are various examples of the same form of contract for other car parks the manage across the web , all including this point (v) 

Does my use of this fact in the loading is not parking section strengthen my defence in your opinion ?

Of course if I do receive their WS for my case before issuing mine and it includes this contract then I will reword but in principal does the approach I have taken work for you ?

What's your advice on an appropriate home for point 6  in the confusing signage section ??

Also in that section, point 4, I have written some signs say payment has to be made straight away, Its been so long since I wrote that, looking back I can't se from any of the photos that any signs specifically say that but is it implied by the 'pay and display' wording or if in doubt should I delete it  

I continue to embellish my WS and add Exhibits

I attach the latest version with quite a few additions and in particular highlighted areas for your comment, I have found a clause in the landowner contract you led me to ( Thank you so much) which basically says you can be in the location with engine running for 15 mins and they will not issue a PCN?? I would have thought this would be idling and not good for the planet as well as they say idling is not allowed on their signs so misleading and contradictory. Anyhow I am proposing to use that angle as wholesale mitigation to dismiss the case as this describes very well what I was doing and by default seems to cover exactly a loading/ unloading operation

Have updated the Exhibit numbers assuming you agree to keep this in but mainly for my sanity- can adjust as required but include the copy of the contract only for now- Exhibit A

Look forward to your feedback

28-3-23 WS Rev5.pdf OPS contract with landowner from Sameal.pdf

Wonderful Thank you, I'm still trawling , seems this location is notorious for NTK's and a rising number of loses in court for OPS

Lets see if we can't notch up one more for them

Have done some research and yes I can see on companies house that Periworld is the owner which ultimately goes back to Banco Bilbao Vizcaya Argentaria S.A

Theres a thread on MSE where someone else had a PCN from OPS dismissed but that seemed to be a case of double dipping

WON - Case Dismissed by DDJ!!! One Parking Solution Vantage Point Brighton - Page 6

FORUMS.MONEYSAVINGEXPERT.COM

---

Hi CM, yes they included the Landowner agreement dated 2016 single singed by G.Price and it has no mention of ANPR enforcement anywhere on it and confirms a 15 min (and then some) grace period.

They say in that thread  "yes they included the Landowner agreement dated 2016 single singed by G.Price and it has no mention of ANPR enforcement anywhere " I can't find a copy of the contract - can you ? If I can't find the contract myself - can I still add this point as it is understood from a recent previous dismissed case ??

Once again many thanks for your feedback

FTM- Have amended the section and created Exhibits of the relevant sections in both codes 

LFI Re your comments

Yes 11 minutes is shown on the sign and also included in the copy of the text which they sent with their response to my CPR13- Are you taking this sign as the contract or are you meaning the contract between land owner and OPS. I think I am right in saying that there should be two in place, One giving permission to manage and operator on the land and another to allow them to take legal action

You refer to having seen a contract in the past, Was this on another case? I have not been sent either of the above 2 contract despite my request in my CPR and I am not familiar with the name Periworld or this issue you cite re permission to use cameras- Can you direct me to this document please? Is there a chance that it could have changed since you last saw it ?

Thanks for reminding about the 11 mins section I got my grace and consideration periods back to front and thought I had an angle- Now reworded- I've adjusted that section now

I will repost once we sort the contract question out as if it is the case I assume you would add your point in the No locus standi section - is that correct??

I noted your point about the BPA not including the consideration period in their calcs, Should I address this or just rely on the Gov guidance ?

Thanks again in advance

if you are referring to the contract between OPS and the landowner to make civil clams, then no I have not received this and mention it in the second point b) at the bottom of page 5

No I have not received their claimants WS - should I expect to ? Latest day for my submission is mid May and I assumed the same for them, Do claimants have to provide defendants with their WS in advance to allow me to reply or respond to it in my WS??

Good spot, I have the correct BPA clause referenced in the No Locus Standi section on page 8 

The untruth about 11mins is related to the classification of it as max grace period - not the length of time- for this reason I think it is still valid in the de minimis

Re comments on incorrect and confusing signage

taken your suggestion and added a reference to 11mins in section 4- ? I'm still looking to find where it says- Payment must be made straight away- I may need to remove this part

I have added a new point 5 to cover this aspect basement, hidden signs point you made

Changed defendant to Keeper on what is now section 6 - highlighted and reworded the end of No keeper liability section no page 7

I think you must be confusing cases, I don't have the contract and there has never been any comment from the landowner about staff vs ANPR

Will keep polishing but attach the updated WS 

Much appreciated

28-3-23 WS Rev4.pdf