OPS ANPR PCN Claimform - 17mins stay - VANTAGE POINT, BRIGHTON, BN1 4GW,

[lookinforinfo]

Could you please repost the PCN with anything that identifies you removed, but do include dates and times please.

[lookinforinfo]

Thanks for reposting your PCN. Quite often there are mistakes on it that either render OPS unable to virtually take it to Court or prevents them from holding the keeper liable for the PCN. OPS have got it right this time-possibly because of problems in Court a while back and are probably trying to remain squeaky clean for a bit. Doubt it will last long.

However there are more ways to skin a cat so just hang tight.

 

 

[lookinforinfo]

In the meantime could you please get photos of the

signage in the car park.

A legible copy of the sign at the entrance

and the paymeter

as well as any other signs that are different from the entrance sign and the paymeter.

 

Following on from that could you please look at the Council planning department [they usually have a portal on line] which asks for permission to erect signs in the car park. Mostly the permission is never asked for but under the Code of Conduct they are supposed to comply with all legislation.

[lookinforinfo]

Yes it is.  The councils usually take several weeks to deal with planning applications which is bad news tor money grubbing crooks in the parking industry. Much easier not to apply in the first place and then of course you can make your own rules rather than those dictated by the council. Win Win for the crooks.

[lookinforinfo]

Thank you for posting up the signage.

 

I take it that the entrance sign is the last one on the list you showed? That's the one that says Parking Restrictions Apply in large blue lettering. Please confirm.

 

The notice at the paypoint says payment must be made straight away while other signs say payment should be made within 10 minutes of arrival.

 

The £100 charge for non compliance with their rules is too small.

Also not acceptable to state that the T&Cs can be read online when you are at the paypoint. The act of paying to park is confirmation that one accepts their terms. Practically no one would go to check out the website first.

[lookinforinfo]

You could add 

PS

"To compound your ignorance, you cannot hold me liable as keeper because the NTK was not compliant with PoFA. If you do not understand why, might I suggest you ask a proper solicitor.

 

PPS  I don't suppose you have bothered to check the new Private Code of Practice  even though some of it is already in force but a Government Minister has already stated that the addition of amounts over £100 is a rip off. It always has been.

Shouldn't you have advised your client or is this the first time you have learned this fact yourself?

[lookinforinfo]

They appear to be in a twilight zone where changes in the Law have absolutely no effect on them. They carry on blithely as if everything in their garden is coming up roses. it's hard not to feel sorry for the delusional fools . All we can do is try and educate them that the Law of the land prevails not their Codes of Practice which are out of date.  

 

It will be private land but as the public are allowed on it, so what. 

 

The case they quote was against a Freeman of the Land  that had. no chance of winning. And that case was before the new Government Act  came out  so they have no chance to add on those fraudulent charges.

 

Normally they wait for some time after the 30 days hoping that you are regretting your decision not to pay and if they leave you stewing in worry you will come to your senses and pay them.  That is how dumb they are.

 

Of course it could also be that they know their case has no hope so plucking up courage to see if they can risk taking you to Court.

 

If they do take it further, both sides will exchange Witness Statements . Then the ball is in the hands of OPS whether to risk getting spanked in Court or shuffling off into the night tail between their legs.

 

You really shouldn't worry.  Even if you do go to Court, it is very informal the Judge is referred to as Sir, or Madam of course if a woman [thank you Honeybee!].  Don't for get to claim expenses should you go there. Loss of salary, travel parking and 319 per hour research costs.

 

PS take a look at Jopson v Homeguard  if you haven't seen it before. There you will find that unloading is not parking as well as seeing how informal it all is. Oh yes the parking crook lost. it has a good ending.

Edited June 22, 2022 by lookinforinfo

[lookinforinfo]

It will not always be possible to have exact circumstances to yours but any case where motorists have overstayed will be relevant. So reasons to challenge their PCN could be-non compliant PCN, poor signage, not relevant land, not taking grace period or consideration period into account,  invalid contract etc. Some of those such as not relevant land  do not pertain to your case.

 

You mentioned no planning permission which in the past have not been recognised on their own as being able to cancel a PCN despite the fact that not having the necessary  permission is a criminal offence. However under the new legislation  Private Parking Code of Conduct   S14 Relationship with Owner  "[g) responsibility for obtaining relevant consents e.g. planning or advertising consents relating to signs"

 

At the moment these Regulations are suspended because of a dispute over some of the new tariffs by the BPA but S14  [g] is not in dispute. The contract will be governed by the Law of the land which overarches any Code from the BPA and the IPC.

 

I think it  therefore incumbent on Judges to recognise the importance of Council permission for cameras and signage and take it into account. It would seem fairly obvious that if it is a criminal offence not to have permission that the signage should not be allowed. It is also a bit strong that motorists are being charged for often comparatively minor breaches while the breach by a parking company is major yet they get away scot free.

 

I did say in an earlier post that your first PCN was compliant. That was before the new Regulation came out I think. It is now clear that parking companies using ANPR to register the arrival and departure of vehicles are not complying with the definition of parking period.

 

The time taken to enter the car park and find a place to park as well as leaving the parking spot at the end of shopping, and driving to the exit is not parking. The bit in between is but the driving part can take quite a few minutes especially on busy days or leaving a car park that leads to a busy main road.

[lookinforinfo]

Britannia v Semark was one of the few cases that they one. And it was only won because the defendant was using a Freeman of the land argument which never had a chance of winning and why Britannia appealed it.

 

The new Private Parking Code of Practice may not be valid at the moment but it is quite clear in the new Regulations that those extra charges are definitely not allowed. I can see no reason why Judges would go against those strictures currently and the majority of Judges already disallow those charges already.

[lookinforinfo]

Keep an eye on them should they send you a Witness Statement. The signs should be the ones when you were there. The fact that they have changed their signs and the positioning indicates that they were not good enough. So to strengthen their case in Court  should it get that far they will use their new signs which would be unlawful. But as you would have the correct signage it would be to their detriment.

[lookinforinfo]

 looked back over your postings since the start and cannot find the CPR  response they sent you. Could you please post it up again as there will be something at least that should help your defence.

Good job you managed to get pictures of what their signage said at the time of your PCN.

 

Points to make in your WS.

1] the entrance sign does not offer a contract it is just an offer to treat.

2] the font size on the signs inside the car park are too small to point out the  £100 charge  if breaching the T&Cs

3] there are no T&Cs beside the pay machine

4]  their signs are contradictory. Some say payment has to be made straight away  which is in breach of the Code of Conduct that allows a Consideration period of AT Least 5 minutes, while other say payment has to be made within ten minutes.

5]  there is no parking period mentioned just the arrival and departure times . So driving into the car park ; finding a place to park;  plus leaving the parking spot and driving to the exit is obviously  not part of the parking period, so that should be excluded fro the time spent between the two cameras entering and leaving.

6] OPS are put to strict proof that the cameras are time synchronised with each other.

7] this happened during the lock down when many staff worked from home resulting in slower times in premises because of less staff available

8] the Consideration times and Grace periods are minimum times not definitive ones and depend  on their relevant circumstances.

9] the vehicle was loading not parking so Jopson v Homeguard comes into play.

 

There will be others when their WS,  contract and signage are made available.

 

 

 

 

 

 

[lookinforinfo]

I wonder if it is worth claiming that the £70 extra charge is definitely a penalty. In Parking Eye V Beavis the Judges all agreed that the penalty clause was enable at £100 and it was only that their was a legitimate interest involved that let PE off the hook. As the charge is now getting close to double the amount that the Supreme Court was looking at, then £170 is definitely much more of a penalty.

[lookinforinfo]

I am sorry I don't agree that the £70 is anything other than unlawful.

 

Most Judges who handle PoFA parking cases state that it is an attempt at double recovery. 

 

In PoFA  Schedule 4 S 4 [d] 

"(5)The maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper under paragraph 8(2)(c) or (d) or, as the case may be, 9(2)(d) (less any payments towards the unpaid parking charges which are received after the time so specified)."

 

All the new Code of Practice did was to confirm that S9  "9. Escalation of costs

 

The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued."

 

Mostly those extra costs are to pay the Debt Collectors who work on a No Win No Pay basis.

 

As the case is being heard in Court the debt collector was not successful so why are the rogues trying to get the Courts to make the  Defendant pay.

 

In addition, in Parking Eye V Beavis the Supreme court Judges agreed 99]

 

"99. In our opinion, while the penalty rule is plainly engaged, the £85 charge is not a penalty."

 

They ruled that PE also  had a legitimate interest but to extend that to an extra £70 surely does invoke the penalty rule and the case should be cancelled.

[lookinforinfo]

I mentioned in an earlier post that because the entry sign did not include the T&Cs there was no contract there and all it was is an invitation to treat. 

What is an Invitation to Treat in Contract Law?

LAWPATH.COM.AU

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Unsure what an invitation to treat is or how it differs from an offer? Our post will answer some questions you might have.

 

[lookinforinfo]

Anytime the sign at the entrance to the car park does not show all the T&Cs or just the TACs are inside the car park that reperents an offer to treat.

 

Another argument you could use is not one I have used before.[only because I have just found it in this government pamhplet from 2012

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/9155/guidance-unpaid-parking-charges.pdf

It is worth a read but the bit I think you should include is in the FAQs

"POPLA may also refer cases back to the landholder where it considers the landholder has failed to take reasonable account of evidence of reasonable mitigating circumstances which has been presented by the driver or registered"

So bring to the Court's attention that reasonable mitigating circumstances  are supposed to be considered.

[lookinforinfo]

POPLA aren't involved in your case and I think this government paper came out before the IPC were formed. But the principle that mitigating circumstances should be taken into consideration was established by that publication.

 

Probably place it with your argument about the covid restrictions.

It will be interesting to see whose contract they produce since Poppay are now in control. And I seem to remember their previous contract was poor.

 

I guess that some motorists would have written to the landowner to complain which may explain why OPS have gone.

Edited April 13, 2023 by lookinforinfo

[lookinforinfo]

 

Sorry for the delay I have been working hard trying to get a Green Card with untold layers of bureaucracy and copying of multiple documents.

 

OPS are members of the BPA but you keep saying that they are members of the IPC or they should be observing IPS Code of Conduct See page 3 and page 4. The BPA most up to date Code is dated January 2020. So the IPC needs to be altered and the correct BPA comment inserted.

 

You should put your strongest arguments up first. No planning permission does not appear to be too important to Judges so I would put it near the end of your WS. The strongest is that you were unloading not parking. All Judges are aware of Jopson v Homeguard and should be compelling. Then bring in the covid restrictions which is why it took longer to complete your task. Then follow that up with the Government article on mitigating circumstances.

 

Another strong point in your favour is their signage. Nothing at the entrance suggests that the car park is even managed car park with T&Cs. Moreover the font sizes  on the signs are way too small to offer a contract. The signs are confusing some say pay straight away while others say pay after ten minutes. So with ten minutes plus  the grace period at the end  which is also ten minutes [as a minimum]  that gives twenty minutes. Or 21 minutes according to their letter.

I don't recall seeing the contract [which I understand is not helpful to OPS ] nor their WS.

You should remove the Poppay item since that is the app now used by OPS .You can either retain the bit about the signs being changed at a later date, or leave it off altogether hoping that they will use the new signage on their WS which will damage their WS when you complain that they are not sing the signage that was there when you were unloading.  Also possible perjury on their part.

 

When mentioning the missing Period of parking rather than stating "so that should be excluded......." say that the PCN is not compliant with PoFA and so you as keeper are not liable for the charge. As  OPS have not produced any proof who was driving as well as not even knowing whether they are pursuing the keeper or the driver that you respectfully ask that the Judge  quash the charge.

 

 

[lookinforinfo]

Have they still not sent a contract? If they have can you please post it up.

 

 

 

You still have not removed all mention of the IPC -see the last page just above the Statement of Truth.

 

I would be careful about stating that the 11 minute figure is blatantly untrue.

 

In the first place I have seen a sign there where the 11 minutes has been stated and in the second place you need every minute that you can get. So I would be inclined to leave that  out.

 

Signage is an important point in our armoury and OPS fail miserably.

 

First is the lack of information at the entrance.

Second is the small font sizes.

Third is that the basement is dark and there are few signs and what there are tend to be hidden because of parked cars. And of course you weren't parked.

 

Stress that strongly so even if the Judge doesn't accept Jopson case they may well accept the poor signage as a reason to cancel the charge.

 

I am guessing you haven't received their WS yet as you have made no mention of the contents of the contract.

 

Be prepared to remove that piece where you state they haven't provided the contract.

 

Please post the contract up as I seem to remember that the landowner wanted a 15 minute grace period and the car park was monitored by staff as opposed to ANPR cameras.

 

if that is till the case then there is no permission from the landowner for OPS to use the cameras.

[lookinforinfo]

Reading your WS again I now do think you should remove the 11 minute sentence and include it in section four where you can add "and yet another sign says the time allowed is 11 minutes". 

 

In section 5 you end by saying the defendant is not liable for the charge which is incorrect. The Keeper is not liable for the charge but if you were the driver you would still be liable . So please alter defendant to keeper.

This ties in with page 7 where you have coloured in yellow  which you should be reconstructed to something like "As the charge cannot be transferred from the driver to the keeper because the PCN is not complaint and OPS have not  proved who was driving as evidenced by their Particulars of Claim that they are pursuing both the keeper and the driver  you respectfully.......

[lookinforinfo]

I have seen the sign in the past where the 11 minutes was mentioned on one of the signs. it is also mentioned in their contract. They may well include it when they send their WS but you should mention it when talking about their confusing times plus it brings your over time stay more of a de minimus when mitigating circumstances are taken into account since the Grace Period and Consideration periods are not written in stone but are regarded as minimums.

 

No I am not confusing  cases-I have seen their contract in the past plus I didn't explain it properly. They will send their WS to you around the time you are both required to send them to each other. With any luck they will send theirs before you send yours=partly because you will hold it up till the last moment so you can see their arguments. Included in their contract is that the car park is monitored by their employees-no mention of ANPR cameras ergo they do not have permission of the land owners Periworld   to use cameras at Vantage Point.

 

I have looked at your revised WS and it still retains the 11 minute grace period as being blatantly untrue when you will see it is included in the contract and on some of their signs or at least they were. And as it is in your interest for it to be at least 11 minutes please remove it.  I was wrong about the 11 minutes being the consideration period so the maximum you can claim is 16 minutes but bear n mind that under the BPA Code of Practice they do not include that in their calculations should you remain in the car park. This is completely at odds with the IPC Code and the governments new Code. Heaven knows why the DVLA missed that. [Ok I do know . The DVLA are an incompetent bunch].

 

I would also remove the piece about the contract not being produced. That should be done via their WS and I am sure it will be included then since if it is not, the case should be thrown out pretty quickly.

 

 

 

[lookinforinfo]

Rather than answer your questions I have included a WS from OPS involving another Cagger..

The WS is on post 87 and includes much of what you will receive from them when their WS arrives with you.

There is only one contract which should cover all the bases required by the land owner and the car park operator. If things like no mention of permission to prosecute motorists that would probably be something the land owner didn't want included since to CP operator surely would.

 

Yes the ANPR lack of permission would go well in the Locus Standi section.

 

And yes again re the BPA wrongful stance on the Consideration period. It is stated on the new Private Parking Code of practice  5 Duration of Parking Period -"hence the need for a consideration period before the contract between the driver and the parking operator is made and the parking period occurs". And even the IPC agrees with that for God's sake.

 

[lookinforinfo]

That is a great WS. One slight cavil is in your Locus Standi where you state that you have not been provided with the contract despite you quoting from that contract. A CPR does not oblige them to send contract details but without them in their WS they have no hope of winning.

 

I see you have a contract that Sameal was sent. Did they really send that or did yo find it elsewhere?

[lookinforinfo]

Different land owners want different things in their contracts and the rogues obviously want whats best for them so there will be differences in the contracts. The 11 minute rule is a win for  OPS since that is established at the car park that 11 minutes is the maximum. In most contracts as well as the new government Code 10 minutes is the minimum with no maximum. Indeed one lady won her case with 30 minutes included in the grace period. 

Ooops I have just realised that this contract was written before the new Government Code of Practice was in force so a win for Periworld.

The Judge will not be swayed by another OPS contract having clauses in them that strengthen your case as the only relevant details are the contract with OPS and this contract. 

 

However the Jopson case is a great help for you. In normal times  you could have expected to have been in and out within the 5 minutes and your only reason for going there was to bring some bikes back. You were not there to go shopping.

 

You already have point 6  [Confusing signs ] in the correct place further down under No Keeper liability. so you should eliminate it from the illegal signage section.  Incidentally the Period of Parking comes under Schedule 4 Section 9 [2][a] not section 4  so needs amending. 

 

When you do receive their WS you can compare the signage with the old contracts to see if they are using the ones that were in force when you were there.

[lookinforinfo]

Sorry I took it to mean the other car park that OPS lost. It certainly wouldn't hurt your case and if  there were anyone who remained in the car while you were taking back the bikes  that would strengthen your not parking  claim.

 

If you look at the Just Park pay machine notice the bottom of the sign in the  green it states that payment must be made straight away. 

[lookinforinfo]

They are hoping you will bottle it. They could still discontinue but it is as well to prepare.