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

[FruitSalad1010]

I wouldn't normally suggest this as I know we don't link to other sites, however I think it may help you to have a look on another well known site that claims to be an expert at helping you save money.

Without too much searching you will find a first hand written experience by someone who deconstructed OPS in the County Court at Brighton where I expect your claim is also listed for hearing.

The reason I suggest this, and in particular if you happen to stand before the same judge, is because it will give you an excellent idea of what to expect given that the court and the claimant are the same albeit that the specific circumstances are different.

[lookinforinfo]

Harry  is  clutching at straws -obviously he can see this case slipping away.

Nothing to worry about but if he is allowed the Supplementary WS then by all means kick his quibbles into the long grass. [That wasn't a euphemism!].

[BMX bandit]

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

[Nicky Boy]

Supplementary WS's by the fleecers (after the deadline) seem to be an increasing trend.

As far as I can see, it's usually arguments that should be raised during the case hearing... But probably won't be, because they pay some uninterested, hapless solicitor to attend on their behalf.

Just take encouragement from the fact that your own WS must be good... They obviously don't like the look of it and  you've rattled them.

 

[AndyOrch]

Point 2 of their SWS is the give away " In response to defendants statement " A SWS is not intended as a further opportunity to add to their existing statement already served after receipt of the defendant's statement.

 

That's why the court directions stress simultaneous exchange for that very reason I would request the late SWS be inadmissible pursuant to the CPR guidelines as it does not add any further new evidence and is merely in response to facts discovered after in response from the defendant, which reflects badly on the claimants initial statement and whether its content is questionable or valid.

 

Andy

[BMX bandit]

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 ?

[FruitSalad1010]

Personally I wouldn't bother submitting another WS ahead of the hearing, it will appear in some way to condone their actions and you keep the high ground by not stooping to their level.

Of course you don't want to be blindsided in case what they have submitted is later accepted.

I would prepare my responses and then IF the SWS is admitted, simply present them to the Court on the day on the grounds that one shouldn't be prejudiced by a late submission of evidence.

To be honest it somewhat works in your favour that they have submitted a SWS as most of what they have written has given you advance notice of what they wish to say.

A counsel better at strategising might have saved their arguments for the day of the hearing or close to.

Certainly you should object to any late submission of documents which appear to be referred to as Exhibit 2.

Edited May 24, 2023 by FruitSalad1010

[BMX bandit]

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

[BMX bandit]

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

 

 

[FTMDave]

I was going to suggest sending your own SWS - but then I read Andy's post which hits the nail on the head.

You should send a mail to the court, requesting that the SWS not be admitted as evidence, using Andy's reasoning.

I'll reply to your other points when I get a moment.

[brassnecked]

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.

 

Its unheard of to pay to unload or deliver A small van courier on multidrop could do exactly the same as you and they would have to pay  to deliver to  the cycle shop if there is no other loading bay access given their reasoning, so they are clutching at straws.

 

[BMX bandit]

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

 

 

[FTMDave]

Of course the admin staff can't decide on legal matters - but their role was to pass your letter to the judge.

Anyway, on the day suggest the SWS is not admitted for the reasons Andy said.

To an extent who cares if it's admitted, it's full of tripe anyway.

1 & 2.  You're quite right.  The contract allows 15 minutes for loading/unloading.  Nowhere does Harry even try to tackle this.  (Love his "should've" BTW, very formal & professional ).

3.  Quite right again.  The 15-minute limit was indeed frustrated by the pandemic.  What utter vomit they are that they refuse to accept this.

4 & 5.  Spot on again.  The BPA has the same "rules" as the government CoP. which Harry conveniently forgets about.  Your WS is set out very logically from a legal point of view- "I was loading, not parking, but if the court were to decide I was parking i was still within the grace periods".  This is quite normal.  if argument 1 fails I rely on argument 2.

Too knackered now to comment on the rest.

[BMX bandit]

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??

[brassnecked]

Personally I wouldn't dig too deep with that one you have plenty with the Loading v parking and Jopson  see what the others think but digressing down that way might not be worth the time./

[BMX bandit]

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

 

[lookinforinfo]

Don't forget to query why Harry appears to print his name rather than sign By printing it does that absolve him from any possible untruths that may have been in his WS? And if that is not his signature should the WS be accepted at all.

[BMX bandit]

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

[FruitSalad1010]

Thank you for posting this up, it's not easy to write a summary after not getting the result you wanted.

The more detail you are able to remember and post up the more others will hopefully benefit.

If its your first time in court it is also difficult to know when to make notes and how best to take them, well done for getting down as much as you could.

I'm a little confused about C19 (did you mean paragraph 19 of your WS?) it appears the judge didn't like the title as opposed to the substance of the argument?

It appears the cases the judge may have referred to are:

Bank of New York Mellon (International) Ltd v Cine-UK Ltd [2022] EWCA Civ 1021; and
One Parking Solution Ltd v Wilshaw [2021] - Heard on appeal on behalf of OPS following a County Court judgment for which I cannot find a transcript online. Perhaps they provided you with a copy as they should have?
 

Edited May 30, 2023 by FruitSalad1010

[BMX bandit]

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

[FruitSalad1010]

Hmm, I think it is very troubling there are no transcripts and while it may be acceptable to presume a legal officer does not intend to mislead the court at the very least they should provide the source of their arguments.

Your reference to "saying if there was no contract then the landowner would take action against any parking company"  is troubling. I don't think one should be making presumptions that a valid contract exists on the basis that a landowner hasn't sued a parking operator for occupying their land. It is easy to understand why a landowner may allow a parking operator to remain while no valid contract exists as they may still benefit from the deterrent factor they provide.
 

The problem with all this is that even if a judgment is known to contain some weaknesses it is clear that a LiP faces a dilemma when it comes to the decision to appeal due to the costs involved. So while it may not be a deliberate decision it must be in the back of someone's mind that if they don't get things exactly right it is very likely to be the end of the matter regardless, and of the two parties who is more likely to appeal, the LiP or the well resourced parking company with potentially millions on the line.

 

I do somewhat understand the point in reference to delivery vehicle. The key point in Jopson vs Homeguard found that the tenant had purchased a right of access, and that right of access permitted short incidental stops for the purpose of access to their flat.

On private land belonging a third party it is difficult to argue supremacy of contract to load/unload as a customer. If it could have be shown that the land belonged to the cycle shop or that as tenants of the land they had a right to load/unload and this was to be extended to their customers then this may have held some weight. I cannot see that the land registry document makes reference to parking or access but it may have been detailed else where.

I agree with lookinforinfo's comments at post #189. It appears, going forward, the point regarding authorisation should be strongly emphasised including that an appeal decision in the County Court does not set precedent and therefore is not binding on the Court and does not require its consideration.

Edited May 30, 2023 by FruitSalad1010