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

[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.

[BMX bandit]

Thanks LFI, Which section are you proposing to include this extract in? Is it no locus Standi or Frustration of contract ?

 

How are POPLA involved with this specific case? Doesn't the fact that I didn't appeal to them and that it has been taken to court mean that they have no visibility of the circumstances and therefore are not able to intervene as described to refer it back to the landowner?

 

Would the landowner even be aware of OPS's actions?

 

Appreciate your clarification 

[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

[BMX bandit]

Thanks LFI 

I have added it to the end of the  'Frustration of contract' section

Taking this and FTM's earlier comments, I attach again the updated WS and Exhibits B&C showing photos from Apr 21 and Oct 22, annotated with pertinent points as I see them 

 

Appreciate if you could have another go around for a last review / finesse

 

Thank you all again in advance

28-3-23 WS Rev2.pdf Exhibit B Photos from April 2021.pdf Exhibit C Photos from October 2022.pdf

[FTMDave]

We haven't forgotten about you!  Just we have little time and also people in more desperate straights to help first.

 

Just to check - you haven't got a court date yet, right?

[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.

 

 

[FTMDave]

Rubbish work from me.

 

Superb work by LFI.

 

When you have time, update the WS with LFI's suggestions and let's see the revised version.

[BMX bandit]

Thanks both for your attention to this

Appreciate you have lots of other people asking for help and good luck with the green card process!

 

Yes I do have a court date at the end of May and I understand that I need to send the WS to OPS or DCBL as their rep or both (Please advise??) and the court 14 days before the hearing- Is this correct?

 

So to the updated WS, (Attached)

- Reordered the arguments from strongest first in my opinion- what do you think ?

Responses to your comments on specific sections:

 

No Locus standi

-Tidied up the BPA references

 

Incorrect and confusing signage - I'm not entirely happy with this section

- Referenced the correct sections of the BPA COP 

-Point 4 of confusing signage28-3-23 WS Rev3.pdf section picks up on the inconsistencies but I've gone snow blind as to which signs say you need to pay straight away- can you help ?

 

-Yes their sign on Page 3 of Exhibit B says you must purchase a valid ticket or session within 10 mins of arrival, Is your argument that this should be treated as the consideration period to which the grace period of 10 mins should be added ??? How can we strengthen this argument???

 

-Their CPR response letter claims 'Signs state that there is a maximum grace period of 11 mins' This is not true- the words 'consideration period' do not appear on any signs. I have beefed up the last para in the De Minimis section to capture this - is this the right place for it ??

 

-Added your point about lack of reference to parking period in point 5

-I have removed the reference to pop pay in point 6 of the confusing signage section, I think mentioning the relocation of signs is valid but now doesn't draw attention to app provider change

 

 

No they did not send the contract in response to my CPR

Also removed reference to relocated signs on the photo Exhibits

 

Re your below comment, I have added this to the end of the last para on the no keeper liability section is this correct ??

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.......

[BMX bandit]

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

[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.

 

 

 

[FTMDave]

Sorry for taking a million years to comment.

 

That is a cracking Witness Statement.

 

Two trivial comments.

 

After moving sections around, the start of your FRUSTRATION OF CONTRACT section "Even if, despite all the above, the court considers the defendant entered into a contract with OPS, it was "frustrated" by the COVID" doesn't really make sense any more.  I'd change to "Later sections deal with doubts about whether there was ever a contract between the parties.  Even if the court considers the defendant entered into a contract with OPS, it was "frustrated" by the COVID".

 

In the DE MINIMIS section I don't think it's enough just to give a web link.  Replace the web link with an exhibit by printing out just that one page of the BPA CoP.  Do the same for just the one page of the government CoP.

 

But - superb work!

[BMX bandit]

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

[BMX bandit]

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 ??

[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.

 

[BMX bandit]

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

[BMX bandit]

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

[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?

[BMX bandit]

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  

 

[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.

[brassnecked]

The Jopson case of itself is compelling as normally if you are delivering 20 minutes is a baseline figure at least if you were a courier dropping bikes off at the bike shop so no reason not to apply in some circumstances for an individual such as yourself.

[BMX bandit]

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

[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. 

[BMX bandit]

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