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

[BMX bandit]

Roger that- Appreciate the definitive answer

I'll only send a copy to DCB with no mail or phone number

[BMX bandit]

An interesting side observation when passing the car park recently is that they have changed some of the signage related to the pay by app option and the location of the signs. They have switched from Just Park to Pop pay, Not sure this is relevant to my situation but just curious, could it be related to lower operating costs or a fall out between OPS and Just Park? In their LBC they cite the fact that I did not obtain ticket via the Just park app- would they still be able to verify this if pushed, given the relationship has seemingly ended?

 

They have relocated the signs from the inside wall as you drive in and the Just park one (now gone) which was far left from the entrance to both be on left as you drive in - I have to say a more prominent position,. Can this fact be used in defence even though they still contain illegible small print from someone driving past them even at slow speed. Is the relocation of signage after my event almost admission/ acceptance that signs were previously poorly located  - not that this is cornerstone of my defence but another mitigating factor?

[brassnecked]

Any picturesm dating from the time of your ticket will still be part of a defence. especially if they try to conflate the situation then with their new signs etc, as in use the new signs etc in a WS they send.

[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.

[BMX bandit]

Notice of transfer of proceedings now received stating it will be at my local court which is one thing.

 

How long will this madness continue,

Are we past the point of no return now?

DCBL are in Runcorn,

I know OPS are in Worthing but are either of them going go to be bothered to send a paid employee to a court hearing for less than £300, its just crazy

 

Is now the time to polish off my WS and circulate to you guys for comment or wait for the next step of track allocation/ judges directions?

[dx100uk]

no they will pay a locum to rep them that either wont get their (DCBL) WS or yours and ask for an adjournment.

 

 

 

[brassnecked]

Which as you will have free proof of posting of the WS you sent ask the Judge to disregard their request for adjournment.

[FTMDave]

Open.

[BMX bandit]

Hello Everyone, So the saga continues and I have received a "Notice of allocation to the small claims track"- I assume you have seen these standard letters many times before so have not attached it to this post?

Hearing is at the end of May with a £27 fee to be paid at the beginning of that month by OPS if indeed they are serious 

WS should be submitted no later than 14 days before hearing so I have some time but as advised, have been pulling together threads of my WS for some time on the off chance that they would want to follow this through.

 

I will pull my draft together in the next week and share it for your kind input

 

 

[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.

 

 

 

 

 

 

[BMX bandit]

Thank you so much LFI for your thorough feedback, I didn't include a scan of their response to my CPR in the thread as it was so brief, I added the content of the letter in post 96 and include it again below for your reference :

 

"We write in response to your previous correspondence.

 

We acknowledge your request for documents however, please be advised the documents have previously been posted to you with our response to your Letter of Claim Response. The courts direct both parties to provide all evidence prior to a hearing.

 

You dispute the proof of planning permission under the Town and County Planning Act 2007, please direct us to the sections with which you refer to for us to be able to respond accordingly"

 

Excellent list you have provided and I will be sure to include them in my draft WS, hopefully in the correct section. Re your point 1 , what does 'offer to treat' mean ?

Re point 6 and the ANPR timings, I have seen some articles in the press about this over the weekend and seems one guy ( Laurence Carnie, from Dartford)has been on a crusade to help those like me who receive these types of PCN's quash them once and for all, I think this is a separate section of defence all on its own so will add accordingly

 

Thanks again

 

[BMX bandit]

OK Guys, Looks like we are gearing up for a day in court

Please find attached my attempt at a Witness statement based on my research over the last months

I've defined 9 sections or areas of defence which hopefully are compelling enough to laugh this out of court before it ever gets there

Appreciate yuor comments and advice as always 

Thanks in advance

28-3-23 WS Rev1.pdf

[FTMDave]

Well that's my evening sorted!

 

Will have a good read through when I knock off work.

[BMX bandit]

Excellent , Your a gent, I'm tidying up the attachments consisting of my CPR31.14 letter and photos of the site before and after the relocation of sings and change on parking app provider

[FTMDave]

That's a cracking first draft at a Witness Statement.  Well done on getting on with this so far in advance.  We often have people expecting us to be magically free at the last minute.

 

At the start where you write who the Claimant is, your opponent is One Parking Solution Limited (DCB Legal are just some spivs who take a few quid to send "threatening" letters and who pretend to be solicitors).

 

There is a bit of repetition and some sections maybe need to be inverted, but the "meat" is definitely there.  Superb!

 

I'll go through it with a fine tooth comb when I get a chance.

 

 

 

 

[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.

[brassnecked]

Good point LFI Beavis does indicate that to be the case, notwithstanding that due to Covid 19 provisions it would be a virtual impossibility for anyone to not breach the parking time Llmits  set by fleecer's whilst shopping etc.  Parking Eye's default Aldi 90 minutes was impossible to comply with due to a one  in one out maximum 6 in store and queue's around the car park.  There is nothing to indicate this situation was not the status quo at that car park.

[FTMDave]

Apologies for commenting in dribs & drabs, but work comes first.  Plus the fact that you've done all this great work well in advance of the hearing gives us some extra time.

 

The easiest section to edit is the ABUSE OF PROCESS one.

 

What you found and used was superb when the government CoP was introduced.  However, the fleecers are legally challenging it on (a) the amount they are allowed to charge in parking invoices and (b) the Unicorn Food Tax they add on.  The very same points you are, and we were, hammering them on

 

So all of the below need to go.

 

But no problem, there is still ample case law to beat them here, and maybe a slimmed-down version is better anyway.

 

As part of the provisions of the Parking (Code of Practice) Act 2019, on 07/02/2022 a new Code of Practice was published by the government, designed to prevent these “rogue” traders from "ripping people off" (the minister's words) with extra charges, which have been deemed unfair (https://www.gov.uk/government/publications/private-parking-code-of-practice/private-parking-code-of-practice)

The Minister Neil O’Brien, in the foreword also goes on to state “And there will be no wriggle-room for rogue companies who continue to flout the rules. If they fail to follow this Code, they will effectively be banned from issuing parking charges indefinitely”

The publication of this Code therefore marks the start of an adjustment period in which parking companies will be expected to follow as many of these new rules as possible. The Code will then come into full force before 2024, when the single appeals service is expected to be in operation. This indicates that the new CoP should be adhered to now, where possible, but clearly VCS are choosing to ignore these new rules, and continuing to go about their business as normal, regardless of the law.

Section 9 of the new Code of Practice, regulates the matter of recovery costs: “The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued.”

DCBL are attempting double, indeed triple recovery. As well as £50 legal costs they have invented an extra sum of £70 through the course of this process.

[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.

[BMX bandit]

Firstly ,

Thanks for all your input on this guys, It seems to have generated a healthy debate on the first of the 9 sections so I'll wait for a consensus before amending and reissuing.

 

Its true we have some time to refine, I don't like to rush last minute and I appreciate your feedback that its a decent first pass.

 

Completely understand that it will be a piecemeal and iterative process, again I am grateful for all you support and collective wisdom. Good to hear that in your opinion it presents a robust defence,

 

As I collated it, I did get the sense that there are multiple solid arguments, even if the judge rejects the COVID impacts which were definitely material.

 

Regardless of the legal elements of signage etc, we are talking about 60 seconds over the allowable period- Utter nonsense

[FTMDave]

22 hours ago, lookinforinfo said:

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

Agreed LFI.

 

It's just that unfortunately I think the government CoP parts have to go as it's being legally challenged, leaving the OP with all the POFA parts fortunately.  So -

 

ABUSE OF PROCESS

 

The Claimant seeks recovery of the original £100 parking charge plus an additional £70 described as “late payment and debt recovery charges”. No further justification or breakdown has been provided as required under Civil Procedure Rule 16.4.

 

Even before publication of the government's Code of Practice, Parliament intended that private parking companies could not invent extra charges. PoFA Schedule 4, paragraph 4(5) states that “The maximum sum which may be recovered from the keeper is the amount specified in the notice to keeper” which in this case is £100.

 

Previous parking charge cases have found that the parking charge itself is at a level to include the costs of recovery ie: Parking Eye Ltd vs Beavis (2015) UKSC 67 which is the authority for recovery of the parking charge itself and no more, since that sum (£85) was held to already incorporate the costs of an automated private parking business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that an alleged “parking charge” penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, that the £85 (or up to a Trade Body ceiling of £100 depending on the parking firm) covers the costs of the letters. Since 2019, many County Courts have considered claims in excess of £100 to be an abuse of process leading to them being struck out ab initio. An example, in the Caernarfon Court in VCS v Davies, case No. FTQZ4W28 on 4th September 2019, District Judge Jones-Evans stated ''Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court v Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued, he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process.''

 

In Claim numbers F0DP806M and F0DP201T, Britannia vs Crosby the courts went further in a landmark judgement in November 2019 which followed several parking charge claims being struck out in the area overseen by His Honour Judge Iain Hamilton Douglas Hughes GC, the Designated Civil Judge for Dorset, Hampshire, Isle of Wight & Wiltshire. District Judge Taylor echoed earlier General Judgment or Orders of District Judge Grand, stating ''It is ordered that the claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay.  This additional charge is not recoverable under 68 Claim number: (Defendant) Hearing date: the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...''

 

The addition of costs not previously specified on signage are also in breach of the Consumer Rights Act 2015, Schedule 2, specifically paras 6, 10 and 14.

 

It is the Defendant’s position that the Claimant in this case has knowingly submitted inflated costs and thus the entire claim should be similarly struck out in accordance with Civil Procedure Rule 3.3(4).

[FTMDave]

OK, got some free time at long last.

 

"Principle" not "principal".

 

In NO LOCUS STANDI all of this can go.  It's either repetition or dealt with in other sections -

 

The Claimant is yet to provide evidence of relevant planning permission from the local authority to put up signage in the car park.

 

If the Claimant is using The Protection of Freedoms Act 2012 (POFA 12) to create a keeper liability, POFA 12 Schedule 4, at Section 4 (5) states that:

 

‘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’ in this case £100. The purported added 'costs' for which no calculation or explanation is given are disproportionate, a disingenuous double recovery attempt, vague and in breach of both the:

 

a) Civil Procedure Rules 1998 (CPR) and

b) Consumer Rights Act ('the CRA') 2015 Schedule 2 'terms that may be unfair'

 

The Defendant has the reasonable belief that the Claimant has not incurred an additional £87.64 in costs to pursue an alleged £100 debt. The arbitrary addition of a fixed sum purporting to cover 'contractual costs' is also potentially open to challenge as an unfair commercial practice under the CPRs, where 44.3 (2) states: ''Where the amount of costs is to be assessed on the standard basis, the court will – Have the CPRs been amended?….

 

(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and

 

(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party. 2

 

In any case no contract exists between the claimant and the defendant due to the paucity of the signage at the site that offers the supposed contract

 

In the alternative, the Claimant is also put to strict proof, by means of contemporaneous and unredacted evidence, of a chain of authority flowing from the landholder of the relevant land to the Claimant. It is not accepted that the Claimant has adhered to the landholder's definitions, exemptions, grace period, hours of operation, etc. and any instructions to cancel charges due to complaints. There is no evidence that the freeholder authorises this Claimant to issue parking charges or what the land enforcement boundary and start/expiry dates are, nor whether this Claimant has standing to enforce such charges by means of civil litigation in their own name rather than a bare licence to act as an agent ‘on behalf of’ the landowner.

 

In your INCORRECT USE AND CONFUSING SIGNAGE section some photos of the carp signs as exhibits would be useful.

 

In LOADING IS NOT PARKING, which is likely to be one of your aces, a quote from the case, and the case number, would be useful.

Edited March 31, 2023 by FTMDave
Typo

[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

---

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

 

[BMX bandit]

Great, thank you , that's clears up the invitation to treat question, Do you agree that this point sits in the 'incorrect and confusing signage section' ?

 

FTM Thanks for your feedback

-Changed 'principle'

-On the Loucs standi section- I have amended as you advised 

-I have photos of the signs which I will share one tidied up and thought how to present them to best reflect the changes since the event

-In loading is parking- Case number added and found the below quote which I think is relevant

"The appellant’s case could also be put in another way. The purported prohibition was upon “parking”, and it is possible to draw a real and sensible distinction between pausing for a few moments or minutes to enable  passengers to alight or for awkward or heavy items to be unloaded, and parking in the sense of leaving a car for some significant duration of time."

 

I will give it some time to see if you or others have further comments and then post the updated WS

 

Very grateful as always 

[FTMDave]

2 hours ago, BMX bandit said:

Great, thank you , that's clears up the invitation to treat question, Do you agree that this point sits in the 'incorrect and confusing signage section' ?

Yes!

 

You've been doing great work.