Appeal: One Parking Solution after 28days

Coupon-mad

Hiya,

I've been sent your email exchange with ParkingMad, and if it's OK with you I will reply by email so you have a way to contact me, as we know the site in question even though the keeper doesn't live in Sussex.

But do also stay on this forum for more advice as many heads are better than one or two who might not be available for quick replies by email in the Spring when you need more help!

I was told this is the background and it's a B&H Council site that the public can use so it is certainly not 'relevant land' (this came from ParkingMad to me):

Resident gave a visitor permit to his visitor on the 27th of Sept 2018 but the permit was accidentally dated the 28th. You have to fill in the date and time on the permit and it is valid for 24 hours. OPS issued a PCN to the visitor at 7.20pm for failing to display a valid permit. The keeper didn't appeal to OPS or to POPLA.

Your defence is good, but I would say remove this as surely the NTK did offer POPLA and the recipient just didn't appeal?

7. The Claimant has denied the Defendant access to an Alternative Dispute Resolution or Independent Appeals Service which in this case would be POPLA; A IAS that resolves Parking Charge Notice disputes.

7.1 In ParkingEye v Mr O, 3JD00791 at Croydon County Court, Judge Major Ordered that proceedings are stayed and to refer the dispute to POPLA.

Replace it with the usual defence point seen in other examples, about no landowner authority/no proprietary interest.

Potato_Salad

Hi,

Thank you for your advice and help.

Regads,

Coupon-mad

No problem! I've added you to my allowed private message contacts here, too.

Potato_Salad

IN THE COUNTY COURT

CLAIM No: CXXXXXX

BETWEEN:

ONE PARKING SOLUTION LTD (Claimant)

-and-

XXXXXXXXXX (Defendant)

WITNESS STATEMENT

1. I am [Name], of [Address], [Postcode], the Defendant in this matter. I will say as follows:

1.1 I was the registered keeper of the vehicle at the time of the alleged offence.

1.2 Attached to this statement is a Paginated bundle of documents that I will refer to as Appendix 1,2 and 3.

2. We arrived at night on the 27th, we parked the car in the residential car park, unloaded and went to the resident's flat. We were invited in and we made our way to our guest room. The resident of the flat then told us that we needed a visitors permit and asked if they could borrow the keys. Either the next morning or the morning after we went to pack the car and prepare to leave; this is when we noticed the PCN.

3. initially I thought to ignore the PCN out of anger as I had done nothing wrong, but eventually I sought advice and was told that If I did not agree or felt I was being wronged with a PCN I could take my case to an Independent Appeals Service called POPLA.

3.1 I emailed One Parking Solution Ltd half a dozen times refuting their claims and requesting to move the claim to POPLA so that we could resolve our dispute, however as seen on Appendix 1, p. 2-6 they not only refused to provide a code and allow an Alternative Dispute Resolution by applying an arbitrary length of time to appeal and instead referred me to deal with a debit collection company who were only interested in increasing the cost of the notice.

4. I also requested a contract between One Parking Solution Ltd and the landowner to better understand their rights as well as mine, however they refused to provide this as well, so I got in touch with Brighton & Hove Council to see if they knew who was the landowner of the site. I was informed that the landowner was Brighton & Hove Council and that One Parking Solution Ltd had a contract with them.

4.1 One Parking Solution Ltd and debit collectors have not only been wrongly harassing me, the registered keeper of the vehicle for over a year, they have also taken me to court due to what they believe to be a breach of contract. However no contract was formed and agreed upon by me and One Parking Solution Ltd as I did not see any signs when entering the car park or when the car was parked. Appendix 1, p.7 shows the entrance of the car park at night which is when we arrived and Appendix 1, p.8 shows the bay that we were parked in. The sign entering the car park was not in our field of view, it is small and isn't clear as to what its purpose is / represents.

4.2 One Parking Solution Ltd issued the PCN incorrectly and cannot pursue the registered keeper under The Protection of Freedom Act 2012 (POFA) because:
(a) There is no contract between myself as the vehicle keeper and One Parking Solution Ltd, due to the inadequate signage at the car park.
(b) This is a Brighton & Hove City Council owned land which is considered a traffic authority. Appendix 1, p.10 is an excerpt from POFA 2012 3.1 & 3.2 as 'not relevant land'. This means that One Parking Solution can't pursue or bind vehicle keeper's into a contract that can only be issued and pursued on private land. even if they were to hold the records of a driver the case would have to be pursued through an alternate process stipulated by the Traffic Management Act 2004.

4.3 This has been fully supported by the Local Government Ombudsman (LGO) (Appendix 2) who in January of 2019 found Kent County Council wrongly allowing their contractor to pursue registered keepers under the POFA 2012 on 'non relevant land' that was owned and managed by a traffic authority. I will also like to mention a letter (Appendix 1. p.11) by Robert Goodwill MP where he writes about his views on what lawful and unlawful in regards to enforcing and pursuing under contractual terms on off-street parking owned by local councils.

5. One Parking Solution Ltd over the course of this dispute have tried to use fear and falsified claims as a method to extract more money than what is written on their signage, as shown on Appendix 1. p.12. This also goes against British Parking Associations Code of Practice who have set the ceiling for a 'parking charge' at £100 as shown at 19.5 in Appendix 1, p.14. The sum of £100 is also set out in the contract between One Parking Solution Ltd and Brighton & Hove Council 2019 as shown on Appendix 1, p.15 & 16. Their attempt to artificially inflate the claim is a direct violation of the agreement they made with the council.

5.1 The Protection of Freedoms Act 2012, Schedule 4 ('the POFA') at paras 4(5) and 4(6) (Appendix 1, p.10)makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' which is set to £100.

5.2 Further, the alleged added 'costs' are disproportionate, vague and in breach of The Consumer Rights Act 2015 Schedule 2.6, 2.10 and 2.14 'terms that may be unfair' (Appendix 1, p.19-21). The Claimant has arbitrarily added an extra 60% of the parking charge in a disingenuous double recovery attempt. The Claimant knew or should have known, that £160 charge where the additional 'recovery' sum was in small print, hidden, or not there at all, is void for uncertainty. This has already been exposed and routinely disallowed by many Courts in England and Wales.

5.3. In the Caernarfon Court in Claim number F2QZ4W28 - Vehicle Control Services Ltd -v- Davies -(Appendix 1, p.22) 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 in 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.''

5.4. In Claim numbers F0DP806M (Appendix 3) and F0DP201T - BRITANNIA PARKING -v- Mr C and another - less than two weeks later - the courts went further in a landmark judgment in November 2019 which followed several parking charge claims being struck out in the area overseen by His Honour Judge Iain Hamilton-Douglas Hughes QC, the Designated Civil Judge for Dorset, Hampshire, Isle of Wight & Wiltshire.

5.4.1 The Defendants successfully argued on points including a citation of the CRA 2015 and the duty of the court to apply the 'test of fairness' to a consumer notice (a statutory duty that falls upon the courts, whether a consumer raises the issue or not). All three points below were robustly upheld by District Judge Grand, who agreed that:
(a) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was in breach of POFA, due to paras 4(5) and 4(6).
(b) The Claimant knew or should have known, that £160 charge (howsoever argued or constructed) was unconscionable, due to the Beavis case paras 98, 193, 198 and 287 (Appendix 1, p.23-24).
(c) The Claimant knew or should have known, that £160 charge where the additional 'recovery' sum was in small print, hidden, or in the cases before him, not there at all, is void for uncertainty and in breach of the Consumer Rights Act 2015, Schedule 2 (the 'grey list' of terms that may be unfair) paragraphs 6, 10 and 14.

5.4.2 At the hearing, the Judge refused their request to appeal. It was successfully argued that the parking firm's consumer notice stood in breach of the CRA 2015, Schedule 2 (the 'grey list' of terms that may be unfair) paragraphs 6, 10 and 14. Using the statutory duty upon the Courts to consider the test of fairness and properly apply schedule 2 of the CRA 2015 it was irrelevant whether or not the consumers' defences had raised it before, which they had not. The same issues apply to this claim.

5.4.3 A transcript will be publicly available shortly. In his summing up, it was noted that District Judge Grand stated: ''When I come to consider whether the striking out of the whole claim is appropriate, that the inclusion of the £60 charge means that the whole claim is tainted by it, the claimant should well know that it is not entitled to the £60. The very fact that they bring a claim in these circumstances seems to me that it is an abuse of process of the court, and in saying that, I observe that with any claim that can be brought before the court that if a party doesn't put in a defence to the claim, default judgments are entered. So, the Claimant, in bringing the claims is, in other cases, aware that if the defendant doesn’t submit a defence, the Claimant is going to get a judgment of a knowingly inflated amount. So I conclude by saying that I dismiss the application to set aside Judge Taylor’s ruling.''

5.5 In Claim numbers E8GF1V7V (Appendix 1, p.25) - UK Car Park Management Limited -v- Esplanade Ltd -District Judge Grand sitting at the County Court at Newport ordered that the claim is struck out as an abuse of process. The reasons were the claim contained substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedom Act 2012 Schedule 4 with reference to the judgement in Parking Eye -v- Beavis.

6. In summary, the Claimant's particulars disclose no legal basis for the sum claimed and it is the Defendant's position that the poorly pleaded claim discloses no cause of action and no liability in law for any sum at all. The Claimant's vexatious conduct from the outset has been intimidating, misleading, harassing and indeed untrue in terms of the added costs alleged and the statements made.

7. The Defendant is of the view that this Claimant knew or should have known that to claim in excess of £100 for a parking charge on private land is disallowed under the CPRs, the Beavis case, the POFA and the CRA 2015, and that relief from sanctions should be refused.

I believe that the facts stated in this Witness Statement are true.

Sign

Name

Date

Coupon-mad

Glad to see you are planning ahead with a draft WS, however this isn't the best time to be posting around the Xmas break, and I have little time to address local cases right now. I have so many I am juggling defences and WS till they are spilling out of my hands!

Luckily you have ages until that WS will be needed, so stick around and reply here again once you are actually at WS stage and we will all be better placed to reply quicker in the New Year.

nosferatu1001

I can hazard a guess at the drivers identity, so any discussion of POFA becomes moot at that point.