One Parking Solution - Visitors Space PCN

AOneVS

Witness statement has been received from OPS. I'd be interested in your comments on this:

I, Gavin Price, OF 95 Arundel Road, Worthing, WILL SAY AS FOLLOWS: 

1. I am the Director of the Claimant Company (‘my Company’) and I am duly authorised to make this statement on its behalf. The facts and matters set out in this statement are within my own knowledge unless otherwise stated and I believe them to be true. Where I refer to information supplied by others, the source of the information is identified; facts and matters derived from other sources are true to the best of my knowledge and belief. The photographs exhibited to this Statement were taken by employees of my Company. 

2. Exhibited to this Witness Statement at ‘GSL1’ are the following documents which my Company wishes to rely upon; 

i) The Agreement authorising my Company to manage parking on the relevant land (as described therein and hereinafter referred to as ‘the Relevant Land’); 

ii) The Sign (‘the Contract’); 

iii) The Site Plan; 

iv) Notices; 

v) Photographs of the incident. 

3. The Defendant is liable for a parking charge relating to the parking of a vehicle on the Relevant Land in a manner so as to incur the same pursuant to the Contract (i.e. the Sign). Set out in the Schedule below are details of the parking charge; 

The Defence 

4. The signage on the Relevant Land is clear and unambiguous; parking is permitted for vehicles fully and clearly displaying a valid OPS visitor parking permit in the front windscreen and fully parked within the confines of a marked visitor bay. As can be seen from the photographs exhibited the Defendant was parked in the Visitor bay without displaying a permit as required by the terms and conditions as such a parking charge was issued. 

5. The signage at the site is clearly visible and the information on the signage informs the driver of the parking conditions at the location. Signage is prominent throughout the parking area. Signage location, size, content and font has been audited and approved by the British Parking Association (“the BPA”). It is the driver’s responsibility, to check for signage, check the legality and obtain any authorisation for parking before leaving their vehicle. The signage on site is the contractual document. By parking in the manner in which they did, the charge was properly incurred. 

6. Furthermore the Sign states “by parking or remaining at this site otherwise than in accordance with the above,you the driver are agreeing to the following contractual terms you agree to pay a parking charge notice in the sum of £100 to be paid within 28 days of issue. " 

7. The documentation exhibited to this Witness Statement evidence a parking charge notice (notice to driver) was affixed to the vehicle windscreen at the time it was issued . 

8. As the charge remained unpaid and as the driver failed to appeal the parking charge notice within the prescribed time, my Company applied to the DVLA, electronically, for the Registered Keeper details and, in turn, were provided with the Defendant’s name and address. A Notice to Keeper was subsequently sent to the Defendant in accordance with Schedule 4, paragraph 8 of the Protection of Freedoms Act 2012 (“the Act”). The Notice to Keeper provided the Defendant with an opportunity to nominate a driver, however, no driver nomination was received. 

9. As the charge still remained unpaid, my Company instructed Gladstones Solicitors Ltd to seek recovery of the charge. The Defendant failed to nominate who was driving prior to these proceedings being issued (which is required under the paragraph 5(2) of the Act). 

10. Notwithstanding the above, the Criminal Case of Elliott v Loake 1983 Crim LR 36 held that the Registered Keeper of a vehicle may be presumed to have been the driver unless they sufficiently rebut this presumption. The Court is therefore invited to conclude it more likely than not that the Registered Keeper (i.e. the Defendant) was the driver. 

11. The Protection of Freedoms Act 2012, Sched 4 (para 2) states that; the “keeper” means the person by whom the vehicle is kept at the time the vehicle was parked, which in the case of a registered vehicle is to be presumed, unless the contrary is proved, to be the registered keeper. 

Unfair/immoral/unethical 

12. The Defendant’s opinion on the fairness of the parking charge cannot impact their liability to pay. Quite simply, in parking in the manner they did, they understood a charge would apply. My 2 Company’s charges are issued in accordance with the guidelines set out by its trade association and are industry standard. 

13. Paragraph 108 of the Judgment in the Supreme Court case of Parking Eye and Beavis (2015) said “the concept of a negotiated agreement to enter a car park is somewhat artificial but it is perfectly workable provided one bears in mind it is objective…” … “In our view a reasonable motorist would have agreed to the term.” I submit that the term in my Company’s contract was no more, or no less unreasonable than that in the ParkingEye case. 

No contract 

14. My Company relies on the case of Parking Eye -v- Beavis [2015], in which it was accepted as an established principle that a valid contract can be made by an offer in the form of the terms and conditions set out on the sign, and accepted by the driver’s actions as prescribed therein. 

15. The signs on the Land are clear and unambiguous. By parking in the manner in which they did, the charge was/were properly incurred. 

The Defendant’s right to park 

16. The Defendant has not provided any evidence to support their alleged right to park. My Company has been instructed to manage the Relevant Land and without concession the Defendant has failed to prove otherwise. They allege they have permission to park from the resident but residents do not have the authority to exempt vehicles from the terms and conditions of the Site. The resident may have an allocated bay however the Defendant’s vehicle was parked in a Visitors Bay. 

No authority to enforce charges 

17. As the contract is between my Company and the Defendant, my Company does have the authority to enforce parking charges. However, both VCS v HM Revenue & Customs (2013) and Parking Eye v Beavis (CA 2015) made it clear that a contracting party need not show they have a right to do what they have promised in the performance of a contract, nor is (in the case of a parking operator) the agreement between Operator and Landowner of any relevance. In any event, and without concession, the Agreement exhibited to this Witness Statement evidences my Company’s authorisation to operate / manage the Relevant Land on behalf of the Landowner. 

18. Lord Justice Lewison commented in VCS v HM Revenue & Customs [2013] EWCA Civ 186; (1) “The Upper Tribunal’s reasoning on this part of the case was that since VCS did not have the right under its contract with the car park owner to grant a licence to park, it could not have contracted with the motorist to grant such a right. In my judgment there is a serious flaw in this reasoning. (2) The flaw in the reasoning is that it confuses the making of a contract with the power to perform it. There is no legal impediment to my contracting to sell you Buckingham Palace. If (inevitably) I fail to honour my contract then I can be sued for damages. On the stock market it is commonplace for traders to sell short; in other words to sell shares that they do not own in the hope of buying them later at a lower price. In order to perform the contract the trader will have to acquire the required number of shares after the contract of sale is made. Moreover, in some cases a contracting party may not only be able to contract to confer rights over property that he does not own, but may also be able to perform the contract without acquiring any such right. Thus in Bruton v London and Quadrant Housing Trust [2000] 1 AC 406 a housing trust with no interest in land was held to have validly granted a tenancy of the land to a residential occupier. The tenancy would not have been binding on the landowner, but bound the two contracting parties in precisely the same way as it would have done if the grantor had had an interest in the land. (3) Thus in my judgment the Upper Tribunal were wrong to reverse the decision of the FTT on the question whether VCS had the power to enter into a contract. Having the power to enter into a contract does not, of course, mean that VCS necessarily did enter into a contract with the motorist to permit parking” 

Appeal 

19. The Defendant unsuccessfully appealed the Charge to my Company and then again to POPLA their response is exhibited to this Statement. 

Charge is excessive/ no loss suffered 

20. The charge sought is industry standard and is set at a rate so as to suitably satisfy my Company’s legitimate interest. In the case of Parking Eye -v- Beavis [2015] it was held that an £85.00 charge was neither extravagant nor unconscionable. The Accredited Trade Associations of which parking operators must be a member in order to apply for DVLA data prescribe a maximum charge of £100. My Company’s charges are within this level. The charge is therefore not excessive. 

21. The decision of the Supreme Court made it clear that the charges are not penal, nor do they have to be reflective of the parking operator’s loss. Further, the charges can be set at a level that provides a deterrent effect. 

Particulars of Claim 

22. The Claim is issued via the County Court Business Centre which is a procedure specifically provided for in the Civil Procedure Rules. This only allows the Claimant to insert brief details of the Claim. In any event, I can confirm that the Particulars of Claim contained sufficient information for the Defendant to be aware of what the claim relates to; namely:- 

i) The date of the charge; 

ii) The vehicle registration number; 

iii) The Parking Charge Notice number; 

iv) The amount outstanding; 

v) That is relates to parking charges; and 

vi) That it is debt.

23. Further, prior to proceedings being issued the Defendant was sent notices in accordance with the Act and a Letter Before Claim. As such, the Defendant would have been aware of the charge which is/are the subject of this claim. 

Compliance with the Civil Procedure Rules 

24. A Letter Before Claim was sent to the Defendant, which contained:- 

i) The date of the charge; 

ii) The Parking Charge Notice Number; 

iii) The location of the charge; 

iv) The amount outstanding; 

v) The Claimant; and 

vi) That the balance relates to unpaid parking charge. 

25. Without concession, if there has been any minor deviation from the Civil Procedure Rules then it is (or would be) within the tolerances provided therein whereby the court is required to interpret any provision having regard to the ‘overriding objective’, namely to deal with matters in a just, proportionate and cost-effective way (rules .1.1 and 1.2) 

The Current Debt 

26. In view of the Defendant not paying the charge within the 28 days allowed they are in breach of the contract. Breach of contract entitles the innocent party to damages as of right in addition to the parking charge incurred. 

27. My Company is an Accredited Operator of the British Parking Association (‘BPA’) who prescribes a maximum charge of £100. The Code of Practice states: If the parking charge that the driver is being asked to pay is for a breach of contract …, this charge must be proportionate and commercially justifiable. We would not expect this amount to be more than £100. Where a Parking Charge becomes overdue and before Court Proceedings have commenced, a reasonable sum (which covers the cost of recovering debt) may be added for the debt recovery fees. This sum must not exceed £70 unless prior approval from the BPA has been granted." 

28. In view of the Defendant not paying the charge within the initial 28 days allowed or the further 28 days allowed after the Notice to Keeper has been sent, the parking charge has become overdue and a reasonable sum of £60 has been added in respect of the debt recovery fees. 

29. The Sign states the prescribed charge for failing to comply with the terms is £100, however it also specifies enforcement action may incur additional costs that will be added to the value of the charge. Further the Letter Before Claim also made it clear the debt may increase in respect of costs and interest if a claim had to be issued. Due to the Defendant not paying the charge the matter was passed to my Company's legal representatives, Gladstones Solicitors Ltd, who were instructed to commence legal proceedings. The potential additional costs mentioned above are now sought.

30. The debt has, as a result of this referral risen as my Company’s staff have spent time and material in facilitating the recovery of this debt. This time could have been better spent on other elements of my Company’s business. My Company believes the costs associated with such time spent were incurred naturally as a direct result of the Defendant’s breach and as such asks that this element of the claim be awarded as a damage. The costs claimed are a pre-determined and nominal contribution to the actual losses. Alternatively, my Company does have a right to costs pursuant to the sign (i.e. the contract).

STATEMENT OF TRUTH 

I believe that the facts stated in this witness statement are true. 

nosferatu1001

Is there anything in particular? The WS seems awful as ever. They aver you were t4he driver, classic template. 

AOneVS

Where do their headings come from? They haven't seen my mother's WS yet. 
Do I need to add anything to her WS to counter theirs? 

nosferatu1001

Theyve seen the defence. 
It will be a template....
It can be useful to "counter", do it at the end. 

Fruitcake

Go through it section by section and rubbish it.

They say the contract is between them and the driver and is formed by the signs.
You say the contract is between the landowner/lessor and you, and show the relevant parts of your lease/AST.

In order for them to operate on the land in question they must have a written contract between or flowing from the landowner. If this were not the case anyone could put up signs and run a for profit business without the landwoner's knowledge or permission.
If they provide a copy of the alleged contract, please post it here for the regulars to look at.
If they don't provide one then you state this to the judge.

They mention Elliot vs Loake so you quote the judge from this case.

http://parking-prankster.blogspot.com/2017/01/skipton-judge-rubbishes-elliot-v-loake.html

You rip apart their signage.

Etcetera.

AOneVS

Fruitcake said:

Go through it section by section and rubbish it.

They say the contract is between them and the driver and is formed by the signs.
You say the contract is between the landowner/lessor and you, and show the relevant parts of your lease/AST.

In order for them to operate on the land in question they must have a written contract between or flowing from the landowner. If this were not the case anyone could put up signs and run a for profit business without the landwoner's knowledge or permission.
If they provide a copy of the alleged contract, please post it here for the regulars to look at.
If they don't provide one then you state this to the judge.

They mention Elliot vs Loake so you quote the judge from this case.

http://parking-prankster.blogspot.com/2017/01/skipton-judge-rubbishes-elliot-v-loake.html

You rip apart their signage.

Etcetera.

Thanks Fruitcake. This is their contact: https://drive.google.com/file/d/1LgOEiOm7HKx1YVygQRjFt8qukqgABZ5N/view?usp=drivesdk
As far as I can't tell it's between OPS and the management company. 
I've already ripped the signage apart in the defence. Do I need to repeat myself? 

AOneVS

I'd like to post the WS, Exhibits and Costs Schedule tomorrow. Last day for them to receive it is Monday.

I have referenced these cases in the defence and WS:

• Jopson v Homeguard Services Ltd (2016)

• Saeed v Plustrade Ltd [2001] EWCA Civ 2011

• ParkingEye Ltd v Barry Beavis (2015) UKSC 67

• Caernarfon Court in Case number FTQZ4W28 (Vehicle Control Services Ltd v Davies) on 4th September 2019

• Southampton Appeal Transcript F0DP806M and F0DP201T - BRITANNIA PARKING -v- Mr C

• Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3
  

• B4GF26K6 PCM (UK) v Mr B, B4GF27K3 PCM (UK) v Mr W and B4GF26K2 PCM (UK) v Ms L
  

• Ladak v DRC Locums UKEAT/0488/13/LA

Am I required to print all of these and include them in the bundle?

Fruitcake

AOneVS said:

Fruitcake said:

Go through it section by section and rubbish it.

They say the contract is between them and the driver and is formed by the signs.
You say the contract is between the landowner/lessor and you, and show the relevant parts of your lease/AST.

In order for them to operate on the land in question they must have a written contract between or flowing from the landowner. If this were not the case anyone could put up signs and run a for profit business without the landwoner's knowledge or permission.
If they provide a copy of the alleged contract, please post it here for the regulars to look at.
If they don't provide one then you state this to the judge.

They mention Elliot vs Loake so you quote the judge from this case.

http://parking-prankster.blogspot.com/2017/01/skipton-judge-rubbishes-elliot-v-loake.html

You rip apart their signage.

Etcetera.

Thanks Fruitcake. This is their contact: https://drive.google.com/file/d/1LgOEiOm7HKx1YVygQRjFt8qukqgABZ5N/view?usp=drivesdk
As far as I can't tell it's between OPS and the management company. 
I've already ripped the signage apart in the defence. Do I need to repeat myself? 

I neither have nor want a google drive account, so I am not going to log in to look at that link.
You need to upload the image to a web hosting site such as postimages, tinypic, dropbox etcetera, then paste the URL here.

NeilCr

Fruitcake said:

AOneVS said:

Fruitcake said:

Go through it section by section and rubbish it.

They say the contract is between them and the driver and is formed by the signs.
You say the contract is between the landowner/lessor and you, and show the relevant parts of your lease/AST.

In order for them to operate on the land in question they must have a written contract between or flowing from the landowner. If this were not the case anyone could put up signs and run a for profit business without the landwoner's knowledge or permission.
If they provide a copy of the alleged contract, please post it here for the regulars to look at.
If they don't provide one then you state this to the judge.

They mention Elliot vs Loake so you quote the judge from this case.

http://parking-prankster.blogspot.com/2017/01/skipton-judge-rubbishes-elliot-v-loake.html

You rip apart their signage.

Etcetera.

Thanks Fruitcake. This is their contact: https://drive.google.com/file/d/1LgOEiOm7HKx1YVygQRjFt8qukqgABZ5N/view?usp=drivesdk
As far as I can't tell it's between OPS and the management company. 
I've already ripped the signage apart in the defence. Do I need to repeat myself? 

I neither have nor want a google drive account, so I am not going going to log in to look at that link.

I have and I don't mind looking. Apparently you need the owner's permission 

Coupon-mad

AOneVS said:

I'd like to post the WS, Exhibits and Costs Schedule tomorrow. Last day for them to receive it is Monday.

I have referenced these cases in the defence and WS:

• ParkingEye Ltd v Barry Beavis (2015) UKSC 67

• Caernarfon Court in Case number FTQZ4W28 (Vehicle Control Services Ltd v Davies) on 4th September 2019
• B4GF26K6 PCM (UK) v Mr B, B4GF27K3 PCM (UK) v Mr W and B4GF26K2 PCM (UK) v Ms L
  

• Ladak v DRC Locums UKEAT/0488/13/LA

Use none of the above, and the wording you used re abuse of process was not the words what I told you to include, on 16th March at 10:37pm.  I said, go to the template defence thread (NOT the abuse of process thread) and crib words from that defence and also include mention of the Skipton case.

I, Gavin Price, OF 95 Arundel Road, Worthing, WILL SAY AS FOLLOWS: 
1. I am the Director of the Claimant Company

Hmm, but he wasn't a Director at the time he (I suspect) signed the 'landowner authority' document.  He only became a Director a year ago.  I can't see the landowner authority so please show it with a different link, not a Google Drive one.

It's not with B&H Council re their housing stock, is it?