One Parking Solution nLtd., ZZPS Ltd & QDR Solicitors

chelostar

Umkomaas, I wasn't being sarcastic.  I genuinely thank you for giving correct information.  It is important to be correct to avoid misleading others. :-)

Coupon-mad

Congrats to chelostar for staying firm even though QDR tried hitting her with a £845 summary costs assessment a week before the hearing, accusing her of 'unreasonable conduct' due to...not appealing the PCN...! 

I was the lay rep at this one in February, my last court repping before lockdown...but we had to wait till this week for the judgment...where do I start?!  OK, the judgment is in writing because it was delayed due to the Judge's illness.  It is such a humdinger and a useful weapon against OPS, QDR, and the private parking model as a whole that I will start a new thread showing the judgment.  It comprises 69 paragraphs, including some Shakespeare!

The case was before DDJ Harvey, and involves EASTGATE WHARF, LEWES
Myself and ParkingMad liaised on this one as we knew lots of stuff from previous Eastgate Wharf cases and we had even seen a Brighton Judge accept their 'landowner authority' in a case in September, because I didn't get to that and had already won that case, on signage.  I wished we had got to the 'landowner authority' (it is a bombshell!) at the Brighton case, but doing it this time turned out to be much more elucidating.

ParkingMad and I met for coffee beforehand, with a retired barrister friend and the Defendant, and her friend, and the files had been well prepped by @chelostar.  Her WS had the true 'witness' story clearly stated in her own words - i.e. that she was driving along a road, her phone rang and she pulled over into a bay, off a small T junction to answer it because she was hoping to be offered a job and it was important.  This place doesn't look like a car park:

https://goo.gl/maps/cSxQdU19Qcuq8mJf8

The WS said that she saw no signs and that she can now see from the SAR photos, that the 'entrance sign' was twisted fully away from the T junction.  Conveniently, that sign faced OPS' manned CCTV camera...what are the chances...oh wait, OPS know this, because it's seen on GoogleStreetview (every year the same) and in cases I've helped with, as invariably twisted that way, and their CCTV operator sees it.   They issue PCNs there, every day.

This was all that was put about the abuse of process in @chelostar's WS; all that was needed at that stage:

At Exhibit 5 I attach Schedule 2 of the Consumer Rights Act 2015 and will state that I believe the Claimant has fallen foul of the list of terms that are likely to be unfair. Not only is the £100 parking charge not prominent or transparent, but also the falsely added £82 is nowhere to be seen, so cannot form part of any purported contract.
15. Further, it is my belief that paragraphs 98, 193 and 198 of the Beavis case decision, make it very clear that the parking charge itself already includes all the costs of a typical parking firm operation, including all pre-action correspondence. So, the Claim is exaggerated and unrecoverable, being an attempt at ‘double recovery’.

QDR then responded with a £845 Summary Costs Assessment (clearly a frightener, signed off by one of their actual solicitors) and the usual template pile of twaddle in an 8 page witness statement with QDR legal person Shannon Leering's name at the bottom (oddly, the signature didn't look like 'S Leering' - at all - but we had so much to raise, at trial I must admit I missed mentioning that one).  

COURT REPORT in next reply

Umkomaas

COURT REPORT in next reply

Anticipation on a similar level to when I used to await the next episode of Breaking Bad. Looking forward to it C-m, and well done. 

nosferatu1001

The judgement is a corker to read. Truly. 
It absolutely rips the C to shreds. 

Le_Kirk

C'mon, come on COME ON, I've already eaten all the popcorn (and I hate popcorn) plus the arm off the settee in anticipation of this court report.

MothballsWallet

Le_Kirk said:

C'mon, come on COME ON, I've already eaten all the popcorn (and I hate popcorn) plus the arm off the settee in anticipation of this court report.

Same here

Coupon-mad

COURT REPORT - LEWES COURT - 5TH FEBRUARY 2020

THE WRITTEN JUDGMENT WILL HAVE ITS OWN THREAD ONCE WE HAVE SCANNED IT AND COVERED THE DEFENDANT'S SURNAME
What with me, @ParkingMad, our friend the retired barrister, @chelostar and her friend she took for moral support, there were five ladies of a certain age who rocked up (some might say, mob-handed) to this hearing.  I was lay rep beside @chelostar before the Judge, and the others went along to watch.

On arrival, we found that QDR had sent a rep from LPC Law, who I later Googled (because he was so aggressive and the hearing had been quite emotionally bruising for me and @chelostar) and found he'd done this sort of stuff for some years, including taking on criminal cases after taking a Bar Professional Training Course - i.e. he was barrister trained but without a pupillage, AIUI. 

We decided not to challenge RoA to avoid annoying the Judge and because we wanted the facts to be heard.  In the waiting room, the LPC Law rep started to ask who the onlookers were, and our retired barrister friend refused to give her name (quite rightly, open court means open to the public to watch and they don't have to give their name!).  I walked up to him and gave my name and that I was the lay rep, asked who he was and then I said 'oh yes, so you are a rep for LPC Law, I've heard of them.  We won't be challenging your Rights of Audience even though I have the Defendant with me and no doubt have more rights than you!' 

Experience of these cases (I have only done a few!) tells me that I suspect he had been hoping to offer a settlement to @chelostar but he could tell that wasn't going to be an option and so he glowered at the five ladies and then, in we went.

At the outset, DDJ Harvey said he was reserving judgment because there was a lot of evidence from both sides to get through and clearly emotions were running high in this case - he looked over at the watching three ladies - and he was feeling ill, and felt he would do justice to both sides far better to hand down judgment at a later date.  So we knew we wouldn't come away knowing who had been successful!

At the start, I think I said we had a 'preliminary matter' and handed over a fully unredacted version of OPS' Eastgate Wharf 'landowner contract' proving that no landowner had signed it.  Two employees of OPS had signed it, even though it used terms as if the signatory was the freeholder.  The document had been used to win POPLA appeals and in court (with the signatures & names covered...) and purported to allow OPS to enforce over the whole site known as 'Eastgate Wharf' where there are just eight bays and a forecourt/roadway between the shops.

Well, the LPC rep fired back by slapping on the table, a purported 'lease' that he said he was instructed to ask if the Judge would allow into evidence.  The Judge allowed it and allowed the UNredacted landowner contract as well, as he clearly wanted to get to the bottom of the issue.  DDJ Harvey was scratching his head and said to the LPC rep ''I can't understand why the OPS employee has signed his own landowner authority?'' to which we got the stock reply: ''I have no instructions on that, Sir''.

Clearly fired up, and even though he was sitting (foot twitching the whole time!) the LPC rep then stole the floor.  He spoke over me, spoke for far too long, interrupted me and basically (myself and the watching entourage thought) tried to dominate proceedings in front of a Judge that he clearly knew. 

I must admit I had concerns and he did throw my concentration a bit! 

He invited the court to find as fact that @chelostar parked her car for 12 minutes.  I coughed and said ''We don't accept that the car was 'parked' and nor was it for 12 minutes.  The car is shown by CCTV, stopped with the driver present, in a bay for ten minutes and a few seconds, which is well within the BPA CoP 'minimum ten minutes' grace period that applied at the time.  Also, OPS contracts are known to have an allowance to exempt cars for 'fifteen minutes where the driver is present with the engine running' and we've included an example of that clause in evidence''.

LPC rep pointed out that the unredacted landowner contract we'd produced had no such clause (true - but we now have one that does, as there is more than one version re Eastgate Wharf).  He then asked to cross-examine @chelostar and held up an undated (we know it's from 2016) pristine photo of the 'entrance sign' correctly facing oncoming cars and barked (rather menacingly, in my view):

 ''Isn't it true, that THIS is the sign that was at Eastgate Wharf that day?  Your answer can only be ''yes'', ''no'' or ''I don't know''.   

@chelostar looked alarmed as he was almost shouting at her!  She coped really well and said something like: ''I have no idea because I didn't see it.  The signs were not prominent''.  She was clearly shocked at his Rumpole of the Bailey impression but would not be tricked.  I'd never seen anything like this in a civil court...he treated her like a criminal IMHO, but I had to stay silent during cross examination of a witness.

Then he held up OPS' (useless as evidence) GoogleStreetView image with coloured crosses dotted randomly on it, and barked:  ''Once again, I want a ''YES'', ''NO'', or ''I DON'T KNOW'' answer - this is Eastgate Wharf, and it is true that these crosses are the positions of the signs, aren't they?''

@chelostar had never been able to get her head around why PPCs use that 'Battleships-esque' picture with crosses on it, and she said as much.  He pressed her to answer so she said ''I don't know''.  LPC Law rep took a sharp intake of breath and exclaimed:

''So your answer to seeing a picture of the place where you admit you stopped your car, is, ''I don't KNOW''?!

@chelostar looked upset at this point but she rallied and said something like:  ''I don't know what you want me to say!  My position has never changed.  I answered my phone - an urgent call regarding something important to me - and this seemed to be a safe place to stop the car.  It doesn't look like a car park, it's road at a parade of shops and I saw no signs.  As far as I can tell from the Claimant's evidence, there are only two and the machine is in the far corner and I saw none of them and knew nothing about a parking charge.  I didn't get out of the car and I left once the phone call ended''.

So we moved on and I thought it would be my turn soon, and meanwhile I was frantically trying to read the 'lease' they had thrown into evidence(!) but the LPC Law rep continued to steal the time and said something that I heard as: ''a Defendant cannot be heard to rely on the Consumer Rights Act...these are regulations that are nothing new and merely replaced the UTCCRs that were already thrown out in the Beavis case''.  I objected to him saying that a consumer can't rely on the CRA (absurd!) and told the Judge that the CRA was not tested in Beavis because it was enacted a few weeks after that Supreme Court hearing, but that is different in that for the first time, consumer NOTICES (i.e. signs) as well as 'terms' are covered by the law.  And in this case we'd supplied a picture of the OPS sign next to the Beavis case sign and the former is about half the size, full of crowded words, and the font is minuscule.

LPC Law rep then started addressing the Judge about the issues with 'ANPR' and that they have no choice but to take images at the entrance and exit.  I could see ParkingMad wriggling in her seat, out of the corner of my eye at this point, and so I retorted ''Sir, that may be true of an ANPR car park - but this isn't ANPR''.  The gentlemen both stopped and looked at me with almost a comedic 'double-take' face.  ''Isn't it?''  asked DDJ Harvey.  So I explained it was in fact manned CCTV, and whilst that might seem similar because both are electronic cameras, it's not at all, and CCTV is far more like enforcement in person because the car is captured throughout the time it is on site, including the time stopped in the bay.  CCTV is never limited to an 'in/out' photo as an excuse for why they are suggesting a total stay.

So I asked the court to consider, why are they filming all cars, all pedestrians, shoppers, even shop windows with people inside, when the lease that has just been sprung on us, shows that OPS purportedly have a short lease over SIX of the EIGHT bays.  Nothing more.  Not the forecourt, and not even all the bays!  And that being the case, why have they been using a false instrument in cases until now, created and signed by them, that suggested that they have rights over the whole 'site'? 

And why is the 'lease' (and the false landowner authority document) signed in December 2016 by a person who didn't become a Director until 2019?   And which six bays can they enforce parking in, given the 'map' attached to the so-called lease says the bays are 'edged in red' - yet there is no red on the map, even though it is a colour one, with blue on it?! 

There's a lot more wrong with this lease but on the spot, they were the things I noticed.

Costs - both parties had put in for unreasonable conduct
At the end, the poor, ill-looking Judge turned to the LPC Law rep and said ''I understand that the C is seeking costs for unreasonable conduct, and has put in a summary assessment of £845?''  ''Yes sir!''  replied LPC Law rep, saying that the reasons were that the defence had no merit (in fact it was fine - short and sweet but it had defence points and was written by @chelostar before she came here) and he said, the WS didn't lead on from the defence (in fact it did and was consistent) AND he said, it was unreasonable that @chelostar didn't appeal!

I'd never heard anything like it!  Unreasonable conduct for not appealing, LOL, that's desperation.  If that were true, half the posters here/across the country, would fall foul of that.  It may be unwise not to appeal or engage at all, when you get a PCN in E&W, but it's not unreasonable!  It's human nature and normal when faced with what looks like a scam, not to reply,  I said that the Defendant's conduct in no way passed the Dammerman test, to 'permit of no reasonable explanation'!  I added that the £845 summary costs assessment just does not add up and - even if the figures are to be believed - breaches the CPRs re 'proportionality':

It showed that the 'fixed fee' arrangement is £550 (£250 QDR fees, £200 LPC Law fee plus £100 court costs).  If the PPC wins, the defendant has to pay the £100 PCN and fixed legal costs.   So they are spending £450 to claim £200 (£100 PCN plus £100 court legal costs) from the defendant.  If they win the claim, they have lost £250.  If they lose the claim, they have lost £550! 

I reminded the Judge that @chelostar had put in costs of c £528 which were calculated based on the £19 per hour LiP rate, her p&p and her loss of earnings and travel.  I reminded him that we had a Claimant who was penalising drivers who stop anywhere on site, even for a short period, despite the 'lease' now sprung on us, showing that they only have rights over six of eight bays and we have no idea which six!  And the 'entrance sign' is strangely twisted to face the CCTV operator, not the road/entrance.

I said what does permit of 'no reasonable explanation', is a C who puts in a 'landowner agreement' created and signed only by their own employees, and have been winning at POPLA and at court using that false instrument that says they can enforce the 'site' and now they send a rep who shows us what appears to be another false document, a 'lease' not even signed by a Director, and with a map with no red edged bays, so are we supposed to guess which ones they enforce?

We went away not knowing the outcome and me and @chelostar had been put through the wringer.

However, the case has been WON, she got her £528 in costs, and we have a written judgment that @chelostar will scan and I will then post it up in a thread of its own, so that it was be used in future. 

It is dynamite. 

Sorry for the delay in posting it, but the D needs to be happy that her name is redacted.  She has the paperwork and an old scanner so we will put it up asap this week.

Umkomaas

Super report and read CM. Sounds like you all did exceptionally well in eventually facing down a blustering bully of a lawyer. Excellent stuff - now looking forward to the next instalment in the new thread. 

Le_Kirk

Brilliant read C-m, you are certainly racking up the experience.  Looking forward to the judgment.

beamerguy

oh wow c-m, WELL DONE