County Court Claim - OPS & DCB Legal

Coupon-mad

COURT REPORT - OPS BEATEN AGAIN!

Retropeck's hearing was held by phone today with a director of OPS speaking for the Claimant, and me speaking as lay rep for retropeck.  Deputy District Judge Campbell (Worthing Court) had no issue with me being a lay rep.  Retropeck had taken today off work, as the hearing was at midday and of course he was required to attend as well.  

After realising he didn't have our WS & evidence bundles (he only had later emails and the defence) but I confirmed we preferred not to adjourn and HAD received the PPC's emailed bundle, DDJ Campbell asked both sides to email their WS & evidence across to him.   I gather from this and other cases, that there has been something of an issue with files emailed to Worthing court during lockdown not reaching the case files.  

Anyway, the Judge took one look at the landowner authority and asked OPS how they had proved that Chichester College own the land.  OPS had not shown any evidence of that, so the DDJ declared that was fatal to their case.  Literally the case was over within 10 minutes and he wanted to sum up, but the DDJ then asked me about any costs order that the D was seeking.

We then spent some 45 minutes discussing OPS' unreasonable behaviour, which I went through step by step, which was:

- no functioning method of payment was available, OPS clearly knew this yet still issued a PCN.  All 3 PDT machines were broken.  Retropeck had put into evidence, a photo timestamped to show one of the machines that night displaying 'not in use' in pitch black darkness, in winter 2018.  The only alternative was a scratchcard but all three outlets closed at 5pm, so the evening class students were often caught like this when the machines broke = common in the year he attended.   Retropeck had put all this in his WS.

- OPS had put precsely nothing about this in their template WS and no evidence at all, to show the availability of the payment methods that night.  It wasn't even mentioned.  It was just a template saying the usual template stuff DCBLegal regurgitate - ''the driver didn't pay...ergo the keeper owes us a stupid amount of money - the end''.

- I added that to expect students to leave Chichester College and go home (missing a class they paid for) every time the machine broke or were full was preposterous.  I said that, on-street, enforcement is not allowed when a machine is broken and to do so on private land was an unfair term, the contract on offer was void for impossibility and should never have come to court.

- I pointed out that the employee must have seen that the machines were broken yet instead of reporting the fault, he/she issued PCNs.  This was slapped on the van in 2.5 minutes flat.  Such a short time would give a motorist no chance to read signs, pay at a functioning machine or go and buy a scratchcard which were inside buildings (but they were closed).   No grace period = breach of the BPA CoP that they must abide by and there was no reasonable cause to proceed to get the keeper data and issue a NTK.

- the PCN had a plainly false 'observed from' time 45 minutes earlier than it was printed, but none of the images supported that, and retropeck had got a SAR so we knew we'd seen them all.  The photos were all taken in 2.5 minutes including the one showing the PCN on the windscreen.

- the PCN was one of the worst for impersonating a Council PCN, was in a yellow packet and used the term 'Enforcement Officer' and the details about appeals & POPLA - and even the fact it was issued by One Parking Solution - were hidden in tiny print.  Believing it was from the college, retropeck complained to the college days later when the office was open, and didn't appeal further because they said there was nothing they could do.

- I showed the Judge that the signs were pitch black with the usual tiny text (the £80 was in 0.5cm text), and that nothing on the image retropeck took of the broken machine told him to 'leave the site' if the machines were broken.  Even if the signs or machine had said such a thing, clearly that would amount to an unfair term/unfair business practice.

- there was no WS from the ticketing employee and nothing to assist the court in that regard, such as a copy of notes made at the time in a pocketbook (LOL!) or even that the 'Enforcement Officer' had synchronised his watch or checked the machines before starting to issue PCNs that night.  If he had checked the machines why did he issue PCNs rather than report the 'not in use' issue...

- I pointed out that OPS' generic witness statement was a template and it failed to deal with the defence at all.  It was copied from a case from a few weeks' back, littered with errors such as the PCN was £100 (no, it was £80).  There was no photo of any PDT machine working, no payment logs showing that they were working, no specific response to the defence to narrow the issues in the case.

- the landowner authority mysteriously had the PCN sum and reduced discount sum redacted.  No reason to cover that if it said £80/£40...?   Very odd.  The Judge said nothing about this.

- the landowner authority was only about a permit scheme and was silent about any PDT machines and scratchcards.

- the quantum changed every time a letter arrived, and I took the Judge to look at the misleading stuff on the ZZPS letters and the DCBL recovery letter with its ''Can't pay? We'll take it away!' logo and word 'bailiffs'.   I pointed out tht OPS remain liable for the actions of these agents, which breach the FCA rules.

- the POC made no attempt to break down the quantum at all.  DCBLegal had put ''£140 being the total of the PCN(s) and damages'' so it didn't even state the parking charge.

- yesterday, DCBLegal emailed a generic 'summary' (attached - do read it!) about the contractual costs.   They've used this in another case too and no doubt it will fool some Judges and confuse the public.   Whilst it may appear to a consumer to be a magnanimous offer to ''treat the Southampton case as the law, and forego costs'' - which is what the summary says - I explained that this was an ambush, and in fact shows the £80 PCN was never legitimate. 

How could any consumer be expected to know that in fact, dropping the costs leaves the original £80 PCN thrown under the bus?  The Judge wanted to know more, so I had to explain why ''no costs = no justification for an £80 PCN'' due to Beavis 98, 193 and 198.   He got it when I explained!   But how could an average consumer know how to argue that?

- I pointed out that they had exaggerated the claim, knowingly and that when taken together there are a number of features that amount to wholly unreasonable conduct.

But I said, if the Judge was not with me on that, then retropeck was seeking his ordinary fixed costs on the standard basis = a day's loss of salary/loss of leave, pursuant to Rule 27.14 and was seeking the £95 which is the capped sum, set out in practice direction 27 7.3(1).  

The Judge's summing up re the above, insofar as costs are concerned:

1.  He was unhappy with a lot of OPS' conduct in the pre-litigation phase.

2.  He said ''what bothers me most'' is that the machines were broken and the defence explained this and about the scratchcard outlets being closed, yet the WS from OPS didn't deal with any of those issues at all.  It is ''unreasonable'' (the Judge used that word...) to issue proceedings and not address the defence properly. 

3.  He asked OPS ''do you agree that there must be an implied term that a mechanism must be in place to allow a motorist to pay the tariff, and if retropeck can't pay due to machine failure and no scratchcards, that is surely a complete defence?'' 

The OPS director actually said ''no''(!) and advanced the ludicrous scenario that people might sabotage machines deliberately (to save 50p at their paid-for evening college, in front of CCTV...yeah, right!).  Thus, OPS say they ''couldn't'' offer free parking or people would take the mickey. 

Hmmm...who is really taking the mickey here...?  I'd say the BPA, IPC and PPCs for advancing such an unfair and preposterous business practice, as if it's OK, that in fact enables and encourages rogue contractors to operate sites using sub-standard machines. Rather than sending an employee to ensure due diligence is exercised in maintaining and emptying of those machines regularly, oh no, PPCs are being allowed by the Trade Bodies not to bother with any of that, and just to send a ticketer to profit from this entrapment.

4.  The DDJ repeated to OPS that there ''must'' be a method of payment available and that to issue a PCN in this scenario ''doesn't seem to go to the matter of fairness''.  I had taken him to para 18 of the CRA Sch2 (that a consumer can't be bound by an obligation to complete their side of a contract if the trader has not met their obligations) but he wasn't convinced it fitted and was not 100% sure that the test of unfairness was met.

Ultimately, DDJ Campbell decided to draw a distinction between the conduct of OPS and how they treated retropeck before litigation, as opposed to their conduct afterwards.  As such, he wasn't minded to grant any costs order (at all) because he could not find that their more recent conduct in the matter of the litigation was unreasonable.

This was despite the Judge using that word earlier and despite the test for 'unreasonableness' in other cases - not just Dammerman) - having taken account of things like:

- ignoring the pre-action protocol
- exaggerating the claim
- failing to narrow the issues in a WS
- failing to properly respond to the defence
- failing to properly set out the case in terms of quantum, and
- the case was improper from the outset, not just a hopeless case. 

IMHO This case fell at all those hurdles. I think it was close - but still no costs award.

But - ANOTHER OPS ONE BITES THE DUST!

beamerguy

Well done C-m   I think we have made it clear to DCBL not to get involved in rabble, they did not listen and with the help of OPS disgraced themselves

Somewhat odd summary, telling the court all about the spanking of BWLegal for fakery ..... do OPS think they are different then.

And fancy saying " that people might sabotage machines deliberately (to save 50p at their paid-for evening college, in front of CCTV...yeah, right!).  Thus, OPS say they ''couldn't'' offer free parking or people would take the mickey."

Were you listening to children's hour
So, OPS screw themselves ... as they do, and DCBL are screwed for bringing a claim they clearly knew nothing about.    Sad bunch of scammers

Coupon-mad

Just to add, I've been looking into the consumer law and next time, re a broken PDT machine case where the PPC fined the person due to their own failings and knew the machine was broken, I think we should mention Reg 3(3) of the CPUTRs, which creates an offence:

http://www.legislation.gov.uk/uksi/2008/1277/regulation/3/made

Prohibition of unfair commercial practices
3.—(1) Unfair commercial practices are prohibited.
(2) Paragraphs (3) and (4) set out the circumstances when a commercial practice is unfair.
(3) A commercial practice is unfair if—
(a) it contravenes the requirements of professional diligence; and
(b) it materially distorts or is likely to materially distort the economic behaviour of the average consumer with regard to the product.*
(4) A commercial practice is unfair if—
(a) it is a misleading action under the provisions of regulation 5;
(b) it is a misleading omission under the provisions of regulation 6;
(c) it is aggressive under the provisions of regulation 7; or
(d) it is listed in Schedule 1.

An explanation I found elsewhere:

General duty not to trade unfairly

Regulation 3 is called "Prohibition of unfair commercial practices", which effectively means failing to act in accordance with reasonable expectations of acceptable trading practice.  

The regulation prohibits practices that:

• contravene the requirements of professional diligence (defined as the standard of special skill and care that a trader may reasonably be expected to exercise towards consumers, which is commensurate with either honest market practice in the trader's field of activity or the general principle of good faith in the trader's field of activity)
• materially distort the economic behaviour of the average consumer (or are likely to) with regard to the product * - that is, appreciably to impair the average consumer's ability to make an informed decision, thereby causing them to take a transactional decision that they would not have taken otherwise

* in the CPUTRs, ''product'' has a wide definition, so for 'product' read 'service'.

1505grandad

Just a thought - too much to hope that this may also cover cases involving the various anpr failings?

D_P_Dance

You can still cause them a bit of heartburn, read this

https://www.which.co.uk/consumer-rights/letter/letter-before-small-claims-court-claim

Le_Kirk

Brilliant (and a good court report) - another feather in @Coupon-mad's cap - you'll soon need a new cap!

Umkomaas

What a load of tosh that OPS summary is!

In my opinion the BPA code of practice should be considered as a statutory document because Schedule 4 of the Protection of Freedoms Act 2012 (POFA-12) mandates that operators are bound by the AOS (Approved Operator Scheme) in order to be an Approved Operator and to have access to the DVLA (Driver and Vehicle Licensing Agency) KADOE (Keeper at Date of Event) server, and to exercise the right of pursuing the registered keeper (if applicable).

The Code of Practice a statutory document? F F S!

Well done CM. 👏

beamerguy

Le_Kirk said:

Brilliant (and a good court report) - another feather in @Coupon-mad's cap - you'll soon need a new cap!

I think we should save up for a new, long life whooping stick for Coupon

D_P_Dance

Is not an SI scrutinised by  Parliament .

https://en.wikipedia.org/wiki/Statutory_instrument_(UK) 

retropeck

Hi all,

I just wanted to say huge thank you to everyone that helped out from this forum, especially CM who practically held my hand through the latter stages of putting the WS and evidence together and then speaking for me on the telephone hearing. 

This whole case has stressed me out considerably throughout and there has been a few times where I was close to caving in and paying up. With the help of everyone here I managed to get through all the stages that seemed overwhelming and learn the legal terms needed. I'm sure there's other people like myself that would be thinking the same and all I would say is speak to people here, keep on top of dates & deadlines, reread the newbies thread 37 times and see it through!

I don't need to go in to detail on the hearing as CM has covered it thoroughly, but as mentioned the Judge dismissed the claim within 10 minutes (once he had the WS's in front of him). OPS tried to defend their claim but were shut down. Given we had already won, the Judge asked CM if there was anything they would like to add to which they went on full attack and detailed each and every point we had raised in our defence & WS. Very impressive and shows the true determination on bringing these guys down.

Again thanks everyone, and if anyone else going through the same has any questions I would be happy to help where I can.

Cheers