OPS/Gladstones claim to be heard at Guildford County Court

NotanotherPPCscam

Hi everyone - I have lurked here for over a year since I first received two NtKs from One Parking Solution for parking for 3 minutes in a car park which I did not realise was resident permits only. Somehow both appeals got turned down at POPLA and I am now at Claims stage for both PCNs.

I have already submitted AoS and Defences for both claims following the incredibly helpful Newbies Guide, with the grounds for Defence being any or all of:

a) NtK not compliant with POFA 2012 - doesn't specify the (3-minute) parking period
b) inadequate signage
c) grace period and
d) abuse of process ("contractual costs" add-on of £60)

My court bundle for the first claim is due to be submitted on Thursday 9th - I have already drafted (and will post in here shortly) but given all the recent developments on Abue of Process over the last few months, I would appreciate any comments as to whether it maximises my chances.

I'm also slightly interested by the fact that the Deputy District Judge has not yet set a date for the hearing (Notice of Allocation says "date to be fixed, estimated time 90 minutes"), but has
set the date for submission of court bundles. Is this usual?

The optimist in me wants to believe that this is in anticipation of possibly being able to strike out the Claim without a hearing (following on from the recent examples in Newport, Southampton and Warwick)?

If either do get to Court hearing stage, happy for any of the southern-based regulars on here to attend with me!

Coupon-mad

It might be because that Judge always does it this way, who knows?

You need to include the usual wording asking the Judge to consolidate both the claims because two claims about the same facts increases pressure and costs on the court and the Defendant and is an abuse of the court process in itself.

You can find those words by searching for:

two claims abuse substantially consolidate

Which car park? We know about lots in Sussex but is this one in Surrey?

Was the driver an authorised visitor of a resident or 'trespassing' without realising?

beamerguy

I see no reason why Guildford court has not heard about the abuse of process from Southampton and other courts

Hope you used coupon mad's defence in post # 14 of this thread
https://forums.moneysavingexpert.com/discussion/6014081/abuse-of-process-district-judge-tells-bwlegal

Big decision for Gladstones now, especially as they are claiming for OPS and seem to believe anything OPS says without due care and attention,

Will they get spanked at Guildford ???? They don't know ?
As they say ... "a fool and his money ......."

NotanotherPPCscam

In the County Court at Guildford, The Law Courts, Mary Road, Guildford, GU1 4PS

Claim No. XXXXXXX

Between

ONE PARKING SOLUTION LTD (Claimant)

and

XXXXXXXXX (Defendant)


WITNESS STATEMENT


I, XXXXXXXXX, of XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX, will say as follows:

I am the Defendant in this matter, I am unrepresented, with no experience of Court procedures. If I do not set out documents in the way that the Claimant may do, I trust the Court will excuse my inexperience. In this Witness Statement, the facts and matters stated are true and within my own knowledge, except where indicated otherwise.

Attached to this statement are a number of Exhibits marked to which I will refer in my Witness Statement.

Background

1. The Claimant asserts that I entered into a contract with it, that I breached that contract and must pay a contractual charge, plus further undefined and unexplained “contractual costs” in addition. However the Particulars of Claim do not state in what way the contract has been breached.

2. Before I describe what happened on the day I parked in a bay at XXXXX, XXXXX, I confirm that the essence of my defence to this claim is that:
a) This claim is an abuse of process. The purported added 'costs' are disproportionate, a disingenuous double recovery attempt, vague and are in breach of both the Civil Procedure Rules (“CPR”) and the Consumer Rights Act (“CRA”) 2015 Schedule 2 (“terms that may be unfair”).
b) I did not enter into a contract as the signage was woefully inadequate and non-compliant with both the Claimant’s contract with the landowner and with the Code of Practice (“CoP”) of the British Parking Association (“BPA”), of which the Claimant was and remains a member. I therefore do not consider that I was made aware that there were terms and conditions of parking which could form the basis of a contract.
c) Even if I did breach the terms, the Claimant is obliged by the BPA CoP to apply a grace period of at least 10 minutes. This is reinforced in the Claimant’s contract with the landowner which provides that it will not issue a PCN, under any circumstances, where the driver is present with the engine running (for up to 15 minutes). As the photographs provided by the Claimant show that less than 4 minutes elapsed between my vehicle entering and leaving the site, the Claimant is in breach of its own contract and the BPA CoP.
3. On the day in question, xxxxx 2018, my 7 year old daughter had been invited to a birthday party at one of the parade of shops on xxxxx, located immediately adjacent to the xxxxxx car park (the location of the party was approximately where the “ATM” sign is shown on the site map at Exhibit 1). This was the first occasion that I had ever been to this road and I was not familiar with the parking situation there.

Inadequate signage

4. I was travelling west along XXXX Road, from YYYY Road, and therefore turned left into the car park. There were vehicles parked all along the left hand side of XXXX Road right up to the entrance to the car park. There was no sign on the right hand side of the entrance to the car park (the side facing me as I approached the car park), as confirmed by the site map at Exhibit 1, and the sign on the left hand side of the entrance was:
a) obscured from view, partly by the car parked immediately adjacent to the car park entrance and partly by the sign for the carwash (a business located on the same site as the car park); and
b) angled to face mostly towards traffic coming from the opposite direction.
This can be seen in the photos included as Exhibit 2. I also have a video, taken on a subsequent visit to XXXX Road, which shows the approach and entry to the car park from the perspective of a car driver, which I will be happy to show to the Court at the hearing.

5. Upon entering the car park, there were a row of parking bays immediately on my left. I reversed into one of the parking bays (the second closest to the entrance). From the driver’s seat, I could not any parking signs as I reversed into the parking bay and there were also no parking signs visible on the opposite side of the car park, as borne out by the Claimant’s site map at Exhibit 1, which shows no signs at all on the western edge of the car park.

6. The Claimant’s contract with the landowner states, at clause 13(b), that signs “…will be positioned so that at least one sign is visible and legible from anywhere that a vehicle could park on the site…” (a copy of the contract is included as Exhibit 3). There were no signs in front of me at all. The nearest sign was on the wall around 6-8 feet behind the parking space (and so around 12-14 feet away from the driver), but owning to its height on the wall, it was not visible through the rear window. It was also a sign with a white background affixed to a white wall, with tiny font (see the photos in Exhibit 2) and so neither visible nor legible, on stark contrast to the signage in the case of Parking Eye Ltd v Beavis [2015] UKSC 67 (a copy of the signage in this case is attached as Exhibit 4).

7. As I had not seen any evidence of parking restrictions, I remained in the car whilst my wife got my daughter out of the car and dropped her off at her friend’s birthday party. As soon as my wife returned, around 2 minutes later, we left the car park.

8. It is my understanding that there are three elements to a contract: offer, acceptance and consideration. As at no point did I see a sign communicating the offer, and so I could not possibly have accepted any contract offered by the Claimant. Had there been clear and visible signs on both sides of the entrance to the car park (so visible whichever direction one approached the car park from), I would have known to check the terms and conditions posted elsewhere on the site and could have accepted or declined the contract.

Grace Period

9. In addition to considering the contractual element of the claim, I have considered the BPA CoP. A copy of paragraph 13 of the CoP, which relates to grace periods, is at Exhibit 5. In order to be an accredited member of the BPA, compliance with the CoP is compulsory. Paragraph 13 of the CoP clearly states that a grace period is to be applied to parking.

10. Furthermore, clause 11 of the Claimant’s contract with the landowner (please see Exhibit 3) clearly states that: “The following vehicles shall not be issued with a PCN under any circumstances. (i)… …(v) Vehicles where the driver is present with the engine running. (For up to 15 minutes only)”.

11. I entered the car park at approximately xx:xx am and left at xx:xx+4, as evidenced by the Claimant’s time-stamped photos at Exhibit 6. I was actually parked for less time than this (approximately yy:yy am to yy:yy+2.5). I note that on the Notice to Keeper (attached at Exhibit 7), no “parking period” was specified (in contravention of Paragraph 9(2)(a) of Schedule 4 of the Protection of Freedoms Act 2012) as both the “Contravention Period (From)” and “Contravention Period (To)” sections of the Notice have been marked as N/A.

12. I can only assume this is because to have specified a parking period of approximately 2.5 minutes would have highlighted the wholly unreasonable and vexatious conduct of the Claimant. There is no explanation for why the Claimant has declined to apply any grace period at all in my case, which is a clear breach of both its contract with the landowner and of the BPA CoP.

Abuse of Process

13. I note that the particulars of claim include a substantial charge for “contractual costs” of £60 in additional to the parking charge of £100 under the alleged “contract”. This additional charge is not specified on the signage in the car park. Having researched this point, I understand that this amount is in breach of both a number of statutory provisions and also widely known case law applicable to the parking industry, including:
a) the Protection of Freedoms Act 2012, Schedule 4 (attached as Exhibit 8) paragraphs 4(5) and 4(6), where Parliament limits the charge to the amount specified in the notice to keeper (£100);
b) paragraphs 6, 10 and 14 of Schedule 2 (the 'grey list' of terms that may be unfair) of the Consumer Rights Act 2015 (attached as Exhibit 9); and
c) the judgement in Parking Eye Ltd vs Beavis, which I understand to be the authority for recovery of the parking charge itself and no more, since that sum (£85 in the Beavis case) was held to already incorporate the costs of an automated private parking business model including recovery letters. 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.

14. I believe 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 and is an attempt at double recovery. This practice has already been exposed and routinely disallowed by many Courts in England and Wales. It is only those who defend, who draw individual cases to the attention of the courts one by one, but at last, particularly in 2019, a number of District Judges have moved to strike out similar claims for abuse of process. Some examples include:
a) District Judge Grand in the County Court at Newport, Isle of Wight in respect of Claim Number E8GF1V7V (UK Car Park Management Ltd v Esplanade Ltd) on 21 November 2018 (Order of the Court attached as Exhibit 10);
b) District Judge Jones-Evans in the Caernarfon Court in in respect of Claim Number F2QZ4W28 (Vehicle Control Services Ltd v Davies) on 4th September 2019 (Order of the Court attached as Exhibit 11);
c) Deputy District Judge Joseph sitting at Warwick County Court in respect of Claim Numbers F0HM8F4K (Phoenix Parking Solutions Ltd v [ ]) and F5DP2D6Y (Premier Park Limited vs Mr Jonathan Shaw) on 15th November and 5th December 2019 respectively, (Orders of the Court attached as Exhibit 12);
d) District Judge Taylor in Southampton County Court in Case Number F0DP201T (Britannia Parking v Mr C) on 10 June 2019; and
e) District Judge Grand in Southampton County Court in Case Number F0DP163T (Britannia Parking v another) on 11 July 2019

15. In respect of the Case Numbers F0DP806M and F0DP201T mentioned above, the courts went further in a landmark judgment in November 2019 by striking out Britannia Parking’s application to have the previous judgments set aside, with District Judge Grand holding that the add-on of £60 of costs/damages to the parking charge did indeed breach CRA 2015 as well as POFA 2012 and the principles laid down in Parking Eye Ltd v Beavis. A report of the Court hearing is attached as Exhibit 13.

Multiple claims

16. I would also like to draw to the Court’s attention that the Claimant is pursuing a second Claim (F[ ]) with identical Particulars of Claim (see Exhibit 14) for a second alleged breach of contract later on the same day. Despite a previous request to the Claimant (attached as Exhibit 15) that a single Claim should be brought for all PCNs, to minimise Court time and costs for all parties, the Claimant has proceeded with a separate Claim.

17. The Court is therefore invited to dismiss both Claims as being without merit and to award my costs of dealing with these Claims and attendance at the hearing (attached as Exhibit 16), such as are allowable pursuant to CPR 27.14.

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

Coupon-mad

You need the words I pointed you to as well, to consolidate the claims.

Which car park, where?

Why would you choose a private car park to help a child board/alight to adjacent premises, when that's what double yellows on street are specifically allowed and exempt for? This is an exemption Local Authorities specifically have to allow.

Why do people drive into car parks when they don't need to? I can't understand why people don't use DYL for the purpose thy are exempt for. Stay away from private land, no need AT ALL to drive into any scammer-infested private car park.

beamerguy

And what about ... The Consumer Rights Act 2015 as shown in
her post '# 14

https://forums.moneysavingexpert.com/discussion/6014081/abuse-of-process-district-judge-tells-bwlegal

NotanotherPPCscam

Hi Coupon-Mad - "trespassing" without realising. This car park is in Surrey - it's next to a row of shops but transpires it is actually residential parking for the flats above the shops. I found one previous thread on here with a PCN from the same car park, albeit around 2-3 years ago, I think.

Have just posted my witness statement - I have asked for both claims to be struck out as abuse of process but can add in the consolidation as an alternative option for the Judge?

Coupon-mad

Yes - the EXACT wording bargepole first wrote - and in a covering letter mentioning both court claim numbers, to draw the two claim to his/her attention. Put it in their face, so force a consolidated hearing, if the Judge is not minded to summarily strike the exaggerated claims out due to abuse of process, like at Southampton and Warwick.

"trespassing" without realising.

You need PCM v Bull and PACE v Lengyel transcripts from the Parking Prankster's case law pages then, and a point that trespass is a matter for the landowner only, (that is trite law) and that the signs (even if they had been readable) were prohibitive, not offering a transparent contract to any members of the public, only to permit holders.

You also need your costs schedule showing the costs for attending ONE hearing and adding that most costs will double if you have to attend two.

NotanotherPPCscam

Hi beamerguy - I have the reference to CRA 2015 Sch 2 in para 13 in the Abuse of Process section (and will be attaching the examples 6,10 and 14 duly highlighted as one of my exhibits).

@Coupon-mad - if there had been double-yellows, I would have stopped on those. It's a mainly residential street with little off-street parking, so the road is generally full of parked cars at weekends (generally on both sides of the road such that there is only room for one car to pass down the middle.

Genuinely if I had realised the car park was controlled (there is still a reasonable amount of uncontrolled parking in the leafier parts of Surrey!), I would just have pulled across the entrance rather than parking in a marked bay, but that's what deliberately inadequate signage does - entrapment"

NotanotherPPCscam

Hi coupon-mad - I did look at the trespass wording and cases, but the initial letter from OPS denying my original appeal is very clear that they are pursuing me under contractual agreement, not damages or trespass.

I was going to save the trespass point for my skeleton argument (as a rebuttal if they suddenly decide to switch tack) but can add it into the witness statement if you think it fits better there.

Coupon-mad

It fits better in your WS and I almost never write skeletons arguments at all.

And do use the full wording I wrote in post #14 of the Abuse of Process thread, it is designed to work well as a separate sheet supplementary WS, with the case law that stops a PPC adding £60, appended to it.

Of course OPS are saying it's under contractual terms, as they can't pursue a case under trespass. The answer to that is: ''they would say that, wouldn't they!''

In the PCM v Bull case and the PACE v Lengyel case, the PPCs said exactly the same but the Judges saw through it and outed them for trying to 'dress up' a matter that can only be trespass at best, as if it was a breach of contract.