Brighton OPS Defence - would anyone check it for me pls?

ParkingMad

@BellaEm A board guide has merged all your threads into this one. 

What date is the deadline for submitting your witness statement? This deadline will be 14 days before your court hearing date, which you have said is at the beginning of March.

nosferatu1001

ParkingMad said:

@BellaEm A board guide has merged all your threads into this one. 

What date is the deadline for submitting your witness statement? This deadline will be 14 days before your court hearing date, which you have said is at the beginning of March.

The deadline will usually be 14 days before, unless the court has set a different one.

nosferatu1001

BellaEm said:

I'm really sorry that this was confusing - I am not very computer literate and I did not know how to find or appemd old threads. The advice here is really helpful and I am sorry for the confusion. It's at Brighton court, beginning of March

You still need to actually READ the previous responses and explain precisely what you mean and what you are up to.

D_P_Dance

Indeed, 100% accuracy is a sine qua non in these matters.

BellaEm

OK.

Court Date is 4th March. My Witness Statement is due 14 days prior, so 18th of Feb.

The matter is about a £40 parking ticket (failure to display permit) because my permit wasn't ready for collection when I drove in. I challenged the PCN and heard nothing. OPS then sent correspondance to the wrong addesses so I found out about it two years later via DCB Legal who demanded £237 (PCN, plus admin fees, plus 'interest') or court. I offered to pay the ticket but they refused and are now taking me to court. Hope that helps and sorry for confusion.  

nosferatu1001

That's ok, now we're in the right thread!
What was important was knowing where you are in the process
Use the newbies thread, as ever , when it comes to writing your WS

BellaEm

OK, here's my WS final version. If anyone has the time to make any suggestions I would be extremely grateful. Thanks again for all your help

1.       I am XXXX of XXXX I am the Defendant against whom this Claim is made. The facts below are true to the best of my belief and my account has been prepared based upon my own knowledge. In my Statement I refer to Exhibits supplied with this Statement, referring to page/Exhibit numbers where appropriate.

2.         The particulars of this Claim are scant, have habitually been sent to incorrect addresses, and the amounts claimed fluctuate so variously, that I have been unclear precisely what they relate to. I have never been sent consistent Particulars of Claim, and was thereby forced to make several Direct Subject Access Requests (DSARs) to the Claimant and their various Representatives, to try to piece together what the varying Claims may be for.

3.         After DSAR (2), it appears that the Claim originates in an alleged ‘breach of contract’ for a ‘Parking Charge Notice’ (PCN) issued by the Claimant, One Parking Solution,  (PCN , £80.00 or £40.00 if paid within 14 days, for vehicle XXXXXXXX) for alleged ‘failure to display a valid permit’ (Exhibit A, p.7).  I can confirm that I was the registered keeper of the vehicle in question. 

3.1 The Claimant has, between 2018 and 2021, submitted various Claims related to this PCN for amounts fluctuating between £40.00, £80.00, £140.00, £200.00, and £227.39. the Claim amounts vary to include ‘admin costs’, ‘interest’, and ‘legal costs’ but these were sent to incorrect addresses and I did not receive them. I appealed the PCN in good time (3.3), made a ‘good will’ offer to pay the PCN when the issue came to my attention (3.11 and 3.12); I have engaged openly and courteously with the Claimant at every step. Not only could this Claim have been avoided, and the Claimant has no cause of action, but the fluctuating Claim amounts are inflated sums that include ‘double recovery’.

3.2       PCN was issued to the vehicle GU15 CXC on xxxx on the grounds of ‘failure to display a valid parking permit’. However, I was unable to display a valid permit for reasons entirely beyond my control. It is a fact that I was eligible for a valid permit for the location and date in question. Indeed, I had been granted an annual renewable permit at the location for several years, as is evidenced by the out-of-date permit photographed by the Claimant in their PCN (Exhibit B.2, p.10). Parking permits at the site in question site are required, except during the summer (July to beginning of October); annual permits expire at the end of June, and new permits needed to be collected from the site in October. Accordingly, I arrived to collect the new permit as usual on the date in question, however on arrival I was informed that the new permit was not ready for collection. This was entirely beyond my control. There was at that time no option to ‘pay and display’, or by other method pay to park, and the signage at the location did not give adequate instruction (Exhibit B, p.8). As there are no alternative parking facilities or methods of payment, I was forced to park and seek out a temporary permit or other permission to park as I had work to do that started in ten minutes. It took some time to arrange a temporary permit but reassurance was given that that my vehicle would not be ticketed that day. I was, therefore, shocked to be issued with PCN  by the Claimant, and assumed it was a mistake. There was no signage at the location indicating what to do in the event of a permit not being available, or how to pay to park. Further, there was no detail on the signage relating to the additional sums of money being Claimed here (Exhibit B, p.8). In addition, the signage at the location does not give instruction in such situation and is located far too high in air to read, and is in tiny font, and refers the reader to ‘terms and conditions’ that are not listed.  

3.3       I immediately challenged the PCN, in writing, on the grounds above (3.2) (Exhibit C, p.11-12) and set out the mitigating circumstances (permit not available).

3.4.      I received no rejection of that challenge to the PCN from the Claimant and was thereby denied the opportunity to settle or pursue POPLA appeal, which I would definitely have done.

3.5       I first became aware of any ongoing Claim two years later in communication from DCB Legal Ltd., whereby they Claimed £227.37 for the PCN (Exhibit D, p.13), broken down into: £140.00  “PCN” (inflated from £40/80.00 by the addition of £60 undisclosed ‘costs’), £12.37    “interest”, £25.00    “Court fee”, £50.00    “Solicitor’s costs fixed by the courts                            Total Claimed: £227.37

 Due to the absence of any reference numbers or corroborating evidence for the £227.37 Claimed, or detail of which Honourable Court that had fixed the fees listed, I suspected that this may be a scam of the kind that are regularly reported in the news. I investigated the matter via DSARs in January 2020 to the Claimant and their Representatives.

 3.6       The DSARs (3.5) revealed that the Claimant had rejected my initial PCN but had sent their rejection to the wrong address (despite me providing them with my correct address). The Rejection is a ‘cut-and-paste’ reply, devoid of any detail, and does not engage at all with the reason for challenge or mitigating circumstances (Exhibit E, p.14). I first saw this Appeal Rejection in January 2020.

 3.7       It is a fact that the Claimant and their representatives sent the Rejection and other key letters relating to this Claim and PCN to wrong addresses, despite my providing the Claimant with my full and correct address in the PCN appeal in 2018 (Exhibit C, p.11-12). This denied me the opportunity to settle the PCN or to pursue my right to a POPLA appeal. Thus the Claim for monies beyond the PCN in this case are traceable to the Claimants own administrative error, and are entirely beyond my control.

 3.8       On 5th of September 2019 DCBL Ltd. sent a Bailiff’s ‘Notice of Debt Recovery’ regarding the PCN to the wrong address. This ‘Notice’ claims £140.00, broken down as ‘unpaid PCN’ plus an additional ‘£50.00+ VAT administration and recovery fee’ and ‘interest’. I am of the belief that Bailiff action is not lawful in parking disputes on private land, and that it is unproven on what legal grounds this Bailiff was acting. I first learnt of this ‘Notice of Debt Recovery’ in January 2020, via DSAR (Exhibit F, p.15).

3.9       On 19th of September 2019, a further Bailiffs ‘Legal Recovery Action’ letter was sent to me, again to the wrong address. The Letter claims a right to obtain from me an attachment of earnings and threatens to place a charge upon my property, apply for a Warrant of Control to remove goods, and to prevent future lending, should I fail to pay the sum of £200.00. I am of the belief that Bailiff action is not lawful in parking disputes on private land, and that it is unproven on what legal grounds this Bailiff was acting. I first learnt of this Letter in January 2020 during my investigations but the first page - detailing the amount of Claim and reason for Claim - was not included in the DSAR.

3.10     On 26th of September 2019 a new Letter of Claim was again sent to the wrong address, and I first learnt of the Letter in January 202, via DSAR (Exhibit G, p.16). 

 3.11     In November 2019 a ‘Statement of Admission’ was sent by the Claimant. The ‘Statement’ Claims £227.37, as well as entitlement to my personal information, including a full breakdown of my financial assets, income, liabilities, outgoings, dependents, and savings. I assumed the Letter was from an Honourable Court and that I was thereby compelled by law to pay - not as an admission of liability or breach of contract, but to obey the court and end the threat of litigation, removal of personal property, and/or reduction of credit. I reasonably offered to pay the amount the Claimant listed as ‘PCN Charge’ (inflated from £80.00 to £140.00 by the addition of £60.00 ‘costs’) (Exhibit H, p.18 – the front page detailing the Claim was redacted at DSAR retrieval).

 3.12     This offer (3.11) was refused by the Claimant, but no reason for refusal given.

3.13     In a letter dated 23rd of January 2020, I received a DQ signed by a representative of DCB Legal Ltd (name illegible). The DQ states that ‘loose documents/ correspondence/trial bundle’ are included but no such documents were attached or shared with me Exhibit I, p.19).

4.  The inconsistent Particulars and varying Sums of Claim across the correspondences described above amount to an incoherent statement of case, and the quantum has been enhanced in excess of any sum hidden in small print on the signage that the Claimant may be relying upon.  Claiming ‘costs/damages’ on an indemnity basis is stated to be unfair in the Unfair Contract Terms Guidance, CMA37, para 5.14.3.  That is the official Government guidance on the Consumer Rights Act 2015 ('CRA 2015') legislation which must be considered, given the duty in s71.  I aver that the CRA 2015 has been breached due to unfair terms and/or unclear notices (signs), pursuant to s62 and with regard to the requirements for transparency and good faith, and paying regard to examples 6, 10, 14 and 18 in Sch2.  NB: this is different from the UTCCRs considered by the Supreme Court, in that there is now a requirement for contract terms and notices to be fair.

5.       It is denied that the sums variously sought are recoverable. My position is that this money claim is in part/wholly a penalty, applying the authority in ParkingEye cases (ref: paras 98, 100, 193, 198 – Exhibit J, p.20) ParkingEye Ltd v Beavis [2015] UKSC 67 and para 419 of HHJ Hegarty’s High Court decision in ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was set at £75 (discounted to £37.50 for prompt payment) then increasing ultimately to £135.  Much like the situation in this claim, the business model involved sending a series of automated demands to the keeper.  At para 419, HHJ Hegarty found that adding £60 to an already increased parking charge 'would appear to be penal' and unrecoverable.  ParkingEye dropped this punitive enhancement by the time of Mr Beavis’s parking event.

6.       Even if the Claimant had shown the global sum claimed in the largest font on clear and prominent signs - which is denied - they are attempting double recovery of the cost of their standard automated letter-chain.  It is denied that the Claimants have expended additional costs for the same letters that the Beavis case decision held were a justification for the (already increased from the discount) parking charge sum of £85.  

7.         The Claimant cannot be heard to base its charge on the Beavis case, then add damages for automated letter costs; not even if letters were issued by unregulated 'debt recovery' third parties.  It is known that parking firms have been trying to use an appeal at Salisbury Court (the Semark-Jullien case) where the Judge merely reset an almost undefended case back for a hearing.  He indicated to Judges for future cases, how to consider the CRA 2015 properly and he rightly remarked that the Beavis case was not one that included additional 'costs' per se, but he made no finding of fact about the illegality of adding the same 'automated letter costs' twice.  He was not taken by either party to Somerfield in point #5 above and in any event it is worth noting that the lead Southampton case of Britannia v Crosby was not appealed.  It is averred that District Judge Grand's rationale remains sound, as long as a court has sufficient facts to properly consider the CRA 2015 s62, 63 and 67 before turning to consider the Protection of Freedoms Act 2012 Sch4 ('the POFA').

8.         Pursuant to Sch4 of the POFA at 4(5), the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a parking firm has complied with its other requirements (denied in this case).  It is worth noting that even though the driver was known in Beavis, the Supreme Court considered the POFA, given that it was the only legislation specifically dealing with parking on private land.  There is now also the Parking (Code of Practice) Act 2019 with a new, more robust and statutory Code of Practice being introduced shortly, which evolved because the two Trade Bodies have failed to properly govern this industry. (REST OF WS GOES ON THE EVIDENCE THE CASESE ABOVE)

Coupon-mad

(REST OF WS GOES ON THE EVIDENCE THE CASESE ABOVE)

Show it please. 

I've seen people copy entire paragraphs from other people's WS that talk about the date they appealed or took photos, obviously not something that other people can copy!  I've also seen people copy paras that talk about pay and display, when their case is not about pay & display, etc.

Fruitcake

Are you happy for the whole world to know your PCN number and VRM?

Have you received the scammer's WS yet? If so, please post it asap. Only redact YOUR personal data.
If the scammers have redacted anything, please tell us.

If it is too long to post all of it, show us at least the fist page with the name of the (para) legal, the last page with their signature and statement of truth, and the exhibits, especially the contract, unredacted.

BellaEm

Ok here's the rest

9.       Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 private PCN, which included all operational costs, and they were able to overcome the real possibility of the charge being dismissed as punitive and unrecoverable.  However, their Lordships were very clear that ‘the penalty rule is plainly engaged’ in such cases.  

 10.       Their decision was specific to what was stated to be a unique set of facts: the legitimate interest/commercial justification, the car park location and prominent and clear signs with the parking charge itself in the largest/boldest text (Exhibits B p.8 and B1 p.9).  The unintended consequence is that, rather than persuade courts considering other cases that all parking charges are automatically justified, the Beavis case facts and pleadings (and in particular, the brief and very conspicuous yellow/black signs) set a high bar that this Claimant has failed to reach.

 11.       Without the Beavis case to support the claim and no alternative calculation of loss/damage, this claim must fail.  Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of an overriding legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach.  

 12.       The Supreme Court held that the intention cannot be to punish a motorist - nor to present them with concealed pitfalls, traps, hidden terms or unfair/unexpected obligations - and nor can the operator claim an unconscionable sum. In the present case, I am of the belief that the Claimant has fallen foul of the tests in Beavis.

 13.       The Claimant’s signs had vague terms and a mix of small font, such that they would be considered incapable of binding any person reading them under common contract law, and would also be considered void pursuant to Sch2 of the CRA. Consequently, it is my position that no contract to pay an onerous penalty was seen, known or agreed.

 14.       Binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of an onerous parking charge, would include:

 (i)        Spurling v Bradshaw [1956] 1 WLR 461 (the ‘red hand rule’ case) and

(ii)       Thornton v Shoe Lane Parking Ltd  [1970] EWCA Civ 2, both leading authorities confirming that an unseen/hidden clause cannot be incorporated after a contract has been concluded; and

 (ii)      Vine v London Borough of Waltham Forest: CA 5 Apr 2000, where the Court

of Appeal held that it was unsurprising that the appellant did not see the sign ''in view of the absence of any notice on the wall opposite the southern parking space''.  In many cases where parking firm Claimants have cited Vine in their template witness statements, they have misled courts by quoting out of context from Roch LJ, whose words related to the Respondent’s losing case, and not from the ratio.  To pre-empt that, in fact Miss Vine won because it was held as a fact that she was not afforded a fair opportunity to learn of the terms by which she would be bound.

 15.       Fairness and clarity are paramount in the new statutory CoP being finalised by the MHCLG and this stance is supported by the BPA and IPC alike. In the November 2020 issue of Parking Review, solicitor Will Hurley, the Chief Executive of the IPC Trade Body, observed:  'Any regulation or instruction either has clarity or it doesn’t. If it’s clear to one person but not another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive of all parties involved – it’s either fair or it isn’t. The introduction of a new ‘Code of Practice for Parking’ provides a wonderful opportunity to provide clarity and fairness for motorists and landowners alike."  My position is that the signs and terms the Claimant is relying upon were not clear, and were in fact, unfair and the Beavis case is fully distinguished (Exhibit B p.8 and B1 p.9).

 16.       The Claimant has had many Claims struck out previously for similar practices, most recently by DJ Harvey, on the 5th of February 2020 (One Parking Solution v Ms W - F0HM9E9Z, Lewes County Court).

 17.       My fixed witness costs –ref.PD 27, 7.3(1) and CPR 27.1425. I seek (a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and (b) that any hearing is not vacated but continues as a costs hearing, in the event of a late Notice of Discontinuance.  I seek a finding of unreasonable behaviour in the pre-and post-action phases by this Claimant, and will seek further costs pursuant to CPR 46.5.

 17.1     As a litigant-in-person I have had to learn relevant law from the ground up and spent a considerable time making and chasing DSAR requests, gathering together as much of the correspondences sent to the wrong addresses as I can, researching the law online, processing and preparing my defence and witness statement. I ask for my fixed witness costs. I am advised that costs on the Small Claims track are governed by rule 27.14 of the CPR and (unless a finding of 'wholly unreasonable conduct' is made against the Claimant) the Court may not order a party to pay another party’s costs, except fixed costs such as witness expenses which a party has reasonably incurred in travelling to and from the hearing (including fares and/or parking fees) plus the court may award a set amount allowable for loss of earnings or loss of leave.

 17.2     The fixed sum for loss of earnings/loss of leave apply to any hearing format and are fixed costs at PD 27, 7.3(1) ''The amounts which a party may be ordered to pay under rule 27.14(3)(c) (loss of earnings)... are:(1) for the loss of earnings or loss of leave of each party or witness due to attending a hearing ... a sum not exceeding £95 per day for each person.'' My costs are set out at Appendix A, p.21.

 Statement of Truth

 I believe that the facts stated in this defence are true.  I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.