COURT REPORT - COASTWAY VETS PREDATORY TICKETING, NO GRACE PERIOD - OPS LOSE AT BRIGHTON COURT AGAIN

Coupon-mad

ParkingMad and I had a rare day out to court, to attend an OPS/DCBLegal case adjourned after a very brief phone hearing in the early Summer, where another DDJ heard that there were reasons to think OPS may have been 'ghost ticketing' and that we were concerned that OPS didn't appear to have written his own WS from facts from his knowledge (DCBL's usual rambling template with an electronic signature from an OPS employee, where one of the paragraphs wrongly mentioned the IPC Code of Practice and which was served in the Summer by email as a Word doc., where the properties showed it was only created and edited by DCBLegal and the title was 'OPS Witness Statement template'). 

For that reason, the first Judge had ordered a face-to-face, longer hearing because ghost ticketing is a serious allegation and OPS had to appear in person, which they did.  Nearly missed my train but got there in time!  We were all wearing masks except the Judge and were socially distanced in a largish hearing room. It was heard by DDJ White at Brighton, who started as he meant to go on, spending five minutes warning all parties not to argue or raise their voices, and acknowledged ParkingMad (a regular observer) and said ''and I don't want any ''noises off''.

OPS v Mr N:

The case was about an ex-clamping 'happy hunting ground' for many years, only in recent years it's a predatory ticketing zone instead, where the ticketer sits over the road in his car and watches people stop in these bays (often when parked himself, on another shop's forecourt - yes, they have been seen doing that, including by this Defendant since his harassment started).  This is just one of a parade of shops in a small street, where most shops have bays outside and Mr N tells me that people do use the bays to pull over to do things like load, unload, collect a passenger, post a letter, or to use any of the shops. 

This is the ONLY unit with restrictions but it has the most inviting white-lined bays out of all of the shops in the row.

The yellow crosses show where 3 signs are (were), the usual OPS 5mm writing on white signs on a white wall:

The background was that no PCN was ever never found on the windscreen and when they got the NTK a month later, he and his wife were confused as to what had happened.  They are local and unlikely to have left their car there for any longer than a few minutes to load or pick up a passenger and wouldn't have used it to shop in Aldi because locals would know that Aldi has its own free car park behind this parade of shops.   They could see rain on the car in the photo and decided that it must have been a day with bad weather, when one of them picked the other up rather than walking home with some items of food shopping but they didn't know which of them had driven.  

The driver's back would have been turned while the car was ticketed; they'd have been away from the car for a few minutes as Aldi's door is round at a right angle out of sight of the bays.  In 4 minutes flat, all the photos had been taken but it seemed to be a 'ghost ticket' situation and unlikely some passing kid had removed the PCN because the car was stopped facing inwards, not facing the pavement, so any PCN left by the ticketer wouldn't have been seen by a passer-by.

Court report (thanks to ParkingMad for taking 11 pages of hand-written notes):

OPS started with the usual summary, stating that the Vets was closed (Sunday) and so there was ''no grace period allowed'' and anyone gets an immediate ticket if cars are left there and not on the white list.  The car was parked in front of a sign and the spaces were for emergency parking for the Vet staff ''like an ambulance bay''.

The DDJ interrupted: ''Where does it say that on the signs or tarmac?''   

OPS had to admit it doesn't, and the DDJ remarked that the reason people wouldn't generally park in an Ambulance bay is that they have a 'whacking great sign' right next to them.  I was buoyed by this exchange and liked the Judge's phrase, so I used it later!

OPS carried on and said the vets wanted the spaces clear and pointed out their contract (standard OPS template signed by an employee at the vet's).  Then their Director went on to talk about the amount of parking charge and the added costs and the Semark-Jullien case that he quoted as saying that ''adding £60 is not an abuse of process''.   He had 3 copies of the appeal case and handed those out, at one point. 

He isn't wrong that the appeal Judge at Salisbury did say that about abuse of process (not a magic phrase) but as we know, it DIDN'T say adding £60 to a PCN was allowed, and merely re-set that case for a hearing, to consider all the facts.  It is such a damp squib; Semark-Jullien only helps the parking industry if they convince a Judge that it means something it doesn't which is why posters here need to be ready to explain to their Judges, that this appeal doesn't suddenly make adding £60 (counting the DVLA/PCN/appeal/letters costs twice) allowable or recoverable.

I was then allowed to question OPS and asked straight away for his comments about the allegation of 'ghost and/or predatory ticketing', which the Judge echoed and wanted to hear about.  OPS vociferously denied it and said there was no point in ghost ticketing because ''windscreen tickets being paid straight away is where we make most of our profit'' (that might be true, due to their biggest contract: the confetti-like ticketing regime under an ill-advised and badly-drafted BHCC contract at Brighton area Housing Land and Stanmer Park, which suffers a daily bombardment of windscreen PCNs and hundreds of idiots/victims pay them instead of the EASY appeal win open to them).    But this place isn't BHCC-owned land and Mr N had not appealed because he knew no PCN had been found on the windscreen and saw the letters as a scam.

OPS said they never want to have to spend more money getting DVLA data and sending more letters.  He said it was right that the ticket was issued immediately and his position is that the BPA CoP 13.1 'grace periods' only applies if you are reading a sign.   I had planned to ask why he hadn't supplied a WS from the ticketer, given that OPS had been given the chance to submit a further WS & evidence after the adjourned hearing but he mentioned that the ticketer was deceased.  So I'm glad I didn't just launch into that question first.  

I asked why, in his new WS #2 (that OPS were allowed to file & serve after the first adjourned hearing) he had appended a copy of a previously-exhibited photo showing the car and the sign, which - when he first put it in evidence with his April WS - showed a white sign on a white wall with zero text visible but suddenly the exact same photo presented with WS #2, showed obviously enhanced text on that sign...even though nothing else in the photo appeared to have been enhanced. 

He had no answer and said he didn't understand the question and blamed DCBLegal but the Judge said he could see what I was getting at.

After a bit more discussion I launched into asking OPS about the added £60 and asked him to explain what the costs were for and asked directly whether they pay ZZPS when there is no recovery?  He said he had no idea and that ''the system shows if payments are made''...so I repeated the question, trying to show that the £60 is falsely described as damages...he just replied with some flannel along the lines ''our systems are integrated with ZZPS and the costs are deducted at source''. 

I slipped into making submissions instead of asking questions and mentioned that the Beavis case shows that a parking charge itself is only justified if it includes all the costs of the operation and I stated that the Semark Jullien Salisbury appeal case didn't find one way or the other about whether the added £60 was unrecoverable or not.   I pressed OPS again:  if the costs are in the £60 add-on, how do OPS justify the £100, when Lord Neuberger had said ''none of this means ParkingEye could charge whatever they liked'' (para 100 of Beavis) and paras 98, 193 and 198 confirm that the costs must be in the parking charge itself...

OPS' witness started to disagree, a bit flippantly...I can't remember what he said but the Judge shouted:

STOP!!!

and glared at us both.  Silence... DDJ White was irked, and reminded us both that this is a court and he wasn't letting the hearing slip into arguments. He than looked at me and said the subject of the added costs had been more than covered, indeed ''beaten to death to the extent that it was like witnessing a Canadian seal cull''!  

Fair point, I do go on a bit...I know, I know...!

Anyway that was enough questioning but it was then my turn to present the main points of defence:

POFA -  As no-one knew whether it was Mr N or his wife who parked, there was only a 50-50 chance of him being driver, so the BoP wasn't tipped in OPS' favour and the POFA 2012 must be considered, if he is to be held liable as registered keeper.  There wasn't 'adequate notice of the parking charge' from these woeful white signs on white walls and because it was an immediate ticket, the ticketer had put in a time of ''N/A to N/A'' as the observed period of parking.  This appeared on the copy PCN in evidence and also showed 'N/A to N/A' on the NTK, so I said that breaches #7 and #8 of POFA which requires a 'period of parking' on both documents.  

Signs - usual arguments:  sign is the bare minimum 450mm by 450mm (OPS had pointed out it was in fact 'bigger than it needs to be' at 457mm by 457mm - wow what a difference!) and the text is only in 5mm font with no large 'P' nor any phrase in large letters. Nothing on the tarmac, no 'RESERVED' notices on the red parking poles positions already in front of each bay, which would have been easy to add.  I used the Judge's phrase from earlier and said because most of the units on both sides of the road in this parade of shops had bays (but only this Unit had OPS patrolling), then these bays should have had a ''whacking great sign'' to show clearly to drivers pulling over that it was the only run of bays with a parking contract costing £100.

I quoted from the POFA and from Beavis and the CRA, pointed to Mr N's evidence of an OPS sign next to the Beavis case sign, and mentioned the red hand rule.

Briefly touched on Thornton and Vine. I had quotes from those authorities but thought the DDJ's eyes were glazing over, so I decided not to club any more seals...

Landowner authority - I observed that the Land Registry evidence from OPS showed a different owner than the Vets (but it did have leases and a map where one area tallied with the vet's part of the building and the bays, showed as a unit that was all in one title). It wasn't our strongest suit and as it was a face to face hearing, I could tell that DDJ White wasn't interested, so I didn't bother to pick over the minutiae of OPS' standard template landowner authority.

Consumer Rights Act - I mentioned that the CRA requires both terms and consumer notices to be 'fair, transparent and prominent' and that in this case, the terms failed those tests due to predatory, immediate and unfair ticketing. The consumer notices (signs) failed, for all the reasons already submitted. 

*******************

OPS' witness was asked if he wanted to ask Mr N any questions and he protested that although the WS from Mr N said that he and his wife were both insured, there was no insurance certificate in evidence and he stared at Mr N and said: ''I think the driver is sitting in this room''.  

The DDJ asked if OPS had written to ask for the insurance certificate - answer: ''NO''.  So the Judge remarked that we have the Defendant here as a witness and it is his case that he and his wife both drive that car and the court has nothing to disprove that.  He asked Mr N if he had any recollection of who was driving and Mr N said ''No Sir''.  

DDJ paused and said, ''well I think that pretty much torpedoes that one...''

OPS didn't have any other questions and didn't make any final submissions, even when invited to.  I suspect he had sussed the Judge thought the signs were not clear enough.

*******************

Judgment:

Landowner authority - the learned Judge was satisfied OPS have a rolling contract with the Vets who appear to hold the lease and have signed the agreement.  And he accepted the witness statements - template or not - were from OPS.  This was what I thought the Judge would say, having picked up on visual cues you only get at a face to face hearing.

Signs - DDJ White went into a lot of detail but we could tell he was coming round to saying the signs were inadequate.   He also mentioned Thornton v Shoe Lane and some other cases.  He remarked that the pic (above) with the yellow crosses to show where the signs are on a picture that would otherwise not show them, is useful because to be as clear as the Beavis case signs, it is almost as if OPS needed to put a big yellow cross x 3 on the wall, above each sign to draw attention to them.  He observed that ParkingEye had won their case in the Supreme Court because the signs were far larger and clearer than this. 

He noted the photo of an OPS sign next to the ParkingEye signs (from Mr N's evidence) used yellow & black, being a 'danger colour' as seen with bees and wasps,,,and an RAF fighter jet ejector seat handle(?!)   OPS' small print white sign on a white wall, especially with no warnings on the tarmac either, is not clear enough to make a driver read it even if they park in front of it. 
WE WON ON THAT POINT.

Grace Period - he told OPS' witness that immediate ticketing without enough time to read the contract and leave, was unacceptable and 'not right'.  He went into some detail that parking meant leaving a vehicle for a period of time and 4 minutes isn't enough to prove the car was 'parked' and the driver may have been nearby/at another sign.  The Judge also said that dropping off or picking up a passenger, and loading/unloading are not parking, but sitting in your car for a longer period, say, 30 minutes without getting out would still be parking and it's a matter of fact and degree.
WE WON ON THAT POINT.

POFA - he agreed that the NTD and NTK were non-compliant due to the completely missing period of parking.  He told OPS that POFA was non-negotiable.
WE WON THAT TOO.

Ghost ticketing - no evidence either way; such accusations involve dishonesty and fraud and should never be made lightly and OPS had been adamant they don't do this.  He looked pointedly at me, not knowing that at the first hearing in the Summer I'd offered to drop that accusation if it had meant we could have the case heard that day ''because we accepted we had no evidence to prove a negative'' but it had been the previous Judge who wanted it adjourned and heard face to face anyway and was adamant to keep the point in play. 
OPS WON THAT POINT.

Added £60 - he told OPS that even if he had not dismissed OPS' claim he wouldn't have awarded the £60, mainly because it's not on the signs. 
A WIN FOR US ON THAT TOO.

DDJ White said ''thankyou, goodbye'' and shut his file and I could 100% tell he would not award Mr N's costs.  So, unlike in most cases where I still would have asked, I didn't, then as OPS' witness gathered his things he said ''can I check, no order as to costs?''  The DDJ said curtly: ''NO COSTS''. 

Annoying but the Brighton court area is known to rarely award costs for these cases, even though Mr N had taken a day off work for a planned 2.5 hour middle-of the day hearing.  I don't think he'd have allowed costs even if Mr N had presented his own case but I do think it would have been won on 'inadequate signage' all along.

Redx

Well done you two !! Plus the victim or victims too !!  😄👍

Some good legal arguments and comments answered by DDJ White there

Like stopping is not parking , neither is loading or unloading , or alighting and picking up passengers , but a stop of a longer period is parking , even if sitting in a vehicle for all that time

Some newbies come on here with weird concepts about what parking is , they should be pointed at this thread to see what a judge actually says about parking , POFA , signage and bay markings , grace periods , PCN errors , the £60 or £70 additional charges , etc

Umkomaas

@Coupon-mad, thanks for the very detailed report - as per usual, and well done to @ParkingMad for the copious note taking!  The neutered cockerel must have nightmares when you two get involved! 

Coupon-mad

They also let slip that they know something about me and what I do, that I didn't mention here (won't yet).  But it is giving them more nightmares I think.

nosferatu1001

Yep, more PPCs are running scared, and you're leading the charge C-M 

BrownTrout

sounds like a lovely day out!

D_P_Dance

All of this seems a total waste of time over a parking ticket  When are judges going to see the light and put a stop to this nonsense.

Le_Kirk

Well done @Coupon-mad and @Parking_Mad.  Shame the judges around your area don't read and use the CPRs with reference to costs.

beamerguy

"Stone me" Coupon, I just popped to the shop and came back to find you have set Brighton on fire again  Great work for you and Parking_mad... well done

Let's face it, the Semark-Jullien case is now just a load of confetti and these legals should never rely on a case that said nothing apart from a little ticking off of the Judge.  I really don't think other judges approve 

And OPS blamed DCBL ....... OH WOW ..... cannibalism comes to mind.  DCBL. be on guard ?

And the BPA ........ they will go down in history as the scammers best friend

This is now in this thread
https://forums.moneysavingexpert.com/discussion/6103933/abuse-of-process-thread-part-2/p1?new=1

Coupon-mad

D_P_Dance said:

All of this seems a total waste of time over a parking ticket  When are judges going to see the light and put a stop to this nonsense.

Actually I think that's why the Judge (who said he did his law training 55 years ago) was tetchy, to say the least, then exploded at one point.  He looked like he was thinking it was a total waste of court time.  I agree with you and him about all this.

henrik777

Le_Kirk said:

Well done @Coupon-mad and @Parking_Mad.  Shame the judges around your area don't read and use the CPRs with reference to costs.

I suspect they know but choose not to as is their want. Disgraceful.

Also if they want rid of these claims as their grumpy demeanour would suggest then making the losers pay their dues would help. Getting sued and successfully defending shouldn't cost you, it should cost the loser.