OPS - Vantage Point

Coupon-mad

There isn’t a standard template WS in the newbies and the best one recently was he one by @jrhys but we’d want you to add the Recorder Cohen case to your exhibits.  See the thread I started about that (I wish people would stay on the forum not disappear for months and miss updated advice).

And please, please make a difference and do the Government Consultation before it closes on Friday morning.  

The MHCLG are asking the public about the level of parking charges and the fact PPCs add fake costs. I imagine you will have an opinion about that... 

Also see the Group Claim thread if your PCN was since December 2018.  A solicitor is looking to represent victims on a no win no fee basis v the DVLA for alleged DPA 2018 data breach. 

Both are threads on page 1 or 2 right now, both in your interests to do this week!

fishsoup

I would appreciate if anyone could critique my witness statement. 

I have used the Jrhys WS as the basis but have amended to fit my situtation, I've added in the Cohen case as mentioned.

I was intending to add some photos from the car park of the poor signage by the machine, as well as the Cohen case. 

I have one more week before I need to submit, I have not seen the Claimants witness statement.

Thanks in advance. 

Sequence of events and signage:

3. I am familiar with this car park and have used it a number of times over the last few years, I was taking my son to a birthday party at the nearby Sammi Circus.

4. On that day I parked on the open air level, which I have always done when parking at Vantage Point. I went to purchase a ticket with cash from the ticket machine, as I have always done previously, please check the claimant’s records for evidence of this. I was not on the lookout for parking signs, since there had never been any problems with the ticket machine previously.

5.  I did not see any signs during my entry to, stay at or exit from the parking area stating that if you do not have access to a mobile phone to purchase a ticket you may not park here because the ticket machine was not in working order. As such I did not have my mobile phone with me and was unable to purchase a ticket in an alternative manner. There are no clear signs next to the ticket machine (exhibit XX-01) stating of any parking restrictions if the ticket machine is not working, and I can only reasonably conclude that there were no such signs.

The Beavis case is against this claim

6. This situation can be fully distinguished from ParkingEye Ltd v Beavis [2015] UKSC67, where the Supreme Court found that whilst the £85 was not (and was not pleaded as) a sum in the nature of damages or loss, ParkingEye had a 'legitimate interest' in enforcing the charge where motorists overstay, in order to deter motorists from occupying spaces beyond the time paid for and thus ensure further income for the landowner, by allowing other motorists to occupy the space. The Court concluded that the £85.00 charge was not out of proportion to the legitimate interest (in that case, based upon the facts and clear signs) and therefore the clause was not a penalty clause.

7 However, there is no such legitimate interest where the landowner is not disadvantaged by the motorists’ stay, as in this case where I parked in a manner later approved of by the Claimant (as per paragraph 9). As such, I take the point that the parking charge in my case is a penalty, and unenforceable. The absence or concealment of signage and varying acceptability of parking areas are precisely the sorts of 'concealed pitfall or trap' and unsupported penalty that the Supreme Court considered in deciding what constitutes an unconscionable parking charge.

8. Even taken as an extreme close-up, with no proof as to its visibility from the parking area, the sign that the Claimant has presented as evidence has vague/hidden terms and a mix of small font, so as for it not to allow the opportunity for anyone to become acquainted with its terms. As such, as specifically outlined in Example 10 of Schedule 2 of the Consumer Rights Act 2015, the signage constitutes an unfair customer notice, and, pursuant to s62 of the same act, any terms would be considered incapable of binding any person reading them under common contract law. Consequently, it is my position that, even if I had seen signage of the sort presented by the Claimant – which I didn’t as it was not present – no contract to pay an onerous penalty would have been seen, known or agreed.

Abuse of process – the quantum

9 In addition to the disputed Parking Charge Notice claim amount of £100, the Claimant has added a sum of £60 that is disingenuously described variously as 'debt collection costs', ‘additional charges levied to cover the cost of recovery’, ‘additional administration costs’, ‘debt recovery costs’, ‘initial legal costs’ and ‘recovery costs’. The added £60 constitutes double recovery and the court is invited to find the quantum claimed is false and an abuse of process as was found by District Judge Claire Jackson (now HHJ Jackson, a Specialist Civil Circuit Judge) in Excel vs Wilkinson: G4QZ465V, a similar case in which £60 had been added to a parking charge, heard in July 2020 (the transcript of which is exhibit XX-04). The Judge concluded that such claims are proceedings with 'an improper collateral purpose'. Leave to appeal was refused and that route was not pursued.

10. After hearing this ‘test case’, which followed numerous Judges repeatedly disallowing the £60 sum and warning parking firms not to waste court time with such spurious claims, Judge Jackson at the Bradford County Court went into significant detail before concluding that parking operators (such as the Claimant in this case) are seeking to circumvent CPR 27.14 as well as breaching the Consumer Rights Act 2015. Others, like Judge Hickinbottom of the same court area, have since echoed Judge Jackson’s words and struck out dozens of cases. Judge Hickinbottom recently stated ''I find that striking out this claim is the only appropriate manner in which the disapproval of the court can be shown''. 

11. The fairness of terms where no sum is specified, was recently ruled upon by Recorder Cohen QC, sitting at the Central London County Court, in the case of Chevalier-Firescu v Ashfords LLP [2021] F83YX432, where it was held that a term stating that the appellant would be held liable for costs on the indemnity basis was improper in purpose and thus unfair pursuant to s62 of the CRA, as it created imbalance between the parties.  Such a ‘contractual indemnity costs’ clause sidesteps the Civil Procedure Rules and cannot be recoverable, absent unreasonable conduct by the Defendant.

Recorder Cohen held that: ''it does seem to me to be clear that this clause has an effect which is unusual, perhaps even abnormal in effect'' and at [13] he summarised the two issues arising from this remarkably similar clause to that in this case, which had the object or effect of creating a more generous basis of costs recovery than there would ordinarily be, in the case of both default judgments and defended cases, whereby consumers stood to be penalised as if CPR 27.14(g) applied.

Redacted Landowner Contract

12. The Claimant has appended a redacted ‘Customer License Agreement’ which has little or no probative value and which offends against the rules of evidence. The ‘Client’ signatory of the ‘Agreement’ could be anyone, even a stranger to the land, and the Claimant provides no evidence that the ‘Client’ is the landowner.

13. It is also clear that the document has not been signed by two Directors, nor by one Director in the presence of attesting witnesses, and as such cannot – according to the Companies Act – be considered a validly executed contract. The network of contracts are key in these cases, since the parking charges are argued to be contractual and the authority to sue visitors must flow from the landowner, not an agent.

14. In the recent Court of Appeal case of Hancock v Promontoria (Chestnut) Limited [2020] EWCA Civ 907 the Court of Appeal are now clear that most redactions are improper where the Court are being asked to interpret the contract. https://www.bailii.org/ew/cases/EWCA/Civ/2020/907.html

Ref. paras 74 & 75 ''...The document must in all normal circumstances be placed before the court as a whole. Seldom, if ever, can it be appropriate for one party unilaterally to redact provisions in a contractual document which the court is being asked to construe, merely on grounds of confidentiality...confidentiality alone cannot be good reason for redacting an otherwise relevant provision...''

My fixed witness costs – ref PD 27, 7.3(1) and CPR 27.14

15. Upon confirmation that attendance at any hearing would result in a loss of leave, I will ask for my fixed witness costs of £95 as specified by CPR Practice Direction 27, 7.3(1), and due under CPR 27.14(2)(e).

CPR 44.11 – further costs

16. As a litigant-in-person I have had to spend considerable time researching the law online, attempting to correctly interpret the legal terminology, preparing my defence and preparing my witness statement. On top of this, due to the threatening and harassing language of the Claimant’s automated letter chain (behaviour akin to that acknowledged by Lord Hunt of Wirral – “Highly undesirable practices in the private parking industry range from threatening letters sent to motorists, poor signage in car parks and aggressive debt collection practices”.) I have had to endure the emotional strain of regularly reassuring my partner of our safety and of the integrity of our credit records.

17. Therefore, I am appending with this bundle a fully detailed costs assessment (exhibit XX-05) which covers my proportionate but unavoidable further costs and I invite the court to consider making an award to include these, pursuant to the court's powers in relation to misconduct (CPR 44.11). In support of that argument, I first draw the Court’s attention to the fact that the Claimant was aware (exhibits XX-01 and XX-02) that there was no signage at the entrance to the parking area and no signage visible from my vehicle, and that any terms or conditions of parking outlined on any elsewhere-placed signage could not be binding. Such matters, forming a significant part of the Claimant’s business model, can be reasonably considered to be within the Claimant’s expertise, and the Claimant could have avoided this claim.

18. Secondly, given the specificity of the conclusions of Judges Jackson and Hickinbottom, and their direct relevance to this Claim, the Claimant’s business model and that of the Claimant’s legal representation, pursuit of the inflated sum including double recovery in full knowledge of such conclusions is clearly vexatious.

Jenni_D

Para 7 ... in this you refer to (as per paragraph 9) - para 9 of what? (You can't mean para 9 of your own WS as that doesn't appear to have any relevance)?

Redacted Landowner Contract ... have you seen one to be able to make these points? (If you haven't had their WS yet then I'd be surprised if you have seen it). Are you putting those points there on the basis that they'll probably send a redacted one?

Coupon-mad

You haven’t actually said that the machine wasn’t working, or what happened when you put coins in!

Sorry to say this but this is what a Judge may well think too: I’ve no idea why people think they can stay in a pay and display car park when they’ve been unable to pay and there is more than one machine/ more than one payment method.  

Also, being as Brighton is my home ground I’ve no idea why anyone would ever use Vantage Point car park.  It stinks, it’s dark, wet and dirty and based on the useless BPA code of Practice, OPS will issue you a ticket anyway if you take more than 5 minutes to pay.

Anywhere with ANPR cameras is not a place to safely pay and display, whereas on street is safe and you can’t get a ticket if a machine is not working.  There are plenty of places to park in Brighton that are not horrendous private car parks.

In future, seek to park on street where you are safe from these ‘cowboys’ (NB: MSE, that’s a word used in recent years by Martin Lewis and this year by the MHCLG when talking about why the new Code of Practice is coming in).

I suggest these changes to the witness statement:

4. On that day I parked on the open air level, which I have always done when parking at Vantage Point. I went to purchase a ticket with cash from the ticket machine, as I have always done previously.  (Delete the rest of this para entirely and instead add what happened!)

fishsoup

Thanks - yes I need to tidy up the standard stuff below and delete the landowner part as I haven't seen the claimants witness statement.

Thanks @Coupon-mad, I will amend accordingly. Is there anything else I could add to make it stronger?

I am concerned that I will have to pay the full cost, this is such a stress and time consuming effort, and one I wish I didn't have to continue with but I've gone this far.

Yes they might be cowboys but surely they wouldn't be wasting their time if they generally only win 1% of the time. I've read loads of damning stuff about OPS, so why do they continue if they lose cases??!!

Le_Kirk

fishsoup said:

5.  I did not see any signs during my entry to, stay at or exit from the parking area stating that if you do not have access to a mobile phone to purchase a ticket you may not park here because the ticket machine was not in working order. As such I did not have my mobile phone with me and was unable to purchase a ticket in an the alternative manner. There are no clear signs next to the ticket machine (exhibit XX-01) stating of any parking restrictions if the ticket machine is not working, and I can only reasonably conclude that there were no such signs.

As well as the edits mentioned by @Jenni_D and @Coupon-mad, suggest you edit #5 as it does not make sense.  It reads as if you didn't take your mobile phone because there were no signs.  Another issue is that if there were no signs telling you to pay using a mobile, how do you know about being able to buy a ticket that way?

Fruitcake

If you have received the claimant's WS, please show it to us. Only redact YOUR personal data. If you have only received a copy of the alleged landowner contract then please show us that exactly as you received it.

With regards to the contract you should read and refer to Sections 43 and 44 of the Companies Act 2006. They are both short so you need to understand them and be able to explain to a judge what they mean.
S43 refers to a simple contract that only requires 2 signatures.
S44 refers to the valid execution of documents. Your interpretation in your WS is not quite correct as a Company Secretary is also an authorised signatory according to the Act.

Upload everything to Dropbox or similar and post the link here. If you need to, change https to hxxps.
Make sure the account is not in your real name and does not contain any other personal information such as holiday snaps. Believe me it has happened.

KeithP

fishsoup said:

Yes they might be cowboys but surely they wouldn't be wasting their time if they generally only win 1% of the time. I've read loads of damning stuff about OPS, so why do they continue if they lose cases??!!

That's 1% of court cases.

There are plenty of motorists who will pay as soon as a Parking Charge Notice drops through their letterbox - especially before the fourteen day discount disappears.

There is another great swathe of motorists who will buckle under the threats directed at them by debt collectors.

You can also imagine that many motorists will pay up when they see official documents from Her Majesty's Courts Service.

I have no idea of the figures, but you can probably see that a large proportion of motorists will have paid long before any sniff of a court hearing
Even if they lose every court case, they still make a hefty profit.

Coupon-mad

They win 1% against us lot, and people assisted here who follow all our advice.  We see discontinuances a lot, and usually win, if a case goes to a hearing.

Outside of this forum they get lots of default CCJs and beat unprepared people.  Very much worth it for them, given the roboclaim firms don’t even charge them a fee unless they win.

ParkingMad

Here are links to some other threads about Vantage Point which might be helpful -

https://forums.moneysavingexpert.com/discussion/comment/78288607#Comment_78288607