Stoke Abbot Road - OPS - Gladstones

nicestrawb

Hi all,

Firstly, on behalf of everyone, thanks so much for the hard work you put in fighting these cowboys, it's awesome what you guys do!
So almost 3 years ago I used the Stoke abbot carpark in Worthing, was parked for 8 minutes and had no idea it was a pay and display until getting the letter through a week later. I've already responded to the THIRD letter before claim as below, last 2 from gladstones lol...

My previous response was as below;

Thank you for your letter dated 23rd March 2020 informing me that you have issued a letter before claim in relation to the above matter which you have already previously raised and then chose not to pursue. 

On the basis of the information provided I deny liability and have decided that I will defend any action against me in court.

As I had previously notified you and your client, I will also be charging costs for the time it has taken me so far in replying to what I believe to be unreasonable demands and threats of court action. Since you and your client have already issued 2 previous letters before claim in relation to this matter which you subsequently chose not to pursue, I am now having to go through this process a third time in relation to the same matter. I had already advised you that my claim for costs up to 25th Nov 2019 comes to £382.32 plus travel costs.

Since you are now forcing me to respond to a third letter before claim this is taking up yet more of my time for no good reason, so I am having to engage in various administrative activities taking another 3 hours in total. I will therefore be adding another £90 to that figure.

If I am required to appear in court to defend my case and am successful, then my total counter claim for my time to date (my costs) will be £472.32 plus travel costs.

If the matter is taken to court and they find in your clients favour then I will be claiming for the lost time that it took me to deal with the two previous claims which you ultimately failed to pursue due to yours and OPS’s own internal administrative failings, which wasted a significant amount of my time. My charges in relation to my time lost would be £120. I will also be asking the courts to take into consideration the fact that you have severely failed to meet your obligations with regards to pre action protocol timings (as detailed at the bottom of this letter), in any financial award that is given to you or your client.

The grounds for defending my case are set out below;

 

1.       Frivolous and repetitive claim, forcing me to repeatedly respond, incurring personal time and cost for actions which you have already chosen not to pursue.

You have already submitted a claim against me for the above matter and failed to adhere to the rules governing the pre-action protocol. You then chose not to pursue the matter. You now appear to have raised the same matter with me again at a later date, which I believe prejudices the case. I have already received two separate letters before claim without any action being taken (although the initial letter before claim received directly from you client was never received at the time). I believe this is also frivolous. If the matter is taken to court  and upheld, then I will be claiming for the lost time that it took me to deal with the previous claims which you ultimately failed to pursue due to your own internal administrative failings.

 

2.       Failure to adhere to pre action protocol timings

The pre action protocol requires that the claimant on request, should provide complete information to the respondent within one month of requesting it. In this case it took a total of almost five months for the claimant to provide the requested information. In the event that the courts rule in favour of the claimant, I will request that the courts take this into account in terms of the money awarded.

23rd March 2020 – You sent me a third letter before claim (the first being directly from your client, which was never actually received and the second which you issued but chose not to pursue due to administrative errors on your part). The letter requested I pay or reply within 30 days or legal proceedings were likely to have been issued. I replied as requested on 30th March.

30th March – I responded informing you that I required a restriction of data processing and the case be put on hold. I received no reply from you.

2nd April – I received incomplete information from your client in regards to the above matter.

17th April – I contacted you once again pointing out that I had not had a reply from you, and that I could not do anything without having full possession of the facts

22nd April – You finally replied, almost one month after my initial response, advising that no further issues had been raised that you haven’t already addressed and that you had nothing further to say in attempt to settle the matter.

22nd April (same day) I replied advising you that I still needed complete information in order to respond properly to your claim.

27th April. I chased again advising that I had not had sufficient information.

5th May You finally replied still with incomplete information.

7th May I responded advising that you had failed to supply all of the requested information, failing to provide any reasons for failing to provide details relating to the time of the alleged contravention and providing inadequate excuses for failing to provide proof of authorisation from the land owner.

27th August. You responded with the requested information, almost five months after the initial request for further information. As per the protocol, the maximum time allowed for this is one month.

The above timeline also clearly shows that I have made every effort to resolve the issue with you directly and promptly but you have so far failed to adhere to your obligations as the claimant.

3.       Poor signage

Several signs were facing away from the direction of travel that I entered the carpark, facing away from the driver and could not be seen when entering the carpark and parking on the right.

Signs are incorrectly positioned in the diagram you supplied, which is misleading as I would and could not have seen them as they were facing away from me and another sign was obscured by a car. This is particularly relevant as I had always know this carpark to be free to park in and had no reason to suspect otherwise until I had entered the shop entrance and had been advised by the shop that we had to pay for parking and they were closing soon.

 

Below is an image of the carpark, taken from the direction I entered the carpark and also showing the bay on the right that your own photographic evidence shows I left to the right and rear of the blue car. On the left are 2 parking signs which are inexplicably facing away from where I had parked. There is no way I could possibly have seen them. There are 2 very small signs under the main signs which I did not see, again due to the fact that I had to leave the car via going backwards to the right of my own car, to the entrance of the bed shop (which is shown on the corner of the image below).

The same scene taken from the opposite direction, clearly showing that the signs appear to be deliberately facing away from the entrance of the carpark and would not be visible to me on leaving the car by the rear.

 Image showing the overall scene. My car was parked in the same position as the silver car. I left through the front door and went backwards, directly to the bed shop entrance on the corner. Also notice how even in perfect weather conditions, the pay and display signage on the ground cannot easily be seen when entering the carpark. This is the direction from which I entered.

 A sign approximately 1ft from the ground which is almost impossible for anyone to see unless they are approaching the carpark from the opposite direction to the direction that I approached from.

 

4.       Signage not visible due to weather conditions

The sign on ground was not visible due to the exceptionally wet conditions at the time in question (it was raining very heavily). This was particularly exacerbated by the poor uneven road surface combining with rain-water to cause significant and varied reflection. OPS’s own images clearly demonstrate this. I have included one example below from the images sent by OPS. It’s notable that 13 images were attached in the bundle purporting to show the area that sign on the ground was located. It is not readable in a single one of them. It’s unreasonable to suggest that it would have been clearly visible on entering the carpark, particularly from the direction of travel I was coming from.

 

5.       Misleading representation of signage positions, direction and height.

Below is what the claimant states is the position of the signage, showing each position with an orange cross, with my annotations overlaid (all signs and direction they are facing are shown as red arrows). The schematic is inaccurate, does not show direction of signage on the day in question or the height of the signage. All other images that the claimant has included in their bundle, taken in the form of photographs in order to back-up their version of the layout of the carpark were clearly not taken on the day in question since they were taken on a sunny day, not heavy rain. They also contradict the direction of the signs shown in google street view images that I have included in this bundle, which are dated June 2018, just 2 months before the alleged incident.

 

The sign to the lower left is in completely the wrong position (shown by a red box). It is at least another 10ft further up than is shown in the image below (shown by a red arrow above it). This is entirely relevant as it misleads anyone that sees this diagram into thinking I may have seen it, when from the position I was parked and walked from, I cannot have seen it (my car position shown as a blue box, and the direction I walked from the car shown as an orange line – all confirmed by the claimants CCTV footage). The lower right-hand sign (purple arrow) is also very difficult to see as it is on a low wall below knee height. Again, relevant as the direction I entered the carpark from (shown as the light blue line) meant that it would have been impossible to see it on entering the carpark as it would have been facing away from the direction of travel. The sign in the top left was facing away from me. The 2 signs in the top right were obscured by a car parked in front of me, again show in the CCTV footage.

 6.       Parking machine hidden by car parked in front of mine.

The parking machine and sign were hidden behind a car parked in front of me. I could not see it and had no idea it was there.

nicestrawb

 7.       No contract between parties.

I cannot have entered into a contract with the claimant as I had always previously known that the carpark was free and had no reason to suspect otherwise, from the above points it is clear that I did not see any of the signage. I only found out that parking charges were in place on entering the bed store. In addition, the numerous images taken on the day show no sign of me having seen or noticing any signage.

The BPA Code of Practice clearly states that:
18.1 “A driver who uses your private car park with your permission does so under a licence or contract with you….In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start.”
Bearing this paragraph in mind, there was categorically no contract established between the driver and One Parking Solution. To draw on the basic guidelines of contract law for a contract to be effective the offer must be communicated. Therefore, there can be no acceptance of an agreement if the other person is without knowledge of the offer. Having researched the area, it is apparent that the initial entrance signs in the car park are poorly located and the terms and conditions illegible. Indeed, the images taken by One Parking Solution of the alleged incident even show the signs facing away from the entrance, and from the space in which the driver stopped upon entering, therefore making it impossible to have seen from the vehicle prior to or just after entering.

As a result, the driver did not have a fair opportunity to read about any of the terms and conditions involving this charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case. In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry.

This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge’ existed. Here, the signs are tiny and poorly placed – particularly to a driver entering the site from the direction I came from. The signs are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car. In addition, inconsistent content, inconsistent aesthetic and poor positioning of signs means that a driver could easily have been misled by the terms and conditions of one sign whilst being under the impression all terms had been communicated, only for another sign elsewhere on the site to have further terms and conditions.

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on the majority of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:
"the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operator’s signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal."
From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

8.       Time limitation and reasonable grace period.

The car was stopped for less than 4 minutes and this was simply to enquire in the bed store, leaving my partner and baby in the car so that they did not have to go out into the rain. I was informed in the bed store that there were now parking charges in place and they were closing soon anyway, so I quite reasonably decided to leave. There is a 10-15 minute grace period in which a person can decide whether they wish to park. I fell well under this time limitation.

The British Parking Association (BPA) state that a ‘grace period’ is entitled to any driver entering a car park, in order for the driver to read the signs, determine if they wish to accept the terms and conditions, check for correct change, etc. and if not, leave without penalty.

 9.       Partner (named driver) was still in the car so car was not left unattended or driverless.

The named driver of the car was left in control of the car with my baby daughter while I enquired in the shop. OPS images clearly show this. As the named driver is in control of the vehicle it is wholly unreasonable to come to the conclusion that the car is therefore “parked”.

 10.       Failure to disclose or establish when the alleged contravention occurred.

The “Parking Charge Notice” from OPS states the alleged contravention period as “N/A”. The generally accepted definition of “N/A” is “not applicable”, hence I believe their own documentation is clearly stating that there was not a contravention. At no point have OPS offered any explanation to this, despite my pointing this out to them. I have repeatedly asked OPS and their legal representative to make it clear as to when the alleged contravention occurred but they have so far failed to do so. I believe that it is highly unreasonable to now claim, almost 2 years later, that there has been a contravention.

Le_Kirk

Have you received a N1 claim form from Northampton CCBC?

nicestrawb

Their response yesterday;

In respect of your request for costs; we do not accept to pay any sums which you claim are owed to you. Our position is that no sum is owed to you, due to the fact that you have not provided us with a service nor do we engage or employ you for any services. We are simply communicating with you in an effort to settle the matter without the need for court proceedings to be issued; this is in line with the Pre Action Protocol for debt claims and is encouraged by the Courts.

 

We have replied to your points as below;

 

1. Please note we have not submitted a claim for this matter. We are pre-proceedings and the amount outstanding is £160.00. The reason why our Letter Before Claim has been re-issued is to ensure compliance with the Pre Action Protocol.

 

2. As my colleague mentioned in her previous email dated 8th October 2020, 'no further action has been taken as attempts are still being made to resolve the matter without the need for further action. Additional time to allow your response has been provided and no prejudice has been suffered as a result.' We are doing what we can to ensure you receive a reply as quickly as possible but we do apologise and we are very grateful for your understanding.

 

3. This site is small therefore it is not difficult to see the signage in place. As a motorist, it is your responsibility to check for signage upon parking and subsequently exiting your vehicle if you wish to avoid a charge. As evident from the photographic evidence, it is clear you didn't and therefore the charge was incurred and a debt is owed to our Client. In support of our Client's position, Lord Justice Roch observed the following in the Court of Appeal case of Vine v London Borough of Waltham Forrest 2000;

 

'Once it is established that sufficient and adequate warning notices were in place a car driver cannot be heard to say that he or she did not see the notice. Were that to be the law it would be too easy for car drivers who trespass with their cars to evade the only method land owners have of stopping the unauthorized parking of cars in parking spaces or parking areas on their property' 

 

4. Please refer to point 3.

 

5. Please refer to point 3. We also attach screenshots of Google Maps which are dated in July 2018; one month prior to the date your parking charge was incurred. The images show the signage as detailed in our Client's evidence which were in place at the time your vehicle was parked.

 

6. Please refer to point 3.

 

7. Our Client rejects your argument that no contract was formed.

 

It can be said our Client grants a contractual license to all; this license allows anyone permission to be at the site. You (as were all the motorists) were offered to comply with the normal conditions (as clear on the sign), or park otherwise than in accordance with the normal conditions and incur a £100 charge. The acceptance was at the point you decided to park, having read the sign, and your consideration was the promise to pay £100 for the privilege of parking outside the normal conditions. Our Client’s consideration is the provision of parking services.

 

The rules of interpretation require simply that the parties knew of their obligations to one-another. You were offered to use the land and thereafter either follow the rules and park for free or in breach of the rules and agree to pay £100. The rules here just so happen to be that to park, you were required to purchase a pay and display ticket on arrival.

 

Our Client will also rely on the case of ParkingEye v Beavis (2015). In that case it was accepted as an established principle that a valid contract can be made by an offer in the form of the terms and conditions set out on the sign, and accepted by the driver’s actions as prescribed therein.

 

In the above regard, we hold that a valid contract was formed between the driver (you in this instance) and our Client and the charge owed is outstanding.

 

Whilst you allege to not have had a fair opportunity to read the terms and conditions, as explained it point 3 it is abundantly clear that you did not make any attempt to check the car park for signage and therefore this argument is also rejected. Had you have taken the time to observe the signage, you would have been aware of the parking regulations and the repercussions as a result of non-compliance.

 

In any event, the signage location, size, content and font has been audited by the British Parking Association (BPA) and had the signage been an issue, this would have been addressed and rectified at this stage.

 

8. The BPA says that our Client needed to provide a 'reasonable period' for a driver to decide whether they're going to stay or go in the car park. As rightly detailed in your correspondence 'The British Parking Association (BPA) state that a ‘‘grace period’’ is entitled to any driver entering a car park, in order for the driver to read the signs, determine if they wish to accept the terms and conditions, check for correct change, etc. and if not, leave without penalty.' By your own admission, you admit to parking your car to use the shop facilities having not read the signs and therefore you agree to the terms as set out on the sign.  9. We draw your attention judgment of Vehicle Control Services Ltd v Nick Idle and Vehicle Control Services Limited v Damen Ward considered by His Honour Judge Saffman (2018), whereby it was found “as regards to the reason for the stoppage and its duration, he argues that the breach occurs when the vehicle is brought to a standstill. It does not cease to be a breach simply because the car is stationary for a short period. It is the process of bringing the car to a standstill that creates the breach. In the absence of a provision which sets out the consequences for breach, such as there is here, then the duration of the breach maybe a factor in deciding what damages are payable but it does not alter the position that there has been a breach. I remind myself that in Vehicle Control Services Ltd v Crutchley the motorist for no more than 30 seconds and the observations by Lord Neuberger in Beavis.” 10. We attach a copy of our Client's Notice to Keeper. We accept the notice states the contravention period as 'N/A', however the same notice also states that you are able to view all photographs via their website which would detail how long a period your vehicle was parked. This information was readily available to you and therefore it cannot be said that our Client failed to provide this. 11. Any contract entered at the time of the in incident was between you and our Client and therefore the doctrine of 'privity' applies. In view of this it is irrelevant what our Client's agreement with any third party contained. In any event, we confirm that our Client did have such authority, but given that the contractual arrangement between our Client and their Client is commercially sensitive, it will only be disclosed should it be necessary for a Court to view it. In support, the cases of VCS v HM Revenue & Customs (2013) and Parking Eye v Beavis (CA 2015) where it was made clear that a contracting party need not show they have a right to do what they have promised in the performance of a contract nor is (in the case of a parking operator) the agreement between Operator and Landowner of any relevance. 12. We would be grateful if you could confirm what evidence you have to base these assumptions of illegal use of cameras. In any event, the signs detail that ANPR cameras are used which you would have been aware of had you taken the time to read them. 13. This also bares no relevance to the parking charge. We have supplied evidence which shows a clear breach of the parking rules 14. In the case of ParkingEye v Beavis 2015 (The Beavis Case), the decision of the Supreme Court made it clear that charges are not penal nor do they have to be reflective of the parking operator's loss. 15. The charge sought is industry standard and is set at a rate so as to suitably satisfy our Client's legitimate interest. In the Beavis case, it was held that an £85.00 charge was neither extravagant nor unconscionable. The Accredited Trade Associations of which parking operators must be a member in order to apply for DVLA data prescribe a maximum charge of £100 and our Client's charges are within this level. We also refer you to the BPA code of practice Part B 19.5. This confirms the following; ‘We would not expect this amount to be more than £100’ And in Part B 23.1(b) which confirms; ‘…a reasonable sum may be added for the debt recovery fees. This sum must not exceed £70’ The signs on site also state that 'Enforcement action may incur additional costs that will be added to the value of the parking charge, and which you will be liable on an indemnity basis'. and further, our Client's notices state 'Failure to pay this charge may result in enforcement action which may include debt recovery and/or court proceedings which may incur additional costs'. You have been made aware of the additional costs since the parking charge was incurred and therefore if you disagreed with the amount, then you should have paid the parking charge at the lower rate when you had the opportunity to. 16. Please refer to point 14. We trust the above answers your questions and you will now make payment of £160.00. You can pay by using one of the following methods;

nicestrawb

My response yesterday;

As I have already advised you, I have provided my reasons for defending my case and will vigorously defend any action against me in court.

The only thing I would add regarding your most recent communication is that in my opinion, the screenshots you have provided back up my assertion that the signage was inadequate and that much of the signage seems to be inexplicably facing away from the area I parked in. It's very difficult to understand why the signage is facing away from where I parked in such a way as to not be visible but the result was that I had no idea it was a pay and display car park until after the event, therefore it's impossible for any contract to have been formed.

I believe the current layout of the car park signage is entirely inadequate. I am also well aware of other cases involving this exact location relating poor signage which were won by the defendent versus One Parking Solution, therefore I believe a precedent has already been set in this case.

I would be more than happy to test this in court in combination with all of the other points which I have already raised.

Regarding use of CCTV, the images I have provided dated June 2018 show a sign (very poorly positioned, hence I didn't see it at the time) which refers to CCTV camera's being in operation and to refer to parking notices for information. I have also attached an image of the camera that was used, which clearly shows it to be a CCTV camera.

I've also attached a couple of pictures dated Sept 2020 and Jan 2021 which show that the car park has since been shut down and CCTV has now been removed. I think this is not a coincidence.

I have nothing further to add. I see nothing in your letter below that makes me think otherwise.

nicestrawb

Sorry it's so long, this has been going on for literally years now so I've had a lot of time on my hands! Also, I've just realised that they are claiming I was parked for 8 minutes but their photo's seem to show it as just over 4 minutes. I guess if the timescale is important this could be relevant (although I did leave the carpark on foot and come back). I've just gone back to them to ask them to clarify the timings.

Le_Kirk

But .............. have you actually had a claim form (N1) from CCBC at Northampton?

nicestrawb

I assume that's the official "you're going to court" letter? If so, no. They keep pushing but don't seem willing to take it any further for some reason... so far at least...

Le_Kirk

Le_Kirk said:

But .............. have you actually had a claim form (N1) from CCBC at Northampton?

nicestrawb said:

I assume that's the official "you're going to court" letter? If so, no. They keep pushing but don't seem willing to take it any further for some reason... so far at least...

In which case, just read the standard defence template (one of the five announcements on the first page of the forum) so that you are prepared if and when you get the claim form.  Also read and remind yourself of the procedure to submit the AoS - all in the NEWBIE sticky.  From your (long) story you should be able to pick out a couple of technical/legal arguments for paragraphs 2 & 3 in the defence, which should be short and to the point and save the rest of the story for the witness statement.

nicestrawb

Great, thanks for your help. I will have a look in anticipation of getting the form....

Coupon-mad

No, reply:

Dear OPS, 
Your proposed claim is doomed, given the findings of HHJ Simpkiss in the case your company appealed recently. 

My car was not there for longer than ten minutes and that was a key finding in the case that I fear you have overlooked, in your excitement.

yours,