WON - Case Dismissed by DDJ! One Parking Solution Vantage Point Brighton - £95 Costs Awarded!

95Rollers

D_P_Dance said:

11. It is denied that the Claim is unfair or disproportionate.

Why?

I'm arguing that Excel v Wilkinson and many countless other judgments against these sort of claims including many I have found involving the Claimant and their legal partners say otherwise! Not to mention the leaders of our country and shadow cabinet members!

patient_dream said:

  Shaunagh says ... "It cannot be accepted or denied" ......  Seems like she has been watching too much of Kavanagh QC

That's what I thought- I did chuckle when I saw that! 😆 in other words it's a posh way of saying they have no evidence as we all know. 

ParkingMad

Frustration of Contract was mentioned during a Parliamentary debate on the Parking Code of Practice:

https://hansard.parliament.uk/commons/2018-02-02/debates/CC84AF5E-AC6E-4E14-81B1-066E6A892807/Parking(CodeOfPractice)Bill

Tim Loughton (East Worthing and Shoreham) (Con)
Does my right hon. Friend agree with my frustration—I have had lots of cases in Worthing—that people legitimately try to pay at the machines and the machines do not work? They try and ring a number, and that does not work and it is so complicated. Or they have to download an app. The average resident of Worthing does not have apps. If the equipment does not work, there should be no basis on which the charge should go through. Does he agree that there should be a system like that?

Sir Greg Knight
If there are a number of payment machines and one of them is not working, that is not an excuse, but if there is only one machine or all the machines are out of order, that ought to be a perfect defence. The company operating the car park has in effect invited the motorist on to the car park to park the car on payment of a fee, and if it is not going to facilitate payment, it should not be able to extract a penalty. Rip-offs from car park cowboys must stop. Most parking operators have nothing to fear from the Bill, but we must stop unscrupulous operators who are undermining the whole sector with their bad practices.

Coupon-mad

PPCs never use trespass and don't need evidence that a vehicle was parked, if they use ANPR.  However the suggestion that a car was parked is rebuttable.

patient_dream

95Rollers said:

patient_dream said:

  Shaunagh says ... "It cannot be accepted or denied" ......  Seems like she has been watching too much of Kavanagh QC

That's what I thought- I did chuckle when I saw that! 😆 in other words it's a posh way of saying they have no evidence as we all know. 

I find it staggering the way DCBL behave , it's like a carry on film ?

They seem to pick up the DREGS of the parking industry and then fail, costing them money

The recent Bargepole report where DCBL cost VCS £1000 sums it up.?
https://forums.moneysavingexpert.com/discussion/6308128/vcs-caught-issuing-pcns-on-public-highway-hit-for-1-000-counterclaim#latest

Don't DCBL have better things to do rather than p*ss around with "cup of coffee" profits

95Rollers

Their WS came through and is riddled with contradiction and rudimentary errors. I've copied and pasted it below for future reference. I've pretty much done mine - its currently 20 pages of text and about another 30 of exhibits including judgments, quotes from judges, photos, maps, contract flaws etc.  Here is theirs - it comes with the undated Arial map with yellow crosses, close up photos, redacted landowner contract and the common theme is that I was "Parked" when there is no evidence to back this up.  I'm going to make a few last minute additions to mine and then send it off on deadline day which is later this week.  Here is theirs to give people an idea of what to expect as sharing is caring. 
_____________________________________________________________________________________________________

ONE PARKING SOLUTION LTD CLAIMANT -V - DEFENDANT

THE FIRST WITNESS STATEMENT OF ************

I, *************, of 95 Arundel Road, Worthing, West Sussex, BN13 3EU, state as follows: -

1. I am an Administrator, employed by One Parking Solution Ltd (“my Company”). I am duly authorised to make this Statement on my Company’s behalf.

2. I make this Statement in support of the Claimant’s Claim and in response to the Defence.

3. The facts and matters set out in this statement are within my own knowledge unless I state otherwise. I believe them to be true. Where I refer to information supplied by others, the source is identified. Facts and matters derived from other sources are true to the best of my knowledge and belief.

1 Parties

4. My Company provides private car park management services to private landowners, to manage the way motorists are permitted to park on their private land. My Company does so by issuing parking charge notices to any vehicle parked in a way the landowner does not permit.

5. The Defendant is the recipient of a parking charge notice (“PCN”) issued by my Company. The details are set out herein. Accreditation

6. At all material times, my Company was accredited by the Accredited Trade Association (“ATA”) known as the British Parking Association (“BPA”). The BPA has a Code of Practice (“Code”) that its members are expected to adhere to, or otherwise face potential sanctions. My Company operates in accordance with the Code.

7. In order to obtain Registered Keeper details from the Driver and Vehicle Licensing Agency (“DVLA”) my Company must be a member of an ATA. It is therefore essential for my Company to comply with the Code. Background

8. My Company issued a PCN (“Charge”) to the Vehicle (“Vehicle”) with details listed below: PCN No. Location (“Land”) VRN Issue Date Reason for Issue OPSA ********** Vantage Point Brighton **************  VRM ******** No payment/ticket

9. At the time of issue, my Company was instructed by the owner of the Land (“Landowner”) to manage parking on the Land. A copy of my Company’s agreement with the Landowner (“Landowner Agreement”) is exhibited to this Statement at “EXHIBIT 1”.

10. I confirm that the term of the Landowner Agreement has been extended by mutual consent of the parties.

2 Contract

11. At the time of issue, my Company was prominently displaying signs on the Land setting out the Terms of parking. A copy of the content of the signs is exhibited to this Statement at “EXHIBIT 2”. The signs formed the basis of the Contract with the driver (“Contract”).

12. The following was a term of the Contract: - “Parking is permitted for:- Vehicles with a valid parking session in place, that has been purchased via the JustPark App/Telephone/Text system for Vantage Point.”

13. In parking the Vehicle on the Land, the driver accepted the Contract, with the license to park being the Consideration. It is evident from the photographic evidence exhibited to this Statement at “EXHIBIT 3” that the driver remained on the site, yet my Company has no record of any payment for the vehicle’s stay, thus breaching the Contract.

14. The Contract provides that a charge is payable by the driver upon breach, with payment falling due within 28 days. 15. A plan of the Land (“Plan”) showing the positioning of the signs is exhibited to this Statement at “EXHIBIT 4”.

16. A copy of the Notice to Keeper is exhibited to this Witness Statement at “EXHIBIT 5”.

Defendant’s Liability

17. Pursuant to the Contract; the Driver was liable to pay the Charge within 28 days of issue.

18. In order to issue a PCN, my Company requests the details of the Registered Keeper from the DVLA to send notices compliant with Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”). Upon receipt of those details, Notice is sent to the Keeper via the post in accordance with paragraph 9 of POFA. The Notice to Keeper is followed up with other reminder notices. Copies are with “EXHIBIT 5”. 3 

19. My Company uses Automatic Number Plate Recognition (“ANPR”) technology on the Land to manage the parking. Cameras capable of accurately recording vehicle registration numbers are constantly monitoring the entrance and exit to the Land. A photograph is taken of each vehicle as it enters and exits the Land. Any vehicle found to have breached the Terms of parking will be issued with a PCN.

20. The Defendant does not dispute being the Driver or Keeper of the Vehicle. My Company reasonably believes that the Defendant was the Driver because they would otherwise have nominated a driver, and therefore the Defendant is pursued on that basis. My Company has complied with POFA and can pursue the Defendant as Keeper in the alternative.

Defence

21. The Defendant was afforded a 28-day period in which they could appeal and I am instructed they did not. The potential next step was clearly communicated to the Defendant in the Notice seen at “EXHIBIT 5”. It is respectfully submitted that if the Defendant genuinely believed the Charge had been issued incorrectly, they would have engaged with the appeals process further.

22. If there was any doubt regarding their liability, the Defendant has had ample time to challenge the Charge or request evidence in support. Despite correspondence being sent to the Defendant by a debt collection agency and a Letter of Claim being issued in accordance with the Pre-Action Protocol for Debt Claims, no challenges have previously been raised.

23. Notwithstanding the above, I respond to the issues raised in the Defence as follows: -

i. The Defendant alleges that the Pay & Display machine was not able to process their payment and they were therefore unable to purchase a valid ticket, they have also admitted that they took the time to read the rules regarding pay and display. The Terms state that “If the machines are out of service, please use the JustPark system to pay for parking. If all means of payment are unavailable please do not park” per “EXHIBIT 2”. By parking or remaining on the site the Defendant was agreeing to the Terms stated. It was clearly communicated to the Defendant how they should proceed should the pay and display machine be faulty and they failed to follow one of the other outlined methods of payment. If the Defendant was unable to comply with the Terms, they could have sought alternative parking or otherwise accept they will need to pay.

ii. The Defendant alleges that they exited the Land and parked elsewhere following the inability to comply with the Terms. Whilst it is noted that the Defendant did leave the Land, the Terms state “All users of this car park must purchase a valid Pay & Display ticket and/or a valid parking session within 11 minutes of arrival” as per “EXHIBIT 2”. The images of the vehicle at “EXHIBIT 3” clearly show that the vehicle remained on site exceeding the 11-minute grace period, therefore; as no payment was received by my Company, it is submitted that the Defendant had breached the Terms of the Land.

iii. The Defendant has alleged that the amount my Company is claiming is unfair and disproportionate. My Company is not seeking more than the original charge as the core debt; however, my Company is now also seeking further costs. Further to this, the Defendant has stated that they are happy to speak to my Company regarding this matter, however, the Notice to Keeper at “EXHIBIT 5” was sent by my Company to the same address that the Defendant confirmed as their address for service. This notice offered the Defendant the opportunity to appeal the PCN, which they failed to do, therefore; it is respectfully submitted that the Defendant did not believe that the PCN was issued incorrectly as they would have made a greater effort to communicate this to my Company.

24. In view of the above, it is my Company’s position that the Defendant breached the Contract as set out in this Statement and as such the Defendant is liable.

Amount Claimed The PCN Amount

25. The amount of the parking charge falls within the “between £50 to £100” bracket quoted at paragraph 111 of Parking Eye -v- Beavis [2015]. It is also in keeping with the guidelines given by the ATA: - “Part 20.5 of the BPA COP states “We would not expect this amount to be more than £100. If the charge is more than this, operators must be able to justify the amount in advance”.

26. The amount charged is set at a rate that covers the operational costs of the parking management scheme and acts as a deterrent, as was found to be appropriate in Parking Eye -v- Beavis [2015]. Contractual Costs 5

27. As payment was not made within the prescribed time, or indeed at all, the additional sum is claimed as a contractual cost pursuant to the Contract which states: - “You agree to pay a ‘Parking Charge Notice’ (PCN) in the sum of £100.00 to be paid within 28 days of issue. This is reduced to £60.00 if paid within 14 days of issue. Enforcement action may incur additional costs that will be added to the value of the parking charge, and for which you will be liable of an indemnity basis.

28. As set out above, the PCN amount is intended to include the ‘operational costs’. It is submitted that debt recovery action is not an operational cost and as such claiming the costs of doing so would not fall foul of the 2015 decision.

29. The sum added is a nominal contribution to the actual costs incurred by my Company as a result of the Defendant’s non-payment and capped at the amount permitted under the ATA Code. My Company’s employees spent time and resource attempting to recover the debt, as well as instructing external debt recovery providers, all at a cost to the Company. This is not my Company’s usual business and, but for the Defendant’s refusal to pay, would not have been necessary.

30. When consider the recoverability of this element of the claim, I respectfully draw the Court’s attention to paragraph 45 of Chaplair Limited v Kumari [2015] EWCA Civ 798 whereby, when considering contractual indemnity costs, it was stated: - “There is nothing … which enable[s] the rules to exclude or override that contractual entitlement and I therefore agree with Arden LJ that the judge had the jurisdiction to assess the costs free from any restraints imposed by CPR 27.14.” CPR Costs

31. My Company claims the claim issue fee, fixed costs pursuant to CPR 45, and the hearing fee in any event.

32. In the alternative to the contractual costs set out above, my Company reserves the right to claim additional costs pursuant to CPR 27.14(2)(g). This claim was issued as a last resort, and given the 6 robust appeals procedure in place, should not have been necessary. It is my Company’s position that this is unreasonable behaviour and it is respectfully requested that the Court considers whether they conclude the same.

Conclusion

33. It is my respectful submission that the Defence is entirely without merit and as such it is requested that the Defence is struck out and Judgment awarded in favour of my Company, payable forthwith.

34. I may not be able to attend the hearing. Should this be the case, I will instruct an advocate to attend on my behalf and ask that the Court accepts this as my written notice given pursuant to CPR 27.9(1). Should I be unable to attend, I request the Court decides the claim in my absence, taking into account this Statement and any other evidence I may file. This paragraph demonstrates my compliance with paragraphs (a) and (b) of CPR 27.9(1).

35. In the event an advocate does attend the hearing, I request their fee be added to the amount sought.

7 STATEMENT OF TRUTH
I believe that the facts stated in this Witness Statement 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. Signed ****************   on behalf of the Claimant Dated ******** November 2021

D_P_Dance

What is the "just park" system?  Does it involve a mobile phone?  If so are there alternative facilities to pay for those withot one/  Is so, is  this not an unfair term in a consumer contract under CRE 2015?  

95Rollers

D_P_Dance said:

What is the "just park" system?  Does it involve a mobile phone?  If so are there alternative facilities to pay for those withot one/  Is so, is  this not an unfair term in a consumer contract under CRE 2015?  

Thanks @D P Dance.  It is a mobile phone/ Internet app.  So you need a smart phone 📱 or if not then maybe set up a tablet or boot up a portable laptop 💻 with access to a Mobile Data plan (as there is no free WiFi there) then hope you can actually get a signal which I couldn't.  I don't believe is a reasonable expectation of persons looking to use a carpark. 

There is a phone number on their sign which is in unembolded text with a letter height of 4mm buried 2/3 the page 248 words in a 42 line epic with nearly a thousand words (average height 4mm) which you'd have to be a real Eagle eye 👁to spot if you've haven't given up before then!  Providing you can get access to it.  the way signs are mainly between knee and ankle for me (when not obscured by Parked vehicles).  If you were disabled, visually impaired or a parent with kids your expected to leave your vehicle and locate and physically attempt to read these signs as no text is viewable from car as per BPA guidelines and the EA I'd suggest. 

But back to what you are saying there is NO alternatives that don't involve mobile phone.  There is not even a payphone close by!  Hell - I even looked for an attendant/ kiosk for Petes sake! What more can one do!?!  

Funnily enough thr same person who is quoting Beavid and other case law here and I previous statements online couldn't provide me these answers when I was speaking to him via email despite submitting multiple WS' which have been presented to court - which they'll be hearing about.

FrankCannon

Doesn't the Beavis judgment say that ALL recovery or operational costs were include in the £85 charge, and that's why Parking Eye don't add on the fake debt recovery costs ?

95Rollers

True. Plus this company and this particular site operate on a completely different business model so the Beavis judgment doesn't really apply as you've pointed out. They must think we are really stupid!  😒 

Coupon-mad

11 minute grace period is odd, given we know the landowners wanted a 15 minute grace period so something is wrong somewhere and the rules are more than confusing and ambiguous if they are not allowing what the landowner wanted.

Did they include the landowner authority?  The last Vantage Point one I saw had stuff about a permit car park operated with patrols, and but nothing saying OPS could operate it with ANPR under a pay and display regime.

The Contract provides that a charge is payable by the driver upon breach, with payment falling due within 28 days. 15. A plan of the Land (“Plan”) showing the positioning of the signs is exhibited to this Statement at “EXHIBIT 4”.

Has your WS got the Google Street View images of the entrance and the distinct LACK of any legible signs inside that entrance?