(Update - now court claim, defence attached) - Advice on POPLA comments to operator evidence

Coupon-mad

Coupon-mad said:

https://ln5.sync.com/dl/c731c5c10/thtq36jc-uuxpqtsc-zqed2peu-swj6r48b

The landowner contract that you've seen for the first time, says at 11v that PCNs 'will not' be issued to vehicles where the driver is present and the engine running, for 15 minutes'.  The photos show that the driver is present and the appellant confirms that the engine was running and the car was attended and not left parked with the engine off.  The operator's evidence does not show that the PCN was properly given under the terms of the landowner contract because it was issued within 15 minutes to a car with the driver present and the engine running.  The PCN cannot have been properly served in view of clause 11v from the landowner's contract

Looking back on your thread, I see from that link that it's an OPS case?  Which location?

You are adding all of the above and some photos into your WS?  What are your exhibits?

Which solicitor filed the claim?

Please show us the POC (left of claim form).

EpsomJim

Yes, an OPS case - Marlborough Court, Epsom.
DCB Legal filed the claim, and have just sent through their witness statement (see redacted version here https://ln5.sync.com/dl/76c24e8f0/udbtnp5r-737bj2kn-kcmbw9kn-a97ca3br )

POC (typed as it's written on the form):

'1. The Defendant(D) is indebted to the Claimant (C) for a Parking Charge(s) issued to vehicle XXX at Marlborough Court (epsom), Epsom, Kt19 8ej 2. The PCN details are xx/xx/xxxx, XXX 3. The PCN(s) was issued on private land owned or managed by C. The vehicle was parked in breach of the Terms on Cs signs (the Contract), thus incurring the PCN(s).4. The driver agreed to pay within 28 days but did not. D is liable as the driver or keeper. Despite requests, the PCN(s) is outstanding. The Contract entitles C to damages.
AND THE CLAIMANT CLAIMS
1. £170 being the total of the PCN(s) and damages. 2. Interest at a rate of 8% per annum pursuant to s.69 of the County Courts Act 1984 from the date hereof at a daily rate of £0.02 until judgment or sooner payment. 3. Costs and court fees'

My defence was as follows:

1. Disagreeing with the timestamps on their static images. Putting them to proof on timing, and asking for video footage
2. Car was not parked, it was stopped. There were people in it, and the engine was running. I referenced Jopson vs. Home Guard Services
3. The signage was poor
4. The contract is not made up properly. It isn't signed by two officers of any of the parties, and is initialled by someone else altogether, so it isn't a valid contract
5. Even if the judge disagrees, there is a specific clause in the contract that says a PCN cannot be issued when a car is attended with the engine running until 15 minutes have passed (in this case, the car was stopped for just over 5min).

My WS will expand on each of these points, rebut some of the points made in the Claimant's statement, and then my exhibits will be excerpts from relevant case law, copy of relevant page of contract, photos of site, and any other elements mentioned in the FAQ to attend the latter parts of the standard defence.

Coupon-mad

there is a specific clause in the contract that says a PCN cannot be issued when a car is attended with the engine running until 15 minutes have passed.

Attach a copy as an exhibit or refer to it by exhibit number if they've already appended it...BUT CHECK IT'S THE SAME!

In their WS bundle, have they appended a different version of the landowner contract that omits that clause?  Seen that from OPS before.

Base your WS on the one by @vincentvega27 or the final one just posted tonight by @_blueberry_ and make sure your exhibits include the CEL v Chan transcript.

EpsomJim

Thank you all for your help thus far. I have created my draft witness statement with the relevant aspects from VincentVega27 and _blueberry_'s WS. I have also added in specific comment related to my own defence (deficiency of contract, stopped not parked).

Draft WS here - https://ln5.sync.com/dl/8661e9710/8rfwn9u3-q3wy27p9-a6qgrwgw-3kpypua9 

Just lacking one photo, which I will take tomorrow. Had one, but lost it in-between laptops!

One question - the newbies thread mentions submitting a cost assessment. I can't see much on the gov.uk website about this - is there a specific form I fill in to assess my costs of creating the defence?

Le_Kirk

EpsomJim said:

One question - the newbies thread mentions submitting a cost assessment. I can't see much on the gov.uk website about this - is there a specific form I fill in to assess my costs of creating the defence?

Unless you have a very detailed and complicated set of costs, you only need a few lines explaining what you are claiming for, such as time spent researching, time/salary lost at work due to having to appear in court, travel to court and car park expenses etc.  Normal costs are limited to £95 (although some judges do award slightly more) unless you are claiming unreasonable behaviour by the claimant, which is normally a high bar to cross.

Coupon-mad

It's just a sheet of paper headed up:

Defendant's Costs Assessment - claim no xxxxxx 

Then you write how many hours were spent on the case at £19 per hour.

And £95 for attending the hearing.

EpsomJim

So, I had my hearing on Friday - the claim was struck out, with my (witness) costs being awarded.

Rewind slightly. On Thursday, I went back to the car park to reacquaint myself with the location. A good job I did - OPS have changed the signage. It's not much better, but they have made specific changes to the PCN amounts (much larger, bolder text), and have put a specific additional amount to be charged in the event of enforcement action - previously they just had a very vague 'Enforcement action may incur additional costs that will be added to the value of the parking charge’.

I took a quick photo and sent in a supplementary witness statement, making the point that the Claimant clearly agrees their signage was deficient, otherwise why would they have changed it.

Turned up on the day. Claimant had sent a solicitor's agent, who was perfectly polite. We went in, sat down, and after welcoming us, the very first thing the Judge said was 'well, Mr. xxx, it seems we have a problem with our claim form'. I didn't really have to say much after that!

The case was struck out under CPR 3.4 2(a), due to inadequate particulars of claim. The judge said the claim form had plenty of space to say which term I had allegedly breached (I pointed out I had counted seven different ways I could have breached the terms and conditions according to their signage). She also pointed out that, given I had submitted my defence over a year ago, they could have amended the claim with a N244 form if they wanted to add specifics.

She was asked whether, had the PoC been clearer, the case would have been won. She said it would likely have been lost on signage.

A few other interesting things from the judge:

• She said that she had thrown out two other parking claims for the same reason (inadequate PoC) just that morning.
• She was annoyed that the site evidence photos - that OPS had provided to show the signs - were taken a whole year before the PCN was issued. She said that she sees that kind of thing far too often and, as a result, she looks at such evidence very critically
• She disagreed with my point that the contract was invalid. I might have tried to argue the point more had we come to it, but interesting to note for other similar situations

And that was that! She hadn't received my cost assessment, but I had a paper copy with me. She said the bar for unreasonable behaviour was high, so no costs other than as witness. The other party got my details, and they have to pay me in two weeks. 

I will have a look at the judgment when it comes through, in case there is anything useful for others to reference. If helpful, I can also share the notes I took on each of the points in the witness statement - has all of the relevant references, quotes, and arguments in support for each point.

Finally, thank you for all of the assistance this forum has provided. It really made the difference to have all of your support, and I am incredibly grateful.

Coupon-mad

Yay!  WELL DONE.

ANOTHER OPS ONE BITES THE DUST!

"She said that she had thrown out two other parking claims for the same reason (inadequate PoC) just that morning."

Sounds like CEL v Chan is getting around. 

Bearing in mind these cases that reach hearings have got past an allocating Judge months ago, I believe the Chan case caused this change (whether or not you put it in as an exhibit) and I hope this is the first of many!

Which court and Judge was this please?

EpsomJim

It was Croydon County Court, before Deputy District Judge Waschkuhn.

And, yes, I certainly did put it as an exhibit, as well as the precedents from Luton, Manchester etc. She specifically mentioned Judge Murch's judgment in CEL v Chan - 'the particulars of this claim are exactly the same'. 

Coupon-mad

Love it! Croydon court is a safe bet now.  This news will be spreading among Judges.