OPS v Wilshaw AND Parker v South Eastern Railway (1877)

IainRae

It seems clear to me that if OPS puts up signs and drivers do not read them the Parker case found that was just "tough" for the drivers.

In my case, I ignored the signs so that was "tough". Fair enough so far.

BUT the Parker case decision which appears to have been used by the Appeal Court Judge to find in OPS's favour does not deal with parking but, as it happens,  with left luggage left in Charing Cross Railway Station Left Luggage Office and taken in by (presumably) a Southern Railway Employee.

In the Parker case, perhaps the question about whether the Southern Railway and/or its employee had the authority to give out the tickers  (on which there was a disclaimer which was the subject of the case) never came up, or if it did come up their authority was proved.

I am rather confused about how the law appears to be that OPS need not prove it has, or had, the authority to put up their signs. In my case they have produced a "contract" between themselves and the owner of the land which is confusing, contradictory and I believe unenforceable. Recently my case, heard in the County Court, was adjourned until Monday 24 July but after the Judge had appeared to accept that OPS did not need to prove it had the authority to put up the signs. I have other defences to the approx 15 PCNs but wonder if anyone can help with this particular point which appears to allow anyone to put up signs anywhere, give PCNs and sue with impunity

Coupon-mad

I wouldn't worry about OPS v Wilshaw.  It sets no precedent and was a one-off example of the parking industry throwing money at a case and getting a slick barrister to carry OPS' irrelevant and wholly outdated arguments - and the HHJ fell for it.

They got lucky with a credulous Circuit Judge, thoroughly over-impressed by 'barrister royalty' (OPS' hired gun was in the team on the losing side in Beavis at the Supreme Court).  Not only was HHJ Simpkiss seen to be fawning over the barrister's every word but he also thought he was dealing with ParkingEye for the first 10 minutes and admitted that he only had a background in criminal law.  He cheerfully said he'd had ONE WEEK as a Recorder in civil law.

No wonder he was led up the garden path by 150-year old outdated law that even Lord Denning had long since kicked into the long grass in Spurling v Bradshaw, many decades ago!

Anyone with a civil law background would have known about that.

It was painful to watch it manipulated. Some of us watched that hearing by video link.

Never seen anything quite like it!

I had already debunked the ancient railway 'ticket cases' argument at the first hearing (won on every point) but Ms Wilshaw's clueless barrister had clearly not listened to Ms Wilshaw and not read anything in the Defence submissions (failure to prepare: prepare to fail) and had no idea what to say.

He was shuffling the papers that he had failed to read and was opening & shutting his mouth like a fish. I shouted at his minion (behind the scenes) that it was a car crash.  She got a bit annoyed...!  They deserved it and I said to Ms Wilshaw she should have demanded a refund from her barrister (all her costs were crowdfunded by me in one week flat, so she was not out of pocket, but that's not the point).

The main problems with the benefit of hindsight:

(A). Winning the case 'too well' such that the DDJ became too gung-ho in his long written judgment and we should not have repeated his excitable words;

(B). I should have done the second hearing.

Coupon-mad

Recently my case, heard in the County Court, was adjourned until Monday 24 July but after the Judge had appeared to accept that OPS did not need to prove it had the authority to put up the signs. I have other defences to the approx 15 PCNs but wonder if anyone can help with this particular point which appears to allow anyone to put up signs anywhere, give PCNs and sue with impunity.

Fairly easily debunked. Tell us more about your case, is it OPS?  Which car park?

If it wasn't Eastgate Wharf (OPS v Wilshaw) then it can be fully distinguished.  In that case OPS had a lease and were held to be tenants-at-will.  That's partly why HHJ Simpkiss WRONGLY thought no landowner authority was needed but that's certainly not the case at other sites.

Which court? It's adjourned and what does the Order want both parties to do before the next hearing?

I suggest you put in a skeleton argument.

I know lots about OPS cases but just to say: please don't send me a pm; I have holiday soon and rarely have any time to reply to pm's anyway!  I don't handle cases 'off the forum' so do reply openly and keep it all here in this thread for us all to help. 

IainRae

Recently my case, heard in the County Court, was adjourned until Monday 24 July but after the Judge had appeared to accept that OPS did not need to prove it had the authority to put up the signs. I have other defences to the approx 15 PCNs but wonder if anyone can help with this particular point which appears to allow anyone to put up signs anywhere, give PCNs and sue with impunity.

Fairly easily debunked. Tell us more about your case, is it OPS?  Which car park?

Oh yes it's OPS. The car park of the block of flats where I have a 990ish year lease at - BN21 1EU

If it wasn't Eastgate Wharf (OPS v Wilshaw) then it can be fully distinguished.  In that case OPS had a lease and were held to be tenants-at-will.  That's partly why HHJ Simpkiss WRONGLY thought no landowner authority was needed but that's certainly not the case at other sites.

Which court? It's adjourned and what does the Order want both parties to do before the next hearing?

That first hearing was Brighton. On Monday it is Hastings - The Battle of Hastings!

I own 2 vehicles and I have a lot of PCNs for each and so 2 cases v OPS.

My lease does allow parking for "short periods" so I was sort of banking on that originally.

The first case was adjourned for me to produce the lease and for the 2 cases to be consolidated

I suggest you put in a skeleton argument.

A skeleton argument?

I know lots about OPS cases but just to say: please don't send me a pm; I have holiday soon and rarely have any time to reply to pm's anyway!  I don't handle cases 'off the forum' so do reply openly and keep it all here in this thread for us all to help.

PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top of this/any page where it says:
Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD

Report

Coupon-mad

The first case was adjourned for me to produce the lease and for the 2 cases to be consolidated.

OK, have you now supplied your lease to Hastings court and OPS' solicitors by email, attached to a Witness Statement signed under a Statement of Truth?

Skeleton Arguments are explained in the Newbies thread 2nd post.  You'd need to email one this week to assist the Judge - and to help you!

IainRae

The first case was adjourned for me to produce the lease and for the 2 cases to be consolidated.

OK, have you now supplied your lease to Hastings court and OPS' solicitors by email, attached to a Witness Statement signed under a Statement of Truth?

I have sent the lease but without Witness Statement signed under a Statement of Truth

but will do so immediately

Skeleton Arguments are explained in the Newbies thread 2nd post.  You'd need to email one this week to assist the Judge - and to help you!

I'll do this immediately also   Thanks!!

Coupon-mad

OK as you are so tight for time I suggest you just do a WS and just hope this is accepted by the Judge (in any event, use the below as your hearing Crib sheet).

I hope you didn't whizz off a WS last night without asking us to check it first.

Stop!  This is a FOUR FIGURE claim.  You must prepare well and be up on the facts about landowner authority.

BUT YOU MUST EMAIL IT (two PDFs: one is the signed WS and the other is your lease) TO HASTINGS COURT AND TO OPS' SOLICITOR IN THE MORNING!

Do not wait for more advice. No delaying.

See the NEWBIES thread for what the statement of truth is and what a WS looks like - but you are not allowed to introduce new evidence after an adjourned case, so please don't try to copy our LONG example WS. 

Just copy the style of the WS headings and intro, and the statement of truth.  Obviously it must be signed & dated.

In the middle of your WS, put a SHORT submission saying something like:


{Usual headings,

claim numbers x 2.
 etc}


WITNESS STATEMENT FOR THE HEARING AT TIME / DATE

1.  I am NAME of ADDRESS and I am the Defendant in this matter.  I am inexperienced in court procedures and am making every effort to comply with the order of the court.  My defence is repeated; it is my position that I am not liable for any parking charges or 'costs/fees' enhancements, and following the adjourned hearing I will say as follows:

2.  As an authorised resident at LOCATION I append a copy of my lease, as ordered by the learned Judge at the Brighton hearing that was adjourned on DATE.  I did already send this lease document in as ordered, but have just been advised that it should have been exhibited in a witness statement with my signature & date under a statement of truth, hence this submission now.

3.  It remains my position that my lease supports my defence; I have primacy of contract and the Claimant cannot interfere with my rights.  In this case there are multiple instances of predatory ticketing within minutes, with no grace period allowed.  My lease includes (at the very least) an implied or actual right to parking and/or loading / unloading, an entitlement to pass and re-pass over common areas, a right of access with or without a vehicle and reasonable enjoyment.  The Claimant cannot purport to sell me daily licences to park at £100 per day, since it doesn't own the land, is offering nothing of value to me and likely doesn't have that authority.

4.  Landowner authority was raised as a disputed matter, which took me by surprise - the Claimant's argument is patently incorrect based on DVLA rules - and I felt ambushed by a case I know nothing about (OPS v Wilshaw). I have since found out that in 'Wilshaw' the Claimants were - very unusually for a private parking operator - leaseholders, and OPS were held to be 'tenants-at-will' at Eastgate Wharf, Lewes.  This is certainly not the case at this location.  Indeed, I have a lease and OPS does not and there is nothing in my case to suggest that OPS are 'tenants-at-will' at my home address. 

5.  Where a parking firm has no title in the land and says it is working as an agent on behalf of the landowner, written landowner authority is a strict requirement of the DVLA KADOE agreement, and it is improper and plainly wrong for this Claimant to argue otherwise.

6.  This is not news to this Claimant, because it is a mandatory section in the BPA Code of Practice (reflecting the KADOE rules without which a Parking Firm cannot obtain DVLA data at all) - see paragraph 7:
https://www.britishparking.co.uk/write/Documents/AOS/AOS_Code_of_Practice_January_2020_v8(2).pdf

7.  This position is mirrored in the new incoming DLUHC statutory Code of Practice linked below - see Annex G - again this is not news to this Claimant; this statutory Code was first published in February 2022 and - having overcome temporary withdrawal for Judicial Reviews - is due to be reconfirmed this week ('before Summer Recess' according to the Minister):
https://www.gov.uk/government/publications/private-parking-code-of-practice/private-parking-code-of-practice

8.  This Claimant is also familiar with section 5: 'Consideration and Grace periods' and section 9 'Escalation of Costs' which I hope and trust that the DLUHC will have reiterated in their imminently promised 'draft Impact Assessment' by the time of the hearing on Monday 24th July.  Even if not, it is preposterous and unconscionable for this Claimant to suggest that it has paid or incurred 'debt recovery fees' in multiples (per PCN) amounting to a four figure enhancement, over and above the already increased parking charges. The court fees are also exaggerated due to the Claimant wasting the court's time and duplicating costs by filing two claims.

9.  Interest was also exaggerated and miscalculated in the two claims, having been calculated as if the unconscionable 'escalation of costs' was validly incurred/paid and somehow applied from day one of one of the PCNs.  I take the point that enhancing their claim to interest on either impermissible sums or on an incorrect basis is reason enough to disallow the claim and award my attendance costs for two hearings.


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.

Defendant’s signature:

date:

IainRae

Thanks for this. Is now aboutr 03:00 and I must drive to the other and of the country but will do as you say tomorrow

Thanks again

Iain

Coupon-mad

OK and you will need to prepare better for this hearing than the last one, especially given this is 15 PCNs.  Huge money at stake.

IainRae

G R E A T !  Coupon-mad and BIG THANKS

Coupon-mad

IainRae said:

G R E A T !  Coupon-mad and BIG THANKS

Come back at the weekend to find out if the DLUHC has published its analysis of the rip-off fees - because if they have you will want to print 3 copies to draw the Judge's attention to why this greedy Claimant and their horrifically aggressive and 'claim enhancing' bulk litigators cannot have an added £70 x 15 as some sort of fake 'extra legal fees'.

it is unjust enrichment, unconscionable and ludicrously disproportionate.  Use those words at the hearing. 

Obviously also print off 3x your WS too, in case OPS pretend they didn't receive it and the lease. Take the original.

Have a ring binder of everything. Including OPS' own WS as you need to keep up when they refer the Judge to page numbers in their submission.

Call the Judge 'Judge' - not sir/madam.

At any hearing, it can go either way so preparation is KEY.  This is four figures at stake so needs you to be ready. Know your stuff and be ready to point the Judge to the DLUHC's draft Impact Assessment & analysis if it is published in time!