OPS/DCB(L) 2xPCN's PAPLOC Now claimform - Machine said Not In Use - Llangrannog (Beach) car park, West Wales

[FTMDave]

I think this may interest you  https://www.bbc.com/news/uk-wales-66398622

BTW, as your hearing is next month, time to draft a Witness Statement.

[ghedgehog]

Thanks for that link Dave, it is indeed very interesting. I will be back from holiday in a week, and will draft a witness statement. Shall I post it here for you to review?

[FTMDave]

Yes, please.

That's what we're here for

And enjoy your holiday!

[lookinforinfo]

ghedgehog in their Contract they say that they will abide by PoFA 2012 and then they don't. Under PoFA Schedule 4 S9[2] [a] it states (2)The notice must—

(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;

Nowhere on their PCN does it even mention Period of Parking. It does mention the arrival and departure times but as that involves driving to get to a parking spot and than later driving from where they were parked to the  exit it is impossible to consider those times as the "parking" period.

Had you not outed yourself as the driver that would have given you a clear win since as the PCN is not compliant with the Act the keeper is not responsible for the charge.

However the pay machine is out of use. The Just app and phone number rarely work as there is no mobile phone signal nor internet connection that appears to work. 

http://llangrannogwelfare.org/wp-content/uploads/2021/04/MS-Report-Llangrannog-Beach-PDF.pdf

As such this is an entrapment site and the scam has been going on for months if not longer. OPS make more money by not fixing the problem and the motorists are unable to pay even though they want to and have the means to pay. As they cannot there is a frustration of contract and the claim by OPS should fail. 

As far back as June 2nd I also said then that the PCN did not comply with PoFA because of them attempting to overcharge on the PCN. 

So twice they have not complied with PoFA yet they are taking you to court because they have failed to provide the necessary financial facilities to make payments.

[ghedgehog]

Attached is my draft Witness Statement, hopefully sufficiently redacted.

The Notice of Allocation, paragraph 6, states "Each party must deliver to the other party and to the court office copies of all documents on which that party intends to rely at the hearing, no later than 14 days before the hearing".

A few questions on this:

1. Do I send these copies directly to OPS or to their solicitors (DCB Legal)?
2. I have already sent the BPA report and the contract between OPS and the car park owner to DCB. Do these need to be sent again? Or just to the court?
3. I take it I have to include everything I might want to refer to, such as Trip Advisor reviews, newspaper articles and my other parking tickets?

 

 

Witness Statement Redacted.pdf

[Andyorch]

10 minutes ago, ghedgehog said:

• Do I send these copies directly to OPS or to their solicitors (DCB Legal)? Solicitors
• I have already sent the BPA report and the contract between OPS and the car park owner to DCB. Do these need to be sent again? Or just to the court? Why have you already sent them ? now is the time for disclosure..file and serve Court /Sols
• I take it I have to include everything I might want to refer to, such as Trip Advisor reviews, newspaper articles and my other parking tickets?  Yes if you have referred to them in your defence/and or Statement

Andy

[FTMDave]

What you've written is very good - but nowhere near enough.

I'm at work at the moment but will look in late this evening.

Well done on getting a first draft done well in advance of the hearing date.

[ghedgehog]

Thanks for your replies, Andy and Dave.

Re "Why have I already sent them", I can't remember exactly, but I was required to at the time they declared their intention to take me to court, I think. I got a whole load of bumph from them too, photos of my car and signage etc.

Re "Not nearly enough", surely quality over quantity? I'll await your more detailed reply, anyhow

 

[FTMDave]

Things like the BPA's report, the TripAdvisor page, etc., need to have an individual exhibit number and you need to refer to that number in your WS,

5 hours ago, ghedgehog said:

Re "Not nearly enough", surely quality over quantity?

Point taken.  Indeed judges appreciate succinct WSs a lot more than pages & pages of tripe - which is what OPS will send.

I still think you can flesh it out a bit.

You should include a bit from the local rag.  I see way back in post 6 you found an article with a photo of the broken machine.

On  https://llangrannogwelfare.org/beachfront-car-park  there are details of two court victories against OPS for this car park.  Scroll down to  Report 3 (Feb 2022)  &  Report 5.  Legally these are known as "persuasive cases" in that the judge is not obliged to take note of them, but can do if they wish.  But if the judge knows that colleagues have chucked out cases elsewhere he/she is highly likely to do the same.  It would be very useful to do some digging and find out the case numbers so you can quote them.  As I wrote on page 1 of your thread there are the names of several motorists who it should be easy to contact through social media, a solicitor, a FB page, a sort of residents association IIRC and the journalists, who are likely to sympathetic, all publish their e-mail address. 

On  https://llangrannogwelfare.org/beachfront-car-park  scroll down to  Advice from Sara Powell, retired local barrister  She is someone to try to contact to get the court victory claim numbers.

You should quote from the BPA report, especially that the BPA's inspector would have got a ticket too.

Did we find anything wrong with the contract?

You should also object to the 2 x £70 Unicorn Food Tax they've made up and added to the claim.

In (4) you need to change "penalty charge" to "parking charge" or "PCN" or "parking invoice" because it's not a penalty charge.

Your Statement of Truth is out of date.  The new one is at the end of every WS here.

[FTMDave]

Thinking about it, I would suggest four sections in the WS.

SEQUENCE OF EVENTS - self-explanatory.

FRUSTRATION OF CONTRACT - self-explanatory again.

BREACH OF CODE OF PRACTICE - read 9.5 here  https://www.britishparking.co.uk/write/Documents/AOS/AOS_Code_of_Practice_January_2020_v8(2).pdf

ABUSE OF PROCESS - Unicorn Food Tax.

 

 

 

[ghedgehog]

Thanks Dave, for your detailed replies. I'll try and put together another draft. In the meantime, a few more questions:

1. I have messaged Sara Powell, but she doesn't have any case numbers. Is it worth emailing the Llangrannog Welfare Committee to see if they'll divulge the ones they understandably didn't want to put up on their website?
2. The Unicorn Food Tax - I presume this is a term you have made up? Does it have a proper name?
3. Aside from that though, the BPA code of practice §24.1b does say they're allowed to add up to £70 in debt recovery fees. Is there something else that contradicts this?
4. Do I have to send paper copies of all the documents to DCBL and the court, or are electronic copies allowed?
5. The "Statement of Truth" was copied verbatim from the Notice of Allocation I received, and it does say words to that effect anyhow

[FTMDave]

1.  Yes, go for it.  They seem to have strange ideas about data protection, but try and see what they say.  They're certainly up for fighting the fleecers.

2.  It was forum regular Ericsbrother who coined the term, so credit where credit's due!  We generally head the section of the Witness Statement ABUSE OF PROCESS or DOUBLE RECOVERY.  Just refer to it as an unfair charge or as double recovery, a very poor attempt to get round the costs cap at small claims.

Have a look at the attachment in post 110 here  https://www.consumeractiongroup.co.uk/topic/421775-vcs-spycar-pcn-paploc-now-claimform-no-stopping-east-midlands-airport/page/5/#comments

If it's not in post 110 it'll be a couple of posts above or below, sometimes the post count goes wonky.

You can lift lots of Alaska101's DOUBLE RECOVERY section.  The fleecers do the same thing in every case.

3.  Yes, Schedule 4 of the Protection of Freedoms Act 2012.  And who cares what a biased trade association says is allowed?  Its is what the law in England & Wales says is allowed that counts.

4.  Either paper or e-mail.  We generally advise to e-mail the court but to use snail mail with the fleecers.  That way they can't get your e-mail address and file lies at one minute to the court's deadline which you wouldn't be able to rebut.

5.  Use the updated version in Alaska101's WS.

[ghedgehog]

Thanks , Dave, for the answers to my questions. Just a quick one - they already have my email address, I submitted my original appeal by email - no other reason to use snail mail then?

[Nicky Boy]

It's important to prevent them using email as Dave's answer to point 4 above.

Send them a letter now, stating that Royal Mail ONLY is to be used for any further correspondence.

Get your free proof of posting and keep it safe.

[FTMDave]

When is the hearing date?

Edited August 16, 2023 by FTMDave
Typo

[ghedgehog]

OK, thanks for that advice. The hearing is on 12th Sept

[FTMDave]

OK, an ideal moment to cut e-mail contact.

NB is spot on.  There are a number of tactical advantages if you force them to use snail mail.

1.  As scribbled above, they can't file lies right on the deadline.

2.  To respect the court's deadline, they generally send out the WS quite early by post, meaning you get to see their case and can ridicule it in your WS.

3.  If they don't respect the court's deadline, again you can include that in your WS.

4.  If nothing arrives you can get an idea if they are going to discontinue or not.

[ghedgehog]

Gosh this is hard work. No wonder most people just pay up.

I have emailed Llangrannog Beach Welfare Committee re Case Numbers, and am awaiting a reply. In the meantime, here's a 2nd draft of the witness statement.

So if I send paper copies of the statement + exhibits to the solicitors, and electronic copies to the court, is it OK to put them all in one ZIP file? And ok to include a link to the BPA Code of Practice, rather than copy the full document?

 

Witness Statement vn 2 Redacted.pdf

[dx100uk]

dont forget doc file have pers info in file info/properties...PDF ONLY!!

Now converted to PDF: Nicky Boy

as for the bpa or any other alike passages you use. quote the line you are using. refer to where the full info is.

and its not hard and most people pay up because they wet themselves thinking they are FINES.

thats is why comprehensive reading up between stages here by reading 20+ a day like pcn claimform threads is oh so very very important......

dx

 

[FTMDave]

That is superb - well done.

Succinct but with three clear, hard-hitting legal arguments.  The judge only has to agree with one.

Like anything it can be tweaked a bit.  I'll look in this evening in my usual Night Owl way when work has been forgotten for the day.

[FTMDave]

I've made some suggestions in red.  See what you think.

My inclusion of the persuasive cases is not very good but is all we have to go on at the moment.

The BBC website article I quote is here  https://www.bbc.com/news/uk-wales-49883876

Witness Statement
One Parking Solution Limited v. <Defendant> (Claim Number <number>)
Below is the Witness Statement of
<Defendant>
<Address>

Sequence of Events
I parked in Llangrannog Beach car park on 03/05/2021 and 06/05/2021, and on both occasions the
only ticket machine showed Not in Use. Alternative means of payment, via an app, was not
available due to lack of mobile signal in this remote location on the West Wales coast.

I always pay for parking, and provide evidence (Exhibit 1) of having done so at other car parks in
West Wales during my holiday that week.

Frustration of Contract
One Parking Solution Limited (OPS) claims I am in breach of contract, by parking in Llangrannog
Beach car park, and failing to buy a ticket. I reject this claim on grounds of Frustration of Contract,
as there was no available means to do so, as explained above.

OPS is well aware of the ticket machine being Out of Use most of the time and of the unreliability
of the mobile signal, as this was highlighted in a report by OPS's trade association the British Parking Association (BPA) in 2019 (Exhibit 2). The BPA's representative went so far as to write: "My own experience confirmed that it was not possible for me to pay for parking and I had no choice but to leave the car park within 10 minutes. If I had taken longer, presumably I would have received a PCN from One Parking Solution".  OPS has chosen not to act on the recommendations of the BPA in their report.

The ticket machine being invariably Out of Use is reported in numerous articles in the local and national press.  To be succinct I include only two, an article in the Cambrian News from May 20th 2021 (Exhibit 3), which describes some of the many cases where OPS have issued a Parking Charge Notice (PCN) to motorists who were unable to buy a ticket, and even some who did, and another published on the BBC website (Exhibit 4).

Planning permission for ANPR cameras was granted to OPS in May 2019.  There were a large number of objections to the application.  Many pointed out then that the internet reception was insufficient to provide a service.  So OPS knew from the start that paying was going to be a problem.  Four years later they are still charging motorists for something that is not the motorists' fault. 

In a number of persuasive court cases judges have indeed ruled that Frustration of Contract applies in cases brought by OPS for this car park.  One such case was in February 2022 and another the same or the next month before Deputy District Judge Henderson sitting at Blackwood Civil and Family Court.

Breach of Code of Practice
Section 9.5 of the BPA Code of Practice (Exhibit 5) states “You must not use predatory or
misleading tactics to lure drivers into incurring parking charges”.

This is exactly what OPS is doing though. The constant stream of complaints on Trip Advisor
(Exhibit 6) about this car park and its operator, is an indication that OPS is deliberately making it as
difficult as possible for motorists to purchase a ticket, so they can demand a Parking Charge, and
indeed have even demanded a Parking Charge from some who did manage to buy a ticket, in the
hope they’ll have thrown it away and not be able to prove they ever had one.  The earliest of these complaints was made in June 2019 and the latest in July 2023.  Indeed the latter is the latest review on the site.  The pattern is always the same - for four years OPS has left a single, Not in Use machine on site which makes it impossible for the motorist to pay,

Double Recovery

OPS has artificially inflated their claim for two £100 invoices to a total of £340, as well as claiming legal representative's costs.  This is simply a poor attempt to circumvent the legal costs cap at small claims.

In Claim numbers F0DP806M and F0DP201T, District Judge Taylor echoed earlier General
Judgment or Orders of District Judge Grand, stating ''It is ordered that the claim is struck out as an
abuse of process. The claim contains a substantial charge additional to the parking charge which it
is alleged the Defendant contracted to pay. This additional charge is not recoverable under the
Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in Parking Eye v
Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an
additional sum which it is not entitled to recover. This order has been made by the court of its own
initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...''

The addition of costs not previously specified on signage are also in breach of the Consumer Rights
Act 2015, Schedule 2, specifically paras 6, 10 and 14.

It is the Defendant’s position that the Claimant in this case has knowingly submitted inflated costs
and thus the entire claim should be similarly struck out in accordance with Civil Procedure Rule
3.3(4)

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.

[lookinforinfo]

I have been looking at the planning permission documents kindly supplied by Peter Parker for the car park.

I notice that the parking contract started in March 2019 yet planning permission for the ANPR was not granted until after the 6th May. So much for observing the Law. 

There is no mention in that application for permission for the signage. Peter Parker suggested that it was not necessary  because the signs were too small for pp to be required. However he figures he quoted for the signage was actually for the size of the payment machine and as I said there was no application for signage permission. And BPA recommend much larger signs should be provided and they would require planning permission. So does Llangrannog have pp for their signs?

I note too in the objections that it was pointed out then that the internet reception was insufficient to provide a service even before the application was granted, So OPS knew from the start that paying was going to be a problem. So two years after and they are still having the same problems but still charging motorists for some thing that is not the motorists fault 

should surely merit the Judge granting you exemplary damages as well as kicking their case out.

[FTMDave]

That is incredibly well spotted LFI. 

Unfortunately I can't get Peter Parker's link to work any more.

However, changes made to the WS above in blue.

[lookinforinfo]

Hedhehog, I know it is a bit of a bind but I have included a case where the Judge ripped apart  the Unicorn extra charge  so much that he decided , to cancel the whole claim to teach OPS not to. overcharge again.

If you include the whole case and the reasoning behind it OPS might decide not to take you to Court since they are already on dodgy ground in some Courts.

file:///C:/Users/ThinkPad/Downloads/G4QZ465V%20Excel%20v%20Wilkinson.pdf

[Nicky Boy]

LFI,

You appear to have posted a link to a file on your own c drive...