Football story - nothing to do with Wayne Rooney

November 17, 2016, 5:25 am

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Guest blog.

Bradford County Court on 14th Oct 2016. C8DP67P5 Excel Parking v Mr TS

Todays Match of the Day Kicked off at Bradford County Court.

Mr TS received a PCN for Cavendish Retail Park and, after the usual letters from BW Legal, headed for Bradford County Court. 

Mr TS was not the driver. Mr TS had prepared his defence himself and was well prepared for the Elliott v Loake shenanigans BW Legal would try. 

The game kicked off and, from the start, the solicitor appointed for BW Legal appeared to be struggling for fitness and was possibly a late substitute as she appeared to be unfamiliar with the case notes, but she gamely played on. 

First attack was the usual PoFA compliance issues with Excel’s Notice to Keeper, which saw the Claimant’s solicitor concede the point and a goal. Motorist 1 – Elliott v Loake 0 

Next up was Elliott v Loake. The claimant’s solicitor took a swipe at “reasonable assumption” stating Elliott v Loake established this principal, but Mr TS stole the ball and headed for goal, pointing out it was completely irrelevant as it was a criminal case that had nothing to do with parking and that the verdict had turned on what Griffith LJ said was “ample evidence”. The Claimant had provided no evidence at all to establish the keeper was the driver. 

The ref agreed and awarded a goal, informing Mr TS that EvL had been distinguished from the current case. Motorist 2 – Elliott v Loake 0.

On the restart, the claimant’s solicitor complained that the defendant knew who the driver was but refused to reveal who it was to them. But, by now, Mr TS was playing a blinder. He robbed her near the halfway line, pointing out there was no legal obligation to name the driver and, even if he did know who the driver was, why would he hand over their personal details to be harassed in the manner he had to a private company?

The ref agreed and awarded another goal. Motorist 3 – Elliott v Loake 0. 

Deep into injury time, the ref then looked at the Claimant’s solicitor and asked “Anything else?” By now the situation was dire for the Claimant and, in a last throw of the dice claimed a pitch invasion had occurred and asked the ref for an adjournment. But he was having none of it, telling the solicitor that they had plenty time to prepare their case, they were not changing their witness statement now, and awarded the game to MrTS with costs of £110. BWLegal were as sick as a parrot. 

Final score: Motorist 3 – Elliott v Loake 0 

Happy Parking

The Parking Prankster

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Mr Pickup's fun day out

November 17, 2016, 9:14 am

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Excel v Mr L. 17/11/2016 Skipton

Mr Pickup from Elms Legal was back in action today at Skipton  Court.

This was another hospital pass of a case from BW Legal. The defendant was not the driver, and as the notice to keeper was not compliant with the Protection of Freedoms Act 2012 sch 4 (POFA) conditions, there was no keeper liability. Mr Pickup therefore had no realistic chance of winning.

In court it quickly transpired that although Mr Pickup regularly handles parking cases, he had no real grasp of the law surrounding POFA, so he asked the judge if he could bail out and confer with a more knowledgeable colleague outside. The judge allowed this.

He returned with a list of comments which he alleged were from an online forum. He asked the judge if he could cross examine the defendant under oath and use the forum evidence. She refused the use of the evidence, but did allow a cross examination. His cross examination went badly wrong and ended working in the defendant's favour as everything was brought back to PoFA. Mr Pickup was clearly embarrassed and quickly gave it up as a bad job.

The judge dismissed the claim, summing it up as follows, saying it boiled down to two things.
1. Either the claimant could PROVE the defendant was the driver... which they obviously couldn't.
Or
2. They could comply with PoFA to pursue the defendant as the keeper... which it was proved they did not.

The defendant was refused costs.

Mr Pickup is now notching up an impressive record of losses against unrepresented litigants in person. It is not recorded whether his trademark signature of storming out of the courtroom on losing was put to good effect today.

The defendant was straight back in court as Excel had filed multiple claims against him, all for the same car park. This second claim was brought by Excel directly. No doubt wisely deciding not to trust Mr Pickup with both claims, had hired a second representative.

This hearing was adjourned as the court ran out of time. The claimant was given permission to submit new evidence including print outs from online forms and are also allowed to amend their witness statement.

Prankster Note

A key influence to the judge was Henry Greenslade's comment about no reasonable presumption, which she mentioned several times. Henry Greenslade is a barrister highly experienced in both private and public parking charges and is a former Lead Adjudicator at POPLA.

Mr Greenslade had this and more to say on the subject of keeper liability in the 2015 POPLA Annual Report.

However keeper information is obtained, there is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. Any evidence in this regard may therefore be highly relevant 

This is available on the POPLA website at this link, pages 12-13.
https://popla.co.uk/docs/default-source/default-document-library/popla_annualreport_2015.pdf?sfvrsn=2

It is therefore well worth including this in any evidence.

Here are the details from the impact assessment the Government conducted before enacting the regulations, available at this link.
http://www.parliament.uk/documents/impact-assessments/IA12-004F.pdf
.

What policy options have been considered, including any alternatives to regulation? Please justify preferred option (further details in Evidence Base)

The following options were considered: 
Do nothing (base case).

(1) Keeper Liability for parking charges incurred regardless of whether s/he was the driver at the material time as long the keeper has the option to name the driver in charge of the vehicle at the relevant time.
(2) Make it a criminal offence for the keeper to refuse to name the driver in charge of the vehicle.

It is the Department's view that option (1) is the most appropriate option to achieve the stated aims and objectives. Option 2 was discarded because criminal sanctions were deemed to be a disproportionate sanction to a parking charge on private property, which is essentially a civil dispute between two private parties. Therefore, no summary and analysis page has been produced.

Happy Parking

The Parking Prankster

BW Legal incompetence in pursuing double dip case

November 17, 2016, 11:34 am

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C8DP22F0 Excel Parking v Mr Bush 16/11/2016 Wakefield, in front of DJ Dodd

In 2014 Mr Bush briefly visited an Excel car park (Providence Street Wakefield) to drop off his friend. He stayed only long enough to do this, and then drove to another car park (Trinity Walk) where he parked up, ran some errands and ate some food. He then returned to pick up his friend, reversing in the car park entrance (but not actually entering the car park), and left.

He was therefore a little surprised ten days later to receive a parking charge for staying two hours in Excel's car park, from 18:12 to 20:15.

He appealed to Excel, but they turned this down and then harassed him for two years before eventually filing a claim.

Mr Bush did not retain his ticket, but did pay by card. His bank sent him a letter timing the purchase at 20:05

The important point to note is that Trinity Walk is a barrier controlled car park. The only way you can get a ticket is by driving a vehicle up to the barrier. The only way you can get your vehicle out is by putting the ticket in a pay machine.

This is therefore pretty conclusive proof that Mr Bush was parked in Trinity Walk, and was not parked in Providence Street.

Mr Bush made many efforts to get Excel to drop the case, but all these fell on deaf ears.

The Hearing

Excel Parking handed the claim management to BW Legal, who used Elms Legal to provide an advocate for the claim. They in turn used a free agent, Miss Devans-Tamakloe, a barrister in search of chambers.

Miss DT was handed a bit of a hospital pass by BW Legal, as they did not give her Mr Bush's witness statements and only gave 1 piece of the 19 pieces of his evidence. Nevertheless, she managed a creditable performance.

Mr Bush had a lay representative from the British Motorists Protection Association, Mr PP.

The hearing was in front of DJ Dodd, a former associate of LPC Law. Ms Dodd explained the procedures for the benefit of the lay representative, arranged for photocopies of the witness statement to be provided for Miss DT and agreed with both parties there were no legal issues to consider. The claim was purely on the facts.

Miss DT then took the floor, working through the witness statement of Sohail Ismail, a litigation executive employed by BW Legal. Most of M. Ismail's statement was not relevant, being a BW Legal template witness statement. There was a section attaching Mr Bush's defence but sadly most of that had been copied and pasted from another claim, and therefore was entirely irrelevant. The only statement addressing the actual defence accused Mr Bush of lying using fact his brake lights were on.

All parties scrutinised the picture of the car exit for some time, looking for the brake lights, but were unsuccessful. Miss DT hazarded a guess that there was a white spot which might have been a brake light. DJ Dodd was not convinced.

Miss DT then explained that what the witness actually meant to say was not that the brake light was on, but that the reversing light was off. Mr PP objected that as the witness was not there they should go with what they had said, not what they might have meant to say.

Miss DT rested her case.

Mr PP asked if could point out several other anomalies in the witness statement but DJ Dodd refused. As there was no witness present, there was nobody to cross-examine.

Mr PP then took Mr Bush through his witness statement. DJ Dodd was critical about the presentation of the evidence as it was not numbered and therefore very hard to find. Additionally, some had suffered in the printing process and was not readable, as the court had printed the emailed evidence pack in black and white.

A key moment occurred when Mr PP whipped out the picture of the car park Mr Bush had actually parked in. DJ Dodd asked what the relevance was. Mr Bush, under questioning, explained the picture showed this was a barrier car park and you could not get in unless you took a ticket to raise the barrier, and could not get out unless you put the same ticket in the payment machine, and paid the due amount. The due amount matched the amount confirmed by the bank.

Mr Bush's evidence contained a lot of information regarding ANPR inaccuracy and DJ Dodd ruled Mr Bush could not be questioned on this as he was not an expert witness.

Mr PP then summed up by stating Mr Bush had produced a credible and consistent version  of events backed up by evidence and that Excel had produced nothing to address the accuracy of their ANPR and it was up to the claimant to prove their claim. DJ Dodd stated that was up to her to decide.

She then made her judgment.

She stated the claimant's witness statement apparently showed the car exiting and leaving. However, it was signed not by an employee of the parking company but by an employee of their solicitor and so she would give it due weight on that basis. Moreover, Mr Bush had made ANPR accuracy his only defence from day, and the witness statement did not address this in the slightest.

Mr Bush on the other hand, was a credible and honest witness, and claimant had done nothing to address the purchase of a ticket in another car park. Mr Bush had also put a huge amount of work into his bundle.

She therefore preferred Mr Bush's version of accounts and the claim was dismissed.

Costs

Mr Bush asked for his lay representatives travel costs based on unreasonableness. DJ Dodd refused to accept Excel were unreasonable in pursuing the claim.

Mr Bush asked for a day's lost wages as he had to take a holiday. DJ Dodd replied that if he took a holiday there were no lost wages, that he had not brought along any proof of what he earned and in any case only needed a half day off. Lost wages therefore were refused.

Printing costs were refused.

Mr Bush's travel and parking costs of £5.25 were allowed, to be paid by 30th November.

After the hearing DJ Dodd commended Mr Bush on the quality of his evidence, stating that that was the only case she had seen today where the defendant even bothered with a witness statement.

She also mentioned she had found for the defendant in a similar claim the previous week where Excel had claimed the defendant has parked while they were actually in a restaurant several miles away - the car park has two exits and is used as a rat-rn to cut off a corner.

Mr Bush stated he would now never use Excel's car park and would always use Trinity Walk, which was cheaper, safer, well-lit and more reliable.

Prankster Note

Lessons to be learned

• Number the pages of your evidence and provide a contents page
• Bring along a wages slip to show proof of wages
• Send a schedule of costs to the court ahead of time
• If your claim is block-listed then this would be a good reason to take a whole day off

Happy Parking

The Parking Prankster

MP Chris Evans states courts must learn from Scotland over ‘unfair’ county court judgments

November 18, 2016, 10:55 am

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Parking companies have been abusing the court process in droves and getting default judgments against people who did not even know there was a claim against them. Financially responsible people have problems moving home and even getting jobs.

As huge numbers of parking charges are not valid (around 85% of appealed charges are cancelled according to statistics provided by ParkingEye and POPLA) this means that people who have done nothing wrong have their lives ruined by irresponsible parking companies.

The Law Gazette has reported that the MoJ are now investigating the problem.

The Prankster suggests the following solutions

• Parking company code of practice to require a confirmation of address if no reply is ever received
• A one year time limit on parking charge claims
• Courts to send out claim forms by registered mail
• Set-aside fee to be set to the same as claim fee (£25) when no claim form was received
• Courts to strike out parking claims where the particulars of claim fail to meet practice directions

The Prankster suggests that motorists contact their MPs to put forward their suggestions for modifying the claim process.

Happy Parking

The Parking Prankster

AS Parking discontinue claims

November 19, 2016, 1:07 am

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AS Parking have discontinued a number of claims. It is not known if this is because they realised they had been deceived by Gladstones Solicitors into making the claims, or whether both they and Gladstones always realised there was no prospect of success in the first place. Having had their bluff called by the motorist they have chickened out to save the hearing costs and costs of hiring an advocate to represent them.

M. L - Perran sands Holiday Park C6GF9K50
M. M- Tywarnhayle Square C6GF9K51
M. F - Tywarnhayle Square C6GF9K91
M. J -  Beach car park, C6GF9K15

If you have had a claim discontinued by AS Parking please contact The Prankster or comment in the notes below.

Happy Parking

The Parking Prankster

UKPC hit for £352 for discontinuing residential case

November 21, 2016, 7:49 am

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UKPC v Mr X 21/11/2016

Court Report from Mr X

UKPC had a representative there, who was there for another case. He said before we went in that he wasn't there to represent the case but to make sure it was discontinued, so I told him I was applying for costs and gave him the schedule. He ran around a bit looking anxious, and got his big book of CPRs out which he was thumbing through furiously while I sat there as calm as you like, which was nice to see.

Went in and had to do very little. The judge had obviously been through everything thoroughly and made it quite clear he thought it was a good job they discontinued because they had no legitimate claim. He asked if I'd incurred costs so I gave him the schedule. He said it all seemed fine to him, and asked their guy if there was any reason not to award them to which he responded that there was no automatic order of costs after discontinuance on small claims.

The judge shot him down straight away with that wasn't the point, the point was whether they had been reasonable or not. Their guy tried to say the discontinuance was because they received the lease, and had I submitted that earlier they wouldn't have continued, to which the judge said I submitted it exactly when I was required to and there was no reason why I should have done so earlier, and they should have made an effort to check whether they had a genuine claim before proceeding.

The judge awarded my full costs of around £350, told their guy to go back and "tell [his] masters such behaviour won't be accepted in future". He then asked him if he was representing any other cases today, to which their guy responded "not in front of you" and the judge replied "good".

Game over.

Prankster Note

Many parking companies jump into residential parking enforcement without doing the proper due diligence before signing contracts with the management agent.

The legal situation is that if your lease gives you rights to park then you have primacy of contract and other parties cannot unilaterally introduce terms and conditions.

If a parking company requests your data from the DVLA in such situation then it is likely there is a data protection breach, as they had no right to request your data from the DVLA in the first place. It is up to the parking company to do the proper due diligence. You may be able to make a claim against the parking company in such a situation. You should also complain to the DVLA that the parking company are issuing tickets on land where they have no rights to do so. If the DVLA have not put proper steps in place to audit parking companies and keep your personal data safe then you might also have a claim against the DVLA.

The right to claim lasts for 6 years, so if you have received or paid out a parking charge in such a situation you can claim for your money back. If the parking company requested your data from the DVLA you might also be able claim for a data protection breach.

Gladstones ask for £5 million

November 22, 2016, 9:27 pm

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Woefully incompetent legal firm Gladstones Solicitors have been sending out letters claiming millions of points for disputed parking charges.

In the latest letter they are claiming £5 million.

By a process of psychic communion with the universe The Prankster estimates the most they will charge this year is in the region of £31 million, and in fact may well be exactly £31,122,015.

Gladstones are famous for being an incompetent bunch of shysters who don't even know how to file a claim properly. Normally, this would be a disadvantage for a firm of solicitors, but they seem to have found a willing audience in parking companies. Now it seems they are moving their incompetence into the field of debt collection.

The letter does not give any contact details to write to either Debt Recovery Plus or Gladstones, so the Prankster suggests that the email addresses of info@drpl.co.uk and  enquiries@gladstonessolicitors.co.uk are used.

Happy Parking

The Parking Prankster

Parking signs get a winter jacket at ASDA Fleetwood

November 22, 2016, 9:39 pm

≫ Next: VCS lose in court. Keeper not liable for driver's actions

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Parking signs at ASDA Fleetwood have all been fitted with nice jackets to keep them cosy for the winter

The Prankster understands this is because they have no advertising consent. It is a criminal offence to display signs without the correct advertising consent.

Wyre Planning Enforcement Officer Charlotte Parkinson has informed Asda of the requirement to get the necessary consent, and ASDA has covered the signs until the process is complete.

ASDA use ParkingEye to mismanage their car parks. The Prankster has been in touch with a ParkingEye employee who unofficially told him that ParkingEye's policy is to save money by not bothering to apply for advertising consent for their signage. They only apply if they get rumbled and the council investigates. Although this employee does not officially speak for ParkingEye, the evidence up and down the country would suggest this is true.

Happy Parking

The Parking Prankster

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VCS lose in court. Keeper not liable for driver's actions

November 23, 2016, 7:21 am

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C8DP70P3 VCS v Mr A. 23/11/2016 Birmingham Court

This was yet another case concerning the unreliable ticket machines used by Vehicle Control Systems. Mr A had let his daughters borrow his car and they went to park at Albert Street. VCS claimed they had not purchased a ticket. The daughters thought otherwise. Mr A informed VCS he was not the driver and asked for photographic evidence so he could determine which daughter was the driver. VCS did not provide any. They filed a claim against Mr A through BW Legal.

The hearing

In court BW Legal's representative clearly explained the provisions of the Protection of Freedoms Act and the requirements of paragraph 9(2) needed to establish keeper liability. As these were not met, keeper liability did not apply.

The case then turned to whether Mr A was the driver. As he was not, the claim was dismissed.

The court did not need to consider the matter of the reliability of the ticket machines.

Prankster Note

BW Legal has a strategy of taking keepers to court when they know keeper liability does not apply and when they have been informed the keeper was not the driver.

This does not seem to be working out very well for them.

They quote the case of Elliott v Loake which they claim is case law which states that the keeper is presumed to be the driver. Regardless of the merits of that case, a moments thought would convince any competent legal practitioner that cannot be true. The Prankster has many times driven vehicles where he was not the keeper, and has many times allowed other drivers to use vehicles where he was the keeper. Most other motorists/keepers will have had similar experiences.

As it happens, Elliott v Loake has no merit whatsoever in this application, as in that case there was compelling evidence that the owner was the driver, and the appeal judge stated so in his judgment.

In my view there was ample evidence which justified the magistrates in this case arriving at the conclusion that this man was driving his blue sports car on the night when it collided with the stationary BMW

The only applicable case law is that if there is ample evidence that the owner was the driver, then the owner is likely to have been the driver.

Legal practitioners like William Hurley and John Davies who do not understand this basic principle should not be practicing law, and should not be allowed to run a parking trade association.

As it happens the use of Elliott v Loake in this way has been debunked in subsequent criminal cases, where it is established that the burden of proof is on the claimant to prove the defendant was the driver, and it is not enough to merely state that the defendant was the registered keeper.

Happy Parking

The Parking Prankster

Excel lose. Judge upholds machine failure

November 24, 2016, 5:48 am

≫ Next: Horizon Parking - you've been Gladstoned (again)

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Excel v Mr F 23/11/2016. Manchester

Mr F purchased a valid ticket, but Excel claimed he did not. There have been a sizeable number of cases where Excel's machines failed; this was yet another.

On the Monday evening three days before the claim Excel tried to ambush Mr F by sending new evidence in the form of a list of all the registrations which had paid for valid tickets. The list was exceedingly useful because, due to data protection regulations, every single registration was redacted.

The Hearing

Mr F had prepared carefully, but this was not needed. On the day the judge only gave him the chance to describe his version of events and the 'rep' from excel (with no solicitor present) to state her case.

The evidence they tried to hijack him with on Monday evening ultimately was their downfall and backfired on them with the judge using this to state that the chances are that Mr F's registration was among the redacted registrations and that he therefore paid for a ticket.

The claim was dismissed.

Happy Parking

The Parking Prankster

Horizon Parking - you've been Gladstoned (again)

November 24, 2016, 8:45 am

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C5GF17X2 Horizon Parking v Mr J. Guildford 23/11/2016

This was a case where a vehicle was parked several times without a permit in a little used car park at the University Of Surrey.

This signs clearly forbade parking without a permit, but for some reason Horizon Parking were badly advised by Gladstones Solicitors that the signs offered a contract to park, and so they claimed against Mr J. for a contractual charge.

The Hearing - court report from Mr J

I have to say the Judge seemed very fair and picked apart anything said by both parties consistently.

Start:
Claimant alleges that Defendant parked his vehicle on 3 occasions.

Particulars of Claim are brief, as they often are with online claims, but included dates, amounts, etc.

Defendant submitted his initial defence, documents and witness statement. This mainly focused around putting the claimant to proof that he was the driver and then covered many other legal points. Unfortunately, the defendant’s WS was not received by the Claimant and the deadline for this was incorrectly set for only 7 days before the hearing. The Claimant was given 10 minutes to read through a copy of the WS, then all parties were all happy to proceed.

Both witnesses were available for evidence – Defendant and Director of claimant Horizon Parking.

Claimant put to the Court to consider whether Defendant was the driver, rather than consider PoFA / whether they could pursue as registered keeper.

Defendant has said:
I am not the driver
Claimant should not presume this
Other people drove the car on various occasions
Puts claimant to proof on him being the driver and pursuing him as such

Judge advised she cannot presume Defendant is the driver, but has to use all of the evidence to find a fact based on balance of probability.

Claimant has stated they carried out all steps to warn driver and allow someone to appeal. Judge satisfied Claimant served PCNs on car (evidenced by photos), satisfied letters sent to RK (evidenced by copies). Defendant accepts received letter before action from Gladstones, unsure if received some or all of others from Horizon, but advised he would not respond anyway to an unknown company he has no relationship with. Claimant is entitled to write to DVLA RK address, cannot be criticised for that. Judge says it is likely that Defendant was aware of who Horizon are and why they were writing, and therefore could have written back. Judge agreed Defendant had chosen not to and found his answers less than clear.

Judge considered all circumstances including the fact this is my vehicle, that Defendant had not stated he was not the driver in my defences and given unclear answers today, the fact that he had the opportunity to respond and chose not to; these factors influenced her decision. Judge said he should have at least denied he was the driver by responding to the PPC and in his witness statement.

Because of this, and putting the onus on Claimant, plus having no evidence that he was elsewhere, the Judge found that Defendant is the driver as a fact.

Therefore the Court must consider his other points which are relevant to enforcing a contract on a driver, but they can ignore PoFA on this occasion.

Signs/Contracts: 
Found photos and signs are clear from both Defendant’s and Claimant’s photos. This binds a relationship between them. The Consumer Rights Act cannot help defendant here as the signs are adequate.

Forbidding nature of sign: 
Judge finds this is a forbidding notice, not an invitation to park on certain terms. It disallows other parking. Could be construed as only applying to permit holders, not others who are forbidden from entering the area. IF this is the case, it only offers to permit holders. This therefore means this is a landowner issue for trespass. The agreement between PPC and landowner does not allow for Horizon to collect for trespass issues. This notice forbids any parking at all except by permit holders and is not an offer at all. Does not make a contractual offer, so they cannot claim against me for this.

Excessive Charge:
Judge cannot find a £70 charge excessive considering findings of other hearings. However Judge says that additional £50 costs added on could not be claimed. The signage simply says additional costs could be claimed and does not say what these are - this is not contractual and therefore additional costs must be proved.

Part 16 CPR – ample evidence given.

Judge’s Summary:
Primary point – finds me the driver as a fact.
Claim dismissed because notice is a prohibition and claimants are not entitled to pursue for trespass, they are not the landowner.

Regarding defendant costs, whilst he may ask for costs, it would have assisted if he had responded to correspondence with the Claimant on many earlier occasions and possibly avoided a claim, therefore she will not be awarding costs to him.

Claimant requested permission to appeal, REFUSED because this is a finding of fact and the Judge feels she is correct that this cannot be a contract. Satisfied with her finding of this.

Prankster Note

As usual only Gladstones Solicitors come out as winners in this case. Perhaps the biggest losers are the university, who have contracted someone to manage their car parks and now find they are not competent in the least to do this, and have created a policy they cannot enforce.

The Prankster notes that the University could still claim against Mr J for trespass, if they so desired, but presumably they did not expect to need to get that involved.

Taking a look at the actual situation, the University have a surplus of car parking spaces, which a forward looking parking management company could actually monitise for them. One example would be Your Parking Space.

Instead, they have contracted a greedy parking company who are not providing proper management and appear to be mainly concerned with lining their own pockets.

That parking company were advised by an equally greedy solicitor firm, Gladstones Solicitors that they had a case. The Prankster considers it basic contract law that the sign does not offer a contract, and that any competent solicitor should have realised this was a trespass case and warned their client Horizon that they had no standing to bring the case.

Horizon Parking - you've been Gladstoned!

Other Drivers

Other drivers who have paid Horizon Parking at this car park may have a claim against then, and this goes back for six years. The driver could potentially claim not only for the parking charge paid but also £750 for a data protection breach for using personal details to pursue a charge which did not and could not have existed.

A similar situation may exists for other car parks where the signage is forbidding.

Happy Parking

The Parking Prankster

Test Cases scheduled for Overstone Court - residential parking

November 24, 2016, 9:30 am

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Link v ML C1GF86Q0
Link v DL C9GF03Q9

This concerns two brothers, ML and DL, who were tenants at Overstone Court, Cardiff. They had enjoyed quiet enjoyment of their property for many years, which came with a parking space, and also had an arrangement with another resident to use their parking space.

Then in January 2016 everything changed. The management company brought in Link Parking to manage parking on the estate, which they did via a permit scheme. The brothers asked Link multiple times for extra permits for their space. This is a perfectly reasonable request. They could have a permit for each person on the planet if they wished - after all, only one car at a time can park in their space, and as land occupier they should be able to manage the space as they wish (which would include not needing to display a permit in the first place).

Link parking refused. They gave no reasons, but it is obvious to the Prankster that the greed of Links owner, Martin Gardener was a big reason for this - after all, he cannot issue so many charges if residents have enough permits. Martin Gardener has also in the past refused to use technology which would benefit the motorist but reduce the charges he can issue.

A large number of tickets were issued to the two brothers - over 40. Gladstone Solicitors issued 13 claims, totalling over £10k. One of these were heard last week, and the other this week.

The Prankster only heard of these at the last minute, as a result of a similar case regarding Overstone Park where he also assisted. He therefore helped draft two orders to combine all the cases into one hearing; for Gladstones to file proper particulars of claim; and then for a new defence to be prepared. The Prankster was otherwise engaged, but John Wilkie was available...

Hearing 1 DJ Wynn-Davies

John Wilke attended Cardiff County Court as lay representative for DL, where he asked for directions and consolidation of four cases, and got most of what was asked for.

The Defendant's argument was that, rather than a number of claims, there should be a single hearing for a consolidated claim. It was argued that this dealt with everything in one fell swoop, meant that Link only needed to attend once, only incurred one hearing fee, one Solciitors Fee etc.

Link argued that this was entirely wrong, contrary to the Overriding Objectives and got firmly slapped down.

After 3/4 hour of arguments, DL got about 60% of what he wanted, including the right to file a new defence, and a consolidated hearing which, it was suggested, will be a full day and may need Hizonner to deal with.

An independent observer reported to The Prankster that Martin Gardener's face turned puce when he heard John Wilkie was appearing, and grew more and more purple as the hearing went on.

Hearing 2 DDJ Thomas

John Wilke attended Cardiff County Court as lay representative for ML, where he asked for similar directions to the previous week.

Without wasting too much time, Link agreed to the principle of joining the claims together, but insisted that today's claim ought to be heard.

DDJ Thomas made it clear that without the lease and tenancy (not submitted by Link) then he couldn't hear the case today, and an adjournment and joinder was necessary in the interest of justice,
especially considering Jopson & Homeguard, and given the judgment in Link v Ms P.

He also argued that both ML and DL claims ought to be heard together - which the judge agreed to.

The judge commended John Wilkie for his assistance and the quality of his submissions.

Link applied for "wasted costs". An observer reported that they got the closest that was ever heard from a Judge to being told to "f*** off"

Prankster Note

The Directions today parallel the directions last week, and are very much in favour of the defendants. Additionally, as the claims are now joined, they can be treated as a "test case" for this site, Overstone Court in Cardiff. It is likely this will be dealt with by a Circuit Judge.

So "parking terrorists" can also have test cases.

Link has been offered the opportunity to drop hands, and we will have to wait and see.

Any other residents who are currently being claimed against by Link should refer the judge to these test cases and ask that their case be stayed until.

Any resident who has already paid monies to Link should wait until the result of the test case. Should Link lose then they would have up to 6 years to file a claim against Link for their money back and up to £750 per ticket for data protection breaches.

The brothers have now moved out of Overstone Court, which was due in no little part to the harassment by Link.

Happy Parking

The Parking Prankster

PACE pulverised in Croydon

November 24, 2016, 12:50 pm

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C7GF51J1 – PACE Recovery v Mr N (adjourned from 30 Sept). 24/11/2016 DJ Coonan

Mr N had previously won another case on 16 Sept, where the Judge ruled that his tenancy agreement gave him an unfettered right to use the allocated parking space, and that the terms could not be varied by PPC signage. He was requested to obtain a transcript of that Judgment.

Today’s hearing was a ‘test case’ for the seven other claims at various stages in the court process, which the previous Judge’s order had said must be stayed pending the outcome of this. This was back in front of District Judge Coonan, who had dismissed PACE’s claim on 16 Sept.

The adjournment order from 30 Sept allowed both parties to file additional witness statements, and Mr N supported his with the judgment transcript from the Jopson case. PACE had filed copies of letters sent to tenants by Affinity Sutton (the landlord) starting in 2006 when the first permit parking scheme had been introduced. But there was no copy of a letter allegedly sent to Mr N, notifying the appointment of PACE in 2014, and Mr N’s statement said he never received this.

PACE were represented by their Director, Michael Charman, who to his credit had declined the offer of an LPC rep, and actually made a far better job of arguing his own case. Mr N was represented by Bargepole, who was also given moral support and useful suggestions, from both Andy Foster and John Wilkie, who turned up to sit in the cheap seats.

The main issues to be determined by the Court were as follows:

1/ Whether the terms of the tenancy agreement constituted primacy of contract over the PPC signs;

2/ Whether the letters sent by the Housing Association created a variation of the terms of the tenancy;

3/ Given that it was stated on these letters that the purpose of the scheme was to “allow residents and visitors to park within the estate by deterring unauthorised parking”, whether there existed any legitimate interest in issuing charges to bona fide residents, such that the Beavis judgment could be distinguished and the charges deemed to be penalties.

Point 1 was quickly disposed of, as we had two persuasive judgments, one from the current Judge, and also one from the Jopson case.

The whole matter turned on point 2; whether the letters from Affinity represented a variation on the terms of the tenancy. Mr Charman relied on clause 6.3 in the tenancy agreement, which stated that the landlord could change the terms of the tenancy by notifying the change, and by consultation with the residents. As Mr N had obtained permits from both previous PPCs, he argued, this signified Mr N’s acceptance of the change, and his company being appointed in 2014 was simply a change of contractor.

The defence argument was that these letters did not explicitly state that they were a variation on the terms, and that in fact the wording at the foot of the letters stating “This letter does not imply that any tenancy exists or will exist”, negated that argument. Furthermore, since there was no letter in evidence relating to the present contractor, the new terms, if any, could not be determined.

The Judge agreed with this argument, but via a different route. She spotted, which neither Bargepole nor Mr Charman had, that the clause 6.3 specified that one month’s notice had to be given for any variation. The original 2006 letter, appointing P4 Parking, only gave 10 days’ notice, and was therefore not compliant. All subsequent changes of contractor were based on the assumption that there had been a variation, and there was nothing in evidence to show that Affinity had lawfully varied the contract.

Therefore, Mr N could rely on his original 2000 tenancy agreement, granting him the right to park with no requirement to display a permit.

The Judge dismissed the claim, and also made an order striking out all other outstanding claims against Mr N. Mr Charman also agreed not to pursue any other unpaid tickets (about £2,000 worth in total).

Mr N, being self employed, was not able to show evidence of loss of earnings, so no order for costs was made.

Prankster Note

Once again Gladstones tactics of filing multiple claims has backfired, as PACE will have incurred multiple filing costs and solicitor fees costing Mr Charman around£600 more than was actually needed.

Happy Parking

The Parking Prankster

Residential Parking

November 24, 2016, 12:50 pm

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There are many residential situations where some form of parking management is desired, but instead of doing their homework properly and engaging a reputable parking company the Management Company bring in one of the bottom-feeders.

These companies, such as Vehicle Control Services, Link Parking and ACE Security have no desire to implement proper parking management and only want to introduce schemes which are hard to use and which allow them to issue as many parking charges to residents as possible.

Typical tactics are a feeding frenzy of ticket issuing on day one of the contract, refusal to issue multiple permits, failure to reissue new permits on expiry of old tickets, reliance on paper permits, and refusal to cancel charges when a mistake has been made.

The reason why management companies introduce most of these schemes is to deter non-residents from using residents' parking spaces. The reality is that most charges are issued to residents. So, what exactly is the situation if a resident gets issued a ticket?

Primacy of Contract

The idea behind primacy of contract is that a contract cannot be unilaterally altered by one party without the permission of the other. In the case of residential parking, the lease is the key document. If this gives the resident the unfettered right to park then this cannot be altered later, for instance by requiring a permit to park.

There is a large body of case law which establishes this. In Saeed v Plustrade Ltd [2001] EWCA Civ 2011 it was found the managing agent could not reduce the amount of parking spaces available to residents. In Jopson v Homeguard [2016] B9GF0A9E, on appeal it was found that the parking company could not override the tenant's right to temporarily stop near the building entrance for loading/unloading.

In Pace v Mr N [2016] C6GF14F0 [2016] it was found that the parking company could not override the tenant's right to park by requiring a permit to park.

In Link Parking v Ms P C7GF50J7 [2016] it was also found that the parking company could not override the tenant's right to park by requiring a permit to park.

Clauses in the Lease

Sometimes the situation is clouded by clauses in the lease which might allow management agents the right to impose further conditions.

In Pace v Mr N [2016] C7GF51J1, PACE came back again, this time claiming that clause 6.3 of the lease allowed the terms of the lease to be varied. The judge rules that this clause required a month's notice to be given, and as this had not occurred, the point was moot. The claim, and 7 others relying on this, were dismissed.

However, this does mean that the lease needs scrutinising carefully.

It is not sufficient for the operator to simply point to a clause which allows the lease to be varied. They must prove that the lease was so varied, and furthermore varied by the lessor.  The operator isn’t a party to the lease and cannot vary it.

Furthermore, a clause ostensibly permitting variations does not give carte blanche to introduce any terms at whim.  Such variation clauses are normally couched in terms stating that variations can be made for the good management of the site, or similar.  So, if a variation can be shown to be to the significant detriment of the lessees, it should be challenged.  A variation might also conflict with other terms of the lease e.g. the right to peaceful enjoyment.  If so then, again, it should be challenged.

The Parking Contract

If the lease is allowed to be varied, then this new contract will be the one in force. It is important to note that this contract is not the same as the signage on site, which may not even be there at the time. In Jopson v Homeguard [2016] B9GF0A9E it was established that ParkingEye v Beavis [2015] UKSC 67 does not apply to residential parking, and this will therefore bring the penalty doctrine back in play. The charge will therefore likely be a penalty and unfair consumer charge unless it is found the charge is a pre-estimate of loss or there is commercial justification. The supreme court found that £85 was not a genuine pre-estimate of loss in Beavis as there was no direct loss to the parking company. Similarly, it would be hard to establish commercial justification for charging residents hundreds of pounds a year to park in their own parking spaces.

Communal Areas

There may be communal spaces (eg visitor parking) or access roads where parking permission is not granted by the lease or covered by a permit scheme. Communal areas are not necessarily a free-for-all, governed only by the operator signage.  This was central to the Jopson case: an easement over the access roads implies a right to stop and load/unload.  Furthermore, easements are sometimes worded such that they grant lessees the use of communal areas without specifying any uses, in which case a lessee can do what he likes there, including parking.  And in extreme cases (such as one on MSE a while ago where a tenant had been parking in the same place for decades) a long-term resident might have acquired an easement by prescription.

The Signage - Performance

In those instances where there is no primacy of contract it is likely the contract will be formed by signage on site. This will need to be plentiful and easily visible, otherwise no contract can be entered by performance.

In Link Parking v Mr L C9GF5875 [2016] it was found that there was no entrance signage at a residential site and the other signage was not visible. The claim was dismissed.

The Signage - No Offer

If the wording of the signage forbids parking, then there is no offer to park and therefore no contract.

This is clear from several cases. In PCM-UK v Bull et all B4GF26K6 [2016], residents were parking on access roads. The signage forbade parking and so no contract was in place. A trespass had occurred, but that meant only the landowner could claim, not the parking company.

In UKPC v Masterson B4GF26K6[2016] it was also found the signage was forbidding and so the matter was one of trespass. The parking company did not have standing to claim.

In Horizon Parking v Mr J C5GF17X2 [2016] it was also found the signage was forbidding and so the matter was one of trespass. The parking company did not have standing to claim.

Authority to Operate

The operator should be challenged to show their authority to operate.  There will usually be a chain of agents between the lessor and the operator, and it’s quite possible that this chain is broken somewhere in terms of devolving authority to the operator.

Other matters

The signage might not be forbidding. For instance visitor parking might allow 2 free hours for visitors, and would therefore appear to be similar to the Beavis case. In this situation, whether the charge is enforceable would depend on the frequency, visibility and readability of the signage, and whether the charge is made plain to the motorist or hidden in the small print. the Beavis judgment provides guidance on this.

Lastly, the signage might not comply with information requirements laid down in the Consumer Contracts (Information, Cancellation And Additional Charges) Regulations 2013, enacted 13 June 2014. This Act came in force after the Beavis case and as yet there is no case law available. However clause 13(1) of the act states that a contract is not binding on a consumer if the correct information is not provided.

Scotland

It’s all very different in Scotland where leaseholds are rare and tenement owners are normally the joint owners of communal areas. Scottish motorist should seek specialist advice.

Data Protection

All this means that residential parking is quite a minefield for everyone, and parking companies are quite likely to get this wrong. If a parking company gets your personal information from the DVLA for a situation where a charge is not valid, then it is highly likely that a breach of data protection laws has taken place. In this situation the case of Vidal-Hall v Google Inc [2014] EWHC 13 (QB) provides authority that misuse of personal data is a tort and that damages may be non-pecuniary. The case of Halliday v Creation Consumer Finance Ltd [2013] All ER (D) 199 provides authority that a reasonable sum for compensation would be £750.

Trespass

In Davey v UKPC MR Davey sued UKPC for trespass for placing tickets on his vehicle which was parked on his own land. He won the case and was awarded £150 damages for trespass and £1280.26 in costs.

Happy Parking

The Parking

AS Parking discontinue another case

November 28, 2016, 2:34 pm

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This pepipoo thread discloses that AS Parking have discontinued yet another claim.
http://forums.pepipoo.com/index.php?showtopic=107019

The vehicle was parked in a spot where it had parked before. However, new parking signs had been erected. These were not visible in the dark.

In this type of case The Prankster considers that no contract would be in place by performance, and so no charge would be payable. It seems someone at AS Parking has belatedly come to the same conclusion.

AS Parking do not discontinue all claims - there are 6 due to be heard in Truro tomorrow (29/11/2016)

Happy Parking

The Parking Prankster

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ES Parking lose Spinningfields case - signage is forbidding

November 30, 2016, 1:52 pm

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29/11/2016 C8GF4C12ES Parking Enforcement v Ms A. Manchester, in front of DJ Iyah

Guest Blog

Mr Hargreaves represented the claimant
The defendant (a solicitor) represented herself

The claim was for £150

The claim had been issued for a breach of conditions as a motor scooter had been parked in an area on the Spinningfields Estate, Manchester  in April 2016.

The defendant  had two defence points which were no Locus Standi and inadequate signage. Locus Standi was very briefly discussed but the Judge appeared to accept that ES had it.

Signage was then discussed. The defendant stated that they had parked their scooter in an area that they believed was part of the public highway (a paved area). Mr Hargreaves advised the Judge that there was clear signage 10ft away from where the scooter was parked which stated 'no stopping'. The defendant advised that the nearest signage is at least 20ft away and was partially obscured by trees.

The Judge looked at a set of photos of the area provided and told Mr Hargreaves that the photos showed that the signage was certainly more than 10ft away. The defendant advised that there had been no parking ticket placed on the scooter. The Judge then read from POFA schedule 8 and 9 regarding the issue of notices (I was unclear as to why he read both as I believe that paper tickets are not issued at this site) The Judge then asked to see a copy of the notice that had been issued. Surprisingly, Mr Hargreaves did not have a copy of this.

The Judge commented that a copy should have been made!

The Judge asked Mr Hargreaves to show him the terms and conditions on the signage.  On viewing copies of the signage, that Judge stated that the signage was  forbidding, there was no mention of the word 'contract' on them. The word 'breach' was on the signage. As a result of this, the only person that could bring a claim was the landowner for trespass.

Mr Hargreaves said that the signage had been approved. The Judge asked who approved it. Mr Hargreaves said the IPC approved it. The Judge asked to see a copy of the IPC code of practice but Mr Hargreaves  could not oblige.

The Judge then delivered his verdict which was in favor of the defendant. Loss of earnings/expenses were then discussed. The defendant stated that she was a self employed solicitor. She had two cases at a court that she had to pay another person to attend instead. The Judge asked what the cases were and the defendant gave details. The Judge then awarded the defendant £125.

I found Mr Hargreaves to be a pleasant man who did not say very much in the hearing. I got the impression that he has had very little (if any)  experience in parking issues.

The only losers yesterday were ES Parking as they will have to pay Gladstones for sending Mr Hargreaves and pay the defendant £125.  No wonder Gladstones are keen to issue claims on behalf of parking companies because they  are winners everytime even when the parking company loses.

As we left the court room and went down in the lift, Mr  Hargreaves commented to me 'you look different without your hat'. I suspect he thought I was the Parking Prankster as the Prankster wears a hat in the photo of him on his website!

Congratulations to Ms A. on your well deserved win.

Prankster Note

Not all people turning up in court without hats are The Prankster.

When a parking company joins the IPC the signage is vetted by Will Hurley and John Davies (or their employees/agents). They have been warned almost since they started that their signage model does not create a contract and therefore are well aware that they risk their member's livelihood by advising them to create parking schemes which are not enforceable.

Will Hurley and John Davies then encourage their members to use their other company, Gladstones Solicitors to take court action to try and enforce charges.

There is a clear conflict of interest when two scoundrels who clearly do not have the same understanding of contract law as judges are encouraging parking companies to use their signage model in one company, and then take futile legal action with another company.

In one case this year a Gladstones Solicitor client was ordered to pay £2,000 in costs for their unreasonable action in bringing a claim in the first place.

Happy Parking

Minster Baywatch - you've been Gladstoned. Frustration of Contract

December 2, 2016, 12:25 pm

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01-12-2016 C2GF5R96 Minster Baywatch v Ms W. York

The motorist parked in a car park charging £1 for 12 hours. The motorist was perfectly willing to pay, but the machine was out of order.

The Hearing

Gladstones supplied their template witness statement stating that the motorist should have telephoned the parking company.

Minster Baywatch sent a young woman from their offices to represent them and Gladstones only passed on the defence documents to her the day before the hearing. She struggled with the judge's questions and couldn't justify how Minster Baywatch arrived at its costs.  The main thrust of her argument was that they had not had any reports the machine was out of order and they would have issued more charges if it had been.  

The defence waited until they received their documents from Gladstones, and submitted evidence which included a picture of the machine with a sign stating it was out of order, showing the date and time. She therefore had to accept the machine was out of order to the Judge - at which point it was game over.

He upheld the argument regarding frustration of contract caused by the out of order ticket machine and stated it was unreasonable to expect users to leave the car park if they had no access to a telephone to report the out of order machine or make payment. He also highlighted their signage did not make it clear the process that should be followed if the machine was out of order.

The judge pretty much ignored all the other points - stating it would be difficult to win the case based on them.

Without mentioning frustration of contract, the motorist would probably have lost.

Prankster Notes

Frustration of contract is discussed here.

https://en.wikipedia.org/wiki/Frustration_in_English_law

It does not make sense for a parking company to charge motorists when their own equipment is faulty. That would mean they make more money than if they ran a proper service, and would therefore incentivise them to artificially break their own machines.

Happy Parking

The Parking Prankster

Excel lose double dip case at Peel Centre. BW Legal rival Gladstones for incompetence

December 3, 2016, 10:56 am

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Excel v Moyle  02/12/16

Guest report

Just thought I'd let you know how I beat BW Legal yesterday.

I was in the court waiting area when this BW Legal chap started talking to me, asking "Had I sent my court file to them?", "Did I have any other evidence?"e.t.c. He had nothing! I thought 'what a joke', so I asked him if he was actually a solicitor, and he then proceeded to act in a flustered manner and didn't actually answer me...so I informed him that all my paperwork had been sent to BW Legal via recorded delivery and had been received and signed for; it had clearly not been passed on to him! And yes, I did have some additional evidence.

The guy came across as an imbecile.....!

In the courtroom, the Judge was not impressed that his court pack had arrived two days late; my pack was also received two days late. BW's guy went through his patter blah, blah -  I then delivered my killer extra written statement to the Judge...I claimed that I had left the car park within the fifteen minute grace period, and returned half an hour later (it's the Peel Centre Stockport, where I clean windows).  Mr BW Legal protested, so I therefore produced all my signed work dockets. He went into a flap and was lost for words...I was reprimanded by the judge for not including this extra evidence in my court pack, whereas I replied that I was very sorry, but these people do not play fair.

I did have a strong case anyway i.e. the usual stuff - the pants signage.  Anyway, the judge summed up that because his papers were late, if she permitted the case to continue, she would have to accept my new evidence, so she then dismissed the case.  I personally thought that she was amused, as after her decision, she made light of the subject.

Great result after only half an hour! BW guy looked visibly deflated.

Prankster Note

The Prankster does not recommend trying to ambush the other side. This can go horribly wrong and a cast iron defence can vanish at the whim of the judge.

The Prankster has seen many hearings where parking company representatives forget vital evidence and get the case adjourned, but not many when a judge will adjourn on behalf of a motorist. This may not be fair, but this is the reality.

If the other side asks for an adjournment due to their error The Prankster suggests that the motorist asks the judge not to do this on the grounds of proportionality. The claim is for £100 yet the other side is using a solicitor at a cost of around £200. It does not make sense financially to adjourn the case as the other side will incur another £200 in the next hearing.

Additionally the other side have professional representation against an unrepresented defendant and therefore ought to know full well what will be expected evidence in a parking claim.

Lastly, if the claim is adjourned ask for a wasted costs order and your full costs for the day. Point out that the other side are quite happy to spend large amounts of money on the claim which bears no relation to the amount at stake.

Take a wage slip to prove your salary. If you had to take leave this is an allowable cost under 27.14.2.e.

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part27#27.14

27.14.2(e) a sum not exceeding the amount specified in Practice Direction 27 for any loss of earnings or loss of leave by a party or witness due to attending a hearing or to staying away from home for the purposes of attending a hearing

Happy Parking

The Parking Prankster

New Generation Parking Management - you've been Gladstoned. Resident entitled to parking space

December 3, 2016, 11:50 am

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C9GF8T04 NGPM v Mr S, Pontypridd CC, 2/12/2016

Guest Report

The defendant was assisted by Bargepole, but represented himself.

Just thought I'd let you know how I got on.

Good news! The judge found in my favour (though it really could have gone either way), and so I just wanted to say thanks again for your help.

The judge seemed to disregard quite a lot of my defence, of which I've added details below as I thought it may be useful for you to know. Eventually he focussed on a part of the contract between NGPM and the building management company that said that residents would have the ability (via phone or app) to report unauthorised parking, and so there was clearly an effort on the building management company's part to cater for situations like I found myself in. As NGPM didn't readily provide any information about how to report parking incidents (and the existence of the app), he said he agreed that I was entitled to a parking space (as per Assured Short-term Tenancy - AST), and NGPM didn't have grounds for a contract with me.

Specifically, the parts of the defence he didn't agree with:

Disallowing claimant's witness statement
I asked for the claimant's witness statement to be disallowed due to being submitted late. The court confirmed they had also received it late (a few days before me). I stated that as they failed to comply with the directions of the court, and left it so late to submit it, it had left me unfairly disadvantaged as I had little time to seek advice on the content of their witness statement. The judge agreed it was late, and that there was no excuse for it being late, but said he would allow it and that he disagreed I was at any disadvantage. That was a shame as claimant's witness wasn't present (they had appointed a solicitor), so if it had been disallowed that would have been the case over!

Registered Keeper being assumed to be the driver
The judge agreed that the Elliot v Loake case referenced by the client wasn't relevant and so quickly shot that down. But, he then said it was his view that on the balance of probability that I was the driver.

Signage doesn't comply with regulation
I stated that, as per defence statement, the signage at the site didn't meet the Consumer Contracts Regulations. The judge questioned me on why I thought those regulations applied at all, and when I referred to it as being a "distance contract", he disagreed and stated that this type of charge wasn't what those regulations were intended for.

Primacy of contract (AST over parking agreement)
Referring to the June '16 case of Jopson v HomeGuard Services, I stated that the presence of an AST that contained the right to park in a designated bay had precedent over any agreement, if there was one, with the parking company. The judge asked me to talk him through the part of the ruling that said that, and I was a bit lost. The judge went through the ruling and said that it didn't really apply in this case as in Jopson v HomeGuard, the defendant had parked up briefly to unload something from their car and then gone to move their car. He said that given that the incident here was at 7pm~ at night, that on the balance of probability I was there all night unless I can persuade him otherwise.

At this point the outlook was pretty bleak! Anyway, all done now, and the judge awarded costs.

Prankster Note

The Prankster agrees with the judge's decision but not with some of his rulings. This may come down to the ability to fluently argue a case so these points are all valid in future claims, but defendants should be aware how to argue them. A judge can often be swayed by good arguments, so here is how the Prankster would have tried to overcome objections.

Registered Keeper being assumed to be the driver
The judge correctly ruled that Elliot v Loake wasn't relevant. As to the probability the keeper was the driver, this will depend on the quality of evidence supplied. It is a risky strategy going for this line of defence if you know you were the driver, but perfectly reasonable if you cannot remember. You should point out that the Government specifically created a statute so that keepers would be liable if parking companies got their paperwork right, and if they cannot get this right after 4 years or provide any evidence as to who the driver was then they should not bring speculative claims.

Signage doesn't comply with regulation
The Consumer Contracts (Information, Cancellation And Additional Charges) Regulations 2013, enacted 13 June 2014 applies to all consumer contracts and there is nothing in the statutes to suggest otherwise. To qualify that statement, clause 6 of the statute lists situations where the act does not apply. If none of those conditions apply it would seem strange that a judge would be inventing his own additions to clause 6.

If the judge disagrees that the charge is a distance contract then there are two other types of contract and it must be one of them. Each type of contract has informational requirements which are probably not met by the signage, and when this happens the Act states the contract is not binding on the consumer.

Primacy of contract (AST over parking agreement)
The judge missed the point which might be due to how this was argued. The overriding principle here is that of primacy of contract which means that an existing contract cannot be unilaterally altered by another party. The Jopson case is just a specific example of that, and because she had the right to stop in front of her building, that could not be overridden by the parking company. In this particular case the AST gave the right to park, so that could not be overridden.

It may be worth going armed with a few transcripts to illustrate this in slightly different ways, so the judge can apply the general rule to your case.

Transcripts can be found on the Prankster's site

In Saeed v Plustrade Ltd [2001] EWCA Civ 2011 it was found the managing agent could not reduce the number of parking spaces available to residents.

In Jopson v Homeguard [2016] B9GF0A9E, on appeal it was found that the parking company could not override the tenant's right to temporarily stop near the building entrance for loading/unloading.

In Pace v Mr N [2016] C6GF14F0 [2016] it was found that the parking company could not override the tenant's right to park by requiring a permit to park.

In Link Parking v Ms P C7GF50J7 [2016] it was also found that the parking company could not override the tenant's right to park by requiring a permit to park.

Happy Parking

The Parking Prankster

Railway Byelaw fiasco warming up

December 3, 2016, 12:17 pm

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Graeme Paton, writing in The Times has highlighted the current fiasco regarding parking in situations where railways byelaws are applicable. Some parking companies, instead of using the byelaws to enforce parking conditions have used contract law instead. The situation is further complicated by POPLA deciding it cannot rule on byelaw cases until it gets clarification.

The Times article states

The appeals service set up to oversee private parking companies fears that it has no authority to adjudicate on cases involving breaches of bylaws and has ordered operators not to pursue payment while the dispute is resolved. The Department for Communities and Local Government has been asked to clarify the law.

Lawyers believe that the stand-off may call into the question the legal basis for issuing the tickets in the first place, potentially rendering them invalid.

FOIR3024 shows this problem of contract law v byelaw statute was vexing the DVLA and BPA as long ago as 2012

FOIR5531 is currently overdue as the DVLA figure out how to answer. This in turn refers to FOIR5322. The problem is the almost complete redaction of this document.

If it is found that these tickets are invalid then motorists will be able to reclaim any charges paid up to six years ago. They may have to sue the parking company to get this. Whether or not the motorist paid, they may also be able to claim up to £750 for breaches of the data protection act for unlawful use of personal data.

Happy Parking

The Parking Prankster