UKPC v B. 8/2/2017. B2QZ1J4J. Clerkenwell and Shoreditch. DJ CrossThis post on moneysavingexpert details yet another UKPC claim lost.The driver parked in a way UKPC did not like, and the keeper was issued 3 charges.
As the driver was parked with permission of the resident, the keeper considered no charges were due. UKPC disagreed and filed a claim.
First HearingThe defendant represented themself.
UKPC used a gun-for-hire solicitor
The judge began with a summary of what documents he had received thus far and in the process made the following remarks:
He noted that the particulars of claim from the claimant were very brief
He noted that the defendant had sent at part 18 request and in their response they refused to produce a contract (he was not impressed)
He also noted that the defendant had submitted a defense & witness statement
The judge then asked if the claimant responded to the defense to which they said they hadn't - this seemed to displease the judge.
He then asked to see the contract to ensure that the claimant had the right to bring the claim. The solicitor tried his hardest to persuade the judge that the contract wasn't needed and that the witness statement from UKPC was enough. He cited 'commercial sensitivity' but the judge wasn't having any of it and demanded that it be shown to both himself and the defendant. Reluctantly it was then produced (unredacted) with the terms and conditions and the judge and defendant started to read.
The defendant wasn't sure where to start and the judge could see that - the solicitor tried to direct them to a particular clause but judge declined his offer and said he wanted to go through it all.
The judge asked him who the contract was with - it was the managing agent.
The contract had no end date to which the judge asked how he could be sure if it was still in place.
He also asked who the landowner was and if in fact the contracting party was the managing agent - the solicitor said he didn't know to which the defendant said they knew it wasn't as they had completed a land registry check that could be found in their bundle.
Within their contract with the managing agent, there was a clause that said they could bring court proceedings to recover money but at their own expense. The solicitor referred to POFA 2012 and said that the managing agent would be the 'occupier' of the land and therefore this allows UKPC to bring the claim in their own name. The defendant argued that this related to a contract and how anyone know if the managing agent had the authority to to this and that the only way we could be sure was to see evidence of the landowner giving authority to them to do so. The judge looked like he thought this was a valid point.
The judge then had enough and said that he had a number of issues and there were a lot of points to go through and it could not possibly be done in the two hour allocation. He said he had hoped to resolve at least one of the discrepancies but could see that he couldn't (possibly referring to UKPC's right to bring the claim).
Their representative asked if we could at least go through some of the issues but the judge refused and said he wanted it done all at the same time and not 'piece meal'
The judge then went on to say that it was wholly unacceptable that the claimant only produced the contract on the day of the hearing. He could see no reason why they couldn't have produced it sooner. He said it was not fair and obstructive to the defendant as they were unrepresented and could not possibly be expected to review it on the spot.
He then gave the following directions
1) The claimant has to serve a response to my defense together with a copy of the contract awarding parking services to the claimant as well as the terms and conditions that were applicable to the contract. He then granted permission for them to redact any commercially sensitive information (after asking if I was ok with that)
2)The claimant has to serve a trial bundle and the hearing be relisted for an allocation of 1 whole day!The solicitor tried again and said he thought half a day would be sufficient but the judge said no, we need a full day.
Hearing 2UKPC sent a different solicitor from the last hearing. The judge was also a different judge.
Their solicitor and the defendant spoke briefly, he was very keen to confirm whether the defendant denied that they were driving the car (as it wasn't addressed in the witness statement).
The defendant reiterated that I was defending the claim as registered keeper and had not driven the vehicle to that location nor had reason to believe that anyone else had. He seemed happy enough and commented that he didn't think the case law provided would be too relevant (due to their age) and that the arguments would be down to other issues raised such as authority. He also asked if the defendant had received the new trial bundle and the defendant informed him that they hadn't.
The judge seemed to have been clued up with the history of the case which was good. He highlighted that UKPC had changed their evidence (updated terms and conditions of contract) despite pleading in the witness statement that the old ones were current. He highlighted that Ms Ndure and their Witness completely contradicted themselves. He also was amused at the 1 day allocation but said it was nice that things didn't have to be rushed for a change
He then allowed the other side to go through their witness statement. The judges views were that the statement seemed to have more opinion in it than fact and kept referring to it as hearsay. He asked why the witness was not present to be cross examined. The solicitor's response was that he did not know... so could not say.
The witness statement contained sentences like 'the car was recorded being parked in stitu'; 'Notices to keeper were posted to the defendant' - The judge didn't feel that this was detailed enough and kept saying things like 'how?' and 'recorded how?'
The judge then went through their evidence and and picked up on a number of discrepancies, raising issues such as no entrance signage and the amount of charge for the individual PCN's.
The defendant was then given the opportunity to speak.
They told the judge that they were not the driver nor did they have any knowledge of anyone driving.The judge asked if the car in the photo was theirs and the defendant said that it looked like theirs and had the same number plate. He asked if the defendant lived alone and they responded that they didn't and that there were other drivers in the household.
The defendant was then given the chance to raise issues so they started with the contract:
- The contract is with the managing agent not the landowner (this got a reaction from the judge because by his own admission he didn't notice that.
- They were breaching the BPA code of practice clause 7.1. Their contract didn't meet 7.2 (a, d & f) The solicitor did argue that this was just a guide but the defendant pointed out that it was one of the key terms of the contract to keep to the code of practice.
- The 'Parking charges' section on the contact differed from what was on the PCN and the signs submitted as part of their evidence.
- The contract referred to the an attached site plan - BUT there was no attached site plan
- I did however get a copy of a site plan as part of my part 18 request and looked like it indicated that there were 6 signs (less than the 'more than 9' stated previously) The judge actually referred to that in his summary.
-There was no proof that the contract was still in force after its initial period (they tried to argue that the signs still being present and updated shows that there is still an agreement in place). The judge didn't buy it.
- The biggest point was that the managing agent had signed the contract stating that they were the landowner as detailed in previous posts - The judge hated that.
- Photos were all of poor quality and only one showed where the car was situated in relation to the signs. The other isolated photos of the signs were just that so were not really taken into consideration.
- All x3 PCNs were allegedly issued in the very early hours of morning when it would still be dark. The close up photo of one of the signs in the dark really hurt them because it showed that they were not illuminated in anyway whatsoever!
- Only a premium rate number was being displayed on the signs (contrary to BPA CoP, 18.7)
- The charge was disproportionate. The judge and the solicitor went back and forth as to the relevance of the Beavis case judgement.
- Only 1 NTK was received and the other two were never sent. They were not sent in response to my part 18 request and only appeared in the evidence in a complete different format to the one I received.
The excuse given was that they had changed their system and they were reconstituted versions. I refuted this and used it as an excuse to remind the judge that this was a very dishonest company and had been caught out before.
The Judgment1) No locus standi
- Original contract was pleaded and should have been produced at the hearing but it wasn't despite being told this by the first judge.
- In their response to my part 18 request UKPC originally said that they had a contract with the landowner
- Contract duration not addressed in witness statement
This alone disposes all 3 parking charges.
2) Signage not sufficient/prominent
- Despite not knowing who the driver was, looking at the evidence the signage was inadequate
- Location, size and view of signs 'utterly' inadequate
- NOt obvious where car was parked in relation to signs in all pcns
- No entrance signs
- Not obvious enough for driver to assume that it was not a public road (like a shopping mall car park would be)
3) Charge is disproportionate
- No evidence provided as to why it is appropriate.
4) NTK do not comply with POFA 2012
- Clause (6) (8) c & h
- Judge stated that he believed the defendant to be an honest individual and believes that they did not receive the x2 NTK's as they had always maintained.
The defendant spoke with their solicitor solicitor during the break and he said that he thought they would get the judgement. He admitted the evidence was poor and even went as far as to say that the claimant do not do things properly unlike some other companies.
The original claim was for £470 + COSTS - UKPC ended up paying £111 for loss of earnings and travel.
Happy Parking
The Parking Prankster
