The Parking Prankster has now received the following account from defendant Christine Lemon. In this hearing the judge decided to hear two cases at the same time, as the facts were so similar.
The Prankster is very impressed at the defence mounted by these two ladies. It shows that if you research your facts, and know and can present them at court, then you can win even against a trained advocate.
Happy Parking
The Parking Prankster
ACCOUNT OF COURT HEARING 6TH DECEMBER 2013 AT SOUTHAMPTON COUNTY COURT SMALL CLAIMS TRACK.
CLAIMANT: PARKINGEYE LTD
DEFENDANTS: CHRISTINE LEMON (Case: 3QT62681) AND SUSAN HARRIS (Case: 3QT62156)
The judge opened by explaining how the proceedings would run. He told us that the claimant's solicitor would read ParkingEye's witness statement first, as they had brought the case, and then we would read ours. We were also told, by the solicitor and the judge, that the solicitor would not be able to answer questions about ParkingEye's statement.
The solicitor started to read through the witness statement and had not got very far when he suddenly waved a sheet of heavily redacted paper in front of us all and asked if we had all seen it. None of us had, including the judge. The judge asked to see it and discovered that it was the contract - and that it was dated February 2013. The judge seemed to be very displeased that this document had not been included in the bundles. He confirmed that we hadn't seen it. He double checked the date of our parking incident and stated that this had occurred before the contract was in force. The solicitor's response to this was to say that the contract had been amended in February 2013. The judge asked to see the original unamended contract, which the solicitor was unable to produce. The judge confirmed again that the contract was dated February 2013 which was after the date of the claim. The judge handed the contract back to the solicitor and we were not shown it.
We then spent some considerable time going through Paul Shewbrook's witness statement and many points were raised:
- there are two stores of The Range in Southampton. The specific address was not on the statement.
- it stated that "The operator has written Authority from the managing agent to undertake parking management, control and enforcement at the site, under contract." The term 'managing agent' was used twice more in this statement. We queried who the managing agent was, so did the judge. The solicitor was a complete loss as to how to answer this.
- it stated that "the signage plan and images in this bundle of documents are accurate for the date 26/10/2012". The signage plan was obviously not accurate (evidence had been included in my bundle dated 25/08/2013) so I claimed that this (Paul Shewbrook's witness statement) could not be a statement of truth.
We then looked at the signage plan. The judge accepted it was not accurate but did not seem to attach much importance to it.
We showed him photos of the signage in the car park, stressing the poor signage at the entrance. The solicitor kept insisting that the signs were not intended to be read while driving past. We pointed that there were no signs at the disabled bays. The judge queried the relevance of that. We explained that the disabled bays were right by the entrance to the stores and that everyone would see the signs as they went in. The judge then counted the number of signs on the signage plan and said that there was a sufficient number of signs, including some wall mounted ones.
We then looked at the wording on the actual signs. We had claimed that the wording was ambiguous and that it didn't actually state anywhere that staying over two hours would result in a parking charge of £100. The judge agreed.
The solicitor never did finish reading PE's witness statement and we never went through ours! The judge just kept asking us if there were any other technical points we would like to raise.
Sue Harris raised the point that £100 was an excessive amount to be charged and that it was a penalty so we then looked at ParkingEye's pre-estimate of loss statement, concentrating almost solely on two paragraphs:
- where PE explain the average payment is circa £63, circa £55 covers their costs, etc. I pointed out that as the parking charge in this case was £100, that meant that £45 was clear profit and that profit cannot figure in any pre-estimate of loss calculation. Also that the figure of £55 included costs which were costs of running a business which should not be included in a pre-estimate of loss eg cost of installing signage. (The judge did not seem particularly interested in any of this.)
- and the following paragraph which explains the 40% discount for early payment and that £100 was 'approved and prescribed by the BPA in consultation with the OFT and the DfT'. We directed the judge to my emails from the OFT and Dft which say otherwise. We looked at the FoI from the OFT about parking charges.
The judge asked the solicitor where the sum of £100 had come from. The solicitor didn't know but I piped up that it had been decided at a council meeting of the BPA on 6.6.12 where most of the council was comprised of car park operators. The judge asked if I had proof of that; unfortunately I hadn't included it in my file. The judge commented that he felt £60 was a reasonable amount for early payment.
Sue pointed out that HMRC defined the parking charge as a penalty but the solicitor immediately put this down pointing out that HMRC had very different definitions to normal law, which the judge acknowledged.
At some point in the proceedings, the judge asked the solicitor if he had any questions he would like to ask us. The solicitor replied, "Do I dare, sir?!"
The solicitor then asked us a few questions such as, "Did we agree that the owners of private land had a right to manage that land? Would we like people parking in our private drive at home?" etc and finally asked why we had not appealed. Sue said she had been too ill at the time. I re-iterated what I had put in my witness statement - that POPLA was funded by the BPA, which in turn was funded by the car park operators and that I did not feel it could be unbiaised. I then said that POPLA had been very new at that time and that if I had known then what I know now, I definitely would have appealed to POPLA because ParkingEye had lost every case where the pre-estimate of loss had been challenged. There was no comment to this.
The judge summed up by saying that:
- He found for the claimant on visibility of signs
- He found for the defendants on lack of clarity of the signs. He said that we had claimed that the wording on the signs said 2 hours max parking but that it then gave a list of times where parking was allowed (he stated the days and times). He said that after this it said, "No parking outside of these times" and after that it said "Failure to comply with this will result in a charge of £100." He said that the defendants were saying that the word 'this' is singular and that therefore it refers to one item, therefore it was not clear that staying for more than two hours would result in a charge. He said that he agreed with this, and that he was finding for the defendants.
- He found for the claimant regarding the amount of the charge.
- He found for the defendants regarding the contract. The contract produced in court was dated February 2013 when it had been amended. This was after the parking overstay had occurred. He said that the defendants claimed they had had never been given a copy of the contract which existed at the time of the alleged offence and that they were still not in possession of such so that they still had no way of knowing what the appropriate contract (pre-Feb. 2013) said. He said that he agreed with us, and found for us.
His final decision was:
- Because of these two findings/reasons?, I find for the defendants.
- The claim fails.
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Sue was awarded costs of £90 (the maximum allowed) for loss of earnings. I was unable to claim for anything as I'm retired and didn't have any travelling costs.The Prankster is very impressed at the defence mounted by these two ladies. It shows that if you research your facts, and know and can present them at court, then you can win even against a trained advocate.
Happy Parking
The Parking Prankster