Wednesday, 7 December 2016

Liverpool Business Park - Motorist wins claim for £250 for data protection breach

VCS v Phillip, Claim number C9DP2D6C Liverpool 07/12/2016

VCS, You've been Gladstoned, and Vidalled too.

Mr Phillip was being driven to the Liverpool Rowing Club one day when the driver took a wrong turn, ending up on Liverpool International Business Park. Realising her error, she turned around, and in this 32 second manoeuvre, was caught on camera by VCS who issued a Parking Charge Notice for a non-parking event.

An initial appeal was rejected, as was an appeal to POPLA, as VCS were members of the BPA at the time.

VCS sent this through the gamut of debt collectors and the matter ended up as a BW-Legal Roboclaim. Unusually, the Defendant wanted to not only win the battle, but also take part in the war, and with The Prankster's assistance filed not only a solid defence, but also a counterclaim.

1) There is no contract. The signage forbids parking, even for an instant, and therefore there is no consideration. There have been a number of similar cases recently including UKPC v Masterson and PCMUK v Hall et al. This therefore is a case of trespass, and in such cases only the land owner can sue, and then only for actual damages incurred. Where there is no damage a nominal £1 is usually awarded
2) Even if the signage did offer a contract, the font size is too small and the words too many to be safely read while driving. They can therefore only be read while stopped and the normal time allowed in these situations is 5-10 minutes in car parks to allow for a genuine meeting of minds and for the driver to understand and comprehend any potential contract. There can therefore be no contract entered into by consideration.
3) Even if a contract was entered into by consideration, the signage does not contain the information required by the Consumer Contracts (Information, Cancellation And Additional Charges) Regulations 2013, enacted 13 June 2014. As per clause 13(1), without this information any contract is not binding on the consumer
4) Even if the contract was binding, the charge is a penalty and an unfair consumer charge. ParkingEye v Beavis is the leading authority on this. Although ParkingEye won the case, the judgment makes it clear that if the charge is not to be a penalty/unfair consumer charge, the driver must have ample time to be able to read and digest the contractual terms so that they can fairly agree to the terms. As this has not happened the charge is not saved from being a penalty/unfair consumer charge, and unless VCS have incurred costs of £100, the charge is excessive.

The counterclaim was based on the paperwork not being compliant with POFA and there being no possibility of a legal parking charge and therefore there was no "reasonable grounds" to pursue the keeper or driver, such pursuit being a breach of section 13(2) of the Data Protection Act 1998.

BW Legal offered a generic "no it isn't" reply to defence and counterclaim which did not answer any of the points raised in the counterclaim.

Mr Phillip filed a witness statement which included a video showing the signage from the driver's eye view, essentially proving there was no possibility that the driver could enter a contract as the signs were neither readable nor even particularly visible. He also filed as evidence relevant extracts from the Department Of Transports guides for signs on the highway. He made arrangements with the court to show the videos during the hearing.

Faced with this overwhelming defence, BW Legal discontinued the claim 12 days before the trial. Unluckily for their client VCS, they appeared to forgot there was a Counterclaim.

As the Prankster was busy with "real life (tm)" at the time, he invited a professional "Parking Terrorist", John Wilkie of Private Parking Appeals, to assist the Defendant (now the claimant in the Counterclaim) on the day. The day was today, so Mr Wilkie left Glasgow quite early to be at Liverpool County Court by 10am.

There were a number of VCS cases at Liverpool today. Messrs Pickup and Worthington and Ms VanDays were all present, but none of them were instructed in this matter. The parties were called in on time at 11.30! Mr Wilkie did have to pick up his jaw from the floor on the way into court as a result.

With no attendance from VCS or their solicitors, the Judge invited Mr Wilkie to lose the case on his own. He argued:

1) The Claim was not valid in the first instance, as the signage did not offer a parking contract, the 32 second stop was well within the 10 minute grace period, and while the ATA Code of Practice may not form a part of the Law, it DOES form part of the KADOE contract allowing reasonable cause. As such, as the CoP was breached, there were no reasonable grounds under regulation 27 for the Parking Company to seek keeper information, and this was a breach of the Data Protections Act, section 13(2)

2) Additionally, Section 13(2) does not require proof of damage, only proof of breach. Damages follow, as the court confirmed in Google v Vidal-Hall. The judge was already fully aware of this case, and cast only a brief glance over Mr Wilkie's copy.

3) Damages must be sufficient that the process of law, and the intent of the Legislation is not brought into disrepute (Purves v Joydisk Ltd[Scotland]). Nowadays, £250 is an appropriate sum to award as "nominal" damages, but sufficient to show the court's displeasure at the breach such that justice is seen to be done.

4) As such, the conduct of the claimant, in pursuing then discontinuing, and not answering the counterclaim was entirely unreasonable, and smacked of Rookes v Barnard 1964, such that Exemplary or Punitive damages ought to be awarded at ten times the initial counterclaim. This is also
supported by CPR 16.4. In deference to his duty to the court, Mr Wilkie immediately conceded that this had not been pleaded earlier, and the Claimant had no opportunity to answer this point if the judge was persuaded of its validity.

5) Finally, Under rule 27.14(2)(g) the defendant ought to be entitled to punitive costs, again for the unreasonable conduct of the Claimant in failing to attend or even have the courtesy of excusing its attendance.

In giving judgment, the Judge mentioned Mr Wilkie's "helpful submissions" and was happy that he had ably assisted the Defendant.

1) The claim by VCS, having been discontinued, is dismissed.

2) The Claimant did not have reasonable grounds to pursue the keeper - this was not a parking event, it was a stop to turn which is necessary, and implicit in a right to pass and repass. The evidence of the Defendant has not been challenged and is on its face entirely honest and reasonable. As such, the DPA breach is proven.

3) The Defendant did not need to show, or quantify damages, Google v Vidal-Hall makes it clear that damages follow the breach.

4) The quantum sought by the Defendant was entirely reasonable, pleaded from the start, and there was nothing before the court, either from the Claimant or in binding case law to go behind this figure and examine it. Accordingly, the defendant has judgment in his counterclaim in the sum of £250.

4) The conduct of the claimant did not, in this case (and in the evidence before the court), cross either the threshold of Unreasonable conduct for rule 16.4, or rule 27.14(2)(g) and so the Defendant was only entitled to nominal costs of £104.40.

The total judgment is £354.40, payable within 14 days.

Mr Phillip was delighted, and celebrated with an Americano with Milk, courtesy of Mr Wilkie. It is rumoured that Mr Wilkie's head has not yet arrived back in Glasgow, having been too big to get through the courtroom door.

John Wilkie' comments

"This was a critical case for the 'parking terrorists' as we have argued that the Parking Companies are breaching the DPA on a number of occasions, and this has now been confirmed by the courts. They MUST comply with the KADOE contract, and the ATA CoP to be entitled to Keeper details, and
failure to do so, such as in Excel v Mr C at Stockport, will open them up to legal action.

"While this decision is not in itself a Precedent, the Google v Vidal-Hall ruling IS binding on the lower courts, as is ParkingEye v Beavis which deals with the ATA CoP being part of the conditions that the PPC must meet (Para 94-95)

"Parking Companies will have to now understand that, even after issuing proceedings, they can be attacked on their conduct, and in the event of a loss, it would be possible for the winning defendant to issue a claim for this breach regardless of any previous hearings.

"Where there are parking companies selling their 'debts' to unregulated, unregistered companies like ZZPS or MIL, then it is possible to bring a clam against both the PPC and the Debt Collectors, before they even issue their claim against you.

Prankster's Notes

This is an important case, and although not binding it does establish that where a parking company has no legitimate grounds to pursue a parking claim, they are committing a breach of the DPA.

It also establishes that £250 is a reasonable minimum amount to claim, although of course higher amounts can be claimed if justified.

Any motorist who has won a parking claim in court, or has had a parking charge cancelled by POPLA** or who has been issued a charge for stopping at Liverpool Business Park can consider issuing a claim against the parking company. The Limitations Act will apply, so this can only go back 6 years.

A number of parking companies issue claims and then back out at the last minute. Although costs are sometimes awarded against them, this is not always the case leaving defendants out of pocket and having spent time and energy for nothing. Issuing a counterclaim forces a hearing which means the defendant can claim costs.

A number of parking companies also play the numbers by failing to cancel an initial appeal, but folding at POPLA. Motorists can file claims against these companies too if a DPA breach has occurred.

Happy Parking

The Parking Prankster

**both motorists who have had a parking charge cancelled by the IAS can also counterclaim

Signage at Liverpool Business Park

Vehicle Control Systems are in the habit of issuing £100 as a charge for briefly stopping anywhere in Liverpool Business Park, including the laybys.

The signage is similar to that at Liverpool Airport, which has previously been analysed by The Prankster

This youtube video shows the signage at the park.

00:07-00:10 For comparison, here is a proper road sign. You can read all the words.
00:14-00:17 Here is another proper sign. You can read all the words
00:28-00:31 Here is the main VCS sign. You can only read the words 'No Stopping'
00:35-00:36 Here is a subsidiary VCS sign. You cannot read any words as the sign does not face traffic and the driver would have no indication of what this refers to.

It is clear that no competent legal professional would ever contemplate a charge could be valid in this type of case. Firstly, it is not possible to fully read the signs while driving past at normal road speed. A key criteria for a contract to be in place is a meeting of minds, and this can never be in place if one party cannot read the contract. The normal time given for this in a car park is five minutes once the vehicle is stationary; not 2 seconds in a moving vehicle.

Secondly, the signage is in any case forbidding and makes no offer. As it says 'No Stopping' there is no offer to stop. There is therefore no contract, but this would make anyone stopping a trespasser.

Thirdly, the charge of £100 is a penalty and unfair consumer term. The case of ParkingEye v Beavis [2015] UKSC 67 is the leading authority on this, and it makes it clear that the penalties law is in play for charges of this size. It also makes it clear that a motorist must have a fair chance to read the signs and accept the bargain; otherwise the term is unfair.

It is also worth pointing out that from 00:28-00;30 a competent motorist would be keeping half an eye on the dog, in case it ran out, and not on the signage. The presence of this type of signage is therefore a safety issue.

This facebook video shows is is dangerous to take your eyes off the road for more than 2 seconds.

This government publication on X-Height for road signs shows that the signs used by VCS are positioned too close to the junction, use fonts which are too small, contain too many words, and are positioned too low.

This Government publication further reinforces the minimum font sizes to use. Section 1.3 and appendix A are useful references for font sizes, height above ground and minimum clear visibility distances. At 30mph the sign should be 0.6m above ground, have 60m clear visibility and a font size of 8cm. The font size of the £100 charge is 4cm, or half the required size.

The Prankster suggests that any motorists taken to court for this site files the youtube and facebook clips, together with the government documents as evidence, and makes the above points in their defence.

If the keeper is not the driver then an additional point apples as VCS do not currently use the keeper liability provision of the Protection Of Freedoms Act 2012, sch 4. Therefore only the driver can be liable for any charge issued.

Tuesday, 6 December 2016

£2500 threat for breaching advertising consent

A WRAF veteran has been threatened with a £2,500 fine for breaching advertising consent for  flying a flag in memory of fallen soldiers and to celebrate Christmas in her own garden.

Unfortunately the flag and flagpole in question does not benefit from advertisement consent under the Town and Country Planning (Control of Advertisements) Regulations 2007 and the unauthorised display of advertisements is a criminal offence liable for prosecution. This could incur a fine not exceeding £2,500 for each advertisement displayed.
The letter was sent by Broxtowe Borough Council.

The Prankster is concerned why councils are happy to threaten members of the public for breaching advertising regulations, but turn a blind eye to thousands of breaches by companies in car parks up and down the country.

ParkingEye, for instance, according to their own employees, deliberately do not apply for advertising consent as this costs both time and money. They only retrospectively apply is they get caught out.

Many other parking companies similarly flout the regulations, even though their own code of practice requires them to conform.
2.4 When there is relevant legislation and related guidance, this will define the overall standard of conduct for all AOS members. All AOS members must be aware of their legal obligations and implement the relevant legislation and guidance when operating their businesses.
This is of course unfair to those companies who do abide by the rules, as they will operate as a cost disadvantage to the abusers. This is also unfair to ordinary taxpayers. Councils are depriving themselves of much needed revenue by not demanding that car park owners pay the correct fees to apply for advertising consent, and by not fining habitual offenders £2,500 per advertisement displayed. This will have a knock on effect as if councils do not raise money to cover costs in one way, they must raise it in another, ultimately reflecting in the level of council tax.

Happy Parking

The Parking Prankster

Monday, 5 December 2016

AS Parking case thrown out - bad particulars of claim

C3GF84Y2, Daniel Mason, Plymouth County Court.

Independent Observer Court Report

This was the beach car park in Perranporth for a flipped ticket case.

The judge struck out the claim as Gladstone's Solicitors had not submitted proper Particulars of Claim.

Kevin McManus knew nothing about it as Gladstones clearly hadn't alerted him so that's yet more obscene incompetence on their part. The judge said this is not the first time it's happened and they have previously been warned about this. Kev apparently said well done as he was leaving!

Costs of £115.80 were requested; the judge awarded half.

Prankster Note

Gladstones use a suspected Roboclaim system where operators submit basic details and then this is used to make an automated template claim with little or no human involvement. A largely meaningless claim emerges at the other end

09/01/2015 FA10BHE/102988712 £150 09/03/2015
Total due - £150
The Claimant claims the sum of £152.50 for
Parking services and indemnity costs if 
applicable including £2.50 interest pursuant
to S.69 of the County Courts Act 1984 Rate
8.00% pa from dates above to 01/12/2016
Same rate to Judgment or (sooner) payment
Daily rate to Judgment £0.03
Total debt and interest £152.50

One of the main benefits to Gladstones of submitting this gobbledygook is that it is impossible to file a meaningful defence based on this information, giving their clients a huge advantage over unrepresented defendants.

The other benefit is that there is essentially zero cost involved in submitting a claim like this, as there is little or no human involvement and no due diligence to assess the merits of any particular claim. Although Gladstones add on £50 in Legal Representative Costs they have admitted in witness statements that this is not billed on to the client and that once a case is finished they decide between themselves how to divvy up the costs and returns. This therefore appears to be an easy way to artificially add £50 to every claim, meaning parking companies get a better return if a motorist is scared into paying up on receiving a court claim.

This of course encourages abuse of the court system.

The £50 charge was set long ago before the advent of roboclaims. The Prankster believes this fee is now due for a review, and that wholescale abuse could be prevented simply by reducing this charge to £5 for roboclaims. This would remove a major incentive to the roboclaim industry and would reduce the burden on the courts.

Happy Parking

The Parking Prankster

Has Kevin McManus perjured himself in court?

According to the Daily Mail a recent court hearing involved a type 2 diabetic driver who overstayed his car park time by six minutes because he became faint and stopped to check his blood sugar levels.

Despite appealing on this basis Kevin McManus from AS PArking refused to cancel the charge and took the motorist to court.

The driver brought medical evidence of his diabetes to court, but failed to submit it 14 days beforehand.

Kevin McManus refused to cancel the charge stating in court "It is a common condition and we don't want to open the flood gates and offer a get out of jail free card every time someone with a medical condition is issued with a charge."

Mr McManus then contradicted himself later on when asked by the judge whether he would have scrapped the fine had he received the note earlier. Mr McManus stated he would have done except for a £20 administration fee

The judge ruled that the evidence of being a diabetic was inadmissible and so on the balance of probabilities the driver was not diabetic. The £100 parking charge was upheld.

Prankster Note

This case underlines the Prankster's previous blog where he advised filing all your documents on time and not trying to ambush the other side.

According to this report type 2 diabetes is not a long term disability covered by the Equality Act 2010.
There was therefore no requirement to make a reasonable adjustment.

However, the principle of Frustration of Contract may have been applicable if the incident was unforeseen.

A further point is that the overstay was 6 minutes but the code of practice normally requires a 10 minute grace period. It might be that the signage makes it clear there is no grace period on this site, but a Google image from 2015 would appear that it does not.

15.2 Drivers must be allowed a minimum period of 10 minutes to leave a site after a prepaid
or permitted period of parking has expired.
15.3 The reference to 10 minutes in 15.2 above shall not apply where the period of pre-paid
or permitted parking does not exceed 1 hour providing that the signage on the site
makes it clear to the motorist, in a prominent font, that no grace period applies on that

The Prankster is concerned about Mr McManus's claim that he would have scrapped the charge had he received the note earlier.  Mr McManus has not been known to cancel chagres, and his company is described as "being aggressive, greedy cowboys who are only out to make money."

Knowingly providing false information to the court is of course perjury and The Prankster is interested in getting to the bottom of this.

On the face of it, Mr McManus's claim that he would have cancelled the charge is contradictory with his earlier statement that cancelling charges for medical conditions would open the flood gates.

It also does not appear to lie straight with the fact that the driver appealed on the basis of his diabetes and was flatly refused, without Mr McManus asking for any supporting documentation.

If you have ever been offered to have your parking charge waived by AS Parking for a £20 administration fee, please contact The Prankster. This would hold if the full charge is waived either for a medical condition or any other reason. Mr McManus is also welcome to contact The Prankster, seeing as he reads this blog, to provide statistical information regarding the number of charges waived.

On current evidence it would appear to The Prankster that Mr McManus is a lying, aggressive, greedy cowboy, willing to conceal evidence and perjure himself in court. If any evidence to contradict this appears, The Prankster will of course be happy to publish a right of reply.

Happy Parking

The Parking Prankster

Saturday, 3 December 2016

Railway Byelaw fiasco warming up

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

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

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