Monday, 9 December 2013

Well researched motorists demolish ParkingEye witness statement in court

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 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


  1. A good result in the end, but I am getting seriously fed up of reading these tales about county court judges taking a completely cavalier attitude in respect of purported damages.

  2. It also shows how unprepared and clueless PE's solicitors are when they appear in court. There was one case where the solicitor thought he was representing Private Eye.

  3. It's about time one of these cases went higher. Mere county court judges seem unable to grasp the concept of these things from the "relevant contract", to the lack of a clear contract and the utterly despicable way PE turn up with reams of stuff in court that no-one knew anything about beforehand.

  4. District Judges seem to know little if anything about penalty clauses. They adopt the attitude '£60 seems fair' as if this were the sum on a disputed plumber's invoice for fixing a leaky tap.

    The following cases will be discussed in depth in the case in Jan. if PE dont run away

    Parkingeye Ltd v Somerfield Stores Ltd [2012] EWCA Civ 1338 (17 October 2012)

    Lordsvale Finance plc v Bank of Zambia [1996] QB 752

    Cavendish Square Holdings BV & Anor v El Makdessi [2012] EWHC 4305 (Comm) (18 December 2012)

    See in court, Rachel.

  5. If Parking Eye, or indeed any party to proceedings, introduce something into evidence, even at a late stage, they are obliged to let the Defendant have a copy of it and a copy should be taken for the court file. Perhaps the ladies could be advised to contact the court and ask for a copy to be provided?

    Now to business.

    The rules of evidence are clear on how and when evidence can be adduced and accepted into evidence and it would appear that the District Judge has let PE's representative get away with not following these very strict rules when he did not order PE's lawyer (and I use that term loosely) to hand over a copy of even the redacted contract to the Defendants. He should have either done that or he could have refused to accept the contract into evidence at such a late stage. In the event he did neither, but fortunately it all turned out ok.

    For future reference you should note that any evidence PE want to rely on MUST be supplied at the disclosure stage of proceedings, and since the contract that supposedly establishes their loss (i.e. their contract with the landowner) is vital to establish a valid claim, any solicitor who turns up at court and tries to introduce it at a late stage is either being incompetent or, as seems more likely in PE's case, has an alternative motive.

    And for future reference you should note that PE would have to produce an unredacted contract to the court. They may provide a redacted copy to the Defendant in their disclosure documents, but if they redact out the vital paragraph (as in para 22 here ) then the Defendant will have the right to question why redactions are made. It is at that point that the DJ will compare the unredacted document with the redacted one and all will be revealed.

  6. If only you were right... unfortunately the CPR give the District Judge extremely wide powers to dispense with pretty much everything around evidence - so whilst you're right in that for proper proceedings evidence cannot be submitted late, in the lottery that is Small Claims Track everything is possible if the judge thinks fit. And very often they do...

  7. I agree that this needs to progress further up the chain and would happily donate the value of a PCN towards this. It's an expensive business appealing Small Claims if you lose - my wife made me promise I wouldn't ask for an appeal! :) But a collective financial pot and carefully chosen case could have a higher court decide on the allocation of what constitutes a loss and whose loss it is and also bring up the serious question of so much action taken without correctly conveyed contractual rights to do so.

    I would also say from experience that in the Small Claims track all rules are off regards evidence. Submitting evidence on the day can be allowed, and I would recommend having EVERYTHING available even if it's not been submitted, referencing something verbally and being asked if you can prove it allows a lot to be passed over the table.

  8. Well, there needs to be a reasonable pot. I believe once the (theoretical) appeal from the District Judge to the Circuit Judge (which is still no proper precedent) is pushed higher up the food chain then it is the Court of Appeal which is responsible. And I think costs for the CA are upwards of £10-20k minimum. So this is a pretty hefty sum to be collected by keen motorists...

    1. 100 people like me or £5 off every motorist hit recently... shame it's not easy to contact them all. Plus I suppose you'd have to lose the first appeal.

  9. Clause 22, "Save as expressly provided in this agreement." Clause 3.7 is expressly provided in this agreement. There is no contradiction


    1. So as agent they have no standing to bring a claim in their name .

  10. Ooops!

    CPR Part 27.8 (3) The strict rules of evidence do not apply.

    CPR Part 27.2 (1) (b) also provides for the disapplication of the rules governing disclosure and inspection.

    In mitigation I have to say I have no experience whatsoever in the Small Claims court. My area of expertise lies within the normal county courts and the courts above. However, as I well know, ignorance of the law is no defence.

    Mea culpa.

  11. And PE website is cock sure there winning against forum advice in court?