MET Parking operate 'customer not here' scam at McDonalds

This post on pepipoo shows how MET Parking operatives operate a parking scan at McDonalds.

The scam works as follows:

The MET Parking operative issues large numbers of tickets at once for 'customer not on premises'. He has no idea whether the customer is or is not on the premises; he doesn't go in the restaurant to check; he just issues large numbers of tickets.

When the customers leave McDonalds and find the ticket, they complain to the operative who fobs them off.

They then go back and complain to the manager. It appears the manager may be in on the scam as he did not cancel the ticket despite the customers having just been in the restaurant. In any case, the manager certainly did nothing to help, which allows MET Parking to carry on with the scam.

When the customers appeal to MET Parking, they continue the scam by rejecting the appeal:

Whilst you have supplied receipts for the purchases at the restaurant a site survey was conducted whilst your vehicle was on the premises and as there was no one to take accountability for your vehicle a parking charge notice was issued. We can confirm that the charge was issued correctly and we are upholding it.

Obviously the statement that a site survey was conducted was false. No-one came round the restaurant calling out vehicle numbers and asking if the occupants were present. No doubt an enquiry to McDonalds would reveal that such a site survey has never happened.

This kind of predatory scam shows why certain sectors of the parking industry need to be weeded out. MET Parking issue large numbers of fake tickets in the hope that some motorists are scared into paying up.

This is not an isolated incident. MET Parking have a history of deceiving motorists and have been caught out in the past issue tickets under the wrong regulations in railways station car parks.

The Prankster would be happy to pass on the location of the MacDonalds in question to the BPA so that they can investigate further. If the motorist in question wishes to contact him, please use prankster@parking-prankster.com

Happy Parking

The Parking Prankster

Devere try and frighten motorists to hide the fact their contract is squiffy

Devere have been writing to motorists threatening legal action if they ask POPLA to check that their contract with landowners is valid.

The Prankster usually finds that when companies threaten legal action in this way, they have something to hide. Take ParkingEye, for instance, who have written all kinds of legal letters to The Prankster trying to stop him exposing their shambolic business and deceptive processes.

The Devere letter is therefore a red rag to a bull, requiring further investigation into Devere's contracts. Here's one, which was signed on 11th July 2011.

That proves to be an interesting date, because Devere Parking Services Ltd did not exist at that point in time.

Devere Parking Services Limited was only incorporated on 15 July 2011. As they did not exist on 11 July 2011, they would have had difficulty signing any contracts on that day, and in fact the contract does not include their company number. This does seem a bit squiffy to The Prankster.

The Prankster therefore recommends that any motorist charged by Devere asks to see the contract and checks at least the date on which their contract with the landowner was signed.

Happy Parking

The Parking Prankster

ParkingEye to stop charging motorists £27 for POPLA

A BPA spokesman has confirmed that ParkingEye will no longer be charging motorists £27 if their POPLA appeal fails. Following a tip off the BPA investigated the situation and confirmed that ParkingEye will in future be obeying the government requirements that the parking industry provide POPLA free to the motorist.

The change will not be retrospective, so ParkingEye will not be refunding motorists who have already paid the £27.

ParkingEye will also not be amending any claims in current court actions, so if they are already claiming the £27 they will continue to do so.

The Prankster therefore recommends that anyone currently involved with court action with ParkingEye post POPLA should check the claim, and if if includes a POPLA fee include relevant material in their claim to contest this.

Following further tip offs, the BPA are currently investigating other parking firms charging for POPLA. These investigations are not yet complete.

Happy Parking

The Parking Prankster

VCS and ParkingEye court cases adjourned to wait for Cambridge appeal

A case involving Vehicle Control Services Ltd was adjourned for a second time on 16/06/2014. The first case was adjourned to await the result of the Cambridge case, ParkingEye v Beavis and Wardley, heard by HHJ Moloney. It is clear that courts around the country are viewing this as some kind of test case.

Despite this, Joel Douglas the VCS legal beagle was apparently not too well informed about this case (or possibly just in a fluster because he arrived 2 hours late) and told the defendants before the hearing that he was unaware that HHJ Moloney had given leave to appeal. Luckily the defendants had downloaded HHJ Moloney's document from The Prankster web site and were able to give this to the judge.

During the hearing Joel Douglas had a sudden attack of memory unfailure and started to tell the judge all about the appeal he had earlier claimed to know nothing about. He argued that the defendants had waited until the last minute to appeal the Moloney case.

The judge adjourned the case a second time, told him to go away and wait for the appeal outcome.

Following on, the next case the judge heard was a ParkingEye case. He asked ParkingEye's representative from LPC Law whether it was true the Moloney case was being appealed. The LPC Law wallah did not know so went off to phone ParkingEye. He returned to say that ParkingEye did not know whether an appeal was submitted but word on the grapevine was that it had.

The judge adjourned this case too. No doubt he was suitably unimpressed that VCS seemed to know more about the appeal than ParkingEye were admitting to knowing, and that none of this had been bought to his attention previously by the claimants.

The ParkingEye wallah submitted a claim for over £200 for his time which was held over.

Prankster Analysis

It is clear that many judge's are reluctant to overrule HHJ Moloney's ruling, despite the clear warning he made in both his judgment and his leave to appeal, and despite the fact that the car park in question was a one-off in that ParkingEye pay £1,000 a week to the landowner.

However, when shown the leave to appeal document, they do take note of this and often adjourn the case rather than make a ruling of their own. This is sensible because if they follow the HHJ Moloney ruling they would be duty bound to allow an appeal too, which would further clog up the courts.

Given that an appeal is underway, if your case hinges on the fact that the charge is not a genuine pre-estimate of loss, it is therefore worth any defendants writing to both the court and ParkingEye.

To the court manager

ParkingEye are relying on the case of ParkingEye v Beavis and Wardley. However, HHJ Moloney recognised there was no higher case law backing his judgment and therefore gave leave to appeal. I enclose a copy, which shows his thoughts clearly. Paragraphs 1a to 1c of his judgment also go into more detail. This case is now being appealed to the court of appeal.

Several subsequent hearings have been adjourned on the day, after the leave to appeal was brought to the judge's attention.

I therefore ask whether the court can use their discretionary case management powers to adjourn this case until after the appeal is held. This will save court resources and also the time and money of both myself and ParkingEye.

If the court does not adjourn your case beforehand, but does on the day, you can then use this letter to argue against any ParkingEye costs, and argue for your own costs to be paid by the court.

If your case hinges on other matters, such as double visits, signage and so on, you may prefer to get it over with rather than wait a long time with this hanging over you.

Happy Parking

The Parking Prankster

Ransomes Park Limited admit charging VAT when they should not

Ransomes Park Limited have been charging VAT on monies for damages for a long while.

They have finally admitted that they should not be charging VAT on monies for damages. Therefore any motorists who have paid up a Ransomes demand should contact Ransomes to ask for payment of the VAT portion to be refunded. They could also consider informing HMRC that they have been charged VAT when they should not have been.

The address to contact for a refund is:

Mr Nigel Robson

Ransomes Park Limited

1 Quay Point

Station Road

Woodbridge

Suffolk

IP12 4AL

Happy Parking

The Parking Prankster

New release of The Prankster guides to ParkingEye court cases

Following the result of the widely publicised small claims case in Cambridge, The Prankster has been busy at work updating the guides to ParkingEye court cases.

The Parking Prankster Guide to Arguing a ParkingEye Court Case has been renamed to The Parking Prankster Guide to Defending a ParkingEye Court Case and is available on Amazon and Smashwords.

The guide has been extensively reworded, with additions and updates to the following areas

 Free proof of postage

 McKenzie Friends

 Lay Representatives

 Defences which are too large to file online

 Landowner witness statement

 Hearings in Welsh

 Not resident in England or Wales

 ParkingEye no longer file detailed particulars of claim

 Court selection

 N180 form – accompanying letter

 Court Mediation

 Landowner negotiation

 POPLA referral web page

 Landowner witness statement

 Landowner Letter of Authority

 Landowner Contract

 ParkingEye witness statement

 LPC Law right of advocacy

 Part 18 requests

Previous purchasers at Smashwords can immediately download the new version.

The Prankster has asked Amazon to allow previous purchasers to be able to download the new version; this may take a few days for Amazon to sort out.

The Prankster is still working on revisions to the free guide which will hopefully be released shortly.

Happy Parking

The Parking Prankster

POPLA ignores HHJ Moloney ruling

In a recent POPLA case Vehicle Control Services Limited quoted extensively from HHJ Moloney's ruling in ParkingEye v Beavis and Wardley in their evidence pack regarding their charges.

However, as this is a small claims verdict, POPLA chose to ignore it. The claim is currently being appealed in the court of appeal, at which point the verdict will become binding on lower courts for similar cases.

Firstly, I do not accept the Operator’s submission that the charge represents a genuine pre-estimate of loss. A detailed breakdown of each head of loss will not always be required, but the Operator must provide some explanation as to how it arrives at its final sum. The Operator has not explained in any detail how the sum of £166.01 is arrived at before it is reduced to £100. The explanation provided by the Operator also appears to include general operational costs and costs which could not possibly be incurred as a direct result of the alleged breach. Accordingly, I am not satisfied that the Operator has shown the charge of £100 is arrived at by a genuine attempt to pre-estimate its loss.

Further, I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty,“if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”.

This supports the principle that the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.

In this case, it is clear that the dominant purpose of the charge is to deter vehicles from staying beyond the 90 minute limit. Accordingly, I am not satisfied that the charge can be commercially justified.

Given that the charge is not commercially justified, nor has it been shown to be a genuine pre-estimate of loss, I accept on this occasion the Appellant’s submission that it is not enforceable.

Accordingly, I must allow the appeal.
I need not decide any other issues.

Christopher Adamson

Watchdog exposes the BPA Ltd's and Patrick Troy's failure to police the industry

On Wednesday 11/06/2014 Watchdog featured a small slot on the private parking industry, showing two of the ways in which parking companies try and game the POPLA system, and explaining to Patrick Troy, CEO of the BPA Ltd that they had hundreds more complaints.

Patrick Troy tried to dodge the issue, mumbling his way through a pre-prepared speech regarding the 30,000 POPLA appeals which had taken place. Since there has been around 3,000,000 tickets issued, this amounts to less than 1% of charges issued, so is nothing to be proud about.

When Anne Robinson questioned him regarding how the BPA Ltd would be enforcing the rules, he failed to answer, trying to get back to the topic of his 30,000 appeals.

The Prankster gets informed of parking companies trying to game POPLA day in and day out, so he knows the problem is a real one, and very large.

The Prankster wishes Patrick Troy would put more effort into solving the fundamental problems of the industry, and less effort into trying to pretend everything is all right.

Happy Parking

The Parking Prankster

Arguments to use if ParkingEye try and use HHJ Moloney's judgment in your case (2/3) Appeal

ParkingEye are quoting the HHJ Moloney judgment in every claim they now make. However, HHJ Moloney realised that his judgment was breaking new ground and may well be overturned. He therefore gave permission to appeal, and Mr Beavis has now filed appeal papers

If you are in this situation with ParkingEye, it is therefore worth filing HHJ Moloney's permission to appeal document with your case, to make your judge fully aware of the situation.

Here is a copy of his leave to appeal.

 

The Prankster has made this available on his website where it can be downloaded as exhibits 39 or 40 (an OCR version which may contain errors)

I allowed permission on the main issue, which is whether a charge of £85 for as little as half an hour's overstay in a car park is an unenforceable penalty clause.
I decided that, although it has the principal characteristic of a penalty, namely an intention to deter breach rather than simply compensate for loss occasioned by breach, nevertheless it was enforceable because it was commercially justifiable and not disproportionate or oppressive. There are no clear decisions of the higher courts on this point in this or a similar context, but recent Court of Appeal decisions in commercial cases indicate varying approaches.
There is a real prospect that a higher court might conclude that this was an unenforceable penalty and/or unfair contract term. I refused permission on the other issues which only raise standard contract points. But this appeal I have leapfrogged to the CA.

Please indicate which of the following criteria apply:
x There appear to be conflicting authorities.
x There is a point of general principle and importance in the development of the substantive law.

1. At a practical level, there are numerous such cases pending in small claims courts, where litigants in person are taking these legal points (which they find on the internet) and busy DJs are asking for clear authoritative guidance so defences can be struck out and court time used efficiently.
2. Normally an appeal from me in a multi track trial would go to the CA not the High Ct. This case was nominally a small claim but was conducted like a multi track with leading counsel.
3. A High Ct Judge would be confronted with the same absence of clear CA authority as me and the case would probably end up in the CA anyway but after considerable delay

The Prankster therefore recommends that in your case you refer both to this, and also to paragraph 1.2 of the judgment.

On the grounds of standing to bring the case, it is apparent that most car parks ParkingEye operate have a different landowner contract, and so the judgment does not apply. The Prankster has already blogged about this.

On the grounds that the charge is a penalty, it is clear that 'there is a real prospect that a higher court might conclude that this was an unenforceable penalty and/or unfair contract term' and that 'There appear to be conflicting authorities'

You could therefore ask for a preliminary hearing to be heard on all grounds apart from the level of charges, and if the case is not decided by that time for it to be adjourned to await the result of the court of appeal hearing.

Costs

In the event that your judge decides to agree with HHJ Moloney's reasoning before the court of appeal verdict, it is well worth pointing out that HHJ Moloney did not award the solicitor filing costs for Rachel Ledson of £50, but only awarded the parking charge of £85, the court filing fee, and the court hearing fee, totalling £135.

You should therefore also ask that the same reasoning be applied in your case, and Rachel Ledson's charge of £50 be removed from the costs.

Rachel Ledson is an employee of ParkingEye, and so her charge has already been accounted for in the parking charge, so this would be double charging. Moreover,  as she files up to 2,000 claims a week, she can only spend a minute or so filing each case and so this charge cannot be justified/

Prankster Analysis

In general (not just parking cases) the Ministry of Justice make most of their money from claims which are filed and then the defendant is scared into paying by the threat of court action. They lose money if a case goes to a hearing; a judge's time is far more expensive than the £25 hearing fee.

Parking cases are throwing a spanner into the works, because large numbers are being defended, there is little binding case law, and there are often many detailed points of law to argue; so cases take up a lot of time.

This is presumably what is behind HHJ Moloney's statement:

At a practical level, there are numerous such cases pending in small claims courts, where litigants in person are taking these legal points (which they find on the internet) and busy DJs are asking for clear authoritative guidance so defences can be struck out and court time used efficiently. 

In retrospect, he may have reworded it a little more judiciously, such as 'defences or claims struck out'.

However, the point is there that courts need to bear in mind the overriding objectives of the practice directions, which are available at this link;

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part01#1.1

They state (The Prankster's highlights)

(2) Dealing with a case justly and at proportionate cost includes, so far as is practicable –
(a) ensuring that the parties are on an equal footing;
(b) saving expense;
(c) dealing with the case in ways which are proportionate –
(i) to the amount of money involved;
(ii) to the importance of the case;
(iii) to the complexity of the issues; and
(iv) to the financial position of each party;
(d) ensuring that it is dealt with expeditiously and fairly;
(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; and
(f) enforcing compliance with rules, practice directions and orders.

With large numbers of claims for £70 - £100 taking large amounts of court time it is clear these overriding objectives are not being met.

It is therefore also worth bring the courts attention to the fact there is a perfectly reasonable and well established way to resolve these disputes without involving further court time, and this is to refer it in the first instance to the industry standard ADR, which in the case of ParkingEye is to appeal to them and then use POPLA if the dispute is still in issue.

It is worth pointing out to the court that there are no obstacles to using POPLA, apart from self imposed ones raised by the parking companies and which have no validity. You can also point out to the court that all claims which have been referred to POPLA have been accepted by POPLA with no issues, and have been resolved there without needing to return to court and without wasting further court time.

The Prankster maintains a dedicated web page listing the cases which have been referred to POPLA.

Happy Parking

The Parking Prankster

Ashley Cohen gets yet another job. Grasses up CEL

The hard working Ashley Cohen has taken time out from his busy life at Civil Enforcement Limited to take on yet another role.

Now he also works as administrator for the Co-op.

The Prankster wonders whether he ever gets time to see his family.

Luckily in this case Ashley was honest enough to confirm that the contract with the Co-op only allowed CEL to charge for breach of contract. As CEL were claiming the charge was a contractual charge, the assessor therefore threw it out.

Happy Parking

The Parking Prankster

Watchdog on POPLA. Print out and keep checklist

On BBC1, Wednesday 11th June Watchdog are covering dodgy tactics used by parking companies to try and game the POPLA process. Here is the Prankster's print out and keep guide.

Check how many dodgy practices Watchdog manage to cover in the program.

Not giving a POPLA code with an appeal refusal

Saying the appeal time has elapsed at the same time as sending a Notice to Driver

Starting the debt collection process while an appeal is running

Giving a POPLA code which does not work

Offering to do the POPLA appeal for the motorist

Trying to mislead the motorist that their appeal is not one POPLA will even accept

Telling the motorist their appeal will not succeed at POPLA

Giving a POPLA code which starts from an earlier date to the date the appeal refusal was sent

Stating that the motorist can pay and get their money refunded if they win the appeal, even though they know POPLA refuse appeals if the motorist already paid

Asking for a stamped addressed envelope with appeals

Stating that the motorist's grounds are not valid grounds for appeal, even though they have won a previous appeal with the same operator on the same grounds

Hiding the POPLA code in the appeal refusal without saying what it is

Sending fake information to motorists to try and persuade them not to appeal to POPLA

Only providing a web address for POPLA, and not paper copies of the appeal documents.

Not answering the motorist appeal points, and just sending a template letter

Sending in false financial information to try and explain genuine pre-estimate of loss calculations

Sending in different  false financial information to try and explain genuine pre-estimate of loss calculations, after POPLA reject previous explanations

Incorrectly redacting contracts to hide information detrimental to their case.

Sending the evidence pack to POPLA but not the motorist

Sending a different evidence pack to POPLA but not the motorist

Sending the evidence pack late to the motorist and lying to POPLA as to the date it was sent

Sending in witness statements with false information

Sending in witness statements with information not in the knowledge of the witness

Sending in witness statements with opinions the witness is not qualified to make

Sending in witness statements with true, but deliberately misleading information

Sending in witness statements with false information and photocopied witness signatures, without the knowledge of the witness

Signing witness statement on behalf of the witness, without their knowledge

Signing witness statements while pretending to be an employee of the witness

Charging the motorist £27 for a POPLA appeal

Refusing appeals and forcing the motorist to use POPLA, even though large numbers of appeals have been lost on the same point.

Happy Parking

The Parking Prankster

A warning to potential customers of Park Direct UK Limited

Potential customers of Park Direct UK Limited should consider very carefully whether this is the kind of parking company they actually want to deal with.

A housing complex with parking problems found this to their cost recently. They needed parking control because their parking spaces were being abused by commuters and shoppers, but quickly found out what a toxic relationship they were in when complaints flooded in from residents. Apparently, the income from commuters and shoppers was not enough, so instead they resorted to ticketing late at night and also to ticketing spaces not covered by the contract.

The amateurishness of the operation is apparent from the fact they refused to cancel tickets on appeal for spaces not covered by the contract, but continued to issue even more tickets. When sending out appeal refusals they only sent information on appealing to POPLA online. Motorists without easy access to computers are therefore disadvantaged.

During the POPLA process they further compounded their errors only sending evidence packs to POPLA, and not to the motorist. It also appears they do not bother with their own email address, preferring to use one from AOL.

It also appears they do not bother with keeping to the POPLA timescale either, sending their evidence in one day late.

It is not clear why POPLA accepted this late evidence without any genuine reason for the operator as to the delay. POPLA do not allow appeals from motorists if they do not comply with the timescales. It may be that POPLA has decided it is time to abandon impartiality, and to make a fresh start, siding with the poor beleaguered parking companies.

The evidence pack was quite frankly, one of worst The Prankster has ever seen, consisting more of a series of unstructured ramblings than any serious attempt to put together structured evidence.  It did not even contain a copy of the charge notice, (although it is possible this was one of the zero byte files sent).

The appellant built their case mainly on the fact that the ticket was issued in an area where Park Direct was not contracted to operate, and also threw in that the charge was not a genuine pre-estimate of loss.

In reply the operator, rather bizarrely, asked for the appeal to be thrown out as they considered these reasons not to be valid reasons for appeal.

However, rather helpfully the operator also provided a photograph showing the areas where they could not ticket, and a photograph showing that car was indeed parked in an area where they had no authority to ticket.

The car was parked in the area marked with the left hand X. As you can see, the operators operative sneaked in at 22:31 at night to issue the charge.

They also provided a copy of their contract, but this was more of a joke than a real contract. It did not comply in the slightest with the requirements detailed in the BPA Ltd code of practice.

POPLA refused the appeal on the grounds that...(wait for it)...the charge was not a genuine pre-estimate of loss. This neatly sidesteps any problems they may have had with finding the operator was not authorised to issue tickets. This means they do not have to report the operator to the BPA Ltd, and the BPA Ltd do not have to issue 10 sanction points.

The whole operation seems a shambles from start to finish, and unsurprisingly their contract has already been terminated.

Prankster Note

Sadly although this resident got the unauthorised charge cancelled, and has two more in the POPLA pipeline, other residents paid up and still have not been refunded. The Prankster has heard that one young disabled lady, who is deaf and also pregnant received an invalid charge but paid up because she was worried and had nobody to turn to for advice.

The Prankster has now heard Park Direct consider the matter closed and have refused to refund her.

Potential customers of Park direct should take note of their behaviour when considering whether to award future contracts or continue with existing ones.

Happy Parking 

The parking Prankster

Ashley Cohen gets a new job

Ashley Cohen has a new job. He is now working as administrator for...Civil Enforcement Limited.

It appears Civil Enforcement Limited have not quite got the hang of witness statements. If they want to state they are the operator, they can just state it. It carries no extra weight to dress this up in a witness statement. If operators can just say they have landowner authority without actually providing any proof, then this defeats the point of the appeal system.

Happy Parking

The Parking Prankster

Premier Park parking charges finally cancelled by POPLA after more than a year

This tale starts some time ago - in fact, back in January 2013. The motorist was issued 2 parking charge notices by Premier Park. He appealed them, and when his appeal was rejected he appealed them again to POPLA.

POPLA rejected his appeals on 30th May 2013 and 19 July 2013, both of which were a surprise to the motorist as he never received any evidence packs from the parking company. This is a procedural error, because the motorist is required to receive these packs within 28 days of making the appeal, and then has 7 days to make further representations to POPLA.

The motorist therefore appealed both results to POPLA on procedural grounds, and asked for the case to be re-opened, the evidence packs sent to him, and the right of further representations to be had.

Meanwhile Premier Park instructed Trethowans who wrote to the motorist saying they would begin legal proceedings if he did not pay. The motorist replied that the POPLA result was under review.

There then followed a large number of letters to and fro, with Trethowans asking the motorist to pay, the motorist saying the case was still under review, and the motorist chasing POPLA to see the status of the review.

Eventually, despite being informed the case was still under review, Trethowans filed a court claim on 2nd December, without following the correct pre-court protocol by sending a letter before claim.

On the 4th December, the motorist finally received a letter from the lead adjudicator of POPLA agreeing to re-open the first case and giving a hearing date of 18 December.

With the help of The Prankster, the motorist therefore drafted a defence stating that the cases were still under review by POPLA, that Trethowans had filed the claim despite being informed of this, and without sending a letter before claim. The motorist further stated that the first case was due to be reheard on 18 December and the second was still in POPLA's administrative backlog. The motorist asked for the claim to be stayed for POPLA to complete the process, after which time he would file a defence

Exeter County Court recommended a stay of 3 months to allow the POPLA hearing to progress.

The motorist made his representations, the case was reassessed, and on 17th February POPLA upheld the first appeal on the grounds the charge was not a genuine pre-estimate of loss.

The motorist wrote to Trethowans asking them to drop the claim as they had no prospect of success, and that he believed the court would regard their behaviour as unreasonable if they continued.

They continued.

After more emails to POPLA and a formal complaint the motorist finally got confirmation on 21st March 2014 that the second case was being re-opened and would be held on 8th April. The motorist sent his representations on 1st April, but these were rejected because the POPLA code was not valid. Luckily, the motorist received a second email on the same day saying the POPLA code was valid after all and this was an administrative error.

The case was finally reassessed on 23rd May 2014 and POPLA upheld the  appeal on the grounds that...the charge was not a genuine pre-estimate of loss. No surprises there then!

The motorist is now waiting for formal confirmation from Trethowans that the claim has been discontinued.

Prankster Comment

The good news is that POPLA finally did the right thing. The bad news is that it took 3 days shy of a year to do it, and 4 months to decide to reopen the second case on exactly the same grounds as the first case.

It is a simple matter for POPLA to decide. If the motorist does not receive the evidence pack, then they are allowed the hearing to be re-opened.

Any motorist not receiving their evidence pack within 28 days should email POPLA informing them of this and asking for the appeal to be upheld as the evidence pack has not been provided in time.

In an ideal world POPLA would be responsible for sending the evidence pack to the motorist. They could then keep records around this. Sadly, in order to save money, they have decided not to do this but to leave the job to the parking companies, some of whom take advantage by sending evidence packs late or not sending them at all.

Companies such as CP Plus and Highview, for instance, regularly lie to POPLA and say they have sent evidence packs when they have not; the Prankster has personally experienced this several times.

The situation is therefore not ideal. As POPLA do not publish the procedure on their web site there are no doubt many motorists who have lost appeals at POPLA, but who never received evidence packs, or received them too late, and who do not realise that they can have their appeals re-heard.

Trethowans do not exactly come out of this covered in glory either. For a company that take a large number of motorists to court you would think they could string together some form of compliant Letter Before Claim by now. And rather than trousering the money from their client, churning out letters and filing court claims it turns out it would have been more prudent and cheaper for Premier Park to wait for the POPLA process to finish.


Happy Parking

The Parking Prankster

Appeals system a mess

[Updated 6/6/2014 with information from the BPA. See below]

The Prankster has been aware of several situations where parking companies have jumped ship from the BPA Ltd to the IPC, and motorists who appeal regarding tickets issued before the leaving date have been left in limbo.

POPLA refuse to accept the appeal because the operator is not longer a member.

The IAS refuse to accept the appeal because the operator was not a member when the ticket was issued.

The Prankster suggests the BPA, the IPC and the DVLA get together in a locked room and thrash the issue out, not leaving until a solution is agreed on. If necessary, somebody could slide pizzas under the door to keep them going.

It cannot be right that the motorist is left without a way to appeal.

Meanwhile, the Prankster suggests that all Notice to Keeper documents issued in this situation do not comply with the requirements of the Protection of Freedoms Act 2012, Schedule 4. This means that keeper liability does not apply and only the driver can be claimed against.

9(2)(g) states information which must be present on a notice to keeper for it to be valid (7(2)(d) and 8(2)(g) contain similar clauses  for notice to driver and the following notice to keeper)

inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;

If the notice contains incorrect information, or information about a procedure that is not available, then this requirement has not been met.

The letters between the government and the BPA made it clear that access to a free independent appeals service was a criteria for allowing keeper liability provisions in POFA 2012 to go ahead.

The Prankster also suggests contacting the landowner to get them to cancel the charge if the operator refuses to provide a valid independent appeals process.

Update 6/62014

Steve Clarke of the BPA has been in touch, and apparently the meeting with the locked door and pizzas slid underneath has already happened. There were some teething problems when the IPC first started, but these should be ironed out now.

The situation now is, all parking charges issued when an operator is a member of the BPA should be able to use POPLA to appeal. This is the official viewpoint of the BPA.

If anyone has experienced otherwise in a particular case, please contact Steve Clark at steve.c@britishparking.co.uk with information about your case, and he will see that POPLA hear the appeal and the the appropriate training is given to the person who thought POPLA could not hear the appeal.

Happy Parking

The Parking Prankster

ParkingEye lose in court. Fail to send representative.

[updated following information from Bargepole]

3JD11777 ParkingEye v Fielding (04/06/2014 Liverpool) ParkingEye failed to send a representative and so the claim was struck out.

The claim was apparently for around £400. The defendant did not ask for costs, preferring to leg it just in case ParkingEye did turn up.

As the claim was only struck out, ParkingEye could still pay a fee to restart the claim.

Happy Parking

The Parking Prankster

Arguments to use if ParkingEye try and use HHJ Moloney's judgment in your case (1/3, Standing)

In a recent well-publicised small claims hearing in Cambridge, ParkingEye v Beavis and Wardley, His Honour Judge Moloney ruled in favour of ParkingEye in both claims

ParkingEye have been sending out the judgment of HHJ Moloney to several ongoing cases The Prankster knows about. So far, they have not said why they think it is applicable, preferring instead just to say they will be relying on it.

This blog post explains why The Prankster thinks this judgment is not useful for the majority of ParkingEye car parks, and gives you arguments you can use if this is raised in your case. The Prankster is in the middle of updating his guides, but this is taking more time than expected and therefore the information is being published here to help motorists immediately.

It may be useful to refer to the judgement in full. The Prankster has hosted a copy here. Exhibit CS020 is the transcript. This transcript has been OCR'ed from the original, and therefore contains small spelling mistakes
and other minor problems.

The first item to bring to the attention of any judge is HHJ Moloney's own warning at the beginning of the transcript.

1.2 I should however emphasise:
a. that since I am a Circuit Judge not a High Court Judge, this decision has only persuasive force;
b. that it is based on one particular set of the Claimant's standard notices and terms, which may have varied from time to time, a point which should be checked in other cases;
c. that although Mr Foster, the Defendants' McKenzie friend, put his case clearly and well, especially in his very helpful written submissions, and although leading and junior counsel for the Claimant were of course conscious of their duty to the Court to inform it of all relevant authorities that might assist either side, still the Defendants did not have the benefit of professional assistance that might in another case produce different arguments and perhaps a different result.

Item 1.2b is likely to be the most helpful in other cases, because the car park in question is operated in a significantly different way to practically all other ParkingEye car parks. For the Riverside Retail Park, Chelmsford, ParkingEye pay £1,000 a week to the landowner (this figure was redacted from the judgment, but mentioned in open court). ParkingEye's 2012/3 accounts show cost of sales to be £2.3 million, which would allow 45 of their 800+ car parks to operate in a similar manner. Thus, the vast number of their car parks operate on a different basis.

Paragraph 1.2c is also important, because it shows that new arguments, not used in that case, may well cause a different verdict. The following analysis therefore presents new arguments, not used in the hearing.

Standing to bring the case

One of the issues of any parking case is whether the operator has standing to bring a claim for breach of contract. There are two court of record judgments on this issue, both contradictory. Neither is a case between motorist and car park operator and so some of the judgment may also be obiter.

In VCS v HMRC [2013] EWCA Civ 186, the court ruled that the contract between landowner and operator established that VCS were the principal and allowed VCS to take motorists to court in their own name.

In ParkingEye v Somerfield [2012] EWCA Civ 1338, the court ruled that the contract between landowner and operator established that any debt was due to Somerfield, not ParkingEye and that ParkingEye did not have the authority to issue legal proceedings in their own name.

As both of these decisions are binding on the small claims court, the judge's task in any small claim hearing is to determine which of these two cases your case most resembles. You task, therefore, is to try and show the judge how similar your case is to ParkingEye v Somerfield. ParkingEye's task, is of course to attempt to liken the case to VCS v HMRC.

The main distinguishing facts between the two cases are:

VCS v HMRC

VCS are the principal in any relationship between motorist and operator.
VCS fill in, and issue physical permits which the motorist must display in the car and which act as consideration from VCS to motorist
VCS issue charges and collect charges on behalf of themselves

ParkingEye v Somerfield
Somerfield are the principal in the relationship between motorist and operator
No physical permits are filed in or issued by ParkingEye, or need to be displayed.
ParkingEye collect charges for breach of contract on behalf of the landowner

For Riverside Retail Park, Chelmsford, HHJ Moloney ruled the situation resembled VCS v HMRC for the following reasons.

5.7 In construing a commercial contract with apparently contradictory provisions, the Court should where possible seek to give the contract business efficacy and adopt the interpretation which best fits the contract read as a whole- Here, it appears to me that the financial provisions of this contract give the best clue to its real nature so far as the question of "principal or agent?" is concerned. The landowner is not paying Parking Eye to carry out work for it or discharge functions on its behalf. Rather, Parking Eye is paying the landowner for the valuable privilege of being able to run a car park for Parking Eyes own profit, and specifically for being allowed to levy charges on over-stayers. Moreover, as the Claimant points out, the payments to the landlord are at a flat rate; the landlord does not take any percentage or other direct share in the sums received by Parking Eye and is not even entitled to an account of them. This fact renders implausible the Defendants' suggestion that Parking Eye owes some form of fiduciary duty to the landowner. 

In most other car parks, the following evidence can be used to distinguish between your case and VCS v HMRC.

Landowner Contract

Firstly, ParkingEye's standard landowner contract states in clause 3.11

3.11 The Parties acknowledge that the Revenue from the Charges retained by ParkingEye is consideration for the Services and that the supply of the Services attracts VAT at the standard rate. As such ParkingEye will generate a monthly VAT only invoice to the Customer to reflect the additional amount to be paid in VAT in respect of the monies received for the Services. The Customer agrees to pay all such invoices within thirty days of receipt on the Due Date. 

This establishes that ParkingEye are acting as agents of the landowner, collecting the charges (which are for breach of contract) on their behalf. The fact that ParkingEye keep those charges does not alter that relationship. (The actual way the transaction works for accounting purposes is that ParkingEye pay the charge to the landowner, who then pay it back, plus VAT. However, as the non VAT element cancels out, no money changes hands for this part, and a VAT-only invoice is generated where it is marked as 'paid on account'.)

As ParkingEye submit this monthly VAT invoice, it also follows that the landowner has a complete account of parking charges paid. However, the landowner also has access to a more detailed breakdown.

ParkingEye's standard contract also states at clause 8

8. WEBSITE
8.1 On or before the Go Live Date ParkingEye shall notify the Customer of the web
address for accessing the Website in order for the Customer and its employees,
representatives and agents to monitor the data generated at the Site(s) and the
control of vehicles and Permit Holders at the car parking areas located at the Site(s).
Access to the Website shall be in accordance with its terms and conditions. 

Thus, the landowner has access to the full data generated at the site. Here is an example of the type of data customers get.

ParkingEye's standard contract also includes

23. NO LANDLORD AND TENANT
Parking Eye and the Customer agree that no relationship of landlord and tenant as defined under the Landlord and Tenant Act 1954 is intended or deemed to be created in relation to the operation of this Agreement at any site, nor shall the provisions of this Agreement be deemed to create  in favour of Parking Eye any lease of or similar interest in the land in which the Products are situated.

This establishes that ParkingEye do not have the right to offer parking spaces as principal. if anything, they offer them as agent on behalf of the landowner.

Prankster Note

The question may be asked, why did HHJ Moloney not pick up on clauses 3.11 and 8 which directly contradict his judgment. It may be of course that the contract did not contain these clauses. However, it came out during the hearing that the contract that HHJ Moloney was given was redacted and it may be that these clauses were deliberately withheld by ParkingEye. The Prankster is currently helping with another case for this retail park, and here the defendant has been provided with a contract where these clauses are redacted. The Prankster has previously complained that ParkingEye redact parts of the contract crucial to the case, and he agrees with Hill Dickenson that incorrectly redacting documents is an unlawful and improper practice.

Signage

Many signs that ParkingEye use establish that the Landowner has full control of parking. It is important to check the small print and also to get a photographic copy of the signage as close as possible to the date of the parking event, as ParkingEye often fiddle with the exact wording, and keep poor records of their own changes.

Typical small print which will help your case that ParkingEye are agents include the following:

"ParkingEye is solely engaged to provide a traffic space maximisation scheme"
"[ParkingEye] are not responsible for the car park surface, damage or loss to or from motor vehicles or general site safety"
"Parking is at the absolute discretion of the landowner"
"Parking is at the absolute discretion of the site"

ParkingEye's statement of case

In many claims, ParkingEye state that they are agents of the landowner. Sometimes they even provide a separate 'Document on Agency' to back this up.You should therefore make a note of al the places where they occur. It would be unreasonable for them to turn up at a court hearing and completely reverse their position, stating that they were mistaken and that they are actually the principal.

You would be entitled to ask the judge to adjourn the case so that you can have time to prepare a new defence, given that the claimant has a dedicated legal team who should have known the basis on what they were filing, before they considered making a claim.

You should ask for full expenses for a wasted hearing and for ParkingEye to file form N244 and pay a fee to the court if they want to change their statement of case.

In this sample document from another case it is clear that Jonathan Kirk QC (the same person who acted on ParkingEye's behalf for the Cambridge case), thought that in at least this case ParkingEye were acting as agents on behalf of the landowner.

Sample Skeleton Defence for this point

1. Lack of Standing by Claimant: The Claimant is not the landowner of the car park, and has no proprietary interest in it. This means that the Claimant, as a matter of law, has no locus standi to litigate in their own name. Any consideration is provided by the landholder, and only they can sue for damages or trespass.

2. With regard to this, there are two Court of Appeal judgments of note, which are therefore binding on lower courts; ParkingEye v Somerfield [2012 EWCA Civ 1338] and HMRC v VCS [2013 EWCA Civ 186]. In the first, the court ruled that the parking company could not take legal action in their own name. In the second the court ruled they could. The nature of the relationship between landowner and car park operator, and the wording of the contract between them, is key to distinguishing these two cases. It is instructive therefore to compare the current relationship between ParkingEye and landowner, and the wording of the contract, to see whether this more closely resembles ParkingEye v Somerfield or HMRC v VCS.

3. The defendant submits that it is obvious the relationship is more like the ParkingEye v Somerfield case, and relies on the following evidence

a) Exhibit 1, a sample landowner contract, which is believed to be similar to the landowner contract in this current case. Attention is draw to clause 3.11 which shows that all damages for breach of contract are passed to the landowner (and then reclaimed as a service charge incurring VAT). This establishes that ParkingEye act as agent of the landowner and that the landowner has full knowledge of all parking charges. Clause 8 further shows that the landowner has full knowledge of all charges issued and collected. Clause 23 shows that the landowner retains control of the parking spaces

b) Exhibit 2, a sample VAT only invoice 

c) Exhibit 3, sample charge and information provided to the landowner via the web interface

d) Exhibit 4, signage small print. Attention is drawn to the clauses that state; parking is at the sole discretion of the landowner, establishing that the gift of a parking space is the landowners, not ParkingEye's, that ParkingEye accept no liability for the site, establishing for instance that the landowner is the party to claim against if negligence in maintaining the site causes an accident, or negligence in policing disabled bays causes a breach of the equality Act 2010; that ParkingEye solely provide a traffic throughput scheme, establishing that the gift of a parking space is the landowner's.

e) Exhibit 5, ParkingEye's own statement of case, where they claim they are agents of the landowner 

f) The claimant is ParkingEye, the same as in the ParkingEye v Somerfield case. They have made no submissions showing how the current contract differs from that case, or is similar to the contract in VCS v HMRC.

4. Key differences to VCS v HMRC and similarities to ParkingEye v Somerfield are:

a) ParkingEye are acting as agents, collecting charges on behalf of the landowner instead of principal, acting as independent contractor collecting charges for themselves
b) The landowner has full knowledge of charges issued and paid
c) The landowner retains landlord rights and the sole discretion of allowing parking
d) No physical permits, filled in by the operator are issued to the motorists and required to be displayed in the vehicle

5. In 3JD04329 ParkingEye v Wardley (12/05/2014 St Albans) District Judge Cross found ParkingEye’s contract to be more like the Somerfield case than VCS v HMRC, and dismissed the claim. No transcript is currently available. However, the claimant is a well funded company which  regularly purchases transcripts for cases it wins, whereas motorists are not likely to purchase transcripts for cases they win against ParkingEye. ParkingEye were present at this case and can therefore confirm these details from the case notes taken by their representative.

5. If ParkingEye cite ParkingEye v Beavis and Wardley, then it should be noted that HHJ Moloney urges caution that the judgment may not apply to all situations and that the particular circumstances, contracts and signage should be examined. The following points can easily differentiate that case from this.

1. ParkingEye have not shown that they pay the landowner a flat fee of £1,000 a week in this case
2. ParkingEye in that case did not collect the charges on behalf of the landowner, and send a monthly VAT only invoice; or if they did, this was not disclosed to the court as clause 3.11 of the landowner contract was redacted
3. ParkingEye in that case did not provide a web interface to the landowner to monitor parking charges issued and collected; or if they did this was not disclosed to the court as clause 8 of the landowner contract was redacted

The Appeal

Finally, HHJ Moloney gave permission to appeal to the defendants. It is not known at this time whether they will go ahead. However, if they do then if ParkingEye wish to rely on this judgment and include it as part of your case, you should also consider writing to the court to ask for your case to be stayed until the appeal is over.

If your case has other aspects which mean you think you will stand a good chance anyway, you could also ask for a preliminary hearing to decide on just those issues, and if the case is not resolved to await the appeal to decide on issues of standing and whether the charge is a penalty.

Possible issues could be; signage was ambiguous or deficient; you broke down; you visited twice; you were not parked for the time recorded

If you lose your case, and the appeal hearing is imminent, it might be worth asking for leave to appeal based on the result of the appeal hearing.

Happy Parking

The Parking Prankster

Devere Parking Services Ltd open fatuous letter writing department

Devere Parking Services Ltd have apparently opened a new fatuous letter writing department, devoted to lying to motorists, spouting irrelevancies, pressurizing motorists even if they are disabled, and generally behaving in the way expected of the worst of the bottom feeding parking companies.

In this latest slight to motorists Devere have started to threaten motorists with legal action if they raise the issue at that the landowner contract may not be in order. Devere say they will take action for defamation which is of course ridiculous as a private letter between the two parties cannot be defamation.

In his dealings with parking companies The Prankster has found that the companies that complain loudest about contracts with landowners are usually the ones with something to hide. The Prankster therefore suggests that all appeals against tickets issued by Devere should question their contract with the landowner until such time as the issue has been proved either way.

In a bizarre twist in one letter Devere stated that the appeal was rejected, but that they would not issue a POPLA code as they could not be bothered to waste any more time. The parking charge was therefore cancelled.

Devere do not seem to have any grasp of contract law, regularly stating that the parking charge is a contract entered into for breach of contract. It is of course, not possible to enter into a contract merely for the purpose of breaching it.

Devere have also resorted to pressurising motorists, in one case saying they were disappointed in the attitude of a disabled motorist and his daughters for daring to appeal and investigate the breakdown of charges.

In a refreshing change from the majority of parking companies who have seen it necessary to lie that their charges are a genuine pre-estimate of loss, Devere flatly deny that their charge is anything to do with landowner costs or a pre-estimate of loss incurred by themselves of the landowner. As they also admit the charge is for a breach of conditions this makes them in violation of the British Parking Association Limited Code of Practice which states that charges for breach of contract must be a genuine pre-estimate of loss. No doubt somebody in charge at Devere will be along with the clue-bat later to educate the letter writer that they are fatally weakening any POPLA case.

Devere state that their charge is donated to the Castlepoint Disability Fund and that by refusing to pay their charge, the fund is the only loser. The Prankster suggests that if anyone want to donate to this fund they can do so directly, and use gift aid to increase their donation.

Lastly in one letter, Devere accuse the motorist of not writing it themself. It is of course, perfectly reasonable to get other people to write specialist letters. People get solicitors to do this all the time.

Prankster Note

Sadly the British Parking Association Limited ignore this kind of behaviour and show no attempt to control the situation. This throws the whole industry into disrepute and makes a farce of the BPA Ltd's stated aim to raise standards in the industry.

If they cannot see what is going on in front of their face then it has to be questioned whether they are the right people to control their members. The Prankster seems to mange to unearth dodgy practices, time after time after time (after time after time) so it cannot be too difficult. Paying a few people to patrol the motoring forums and investigate might be a good start. Actually making the worst of the parking companies toe the line would be a good next step.

Happy Parking

The Parking Prankster