Following on from the earlier hearing where Excel Parking had to pay £80 for failing to provide information necessary to defend the claim, the second hearing has now taken place.
At the start of the hearing it turned out that Joel Douglas, Excel's paralegal, had left the company. His place was taken by a solicitor from an outside firm.
DJ Lettall began proceedings by stating there were two points of procedure to deal with first. Firstly the defendant had a lay representative, The Prankster. DJ Lettall asked if Excel had any objections. It turned out they did. DJ Lettal pointed out that under the Lay Representatives Act 1999 (of which The Prankster just happened to have a copy) The Prankster had a right of audience by default in the small claims court. He therefore asked if there was any specific objections Excel had. Excel stated that under the circumstances they withdrew their objection.
DJ Lettall then explained there was a second problem. Excel Parking had quoted ParkingEye v Beavis in their statement of case. He explained that several parking companies had quoted this case without also informing the court the case had been appealed and was going to the court of appeal. He did not look too pleased about this state of affairs.
Excel's representative with a perfectly straight face said they had no idea the case had been appealed. (This may of course be true. As a solicitor he may not have been properly briefed by Excel).
DJ Lettall explained that although he did not know why the case had been appealed, it was possible that the appeal reasons had to do with objections to commercial justification of the charge. He explained that if he considered the current case and found that the charge was not a genuine pre-estimate of loss, then as he was not as senior as HHJ Moloney he would be bound to find HHJ Moloney's judgment persuasive as find that the charge was commercially justified. There would then be a real problem if the appeal court reversed HHJ Moloney's judgment.
The Prankster then piped up and explained he happened to have a copy of HHJ Moloney's leave to appeal lying around if that would help clarify matters. DJ Lettall read the leave to appeal and explained to Excel that the leave to appeal was indeed to examine the commercial justification angle. The Prankster confirmed that Mr Beavis had indeed appealed on these grounds, that the case was scheduled to be heard in February, and that the judgment was expected within 4 weeks of the hearing.
DJ Lettall explained that he had no choice but to stay the case. Otherwise he may give a judgment which was later proved to be wrong. He asked Excel if they had any comments. Excel's representative, clearly not having had time to read the brief, complained that as the defendant has parked without paying she was clearly liable to something. (Unfortunately for him the defendant was not the driver and Excel were pursuing her as keeper. Also the charge was not for not paying, it was for not displaying a ticket)
DJ Lettall explained* that Excel could not whack in whatever sum they wanted, and expect to get a smaller amount if that was deemed a penalty. They have one shot at setting a figure and the claim will be dismissed if that was set too high.
(* The Prankster is paraphrasing - these were not his actual words)
DJ Lettall then stayed the case until 14 days after the Beavis case, after which time the parties should file written confirmation of what further directions were sought. Costs were held over.
This left Excel carrying the can for their solicitor which would add an estimate of at least £200-£300 to their costs. These would not normally be awarded unless the defendant was behaving unreasonably. DJ Lettall has already warned Excel he may judge they are behaving unreasonably for not referring the case to POPLA, which would have capped their costs at £27.
The Prankster told DJ Lettall he had several other Excel cases in Stockport and asked whether they should all be stayed in order to save time for both parties and the court. DJ Lettall explained he could not possibly comment on other cases.
The Prankster therefore told Excel he would write to them with a list of cases to see if they wanted to mutually agree to stay them.
The claim from Excel was for non-display of ticket. However, this was not an event listed on signage. for which a parking charge notice would be issued. The Unfair Terms in Consumer Contacts Act 1999 applies and the motorist is entitled to interpret the signage in the most advantageous way possible. In this case, the most advantageous way is that non-display of ticket is not a contravention for which Excel can issue a parking charge.
7. (1) A seller or supplier shall ensure that any written term of a contract is expressed in plain, intelligible language.
(2) If there is doubt about the meaning of a written term, the interpretation which is most favourable to the consumer shall prevail but this rule shall not apply in proceedings brought under regulation 12.
The Prankster therefore advises:
1) Any motorist with a ticket from the Peel Centre Stockport to include this in their defence
2) Any motorist where Excel have quoted ParkingEye v Beavis should write to Excel asking whether it would be best for all parties to stay the case, now they know (from A0QZ8099 Excel v Ms. X, 06/10/2014, Stockport County Court, in front of DJ Lettall) that Beavis is being appealed.
3) Any motorist with a hearing should take HHJ Moloney's 'leave to appeal' with them, which can be downloaded from The Prankster website.
The Parking Prankster