Several useful points arise
1) The signage is gibberish and cannot be used to create a contract. HHJ Moloney concisely deals with this in points 13 to 16.
2) A trespass has occurred and so some damages are payable. HHJ Moloney had no idea what these would be, and to order a re-trial to assess these would be out of proportion to the costs involved. With the consent of both parties, he therefore took the pragmatic view that he would guess at an amount. However, he made it clear that this was a guess and that this would not set a precedent for future cases.
37. I do not want this assessment to be regarded as a precedent, or a sum that ought to be awarded in other cases. I have indicated the desirability that proper evidence is produced that will justify whatever sum is in fact claimed in a particular caseHe also made it plain that in cases of trespass, it is the actual damages incurred which count. It was laughable that all 18 cases on one invoice were charged at one hour each.
29. I note that all 18 of the cases on the invoice I have seen are charged at precisely one hour each. That is inherently improbable. To be frank, it smacks to me of an attempt to introduce into a trespass claim the sort of “agreed flat fee” approach commonly used in contractual parking cases, which as I have explained cannot apply in a tort case3) In future cases, Ransomes will need to prove it was liable to pay Proserve the amount invoiced.
30. What I am referring to here is an apparent failure by Ransomes to prove that it was4) It is also open to any defendant to prove the work could have been done cheaper.
ever liable to pay Proserve, based on the fact that it did not seek or receive any proof from Proserve that the time had been expended. That is not a ground of appeal in this case, but in future cases I consider that as part of proving its loss Ransomes should plead and prove the amount of work that Proserve did, or is likely on the basis of its general business model to have done, in relation to the particular case in question.
22 Fourthly, even in a case where the loss is foreseeable, and is actually incurred, it isAt this point, The Prankster would like to introduce the relevant part of the costs document used by Excel Parking in POPLA appeals.
open to the defendant to reduce the amount of his liability by proving that the claimant has failed to mitigate his loss. That is to say, proving that there were reasonable steps open to the claimant to reduce his loss but the claimant unreasonably failed to take those steps and thus, in effect, unnecessarily increased the amount of his own loss. If a defendant can show that, then he need only pay the lesser sum that the claimant ought to have lost and not the greater sum that he in fact lost.
Numerous other parking companies also have figures that come out around the £20 mark for this kind of activity.
The Prankster therefore suggests that any motorist who believes he has trespassed makes an offer of £20.88 to settle.
However, it is also worth noting two other points.
1) HHJ Moloney failed to take into account the fact the Proserve were already paid a fixed fee by estate residents to patrol the estate. This should therefore not form part of any costs and an estimated 'patrol' fee can be deducted from the £11.21.
2) If a trespass occurs the trespasser should be given sufficient warning to depart. If you abandon your vehicle, you may therefore be liable, but if a Proserve employee comes up to your vehicle while you are there and photographs it without first asking you to move, you may not be.
3) If you are there, you can also mitigate Proserve's loss by offering to pay up there and then. This will remove the £9.67 costs and most of the £11.21. The Prankster suggests an offer of £5 would be sufficient to cover costs. Make a note of your offer, and if rejected, get the Proserve employee to sign they he has rejected your offer.
On a side note, Proserve have been given permission to move forward to a Judicial Review to see whether they need to join an ATA before the DVLA will give them keeper details again. This will take place sometime in 2015.
The Parking Prankster