Supreme Court confirm Beavis Appeal date

https://www.supremecourt.uk/news/beavis-v-parkingeye-ltd.html

The Supreme Court have confirmed that Mr Beavis has been granted leave to appeal against ParkingEye, and that the hearing will take place alongside Cavendish v Makdessi, which also involves the enforceability of penalty clauses.

The hearing will start on Tuesday 21 July 2015. It is likely to last 3 days, with the Beavis case being heard on day 3.

The hearing will be in court 1 which has an 80 seat capacity on a first-come first-served basis. However, the entire proceedings will be streamed live online here https://www.supremecourt.uk/live/court-01.html.

The Lord Justices assigned to the case are Lord Neuberger, Lord Mance, Lord Clarke, Lord Sumption, Lord Carnwath, Lord Toulson, Lord Hodge. Their biographies are here.

Happy Parking

The Parking Prankster

Barrow Council compensate motorist for illegal ParkingEye signs at The Range

Following a request to Barrow Borough Council in January 2014 as to whether ParkingEye had advertisement consent for its car park signage at The Range, Barrow in Furness, it became apparent to that Council that no consent had been obtained. It is a criminal offence to display such signage without the necessary consent in place. That crime took place between 2012 and February 2015.

Upon a compliant being lodged with the DVLA, it consulted the BPA and both agreed with ParkingEye that ParkingEye could not legally apply for any such consent so ParkingEye had not done anything wrong. Nothing could be further from the truth of course - anyone can apply for such consent whether they own the land or not. However, ParkingEye are past masters at lying to the various authorities and pulling the wool over their eyes.

In November 2014, after ParkingEye was threatened by the Council with being prosecuted, ParkingEye applied for consent. ParkingEye has also applied for similar consents at other sites it manages including, fairly recently, Burton Hospital. So a crime is being committed at Burton Hospital as well!

Hurrah! ParkingEye can apply for consent. The DVLA maintains that ParkingEye cannot apply for consent.

A formal complaint was lodged with the Barrow Council, as the Planning Authority, over its failure to act promptly over this crime.

The Council has now accepted that

1. Officers require training - especially in the law it is required to enforce
2. Officers failed to comply with the Council's enforcement policy
3. Maladministration has occurred, and
4. To compensate the complainant in the sum of £100. The same sum as is being claimed by ParkingEye.

Wouldn't it be nice if the powers that be, that we pay to do their jobs, could just do so - properly in the first place?

The Prankster recommends that any motorists who have paid ParkingEye for a charge regarding The Range, Barrow in Furness before February 2015, contacts Barrow Borough Council, lodges a formal complaint and requests compensation.

Similar councils may also compensate motorists for other car parks where signage is illegal.

Happy Parking

The Parking Prankster

'Incompetent' VCS lose Scottish test case - IAS baristas take note!

This newspaper report describes how VCS's attempt to establish a precedent in Scotland went horribly wrong.

Vehicle Control Services filed multiple court claims in Scotland, and eventually went all the way with one case for £700 worth of parking tickets. However, Sheriff Alastair Brown dismissed the case on the grounds that there was no evidence whatsoever that the defendant was the driver in any of the parking events.

In Scotland, only the driver is liable for parking events. In England and Wales the Protection of Freedoms Act 2012, schedule 4 also makes the keeper liable if certain conditions are fulfilled.

The Sheriff ruled that VCS were incompetent, but that they had not conducted themselves inappropriately, so awarded expenses at the small claims level but did not award punitive expenses.

The defendant's solicitor, Gary McIlravey warned that the decision was not a test case on the legitimacy of future private parking claims, and that each case will turn on the facts..

Prankster Analysis

The Prankster agrees with Mr McIlravey's comment in so far as each case will turn on the facts. It is clear in Scotland that if the facts do not establish who the driver is, then the case must fail.

Once the driver is established of course, then the fundamental nature of the claim still needs to be examined.

The Prankster considers it is also worth comparing the verdict of a proper judge, with a typical kangaroo court verdict returned by the 'Independent' Parking Committee's appeal service, the IAS. The IPC state they use solicitors or barristers, but the general level of legal knowledge and competence suggests they are probably using baristas by mistake.

Here is one barista's comments on a similar case.

The appellant claims in his appeal that he was not the driver, however fails to identify the driver to the operator. Under well established case law, the owner of the vehicle is presumed to be the driver unless the contrary can be proved. 

The Prankster considers this one paragraph epitomises all that is wrong with the IPC appeals service.

• there is no such established case law
• even if there was, any properly legally qualified person would quote it
• there are plenty of cases where the case was dismissed because keeper was not the driver. The assessor therefore shows clear bias by not taking these into consideration
• there is no requirement to identify the driver
• the assessor shows their bias by believing everything the operator says (although the recent BBC Watchdog program shows operators routinely lie in appeals), but does not believe the appellant even though the appellant is required to sign a statement of truth when making the appeal.

Although Scottish law is different to English, The Prankster believes the comparison between the two cases is valid and instructive. The Prankster calls on the IPC to name and shame the barista involved, and to remove him from their assessor panel as he is clearly either incompetent, biased, or both.

The Prankster has seen other verdicts from the IAS where the assessor lacks basic parking knowledge such as the requirements of the Protection of Freedom's Act and assessors are unable to properly decide whether a notice to keeper is compliant or not. With such basic lack of knowledge it is hard to see how the appeals service can call itself 'Independent', let alone legitimate.

By comparison, here is POPLA verdict where the assessor does understand Protection of Freedom's Act

The Appellant states that the requirements of Schedule 4 of the Protection of Freedoms Act 2012 have not been met and keeper liability has not been established and the burden of proof is on the Operator to prove its case on balance of probabilities. Paragraph 4 of Schedule 4 outlines the relevant criteria and there are 4 conditions to be fulfilled in order for the Operator to recover any unpaid parking charge notice from the registered keeper. The first condition is that the Operator has the right to enforce against the driver of the vehicle the requirement to pay the parking charge notice. The second condition is that the Operator has given a notice to the keeper in accordance with paragraph 9. The third condition is that the Operator has made an application for the keeper’s details in relation to the period of parking to which the unpaid parking charges relate and the application was made during the relevant period for the purposes of paragraph 9 (4) where no notice to the driver was given. The fourth condition is that any applicable requirements prescribed under this paragraph were met at the beginning of the period of parking to which the unpaid parking charges relate.

The Operator states that they do not work, issue or seek payment under the Protection of Freedoms Act 2012 however, they are pursuing the Appellant under keeper liability and they have not shown that the requirements of POFA have been met and I am therefore, not satisfied that the Operator has complied with the criteria of Schedule 4 of POFA 2102 and I am unable to find the Appellant liable as the registered keeper for this charge.

The Prankster is interested in compiling a list of bizarre IAS results. If you have had a result where the assessor showed bias, incompetence or lack of parking knowledge, please email it to The Prankster - prankster@parking-prankster.com.

Happy Parking

The Parking Prankster

Duff's arguments found to be duff. Proserve must join an ATA to get keeper data

The judgment in the case of Duff v DVLA has now been handed down, and is available here.

In a nutshell, the judge found that the DVLA had ample reason to require Proserve to join an ATA, and brought attention to his previous failings in signage, charge level and access to independent appeals services.

I agree with the Deputy High Court Judge who refused permission on the papers, prior to its grant at an oral hearing. She observed that this claim for judicial review is really a merits challenge to the decision rather than a true public law claim. The claimant does not agree that he should be subject to a requirement that he should join an ATA if he wishes to be able to access large amounts of data from the register in order that he can profit by recovering sums of money from the keepers or drivers of vehicles which have trespassed on his clients' land. He is no doubt entitled to that view. However, the Secretary of State took a different view and his decision is plainly not irrational and there is no other arguable basis for quashing it.

Full costs were awarded against Duff.

In light of the above The Prankster expects the DVLA to stop providing data to other companies such as ACE Securities and ANPR Ltd who also operate car parking enforcement without belonging to an ATA.

Background

The Prankster
Happy Parking

The Parking Prankster

Duff v DVLA - judgment handed down tomorrow

The Duff v DVLA judgment is due to be handed down tomorrow, according to the Royal Courts of justice website

COURT 3
CHESTER CIVIL JUSTICE CENTRE
Before MR JUSTICE EDIS
Friday 12 June, 2015
At 10 o'clock
FOR JUDGMENT
HAND DOWN
CO/100/2015 The Queen on the application of Devindra v Upper Tribunal (immigration And Asylum Chamber)
CO/4140/2014 The Queen on the application of Duff v Driver & Vehicle Licensing Agency



The two parties will already know the result, but it will be embargoed until 10am tomorrow.

Steven Duff wants the right to issue tickets to vehicles and get driver details without any controls on signage, charge levels, having to obey a code of practice or having an independent appeals process. The DVLA want him to belong to an Accredited Trade Association (ATA) before they hand out details.

If Mr Duff wins we can expect other parking companies to follow suit and dispense with the annoying restrictions imposed by the ATAs. If Mr Duff loses, parking companies who do not belong to and ATA like ACE Security can also expect their access to also be the subject of scrutiny

Happy Parking

The Parking Prankster

ParkingEye sharp practices cost them £313.90 in set-aside judgment

This post on pepipoo details how ParkingEye's sharp practices in court ended up costing them £313.90.

ParkingEye have a habit of filing court claims if no reply is received from their letters. They do this without checking if the motorist address is correct. Of course, one very good reason that no reply is received is if they are writing to the wrong place. Once they receive a default judgment they then use a tracing agent to find the correct address, and try and enforce the judgment. The Prankster believes the correct time to use a tracing agent is before the claim is filed, not after.

In this particular case however the situation was more straightforward - the court papers did not reach the defendant in time.

ParkingEye not only failed to turn up to the set aside hearing, but also threatened the use of bailiffs, despite the set aside application being filed. They also failed to write to the court which is unusual - normally they send in a small forest opposing the set aside.

DDJ Buckley considered that PE not attending, not notifying the court, and threatening enforcement while a set aside was outstanding was vexatious and unreasonable behaviour and therefore awarded full costs under rule 27.14(g).

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part27#27.14

(g) such further costs as the court may assess by the summary procedure and order to be paid by a party who has behaved unreasonably;

These were itemised as
£155 set aside fee
£60 defendant loss of earnings
£98.90 lay representative travel and disbursements

Total = £313.90

The judgment was set aside and the defendant was ordered to file a defence by 26 June, and ParkingEye to respond by 24 July. The case would then be referred to POPLA in the first instance. If POPLA find for the defendant, then the defendant can seek extra costs pursuant to rule 27.14(g).

(Prankster Note: this seems fair because ParkingEye often file no defence at POPLA, so the defendant can claim their preparation time if they do this)

Otherwise, the case will be relisted if the defendant considers the POPLA verdict to be incorrect.

The Prankster considers ParkingEye's options to be as follows

1) Bail out now
Cost £313.90 plus £25 filing fee

2) Fight at POPLA
Cost £313.90 plus £25 filing fee
Cost of preparing a court defence
POPLA cost of £27
Cost of preparing a POPLA defence

If they lose, then they will also face paying the defendant's POPLA preparation costs.

The Prankster has not heard of any POPLA cases where ParkingEye have won post-Beavis (when a good appeal is filed), and has heard of plenty of ParkingEye losses, so assumes this is where the case will be put to bed. However, assuming ParkingEye do win and carry on to court they will then be facing further costs of around £200-£300 for their LPC Law representative.

However, The Prankster has known ParkingEye spend £1,000 on small claims cases to get £100 back, so he assumes they will carry on regardless.

Happy Parking

The Parking Prankster

Smart Parking manager admits £45,000 embezzlement

The Courier has reported that David Edmeads, formerly of Smart Parking, has admitted embezzling £45,000

As previously reported by The Prankster, Smart Parking regard this as small beer, and confirm no motorists were affected.

Sentencing will occur on 14 July at Perth Sheriff Court.

Happy Parking

The Parking Prankster

DVLA reverse position on charging to find out if a parking company have accessed your data

The DVLA previously charged if you wanted to know if a parking company has accessed your data.

They have now apparently changed their mind on this, at least according to this post on pepipoo.

Due to the nature of your request for information we are unable to provide this via email under the Data Protection Act. However, data-subjects have the right to request information held about them by the DVLA. Requests for such information from the vehicle record must be made in writing providing full name and address and details of the vehicle registration mark(s). The fee for this service until today was £5, but this is now a service which is provided “Free of charge”. Requests should be sent with any necessary documents to: Vehicles Fee Paying Enquiry Section, DVLA, Swansea, SA99 1AJ."

The Prankster welcomes this change of position - it is only fair that keepers know if a parking company has correctly accessed data. Going further, it would be even better in future if a keeper could register to be automatically informed if an operator has accessed their data. The Prankster suggests that email would be a cost effective method to do this, with post as a back up for keepers who do not wish to rely on email. This can be easily funded by the current charge to the operators of £2.50.

Happy Parking

The Parking Prankster

DEAL turn up in court - ordered to pay costs

This thread on pepipoo details yet another case where DEAL failed to turn up. The claim was filed by that well known non-solicitor Mswarts, and the defendant filed a robust defence, virtually ensuring the claimant would not turn up.

As usual DEAL did not send the Directions Questionnaire to the defendant, only to the court. The defendant wrote to the court who were interested in the behaviour of the claimant, and asked for evidence of other hearings. The defendant therefore sent in copies of other orders from The Prankster's blogs.

DEAL failed to comply with the court's orders and so the claim was duly struck out. This was confirmed by phone with the courts...but later proved to be premature. DEAL paid the £55 hearing cost at the last minute so 15 days later the defendant turned up for the hearing. There the mystery deepened as to why DEAL bothered...DEAL had discontinued by email at 15:40 the day before.
is. The clerk stated this had happened to another case that day too. The defendant explained to the clerk that this was typical behaviour for DEAL and the clerk suggested they write to the court.

They did so and the court wrote to DEAL explaining that unless they contested the costs, they would be awarded in due course.

DEAL did contest the costs, so another hearing was held. Ironically they did send a person to this one, a paralegal from their London office. This proved just to be more wasted costs for DEAL and the judge awarded the full costs to the claimant.

Happy Parking

The Parking Prankster

Henry Greenslade throws lifeline to legitimate parking companies

Henry Greenslade, lead adjudicator of POPLA has today made a brave decision which will send shudders through the rogue elements of the parking companies. His full statement is available here, but the essence is that now Barry Beavis has filed an appeal, all POPLA cases where the operator relies on the ParkingEye v Beavis result will be stayed until the case is heard at the Supreme Court. This may be some time after July 2016.

The main areas parking cases are contested are

1. did the event occur
2. was the signage sufficient
3. does the operator have authority
4. were consumer regulations complied with
5. are the conditions which make the keeper liable fulfilled
6. is the charge appropriate

If the parking company complies with the first 5 conditions, then POPLA's decision will depend on the result of the sixth. Of course, if they do not comply then POPLA will uphold the appeal.

If the operator is legitimate and the charge is a genuine pre-estimate of loss, then POPLA will rule for the operator; existing case law covers this. Legitimate operators therefore have nothing to fear from Mr Greenslade's decision.

The rogue operators who have artificially inflated their charges will have to rely on the ParkingEye v Beavis result to justify themselves, and this will result in the case being stayed until the Supreme Court hearing. It will be very interesting to be a fly on the wall to see which operators are making angry phone calls to POPLA and Steve Clark of the BPA over the next few days.

The Prankster considers that a parking charge of around £25 in line with council charges is likely to be in the region of a genuine pre-estimate of loss and therefore this level of charge is likely to be allowed by POPLA. Ironically, the ParkingEye v Beavis result also ruled that charges in line with council charges are likely to be allowable. 

With further irony, this level of charge is likely to be perfectly acceptable to the parking operators who offer genuine management services to the landowner. These operators will charge a management fee and therefore be interested in providing a genuine service, in minimising transgressions and will only issues charges when hey are justified.

The rogue element who offer their services for free have to rely on sharp practices and targeting the motorist to maintain their income stream. These companies will have to reassess their way of operating if they want to win at POPLA.

Will it matter

Currently only around 1% of cases go to POPLA. In theory the operators can therefore afford to ignore this and go for business as usual.

However, what may matter more is if the courts take the same view. Judge Jones in Reading is postponing all cases involving ParkingEye until the outcome of the Supreme Court is known. Other courts and judges may well follow suit.

ParkingEye file around 30,000 claims a year, and to each of these claims they add a filing fee of £50. Of course, their claims are electronically generated using templates, so it actually costs almost nothing for them to file the claim, and the £50 is almost all profit. Only around 3,000 claims actually get to court, so if we assume that in most of the rest the motorist caves in and pays up, then this £50 generates around £1.3 million. ParkingEye's last accounts (2013) showed a pre-tax profit of £1.6 million.

This means that ParkingEye are relying on filing court claims to generate most of their profit; if the courts stayed all cases then ParkingEye could be in serious financial difficulty.

Of course, the 2014 accounts may show a different picture so The Prankster eagerly awaits their arrival to see if ParkingEye have cooked their own goose or if they have other income streams.

Legitimate Operators

Currently legitimate operators have difficulty winning contracts away from the rogue operators who come in and offer landowners parking 'management' for free. Of course, once the landowner realises that they have let the wolf into the hen-house it is too late and the landowner finds there are large penalty clauses if they want to cancel. 

This new ruling may tip the balance and make it more of a level playing field if all operators need to charge a management fee to make the contract viable. This will be a welcome change.

The Prankster and Mr Greenslade have clashed before and no doubt will again, but for the second time The Prankster tips his hat to Mr Greenslade.

Happy Parking

The Parking Prankster