ParkingEye court roundup

The Prankster has heard that ParkingEye are currently claiming to win more than 90% of court hearings. However, this does not correspond with the results being reported back to The Prankster.

For the record, here is the complete list of ParkingEye cases reported to The Prankster this week.

Case 1. Stayed until the Supreme Court judgment between ParkingEye and Beavis. ParkingEye wrote to the court a week before the hearing requesting a stay, but did not inform the defendant who turned up with their representative. The judge checked the paperwork and found that the court were due to write to the defendant that morning to inform them that the hearing was off. The judge agreed this was ludicrous. The defendant applied for a wasted costs order and the case was stayed.

Case 2. In a case previously stayed until the Court of Appeal judgment, The Prankster supplied last minute advice on submitting a skeleton argument quoting the case of Aziz v Caixa d’Estalvis de Catalunya, Tarragona I Manresa [2013] 3 CMLR 5, amongst others, and suggested a further stay was requested. ParkingEye opposed the stay. The judge was annoyed with ParkingEye, pointing out that he was the same judge in charge of the previous hearing, and that he had ordered ParkingEye to wait 21 days after the Court of Appeal hearing in case Mr Beavis appealed. ParkingEye waited 5 days. The case was stayed until February 2016.

Case 3. ParkingEye lost due to problems with their signage.

Case 4. In a case previously stayed until the Court of Appeal judgment, the judge struck out defence arguments on pre-estimate of loss before the rehearing. The Prankster supplied last minute advice on submitting a skeleton argument quoting the case of Aziz v Caixa d’Estalvis de Catalunya, Tarragona I Manresa [2013] 3 CMLR 5, amongst others, and suggested bringing this to the attention of the judge to reactivate the arguments and also to ask for a further stay until the Supreme Court hearing. The judge ruled for ParkingEye, but stayed execution until the Supreme Court judgment. If Mr Beavis wins then the claim is struck out; otherwise the motorist has to pay within 21 days.

He also struck out ParkingEye's claim for the motorist to pay the £27 POPLA fee.

Case 5. The Prankster supplied last minute advice on submitting a skeleton argument quoting the case of Aziz v Caixa d’Estalvis de Catalunya, Tarragona I Manresa [2013] 3 CMLR 5, amongst others, and suggested a further stay was requested. ParkingEye opposed the stay. The judge stayed the case until the Supreme Court judgment, after which ParkingEye have 14 days to reactiviate the case if they desire.

Case 6. The case was stayed until the Supreme Court judgment, but in any case ParkingEye's solicitor fee of £50 was struck out.

So out of 6 cases reported, ParkingEye have had 4 stayed, lost one and won the last,  but only if the Supreme Court judgment goes their way. In two of the cases the amount ParkingEye can claim was reduced. This hardly seems like a 90% win record. It is possible that they do have a 90% win record, but this only illustrates that the other cases must be poorly prepared and that they are not using the correct legal arguments.

Prankster Note

The case of Aziz v Caixa d’Estalvis de Catalunya, Tarragona I Manresa [2013] 3 CMLR 5, is of vital importance. It is a European Court of Justice case, and therefore takes precedence on all lower courts, which include the Small Claims Track, Court of Appeal and even the Supreme Court. It was quoted in the Supreme Court hearing of ParkingEye v Beavis, but was not mentioned in the Court of Appeal hearing.

It is therefore the highest court on record on these matters. Judges in the Small Claims track must give it precedence over the Court of Appeal judgment; this means that a Small Claims track judge either has to follow its judgment and rule for the motorist, or stay the case to see how the Supreme Court will interpret matters.

The case concerns how matters of imbalance are interpreted in consumer contracts, regulated in this country by the Unfair Terms in Consumer Contract Regulations 1999. Regulation 5 provides the following:

5.—(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.

Paragraph 77 of the Aziz ruling states:

in order to assess whether the imbalance arises ‘contrary to the requirement of good faith’, it must be determined whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to the term concerned in individual contract negotiations.

It is clear that no motorist would agree to such onerous terms if they were able to negotiate freely and with professional advice. The general rule is that in cases of breach of contract, only the losses cause by the breach can be charge. In ParkingEye v Beavis there was no direct loss, of course, but ParkingEye's average cost per ticket issued is around £18. Looking at it another way, the council charge for an overstay is £50 reduced to £25, so it is clear a charge of £25 is sufficient to deter overstays and this may also be a possible result of negotiation between equal parties.

However, £85 reduced to £50 would not.

The Court of Appeal judgment in the case of ParkingEye v Beavis clearly applies the wrong test for imbalance (para 34 and also para 37, 38). They upheld the original judges reasoning:

The judge […] held that the term did not cause a significant imbalance in the parties' rights and obligations because the charge was no greater than that which a motorist could expect to pay for overstaying in a municipal car park.

However, not only was this reasoning out of line with the Aziz case, it was also factually incorrect because the charge for overstaying in a municipal car park in that area is £50 reduced to £25.

The Prankster therefore believes it is imperative that in forthcoming cases, and until the Supreme Court judgment is available, the Judges attention should be drawn to the Aziz judgment, and also to the cost of overstaying in council car parks local to the case in question.

The full Aziz judgment is available online. A printout should be taken to assist the judge.

Happy Parking

The Parking Prankster

UK Parking Controls scammers cast doubts on use of SmartPhone technology

Many car parking operators today use SmartPhone technology, especially for self-ticketing. The solution is appealing - simply download an App to your SmartPhone, then use the camera to record contraventions and date and time stamp them before uploading them to the operator.

UK Parking Control use such a solution called iWarden2. The App can be downloaded to your SmartPhone, and then you are up and running, earning 10% of the revenue you generate.

However, a number of UK Parking Control wardens appear to be abusing the system, by taking photographs with fake timestamps. Presumably this is done by altering the time on the SmartPhone before taking a photograph.

If done deliberately, this would appear to be fraud.The Prankster has received 5 reports so far, making a total of £500 apparently fraudulently demanded. This may be the tip of the iceberg and the true scale of fraud may be much larger.

This of course sheds doubts on all operators who use SmartPhone technology. The Prankster calls on legitimate operators to declare if they have safeguards built into their applications to prevent fraudulent use. There are many ways to detect this type of activity. For instance, the App could monitor the time when it is running, and silently alert the operator if the time ever goes backwards.
The App could also check system settings when it retrieves the time to check that the time zone has not been altered and also that the time is being provided by the network, rather than being manually set.

This Android programming site gives some details on how this could be achieved.

No doubt other devices have similar properties.

Until this is done all tickets issued via SmartPhone are suspect.

Happy Parking

The Parking Prankster


.

Yet another doctored UKPC timestamp

Another doctored UK Parking Control timestamp has emerged, making it the fifth brought to the attention of The Prankster this week.

The story was reported in the Stoke Sentinel back in June. The motorist was accused of being parked at Lidl from 2.10 to 4.12. However, he only parked at around 3.20, which he knew because he was meeting a friend at 3.30. At the earlier time he was at the gym. UKPC initially rejected his appeal, but the gym provided him with a printout showing he was there at 2.11. Faced with this further evidence, the charge was cancelled.

The motorist has reported the incident to the British Parking Association, who  are investigating.

The Prankster assumes (but has not confirmed) that UKPC wardens are using SmartPhone type technology to take photographs. The time on these phones can be easily manipulated.

Here is a screenshot from The Prankster's phone taken while checking out rumours of an illegally parked horse during the Battle of Hastings.

The ticket was later cancelled by Parking-One-In-The-Eye. They accepted that their signage was deficient, as it would not exist for another 900 or so years.

Happy Parking

The Parking Prankster

Further fake times involving UK Parking Control emerge

It seems that UK Parking Control have a serious problem with honesty, with faked photographs now being apparently used in more than one car park. Three cases have now emerged, in just a week.

This can no longer be attributed to the actions of one rogue parking warden eager to earn his commission. Instead, the problem seems to be across the board. If this is proven, then conspiracy to commit fraud may have occurred.

In the latest case, reported in the Stoke Sentinel a motorist was issued a ticket for staying between 9.40am and 11.40am. However, the motorist only visited the supermarket for 10 minutes, and was at home until 11am, then visited a friend before carrying on to the car park..

The time stamped pictures sent to the motorist showed the car surrounded by the exact same cars, including one with its boot open in both photographs, taken at 9.40 and 11.37.

Here is the photo allegedly taken at 9:40. Note the white car to the left, the blue car to the front with the boot open and the black car to the right.

Here is a photo taken at 11:37. Note the black car to the right is the same.

And another picture at 11:37. The white car to the left is the same, and the blue car to the front still has its boot open. After two hours? Who are UK PC trying to kid?

UK Parking Control stated; "All our photographic evidence is time stamped and this cannot be changed."

Obviously this head in the sand attitude is an indication this whole debacle is carrying on with the tacit approval of management.

Prankster Note

This continuing situation throws doubt on the whole concept of issuing tickets using SmartPhone technology. Reputable operators urgently need to build safeguards into their apps, such that tickets cannot be issued unless the time is currently synchronised with UK time.

Happy Parking

The Parking Prankster

Have you had a ticket from UK Parking Control where you dispute the times? If so, please contact The Prankster with details, including any photographs and the location where the incident occurred. prankster@parking-prankster.com.

UK Parking Control apparently fraudulently altering timestamps.Part II

In a previous post,The Prankster drew attention to two threads on MoneySavingExpert where the motorists thought that UK Parking Control were fraudulently altering timestamps on photographs.

The Prankster has now obtained the photographs submitted to POPLA by UK Parking Control in one case. Here is a side by side comparison of photographs allegedly taken at 7:15 and 9:27. The photographs are not quite taken from the same place.

Of special interest are the shadows.

The Prankster has used an online shadow generator to generate shadows for the same date, times, and place. It should be noted that the photographs are using UK Summer Time, which is one hour ahead of UTC, so 7:15 becomes 6:15 and 9:27 becomes 8:27.

The yellow line is the sun's declination circle. The white line is the ecliptic.

Expected shadow at 6:15

Expected shadow at 8:27

It can be seen that the shadow at 6:15 should be much larger that the shadow at 8:27. Additionally, the shadow should have moved significantly clockwise. Neither effect is apparent.

Suppose the parking warden instead of taking the pictures two hours apart only took them 10 or so minutes apart, by winding their clock back 2 hours. This is what the shadow would look like if the picture was taken at 8.15 instead of 6.15

This appears to be much more like the pictures above. The Prankster therefore suggests that the most likely scenario appears to be the the warden wound the clock back two hours, took a photo, wound the clock to the correct time, waited 10 or so minutes then took another photo.

Here is an overhead of the parking space, showing North.

Lamppost Shadow

Perhaps the best indication that the times are faked is the shadow of the lamppost on the building roof. (The Prankster thanks the eagle-eyed person who pointed this out - you know who you are).

The left side shows the photo supposedly taken at 7:17; the right at 9:27. If these were really taken so far apart the shadow would have moved significantly. It has not.

Here is a screenshot from Google Streetview showing the building and the lamppost.

How should shadows change?

Although these photographs were taken from a different latitude and on a different day, they give the general idea of how shadows change over a few hours in the morning.

7.25 AM 28/08/15

8.20 AM 28/08/15

9.22 AM 28/08/15


Caveat Emptor

The Prankster has acted three times as an expert witness, twice for the prosecution and once for the defence. In one case, the analysis helped secure a conviction. In the second it convinced the prosecution to drop the case. In the third, which happened after the trial but before the sentencing, the Prankster's analysis helped show the conviction was totally flawed and therefore unsafe. A retrial was ordered. The defendant took a plea bargain, admitted a single charge of disorderly conduct and was fined $100, rather than the 40 years sentence she was originally facing.

However, none of these cases involved shadows, and The Prankster's analysis may therefore be wrong.

Happy Parking

The Parking Prankster

Gladstones score big court win

This Pepipoo thread tell of a big Gladstone win today in court.

Sadly the parking company District Enforcement, were not so lucky, and will no doubt have a bill similar to the following.

£18 Gladstones debt collection letter
£18 Gladstones letter before claim
£50 Gladstones filing fee
£200 Gladstones witness statement
£100 Gladstones case handling
£300 Solicitor court fee
£30 Mr Kurpil travel and parking
£90 defendant lost wages

Gladstones, as usual, have come out well on top, earning it appears far more than anyone else.

The defendant reported that before the case Gladstones solicitor Jamie was 'very cocky' calling the claim an 'open and shut case'. More shut, it now appears, than open.

The judge rubbished the evidence, castigated District Enforcement for not providing a bundle, mentioning that every case may be struck out if their behaviour was repeated and there may be contempt of court proceedings. No doubt Gladstones will be happy to pocket another £100 or so for preparing a bundle. The solicitor DE used tried to make a fool of the defendant before the case, but the defendant ended up having the last laugh as the judge ripped her to shreds and made her look incompetent.

DE tried to assert that the motorist was parked on land they controlled. The defendants case was that he was parked nearby on land not owned by DE.

Unsurprisingly the judge was not impressed with the quality of the photographic evidence, which frankly could be a car parked in front of any wooden fence anywhere.

The claim was dismissed with costs awarded to the defendant.

The Prankster reminds parking companies considering using Gladstones that their standard fee does not include any kind of checking as to whether a case has merit or not. They will happily take your money and file any old claim you ask them to, but you will be footing the bill if it turns out there is no case to answer.

The Prankster also reminds parking companies that results from the IAS have no merit and just because an IAS barista rules for a parking company has no bearing whatsoever as to whether there is any merit in the case.

Happy Parking

The Parking Prankster

UK Parking Control apparently fraudulently altering timestamps

Two threads have appeared on MoneySavingExpert which are alleging that UK Parking Control wardens are fraudulently altering the clocks on their smartphones in order to boost ticket revenue.

UKPC reject appeals stating "all photographic evidence is date and time sampled and this cannot be changed by the warden".
While this may be true of the technology the wardens use, this is certainly not true of the smartphone The Prankster uses. For instance, here is a photo of a car The Prankster took just now after altering the time on his camera  many years ago.

And here is a picture taken after correcting the time  much more recent picture of the car, which miraculously has not aged much.

 Here are the digital properties of the first picture, proving it was taken in 2000.

And here is proof that anyone with a keyboard can digitally edit those same properties.

The first motorist tells their story here http://forums.moneysavingexpert.com/showthread.php?t=5312196

The photographs show the car at 2:06 and 4:18. However the motorist actually arrived at around 3:15, and can prove he was at a different place at 2:06 using CCTV evidence from other businesses. The photos are also apparently taken moments apart judging by the shadows and the other nearby vehicles.

The second motorist tells their story here http://forums.moneysavingexpert.com/showthread.php?t=5313494 

The photographs show the car at 07:15 and 09:27. However, the motorist arrived at 08:20. At 07:15 they were still in bed with their alarm going off (also set for 07:15)

The Prankster suggests the second motorist also carefully checks the photographs for shadows and similar vehicles.

The Prankster also suggests that both motorists contact the BPA as obviously this needs to be nipped in the bud, and if fraud is proven, sanction points awarded.

Happy Parking

The Parking Prankster

How does POPLA fare against the ADR Entity criteria?

The Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015 came into force on 9th July 2015. Although they are not mandatory, they do lay down the criteria that an Alternative Dispute Resolution (ADR) body must match or exceed if they wish to gain the status of 'ADR entity'.

This therefore is a natural starting point for any ADR offering. The DVLA when granting Accredited Trade Association  (ATA) status to parking trade associations requires them to offer free ADR to motorists, but it does not currently require the ADR to be carried out by a listed ADR Entity, or even to match those required standards.

The current offering of the Independent Parking Committee (IPC) was matched against those standards, and found to be severely wanting.

Now it is the turn of the BPA's offering, POPLA, to be examined. It is however to be noted that POPLA is currently changing hands and the new system may operate in a different manner.

In summary, the ADR offering passes on 30 counts, fails on 17 counts, with 14 counts unknown or not applicable. The service fails on 4 of 5 fairness criteria and 8 of the 16 transparency criteria.

	pass	fail	unknown or n/a
Alternative dispute resolution services offered by the body	3	0	0
Access to the ADR entity	3	1	2
Expertise, Independence and Impartiality	7	0	1
Conflict of interests procedure	0	0	3
Transparency	6	8	2
Effectiveness	4	1	0
Fairness	1	4	0
Participation	0	1	3
Legality	2	0	0
Grounds to refuse to deal with a dispute	4	2	3
TOTALS	30	17	14

The recommendation is therefore that the DVLA carry out a full audit of the BPA appeals service and dependent on the results considers withholding ATA status unless the service can get up to the required standards in a reasonable timescale. It should be noted that the majority of the failure items can be rectified either by updating the website to provide more information, or by extending timescales allowed for appeals.



The full analysis is as follows.

SCHEDULE 3 Regulation 9(4)

Requirements that a competent authority must be satisfied that the body meets

Alternative dispute resolution services offered by the body
1. The body—
(a) offers alternative dispute resolution services in relation to a domestic dispute or crossborder
dispute brought by a consumer against a trader;
PASS
(b) is not formed for the purpose of dealing only with one particular domestic dispute or
cross-border dispute;
PASS
(c) does not offer alternative dispute resolution services in relation to a domestic or crossborder
dispute in circumstances where an ADR official responsible for the dispute is either employed or remunerated directly by a trader who is a party to the dispute.
PASS


Access to the ADR entity
2. The body—
(a) maintains an up-to-date website which provides the parties to a domestic dispute or crossborder
dispute with information regarding the alternative dispute resolution procedure operated by the body;
FAIL. Only the procedure for motorists is listed. The procedure for operators is kept secret.
(b) provides the information referred to in sub-paragraph (a) to a party on a durable medium,
if a party requests it;
Not known
(c) ensures that its website enables a consumer to file an initial complaint submission and any necessary supporting documents online;
PASS
(d) permits the consumer to file an initial complaint submission by post, if the consumer
wishes;
PASS (althought 'the form' referred to is not easily available.
(e) enables the exchange of information between the parties via electronic means or, if a party wishes, by post;
PASS
(f) accepts disputes covered by Regulation (EU) No 524/2013 of the European Parliament
and of the Council of 21 May 2013 on online dispute resolution for consumer disputes(a).
Not known

Expertise, Independence and Impartiality

3. The body—
(a) ensures that an ADR official possesses a general understanding of the law and the necessary knowledge and skills relating to the out-of-court or judicial resolution of consumer disputes, to be able to carry out his or her functions competently;
PASS
(b) appoints each ADR official for a term of office of sufficient duration to ensure the independence of that person’s actions and provides that no ADR official can be relieved of his or her duties without just cause;
PASS
(c) ensures that no ADR official discharges his or her duties in a way that is biased as regards a party to a dispute, or the representative of a party;
PASS
(d) remunerates an ADR official in a way that is not linked to the outcome of the alternative dispute resolution procedure;
PASS
(e) where it appoints more than one ADR official, ensures that an ADR official, without undue delay, discloses to the body a circumstance that may, or may be seen to—
(i) affect the ADR official’s independence or impartiality; or
(ii) give rise to a conflict of interest with a party to the dispute which the ADR official is asked to resolve;
PASS
(f) ensures that the obligation to disclose a conflict of interest is a continuing obligation throughout the alternative dispute resolution procedure;
PASS
(g) ensures that in circumstances where its ADR officials are employed or remunerated exclusively by a professional organisation or business association, the body has a ringfenced budget at its disposal which is sufficient to enable it to carry out its functions as an ADR entity;
Not known
(h) ensures that where the operating model of its alternative dispute resolution procedure is to have a collegial body of representatives of both professional organisations or business associations, and consumer organisations, its ADR officials comprise an equal number of representatives of consumer interests and trader interests.
PASS - (not applicable)


Conflict of interests procedure

4. The body has in place the following procedure in the event that an ADR official declares or is discovered to have a conflict of interest in relation to a domestic dispute or cross-border dispute—
(a) where possible, the ADR official is replaced by another ADR official to handle the particular dispute;
Not known
(b) if the ADR official cannot be replaced by another ADR official—
(i) the ADR official must refrain from conducting the alternative dispute resolution procedure, and
(ii) the body must, where possible, propose to the parties that they submit the dispute to another ADR entity which is competent to deal with it;
Not known
(c) if the dispute cannot be transferred to another ADR entity, the body—
(i) must inform the parties to the dispute of the circumstances of the conflict of interest,
(ii) must inform the parties to the dispute that they have the right to object to the conflicted person continuing to handle the dispute, and
(iii) can only continue to deal with the dispute if no party to the dispute objects.
Not known

Transparency
5. The body makes the following information publicly available on its website in a clear and easily understandable manner, and provides, on request, this information to any person on a durable medium—
(a) its contact details, including postal address and e-mail address;
PASS
(b) a statement that it has been approved as an ADR entity by the relevant competent authority once this approval has been granted;
Not applicable
(c) its ADR officials, the method of their appointment and the duration of their appointment;
FAIL. Method of appointment and duration are not publicly available on the website. The names are listed in the Annual report, so only on a retrospective basis.
(d) the name of any network of bodies which facilitates cross-border alternative dispute resolution of which it is a member;
Not applicable
(e) the type of domestic disputes and cross-border disputes which it is competent to deal with, including any financial thresholds which apply;
PASS
(f) the procedural rules of the alternative dispute resolution procedure operated by it and the grounds on which it can refuse to deal with a given dispute in accordance with paragraph

13;
FAIL. The operator procedures are not listed
(g) the language in which it is prepared to receive an initial complaint submission;
FAIL. This is not specified
(h) the language in which its alternative dispute resolution procedure can be conducted;
FAIL. This is not specified
(i) the principles the body applies, and the main considerations the body takes into account,
when seeking to resolve a dispute;
PASS
(j) the preliminary requirements, if any, that a party to a dispute needs to have met before the alternative dispute resolution procedure can commence;
PASS
(k) a statement as to whether or not a party to the dispute can withdraw from the alternative dispute resolution procedure once it has commenced;
FAIL. This is not specified
(l) the costs, if any, to be borne by a party, including the rules, if any, on costs awarded by the body at the end of the alternative dispute resolution procedure;
PASS
(m) the average length of each alternative dispute resolution procedure handled by the body;
FAIL. This is not specified

(n) the legal effect of the outcome of the dispute resolution process, including whether the outcome is enforceable and the penalties for non-compliance with the outcome, if any;

FAIL. This is not specified

(o) a statement as to whether or not alternative dispute resolution procedures operated by it can be conducted by oral or written means (or both);

FAIL. This is not specified

(p) the annual activity report required to be prepared under regulation 11(2).

PASS

Effectiveness

6. The body—

(a) ensures that its alternative dispute resolution procedure is available and easily accessible

to both parties irrespective of where they are located including by electronic means and

non-electronic means;

PASS

(b) ensures that—

(i) the parties to a dispute are not obliged to obtain independent advice or be represented

or assisted by a third party although they may choose to do so;

PASS

(ii) the alternative dispute resolution is available free of charge or at a nominal fee for

consumers;

PASS

(c) notifies the parties to a dispute as soon as it has received all the documents containing the

relevant information relating to the dispute constituting the complete complaint file;

FAIL. The motorist is not informed.

(d) notifies the parties of the outcome of the alternative dispute resolution procedure within a

period of 90 days from the date on which the body has received the complete complaint

file except that, in the case of a highly complex dispute, the body may extend this period

but must inform the parties of this extension and the expected length of time that it will

need to conclude the alternative dispute resolution procedure.

PASS

Fairness

7. The body—

(a) ensures that during the alternative dispute resolution procedure the parties may, within a

reasonable period of time, express their points of view;

FAIL. Only 28 days are allowed to appeal, as opposed to the year stipulated by the Regulations

(b) provides a party to a dispute within a reasonable period of time, upon request, with the

arguments, evidence, documents and facts put forward by the other party to the dispute,

including a statement made, or opinion given, by an expert;

PASS

(c) ensures that the parties may, within a reasonable period of time, comment on the information and documents provided under paragraph (b);

FAIL. Only 7 days are allowed 

(d) informs the parties that they are not obliged to retain a legal advisor, but that they may seek independent advice or be represented or assisted by a third party at any stage of the alternative dispute resolution procedure;

FAIL. This is not clearly mentioned

(e) notifies the parties of the outcome of the alternative dispute resolution procedure on a durable medium and gives the parties a statement of the grounds on which the outcome is based.

FAIL. The outcome is notified by email only. 

Participation

8. Subject to paragraphs 9 and 10, in relation to an alternative dispute resolution procedure which aims at resolving a dispute by proposing a solution, the body ensures that the parties—

(a) have the possibility of withdrawing from the alternative dispute resolution procedure at any stage if they are dissatisfied with the performance or operation of the alternative dispute resolution procedure;

Not applicable

(b) before the alternative dispute resolution procedure commences, are informed of their right to withdraw from the alternative dispute resolution procedure at any stage;

Not applicable

(c) are informed, before agreeing to or following the proposed solution—

(i) that they have a choice as to whether or not to agree to, or follow, the proposed solution;

(ii) that their participation in the alternative dispute resolution procedure does not preclude the possibility of them seeking redress through court proceedings;

(iii) that the proposed solution may be different from an outcome determined by a court applying legal rules; and

(iv) of the legal effect of agreeing to, or following the proposed solution;

FAIL

(d) before expressing their consent to a proposed solution or amicable agreement, are allowed a reasonable period of time to reflect.

Not applicable

9. Paragraphs 8(a) and 8(b) do not apply to the body in respect of a party who is—

(a) a trader; and

(b) obliged, under an enactment or under the rules of a trade association to which the trader may belong, to participate in an alternative dispute resolution procedure.

10. Paragraph 8 does not apply to the body in respect of a party who is—

(a) a trader; and

(b) obliged, under an enactment or under the rules of a trade association to which the trader may belong, to accept the solution proposed by the body if the consumer accepts the solution.

Legality

11. In relation to an alternative dispute resolution procedure which aims at resolving a dispute by imposing a solution on the consumer, the body ensures that—

(a) in a situation where there is no conflict of laws, the solution imposed by the body does not result in the consumer being deprived of the protection afforded to the consumer by the provisions that cannot be derogated from by agreement by virtue of any enactment;

PASS. Solutions are non binding on the consumer.

(b) in a situation involving a conflict of laws—

(i) where the law applicable to the sales contract or service contract is determined in accordance with Article 6(1) and (2) of Regulation (EC) No 593/2008 on the law applicable to contractual obligations(a) the solution imposed by the body does not result in the consumer being deprived of the protection afforded to the consumer by the provisions that cannot be derogated from by virtue of the law of the member State in which the consumer is habitually resident;

(ii) where the law applicable to the sales contract or service contract is determined in accordance with Article 5(1) to (3) of the Rome Convention of 19 June 1980 on the law applicable to contractual obligations(a) the solution imposed by the body does not result in the consumer being deprived of the protection afforded to the consumer by the provisions that cannot be derogated from by virtue of the mandatory rules of the law of the member State in which the consumer is habitually resident. l.

PASS. Solutions are non binding on the consumer.

12. For the purposes of paragraph 11 “habitual residence” is be determined in accordance with

Regulation (EC) No 593/2008(b).

Grounds to refuse to deal with a dispute

13. The body may only refuse to deal with a domestic dispute or a cross-border dispute which it is competent to deal with on one of the following grounds—

(a) prior to submitting the complaint to the body, the consumer has not attempted to contact the trader concerned in order to discuss the consumer’s complaint and sought, as a first step, to resolve the matter directly with the trader;

PASS

(b) the dispute is frivolous or vexatious;

PASS

(c) the dispute is being, or has been previously, considered by another ADR entity or by a court;

PASS

(d) the value of the claim falls below or above the monetary thresholds set by the body;

Not applicable

(e) the consumer has not submitted the complaint to the body within the time period specified by the body, provided that such time period is not less than 12 months from the date upon which the trader has given notice to the consumer that the trader is unable to resolve the complaint with the consumer;

FAIL. Complaints are only allowed for 28 days

(f) dealing with such a type of dispute would seriously impair the effective operation of the body.

Not known

14. The body ensures that its policy regarding when it will refuse to deal with a dispute, including in relation to the level of any monetary threshold it sets, does not significantly impair consumers’ access to its alternative dispute resolution procedures.

Not known

15. Subject to paragraph 16, where a body refuses to deal with a dispute, it must, within three weeks of the date upon which it received the complaint file, inform both parties and provide a reasoned explanation of the grounds for not considering the dispute.

PASS

16. Where following the expiry of the period referred to in paragraph 15, it appears to the body that one of the parties has sought to mislead the body as regards the existence or non-existence of one of the grounds for it to decline to deal with a dispute, the body may immediately decline to deal further with the dispute.

FAIL. Any reasonably competent body should be able to detect that the parking operators regularly seek to mislead the body.

Independent Parking Committee fail to provide Alternative Dispute Resolution to ADR Entity consumer regulation standards

The Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015 came into force on 9th July 2015. Although they are not mandatory, they do lay down the criteria that an Alternative Dispute Resolution (ADR) body must match or exceed if they wish to gain the status of 'ADR entity'.

This therefore is a natural starting point for any ADR offering. The DVLA when granting Accredited Trade Association  (ATA) status to parking trade associations requires them to offer free ADR to motorists, but it does not currently require the ADR to be carried out by a listed ADR Entity, or even to match those required standards.

The current offering of the Independent Parking Committee (IPC) has been matched against those standards, and found to be severely wanting.

In summary, the ADR offering passes on 17 counts, fails on 33 counts, with 11 counts unknown or not applicable. Crucially the service fails all 5 of the fairness criteria and 11 of the 16 transparency criteria.

	pass	fail	unknown or n/a
Alternative dispute resolution services offered by the body	2	1	0
Access to the ADR entity	1	3	2
Expertise, Independence and Impartiality	2	5	1
Conflict of interests procedure	0	3	0
Transparency	3	11	2
Effectiveness	3	2	0
Fairness	0	5	0
Participation	0	1	3
Legality	2	0	0
Grounds to refuse to deal with a dispute	4		2            3
TOTALS	17	33	11

The recommendation is therefore that the DVLA carry out a full audit of the IPC appeals service and dependent on the results withholds ATA status unless the service can get up to the required standards in a reasonable timescale.





The full analysis is as follows.

SCHEDULE 3 Regulation 9(4)

Requirements that a competent authority must be satisfied that the body meets

Alternative dispute resolution services offered by the body
1. The body—
(a) offers alternative dispute resolution services in relation to a domestic dispute or crossborder
dispute brought by a consumer against a trader;
PASS
(b) is not formed for the purpose of dealing only with one particular domestic dispute or
cross-border dispute;
PASS
(c) does not offer alternative dispute resolution services in relation to a domestic or crossborder
dispute in circumstances where an ADR official responsible for the dispute is either employed or remunerated directly by a trader who is a party to the dispute.
FAIL. Because the ADR Officials are not named, and the selection process is not transparent this cannot be guaranteed. In addition, at least some disputes appear to have been decided by members of the IPC, given the speed of decision (less than 5 minutes)

Access to the ADR entity
2. The body—
(a) maintains an up-to-date website which provides the parties to a domestic dispute or crossborder
dispute with information regarding the alternative dispute resolution procedure operated by the body;
FAIL. Only the procedure for motorists is listed. The procedure for operators is kept secret.
(b) provides the information referred to in sub-paragraph (a) to a party on a durable medium,
if a party requests it;
Not known
(c) ensures that its website enables a consumer to file an initial complaint submission and any necessary supporting documents online;
PASS
(d) permits the consumer to file an initial complaint submission by post, if the consumer
wishes;
FAIL. Although postal submission has been know to happen, it is not explained how to do this.
(e) enables the exchange of information between the parties via electronic means or, if a party wishes, by post;
FAIL. No exchange of information occurs. Operator submissions and evidence are kept secret.
(f) accepts disputes covered by Regulation (EU) No 524/2013 of the European Parliament
and of the Council of 21 May 2013 on online dispute resolution for consumer disputes(a).
Not known

Expertise, Independence and Impartiality

3. The body—
(a) ensures that an ADR official possesses a general understanding of the law and the necessary knowledge and skills relating to the out-of-court or judicial resolution of consumer disputes, to be able to carry out his or her functions competently;
FAIL. Officials have failed to show competency with basic parking laws and consumer regulations
(b) appoints each ADR official for a term of office of sufficient duration to ensure the independence of that person’s actions and provides that no ADR official can be relieved of his or her duties without just cause;
FAIL: Officials are used on an ad-hoc basis as and when needed
(c) ensures that no ADR official discharges his or her duties in a way that is biased as regards a party to a dispute, or the representative of a party;
FAIL. Analysis of the results shows an apparent institutional bias against motorists
(d) remunerates an ADR official in a way that is not linked to the outcome of the alternative dispute resolution procedure;
PASS
(e) where it appoints more than one ADR official, ensures that an ADR official, without undue delay, discloses to the body a circumstance that may, or may be seen to—
(i) affect the ADR official’s independence or impartiality; or
(ii) give rise to a conflict of interest with a party to the dispute which the ADR official is asked to resolve;
FAIL. As the officials are not named, this cannot be guaranteed.
(f) ensures that the obligation to disclose a conflict of interest is a continuing obligation throughout the alternative dispute resolution procedure;
FAIL. As the officials are not named, this cannot be guaranteed.
(g) ensures that in circumstances where its ADR officials are employed or remunerated exclusively by a professional organisation or business association, the body has a ringfenced budget at its disposal which is sufficient to enable it to carry out its functions as an ADR entity;
Not known
(h) ensures that where the operating model of its alternative dispute reolution procedure is to have a collegial body of representatives of both professional organisations or business associations, and consumer organisations, its ADR officials comprise an equal number of representatives of consumer interests and trader interests.
PASS - (not applicable)


Conflict of interests procedure

4. The body has in place the following procedure in the event that an ADR official declares or is discovered to have a conflict of interest in relation to a domestic dispute or cross-border dispute—
(a) where possible, the ADR official is replaced by another ADR official to handle the particular dispute;
FAIL. As the officials are not named, this cannot be guaranteed.
(b) if the ADR official cannot be replaced by another ADR official—
(i) the ADR official must refrain from conducting the alternative dispute resolution procedure, and
(ii) the body must, where possible, propose to the parties that they submit the dispute to another ADR entity which is competent to deal with it;
FAIL. As the officials are not named, this cannot be guaranteed.
(c) if the dispute cannot be transferred to another ADR entity, the body—
(i) must inform the parties to the dispute of the circumstances of the conflict of interest,
(ii) must inform the parties to the dispute that they have the right to object to the conflicted person continuing to handle the dispute, and
(iii) can only continue to deal with the dispute if no party to the dispute objects.
FAIL. As the officials are not named, this cannot be guaranteed.

Transparency
5. The body makes the following information publicly available on its website in a clear and easily understandable manner, and provides, on request, this information to any person on a durable medium—
(a) its contact details, including postal address and e-mail address;
FAIL. The postal address is not provided on the contact page
(b) a statement that it has been approved as an ADR entity by the relevant competent authority once this approval has been granted;
Not applicable
(c) its ADR officials, the method of their appointment and the duration of their appointment;
FAIL. These are all kept secret
(d) the name of any network of bodies which facilitates cross-border alternative dispute resolution of which it is a member;
Not applicable
(e) the type of domestic disputes and cross-border disputes which it is competent to deal with, including any financial thresholds which apply;
PASS
(f) the procedural rules of the alternative dispute resolution procedure operated by it and the grounds on which it can refuse to deal with a given dispute in accordance with paragraph

13;
FAIL. The operator procedures are not listed
(g) the language in which it is prepared to receive an initial complaint submission;
FAIL. This is not specified
(h) the language in which its alternative dispute resolution procedure can be conducted;
FAIL. This is not specified
(i) the principles the body applies, and the main considerations the body takes into account,
when seeking to resolve a dispute;
FAIL. This is not fully specified
(j) the preliminary requirements, if any, that a party to a dispute needs to have met before the alternative dispute resolution procedure can commence;
PASS
(k) a statement as to whether or not a party to the dispute can withdraw from the alternative dispute resolution procedure once it has commenced;
FAIL. This is not specified
(l) the costs, if any, to be borne by a party, including the rules, if any, on costs awarded by the body at the end of the alternative dispute resolution procedure;
PASS
(m) the average length of each alternative dispute resolution procedure handled by the body;
FAIL. This is not specified

(n) the legal effect of the outcome of the dispute resolution process, including whether the outcome is enforceable and the penalties for non-compliance with the outcome, if any;

FAIL. This is not specified

(o) a statement as to whether or not alternative dispute resolution procedures operated by it can be conducted by oral or written means (or both);

FAIL. This is not specified

(p) the annual activity report required to be prepared under regulation 11(2).

FAIL. No annual report is prepared

Effectiveness

6. The body—

(a) ensures that its alternative dispute resolution procedure is available and easily accessible

to both parties irrespective of where they are located including by electronic means and

non-electronic means;

FAIL. Only electronic applications are easily accessible. Even they are not easy. Cut and paste is not allowed in the appeals box, meaning the entire appeal has to be typed out at the time.

(b) ensures that—

(i) the parties to a dispute are not obliged to obtain independent advice or be represented

or assisted by a third party although they may choose to do so;

PASS

(ii) the alternative dispute resolution is available free of charge or at a nominal fee for

consumers;

PASS

(c) notifies the parties to a dispute as soon as it has received all the documents containing the

relevant information relating to the dispute constituting the complete complaint file;

FAIL. The motorist is not informed.

(d) notifies the parties of the outcome of the alternative dispute resolution procedure within a

period of 90 days from the date on which the body has received the complete complaint

file except that, in the case of a highly complex dispute, the body may extend this period

but must inform the parties of this extension and the expected length of time that it will

need to conclude the alternative dispute resolution procedure.

PASS

Fairness

7. The body—

(a) ensures that during the alternative dispute resolution procedure the parties may, within a

reasonable period of time, express their points of view;

FAIL. Only 21 days are allowed to appeal, as opposed to the year stipulated by the Regulations

(b) provides a party to a dispute within a reasonable period of time, upon request, with the

arguments, evidence, documents and facts put forward by the other party to the dispute,

including a statement made, or opinion given, by an expert;

FAIL. The motorist is not allowed to see anything from the operator until the appeal is finished

(c) ensures that the parties may, within a reasonable period of time, comment on the information and documents provided under paragraph (b);

FAIL. The motorist is not allowed to comment on the information. Even if they were allowed to see it, no changed can be made once the appeal is filed. 

(d) informs the parties that they are not obliged to retain a legal advisor, but that they may seek independent advice or be represented or assisted by a third party at any stage of the alternative dispute resolution procedure;

FAIL. This is not clearly mentioned

(e) notifies the parties of the outcome of the alternative dispute resolution procedure on a durable medium and gives the parties a statement of the grounds on which the outcome is based.

FAIL. The outcome is notified by email only. Where motorists win appeals often no grounds are given, giving rise to the suspicion that a certain number of appeals are allowed to make up the numbers.

Participation

8. Subject to paragraphs 9 and 10, in relation to an alternative dispute resolution procedure which aims at resolving a dispute by proposing a solution, the body ensures that the parties—

(a) have the possibility of withdrawing from the alternative dispute resolution procedure at any stage if they are dissatisfied with the performance or operation of the alternative dispute resolution procedure;

Not applicable

(b) before the alternative dispute resolution procedure commences, are informed of their right to withdraw from the alternative dispute resolution procedure at any stage;

Not applicable

(c) are informed, before agreeing to or following the proposed solution—

(i) that they have a choice as to whether or not to agree to, or follow, the proposed solution;

(ii) that their participation in the alternative dispute resolution procedure does not preclude the possibility of them seeking redress through court proceedings;

(iii) that the proposed solution may be different from an outcome determined by a court applying legal rules; and

(iv) of the legal effect of agreeing to, or following the proposed solution;

FAIL

(d) before expressing their consent to a proposed solution or amicable agreement, are allowed a reasonable period of time to reflect.

Not applicable

9. Paragraphs 8(a) and 8(b) do not apply to the body in respect of a party who is—

(a) a trader; and

(b) obliged, under an enactment or under the rules of a trade association to which the trader may belong, to participate in an alternative dispute resolution procedure.

10. Paragraph 8 does not apply to the body in respect of a party who is—

(a) a trader; and

(b) obliged, under an enactment or under the rules of a trade association to which the trader may belong, to accept the solution proposed by the body if the consumer accepts the solution.

Legality

11. In relation to an alternative dispute resolution procedure which aims at resolving a dispute by imposing a solution on the consumer, the body ensures that—

(a) in a situation where there is no conflict of laws, the solution imposed by the body does not result in the consumer being deprived of the protection afforded to the consumer by the provisions that cannot be derogated from by agreement by virtue of any enactment;

PASS. Solutions are non binding on the consumer.

(b) in a situation involving a conflict of laws—

(i) where the law applicable to the sales contract or service contract is determined in accordance with Article 6(1) and (2) of Regulation (EC) No 593/2008 on the law applicable to contractual obligations(a) the solution imposed by the body does not result in the consumer being deprived of the protection afforded to the consumer by the provisions that cannot be derogated from by virtue of the law of the member State in which the consumer is habitually resident;

(ii) where the law applicable to the sales contract or service contract is determined in accordance with Article 5(1) to (3) of the Rome Convention of 19 June 1980 on the law applicable to contractual obligations(a) the solution imposed by the body does not result in the consumer being deprived of the protection afforded to the consumer by the provisions that cannot be derogated from by virtue of the mandatory rules of the law of the member State in which the consumer is habitually resident. l.

PASS. Solutions are non binding on the consumer.

12. For the purposes of paragraph 11 “habitual residence” is be determined in accordance with

Regulation (EC) No 593/2008(b).

Grounds to refuse to deal with a dispute

13. The body may only refuse to deal with a domestic dispute or a cross-border dispute which it is competent to deal with on one of the following grounds—

(a) prior to submitting the complaint to the body, the consumer has not attempted to contact the trader concerned in order to discuss the consumer’s complaint and sought, as a first step, to resolve the matter directly with the trader;

PASS

(b) the dispute is frivolous or vexatious;

PASS

(c) the dispute is being, or has been previously, considered by another ADR entity or by a court;

PASS

(d) the value of the claim falls below or above the monetary thresholds set by the body;

Not applicable

(e) the consumer has not submitted the complaint to the body within the time period specified by the body, provided that such time period is not less than 12 months from the date upon which the trader has given notice to the consumer that the trader is unable to resolve the complaint with the consumer;

FAIL. Complaints are only allowed for 21 days

(f) dealing with such a type of dispute would seriously impair the effective operation of the body.

Not known

14. The body ensures that its policy regarding when it will refuse to deal with a dispute, including in relation to the level of any monetary threshold it sets, does not significantly impair consumers’ access to its alternative dispute resolution procedures.

Not known

15. Subject to paragraph 16, where a body refuses to deal with a dispute, it must, within three weeks of the date upon which it received the complaint file, inform both parties and provide a reasoned explanation of the grounds for not considering the dispute.

PASS

16. Where following the expiry of the period referred to in paragraph 15, it appears to the body that one of the parties has sought to mislead the body as regards the existence or non-existence of one of the grounds for it to decline to deal with a dispute, the body may immediately decline to deal further with the dispute.

FAIL. Any reasonably competent body should be able to detect that the parking operators regularly seek to mislead the body.

Norman Baker letter confirms parliament do not support ParkingEye's charge

In the recent ParkingEye v Beavis hearing at the Supreme Court, ParkingEye's counsel, Jonathan Kirk, spent a great deal of time trying to persuade the judges that it was parliaments intention when passing the Protection of Freedom's Act 2012, that arbitrary parking charges would be allowed.

As this extract from a letter from transport minister Norman Baker to Andrew Selous MP shows, parliament thought nothing of the sort.

Mr Baker states:

charges for breaking a contract are based on a genuine pre-estimate of loss

In ParkingEye's case, the average cost per ticket issued is around £18. It is clear from this letter that parliament have no support for the £85 to £100 ParkingEye charge in their car parks and that parliament expect appeals services to 'ensure that parking contracts are applied consistently with this legal framework'.

ParkingEye cannot rewrite history and pretend their charge levels are supported by parliament.

Happy Parking

The Parking Prankster

ParkingEye bogus £50 solicitor costs struck out

When ParkingEye file a parking claim they always include an amount of £50 for solicitor filing costs.

This is the maximum allowed according to CPR 45.1 and 45.2

45.1(1) This Section sets out the amounts which, unless the court orders otherwise, are to be allowed in respect of legal representatives’ charges.

Thus, if a solicitor charges £100 to file a claim, the claimant would only be able to claim £50. If a solicitor charges £20, on the other hand, then the claimant would only be able to £20. They cannot claim £50, pass £20 on to their solicitor, and pocket the rest.

In most cases, it would seem extremely unlikely that a solicitor would pick their nose for £20, let alone file a claim for that amount. However in ParkingEye's case, the situation is complicated because they do not pay an external solicitor to file a claim, but do it using the name of their in-house solicitors, Rachael Ledson or more recently Rossana Breaks.

This means that there is no invoice which can be produced by ParkingEye to show they were charged £50 or more by a solicitor. An in-house solicitor is allowed to charge for the work they did (or persons supervised by them did) in filing the claim; however, the important point here is that they must charge for the work actually done - not an arbitrary amount.

Last year, ParkingEye filed over 30,000 claims. That is a total of 30,000 x £50 or £1,500,000 in solicitor's filing costs. It is difficult to see how ParkingEye can justify this amount. They cannot possible pay Rosanna Breaks anywhere near that amount.

30,000 claims is 115 claims a day, or 14 an hour (for an 8 hour working day). If Rosanna Breaks worked flat out with no holidays, no time to eat and no toilet breaks she would still have to file one claim every 4 minutes. At £50 a time this is an hourly rate of £700. Obviously ParkingEye's barrister Jonathan Kirk is in the wrong job.

Of course, as we can all deduce, ParkingEye's filings are almost completely automated. The text consists of one of a few templates filled in with the specific details of the claim. There is no signature needed; a typed name is sufficient for filing bulk claims. If any checking is done this would be surprising, given the amount of claims filed where the defendant is out of jurisdiction. Rosanna Breaks has even filed claims when the defendant has replied to the letter before claim and has confirmed that she was powerless to stop the automatic filing.

ParkingEye's next accounts are due by September 30th 2015. Their last accounts showed their salary costs to be around £4.5 million pounds.
The Prankster previously published the job titles of all 166 ParkingEye employees, showing that in November 2013 there were only 2 people in the legal department, the Head of Legal and a paralegal. There were also 5 people in the claims team.

It does seem unrealistic for ParkingEye to claim that 1/3 of their salary costs are needed to file 30,000 claims a year while the rest of the cost runs the entire remainder of the operation.

And indeed, this is the case. A letter from ParkingEye's head of legal, Rachael Ledson, confirms this.

Ms Ledson states that the costs are in fact nothing whatsoever to do with costs 'on commencement of a claim' but in fact she has lumped in other costs because 'the required attendance on the file takes place for several months prior to the date of issue'. As ParkingEye typically issue a claim 14 days after sending the Letter Before Claim filing then it is clear that the several months of attendance are to do with the normal process of parking charge collection, and have nothing to do with the commencement of a claim.

This of course, was apparently the view of HHJ Moloney in the ParkingEye v Beavis case. HHJ Moloney ordered Mr Beavis to pay £135, which comprise the £85 parking charge, the £25 filing fee and the £25 hearing fee. He did not include the £50 solicitor filing fee in the amount Mr Beavis had to pay.

This is also the view of District Judge Sparrow in Southampton.

On 7th August he issued the above order staying a case until the Supreme Court judgment is available, but also striking out the £50 solicitor costs.

Upon hearing the Defendant in person and hearing the solicitor for the Claimant solicitor, it is ordered that:
1) The element of claim relating to solicitor's costs of issue is struck out.

Prankster Note

The Prankster recommends that any motorist contests the £50 filing cost, and submits the above judgment of DJ Sparrow as evidence.

This advice applies not only to ParkingEye claims. Civil Enforcement Limited is known to claim £50 as the filing costs the solicitor Michael Schwartz charged them. However, they have never substantiated this amount despite umpteen request and it is therefore suspected he charges them much less and they pocket the difference.

Happy Parking

The Parking Prankster