Link Parking v Cowles. Another big win for Gladstones Solicitors in court

Link Parking v Cowles B5GF95H3, Chippenham Court, 24/11/2015 in front of DJ Asplin

The Prankster has received this court report from a BMPA observer. Prankster notes are in italics.

Gladstones Solicitors scored another big payday, what with fees for filing the case and preparing a witness statement. As usual in cases reported to the Prankster, their client Link Parking was not so lucky.

In court was Mr Cowles, the driver of the car and Mr Gardner, a director from Link Parking. DJ Asplin opened proceedings by trying to establish the facts of the case

The car park in question was a car park in Bristol, not fully open to general members of the public but used for contract parking.  Parking is permitted, according to the sign submitted in the Link Parking witness statement, for cars with a blue badge, cars with a valid P&D ticket displayed, or cars with a valid permit displayed. By parking otherwise, DJ Asplin explained, drivers are agreeing to pay a penalty of £100.

At this point Mr Cowles waved his evidence pack but DJ Asplin asked him to wait as he was taking all the excitement away. DJ Asplin then produced another sign, this time from the defendant's evidence pack, which had a different set of terms and conditions. He asked Mr Gardner about this sign. Mr Gardner explained this sign was put up by a company called TCN who are the landowners. The signs (for it turns out later there were many of these) were put up before Link Parking managed the site and are still there, two years later.

DJ Asplin asked why the signs had not been removed. Mr Gardner explained the building was listed and the signs would require planning permission to remove. DJ Asplin did not appear to believe this and made a funny noise. DJ Asplin asked why the signs could not be covered up with Link Parking signs. Mr Gardner did not come up with an answer.

DJ Asplin then attempted to understand the complexities of the site. Bargain Parking lease some of the spaces in the car park from the landowner, TCN. Other spaces are apparently available for P&D customers or leased to other parties by TCN directly. Bargain Parking then contract with companies whose staff need parking, and these companies allow some of their staff to park there. Mr Cowles was one such person. Meanwhile, Link Parking are retained by Bargain Parking to manage their part of the site.

It is not immediately apparent to The Prankster how Link Parking have standing to bring the case. The contract appears to be with Bargain Parking and to have been concluded long before the actual parking event. However, this was not explored in court.

DJ Asplin asked how a random person arriving would know which bays are patrolled by Link Parking. Mr Gardner replied that random people did not use the car park.

This does not appear to answer the question and appears to conflict with the statement that some spaces are used for P&D.

DJ Asplin then turned his attention to the rogue signs which stated; Permit Holders only. Use the car park at your own risk. Unauthorised users will be fined.

There was no requirement to display any permit and Mr Cowles explained he was an authorised user because his work authorised him.

DJ Asplin wondered how a member of the public was supposed to know which of the two different signs were valid and which not.

He then turned his attention to a map of a random car park somewhere in Cardiff, and asked what this had to do with the car park in question, which was in Bristol. Mr Gardner explained his solicitors, Gladstones Solicitors had a computer problem which 'printed one page down', and so had filed a map of the wrong car park.

DJ Asplin asked Mr Gardner did he not sign a witness statement on 27 September stating this was the car park in question? Mr Gardner admitted he had. DJ Asplin asked why, if the car park was not correct. Mr Gardner explained that when Gladstones had sent him the witness statement to sign, they had not included the evidence. DJ Asplin asked was that not a silly thing to do, to sign a witness statement which was not complete? Mr Gardner replied that the solicitors asked him to sign it. DJ Asplin asked if his solicitors asked him to jump off a cliff, would he do so? Mr Gardner replied he would not.

DJ Asplin then explained that the witness statement had been signed negligently.

DJ Asplin then asked Mr Cowles why the permit was not displayed. Mr Cowles explained that he had taken his wife's car that day, and had forgotten to switch permits. DJ Asplin mused that the car park attendant could not be expected to memorise all the registration numbers used by all the motorists.

Although they could easily have this list on a mobile device, or could cancel the ticket after the event once the motorist had established their authority to park.

DJ Asplin then pointed out that the rogue signs do not allow a ticket to be issued for not displaying a ticket. only for not having authority to park.

Mr Gardner explained he had noticed the mistake yesterday and had a plan of the correct car park. He asked if he might file it. Mr Cowles objected. After some deliberation, DJ Asplin concluded that it would not be fair to admit the new evidence on the day, as it should have been filed 2 weeks ago.

The witness statement contained a picture of a sign which was stated to be in the car park in Cardiff. Mr Gardner explained this was the same as the sign in Bristol but had not evidence to back this up. Mr Gardner stated there were two signs visible in the distance in a picture which showed Mr Cowles car. DJ Asplin stated that although on the face of it the might be the same, they were too far away to read and might be adverts for car boot sales for all he knew.

Mr Cowles explained he had been using the car park for 6 years, and when he parked he turned left, passed 4 of the 'rogue' signs which had been there for along time, were sturdy metal and were affixed to permanent structures like buildings and poles, and went into his work building. There was no reason to believe these were not the parking conditions in operation, or for him to wander round the car park looking for other terms and conditions. The Link Parking signs, in contrast, were at the other end of the car park, were made of flimsy material and attached to temporary link fencing. He had not really noticed them or felt the need to go and investigate them before this whole event happened.

DJ Asplin asked Mr Cowles if he had evidence he was allowed to park. Mr Cowles replied that he had the permit, and also a copy of the contract between his company and Bargain Parking. Mr Gardner retorted that the contract was the current contract, but was not in force at the time of the parking event. Additionally, it was not even signed. Mr Cowles replied that this was the copy his company had given him when asked, and that 40 employees were allowed to park although he did not have a list of the 40 names. Mr Gardner stated there was no proof Mr Cowles worked for the company in question, which was rather clutching at straws as Mr Cowles was wearing company clothing.

DJ Asplin wondered whether on the evidence he should accept that Mr Cowles was one of the 'chosen 40' and whether he should have seen one of Link Parking's signs from where he parked.

Mr Gardner then chipped in to say Mr Cowley was fully aware or the terms and conditions as he had had three tickets and paid two of them. Mr Cowley denied this. Mr Gardner reiterated that 2 tickets were paid for. Mr Cowley explained that these tickets were in any case issued after this parking event. One was to a hire car which his company had paid. The other was currently with Zenith debt collectors and he was waiting on the result of this case to decide what action to take.

Mr Gardner chipped in to say there was no need for the company to pay the ticket. Mr Cowley wondered how Mr Gardner knew so much about his companies internal procedures.

Mr Gardner reiterated 2 tickets were fully paid. Mr Cowley said this was incorrect.

DJ Asplin decided to cut off this line and explained he was interested in this parking ticket, not other ones. He asked if Mr Cowley was willing to take the oath. Mr Cowley was. DJ Asplin then established Mr Cowley had been using the car park for 6 years, was one of the chosen 40 and had never been cognisant of the Link Parking signs. Mr Gardner had no questions to ask.

DJ Asplin then handed down his judgment.

The claim was for a parking charge of £150 plus £4.70 interest. Mr Garner had signed a witness statement provided by some solicitors in Cheshire before it was complete and which contained a map of a car park in Cardiff totally irrelevant to the case. There was therefore no plan showing where the notices were situated.

For Mr Cowley to be liable Link Parking should take reasonable steps to draw to his attention the terms and conditions of the car park.

There were notices in the car park which no longer applied. Link Parking should have removed or covered these over.

Is it likely Mr Cowley was aware of the need for authorisation to park? Yes, he was aware for 6 years. But the old notices do not say a permit must be displayed. To find for the claimant, the new notices must have come to the attention of the motorist.

There was no reason to suggest Mr Cowley should know of the new obligations.

Claim dismissed.

DJ Asplin then asked Mr Cowley if he wished to claim expenses (but warned him not to be triumphal). Mr Cowley did not.

Prankster Note

Although the Gladstones mess up did not help, The Prankster thinks Link Parking only have themselves to blame and they should have removed the old signs and provided coverage with their new signs.

There is still the question of who the motorist is contacting with though? Bargain Parking or Link Parking?

The Prankster has seen similar cases involving bad or confusing signage in which the IPC appeals service, the IAS, has always ruled on the side of the parking company. Based on today's verdict, it does seem like the IAS have got it wrong and do not rule the same way as a proper judge would. 

The Prankster would therefore advise against using the IAS in their 'nonstandard mode' (where the motorist pays £15 and the IAS verdict is binding. Instead, the motorist should either get a proper judge to rule on the case, or preferably, use an ADR Entity which does appear to be in line with the courts, and which is not binding on the motorist. One such possibility is the Consumer Ombudsman.

The Prankster also wonders about the business model of Link Parking, which appears to be based on gouging legitimate authorised users of car parks for more money, and not on genuinely managing a car park. The Prankster has helped a number of motorists in previous Link Parking cases and all of them have been authorised users, not motorists abusing the facilities.

Happy Parking

The Parking Prankster

Phil Hilsden sentenced today

Phil Hilsden was sentenced today in Basingstoke. The Prankster has been aware of the proceedings for some time, but has refrained from blogging until the criminal case was completed. Phil Hilsden uses a number of aliases, including kirbyinfurnesslad, Ricky Gater (although there is a real Ricky Gater), and any number of one-time throwaway accounts.

In court today it emerged that Phil Hilsden is a previous convicted sex offender, has served 8 months in custody, and his previous convictions include sexual offences in youth court, credit card fraud and a more recent sexual offence.

Today was a sentencing hearing, Phil Hilsden having already pleaded guilty to a number of offences including stalking.  The offences stem from a number of parking appeals companies Phil Hilsden has been the controlling mind behind, such as Parking Ticket Appeals Ltd,  Parking Ticket Appeals Service Limited  and Appeal Parking Tickets Ltd, currently hosted at https://www.appealparkingticket.co.uk/

Although the sites did legitimately help a number of motorists, it appeared the long term strategy was to promise to pay the parking fee if the appeals failed, and then never to do this. When the complaints escalated to unacceptable levels the company would phoenix and reemerge. A series of straw men and women were used as directors.

Here is a typical claim on the website:

Our Parking Appeal Service will cost you only £16 and we guarantee you won’t have to pay a penny to the parking company. If you receive a court claim we pay the ticket cost in full.

The appeals company is also believed to run a series of non-genuine service addresses. Although there are legitimate reasons to use a service address to appeal a parking ticket, it must be a real service address; it cannot be a means to evade the charge. A legitimate service address would inform the addressee of received mail and forward it to them. The service addresses Phil Hilsden used were apparently black holes which swallowed the mail.

One of the creditors of Parking Ticket Appeals Ltd started to pursue Phil Hilsden for alleged debts in the region of £35,000. It was at this point that Phil Hilsden started a concerted campaign of stalking and harassment against the creditor. The court were fully satisfied that the object of the campaign was to avoid payment of the monies owed.

In the Victim Impact Statement read out in court it emerged that the campaign had caused the victim extreme mental stress.

The stalking behaviour first came to light on New Years Day 2015 with online posts and within a few days of this, the conduct escalated to blogs. Contact was also made with the victim's employer, colleagues, housing association and the local police. The online attacks and harassment continued to such an extent that the victim was forced to move house, causing them to leave their job, their home and their family and move over 100 miles away. The victim was under extreme stress for an extended period, affecting the relationship with their girlfriend and causing a loss of 3 stone in weight.

The scariest moment was when someone knocked on the door of their old flat, literally days before the victim was due to hand in the keys, and posted details about the flat, the car and many other things online within an hour. At this point the victim feared for their safety, left the flat and did not return to the flat again. The idea that someone has now come looking for the victim caused serious alarm and distress, and he was genuinely in fear that if he remained in the flat even a day longer, he would suffer violence or worse.

Given the details published online it was obvious that there has been a very deep background check done, which was very alarming. Following this move, the harassment continued. Several other individuals were contacted about the victim, including a business associate, and threats were made against them for their association with the victim.

The police investigation took some time, during which Phil Hilsden was arrested and bailed.
Despite bail conditions, the victim continued to receive harassing contact from people involved in this.

Charges were eventually brought against Phil Hilsden to which he pleaded guilty in an earlier hearing.

In today's hearing the judges debated for an extended period before delivering their judgment. The sentence was 4 months in Custody, suspended for 24 months, together with 250 hours unpaid work, 20 days of offending behaviour courses, curfew from 9pm to 6am for two months, and a restraining order that he may not seek to contact the victim directly or indirectly, or publish anything about them by any means whatsoever, save that he may contact them in respect of civil proceedings via the court staff, a solicitor or as is necessary in a court building. He has to pay an £80 victim surcharge and £85 costs.

Following the court case civil claims can now commence against Phil Hilsden, which will possibly include the previous £35,000, but also may include amounts for harassment and distress which The Prankster estimates may add another £50,000.

It was also reported a scuffle broke out after the hearing and Phil Hilsden allegedly assaulted and punched a person serving him with legal papers. This was witnessed by Phil Hilsden's solicitor.

Happy Parking

The Parking Prankster

Tweet when you park through November/December if the charge is £85 or over

Would you willingly pay £85 if you were 1 minute late, parked one inch over a line, or returned to a car park after 59 minutes instead of one hour? Lord Neuberger thinks you would willingly pay this. However, he is on a salary of over £200,000, so £85 to him is like £8.50 to a person on £20,000 a year. He may therefore have got it horribly wrong.

Would you pay £8.50? Probably, because it would not be worth the hassle of complaining. But £85? Probably not. But this is only The Prankster's opinion. Perhaps you are one of those people who think rules are rules and so would willingly and happily pay £85 if you broke them, even if you were a pensioner and this was almost your entire weekly pension and left you without food or rent.

Of course, knowing how greedy parking companies can be, you would also have to happily and willingly pay if you broke down and so physically could not remove the car. ParkingEye have taken people to court for this. You would have to happily and willingly pay if you had an accident and injured yourself and could not remove your car. ParkingEye have taken people to court for this. You would have to happily and willingly pay if you stopped parking within the time allowed, but traffic congestion prevented you from leaving the car park for a few minutes. ParkingEye have taken people to court for this. You would also have to happily and willingly have to pay if you took a few minutes to park and pay for a ticket, and the operator's opinion of when your parking period began differed from yours. ParkingEye have taken people to court for this.  You would also have to happily and willingly have to pay if you purchased a ticket, stuck it on your windscreen, but the glue the operator provided was not sufficient for the summer sun and the ticket fell off. Armtrac regularly issue tickets in these circumstances. You would also have to happily and willingly have to pay if you purchased a ticket, but the machine neither gave you the ticket nor you money back. Armtrac issue tickets in these circumstances.

Knowing how incompetent or corrupt some parking companies are you would also have to be prepared to appeal a parking ticket even if you did not break the rules. If you visited a car park twice but a not-fit-for-purpose ANPR system recorded you as visiting once, you would have to appeal. ParkingEye have taken people to court for this. If you sold the car before the parking event, but the DVLA did not update their records, you would have to appeal. ParkingEye have taken people to court for this. If the parking company were incompetent and did not put cameras on all entrances and exits of the car park, thereby missing the fact you left the car park, you would have to appeal. ParkingEye have taken people to court for this. If the warden doctored photos to make it seem you were parked for longer than you were, you would have to appeal. If you use the non-standard IAS appeal system, you would have to pay £15 to appeal, and when you lose you would also have to pay the parking charge and debt collector fees with no recourse to the courts. UK Parking Control have won appeals even though they doctored photographs.

You should also bear in mind that if you would like to renegotiate the charge to be, say the same level as council charges (£50/£25), that although this is a proven level of deterrence for council car parks, this level of charge may may not be enough to deter people in the car park you are currently in. Large numbers of people may be perfectly happy to pay £50 to park all day, which would leave you no place to park. This is an important point to bear in mind.

So, whenever you visit a car park where the parking charge is £85 or more, if you are willing to pay this in the above circumstances, tweet @parkingcontract #accept.

If you would have preferred to renegotiate, given the chance, tweet @parkingcontract #decline

This twitter campaign is being run by Barry Beavis. For more information see this link.

http://www.brentwoodgazette.co.uk/Billericay-chippie-wants-hear-motorists-losing/story-28142772-detail/story.html


@parkingcontract #accept

@parkingcontract #decline

Happy Parking

The Parking Prankster

The Parking Prankster

Lord Neuberger; All that he needed was a watch

In the ParkingEye v Beavis judgment, Lord Neuberger made the throwaway sarcastic remark that parking charges are easy to avoid:

The risk of having to pay it was wholly under the motorist’s own control. All that he needed was a watch.

This blog post examines some of the scams parking companies like ParkingEye use to try and part you from your money even when no contravention of the parking rules has occurred, or where the motorist is unexpectedly unable to leave the car park. It does seem as is if Lord Neuberger's advice is sadly misplaced. Here are some examples from The Prankster's recent casebook.

Alton Towers visit ruined by ParkingEye scam

A family visit to Alton Towers was ruined by a ParkingEye scam. On the way, the family called into Uttoxeter Services on the A50, about 15 minutes from Alton Towers. They arrived at around 11 am and left a few minutes later. They spent the day at Alton Towers and called into the services on the way home at around 7pm.

ParkingEye fraudulently sent the keeper a bill for £100 for staying all day, even though the motorist visited the service station twice. ParkingEye have sent out many such fraudulent bills in the past,
and apparently have a policy of refusing to cancel even though they know their system is not fit for purpose. This case was no different; the keeper appealed to ParkingEye and POPLA, both of which turned down her appeals. ParkingEye are now threatening court action, despite the manager of the service station and the manager of Starbucks asking them to cancel the charge. ParkingEye have offered to settle for £60, but the motorist will not be paying and prefers to have her day in court where she will rely on a number of witness statements and also large numbers of previous instances where ParkingEye 's systems have been found to be defective.

Lord Neuberger: All that (s)he needed was a watch

The Prankster consider's this poor advice from Lord Neuberger in this situation. The motorist obeyed all the rules yet still got issued with a parking charge.

Shopping bill goes sky high after ParkingEye scam.

A motorist arrived at a retail car park, read the signage, decided to accept the terms and conditions and purchased a ticket for two hours via their phone. 1 hour 58 minutes later they left the car park.

Despite not contravening the parking conditions, ParkingEye issued a parking charge stating the motorist had parked for 2 hours, 10 minutes.

The motorist took around 6 minutes from entering the car park to find a place to park, park, then read the signs explaining how to pay by phone. This seems a reasonable amount of time for this process. The motorist then took 4 minutes according to their phone records to actually make the payment. Again, this seems a reasonable time.

Here is Lord Neuberger's advice:

ParkingEye has an appeals procedure, and the BPA Code of Practice provides at paragraph 13.4 for a reasonable grace period after the expiry of the fixed parking period. The appeals procedure provides a degree of protection for any overstayer, who would be able to cite any special circumstances as a reason for avoiding the charge. And, while the Code of Practice is not a contractual document, it is in practice binding on the operator since its existence and observance is a condition of his ability to obtain details of the registered keeper from the DVLA.

The latest version of the British Parking Association code of practice stipulates that there should be a grace period at the beginning to allow the motorist to decide whether or not to accept the terms of parking, and a 10 minute grace period at the end to allow the motorist to leave. The motorist appealed to ParkingEye, who rejected their appeal.

Lord Neuberger: All that he needed was a watch

The Prankster considers Lord Neubergers advice to be particularly poor and misguided. The motorist appealed to ParkingEye. Did 'Tte appeals procedure provide a degree of protection'. No - ParkingEye rejected the appeal. What about the Code of Practice? 'while the Code of Practice is not a contractual document, it is in practice binding on the operator'. It appears the code is not as binding as Lord Neuberger thought. To quote that other well-known pirate, Captain Barbarossa "The Code is more what you’d call “guidelines” than actual rules."

As to a watch, that would be no help at all. The motorist thought they left within the time allowed from the ticket they purchased. ParkingEye backdated that time by an arbitrary amount which a motorist would have no way of knowing. The location of ParkingEye's cameras is even kept a closely guarded secret in some car parks and not disclosed even in FoI requests. In any case, a motorist would not be expected to be searching the sky for cameras while entering a car park; this would be dangerous. Motorists therefore have no way of knowing what time they should actually leave the car park to avoid a charge.

As an aside, this is the classic way ParkingEye scam millions of pounds a year from hospital visitors. The Prankster considers it a disgrace that vulnerable members of society are treated this way as items for profit by ParkingEye.

Reputable parking companies use ANPR to tell the motorist how much to pay on exit. However, this almost entirely helps motorists avoid parking charges and so ParkingEye do not use this type of system because it would make them bankrupt. Their processes are designed to fail so motorists have to pay charges; motorists are allowed to enter invalid registration and to pay wrong amounts.

Car breaks down in retail park

A motorist broke down in a retail park controlled by ParkingEye. She called a mechanic to get her car started. ParkingEye refused to believe the car was broken down, despite a letter from the mechanic,

Here is Lord Neuberger's advice:

The appeals procedure provides a degree of protection for any overstayer, who would be able to cite any special circumstances as a reason for avoiding the charge. 

It would appear that once again Lord Neuberger's advice is totally useless. ParkingEye did not cancel the charge, despite the motorist breaking down, and despite the fact that a letter from the mechanic was produced as evidence.

Lord Neuberger: All that (s)he needed was a watch

The Prankster dos not know if the motorist owns a watch, but even if she did it would do no good. If a car won't start, it won't start.

It would appear that Lord Neuberger has given carte blanche for rogue parking companies like PakingEye and Vehicle Control Services to issue charges which have no validity whatsoever.

Happy Parking

The Parking Prankster

Beavis loses parking case. Lord Neuberger sends strong message to Government that consumer rights laws have gone too far.

The long running issue of parking charges for overstaying in a free car park has been decided, with judges finding 6-1 in favour of the parking company over the motorist.

Consumer rights laws explicitly address the issue of traders forcing contracts on consumers, and define an example of an unfair term one where the consumer must pay a disproportionately high sum in compensation - which this clearly is, given both the normal cost of parking in the area (£3 all day) and ParkingEye's average cost per ticket issued of under £18. In these situations, Consumer Law asks whether the consumer would have come to the same deal if they were allowed to negotiate the contract.

Lord Neuberger neatly sidestepped that problem by stating:

"The question is not whether Mr Beavis himself would in fact have agreed to the term imposing the £85 charge in a negotiation, but whether a reasonable motorist in his position would have done so. In our view a reasonable motorist would have agreed. In the first place, motorists generally and Mr Beavis in particular did accept it"

This is of course a circular argument which could apply to any case of this nature. As this is a Supreme Court judgment it is binding case law and will apply to all cases from now on. If a number of consumers conclude a contract with a trader, than that contract will be deemed to be reasonable because a number of consumers concluded the contract. Thus the protections of the Unfair Terms in Consumer Contract Regulations 1999 and its successor The Consumer Rights Act 2015 are done away with at the stroke of the pen.

Lord Neuberger is no fool and will know the implications of his decision. The message from the judiciary is clear - a contact is a contract, whether business or consumer, and there cannot be any retrospective attempt to point out unfair terms. The consumers only cause of action would be to refuse to enter the contract. If the Government wish to restore consumer rights then they will need to further legislate.

Consumer Rights Act 2015

64 (4) A term is unfair if, contrary to the requirement of good faith, it causes a
significant imbalance in the parties’ rights and obligations to the detriment of
the consumer.

Schedule 2 - 6 A term which has the object or effect of requiring a consumer who fails to
fulfil his obligations under the contract to pay a disproportionately high sum
in compensation.

EU Judgment Aziz v Caixa d'Estalva

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.

In terms of penalties, this new judgment allows a charge to be deemed reasonable even if it greatly exceeds the cost to the trader. The trader is allowed to add an element for deterrence and a further element for a large profit margin. ParkingEye's cost are under £18 per ticket issued, so by allowing a charge of £100 the Supreme Court is setting the bar for all other courts that a profit of over 550% is an acceptable margin for damages for breach of contract. It is quite acceptable to charge a pensioner their entire weeks pension for a one minute overstay.

A further analysis will follow at a later date.

Happy Parking