Proserve win pyrrhic victory

June 3rd 2016 Ransomes Park v Roberto Ices and another

Roberto Ices delivery vehicles were spotted on two occasions by Mr Duff, parked on Ransomes Park where the driver was a customer of one of the leaseholders.

Following a long war of words, this culminated in two hearing, the second of which was held on June 3rd. Once again Ransomes wheeled out a £3000 a day barrister. Roberto Ices were represented by John Wilkie.

Duff did not enjoy his cross-examination, which went into his bailiffs certificate, his corporate status and his business model, as well as touching on the DVLA Judicial Review, and various other cases where apparently Mr Duff had made claims which did not match up with his evidence in this case. The pen he was holding was not usable at the end of the examination, having been broken into several parts.

Nonetheless, as a result of Ransomes Park v Anderson being a judgment binding on the small claims judge, Roberto Ices did not prevail, and were ordered to pay £725 within 14 days.

Prankster Note

In The Ransomes Park v Anderson case HHJ Moloney found for Ransomes as he judged a trespass had occurred and that Ransomes has therefore incurred costs payable to Proserve. However in that case he limited the costs from £150 to £97.50 based not on evidence but because both parties agreed to accept his decision on the basis that it would be cheaper than to come back to court on another day. HHJ Moloney indicated that in subsequent cases it would be better to have some proper evidence as to costs.

Key paragraphs in the judgment include the following.

Given that finding, was the district judge right as a matter of law, to refuse to make any award to the claimant, and indeed to find for the defendant? The district judge’s judgment rested on two bases: one based on what the district judge perceived as problems with the enforceability of the contract between Ransomes and Proserve; and the other based on the claimant’s failure to mitigate by demonstrating that there was not some more reasonable charge, some more reasonable firm of bailiffs that it could employ.

Fourthly, even in a case where the loss is foreseeable, and is actually incurred, it is open to the defendant to reduce the amount of his liability by proving that the claimant has failed to mitigate his loss. That is to say, proving that there were reasonable steps open to the claimant to reduce his loss but the claimant unreasonably failed to take those steps and thus, in effect, unnecessarily increased the amount of his own loss. If a defendant can show that, then he need only pay the lesser sum that the claimant ought to have lost and not the greater sum that he in fact lost.

This raises two further issues, relevant not only to this case but also to other similar cases, which I understand have been stayed pending this judgment and will shortly be coming up before other district judges. Firstly, I have said that the burden of proof of absence of mitigation is on the defendant. It is also, however, true that the burden of proof of loss, a related but different matter, is on the claimant. There is no evidence here that I can see that Proserve did do an hour’s work on this case. I have re-read the evidence of Mr. Duff of Proserve, and Mr. Robson of Ransomes, and, so far as I can see, there is no attempt to show that an hour’s work was done, or that any evidence was given to Ransomes that an hour’s work was done. Even on the basis that one accepts that the £150 rate is pro-rata, not for an hour or part thereof, it appears in this case that the claimant has uncritically accepted Proserve’s invoices without requiring any proof or evidence that the specified time was spent. I note that all 18 of the cases on the invoice I have seen are charged at precisely one hour each. That is inherently improbable. To be frank, it smacks to me of an attempt to introduce into a trespass claim the sort of “agreed flat fee” approach commonly used in contractual parking cases, which as I have explained cannot apply in a tort case.

What I am referring to here is an apparent failure by Ransomes to prove that it was ever liable to pay Proserve, based on the fact that it did not seek or receive any proof from Proserve that the time had been expended. That is not a ground of appeal in this case, but in future cases I consider that as part of proving its loss Ransomes should plead and prove the amount of work that Proserve did, or is likely on the basis of its general business model to have done, in relation to the particular case in question. Without some evidence of that kind, it is difficult to see how Ransomes could have discharged its duty to prove that it was liable to pay Proserve the amount that Proserve charged it; and if it could not prove that, it would not be able to reclaim the sum from the individual driver.

I accept the analysis that has been given by counsel for Ransomes. Some of the costs are fixed costs, of course, but some are variable to the individual case. The agent has to be called in, he has to photograph the vehicle, the DVLA has to be involved, and then the charge notice drawn up. It appears to me that when one considers that probably several employees are going to have to be involved, and that even though there are economies of scale, this will be a substantial part of their work, and that Proserve is entitled to its proper profits on whatever basic cost there might be in this, then the amount recoverable for the basic job cannot possibly be less than £60, together with the £37.50 for the administrative work involved in kicking off the claim. So that will be an award of £97.50. (I do not want this assessment to be regarded as a precedent, or a sum that ought to be awarded in other cases. I have indicated the desirability that proper evidence is produced that will justify whatever sum is in fact claimed in a particular case.)

In this case the judge concurred that the burden of proof to establish a reasonable cost for photographing a vehicle and writing to the address on the side of the vehicle (as Proserve are not affiliated to an ATA they cannot apply to the DVLA for keeper details) was on the defendants and that they had not sufficiently proved their case that Ransomes could have found somebody to issue and process a parking charge for under £250.

The Prankster finds this somewhat surprising, as large numbers of parking operators make huge profits from issuing parking charges at charges around £70, and of course ParkingEye are able to make a profit on charges of £85 even when they pay £1,000 a week for the right to farm car parks.

Additionally, in the Ransomes case Proserve applied to the DVLA for details, which requires meticulous form filling and much effort. Since then they have lost access to the DVLA. Now the only way they can write to the keeper is to note down the address on the side of the vehicle (if there is one) and write to them that way. This is obviously much cheaper than previously.

The case was something of a pyrrhic victory for Ransomes as they will have spent over £6,000 on counsel, plus Mr Robson and Mr Duff have spent 2 days in court. The judgment will be no use to them in future cases, and in fact will help defendants by showing them that they will have to bring better proof that Ransomes have shown a "failure to mitigate by demonstrating that there was not some more reasonable charge, some more reasonable firm of bailiffs that it could employ."

The Prankster is confident that other parking operators can provide services to Ransomes at a much lower rate and will update the blog with future Ransomes cases. Parking Collection Services, for instance, appear to charge £20 to parking companies to contact keepers and send them a Notice To Keeper, based on the fact that the charge goes up by £20 once they are involved. It is not clear why Mr Duff cannot do the same for £20.

Mr Wilkie is now 20-4, regrettably.

Happy Parking

The Parking Prankster