In this case Ms S drive through a car park on her way to an MOT, in order to avoid a blocked junction, then drove back again afterwards. Excel's ANPR being flawed, she was issued a parking charge for one long stay. This was disputed, but Excel refused to see sense and dismissed the appeal, then eventually filed a claim through BW Legal.
The Hearing
In the red corner, Mr Pickup of LPC Law; in the Blue corner, Mr Wilkie of PPA.
The claimant claimed, and was supported by both the witness statement and photograph evidence, that the car, driven by the Defendant, entered the Square, Chorlton-Cum-Hardy at 9.51 on 23 Feb 2015, and stayed for 351 minutes. The statement covers the usual issues of Contract, Signage and
Pay and Display terms, all of which were fully conceded by the defendant. There was no issue over who was driving, no denial that the car entered at the time stated, or left at the time stated.
The only problem is, the car park, which has two entrances and exits was being "cut through" to avoid a blocked junction, and the driver was taking her car to a garage for an MOT.
Despite this, Excel's ANPR didn't detect her first exit and second entrance, and so an NTK was raised for the full 351 minutes. The Defendant appealed, supplying a copy of the MOT, proving the car could not have been there at the time. This was, as is par for the course, rejected, and the Defendant elected not to ask Skippy the Bush Kangaroo and his joke "Independent" Appeals Service to give an opinion.
BW Legal sued on behalf of Excel. The Defence was the same as the appeal, and again supplied a copy of the MOT. In fact, the Defence and the MOT were the only documents supplied.
It was suggested by Mr Pickup that maybe the car was parked in the car park while it was being MOT'd half a mile away. The judge discounted this, stating that there was no evidence to rebut the timing on the certificate as being a time the car was present at the test centre.
The judge did point out that signage states the car park is not a right of way, but nothing in the terms deals with trespass and trespass was not pleaded. As such, since the claimant could not rebut the compelling evidence that the car was 1/2 mile away when they claim it was parked, the claim
failed.
Additionally, since the evidence of this had been provided long before proceedings were commenced, this meant the claim had no reasonable prospect of success. The judge therefore found that the claimant had acted unreasonably, and so made an award of punitive costs against the claimant in the sum of £160.95 using CPR 27.14(2)g.
Prankster Note
Parking Companies have a duty to properly consider appeals. ParkingEye, a BPA member, claim that they allow about 60% of appeals, and have a further 45% cancelled at POPLA. Excel are IPC members, and as such do not have a fair and open appeals process. Simon Renshaw-Smith, Excel's main shareholder, stated that the main reason he moved to the IPC was so that he would not lose so many appeals.
It is clear this decision has come to bite him in the foot. There is really no justification for a parking company or an Associated Trade Association to run a sham appeals service.
Mr Pickup was reported to have stormed out following the hearing. The Prankster can sympathise as he had just lost 2 cases on consecutive days; however, he was handed hospital passes by both clients. Mr Pickup can take heart by remembering that his duty as an advocate is to help the courts reach the correct decision, which is not the same as ensuring his clients win. As the correct decision was reached both times, Mr Pickup can sleep soundly in his bed tonight.
Happy Parking
The Parking Prankster
Just how many of these bw legal cases are going to court to be thrown out due to total lack of evidence. They really are pushing the boundaries of legality. Its a pity its not money coming out of bw legals pocket
ReplyDeleteWhat a pity the judge did not order the company to get the system checked and prove it is working correctly.
ReplyDelete