Thursday, 24 November 2016

Horizon Parking - you've been Gladstoned (again)

C5GF17X2 Horizon Parking v Mr J. Guildford 23/11/2016

This was a case where a vehicle was parked several times without a permit in a little used car park at the University Of Surrey.

This signs clearly forbade parking without a permit, but for some reason Horizon Parking were badly advised by Gladstones Solicitors that the signs offered a contract to park, and so they claimed against Mr J. for a contractual charge.

The Hearing - court report from Mr J

I have to say the Judge seemed very fair and picked apart anything said by both parties consistently.

Claimant alleges that Defendant parked his vehicle on 3 occasions.

Particulars of Claim are brief, as they often are with online claims, but included dates, amounts, etc.

Defendant submitted his initial defence, documents and witness statement. This mainly focused around putting the claimant to proof that he was the driver and then covered many other legal points. Unfortunately, the defendant’s WS was not received by the Claimant and the deadline for this was incorrectly set for only 7 days before the hearing. The Claimant was given 10 minutes to read through a copy of the WS, then all parties were all happy to proceed.

Both witnesses were available for evidence – Defendant and Director of claimant Horizon Parking.

Claimant put to the Court to consider whether Defendant was the driver, rather than consider PoFA / whether they could pursue as registered keeper.

Defendant has said:
I am not the driver
Claimant should not presume this
Other people drove the car on various occasions
Puts claimant to proof on him being the driver and pursuing him as such

Judge advised she cannot presume Defendant is the driver, but has to use all of the evidence to find a fact based on balance of probability.

Claimant has stated they carried out all steps to warn driver and allow someone to appeal. Judge satisfied Claimant served PCNs on car (evidenced by photos), satisfied letters sent to RK (evidenced by copies). Defendant accepts received letter before action from Gladstones, unsure if received some or all of others from Horizon, but advised he would not respond anyway to an unknown company he has no relationship with. Claimant is entitled to write to DVLA RK address, cannot be criticised for that. Judge says it is likely that Defendant was aware of who Horizon are and why they were writing, and therefore could have written back. Judge agreed Defendant had chosen not to and found his answers less than clear.

Judge considered all circumstances including the fact this is my vehicle, that Defendant had not stated he was not the driver in my defences and given unclear answers today, the fact that he had the opportunity to respond and chose not to; these factors influenced her decision. Judge said he should have at least denied he was the driver by responding to the PPC and in his witness statement.

Because of this, and putting the onus on Claimant, plus having no evidence that he was elsewhere, the Judge found that Defendant is the driver as a fact.

Therefore the Court must consider his other points which are relevant to enforcing a contract on a driver, but they can ignore PoFA on this occasion.

Found photos and signs are clear from both Defendant’s and Claimant’s photos. This binds a relationship between them. The Consumer Rights Act cannot help defendant here as the signs are adequate.

Forbidding nature of sign: 
Judge finds this is a forbidding notice, not an invitation to park on certain terms. It disallows other parking. Could be construed as only applying to permit holders, not others who are forbidden from entering the area. IF this is the case, it only offers to permit holders. This therefore means this is a landowner issue for trespass. The agreement between PPC and landowner does not allow for Horizon to collect for trespass issues. This notice forbids any parking at all except by permit holders and is not an offer at all. Does not make a contractual offer, so they cannot claim against me for this.

Excessive Charge:
Judge cannot find a £70 charge excessive considering findings of other hearings. However Judge says that additional £50 costs added on could not be claimed. The signage simply says additional costs could be claimed and does not say what these are - this is not contractual and therefore additional costs must be proved.

Part 16 CPR – ample evidence given.

Judge’s Summary:
Primary point – finds me the driver as a fact.
Claim dismissed because notice is a prohibition and claimants are not entitled to pursue for trespass, they are not the landowner.

Regarding defendant costs, whilst he may ask for costs, it would have assisted if he had responded to correspondence with the Claimant on many earlier occasions and possibly avoided a claim, therefore she will not be awarding costs to him.

Claimant requested permission to appeal, REFUSED because this is a finding of fact and the Judge feels she is correct that this cannot be a contract. Satisfied with her finding of this.

Prankster Note

As usual only Gladstones Solicitors come out as winners in this case. Perhaps the biggest losers are the university, who have contracted someone to manage their car parks and now find they are not competent in the least to do this, and have created a policy they cannot enforce.

The Prankster notes that the University could still claim against Mr J for trespass, if they so desired, but presumably they did not expect to need to get that involved.

Taking a look at the actual situation, the University have a surplus of car parking spaces, which a forward looking parking management company could actually monitise for them. One example would be Your Parking Space.

Instead, they have contracted a greedy parking company who are not providing proper management and appear to be mainly concerned with lining their own pockets.

That parking company were advised by an equally greedy solicitor firm, Gladstones Solicitors that they had a case. The Prankster considers it basic contract law that the sign does not offer a contract, and that any competent solicitor should have realised this was a trespass case and warned their client Horizon that they had no standing to bring the case.

Horizon Parking - you've been Gladstoned!

Other Drivers

Other drivers who have paid Horizon Parking at this car park may have a claim against then, and this goes back for six years. The driver could potentially claim not only for the parking charge paid but also £750 for a data protection breach for using personal details to pursue a charge which did not and could not have existed.

A similar situation may exists for other car parks where the signage is forbidding.

Happy Parking

The Parking Prankster

1 comment:

  1. The decision of the Court to find that the RK was the driver as fact, and that PoFA does not apply, is one that could come back to haunt many defendants. Did the Judge take this view simply because of Mr J's unwillingness to engage, perhaps?
    Any views?