Excel v Mr L. 17/11/2016 Skipton
[Update see Mr Pickup show his ineptitude here]
Mr Pickup from Elms Legal was back in action today at Skipton Court.
This was another hospital pass of a case from BW Legal. The defendant was not the driver, and as the notice to keeper was not compliant with the Protection of Freedoms Act 2012 sch 4 (POFA) conditions, there was no keeper liability. Mr Pickup therefore had no realistic chance of winning.
In court it quickly transpired that although Mr Pickup regularly handles parking cases, he had no real grasp of the law surrounding POFA, so he asked the judge if he could bail out and confer with a more knowledgeable colleague outside. The judge allowed this.
He returned with a list of comments which he alleged were from an online forum. He asked the judge if he could cross examine the defendant under oath and use the forum evidence. She refused the use of the evidence, but did allow a cross examination. His cross examination went badly wrong and ended working in the defendant's favour as everything was brought back to PoFA. Mr Pickup was clearly embarrassed and quickly gave it up as a bad job.
The judge dismissed the claim, summing it up as follows, saying it boiled down to two things.
1. Either the claimant could PROVE the defendant was the driver... which they obviously couldn't.
2. They could comply with PoFA to pursue the defendant as the keeper... which it was proved they did not.
The defendant was refused costs.
Mr Pickup is now notching up an impressive record of losses against unrepresented litigants in person. It is not recorded whether his trademark signature of storming out of the courtroom on losing was put to good effect today.
The defendant was straight back in court as Excel had filed multiple claims against him, all for the same car park. This second claim was brought by Excel directly. No doubt wisely deciding not to trust Mr Pickup with both claims, had hired a second representative.
This hearing was adjourned as the court ran out of time. The claimant was given permission to submit new evidence including print outs from online forms and are also allowed to amend their witness statement.
A key influence to the judge was Henry Greenslade's comment about no reasonable presumption, which she mentioned several times. Henry Greenslade is a barrister highly experienced in both private and public parking charges and is a former Lead Adjudicator at POPLA.
Mr Greenslade had this and more to say on the subject of keeper liability in the 2015 POPLA Annual Report.
However keeper information is obtained, there is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. Any evidence in this regard may therefore be highly relevant
This is available on the POPLA website at this link, pages 12-13.
It is therefore well worth including this in any evidence.
Here are the details from the impact assessment the Government conducted before enacting the regulations, available at this link.
What policy options have been considered, including any alternatives to regulation? Please justify preferred option (further details in Evidence Base)
The following options were considered:
Do nothing (base case).
(1) Keeper Liability for parking charges incurred regardless of whether s/he was the driver at the material time as long the keeper has the option to name the driver in charge of the vehicle at the relevant time.
(2) Make it a criminal offence for the keeper to refuse to name the driver in charge of the vehicle.
It is the Department's view that option (1) is the most appropriate option to achieve the stated aims and objectives. Option 2 was discarded because criminal sanctions were deemed to be a disproportionate sanction to a parking charge on private property, which is essentially a civil dispute between two private parties. Therefore, no summary and analysis page has been produced.
The Parking Prankster