New Generation Parking Management - you've been Gladstoned. Resident entitled to parking space

C9GF8T04 NGPM v Mr S, Pontypridd CC, 2/12/2016

Guest Report

The defendant was assisted by Bargepole, but represented himself.

Just thought I'd let you know how I got on.

Good news! The judge found in my favour (though it really could have gone either way), and so I just wanted to say thanks again for your help.

The judge seemed to disregard quite a lot of my defence, of which I've added details below as I thought it may be useful for you to know. Eventually he focussed on a part of the contract between NGPM and the building management company that said that residents would have the ability (via phone or app) to report unauthorised parking, and so there was clearly an effort on the building management company's part to cater for situations like I found myself in. As NGPM didn't readily provide any information about how to report parking incidents (and the existence of the app), he said he agreed that I was entitled to a parking space (as per Assured Short-term Tenancy - AST), and NGPM didn't have grounds for a contract with me.

Specifically, the parts of the defence he didn't agree with:

Disallowing claimant's witness statement
I asked for the claimant's witness statement to be disallowed due to being submitted late. The court confirmed they had also received it late (a few days before me). I stated that as they failed to comply with the directions of the court, and left it so late to submit it, it had left me unfairly disadvantaged as I had little time to seek advice on the content of their witness statement. The judge agreed it was late, and that there was no excuse for it being late, but said he would allow it and that he disagreed I was at any disadvantage. That was a shame as claimant's witness wasn't present (they had appointed a solicitor), so if it had been disallowed that would have been the case over!

Registered Keeper being assumed to be the driver
The judge agreed that the Elliot v Loake case referenced by the client wasn't relevant and so quickly shot that down. But, he then said it was his view that on the balance of probability that I was the driver.

Signage doesn't comply with regulation
I stated that, as per defence statement, the signage at the site didn't meet the Consumer Contracts Regulations. The judge questioned me on why I thought those regulations applied at all, and when I referred to it as being a "distance contract", he disagreed and stated that this type of charge wasn't what those regulations were intended for.

Primacy of contract (AST over parking agreement)
Referring to the June '16 case of Jopson v HomeGuard Services, I stated that the presence of an AST that contained the right to park in a designated bay had precedent over any agreement, if there was one, with the parking company. The judge asked me to talk him through the part of the ruling that said that, and I was a bit lost. The judge went through the ruling and said that it didn't really apply in this case as in Jopson v HomeGuard, the defendant had parked up briefly to unload something from their car and then gone to move their car. He said that given that the incident here was at 7pm~ at night, that on the balance of probability I was there all night unless I can persuade him otherwise.

At this point the outlook was pretty bleak! Anyway, all done now, and the judge awarded costs.

Prankster Note

The Prankster agrees with the judge's decision but not with some of his rulings. This may come down to the ability to fluently argue a case so these points are all valid in future claims, but defendants should be aware how to argue them. A judge can often be swayed by good arguments, so here is how the Prankster would have tried to overcome objections.

Registered Keeper being assumed to be the driver
The judge correctly ruled that Elliot v Loake wasn't relevant. As to the probability the keeper was the driver, this will depend on the quality of evidence supplied. It is a risky strategy going for this line of defence if you know you were the driver, but perfectly reasonable if you cannot remember. You should point out that the Government specifically created a statute so that keepers would be liable if parking companies got their paperwork right, and if they cannot get this right after 4 years or provide any evidence as to who the driver was then they should not bring speculative claims.

Signage doesn't comply with regulation
The Consumer Contracts (Information, Cancellation And Additional Charges) Regulations 2013, enacted 13 June 2014 applies to all consumer contracts and there is nothing in the statutes to suggest otherwise. To qualify that statement, clause 6 of the statute lists situations where the act does not apply. If none of those conditions apply it would seem strange that a judge would be inventing his own additions to clause 6.

If the judge disagrees that the charge is a distance contract then there are two other types of contract and it must be one of them. Each type of contract has informational requirements which are probably not met by the signage, and when this happens the Act states the contract is not binding on the consumer.

Primacy of contract (AST over parking agreement)
The judge missed the point which might be due to how this was argued. The overriding principle here is that of primacy of contract which means that an existing contract cannot be unilaterally altered by another party. The Jopson case is just a specific example of that, and because she had the right to stop in front of her building, that could not be overridden by the parking company. In this particular case the AST gave the right to park, so that could not be overridden.

It may be worth going armed with a few transcripts to illustrate this in slightly different ways, so the judge can apply the general rule to your case.

Transcripts can be found on the Prankster's site

In Saeed v Plustrade Ltd [2001] EWCA Civ 2011 it was found the managing agent could not reduce the number of parking spaces available to residents.

In Jopson v Homeguard [2016] B9GF0A9E, on appeal it was found that the parking company could not override the tenant's right to temporarily stop near the building entrance for loading/unloading.

In Pace v Mr N [2016] C6GF14F0 [2016] it was found that the parking company could not override the tenant's right to park by requiring a permit to park.

In Link Parking v Ms P C7GF50J7 [2016] it was also found that the parking company could not override the tenant's right to park by requiring a permit to park.

Happy Parking

The Parking Prankster