Excel Parking V Booth. C6DP9P15 24/1/17. Bury CC.
Mr Booth parked in a car park but did not ralise it was pay and display. The signage was hidden behind a van. Excel Parking disagreed and filed a court claim.
The hearing
Excel Parking Services Ltd 0 Versus Booth 1
Mr Booth represented himself. He had a number of lines of defence, but focussed on the poor signage in the car park. Excel Parking used BW Legal who hired a local solicitor to turn up. She wasn't that well prepared and had not bothered to bring printed copies of the case. When the Judge asked her to refer to defence photographs provided of poor signage she used her phone.
Mr Booth admitted that he never bought a ticket - but this was because he never saw the signage signage in the first place and so no contract was entered into.
Excel provided pictures of the signage, date stamped for August 2015, but the event was in March 2015. They also provided at the last minute a witness statement from the landowner stating he gave authority, date stamped September 2015. The PCN they sent in their Witness statement was a photocopy and completely blurred and illegible.
Mr Booth's arguments were that;
1. Poor signage - there were "staff only" parking signs on the building wall next to where he parked - he questioned the claimant's right to sue someone parked against these bays
2. He questioned their authority to act on behalf of the landlord
3. He questioned whether the signage had planning consent.
The Judge followed this through with Excel's representative: "Did they have a contract which said these bays were exempt or not exempt from Excel issuing tickets on the vehicles parked?
As Excel had not bothered to supply a copy of the actual contract, the solicitor could not confirm either way.
Regarding. planning consent, Mr Booth had an email from the town planning officer stating that in his opinion the signage would require planning consent, and that there was no planning application on file. The judge said if Mr Booth had only brought this point up he may have found differently.
The judge clearly had doubts about the signs where any reasonable person would think the same and that the "staff only" signs would not lead them to think there was a requirement to buy a ticket.
He took a recess for 10 mins then made his judgment.
Claim refused - the parking signs cause confusion , and there was prof there was a contract which allowed the charges claimed.
He went on to state that he was staggered that serial claims companies like Excel do not take a photo of the signs at the time of erection. Why do they wait until litigation to take photos. There was no evidence that the signs were there at all on the date.
Mr Booth was too excited and trying his best not to grin from ear to ear that he forgot to ask for costs.
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The planning permission point is weak,I dont know why people bother with it. Ex turpi argument is a load of old turnip for parking cases.
ReplyDeleteWhy wouldn't it apply?
DeletePE have withdrawn from at least one reported case where ex turpi was going to be claimed.
DeleteIn my very humble opinion, it's an illegal act to operate without Advertising Consent and a judge must base his decisions on facts of law where they exist, or reasonable assumption otherwise.
Not allowing ex turpi must surely lead to a right of appeal based on the overlooking of a legal fact.
The planning issue and contract law are too remote to be of any relevance.
DeleteI agree, but curious as to why Unknown suggested it was a weak argument. The frequently used phrase by Lord Mansfield springs to mind "No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act".
DeleteIts a matter of fact and degree, not having planning consent is petty. A contract for (illegal) slavery is the opposite.
DeleteI don't think they are too remote. Parking Companies use their signs for the terms and conditions. The contract would have been entered into for an objectionable purpose i.e. a contract formed on the basis of terms on the signage which required consent, and as there was no consent the parking co. committed a criminal offence. As the parking co. would be in the knowledge that no consent had been given, they cannot recover the penalty charge.
Deletedo you have any authority to support the notion that a contract cannot be enforced because planning consent was not in place?
DeleteI do not have authority specific to planning consent related to parking no, but there is however plenty of authority on ex turpi and also the common law position of illegality. The courts will not enforce a contract where it was based on an illegal act, whether at formation or potentially illegal as to performance.
DeleteThe entering of the contract, the terms of which were based upon an illegal act, that is the failure to obtain planning consent for the terms made out on the sign. The contract was founded on the parking co's deliberate act to not obtain consent from the council which is an illegal act, and if the sign wasn't there, no terms and certainly no charge for a breach.
And you say that failure to obtain planning consent is petty, yet it is deemed a criminal offence?
The planning issue is entirely incidental. Check your case law.
DeleteAgree to disagree, though if you are willing to share your case law, i'd be happy to review and comment on it.
DeleteAs I've said above, the contractual terms are based on signs that were illegally erected. The object of the contract and its terms were therefore based on an illegal act, the erected signs. But for the signs, there would be no contractual terms imposing a penalty charge.
“Where the claimant’s action in truth arises ex turpi causa he is likely to
Deletefail. Where the claimant has suffered a genuine wrong to which the
allegedly unlawful conduct is incidental, he is likely to succeed.”
Yes I am aware of that case, but you've not really said why it is incidental. The planning consent is not incidental because the terms relied on by the parking co. to enforce the penalty charge is based on a sign that was put up unlawfully - the sign is therefore fundamental to the parking co's claim is it not?
DeleteAnd just to point out, ex turpi and common law illegality are not the same.
It is obvious why it is incidental.
DeleteThe claim is a contract dispute, planning is entirely incidental.
Nobody looks at a contract on a sign and say "that does not apply because you dont have planning consent". Do they?
“The operation of the principle arises where the claimant's claim is founded
upon his own criminal or immoral act. The facts which give rise to the claim
must be inextricably linked with the criminal activity. It is not sufficient if
the criminal activity merely gives occasion for tortious conduct of the
Defendant.”
The claim is not founded on planning law.
Who knows what a judge will rule on the day. Small claims is a crapshoot and cases can be decided by whoever has the better advocate, not on the actual facts, statutes or case law. Is a contract valid if made on stolen paper? Yes, because the paper is not material and could easily be substituted for a non stolen piece. Is a contract valid if signage is illegal? Well, the signage cannot be substituted as any new signage would still be illegal. It is therefore fundamental to the situation. Therefore there is an argument to be made for the defence and new case law created, or not, as a judge decides.
DeleteOf course nobody thinks that, but an ordinary person would expect to company to have the relevant permission and planning consents to provide the relevant service.
DeleteThe claim does not need to be founded just on planning law. If the parking company handed out a ticket which contained the terms and conditions but the signage also stated the terms and they had no planning consent, then yes I would agree that the question of planning consent would be incidental to the claim. But if the parking co wishes to rely solely on the an illegally erected sign to enforce the terms, then the question of planning consent becomes more than just incidental. The parking company has infringed statutory requirements in order to directly benefit themselves and that in itself would mean the planning permssion is relevant to the issue.
In litigation make your strongest point first and concentrate on it. DJs are mostly thick, out of work folk who could not hack it in private practice. Going "ex turpi" with a donut is a waste of time. "I didn't see the sign because it was obscured by a van" is the way to go.
DeleteAnd it would be foolish to go in with only one line of argument, as if that fails then there is no other comeback. As the post pointed out, there were three issues and assuming they were in the same order, all three were valid points to make.
DeleteIf a Local Authority, who have the responsibility, can't be arsed with a criminal prosecution for failure to obtain advertising consent (and there are plenty of good examples with PE and LJLA), then why would a doddery old DJ start to grapple with an 'ex turpi causa' criminal issue in a simple small claim for a hundred quid or so.
DeleteIf it was a multi-ticket case running into the thousands, possibly worth a punt, and might get a judgment on it, ..... but for a hundred?
Should not the Judge have asked Mr Booth if he wished to claim costs?
ReplyDeleteThis comment has been removed by a blog administrator.
ReplyDeleteA contract which, on the face of it, appears illegal may still be enforceable if it is capable of being executed lawfully. Parking companies are past masters
ReplyDeleteof the laws surrounding illegality defences (see the
Somerfield case!) But that is not the point. For many months I have been forensically analysing scores of sites across England and Wales. One strand of this study is to ask every relevant local planning authority about the contract-bearing signs erected in private car parks. Over 50 LPAs have now replied, and almost invariably they confirm that: 1) the signs (especially due to their size) require advertisement consent, and 2) advert consent cannot be back-dated. According to s.30 of the Town & County Planning (Control of Advertisements) (England) Regulations 2007(and the relevant part of the Welsh 1992 Regs), displaying an unauthorised advert is a criminal offence, and that advert remains unlawful until it is granted planning consent (no back-dating).
Every car park operator using POFA to pursue errant
motorists must abide by one of the two Codes of Conduct, be it BPA or IPC, and both CoPs require members to operate within the law, and that inevitably
includes planning law. The Supreme Court in the Beavis
case, at 111, confirmed what we already knew: that
although the CoP is not a contractual document, its
observance is a condition of being able to obtain keeper details from the DVLA. So unlawful signage means
breach of the CoP, which in turn means no right to gain
keeper details, and without those there is no ANPR.
Some of the sites I am studying have been operating for more than five years without advert consent, which means that the CoP has been breached right from the 'go live' date with obvious data protection impli-
cations. For some of these sites the complete (unredacted) landowner contract is available (FOI
requests) and the landowner is obliged to obtain all necessary permissions, including planning. Crucially, there is a clause (condition precedent) stating that the authority of the operator to instal the signs and manage the site is dependent upon all permissions
having been obtained.No wonder they don't want these
contracts to be seen in court! Separately, the DVLA KADOE contract (for the electronic link) also requires users to abide by the law.
So let us not dismiss planning permission as trivial -
it could be the silver bullet we have been looking for,
and it should be considered in every appeal and court
case to come.
the test the Courts have applied is would it outrage the public if the contract was upheld?
DeleteThe answer to that is no. In plain language, no one cares about advert consent for a parking sign, it is a non runner.
?????
DeleteThe test the court HAS APPLIED? Where, which case?
If a fact of law is considered to be of little importance then it has to be fully justified by some overriding LEGAL reason. Not public opinion.
Public opinion is that we should bring back the death sentence but the legality of it is much against our public wishes, or even interest, in a number of cases.
Beavis is a horiffic example of anything really. Indeed they did say the code of practice was effectively binding.
DeleteThey also quoted the appropriate version of 19.5.
Then they said wgaf Beavis loses.
Their Lordships clearly showed the court up for what it is, and that's not a compliment.
Patel v Mirza is the latest addition to illegality and I think somewhere in there, there is mention of a range of factors including the seriousness of it, how central the illegal act is to the contract etc.
ReplyDelete"There were two policy reasons for the common law doctrine of illegality as a defence to a civil claim: a person should not be allowed to profit from his own wrongdoing, and the law should be coherent, not self-defeating, and should not condone illegality."
By allowing the parking company to enforce the contract, who knowingly put up an illegal sign which stipulates it's terms to be relied would mean that the court is effectively condoning an illegal act, contrary to the above but also to profit from it. So that does indeed cover the two policy reasons, contrary to the test of whether it would 'outrage' the public.
How do you know the PPC knowingly broke the advertisement regulations?
ReplyDeleteIf someone put up sign saying "Dangerous dog keep out" does the fact that the sign did not have consent mean anything? Apply common sense.
A ParkingEye employee has confirmed to me that their strategy is to whack the signs in and only bother to get permission if someone complains. As for other companies, I cannot say, but they should all be aware that planning is needed, as this is core to their business.
DeleteWe can argue all day long over it, going round in circles but your public outrage test is wrong, one should look to Patel v Mirza for guidance. I agree with Nigel's point, that illegality should be challenged where relevant
ReplyDelete"an affront to the public conscience"
DeleteUnfortunately, the learned judge was not referred to three recent cases in which the scope of the defence has been considered: Thackwell v. Barclays Bank [1986] 1 All E.R. 676, Saunders v. Edwards [1987] 1 W.L.R. 1116 and Euro-Diam Ltd v. Bathurst [1988] 2 W.L.R. 517. The last two cases contain an elaborate analysis of the relevant principles by Kerr L.J. It would be superfluous to summarise the principles here. It is sufficient to quote two sentences from Kerr L.J.'s judgment in the Euro-Diam case at p. 526.
"The ex turpi causa defence ultimately rests on a principle of public policy that the courts will not assist a plaintiff who has been guilty of illegal (or immoral) conduct of which the courts should take notice. It applies if in all the circumstances it would be an affront to the public conscience to grant the plaintiff the relief which he seeks because the court would thereby appear to assist or encourage the plaintiff in his illegal conduct or to encourage others in similar acts."
Not sure that supports your case? If the contract is based upon a sign that was put up illegally, and then seeks to enforce the contract based, is the court therefore encouraging the plaintiff and others to carry out illegal acts? I would thInk so. Anyway there have been inconsistent decisions on illegality and in Jetivia v Bilta 2015, Sumption suggested that the next case on illegality there should be a 9 member panel to clarify the law. That case was Patel v Mirza of which Kerr was a part of, so I think guidance on illegality should be sought from up to date case law.
DeletePatel was an insider trading case, you are comparing that to not having advert consent? Ridiculous.
ReplyDeleteRegardless of the type of case, the illegality defence was pleaded and the court took time to clarify when and how that defence could be used.
DeleteThe greatest problem faced is a practical on in the first instance. Numerous planning enforce enforcement officers country wide will fob off anyone who questions why they do no take action . They can tell a PPC they must appy for AC. However, the vast majority of PPC's do not even bother applying. The councils are all under the National Planning Inspectorate , they refer to this when asked why they will not prosecute. It is in black and white that they use persuasion and basically a softly softly approach. The biggest stumbling block is actually created by said Inspectorate. In every reply I have been privy to, Nationally, 'NOT IN THE PUBLIC INTEREST'! Ok in the great fathom of things, it is on first appearances perhaps a reasonable comment. However, there is mo official data gathered on how many times people have questioned this locally? Because of the nature of this business, there may appear to be no major issue? ie no one joins the dots! This may well be challenged in the near future. Just a few voices is not going to cut through this get out clause. Now if over a thousand people were interested in a location, under one Council - could this remove this stock answer? If this is still not sufficient interest from the public, the threshold for what number constitutes interested Public? The other question is do elected Councillors have the authority to insist yes it is im the public interest and could they demand action is taken?
ReplyDelete