MIL burned in Burnley. No right of audience. Witness statement a travesty

MIL V Mrs C, C3QZ9V18 17/1/17 Burnley County Court. DJ Jonathan James

Ms C's car was apparently caught having stayed parked for 42 minutes over its 5 hour P&D payment, at 1.52AM. Parking Awareness asked for £100 penalty as a result, and, as she was keeper and the notices were not compliant with POFA Ms C ignored them.

Parking Awareness were so offended by this that they "sold" the "debt" to MIL Collections.

The Hearing

Ms C was assisted by Private Parking Appeals (PPA). PPA always uses a standard template to MIL claims, as there is nothing in the particulars to lock onto. MIL always respond with the "Internet
template" response, despite the defence being almost entirely different to anything ever used on the Internet.

Ms C was happy to go to court. As a result, a skeleton was provided to MIL, which, as well as the usual arguments, questioned their likely non-attendance and the right of audience of their representative.

On the day the hearing was before District Judge Jonathan James.Ms C was accompanied by John Wilkie as her lay representative. MIL did not turn up, but sent Ms Kauser, a self-employed advocate hired by Elms Legal for the day.

Having noted an issue with the bundle, Mr Wilkie asked if that could be considered first, but DJ James wanted to deal with right of audience. After being directed by the skeleton to the appropriate legislation he considered that a Lay Representative accompanied by the defendant had right of Audience, but a self-employed advocate who was not themselves a regulated person must be
both instructed AND supervised, and it was not sufficient to simply accept instructions and report back.

This has significant ramifications for all LPC law, SCS, BW Legal, Wright Hassall and Elms represented cases, as the majority of such advocates have no personal right of audience.

As a result, Ms Kauser of Elms Law was not permitted to address the court in the absence of her client, and as they had no witness or attendance,the Judge had to consider the claim merely on the papers.

There was a moment of light entertainment when DJ James explained to Ms Kauser that he could not hear her. Ms Kauser then attempted to speak in a louder voice...


Much discussion between the Defence and the Judge ensued, during which time DJ James identified several issues with the claim. By paragraph 20 of the Claimants Witness Statement, he had had enough and gave judgment.

The original creditor is a Parking Company which, it is asserted has a contract with the landowner to provide parking services. A contract has been supplied, but this only shows the rights of the Parking Company, and does not detail what, if any rights, can be assigned to the Claimant. The Claimant's asserted assignment also does not document the rights so assigned.

Additionally the asserted assignment shows no commercial purpose, and I cannot speculate as to what the commercial purpose might be.

The only point of agreement between the parties is that the Defendant was the Registered Keeper of the Relevant vehicle at the specified time. I have no evidence of the driver.

The Statement by Chris Barratt of MIL is inaccurate in several respects, not least of which his Statement of Truth, which does not meet the requirements of the Civil Procedure Rules. The witness is not present, there are significant points of difficulty with the statement, and there are a number of points on which I would expect the Defendant to wish to examine the witness, such as his personal knowledge of the site, the signs, the times and dates of the alleged event. I remind myself that it
is the Claimant's claim to prove, and the Skeleton provided by the Defendant makes it clear that the defence would seek to put the Claimant and its witness to substantive proof of the claims made, an opportunity which has been denied.

Discussing the statement specifically, there are clear difficulties with matters which are apparently within the Witnesses own knowledge, and as the witness is based in Truro I consider it unlikely he has personal knowledge of a car park in Preston; he has also sought to introduce unvarnished evidence involving photographs without explaining who took them, or when or where they were taken, documents without explaining who produced them, and similar.

In this case as well, the Defendant even disputes the signage forms a contract, and the witness cannot "personal knowledge" of this, unless he was an employee of the original creditor. Indeed, there is no evidence before me that the signs submitted were, in fact, present on the date of the parking event. As such, there are very significant issues with the claim at this point, and this issue alone is sufficient to dismiss the claim.

There is another issue - the assignment as produced is undated. It does not state what was assigned, nor when it was assigned, and whether the assignment predates the issue of the claim. This, again is sufficient to dismiss the claim

Additionally, if the assignment was not in place before the claim was made, there is no basis of claim, and as I have no evidence that it was, I cannot simply assume that it was in place before the claim was issued. This again, alone, is sufficient to dismiss the claim.

As a result of the above clear failings in the Claimant's case, the claim is dismissed.

However, and as an aside, even if the preceding were to be successful, this matter clearly distinguishes from Beavis, and the loss in a P&D Car Park can be quantified as merely the unpaid element of the Pay and Display charge. The sum of £100 is intended as a unenforceable penalty.

The judge made further comments in respect of the validity of Beavis in P&D sites.

Finally, on costs, the judge considered the conduct of MIL, who are, after all, professional litigants, to be both Incompetent and Unreasonable. Mr Wilkie attempted to argue that the conduct was outragous and met the test in Rookes v Barnard, but the judge stated that only if the witness statement was provably false would he consider an uplift of Punitive Damages. The judge was kind enough to give a number of pointers in this regard..

Cost of £173 awarded, payable in 14 days.

All in all a satisfactory hearing, the result of which Ms C is delighted with.

MIL Collections - You've been Gladstoned!

Happy Parking

The Parking Prankster