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Thursday, 26 January 2017

ParkingEye win and are awarded costs for unreasonableness. Rights of audience considered

C3FC1AOQ Parking Eye v Mr R. Caernarfon. 25-01-2017

A cautionary tale.

Summary

There were 2 PCN’s of £85. Mr R's vehicle overstayed twice in a free 1 1/2hour car park, as detected by ANPR. The keeper required £100 from ParkingEye to name driver. There was no other defence entered. Judgement was in favour of ParkingEye. Total of £480 including £210 for unreasonable behaviour.

Hearing.

Mr Milton represented ParkingEye. Mr R represented himself.

At the commencement Mr Milton, informed the court he was an unregistered barrister, instructed by LPC Law, instructed by ParkingEye. The DJ questioned Mr Milton. Having satisfied himself, he agreed to continue if the defendant agreed. The defendant, not realising the significance, agreed.

ParkingEye claimed the defendant’s vehicle had parked in Home Bargains Pwllheli on 29th January and 3rd February 2016 and on both occasions had overstayed the free one and a half hour free parking. The incidents were captured by ANPR.

ParkingEye submitted that as the defence had denied being the driver, but offered to supply the name of the driver for a fee of £100 and no other defence had been submitted, the key point was keeper liability. ParkingEye established –under strict scrutiny of the DJ, that they had complied with POFA 2012 and as a result the keeper was liable.

ParkingEye asked the defendant why he’d asked for £100 and the basis of that claim. Defendant had no basis whatsoever and stated he got the idea from Facebook!

The DJ explained the defence was wholly misconceived and gave the defendant an opportunity to raise other matters. The defendant stated ParkingEye was a 3rd party having no legal right and the charge was excessive. The DJ explained ParkingEye's contract was contained in the bundle and the charge was not excessive referencing ParkingEye v Beavis.

Judgement was made for ParkingEye and awarded £170 plus £100. ParkingEye sought an additional £210 due to the defendant’s unreasonable behaviour. The DJ discussed this at length explaining failure to engage other than demanding the fee for naming the driver was unreasonable and awarded the additional £210. Total £480 to be paid in 42 days.

Prankster Notes

The Prankster has reported several court hearings where motorists were awarded costs for the unreasonable behaviour of the parking company. Perhaps the most notable was the £2000 awarded in the Gladstone-powered ill conceived case of Homeguard v Jopson.

Today the boot was on the other foot, It is important to note that you should only defend a case if you have a valid defence, and that something you 'found on facebook' is not necessarily going to help. Also, arguments which have won cases in the past may no longer be valid as case law evolves.

It is also worth noting that the only law that counts is the law you bring to court.

It it quite possible that Mr R could have won his case with different arguments. Even the fact that ParkingEye was a 3rd party may have been a winning point if the contract was carefully dissected and the correct legal points made.

As a case in point, we should consider the open goal handed to the defendant at the start of the hearing, and the rights of audience of Mr Milton.

All defendants should read this article in today's Law Gazette and take a copy to their hearing.
https://www.lawgazette.co.uk/law/bar-council-solicitors-agents-could-face-prison-term/5059560.article

The conditions under which solicitors’ agents can be exempt under the LSA 2007 are: that the individual must assist in the conduct of litigation; must be under instruction from an authorised person (usually a solicitor) and that the hearing must be heard ‘in chambers’.

‘All individuals undertaking work as solicitors’ agents are urged to consider carefully whether they fulfil the requirements upon accepting every new instruction and when attending at court,’ the council said.

Essentially, this means that a solicitor's agent attending on their own is not likely to have rights of audience and may face 12 months free bed and board.

Defendants should also take a copy of the McShane v Lincoln judgment, available here.

Had Mr R objected to the rights of audience of Mr Milton, it is very likely the judge would have agreed. In that case, ParkingEye's case would have been heard on the papers, and Mr R would have stood a much better chance. Even he lost, he would probably not be facing a bill for unreasonableness of £210 because:

a) There would have been no-one from ParkingEye to ask for this. Mr Milton would not be allowed to speak, and faces being ejected if he did.
b) Even if there was, there would have been no reason to award it. Mr Milton would be there as an observer. If ParkingEye pay £210 for an observer to turn up that is their own business and not one which the courts would be concerned with.

To do List

If you are facing a court hearing in the near future
1) Make sure you have a valid defence
2) Take a copy of the law society article on rights of audience
3) Take a copy of McShane v Lincoln
4) If the advocate for the parking company is alone, ask if they are a solicitors agent and if they are, raise their right of audience with the judge

Happy Parking

The Parking Prankster


5 comments:

  1. Whither LPC, BW Legal and Elms Law?

    ReplyDelete
    Replies
    1. I believe those three pillars of self-righteousness may now find themselves marooned in some brown-coloured water with no visible means of propulsion.

      Delete
  2. LPC's business model looks shot to pieces. I doubt if a local solicitor or PRACTISING barrister will do a hearing for less than £250 plus vat.

    Well done to whatever clever person looked up the rules for right of audience.

    ReplyDelete
  3. Was it correct for the DJ to put the onus on the defendant to allow the 'agent' to represent the parking firm, or should he have quite rightly disallowed the unregistered barrister, seeing as he did not have right of audience. If so, are there grounds for appeal ?

    ReplyDelete
  4. I'm not sure that I follow why a solicitor's agent attending on their own is unlikely to have rights of audience.

    Does the article not say that they must be assisting with the conduct of litigation and under instruction from an authorised person. None of this seems to require the presence of anyone else beside the agent, merely that they have been instructed by an authorised person (and one presumes there are solicitors at LPC Law...).

    ReplyDelete