Wednesday, 4 January 2017

POFA or not POFA, that is the question

Two hearings were reported today on MSE and Pepipoo.

Hearing One

In the first hearing Gladstones were acting on behalf of Horizon Parking, pursuing 3 parking charges of £70 each which creative accounting had inflated to £480.

The registered keeper was not the driver on each occasion. Horizon Parking are not known for their ability to issue a Notice to Keeper compliant with the Protection of Freedoms Act 2012 sch 4, and so the keeper cannot be held liable. Here is a sample (not from the court case)

The hearing was at Chichester in front of DJ Ellis.

The defendants wife was the driver, and ask to speak as lay representative, using the The Lay Representatives (Rights of Audience) Order 1999. It is surprising how many people do not know about this Order. Gladstones hadn't heard of it, despite it being used in hearings they have participated in many times and weren't entirely pleased about but they didn't object.

The judge threw out the first claim for 'obstructive parking' as the pictures didn't show how the parking was obstructive. She then dismissed the second claim for parking in a motorcycle bay as the sign didn't expressly say not to park in motorcycle bays (only disabled, out of marked bays, etc).

She allowed the 3rd claim for parking on cross hatching, but only awarded the £70 stated on the Notice to Keeper instead of the inflated £120 they wanted.

She refused to allow Gladstones costs so the defendant only had to pay £70.

The judge put the defendants at ease and did not appear very impressed with Gladstones representative who didn't seem very familiar with the case. She didn't allow the defendant's preliminary procedural matter to dismiss the witness statement as it was not filed in the timescale ordered by the court. She used her discretional case management ability to allow the witness statement even though it was filed 2 days late.

The one mystery is why the judge ruled keeper liability applied. She didn't accept Harry Greenslade's Popla comments regarding keeper liability applied in the case  and although the signs were not as clear as in ParkingEye v Beavis [2015] UKSC 67 she still deemed them to be sufficient.

She ruled the claimant did follow POFA (except for the inflated cost added since the NTK) and commented that The Parking Prankster often misinterprets POFA (this was was one of the articles the defendant used).The judge said she was familiar with the website and said it gets referred to a lot.

The Prankster is not sure which part of POFA he is believed to have misinterpreted, and of course it is possible Horizon have changed their NTKs and are now compliant. The Prankster's understanding of POFA is that if a parking charge is legitimate, and if the relevant parts of the Act are complied with, it allows liability to be transferred to keeper or hirer.

Of course, if the Act is not complied with, liability remains with the driver.

Hearing Two

The second hearing was regarding 5 parking charges inflated to £600 by Excel.

This took a full 2 hours of court time.

As soon as the parties sat the judge stated she intended to throw their case out because they were bringing it under contract law, and as she said, the defendant says he was not driving and the claimant admits they can't prove it.

Their representative disagreed and stated they were bringing the case under POFA. The judge pointed out the witness statement says explicitly 3 times that you are not relying on POFA.

The defendant argued they were changing their claim and he was not prepared for a POFA defense. The judge agreed, saying she did not want to allocate any more of the court's time to a small claim so we will carry on and see where it goes.

One by one the parties went through every sign. The judge stated even though there is only one photo of a sign she was happy to agree with the claimant that it could be used for each of the 5 PCN's. The defendant argued that the signage was not the same over the period and that Excel were in 2 different trade bodies during the span of PCN's so would have different codes of practice, and different signs, However the judge said she wasn't bothered about what trade association they were in. In fact the sign on offer was dated 3/3/15 and had the BPA logo on it, when they weren't in that club. (Excel switched to the IPC 1/1/2015)

The parties looked at all the photos of contraventions, NTK's, PCN's etc, The defendant picked holes in everything, but the judge appeared to think he was being pedantic.

She gave both parties a hard time, also picking up on Excel when they say that because they mention POFA in the first PCN it should then be assumed that all the subsequent PCN's are relying on it as well!

Eventually she asked the parties to step outside so she can read up on POFA. 20 minutes later the parties are invited back in. The defendant felt from the off that she had found against him; she had found nowhere in POFA that says they have to mention POFA in the NTK, so she is willing to allow that the claimant had the right to chase the keeper for payment. The defendant had done himself no favours by ignoring the NTKs. She went through every ticket and says she would have allowed 4 of the 5. The defendant was sinking in his chair at this point.

Then she turned to Excels solicitor, and said "but your client shot themselves in the foot. Had they brought this claim using POFA I would have been mindful to allow it, but they didn't. They brought it under contract law, quite clearly stating that 3 times. So I am going to dismiss the case on those grounds"

Excel asked for leave to appeal but was refused. The defendant asked for his costs, showed her his cost schedule and was allowed £97.50

The Prankster feels this was slightly bizarre. Excel know full well their NTKs do not comply with POFA because they miss out the requirements detailed in 9.2.e and 9.2.f. They make no secret of this and bring all their claims on the basis that they hope the keeper was also the driver.

For some grubby lawyer to suddenly claim otherwise on the day of the hearing goes against all legal and moral principles. Obviously the lawyer thought he could get away with it because the judge was inexperienced with the requirements of the Act, and he hoped the defendant was not able to ge his points across fully. That he almost succeeded is very disconcerting. Luckily the judge eventually went with her first decision - which could have saved two hours of court time - and did not allow the claimant to alter their statement of case.

Prankster Notes

Always take a copy of everything you will be relying on - eg the Lay Representative Order 1999.

Be wary that firms like Excel, BW Legal and Gladstones have no morals and are willing to try and usurp the proper processes of the court to win at any cost. Even if Excel say they are not using POFA it is now clear they will grasp at any straw and try and change their mind in the courtroom if they think they can fool the judge and defendant.

Happy Parking

The Parking Prankster


  1. So we have 2 different judges each using different reasons for striking our, or accpeting a claim.
    In the 1st case, the one that was found in favour of the claimant on cross hatchings cannot have been a contratucl agreement. There could have been no offer to park there so couldn't be the basis of a contract. Trespass pure and simple. No proprietary rights for that so that should have been dismissed too.

    In the 2nd case the matter of contract was the escape route from the very start. It didn't matter where PoFA came into this, or keeper liability. This too was trespass and should have been dismissed right from the start.

    I often wonder if the judges get any ongoing training on such matters. A new law where there's a likelihood of judges hearing many cases relying on it, should be picked apart and fully scrutinised in a panel of their own peers. A judicial brainstorming session perhaps.

  2. I've been trying to figure out where the standard NTKs fall short of PoFA 2012 Schedule 4. Thank you for pointing to 9.2.e and 9.2.f in this case. I'm reviewing a NTK from PCM and I think they meet 9.2.e but not 9.2.f. The wording and the shortcoming is subtle. There is a chance that a judge could still ignore the tiny shortcoming.

    In the case of the NTK from PCM, they state " are now required to do one of the following... Pay the amount or provide the driver details." PoFA 2012 9.e suggests that the keeper be _invited_ not _required_ to pay or identify. PCM states that if the charge has not been paid, nor the driver identified after 28 days, the keeper is liable. If fails to include the language from 9.2.e.ii about the creditor still not knowing the driver's details after 28 days.
    Initially I thought the PCM NTK was compliant but on careful reading, it too falls short of 9.2.f. and it exchanges "invite" for "require" in 9.2.e.

    Regarding the judge's comment "The Parking Prankster often misinterprets POFA" Have you considered contacting the judge and asking for clarification?

    Happy Parking

  3. I'd suggest that the wording "require" instead of "invite" may be a misleading and aggressive commercial practice.

  4. Parking charge notices are growing common nowadays.

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