Excel lose claim -- no keeper liability

Excel v Mr B. C0DP33Q9 19 December 2016. Stockport in front of District Judge Dignan

As reported by Mr B on MSE

Mr B was charged because his vehicle was parked at the Peel Centre without paying. The driver did not see the signs. In The Prankster's opinion this is not surprising. The Peel Centre is the worst car park in the entire country and occupied a massively disproportionate amount of the Prankster's postbag.

Preliminaries

Mr B replied to the claim using post rather than MoneyClaim Online. He originally returned the form with an acknowledgement and a note the full claim would be defended. This should allow 28 days from the date the claim was served to file the actual defence. The proceedings were complicated because the court officials mistakenly served a blank defence to VCS. Mr B then had to jump through a few hoops to clear things up.

Having rung the court they identified that he completed the "Defence and Counterclaim" form and left the section for the defence statement blank. What he should have done is complete the "Acknowledgement" form, and then submitted his defence statement later.

Mediation

The call started with the mediator describing the process - time limit of an hour, mediator speaks with the claimant first, then the defendant, then vice versa until either a settlement is reached or there clearly won't be a settlement. The mediator advised that she was impartial and couldn't offer any legal advice.

The mediator started by summarising the case as BW Legal saw it - effectively that he parked the car in a retail car park that was managed by Excel and didn't purchase a pay and display ticket. The car park had a number of well placed signs, including a large sign at the entrance. They sent me a PCN as the registered keeper. He appealed on the grounds that the signs were not visible from all areas of the car park, that the charge was disproportionate to any actual loss of income and unconscionable and that although I was the registered keeper of the car Excel had not proved that I was the driver. Excel rejected my appeal and referred to the Parking Eye v Beavis case.

Mr B corrected the mediator in that there was no evidence that he had parked the car.

Mr B informed the mediator why he hadn't payed the PCN - effectively his defence.

He was immediately asked if he was aware of the Parking Eye v Beavis case. He said he was. He was asked why he thought he would win as this case had gone all the way to the Supreme Court and the judge had ruled that the charge imposed by the parking company was not deemed to be excessive. He stated that in my view this case was different as the defendant had accepted that he was indeed driving the car. In this case, Excel had not identified who the driver was.

The mediator then stated that the PCN issued by Excel would have given me an opportunity to identify who the driver was. Why did he not do this? He responded that this was not his responsibility to do so. If Excel wanted to pursue a payment then the onus was on them to clearly identify the driver. He am unsure why they had not done so.

He suggested to the mediator that this line of questioning did not seem particularly "impartial".

He stated that having since visited the car park he understood the fee for parking for up to 3 hours to be £1.30. This, therefore, was clearly the income that Excel had missed out on.

The mediator said that BW Legal would certainly not accept £1.30 as a settlement and so was he prepared to make an offer. He offered £25 on top of the £1.30 to cover the costs of the postage associated with the numerous harassing letters he had received.

The mediator spoke to the claimant, and then returned. She stated that BW Legal would accept £175. He rejected this.

The mediator then informed hin that many companies are taking non-payment of PCNs to court, and that they have a very high success rate as a result of the Parking Eye v Beavis case and the precedent this sets. She also informed him that he would be liable for any additional costs made by the claimant if he lost the case at Court. He asked her what these would be made up of and was told that the claimant would need to pay a £25 fee for taking the case to court that he would be liable for if he lost, and the claimant could also charge for legitimate travel expenses. I suggested that I didn't think that any additional costs could be recovered via a Small Claims Court.

And then that was it. She informed him the case was likely to proceed to a Small Claims Court and would be referred to my local court.

The Hearing

The defence was based around 3 key themes:

a) Excel had not identified who the driver of the car was. The notice to keeper was not compliant with the Protection of Freedom of Act 2012 schedule 4 (POFA)
b) The signs at the car park were unclear, did not comply with regulations and were completely different to those in the Beavis case
c) There are sections of the car park where it appears you can park for free for certain lengths of time without any reference to the terms and conditions which apparently apply to the rest of the car park.

BW Legal hired a local solicitor to represent them

The solicitor stated that Excel were not relying on POFA to pursue their claim. The judge asked why not, and the solicitor was unable to answer this.

The solicitor asked a few questions:

a) Mr B was asked whether he was driving the car. He responded that he wasn't going to identify who was driving the car as he didn't believe it was his responsibility to do so.
b) He was asked that if I hadn't been driving the car why didn't he complete the bottom section of the PCN asking him to identify who was driving the car. Again he reiterated that it wasn't my responsibility to identify the driver. Surely the onus was on the party pursuing the claim to identify the driver.
c) He was asked why he had taken the time to develop a full witness statement including photos of the car park if he hadn't been driving. He almost laughed at this and said that he wasn't going to appear in court without having undertaken enough research to be able to defend myself and point out the inadequacies of the claimants case and the car park
d) He was asked whether he wanted to produce a valid pay and display parking ticket for the day in question. He said no.
e) He was asked if he wanted to identify the driver. He said no.

The judge then asked a few questions:

a) Did Mr B want to identify the driver? He responded, "No thank you."
b) Had Mr B ever visited the car park? He responded, "Yes - clearly he had as he needed to visit it to take photos for the witness statement"
c) Could anyone else have used the car on the day in question? "Yes"

The judge then summarised his thoughts. Effectively the claimant was relying on there being a contract between me and the parking company and Mr B having breached the terms and conditions of the contract. However, the judge stated that this was ''putting the cart before the horse''.

Until the driver of the car had been identified there couldn't be a contract between the parking company and any individual. As other people could have driven his car it was not certain that he was the driver and as such there couldn't have been a contract between the parking company and Mr B..

The judge stated that they could consider the signage and layout of the car park, but in effect it was irrelevant. There was no contract and so no breach.

Case dismissed.

Prankster Notes

The mediation report is typical of the ones the Prankster has heard about. The mediators do not appear to be impartial and appear to be putting undue pressure on defendant to settle.

It is probably not worth attempting mediation if BW Legal are involved. They rely on taking their cut of any monies above the parking charge of £100. Thus, they do not really have full negotiation powers as they will not drop the figure in any meaningful way. As their legal team is clearly incompetent and does not understand the law around parking, they will not drop the claim even if they have little or no prospect of success.

The questions the solicitor asked are the stock questions BW LEgal always uses. In The Prankster's opinion they should really be asking themselves "Why have Excel not bothered to make use of the provision the government made for them to hold keepers liable?" Instead of this they are taking speculative claims to court in vast numbers, hoping that the keeper was the driver.

Happy Parking

The Parking Prankster