Thursday, 16 February 2017

Excel ignore judge. Case struck out by DJ Lateef

Excel v Ms X. Stockport 2016/7.

The defendant visited the Peel Centre with one other person in 2015.  Neither could remember who was driving, and the photographs provided by Excel were no help. A valid parking ticket was purchased by the other person. Unfortunately, they absent mindedly entered their own registration number instead of the correct registration. Excel were informed of this, but refused to cancel the charge.

Ms X filed a defence on four points

1. Keeper liability did not apply
2. The claimant has accepted new terms. By accepting monies when the claimant knew, or could reasonably be expected to know, the registration entered did not belong to a car in the car park, the claimant has by its action accepted by performance a revised contract. This is the car park equivalent of the ‘battle of the forms’ Butler Machine Tool Co Ltd v Ex-Cell-O Corporation (England) Ltd [1979] 1 WLR 401, Court of Appeal
3. Correctly applying the case law from ParkingEye v Beavis, the charge is a penalty and unfair consumer charge
4. The additional charges claimed had no basis

The Hearing

The Defendant represented herself. Excel were represented by Mr Pickup.

In Court the DDJ concentrated on the Keeper Liability argument. 

The notice to keeper was served out of time and did not contain paragraphs 9.2.e and 9.2.f. The DDJ asked Ms X to show where in the Protection of Freedoms Act 2012 were the consequences of serving the Keeper Liability Notice out of time. She commented that Ms X had provided no evidence as to when the notice was received and could not show it was not delivered the day after issue. Ms X referred to S9( (1)(2c, 2f) and (6), which shows the notice is presumed delivered 2 days after posting and presented copies of these pages (7&8) of the Act. This was not accepted as Ms X did not have the complete Act with her. 

The Judge said that as this argument was not given in detail in the Defence or Witness Statement it would not be admissible. She offered to adjourn the case and allow Ms X to resubmit her Defence and witness statements or continue that day if she agreed to drop this part of the Defence. 

The Claimant's solicitor was requested to seek instructions from his principals as to whether they would agree to an adjournment and what costs would be claimed. 

Ms X pointed out that her defence stated Keeper Liability did not apply and her legal argument gave the reasons.

The parties adjourned for lunch and to consider their positions.

After lunch the DDJ immediately declared her ruling on the Keeper Liability issue. The Protection of Freedoms Act 2012 was not relevant to the case and so Keeper Liability was not an issue she needed address. The onus was on the Claimant to prove the Defendant was driving the vehicle. 

It was quite proper for legal arguments not to be included in the defence or witness statement and that point 4(a) of the defence covered the issue. 

Further the Claimant confirmed they had received a copy of the defence and had raised nothing in the Allocation Questionnaire to require further particulars of that assertion. 

The DDJ asked the Claimant's solicitor to agree they would not pursue Keeper Liability and then the case could proceed. Such an undertaking on this was given. The Claimant's solicitor asked for an adjournment for instructions from his principals before the case proceeded. 

The DDJ then gave her judgment.

She said the case was most unusual.  
The DDJ said the onus was on the Claimant to submit further evidence that the Defendant was on the balance of probability the driver of the vehicle on that occasion and Claimant may wish to consult Counsel on the issue as well as give consideration to (d) of the Defence (no basis for any additional charge), or they may be content to proceed without Counsel.

The Claimant was to file Skeleton Argument dealing with legal arguments for Defence excluding Para (1) 5 – 6 in 5 weeks time

Ms X was told she need not alter her witness statement, evidence, defence or arguments but could if she choose provided they were in by the set dates

The Judge adjourned the matter to a future date

There was no order as to costs and the judge did not reserve the new hearing to herself.

There were other Excel cases that day and Mr Pickup told Ms X he wins most parking cases quickly.

The Next Hearing

Excel did not bother to comply with the judgment and the claim was struck out by DJ Lateef.

Prankster Notes

The Prankster is so familiar with the Protection of Freedoms Act he sometimes forgets other people are not, which includes judges and motorists. Excel are of course perfectly aware and for years have stated they do not rely on the Act. It is therefore rather two-faced to pretend the Act applies when faced with another party who is not so conversant with the Act.

The Prankster suspects the DDJ had a quick read of the Act over lunch and realised that Excel's claim was bogus.

DDJs have online access to statutes in the courtroom, but notwithstanding this, it would seem good practice to file a copy in your bundle so there is no wiggle room.

There really was no good reason to adjourn the case. Given the size of the claim it would be a complete waste of court time to come back for another visit, given that Excel had already submitted all the evidence they had on the matter.

Happy Parking 

The Parking Prankster


  1. I like the novel defense arguments. Battle of the Forms is always fun and turning Beavis around is pretty neat too.
    It is very interesting to note just how much preparation you need to do to demonstrate that the law is on your side.

  2. And it was DDJ Lateef, of course, who after having found for the Defendant (one M. Cutts Esq) in another Peel Centre case back in 2011 was described by Simon Renshaw-Smith (he of Excel, VCS and Conkai) as "...not fit to serve the civil courts".

    One wonders whether she factored those comments into her consideration in this case or, more likely perhaps, that realising he was up against (another of) his nemesis S-RS drew stumps?

  3. Can anyone explain defence point 2 in more detail? I can't see how battle of the forms a of any relevance other than a nice stretch of the imagination.

    1. Its hardly a stretch of the imaghination.

      The PPC set out its terms: You can park in consideration of your paying according to the standard tariff and by inputting you registration number.

      Customer: (in effect - summarised and simplified for ease of illustration) OK. I'll park in exchange for payment based on your tariff but I'll put in a different registration number.

      In so doing the customer has in effect offered to contract on differing terms which by performance (the actions of the PPC in accepting the payment) the PPC has accepted.

      The "Battle of the Forms" involved two companies negotiating a contract with each other where each company wanted to settle on the terms of their differing standard contracts. Company A purported to accept the terms of company B whilst actually intending to use its own and vice versa. In such cases it is generally accepted that the party that succeeds is that that fires the last shot, so to speak. In this case the customer offered the payment and did not put in his own registration number contrary to the terms offered by the PPC but the PPC nevertheless accepted the consideration. It was the customer who thus fired the last shot.

    2. But the counter terms must be communicated to the PPC. I can't see how you can argue that a software/system used by the PPC, which it's sole function is to take payment for parking and link that payment to a car registration, can be taken that the PPC accepted the counter terms.

      On top of that how would the PPC know that the car registration that was input was specifically meant for that particular car and no other car that had not paid?

    3. The point is that the parking company has the means to determine the registration number - they do typically provide the pictures of entry and exit so have the means to dispute the entry but choose not to. So someone enters a nonsense number - perhaps for privacy - and yet the company still accept the money. It is no more of a stretch than expecting a motorist to actually read terms and conditions of a car park.

    4. "It is no more of a stretch than expecting a motorist to actually read terms and conditions of a car park."
      That made me chuckle. Thanks.

    5. This comment has been removed by the author.

  4. The software needs to be configured to only accept anpr detected registrations or close to (as anpr is not 100% and mis reads). As it was not configured to reject its open to offers and accepts ;)

    1. Arguably sure, but on the opposite side the PPC can say that they are not obliged to and it is up to the driver at the time to make sure that they input the correct registration number.

      But again, any counter offer must be communicated to the other side. A system which records the registration details and takes payment in my view is not likely to be considered a person that is part of the PPC which has authority to accept new terms by performance or unequivocal acceptance.

      Registering the wrong vehicle registration on its own without at least notifying the PPC, cannot amount to a counter offer which was subsequently accepted.

      Nice try, but I doubt it would work.

    2. I think there is something to the arugument. The system took the money from the driver. The driver was clearly not making a charitable donation, they were providing consideration for parking. Why would the system take money for a registration that has not been captured from by the ANPR cameras?

    3. Ask for the money back since that specific car was never there?

      Is the PPC required to configure the ANPR system with the payment and vehicle registration database? I wouldn't have thought so, since the PPC can operate the business in a way that it chooses. Presumably the ANPR is there to capture the time vehicles that enter and leave and the payment system is to record a payment having been made and link the payment to a vehicle which has parked. If a person paid for a vehicle which never entered then arguably you could ask for that amount back. Perhaps a cross-reference is made between the capture of vehicle registrations and the database and those who are not on the paid database will receive a charge (I don't know if this is how it actually works in practice but as an example).

      But neither you nor the court can dictate the way in which a PPC should run its business (unless there's a breach of the law) and if the terms require you to do something specific and you choose not to do it, then it's your own fault.

      As I have repeated though, there is no valid counter offer unless communicated to that effect and the PPC cannot be taken to have accepted that counter offer simply because someone entered the wrong registration number. The driver would have to do something more than that to have any valid argument.

      P.s. I'm not supporting PPCs but this sort of defence sounds like a last ditch attempt which is pretty worthless.

    4. as it is the PPC system offering the contract, their failure to mitigate errors is their failing not the consumers? knowing database systems and software engineering, what they have here is a cheap system not fit for the purpose, if it was properly engineered it would be much less prone to failings - such as printing out QQ instead of the inserted Reg, denying payment from any vehicle not noted as entered etc

  5. Why does the DDJ assert that it is a "most unusual" case? Failure to comply with POFA happens with many cases on here and in other forums.
    Also, since when does a defendant (or a claimant for that matter) have to include their legal arguments in a WS?
    Lucky for Ms X that Excel managed to get it struck out by their incompetence, as it would have been dicey if she'd come up against the same naïve DDJ.

  6. I thought we had dropped Mr Pickup (non-solictor,barr)?