C5HW6D0P – UKPC v Miss D, Romford County Court, 03/02/2017, before District Judge Dodsworth.
UKPC represented by Mr Gibson (Solicitor’s agent), Defendant represented by Bargepole (as Lay Representative).
Miss D was employed by a company in London E5, which had a shared car park with other companies on the small estate. She was instructed by her employer that she could use any free bay in that car park, and did so for the first three years. In 2015, the landowner brought in UKPC, and sent letters to the companies on the estate, stating that their employees must not park on yellow lines, or in hatched areas. The UKPC signage made reference to parking permits, but none were issued by her employer, whose Director maintained that employees could still freely park in bays.
Miss D was subsequently issued with four PCNs, and eventually a Claim for a total of £770 was issued by SCS Law on behalf of UKPC. For each of the PCNs, the Claimant’s photos showed that her car was parked in a bay, and not on any yellow lines or hatched areas.
Points of Defence
The defence and witness statement set out the main points as follows:
1/ The Claimant is suing the wrong Defendant. Miss D’s employer instructed her to park as she did, and this became an implied term of her contract of employment. She relies on that contract as having primacy over any purported contract conveyed by the Claimant’s signage. If the Claimant wishes to pursue the charges, they should have sued the employer citing vicarious liability.
2/ The Claimant’s signage also states ‘Wheel Clamping In Operation’. This is a threat to commit a criminal act contrary to s8 of the Criminal Justice Act 1967, and renders any contractual terms void under the ex turpi causa rule.
3/ The Claimant’s signage is deficient in that it omits at least four of the mandatory pieces of information required by the CCR 2013, and therefore the Defendant cannot be held liable under the contract.
4/ In any event, the additional sums of £240 would not be recoverable by the Claimant as it exceeds the British Parking Association (BPA) maximum.
Although the Judge had a very full list for the day, this case was called in first at 10:10, for which everyone was grateful.
Mr Gibson had first dibs, and argued that the Defendant was liable under the contract created by the signage, as this had to be viewed as a consequential extension of the letter from the landowner. He stated that the sign suggesting vehicles could be clamped was not one put up by the Claimant, although he did concede that the UKPC signage was placed directly underneath it. He argued that, under the CCR 2013, it was not a distance contract, because the car park in question was a place of business of the Claimant for the purposes of parking enforcement, and therefore Schedule 1, which is less onerous than Schedule 2, should apply. Finally, he said that the additional £60 per ticket was recoverable, as it was stated on the signage and therefore contractual.
The Defence arguments were then advanced, and it was asserted that Miss D relied on her contract with her employer, together with the copy of the landowner’s letter to her, and did not breach any of those terms, so the Claimant’s signage had no effect. The signage was clearly tainted by illegality, and Miss D was asked to show on her mobile the meta-data of the picture, which proved it had been taken in 2016. The CCR 2013 defined a distance contract, which this clearly was, as there was no simultaneous physical presence of both trader and consumer, and also as indicated by the EU Guidance. Finally, the extra £60 per ticket was outside the BPA Code Of Practice, which the Beavis judgment had stated was highly relevant.
The Judge stated that the facts were not in dispute, Miss D’s car had been parked in the car park without a permit on the four dates given.
He disagreed that Miss D was the wrong defendant; any claim by UKPC against her employer could only be in tort, and would be difficult to make out on the facts.
However, he did agree with the Defence submission that the warning about clamping was in breach of POFA 2012, and therefore the illegality defence was made out.
He also said, even if he was wrong on the illegality point, that because the terms expressed in the landowner’s letter were substantially different from those on the signage, there was uncertainty of terms, and the claim would be dismissed for that reason.
On the CCR 2013 point, he expressed no opinion as to whether or not it was a distance contract, other than to say that the EU guidance, which talks about rental of a parking space, was probably intended to apply to a space allocated to a property under a lease or tenancy agreement. It had been hoped that this might be the first case to get a favourable judicial ruling on the Regulations, but the issue was effectively avoided.
On costs, because Miss D is on maternity leave, no loss of earnings was applicable, so she just got £7.70 to cover travel and parking.
This judgment is also applicable to residential parking cases. If the lease/tenancy does not give primacy of contract for parking, then the actual contract is probably entered into when the landowner sends out letters with parking permits. The signage is not relevant to residents and is there to create contracts with non-residents, or to warn off trespassers.
As this paperwork usually either conflicts with the eventual signage signage or does not clearly state the parking charge, then the case law in Beavis provides that the charge is an unenforceable penalty or unfair consumer charge.
The Parking Prankster