VCS v Hedley C8DP3H0H 20/02/2017 in the County Court at Kingston upon Hull
Ed Shoreman-Lawson from Elms Legal represented the claimant
Barry Beavis as lay representative represented the defendant
The judge questioned Mr Beavis' right of audience as a lay representative and demanded to know if the proper insurance was in place. When Mr Beavis made it clear he wasn't getting paid and was a lay representative the Judge grudgingly continued
Before they began, the judge explained that counter claim had been refused in an order dated 17th February that neither side had yet received. He apologised for the delay in dictation. The counterclaim was submitted early in January. It was up to the defendant to either adjourn to submit an application to amend her claim or to carry on with today's hearing with no counter claim. It was decided they should carry on.
The case for the claimant was made by Mr Shoreman-Lawson that by stopping for forty two seconds the driver of a vehicle registered to the defendant was liable for a £100 penalty, as both the claimant's representative and Judge called it, as the clear and obvious signage said 'No Stopping'
The judge seemed troubled that this wasn't really parking and the road on which the driver had stopped didn't really lead anywhere but agreed that the charge had been properly issued. He also seemed troubled that it would have been necessary to stop and read the small print to be able to agree to the contract, but had a jovial and good natured conversation regarding this with Mr Shoreman-Lawson.
The defence was that the Notice to Keeper did not comply with PoFA and that the keeper was not liable; that the signage was forbidding and incapable of forming a contract; that a grace period ought to have been applied and forty two seconds was well within the period; that the map depicting the vehicle parked did not show the boundary correctly; and that the vehicle was not on private land.
The judge ruled that PoFA wasn't required to transfer liability as the driver was acting as agent of the principal - and that the law of agency applied. Therefore, as principal the keeper was liable. He wouldn't listen to any discussion and gruffly said 'I have already ruled on this point'.
He did seem very unwelcoming of any of the defence points, stating 'the arguments of the claimant have much more attraction'
As to the signage not creating a contract -
Judge "Yes but it says no stopping and they stopped"
BB - "But to be binding a contract needs offer, consideration and acceptance"
Judge - "Well it says no stopping"
BB - "But sir, what of consideration? What did the motorist get from this contract?"
Judge - "He got to pay £100"
BB - "Then that would be considered an unfair term......"
Judge - cutting across BB "No. No it wouldn't"
The judge wasn't in agreement with any of the defence points at all. He was happy a contact existed, happy that the defendant was liable and happy that the claimant had followed the ATA code.
The defence submitted a Land Registry Title that showed the Landowner wasn't who the claimant claimed it was nor with whom the claimant had a contract. The Judge was unimpressed stating "I'm happy that a contract was in place for the operator to issue charges. It doesn't matter if it's not with the landowner. It could be that the landowner sold the property to Ashflame Scunthorpe or that they have a lease or even that that they are trespassing but what is important is that they have contracted VCS to control the area."
Things looked bleak.
It was submitted that the Local Authority plan of the area showed that the Local Authority had adopted the roads to this certain point. And that the claimants 'plan' was no more than drawings on a Google Maps image. The defence submitted that based on the Local Authority plan and a blown-up version of the claimant's own photographs the vehicle was not where the claimant's evidence claimed it to be, but was in fact on the Local Authority adopted road.
Based on the manifestly obvious boundary indicated on the Local Authority plan and that the claimant was claiming the vehicle is further along the road - despite the gablings on the wall in the photographs showing the vehicle not to be where the claimant said, the judge ruled "I can say on balance of probability that the vehicle was not on private land at all and I dismiss the claim."
An application for costs was made which - provided the defendant can show by way of a letter from the school she missed a first aid course at the school today (otherwise they would have been on half term holiday and no loss of earnings) - were awarded at £102
BB: "It was hard work, with the Judge disagreeing with all the main points of the defence arguments. Except one. It shows the importance of being thoroughly prepared in every aspect and having evidence to support your assertions.
I felt battered and bruised leaving the court. Shell shocked.
Still 1 nil to the motorist!
The judge made a surprising number of rulings out of kilter with most other judges and established binding case law.
It does seem bewildering that a judge would rule the driver is acting as agent of the keeper. If this were the case then there would have been no need for the government to create the Protection of Freedoms Act 2012 sch 4 to establish keeper liability.
On a more practical note, if the agency angle were really true, no keeper would dare lend their car out again - if the driver killed someone and were automatically ruled to be acting as agent of the keeper then the keeper would be liable to a charge of murder or manslaughter.
The judge also got muddled when he ruled that paying £100 was consideration to the motorist. This is obviously consideration to the parking company. There is no consideration to the motorist. Stephen Duff of Proserve has helpfully provided binding case law on this point. In the case of R (on the application of Duff) v Secretary of State for Transport  EWHC 1605 (Admin), Mr Justice Edis ruled that in cases of this nature the signage is a nonsense and that no contract is entered into. Instead, the case is one of trespass. This followed on from the judgment of HHJ Moloney in the appeal case of Ransomes Park Ltd v Anderson  3YS16797. Paragraph 11 of the judgment is the key part.
Defendants may therefore like to reference this case as binding case law on these "No Stopping" cases. Although Ransomes Park won the case, this is of no help to VCS. As Ransomes are the land owner they can take out a case of trespass. VCS have no such rights. Additionally, Ransomes were able to demonstrate a loss. There ios no such loss in any of the VCS cases.
Lastly the judge got in a real muddle when he ruled that a parking contract is valid even if the parking company are trespassing on the land. It is clear from a lot of cases (and most often in residential cases where residents have primacy of contract) that there must be a clear chain from the landowner to the operator for a charge to be enforceable. The binding case law on this matter is VCS v HMRC  EWCA Civ 186. Paragraph 22 is key
22. The flaw in the reasoning is that it confuses the making of a contract with the power to perform it. There is no legal impediment to my contracting to sell you Buckingham Palace. If (inevitably) I fail to honour my contract then I can be sued for damages
This makes it clear there is a difference between the power to make a contract and perform a contract. A trespassing operator is in the position of a rogue trying to sell Buckingham Palace. They can make a contract, but cannot perform it. And if they cannot perform it, they cannot enforce it.
The judge immediately contradicts himself when he then rules the parking company were in fact trespassing after all as this was public highway, and that therefore the contract could not, after all, be enforced.
The Prankster recognises that parking companies play judge bingo and hope to get the occasional one-off wayward ruling. This is a symptom of there not being a robust regulatory framework controlling private parking, which encourages this rogue behaviour, and also at the lack of a proper one-stop independent appeals service, who understand parking related law and correctly apply it.
The Parking Prankster