Wednesday, 22 March 2017

ES Parking Enforcement lose in Bury. Court protocol not followed

ES Parking Enforcement v Mr X. 22/3/17 Bury.

Defendant Court Report

When I got to court it was not busy as Bury court closes on Friday and moves to Bolton.
There were 6 cases listed for 2 judges.

The case before me was also against ES Parking Enforcement through Gladstones and I chatted to him. He went in first and came out less than 5 minutes later. I don’t think he won.

When I went in I was surprised it was in the full court with the judge in isolation on the bench.

DJ Osborne asked me if I was the Defendant and I said yes. He already knew the solicitor as I think she’d just won the previous case to me for ES Parking.

He asked her to open and she said the case rested on the fact that I was presumed to be the driver and that I had failed to pay and display a valid parking ticket in the windscreen despite clear and prominent signage. As I had chosen not to to name the driver I was still liable as by using my car it implied permission was given to accept all the terms of the contract. She asked to judge to award in their favour.

The judge then asked me clarify the main reasons I disputed the claim saying I didn’t need to read my statement as he’d read it. I began by saying that I was not the driver and did not know who the driver was. I had provided proof that I was elsewhere at the time.

The signage was inadequate in any case.

The claim form was deficient in the particulars of claim and I could not defend it.

I had not received a letter before claim and that my request for information was not only ignored but treated as an appeal.

The judge then asked questions about why I thought the signage was deficient.

I explained that much of the signage had gone up after the date of the incident and referred him to clear dated photos which showed that the signs they claimed were there on the date from their Google aerial view were only put up 14 days after.

The judge said although the photos clearly showed this it did not alter the fact that in the photo on the NTK there was a large and prominent sign saying "Have you paid and displayed" which the driver, whoever that may have been could not have failed to have seen.

However the signs with the terms and conditions were, he agreed, put up so high as to be difficult to read and the payment figure was not prominent. So they did not comply.

He moved onto the claim form which brought up some interesting points.

He said that it was not uncommon for online claims from Northampton to give such little information.

 In the particulars of claim and that letters I had been sent such as the notice to keeper detailed the claim and as I had it as an exhibit I could reasonable be expected to know what the claimant was claiming for.

He said he was concerned about the lack of response to my request for information and noted I had included proof of posting in the bundle. He said this was not unusual for these companies to ignore them. (He did not comment on why they had sent a letter of rejected appeal instead)

He then asked me to confirm that I had not received a LBC and mentioned that I was not under any kind of oath in this court. He was quite concerned that I had not received a LBC and as Gladstones had provided no proof that it had been sent he had no reason to disbelieve me that I had not received one.

He said then that this did not comply but would rather now move onto why I thought I was not liable as the RK. I referred him to the exhibits proving my whereabouts and that I could not have been the driver.

He asked the solicitor if she had them and she agreed and said again that as I had chosen not to to name the driver I was still liable as by using my car it implied permission was given to accept all the terms of the contract.

The judge asked me about how many people used the car and why anyone else would use it.
How many were on the insurance and how many others were likely to drive it

The claimants solicitor again said that although I had provided evidence that I was not the driver at the time they relied on the fact that I was liable as the RK. As I had chosen not to name the driver.
The judge looked at me and I repeated that I was not the driver and really did not know who it was.

I then referred the judge and solicitor to my exhibits of the Popla 15 Keeper Liability and the Excel v Lamoureux case and he said that although the Lamoureux case wasn’t binding he saw no reason to dispute it’s valid judgement and agreed with it.

I was then asked if I’d like to say anything else.

I asked why, if there were so many photos taken of the car, was a ticket not affixed and a photo taken of this for evidence. The judge said that he wondered why as well and it was not unusual for these companies to do this so as to go after the keeper and this company in particular was well known for this. From this I took that he had come across ES previously.

He commented that I had a very comprehensive and well laid out bundle and all the information was easily accessible.

In summing up he said there was no point arguing any other possibly valid points as he was confident the claim was defective as it had not followed the correct protocol, but he didn’t elaborate on that, and the case was dismissed.

Prankster Notes

Putting together a well laid out and indexed bundle is always a good plan. Gladstones are well known for their incompetent and slipshod approach to cases, and it is not advised to sink to their level. In this claim it appears Gladstones lost the case for their client by not following the correct protocol.

Happy Parking

The Parking Prankster


  1. Interesting the lawyer on behalf of ES Parking tried to imply that the RK accepted any terms and conditions. I believe this issue was already tested and there is binding authority on it. I think it was a case to do with NCP Parking where they had said that the RK was liable for any breach of terms even if they weren't the driver, and I am sure the court said it was an unfair term because you just cannot expect the RK to accept liability for someone else using the car. NCP then had to change its terms and conditions due to the ruling.

    Perhaps someone else might know of this case, but if not i'll try and locate it as it may be relevant to deflect that particular argument.

    1. Mayhook v NCP and Barrington Fuller?

    2. Yes, that's the one but for some reason I had another case in my head. Turned out to be tax related and not applicable.

  2. I loan my car to someone whose own insurance covers them "to drive any car with the owner's permission" as mine does. They steal some petrol. Does that make me liable for the offence? No it doesn't.

  3. This is the whole point of POFA 2012, isn't it (well, Schedule 4 at any rate)? If they don't know the driver, the RK may be held liable, but they MUST abide by the letter of POFA, which most of the PPCs fail to do. If they fail to follow POFA, the claimant should be put to strict proof as to who was the driver.
    It seems POFA was not mentioned in this case. Well done on your win, though.