Thursday, 22 June 2017

Excel lose in Cardiff. Judge explains why Elliott v Loake and CPS v AJH films not relevant

Excel Parking Services Ltd v Mrs. Lynzi Evans
Judge: DJ McKay
Claim no: C8DP79CC  in the Cardiff Civil Justice Centre.
Legal representative of BW Legal: Mr Singh

Observer's court report

Mr Singh was asked to outline his case by the judge. Photographic evidence was presented by Mr Singh to show the vehicle parked in the Excel car park of SA1 Swansea showing an invalid pay & display ticket which had been purchased the previous evening. Mr Singh pointed out that the ticket had expired at 7:18pm on Saturday 21st January 2012. Photographs showed that the vehicle remained in position at 11:10 am the following day. Therefore, the car had outstayed its welcome and the car park operator was entitled to issue the PCN due to a breach of the T’s & C’s. Mr Singh said that there was a "reasonable assumption" that the keeper of the vehicle was also the driver at the time it was parked therefore, Excel were entitled to request information about the driver from the DVLA in order to issue a notice to keeper to recover their loss. He accepted that the incident pre-dated POFA by 9 months but he intended to rely on Elliott v. Loake and CPS v. AJH Films in order to demonstrate keeper liability.

The judge turned to the defendant but rather than questioning the defence he proceeded to talk Mr Singh through it instead. He noted the observations regarding Elliott v Loake and CPS v AJH Films and referred to the copies of the judgements of these cases which were included with the witness statement. He explained why they had no relevance to the claimant's case. He also referred to the Excel v Lamoreux judgement and the problem with establishing driver identity even when an incident was after the introduction of POFA. More importantly, he then moved on to the fact that as this claim was pre-POFA, keeper liability was not possible without any additional evidence to support it. Consequently, the claimant's case relied entirely on Elliott v Loake and CPS v AJH Films. At this point Mr Singh requested that the judge might adopt a "pragmatic approach" in allowing these cases to influence his judgment.

The judge then moved on to summarise as follows. Elliott v Loake was a different type of case entirely. It was a criminal case which meant that there was a legal obligation upon the keeper of the vehicle to give the name of the driver in criminal law. As this claim involved no criminal offence, then Elliott v Loake had no relevance to it. In the CPS v AJH Films case, the judge fully agreed with the Defendant's witness statement which correctly pointed out that this case involved employer/employee liability. As this claim was not a comparable situation, it also had no relevance to the claimant's case.

The judge noted that the defence witness statement was filed 12 weeks prior to the court date and clearly explained why these cases were of no relevance to this claim and then questioned Mr Singh on why the claimant was unable to provide any further evidence. Surely, the claimant should have withdrawn their claim once they realised that they couldn’t do this? The judge also added that the claimant had ample time to investigate and challenge the problems raised by the defence in relying upon these cases to prove keeper liability. Mr Singh was unable to provide an answer to this other than to state that he had only read through the paperwork the day before the hearing. Again, Mr Singh emphasised the importance of the judge adopting a pragmatic stance in accepting the two cases as proof of keeper liability.

The judge then went on to consider the relevance of POFA in relation to the claim. He read from the Ministry of Transport document (Guidance on Section 56 and Schedule 4 of the Protection of Freedoms Act 2012: Recovery of Unpaid Parking Charges) which had been included in the defence witness statement. He noted that the introduction of this act was meant to assist parking companies in the transfer of liability to the keeper but as this incident pre-dated POFA it didn’t apply to this case. The Lamoureux judgement also showed that even though a claim is made after the introduction of POFA, there can be no assumption in law that the keeper was the driver at the time of the incident.

The judge concluded that as the defence witness statement was so comprehensive and presented an overwhelming case; and as the claimant could offer no tangible evidence that Mrs Evans was the driver of the vehicle and because the incident was pre-POFA, she could not be held liable for the charge. This confirmed the importance of POFA in claims where keeper liability are being raised. For all these reasons, the claim was struck out. Mr Singh then requested leave to appeal but the judge refused this on the basis of the overwhelming evidence provided by the defence. This would leave the claimant with no successful prospect for any appeal. Costs were then awarded to the defendant to the value of £199.00 to be paid within 21 days.

Following a short break the judge then moved on to the counterclaim being brought by the defendant for a breach of the Data Protection Act. The judge didn’t feel that there had been a breach as he felt there was no misuse of personal data. He felt that this would only really apply in situations where personal information was passed to third parties with no material interest in the parking incident. Mr Singh was also quite emphatic that in the absence of any information from the keeper, the claimant had no other option than to continue to pursue her for the charge as no information regarding the identity of the driver had been presented. The judge didn’t seem to want to explore the counterclaim any further. The judge then proceeded to strike out the counterclaim of £250.00.

Prankster Note

Despite judges regularly throwing out claims based on Elliott v Loake, the IPC's so called "Independent" Appeals Service still have not taken this on board. The IAS is overseen by head barista Bryn Holloway. The Prankster questions Bryn's integrity and competence. The Prankster believes that no properly competent legal person would embarrass themselves by trying to argue that Elliot v Loake is case law which finds that the keeper is the driver.

The Prankster has seen many judgments from Bryn's posse of legal no-hopers and the Prankster's overall impression is that the IAS is institutionally biased against motorists and has a poor understanding of the law regarding parking. The Prankster questions Byrn's morals and judgement in allowing himself to be associated with such a shoddy, incompetent and biased operation.

Happy Parking

The Parking Prankster

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