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Sunday 16 July 2017

Judge finds for parking company on all 7 points at University Hospital of Wales. £28,000 costs awarded

The University Hospital of Wales has around 1,000 parking spaces for staff. In order to park there, staff must enter a contract with the hospital. They apply and if succesfull are given a permit to park. Around 10,000 permits are in current force.

Although issuing 10,000 permits for 1,000 spaces seems on the face of it a perfectly reasonable strategy, in practice it has not worked well. For some reason far more staff attempt to park than there are spaces for, leading to chaos and a bumper payday for parking contractor Indigo. Offsite parking can be up to a 45 minute walk away.

Tickets start at £20 and are then increased to £120 by artificially bumping them between debt collectors ZZPS and Wright Hassall.

There are currently 100,000 unpaid tickets from hospital staff worth £12,000,000 and a hearing to consider these was held on 12/13/14 July.

There were 7 points of defence.

(i) The validity and enforceability of Notice to Driver (NtD)
(ii) The validity and enforceability of Notice to Keeper (NtK)
(iii) The enforceability of the right to recover parking charges under an agreement between Cardiff and Vale Local University Health Board and Indigo Park Services UK Ltd
(iv) Signage
(v) The source and Provenance of Parking Permits
(vi) Whether a contractual offer was made
(vii) Applicability of, and compliance with, the code of practice

The judgment

DJ Coates controversially found for the claimant on all 7 points. The Prankster was not in court and so is relying on others for an accurate report of her judgment. Full analysis is therefore reserved for the time when the transcript is available.

(i) The validity and enforceability of Notice to Driver (NtD)

Apparently no actual NtDs for the 3 defendants were submitted as evidence; only a pro-forma template circa 2017. Nevertheless, Judge Coates found this complied with POFA.

The Prankster therefore considers this controversial because
a) This NTD was not in force at the time of many of the parking events
b) POFA requires that the NtD contains specific information relating to the actual event. As only a template was provided there is no proof the actual NtDs continued this information and were compliant
c) It is up to the claimant to prove their case, which they clearly have not done

(ii) The validity and enforceability of Notice to Keeper (NtK)

Judge Coates ruled that the NtK could contain a charge different from that on the signage and the notice to driver. She ruled that because David Metcalf of the BPA had held out the NtDs issued by ZZPS to be a 'best practice' example, then they must be correct and she did not need to consider the matter further. She further ruled that in any case a keeper could be held to have agreed to a parking contract without visiting the site, if their partner had visited the site many times and could reasonably have expected to inform them of the contract in casual conversation.

The Prankster therefore considers this controversial because
a) POFA 2012 rules that the parking charge must be the on the signage [2, 3(b)(i)]
b) POFA 2012 rules that the parking charge on the NtD must be on the signage [7(2)(c). 2, 3(b)(i)]
c) POFA 2012 rules that the charge on the NTK must be the same as that on the NTD [8(2)(c), (2)(c). 2, 3(b)(i)]
d) POFA rules that the keeper is only liable for the charges set out on the signage and NtD [4(5), 8(2)c,2)(c). 2, 3(b)(i)]
e) POFA requires that the NtK contains specific information relating to the actual event and repeated from the NtD. As only a template NtD was provided there is no proof the actual NtDs continued this information and were compliant
f) It is up to the claimant to prove their case, which they clearly have not done
g) The Prankster has heard of accepting a contract by performance. he has never heard of accepting a contract by means of casual conversation
h) The BPA is not a competent body to authorise NtKs. It is a members club for the parking industry. Additionally, no evidence as to David Metcalf's competence in this matter was served, and he was not billed as an expert witness. It was therefore not appropriate to take his unsubstantiated report as proof the NtK template was valid

(iii) The enforceability of the right to recover parking charges under an agreement between Cardiff and Vale Local University Health Board and Indigo Park Services UK Ltd

No actual copies of any letter of authority were supplied for the time of all parking events. The Health Board state they destroy the previous letter of authority each year when sending out a new one.

The Prankster therefore considers this controversial because
a) It is a BPA requirement that written authority is kept
b) In ParkingEye v Beavis it was stated that parking companies need to obey the BPA code of practice
c) POPLA regularly uphold appeals if the operator does not produce written authority
d) It is not believable that the board destroys old letters of authority, as they need to keep these in case of legal challenges

(iv) Signage

Judge Coates ruled that it was sufficient that there were numerous signs. It did not matter that the actual costs were hidden in the small print and not detailed.

The Prankster therefore considers this controversial because:
a) ParkingEye v Beavis sets out clear guidelines for signage. In that case, the parking charge was clearly displayed in the largest font. There were no unspecific charges added later
b) ParkingEye v Somerfield Stores clearly sets out that unspecified debt collection charges above the parking charge are not likely to be enforceable

(v) The source and Provenance of Parking Permits

Judge Coates ruled the parking contract was made at the time of parking, and not when the permits was issued.

The Prankster therefore considers this controversial because:
a) This is directly analogous to residential parking. Primacy of contract therefore applies and a third party cannot unilaterally change the terms of the contract
b) As the staff pay the health board for permits and they are issued by the health board, this contract should be the one in force

(vi) Whether a contractual offer was made
Judge Coates ruled the signage did make a contractual offer.

Rather like the 'hawkeye' system, The Prankster considers this 'umpire's call'. In The Prankster's opinion the signage is confusing, and makes no contractual offer, and therefore is either void for uncertainty or creates a trespass, not a contractual breach. However, The Prankster accepts some judges will call it one way, and other judges another.
was not

(vii) Applicability of, and compliance with, the code of practice
Judge Coates ruled that compliance did not matter

The Prankster therefore considers this controversial because
a) In ParkingEye v Beavis it was stated that parking companies need to obey the BPA code of practice

Costs

Wright Hassall asked for £47k in costs. The judge ruled that it was unreasonable for the defence to bring up 2 of the points (Authority (iii) and Permits (v)) as she considered these as unwinnable. She therefore awarded 2/7th of £47k under the unreasonableness rule (27.14(2)g, or nominally £28,000.

She ruled that it be split between the 3 defendants. She further ruled it be split between the 90+ other cases waiting on the result of this won, as they had benefitted from not having to go to a hearing.

The actual cost will be determined in a costs hearing on 1st September.

The Future

This now leaves some hospital staff facing life-changing amounts of money for those on hospital pay. Not just the 3 in the hearing, but many of the outstanding 100,000 tickets.

For the reasons above The Prankster considers the judgment to be incorrect.

But what does he know?

The Prankster therefore calls on the legal brains of Wales to offer themselves pro-bono or at an affordable rate to help with an appeal and resolve the plight of these unfortunate hospital staff.

Please get in touch with The Prankster at prankster@parking-prankster.com if you are willing to help. The Prankster will then out you in touch with the people co-ordinating any appeal.


Happy Parking

The Parking Prankster

36 comments:

  1. I read the report yesterday and am disgusted that this could happen.

    Let me know if a fighting fund is being set up, I'd throw something in the pot. Unfortunately, I'm not on that side of the country so unable to assist otherwise.

    ReplyDelete
    Replies
    1. https://www.justgiving.com/crowdfunding/nia-bromage?utm_id=108&utm_term=DjW8z34yk

      Delete
    2. I'm certainly with Gary on this. The CrowdFunding link given, though, is to contribute to the parking charges and costs - perhaps a little premature if there's an appeal?

      I will certainly be making a contribution to any appeal fund for the case.

      Delete
    3. https://www.justgiving.com/crowdfunding/nhsvindigo

      appeal crowd funding link

      Delete
  2. She ruled that it be split between the 3 defendants. She further ruled it be split between the 90+ other cases waiting on the result of this won, as they had benefitted from not having to go to a hearing

    Take that BS to the High Court, I am happy to chip in. This DJ Bingo is getting to be a bad joke.

    ReplyDelete
    Replies
    1. This comment has been removed by the author.

      Delete
    2. If costs can be awarded for unreasonable behaviour, solely for raising points that the judge considers unwinnable, then why aren't the full costs of defending PPC claims awarded every time they lose in court. After all, most of their claims are totally without merit and based on false witness statements, inadequate or missing details of claim, missed filing deadlines and failure to show up in court.

      Delete
    3. £26k costs awarded

      Staff do it pay for permits

      Please correct mrP

      Delete
  3. As costs have not been decided the hearing is not over, so they ask for leave to appeal. The case should have been heard by the DCJ.

    ReplyDelete
  4. thec just giving appeal is wrong , wrong on many counts , its money to APPEAL the court case and to prove that they cannot continue to "fine" people , needs to be stopped , not band aid applied later total and complete boycott of the carpark , arrange for buses /coaches to run them to work (minimal cost) and let indigo suffer financial loss

    ReplyDelete
  5. I am rather disappointed to see that the crowdfunding appeal is tp pay the "fines" and legal costs of the healthcare workers. At this stage I am only interested in contributing to an actual appeal fund. If one exists please let me know.

    ReplyDelete
    Replies
    1. This comment has been removed by the author.

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  6. crowd funding should be for funded appeal with legally trained and qualified help , not to pay this scum.. fighting them (appeal) will save many thousand more tickets quoshed , this appeal will simple fund indigo and give them funding to start many hundreds of court cases

    ReplyDelete
    Replies
    1. https://www.justgiving.com/crowdfunding/nhsvindigo

      Delete
  7. I have deleted one comment because it is possibly defamatory

    ReplyDelete
  8. Can anyone confirm that there is no p.p. for cameras (if on new poles), and no advert consent for signage
    here? I couldn't find either. Most LPA's require an application for advert consent (Class 2 if signs
    exceed 0.3sqm in area). In general terms, this case
    apart, unauthorised signage is unlawful and almost invariably LPA's say advert consent cannot be back-
    dated. Both Codes of Practice require members to operate within the law,so surely breach of the advert Regs is a breach of the Code? The Supreme Court has confirmed that PPC's can only obtain keeper details if they adhere to the Code. Finally, standard NHS Terms & Conditions for the Provision of Services(e.g. the August 2013 Contract Version) state that suppliers must operate in accordance with the law, with regulatory bodies,with guidance, with good industry practice and with all relevant consents etc. Is there compliance at this site? Does anyone have access to the landowner / PPC contract or the precise NHS services procurement T's & C's?

    ReplyDelete
    Replies
    1. Court rejected the Code of Practice argument, in spite of what the Beavis ruling said about that.
      I think the unlawful argument re the signage is likely to find more favour with a more senior judge than in a small claim with a DJ.

      Delete
  9. is this her?
    http://www.meikles-solicitors.co.uk/Claire-Coates.html

    ReplyDelete
    Replies
    1. More likely to be Clare Elizabeth Coates I think:
      https://www.judiciary.gov.uk/announcements/district-judge-appointment-coates/

      Delete
  10. It would appear that the three who went to Court did themselves no favours with their defence.
    In the light of the amount of money being claimed and the number of staff involved together a well versed lawyer would have wiped the floor with them AND secured payments for DPA breaches.

    ReplyDelete
  11. I think the real point is that the parking company can afford to blow 47K on this, but given that the hospital staff can barely afford to find the money to pay the parking charge, where were they going to find the money to pay a well versed lawyer; and where would they even find one?

    ReplyDelete
    Replies
    1. makes a mokery of small claims where the person is supposed to defend themselves with no payments for skilled professional help , its a farce ,,

      Delete
    2. The Defendants should have asked that the case be heard by the Des' Civil Judge as this was a 'test case' as in Beavis.

      Subject to reading the judgment, I expect costs to be reduced or totally cancelled on appeal.

      Delete
  12. Donation sent - to the fighting fund, not the rollover fund. I encourage all others to do the same. It's the one in Susan Priors post.

    ReplyDelete
  13. The Daily Wail has it here:

    http://www.dailymail.co.uk/news/article-4702178/Nurses-pay-150-000-parking-fines.html

    Q.

    ReplyDelete
  14. Apparently in parking crazy land, 2/7 of £47k is £28k?

    ReplyDelete
  15. Well, you know the old adage (paraphrased).

    Issue one bogus ticket and you're a cowboy; issue 100,000 and you're a tycoon.

    ReplyDelete
  16. I set up the first page & am more than happy to merge with Susan to fund an appeal if that's what the defendants want. Happy to help whatever way I can

    ReplyDelete
  17. Why on earth was Barry Beavis assisting the defendants? His own failing case led to a massive escalation of scam parking companies@ PCNs.

    ReplyDelete
    Replies
    1. Barry did his best - he did score some points, and he made some strong arguments. The judge ignored them.

      Delete
  18. One has to ask why he thought he was even slightly qualified, especially given how he is now trying to land all of the blame on John Wilkie, a well known and respected advocate who has a solid record of wins.

    By. comparison, what has Bravis done?

    ReplyDelete
    Replies
    1. "Fenrir Lukoi" - clicking on that name brings up a link to a somewhat unsavoury blog.

      I wonder if there is any connection?

      Delete
    2. Of course there is. Unsavory though? Perhaps not, though it's certainly realistic and brutally honest.

      The blog is called "diary of a sex offender, although as it explains, I am now clearly an ex offender.

      Delete
  19. So much for the continued,false, rhetoric by the media - " parking is free at hospitals in Wales"!!

    ReplyDelete
  20. Maybe the employees should consider issuing a claim against the Trust for fraudulent misrepresentaion and claim back the parking charges as an item of damages in that case ? An important
    point is Did the trust sell 10,000 staff permits for 1000 staff spaces and then entered into a contract to raise revenue to cover this up ? I would suspect that Indigo bought the case and not the Trust and hence this legal point was not made. However it is clear both Indigo & the Trust collaborate on this matter and are aware of the lack of staff parking on site. How much of the the Indigo parking charge get returned to the trust is unknown at this time.

    ReplyDelete