Monday, 6 November 2017

Ex-tower Nigel Barrington-Fuller made bankrupt

This week The Prankster referred to the case of Mayhook v NCP. In that case Nigel Barrington-Fuller, an ex-barrister towed away Mr Mayhooks car from an NCP car park and refused to return it. Mr Mayhook successfully sued NCP and Barrington-Fuller, and was awarded damages and costs.

As a postscript to this story, it has now emerged that Barrington-Fuller has not paid NCP monies owed to them and had therefore been made bankrupt in May 2017.

The story was reported on pepipoo.

It is not known whether the monies owed had anything to do with the Mayhook case.

Mr Mayhook was awarded £87,000, broken down as follows;

Solicitors costs £45000
Barrister £12500
After the event Insurance £24000
Disbursements £4500

This did not include NCP or Mr Barrington-Fuller's costs - presumably they shelled out a similar amount. It is therefore quite possible that the bankruptcy concerned monies that Barrington-Fuller owed to NCP as part of this settlement. However, this is of course just speculation.

Happy Parking

The Parking Prankster

Sunday, 5 November 2017

IPC Kangaroo Court strikes again

The IPC appeals service, the IAS,  has been regularly exposed as a kangaroo court which does not provide a fair or independent appeals service. Instead, it is institutionally biased towards the parking operator.

A fair service would produce results which are by and large the same as would be produced in a court of law. Sadly the lead assessor Bynn Holloway has created a bogus set of rules for his minions to
follow which achieve almost exactly the opposite.

For example, in the civil courts the burden of proof is on the claimant. Although Bryn is apparently a barrister, and therefore should know this, he has created an appeals service in which the exact opposite applies.

Many parking companies have decided not to use the keeper liability provisions of the Protection Of Freedoms Act 2012, and so only the driver is liable. In those cases it is therefore up to the parking company to prove the driver is in fact, the person they are accusing of being liable. A large number of small claims cases have shown this to be the case. Here is just one of the many recent cases

Therefore it strikes me that there is a simple question that the court has to ask itself. Is there evidence produced by the claimant to show that Miss Quayle, and I will call her Miss Quayle for the remainder of the judgment, is there evidence to show from the claimant that Miss Quayle was on a balance of probabilities the driver on 28th December 2014 when the car was parked in the Princes Dock area? The claimant has produced absolutely no evidence that the defendant was the driver and simply says that they are entitled to presume that the defendant was the driver because effectively she was the registered keeper at the time.
I disagree. 
However contrary to this, on Bryn Holloway's misguided orders, his lackeys regularly assume that the keeper was the driver even though the parking companies offer no evidence whatsoever.

Even worse, evidence the keeper provides to show they were not the driver is regularly ignored. In one case the Prankster helped with, the parking company stated on the driver was male. The keeper was female and therefore any fair appeal service would find for the keeper. However, this was not good enough evidence for the IAS. The keeper also provided witness statements from the occupants of the vehicle that she was not even present at the time of the incident (she was at home preparing a meal). Even this was not good enough for the IAS! The appeal was dismissed.

Of course, it is not possible to run a fair appeals service which believes whatever the parking company states, however incredulous, while simultaneously disbelieving the evidence of the motorist.

When motorists complain they have received a poor decision Bryn routinely refuses to investigate and instead sends out a template letter stating that he cannot investigate because this would compromise the service. Of course, this is smoke and mirrors. Any proper appeals service would properly investigate complaints.

The Prankster therefore has no hesitation in saying that based on the available evidence it appears that Bryn Holloway is an incompetent fraud who lacks the experience, moral fibre and legal knowledge to run an appeals service fairly and properly. In the Prankster's opinion he has zero credibility and should seriously consider whether he is the right person for the job.

Bryn's lackeys hide behind the cloak of anonymity. The Prankster believes that this is because if their names were to become public they would lose all credibility in the legal community. The Prankster therefore has no hesitation in saying that based on the available evidence it appears that Bryn's minions are either biased or incompetent, and have no place in serving on an appeals service.

Here is one recent example of the IAS's bias and incompetence.

The motorist parked in a car park in Folkestone run by CPM a couple of months ago. It turned out the ticket machine was out of order; a small group of people gathered round it and one person phoned the number given. She was told to text the car reg no to the mobile number given, which the motorist duly did. Two hours later they returned to find a PCN recently affixed to the car.

The motorist appealed to CPM, which was declined, and then in due course to IAS where the appeal was also dismissed. At no point was the point answered that the motorist had sought out and obeyed the instructions of the parking company.

The Prankster firmly believes that if this goes a claim the parking company will be laughed out of court by the judge. Essentially an oral change to the parking contract has been discussed and agreed by both parties, and this will therefore take precedence over any signage.

The fact that Bryn Holloway fails to understand this proves in the Prankster's eyes that he is not a fit person to run an appeals service and that his knowledge of contract law is shaky at best and non-existent at worst.

Happy Parking

The Parking Prankster

Clamping is back! But is it legal?

The Times this week reported that some car parking companies are attempting to bring back clamping.

The situation arises at station car-parks where byelaws are in force. The British Parking Association has recently told its members that they do not need to offer an independent appeals service for tickets issued at these car parks, which means that POPLA is no longer available to motorists.

This immediately sets alarm bells ringing. Indigo, one of the companies who manage railways car parks, lost 90% of their POPLA appeals in 2016.

As any parking tickets are issued under byelaws, the next available step to a motorist who wishes to dispute a ticket is to wait for the parking company to prosecute the driver at a magistrates court.

Essentially, the payment of the £100 charge to the parking company is equivalent to a bribe to stop them taking the process to court.

However, the court route opens up more problems than it solves. The first problem is that the Protection Of Freedoms Act 2012, sch 4 does not apply, and only the driver is liable to any charge. As this would be a criminal case, the burden of proof is on the prosecution and that burden is significantly higher in criminal than civil cases. We have seen that similar cases where POFA does not apply and the driver is not known are routinely thrown out of civil court, and this would therefore be even more likely in criminal court. The byelaws do also provide that the owner may be liable, but this is not necessarily the same as the registered keeper. As all the TOC knows is the name of the keeper, this leaves them with a tricky problem. For instance, with many vehicles, the actual owner is a finance company. In addition, there is the possibility that the supposed ability to fine the owner may be ultra vires, as the enabling regulation (Transport Acts) only refers to "conduct of persons while on railway property".

Chances of successful prosecution are therefore seriously diminished.

The second problem is that any case must be filed within 6 months. Unlike civil cases, where a debt can be pursued for up to 6 years, there is a much stricter time limit for bye-law cases. If the parking company dilly dallies, they will find themselves timed out.

The third and more fundamental problem, is that the penalty for breaking a byelaw is a fine, and any fines levied go to the state. The parking company gets nothing. There is therefore no financial incentive for them to take a driver (even if they can identify them) to court.


Some creative person at the parking companies has therefore decided to chance their arm and reintroduce clamping. “Clamping in operation” signs have started appearing in certain station car parks operated by Govia Thameslink Railway (GTR). The signs warn:

i) Any vehicle parked contrary to the railway byelaws may be clamped and/or removed by
the Operator or authorised person;
ii) The costs incurred by the Operator for this may be recovered from the owner of the
iii) In addition to any parking penalty, a clamp release fee of £125 will apply

GTR have stated that they will "target only persistent offenders who aren’t buying tickets and owe us large sums as a result."

The premise being that if somebody continues to dispute that a parking charge is owed, then one day they will return to the station to find their car clamped. The car will not be released until all the parking charges are paid, together with a release fee.

However, the legal basis for this appears to be extremely shaky. The Prankster has seen an extremely insightful analysis by a former barrister which identifies five reasons why clamping in these circumstances is probably unlawful.

In summary, these are;

a) Train Operating Companies do not have lawful authority to clamp/remove. Any attempt to use the Railway Byelaws 2005 to grant that authority is ultra vires, for the power to make such a byelaw was not granted – either expressly or impliedly - by Transport Act 2000.

b) The words of Byelaw 14/4/ii are not enough to constitute lawful authority within the
meaning of the Protection of Freedoms Act 2012. In order to create the lawful authority that
Parliament had in mind it would have to (a) define how, when and where clamping can take
place, and (b) incorporate the required level of regulation.

c) Even if Byelaw 14/4/ii did amount to “lawful authority” it clearly does not permit
clamping when the authorised person only has reason to believe a breach has occurred. Any
clamping carried out on the basis of a merely alleged breach (which would, in any event,
require an associated appeal process) would be illegal.

d) Even if Byelaw 14/4/ii did amount to “lawful authority”, there is no lawful authority to
charge a release fee in addition to costs. Any attempt to demand such a fee before removing
the clamp would be another form of extortion.

e) A demand that a motorist pay an unenforceable “penalty” is wholly unwarranted. To use
a clamp in order to force him to pay it would be an act of blackmail

There is a similar previous case on the record. In Mayhook v NCP, NCP confiscated Mr Mayhook's car and refused to return it. After a long legal battle they found themselves a five figure sum lighter.

The Statute of Marlborough 1267 (the relevant sections of which are still in force):
makes it a criminal offence to seize property over alleged unproven debts.

In summary, the removal of the motorists right to independent appeal and the reintroduction of clamping appeal to be ill thought out and likely to introduce more issues than it solves.

Motorist Options

What should a motorist do if they find their vehicle is clamped on returning to the station?

POFA 2012, schedule 3, chapter 2 provides that it is a criminal offence to immobilise a vehicle without lawful authority. The above analysis strongly suggests that lawful authority is not present.

One option would therefore be to involve the police. Although they might not be sufficiently au fait with the nuances of the law, they will at least be able to take down the details of the clamper so that they can be prosecuted for criminal activity at a future point in time. The police might also be persuaded to order the removal of the clamp in order to prevent a breach of the peace, but this is not guaranteed.

Attempting removal of the clamp is another gray area. This may or may not be lawful depending on circumstances.

It might be that the most prudent manner is to pay the charge, then immediately start the legal processes needed to reclaim any amounts paid, and also to invite the commencement of criminal proceedings against the clamper.

Happy Parking

The Parking Prankster

Saturday, 4 November 2017

NWCP lose second reported court claim

D3QZ88D0. NWCP v Mr H 29/9/2017.Preston

The IPC have waved the hand of incompetence over another of their customers, resulting in the inevitable court loss.

The full story is on MoneySavingExpert

Mr H received a windscreen ticket on their car, but did not believe the charge was valid. Mr H therefore waited for the Notice to Keeper, and sent off an appeal. At that time, NWCP did not do court, but this was about to change, as previously blogged, and three months later a claim form was received.

Mr H constructed a defence with the help of MSE, with CouponMad pointing out that the signage made no offer to park, and that the charge of £100 was hidden in the small print.

The court struck out NWCPs initial statement of case. The court was generous, allowing NWCP a second chance even though they had failed to comply with Civil Procedure Rule 16.4 and Practice Direction 16, paragraphs 7.3-7.5.

A new statement of case was supplied and a hearing date set. Mr H misunderstood the court process and did not submit a witness statement. Upon realising the mistake, a witness statement was quickly submitted.

NWCPs witness statement was remarkably similar to that submitted for their previously reported losing case.

Mr H made a drop hands offer, which NWCP did not reply to.

The Hearing

Mr H didn't have to expound on the filed defence and was only required to answer questions from the judge.  Mr H was first asked if the car was parked there and he confirmed it was.  He then asked Mr H if he was defending as a keeper or a driver. Mr H replied as keeper. The judge acknowledged that he didn't need to give details of the driver.

The judge then asked about Witness Statements. NWCP contested that it was received late. Mr H advised the requirement to file was in small writing so they didn't notice, and also said they thought they would get another letter after NWCP had paid the fees. The judge ruled there was nothing new in the Witness Statement so he would accept it.

NWCP was asked to briefly explain the case in which they said they had affixed a notice on the car, there were clear signs everywhere, they sent NTK and various letters and that the defendant didn't appeal. They then said he only got in touch after court papers were received. The judge didn't question why he didn't appeal.

The judge asked what signs were placed, and he was referred to the pictures in the evidence pack.

Then came the fun part. The judge grilled NWCP rigorously about the terms on the sign and the terms of the contract in the sign. They were asked who could park on land to which they replied "Pre-Authorised Vehicles only". They had a list of vehicles on a device which were authorised. Mr H's car was not on there hence a ticket was issued.

The judge asked what the contract was between NCWP and the driver and where this was stated in the sign. They didn't have much an answer.

Judge asked if there was invitation to offer parking for "unauthorised vehicles". They said no. He said there are 3 elements of a contract (which Mr H had mentioned in his defence) - offer, acceptance and consideration. The first of these being offer, as there was no offer for unauthorised vehicles it becomes a case of trespass. As the offer to park is for pre-authorised vehicles only therefore there is also no contract in place. The driver was forbidden to enter land and hence this was a trespass issue.

NWCP were given a chance to comment on this. There representative explained that they had an audit on the sign which the IPC had passed. The judge did not find this explanation helpful.

The judge went on about for some time about there being no offer for unauthorised vehicles therefore there was no contract this was an issue of trespass. The judge stated he was considering this as a preliminary matter, and as this was an issue of trespass they had no grounds to make a claim. He concluded by saying the case was dismissed.

Mr H was awarded £5.35 costs.

It was reported that NWCPs representative's face was well worth the price of admission - total anger, disbelief and red in the face. She asked Mr H to forward  bank details so she could transfer the £5.35.

Prankster Notes

Yet another customer has been sold down the river by the incompetents  at the International Parking Community. The background to the signage is that when the IPC came into being the main model for parking charges was to charge damages for breach of contract, and this model was in disarray. Will Hurley of the IPC explained to the DVLA that  contractual model was in disarray, and that charges for breach of contract were unenforceable because parking companies made no loss if the contract was breached.

Instead, he came up with a wizard wheeze for customers of the IPC, which was not to use the breach of contract model but to charge on a contractual basis.

Now, it is perfectly possible to construct a contractual basis for parking. As an example, the signage could say something on the lines of;
You can park here if
Your vehicle is pre-authorised
You pay £100 to park

However, due either apparently incompetence or lack of legal experience, it appears that Will Hurley is unable to draft or audit a simple contract on this basis, and his signs inevitably end up as a dogs' breakfast of conflicting sentences.

A large and ever increasing number of his customers have have their claims thrown out of court by judges explaining that the signs do not create a contract but create a trespass situation instead.

Where notices are confusing or ambiguous consumer legislation requires they they be interpreted to the benefit of the consumer.

Will Hurley is therefore doing his customers a great disservice by continuing to promote a broken signage model. One problem might be that if he admits his mistake, and starts a rewording campaign across the IPC, this may open him to huge legal costs from customers who formally trusted his legal competence.

Ironically, the very model which he told the DVLA was broken and unworkable has been reinterpreted by the Supreme Court who have ruled that damages need not bear any relation to costs incurred.

It is worth noting that a trespass claim can only be brought by the land occupier and so this claim was bound to fail. Ironically the same man apparently owns the parking company and the land, albeit under different companies, so it might have been the case that if he brought a claim for trespass under a different name it could have succeeded, although in a trespass case only actual damages can be sought.

Happy Parking

The Parking Prankster