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

or

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