British Parking Association put up the shutters for Brexit. Address for service in Germany 'not acceptable'

It appears the British Parking Association (BPA) are ready to seal off the UK from the rest of the world as this MSE thread shows.

BusyBee1904 received a notice to keeper from NCP for a parking event. As they were not the driver, they discharged their responsibility by providing the name and address of the driver, who lived in Germany.

Here is where things got a little weird. NCP refused to accept the address, and continued to chase BusyBee1904 for the parking charge. BusyBee1904 therefore filed a complaint with the British Parking Association who came up with this perposterous response.

"I am advised that a name and full address was provided for the driver, however, as the person concerned is a resident of Dusseldorf, outside of the UK, the operator was unable to accept that as a serviceable address. Schedule Four of the Protection of Freedoms Act 2012 requires a serviceable address to be supplied in order to transfer liability. As none has been supplied, the liability has reverted back to the Registered Keeper in accordance with the legislation."

Here is the requirement from the Protection of Freedoms Act, 2012 (POFA).

5 (1) The first condition is that the creditor [...] is unable to take steps to enforce that requirement against the driver because the creditor does not know both the name of the driver and

a current address for service for the driver.

So what is a "current address for service"? Well, that is conveniently defined at the beginning of the Act, in paragraph 2(1). 

“current address for service” means [...] in the case of the driver, an address at which the driver for the time being resides or can conveniently be contacted;

As the address where the driver resides has been supplied, a "current address for service" has clearly been supplied. The second condition has also clearly been met. For the benefit of the British Parking Association, the way to conveniently contact somebody living in Dusseldorf is via something those of us in the know call a "letter". You pop this "letter" in an "envelope", write the address on the outside and stick on a prepaid delivery charge those of us in the know call a "stamp".

Apparently some intrepid company called the Royal Mail is prepared to venture outside the scary boundaries of the United Kingdom for the princely sum of £1.05. Simply take this "letter" to them and they will do the rest.

The Prankster understands that the BPA might not yet have progressed beyond carrier pigeon, and that the attrition rate of these is unacceptably high across the channel. He is happy to advance parking knowlege several centuries and introduce the BPA and their clients to the heady delights of the "post". 

No charge has been made for this educational service.

Prankster Notes

Here is what Practice Direction 6 says about a legal "address for service"

Service of the claim form where before service the defendant gives an address at which the defendant may be served

6.8  Subject to rules 6.5(1) and 6.7 and the provisions of Section IV of this Part, and except where any other rule or practice direction makes different provision –

(a) the defendant may be served with the claim form at an address at which the defendant resides or carries on business within the UK or any other EEA state and which the defendant has given for the purpose of being served with the proceedings...

It does therefore seem strange that the British Parking Association has chosen to refine "address for service" in a manner which neither complies with POFA or with the legal definition from practice directions.

The Prankster therefore recommends that anyone in a similar position raises complaints to the DVLA and the IOC, and also considers making a claim against the parking company for harassment and breach of the Data Protection Act. From May 2018, a data protection breach can cost a company €20 million or 4% of annual global turnover and therefore this is a very useful tool to use against parking companies wilfully ignoring the law and data protection requirements.

Dear DVLA,

I wish to raise a complaint about NCP. They are pursuing me for keeper liability. However, I have provided them with the name and address of the driver, who lives in Germany.

I refer you to the Protection of Freedoms Act, 2012 (POFA), paragraph 2(1).“current address for service” means [...] in the case of the driver, an address at which the driver for the time being resides or can conveniently be contacted;

As the driver both resides and can be conveniently contacted at the address given, it is clear that keeper liability no longer applies.

I have also contacted the British Parking Association, who incorrectly stated that keeper liability still applied.

Please therefore take the appropriate corrective action against both NCP and the BPA, and keep me informed of your progress.

Dear ICO,

I wish to raise a complaint about NCP. They are breaching the first principle of the data protection act 1998 by using my personal data in a manner which is neither fair nor lawful.

They are pursuing me for a parking charge under the keeper liability provisions of the Protection of Freedoms Act 2012. However, I was not the driver, and I have discharged my responsibilities under the act by providing the name and address of the driver, who lives in Germany.

I refer you to the Protection of Freedoms Act, 2012 (POFA), paragraph 2(1).“current address for service” means [...] in the case of the driver, an address at which the driver for the time being resides or can conveniently be contacted;

As the driver both resides and can be conveniently contacted at the address given, it is clear that keeper liability no longer applies.

They are therefore using my personal data in a manner which is both unfair and unlawful by using it to pursue myself for the parking charge.

Although "address for service" is defined explicitly in POFA, I also refer you to practice direction 6.8, which also makes is clear that even if it had not been, a lawful address for service can in any case be anywhere in the EAA

Service of the claim form where before service the defendant gives an address at which the defendant may be served

6.8  Subject to rules 6.5(1) and 6.7 and the provisions of Section IV of this Part, and except where any other rule or practice direction makes different provision –

(a) the defendant may be served with the claim form at an address at which the defendant resides or carries on business within the UK or any other EEA state and which the defendant has given for the purpose of being served with the proceedings.

Dear NCP

Letter before claim

I wish to raise a complaint about your actions. You are breaching the first principle of the data protection act 1998 by using my personal data in a manner which is neither fair nor lawful.

You are pursuing me for a parking charge under the keeper liability provisions of the Protection of Freedoms Act 2012. However, I was not the driver, and I have discharged my responsibilities under the act by providing the name and address of the driver, who lives in Germany.

I refer you to the Protection of Freedoms Act, 2012 (POFA), paragraph 2(1).“current address for service” means [...] in the case of the driver, an address at which the driver for the time being resides or can conveniently be contacted;

This is therefore a breach of the first data protection principle, which states data must be used fairly any lawfully. The data protection act provides that damages can be claimed if a breach occurs.

Your continued actions are causing me stress and distress, and this therefore also constitutes harassment under the Protection from Harassment Act 1997.

I therefore request that you immediately confirm you will no longer pursue this parking charge, and invite your offer to cover reasonable damages.

If you fail to reply within 14 days I reserve the right to take legal action. I am open to appropriate alternative dispute resolution. Please therefore also view this as a challenge to the parking charge, and issue me with a POPLA code.  

The Prankster has previous blogged that POPLA view an address for service as valid even if it is abroad.

http://parking-prankster.blogspot.co.uk/2014/07/popla-rule-address-for-service-can-be.html

Happy Parking

The Parking Prankster

VCS spend over £1,000 chasing bogus £100 parking charge at Albert Street, Birmingham

VCS v Ms O C8DP9D8C Birmingham 1/8/2017

Ms O parked her car in  Albert Street, Birmingham in 2014, entered her registration and paid the correct amount. She was certain this was done properly. As the car was a hire car she had taken special care to enter the registration correctly.

Vehicle Control Services disagreed, and issued a parking charge. Ms O contested this at POPLA and sadly the POPLA assessors believed VCS over Ms O and the appeal was declined. At this point Ms O contacted The Prankster for help. The Prankster checked the POPLA evidence pack and noticed that the signage at this car park was in the name of Excel Parking, and not VCS.

Sadly, the incompetent assessors at POPLA had not noticed this.

This of course meant that VCS had no contract with Ms O and therefore no right to pursue any parking charge.

The Prankster helped Ms O point this out to VCS, and also over the course of a few years to their debt collectors Rossendales and BW Legal.

The Prankster also helped Ms O file a complaint with the Credit Services Association, complaining about the bullying and misleading letters she had been sent by BW Legal.

BW Legal filed a claim anyway, and Ms O filed a counterclaim for misuse of her personal data.

VCS had a long history of filing court claims regarding this car park, but pulling out if the defendant raises the defence that the signage was not in their name, such as VCS v Zozulya, claim A8QZ6666 and VCS v Ms M, claim 3QZ53955.

It is therefore clear to The Prankster that they were fully aware they had no valid claim, and that this was therefore a speculative claim and an attempt at bullying Ms O into paying up.

Despite this, BW Legal got their 'Litigation Executive' Rohan Krishnarao to file a reply to defence stating that he felt the defence was embarrassing for its lack of particularity. He asked for the defence and the counterclaim to be struck out.

This is a standard trick by BW Legal and as far as The Prankster can tell, dear Rohan puts this on all his cases regardless of merit. Perhaps this is a trick he learned while studying law at Cardiff University.

Hearing 1

The first hearing was an allocation hearing on Monday 23 Jan 2017. Interestingly, the week before the hearing, the Prankster got hold of a document from the BW Legal dated 18 November stating that VCS had ordered BW Legal to stop pursuing Ms O. As BW Legal were still pursuing Ms O, The Prankster wondered what was going on.

Prior to the hearing The Prankster tried to give this document to BW Legal's solicitor, a bad tempered older gentleman. He refused to accept this and started ranting that Ms O had no legitimate counterclaim as her details had been validly obtained from the DVLA. Obviously he had not read the case notes - as this was a hire car, the DVLA would not have had her details to give out. The Prankster decided to leave him to his own devices.

Immediately the hearing started, the solicitor announced that VCS were discontinuing the claim. This left only the counterclaim. The judge ordered Ms O to file more detailed particulars. The solicitor asked if they could have a directions hearing once these were filed.

Hearing 2

Despite asking for a directions hearing, VCS had no directions they wished to ask for. Neither did Ms O. The judge therefore gave the only direction he could, which was to set a date for the next hearing.

In passing he mentioned that he heard most of the parking cases in Birmingham and initially thought this was another run-of-the-mill case until he realised that the claim was discontinued and only the counterclaim was valid. He was now sad that he would not be hearing it, as it looked rather interesting.

He did mention that the particulars looked overly long, at which the Prankster had to smile a wry smile, as they had been asked to lengthen them at the previous hearing.

After the hearing the BW Legal representative, a younger chap, confided that he had no idea why the directions hearing had been asked for. He speculated it might have been an attempt to discourage Ms O from continuing by introducing extra hearings.

Hearing 3

There was some confusion over the hearing fee for the counterclam hearing. Ms O attempted to pay it, but the incompetents at BW Legal had for some reason already paid the £25.

VCS engaged Ms Empson, who introduced herself as a barrister.

Ms O was represented for the third time by The Prankster.

There was a pre-hearing discussion. It turned out BW Legal had given Ms Empson the wrong paperwork and the old particulars of claim. The Prankster allowed her to photocopy his copy. She said a counterclaimant witness statement had not been filed. The Prankster replied they were relying on the particulars, which were also a statement of truth signed by the counterclaimant.

BW Legal had also not filed a witness statement. However, after some discussion it turned out they had, but for some unaccountable reason had sent it to the wrong address, despite no other claim paperwork going there. Ms Empson showed The Prankster the witness statement which turned out to be the same as their defence. As it was not introducing new material, The Prankster was happy to continue.

Ms Empson explained she would be attacking the defence for not showing any loss. The Prankster explained he would rely on Vidal-Hall v Google on that point.

In the hearing the DDJ got immediately stuck into the minutia of the Data Protection Act and quizzed The Prankster fiercely on what the personal data was and what the exact breach was. There was quick agreement  that the issue was around principle 1 - was data processed fairly and lawfully.

The DDJ then dived off down subclauses (a) and (b). The Prankster explained he was not claiming non-conformance with the subclauses; only the 'fair and lawful' provision.

There was then some argument on when the breach occurred. The Prankster explained that in principle VCS could start the process of asking for a parking charge. However the breach occurred once they had been informed that their claim was not valid and they continued for several years to press on anyway, causing distress and harassment.

The Prankster could see the DDJ was in two minds. At this point the hearing still had not got into why the parking charge was not valid, so The Prankster asked the DDJ if he might explain this, as he thought this would help. He read the first line of the sign from the bundle. "By parking here you are entering into a contract with Excel Parking". He stated it was basic contract law that a third party could not sue on a contract between two other parties. He asked what VCS were doing bringing a court claim in the first place as only Excel had the right to do this.

The judge had a light bulb moment.

He said VCS could act as agents for Excel, and collect money on their behalf, but only Excel could bring a claim. He asked Ms Empson if she had anything to add. Unsurprisingly she did not.

The hearing then went through the letters to Rossendales and BW Legal explaining to them that the charge was not valid because VCS were not a party to the claim, and their template replies totally ignoring the issue. The hearing also went through the other claims VCS had filed and then discontinued.

The hearing examined quantum of damages. Ms Empson stated Ms O had never listed her costs. The Prankster explained the costs were trivial; postage and printing, and not worth individually listing. Instead, he was relying on Vidal-Hall v Google and the costs took into account the distress caused by 2 years of letters which were all template replies never addressing the issues raised. The amount was set both to reflect this distress, taking into account the level of the parking charge and the need to set an amount to stop parking companies claiming money they were not allowed.

The judgment was then made.

The judge found that the data processed was personal data.
The judge found that it had been processed unfairly and unlawfully.
However, for technical reasons he found that in this particular case, there was no breach.

However, despite that, he said that the court had other methods whereby he could deal with claimants who abused the court process. He then went on to costs. He explained that although the counterclaim failed, the courts themselves had discretion to address the matter.

He stated that VCS had behaved unreasonably in bringing the claim after such a long time; when they had been informed of the reason for failing; when they had brought and discontinued other claims.

He then quizzed the defence on the time spent over the case, allowing this at the litigant in person rate. He then discounted this by 50% to take into account that the counterclaim failed, arriving at the figure of £222 - not a million miles from the £250 claimed. This was awarded under the unreasonableness rule, 27.14(2)g

Ms Empson contested that the claim was not unreasonable but the DDJ disagreed.. Costs to be paid within 14 days.

Prankster Notes

Although this case was lost on a technical reason, this applied only to this case. The Prankster believes that other similar cases would succeed, and also that if Ms O appealed, she would have had a good chance of success. However, for obvious reasons, she chose not to.

What is good news is that Simon Renshaw Smith's greed and utter lack of morals in pursuing this case has led to his comeuppance and a substantial loss for his company.

This will have cost;
£27 POPLA fee
£54 BW Legal costs
£50 BW Legal filing fee
£50 two hearing fees
£700 3 sets of representation costs, including 1 barrister
£222 costs

All told, this is well over £1,000. Perhaps Simon has a valid claim against POPLA. After all, if they had done their job properly in the first place, the appeal would have been upheld then.

It also means that if Simon brings any more cases for Albert Street, Birmingham using the wrong claimant he would likely be facing another substantial costs ruling.

Happy Parking

The Parking Prankster

Private Parking Solutions hammered in court

Private Parking Solutions (London) Ltd v Ms B D0GF1A8R Brentford. DDJ Chohan 22 Nov 2017

PPS wished to charge Ms B, a resident, for parking in her own space while not displaying a permit in her courtesy car.

Ms B retorted that she had been a resident for 20 years, that she had the right to park in her own space, and that PPS had no rights to issue charges to her.

PPS disagreed and so instructed the famously incompetent Gladstones Solicitors to file a claim on their behalf. As can be expected if you hire joke solicitors, things did not turn out well for them.

Gladstones did not bother to follow the directions the court issued, and did not bother to file a bundle until after the hearing had actually started. When they did, it was their usual template nonsense, shoddily thrown together and worse than useless.

The bundle promised to include an agreement from the landowner authorising parking management, but did not.

The parking attendant, Jakub Gajewski, who is also the sole director of PPS issued two witness statements, one of which claimed that he made physical or verbal contact with the driver. This was incorrect.

During the hearing, PPS were represented by Mr Wogan. Ms B was represented by counsel.

DDJ Chohan was suitably unimpressed by the way Gladstones had conducted the case, finding that they had not complied with the directions previously issued. The claim was dismissed and costs of £350 were awarded under the unreasonable behaviour rule, 27.14(2).g.

Prankster Note

Jakub Gajewski has previously been blogged about due to the underhand and devious tactics his operators use. He was kicked out of a car park in Ashford, but continues to file claims, although he has lost all reported cases. There is now a civil restraining order being sought against him.

In this newspaper article he claims to operate 300 car parks, although this seems to be unlikely, particularly as he acts as one of his own car park attendants.

In short then, he appears to be a rogue. As such he is in good company employing Gladstones Solicitors, and their rogues gallery of Will Hurley, John Davies, Jamie Ashford and Helen Cook. None of these five seem to have the faintest idea of the law surrounding parking.

It is a strange world that we live in, given that these people are directors of parking companies, directors of parking trade associations and solicitors specialising in filing claims for parking charges.

PPS are now £350 worse off, plus the cost of their own representative, the court costs of £75 and the costs of instructing Gladstones. When you employ a firm of solicitors who appear blissfully unaware of the requirements of the court process, let alone the issues surrounding parking claims, this is what happens.

This is not an isolated incident - Gladstones are a byword for incompetence and shoddiness.

PPS, you've been Gladstoned!

Happy Parking

The Parking Prankster

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

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
http://parking-prankster.blogspot.co.uk/2017/07/new-transcript-keeper-not-liable-if.html

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.

Clamping

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
vehicle;
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):
http://www.legislation.gov.uk/aep/Hen3cc1415/52/1/section/I
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

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