Proserve Judicial Review

On Wednesday 6th May the judicial review between Proserve and the DVLA occured. Proserve want to obtain keeper data without belonging to an Approved Trade Association (ATA). This report was received from bargepole, who went along to observe proceedings.

The hearing started prompt at 10:30, Mr Justice Edis in the chair (before he became a judge, he was the prosecutor in the Chris Huhne case).

Counsel for Proserve went in to bat first, and submitted the following points:

·         ATAs are relevant to parking, but not to trespass. There should be a separate ATA for landowners and their agents.

·         The decision to suspend data access by DVA is therefore irrational.

·         Proserve clients include Port of Felixstowe – vital in public interest that roadways are kept clear

·         (Interrupted by Judge – surely most HGVs have the name and phone number written on them? And what about foreign vehicles?)

·         Proserve has made approx. 1800 data requests since 2012, using V888/2 manual form

·         Lessons learnt from Ransomes v Anderson appeal – new signs do not mention contract, and letters now say ‘Trespass Notice’

·         Amounts charged are now VAT inclusive, no attempt to charge VAT on top.

·         Regulation 27 says ‘may’ release data, but other text in that passage suggests they are obliged to

·         (Interrupted by Judge – surely the ‘may’ wording means it is at the discretion of the Secretary of State for Transport, via their agency, the DVLA?)

·         DVLA admit Proserve’s business model is ‘unique’ but still want them to join an ATA

·         DVLA have misinterpreted Data Protection Act in reaching their decision

·         The BPA and IPC Codes of Practice are inappropriate for a company such as Proserve

·         The CoPs are designed to deal with permissive parking. Proserve don’t ‘do’ parking, they do trespass.

·         Damages for trespass should not be subject to early payment discount.

·         Liability can always be decided by civil court, so no independent appeals process necessary

·         (Judge: yes but when the DVLA decision was made, the signs did say contract or trespass)

The above went on until 12:15, and then it was the turn of the DVLA barrister.

·         The key issue – whether Proserve must be an ATA member to get data – is subject to the test of Wednesbury unreasonableness.

·         Would any reasonable public body, acting reasonably, have reached the same decision? Answer – Yes.

·         It is agreed that the Proserve business model is unique, but not to the extent they say it is.

·         They have some sites where a £10 charge is made for overnight HGV parking, and others where parking permits are issued. So they do ‘do parking’.

·         (Lunch Break)

·         They do not have to rely on Sch. 4 of POFA to get data, they can pursue under the ‘old’ or ‘new’ rules.

·         They offer no Independent appeal service whatsoever

·         The requirement to join an ATA is to ensure fairness to the motorist

·         It’s perfectly possible for Proserve to apply for membership of the BPA or the IPC

·         (Interrupted by Judge: If they were restricted to £100 maximum, might that bankrupt them? Counsel: That figure is negotiable)

·         The fact that Mr Duff has a bailiff certificate renewed every 2 years is irrelevant

·         The COP of both BPA and IPC specifically mention trespass

·         The DVLA is a data controller, but the DPA did not form any part of its decision to suspend – Section 35 of DPA does not apply

He sat down at 2:30, then Proserve’s counsel had some rebuttals, revolving around the fact that if Proserve couldn’t get data, the landowners would have to apply instead, but the DVLA has already said they would have to join an ATA on the same basis. The Judge said that landowners who have the odd abandoned car might not need to be in an ATA, but it was probably right that those doing requests on a large scale might need to be.

So all finished by 2:55, Judge said he would reserve Judgment and hand it down later. It may not take as long as the Beavis case did, firstly there’s only one Judge, and secondly, there aren’t any complex legal arguments.

Prankster Comments

If Proserve are arguing they do not have to be in an ATA, why are they arguing there should be a new class of ATA?

Proserve admit they were in the wrong for 1,800 data requests, but that lessons have now been learned. If they were a member of an ATA, these lessons would have been learned a long time ago.

The Prankster agrees the current codes of practice of the BPA or IPC would benefit from modifying to accomodate the Proserve model. However, there is nothing to stop this happening

Hiding behind the corner and putting a ticket on a vehicle when the driver is not looking does nothing to keep the port of Felixstowes roads clear. Instead, actually talking to the driver while he is still in the vehicle and asking him to move on would be the correct solution.

it is inappropriate to ask the courts to decide on 1,800 cases of liability. This is unfair to motorists who would be at a serious disadvantage facing Proserve's barristers in the small claims court, and it would also cost them money which they could not recover when they won. In addition, Proserve cases have been characteristed by legal problems and by providing false and misleading information in court. There is nothing to suggest they would play by the rules in future. The proper way would be for an independent appeals body to be available free of charge to motorists.

The Prankster laughs at the suggestion that a £100 maximum charge would bankrupt Proserve. As disclosed in the Ransome Park v Anderson case, Proserve are paid a management fee to patrol the area. When they discover a trespass, they charge the landowner to photograph the vehicle and stick at ticket on, then apply to the DVLA for details and write begging letters. 

As disclosed in large numbers of POPLA cases, this can all be done for around £10. In ParkingEye v Beavis, it was disclosed the average costs per ticket were £18, but this also includes an appeals service, POPLA, and the general running costs of the whole company, including any hefty director wages and bonuses. Companies such as Ranger Services will outsource this for you; the Prankster believes the cost is around £20. Debt Recovery Plus will also do this for you. They add £20 to the Notice to Keeper for this service. Proserve's charge of £250 is therefore ludicrously out of kilter. Additionally, as there is no extra work involved, there is no justification for charging more for commercial vehicles than for cars.

HHJ Moloney, in his judgment in the Ransome park v Anderson case, reminded everyone that in a trespass case the amount awarded is actual damages. He also made it clear that Proserve could not charge an arbitrary amount, but that the landowner must do due diligence and find the true market price. The Prankster maintains that as Ranger Services or Debt Recovery Plus will carry out essentially the level of service for £20, then this is the amount that can be charged for trespass.

Happy Parking

The Parking Prankster