ParkingEye lose in court. Ignoring judge's directions and lying about them not the best tactic

3QT62386 ParkingEye v Arora. Claim dismissed for failure to obey directions.

ParkingEye lost a case which had been stayed since December. During the original hearing District Judge Jenkins, who had already ruled twice that ParkingEye did not have standing to bring previous cases, stayed the case to allow ParkingEye time to consider whether to substitute the landowner as claimant, and to potentially hear similar cases en bloc.

However ParkingEye chose to ignore the judge's clear directions, and instead sent him a letter containing the transcript of VCS v HMRC. Worse still, ParkingEye chose to lie in other cases, telling them that Judge Jenkin's previous decisions could not be relied on because he had scheduled a new hearing to decide the issue. This was a clear misrepresentation of the facts; the reason the case was stayed was to decide whether to substitue the landowner as claimant. Despite writing to Rachel Ledson, head of ParkingEye's legal department, ParkingEye continued to attempt to deceive the courts. 

ParkingEye missed the deadline to comply with the directions, but the defendant was left in the dark as to what was happening. Despite many emails and phone calls to the court, no information was forthcoming. Finally a letter was received from the court asking to attend for judgment on the case. This was a little worrying as so far the defendant had not had a chance to present any defence. The hope was therefore that judgment could only be for the defendant, but nothing could of course be sure.

ParkingEye's representative from LPC Law had no information either. He was sent to the court with no notes of information and was there just as an observer to note the judgment. 

During the hearing Judge Jenkins explained that the letter sent out was misleading. There was another  stayed case he was hearing today, where the judgment was being given. He ran through the chronology of this case, explaining that ParkingEye had not complied with his directions and that he was therefore striking the case out.

The defendant was given the maximum allowed costs of £90.

Prankster Analysis

ParkingEye have wasted a lot of money on this case; two LPC Law fees, defendant's expenses, filing fee and hearing fee, together with time and energy spent assembling their template responses, demolishing a small rainforest to print them out and associated postage costs.

Possibly a bigger cost to them is their loss of reputation with judges. ParkingEye seem to beleive that the rules and expected behaviours of the court system does not apply to them. They ignored the judge's directions in ParkingEye v Martin and again here. They have in the past filed tens of thousands of claims with non-compliant Letters Before Claim. They file new legal arguments willy-nilly without filing the required forms or paying a fee, despite warning defendants not to do the same. They conduct hearings by ambush, regularly attempting to produce new documents in court on the day of the hearing. They tick the box on the claim form saying they do not want mediation, then claim the opposite.

All this is no doubt being noted by the judiciary, and is not likely to win them friends in the courtroom. 

Meanwhile the thorny question of ParkingEye's right to bring a claim is still in issue. It seems that in some car parks where ParkingEye pay for the right to enforce charges, they may be viewed as principal. In these car parks ParkingEye do not provide their usual web interface to the landowner showing how many charges have been issues and paid, and do not collect charges on behalf of the landowner. However, in the vast majority of car parks, ParkingEye act as agent collecting the charges on behalf of the landowner. They provide a web interface showing the status of charges, and issue VAT only invoices to the landowner. In these car parks, the judgment in ParkingEye v Somerfield applies where the judges found that ParkingEye did not have the right to bring claims in their own name. This is a court of appeal judgment, and therefore binding on lower courts. The Prankster will write a blog piece on this in the near future.

Happy Parking

The Parking Prankster

Picture of the week. Bollards? What bollards?

In Romania, bothering about bollards is optional.

Luckily the bollard makers know this, so they bend out of the way if a careless motorist accidentally parks on them.

The Prankster spotted this fine example of parking on his way back from a meal, where incidentally a whole wheelbarrow of food costs just £12.

Happy Parking

The Parking Prankster

The Prankster asks ParkingEye to cease and desist

ParkingEye have now sent sent 3 love letters to The Parking Prankster, via their legal growl-tigers, Hill Dickinson. The Prankster has replied to all three, fully rebuffing them. However, ParkingEye have never replied.

The first letter concerned a matter ParkingEye stated was a police matter, but they have never provided any crime reference or indeed any details.

The second concerned a trademark, which on investigation did not appear to belong to the complainant.

The third contained allegations of defamation. However, ParkingEye knew full well that all The Prankster's statements were true, which of course is a defence against defamation.

It is clear therefore that these are not legitimate concerns of ParkingEye, but merely a campaign to bully and harass The Prankster, in an attempt to intimidate him and cause him to rack up legal costs. In light of ParkingEye's unpleasant habit of firing off letters without ever replying to The Prankster, The Prankster has finally asked ParkingEye to cease and desist.

Should ParkingEye wish to communicate further with The Prankster, he reminds them he does not live or work in England and is not subject to English law.

As a matter of fact, he is currently in Romania, helping co-ordinate activities for several dog-rescue charities. No doubt ParkingEye can track him down if they ever want to apologise.

Happy Parking

The Parking Prankster

Consumer pressure forces change to IAS appeals procedure

After 8 months of wrangling, consumer pressure has finally resulted in a change to the Independent Parking Committee's (IPC) appeals procedure.

Originally the appeals procedure required the registered keeper to grass up the identity of the driver. There was no apparent good reason for this, and the danger was that parking companies could make a Norwich Pharmaceutical Order to the IPC, forcing them to disclose driver identities in bulk.

The DVLA therefore took up the fight on behalf of the motorist and after some negotiation, eventually succeeded in agreeing the change.

The IPC has not yet had a chance to update its appeal documentation.

Prankster Analysis

The IPC has proved interesting competition for the BPA Ltd, and its trailblazing attitude has already forced changes to the BPA Ltd code of practice; the BPA Ltd are playing catch-up in many situations. In a recent DVLA consumer forum meeting the IPC gave the opinion that running a business on charges for breach of contract was unsustainable, although the DVLA seem to have conveniently edited that part out of the minutes.

However, the one area The Prankster has strong reservations about is the IPC appeals procedure. The Prankster recognises it is what it is in order to keep costs down, but believes that this has resulted in the process being biased too heavily towards the operator.

Appeals must be made in writing and received by the Appeals Service within 21 days of rejection by the Operator.
If you wish to appeal against a parking charge, please download a copy of the Appeal Form and submit it along with any supporting evidence. Appeals will not be accepted unless they are accompanied by a properly completed appeal form.
You can download a copy of the Appeal form using the link at the top of this page.
When you submit your appeal it is important that you provide ALL of the grounds that you wish to rely upon and ALL of the evidence that supports your case along with your appeal form. Once this is received by the IPC, it will be presented to the Operator who will have the opportunity to respond. The Adjudicator will then consider the case on what is before him and a decision made on the merits. You will not be able to present additional information to the adjudicator after the IPC has received your appeal form.
You will note that the appeal form contains a declaration that the information within it is true to the best of your knowledge and belief. This MUST be signed and dated by the person making the appeal or it will not be accepted.
Appeals will only be accepted from the driver of the vehicle or from the registered keeper in limited circumstances. Third parties cannot appeal on behalf of the keeper or driver.

The Prankster considers it a fundamental injustice and a clear bias to the procedure that the Operator gets to see the motorist's evidence, but the motorist does not get to see, and thereafter make representations about, the Operator's evidence.

As an example, the fact that this does happen in the rival POPLA process has exposed many irregularities.

• parking companies have sent in maps of the wrong car park
• parking companies have signed landowner witness statements themselves
• parking companies have charged motorists for items they have already been paid for in the contract with the landowner
• parking companies have been caught out submitting different costing documents when previous ones have been rejected

The restriction hat a third party cannot appeal on behalf of the keeper or drive also goes against the fundamentals of justice, where a person can seek out a more qualified person the represent them if they desire. If this happened in all walks of life, the legal profession would become redundant at a stroke.

Here is what the BPA had to say on the matter in their April AOS meeting:

GRyGBT raised the' issue of 'assisted appeals', circumstances where someone who is not the driver or keeper assists someone who is in making an appeal. This was discussed at great length and concluded that people have a right to be represented in such circumstances as occurs in other judicial proceedings

It is also confusing that the BPA appeal deadline is 28 days, while the IPC is 21 days.

The Prankster believes that having two fundamentally different appeals processes for private parking is confusing to the motorist, and urges the DVLA to take action to align the two.

If you would like to make you own views known, email Paul Johnson at dsp@dvla.gsi.gov.uk

Happy Parking

The Parking Prankster

British Parking Association attempt to change POPLA's stance on GPEOL

The meetings of the 30th January 2014 BPA Ltd AOS Board meeting shows that the AOS board tried to persuade Nicola Mullany, Chair of the Independent Appeals Service board to look at POPLAs ruling on GPEOL (Genuine Pre-Estimate of Loss) in light of Country Court rulings.

We can now see that ParkingEye's strategy was to instigate a large number of court cases to be used as loss leaders. By paying for trained advocates to fight unrepresented motorists they could engineer a disproportionate amount of court wins. These could then be used to try and force a change at POPLA and the BPA. It remains to be seen whether this strategy has worked, especially in the light that all of their previous court results regarding GPEOL are suspect.

ParkingEye provided false information to the courts, claiming that the cost per ticket issued was £53 (or sometimes £55) whereas their accounts and DVLA records show it to be a maximum of around £17.

In recent cases, after pressure from The Prankster, Bargepole and others, ParkingEye have finally stopped making this false claim.

The IAS, in light of the January meeting, sent a proposal to the AOS Board that they seek the opinion of a retired High Court judge.

POPLA themselves sent an alternate proposal that operators could ignore POPLA decisions and take motorists to court if they wanted.

Other options suggested by operators were that POPLA could set a reduced charge.

Steve Clarke of the BPA Ltd summarised this in a report for the April AOS board meeting.

The AOS rejected all these proposals, as can be seen from the April minutes.

As can be seen, they rejected all proposals at the current time, preferring not to shell out £10k to a judge who might not have agreed with them, and decided to wait for the Trading Standards Institute report instead.

The barrister helping Trading Standards with their report is Jonathan Kirk, QC. Given that he also represents and advises parking companies, The Prankster questions whether there is a conflict of interests here, and that in order to avoid any hint of impropriety perhaps a different QC, or a panel of QCs, should be involved instead.

In the meantime it looks like the BPA have decided to change their code of practice instead, and rewrite clause 19.5 which requires any charge to be a genuine pre-estimate of loss.

Happy Parking

The Parking Prankster

ParkingEye win Cambridge test case

The judgment for the Cambridge test case was delivered by HHJ Moloney today in Southend at 10:00am.

He ruled for ParkingEye in both cases, explaining his judgement as follows.

The charges WERE penalties, but were commercially justified.

There WAS a contract in a free car park. The consideration from the motorist was the promise to leave after 2 hours.

ParkingEye DO have standing to bring the case in their own name. They were principals, not agents

Prankster Analysis

This is a very interesting decision because it opens the doors for other industries to start charging what they like as penalties.

For instance, medical booking agencies representing GP's could charging £100 for not attending appointments. Hotel booking agents could charge 20 times the room rate for a failure to turn up or cancel on time. The legal arguments would be identical.

However, the BPA code of practice still requires that charges be a genuine pre-estimate of loss, and so any parking company must still abide by this or risk loss of access to the DVLA database.

HHJ Moloney admitted he was trailblazing here. This is the first judgment where consumers have been ruled against on the grounds of commercial justification.

The decision that parking chaos would result if these charges were not allowed is surprising, and flies in the face of evidence from other car parks where lower charges are imposed and chaos has not resulted. No hard evidence was offered from either side that the removal of ParkingEye would result in a loss of income to the landowner. The Prankster does know that B & Q terminated the ParkingEye contract, and suspects that aggressive enforcement was the overriding cause. The Prankster suspects B & Q were happy to pay ParkingEye's penalty clause to terminate early, and estimates that they would not have done this unless they lost huge sums - perhaps even 6 figures, due to losing customers who then never returned and shopped elsewhere.

Certainly one of the defendants in this case has never used the retail park again, and The Prankster knows of other people who have paid ParkingEye's penalty charges and never returned to the shops. ParkingEye's gain is therefore the retailers loss.

The decision that ParkingEye was the principal was surprising. However HHJ Moloney's reasoning is interesting and it is clear that this is a special case, only relating to this car park and others where ParkingEye pay £1,000 a week.

Therefore, in most other claims made by ParkingEye, and indeed perhaps other car park operators, the decision of this case is easily distinguished. Thus, this might not turn out to be the 'test case' that HHJ Moloney hoped for; instead a judgment only applicable to a few car parks.

The key phrases in the judgment are, in The Prankster's opinion;

5.7 Here, it appears to me that the financial provisions of this contract give the best clue to its real nature so far as the question of principal or agent [...] ParkingEye is paying the landowner for the valuable privilege of being able to run a car park for ParkingEye's own profit. Moreover, as the Claimant points out, [...] the landlord does not take any percentage or other direct share in the sums received by ParkingEye and is not even entitled to an account of them.

Thus, we can easily distinguish most of the other car parks ParkingEye runs because:
1) ParkingEye does not in general pay a weekly rate to the landlord
2) In many cases, such as Corporation St Preston, the landlord does take a percentage of the parking charges (15%)
3) In most car parks, the landowner is entitled to an account of the charges, and indeed is required to have an account of them. This can be shown in two ways. Firstly, ParkingEye supply their customers with a web logon, where they can see the charges issued. The Prankster has shown screenshots of these before in previous blogs. This is normally detailed in clause 8.1 of their standard contract.

8.1 [...] ParkingEye shall notify the Customer of the web address for accessing the website in order for the customer [...] to monitor the data generated at the Site

It is not known why HHJ Moloney missed this clause. Perhaps it was redacted in the contract given to him, or perhaps this site has a different contract to the usual.

The second way the landowner is entitled to an account of the charges is more fundamental. On most of their sites ParkingEye collect the charge for breach of contract as an agent on behalf of the landowner. They then keep this money as a service charge, but this gives rise to a VAT liability. ParkingEye therefore raise a VAT only invoice to the customer. Thus, the customer knows exactly how much money ParkingEye is collecting every month, because they have to pay VAT on it.

This is detailed in clause 3.11 of ParkingEye's standard contract.
3.11 The Parties acknowledge that the Revenue from the Charges retained by ParkingEye is consideration for the Services and that the supply of the Services attracts VAT at the standard rate. As such ParkingEye will generate a monthly VAT only invoice to the Customer to reflect the additional amount to be paid in VAT in respect of the monies received for the Services. The Customer agrees to pay all such invoices within thirty days of receipt on the Due Date

It is not known why HHJ Moloney missed this clause. Perhaps it was redacted in the contract given to him, or perhaps this site has a different contract to the usual.

It seems then that this decision is of limited use to ParkingEye. It is only applicable to a small minority of car parks and moreover it does clearly establish that the charges are penalties. The fact that there was found to be commercial justification in this case can be challenged on legal grounds in other cases because this is a still a small claims decision with no previous consumer-based case law and is not binding. It can also be challenged factually, since it is perfectly possible to run a car park business in other ways which do not require penalty charges.

The Prankster will keep his eye on developments.

Happy Parking

The Parking Prankster

ParkingEye lose in court. Reason not known - defendant giggling at the time

3JD05392 ParkingEye v Mrs S (16/05/2014 Scarborough). DJ Neaves dismissed the claim as the claimant's representative had no right of audience.

Guest Blog, from Mrs S's lay representative (Mr S)
This was a second hearing. The first was adjourned because there was no time to hear the claim.

We arrived at court to find that there had been a previous hearing at 12.30pm, apparently to read the case. We were due in at 2pm.

In truth we were "bricking it", after all, Court is a bit of a lottery. We even forgot to bring a pen & paper, and note the LPC lady's name.

We walked into court and sat down. The judge confirmed our names, along with the smug LPC Lady, who had a lever arch file nearly a foot thick. Perhaps they are learning their lesson and bringing transcripts. I was quietly watching her flick through , noticing that she too had the redacted contract, so I thought "Here we go, I'll get her on that."

Before we even said a word, the judge asked the LPC lady in what capacity she was there. She looked a little confused and stated that she was there under instruction from her client. Apparently she can be there in one of two capacities, she obviously chose the wrong one!!

Cue fits of giggling and smirking from us because , thanks to Bargepole's previous court blogs, I knew what was coming.....

The judge then stated that this wasn't allowed under CPR regulations and therefore there was no evidence to be able to be presented and dismissed the claim. She then asked if she could be there in the other capacity. The Judge then said "you can't have two bites of the cherry and I have already dismissed the claim."

She then stated that her capacity has been allowed in other courts. "That maybe so, but not in my Court" said the Judge.

"Now as to costs" said the Judge, and this is the funny bit.....

"Has the defendant incurred any travel costs?" asked the Judge.

Because the case had been previously adjourned due to no time, we asked if we could claim costs for the two days.

The Judge said "yes" so we handed over two tickets, one for £2.80 and one for £5.00.

"This is ParkingEye's Car Park" said the Judge, "How ironic!"

The LPC lady then piped up and said "It wasn't my clients fault that the case had been adjourned, so why are you allowing this?" to which the Judge stated "It wasn't the defendants fault either, and because the claim has been dismissed, costs are allowed and they have been carried over from the previous adjournment so I am allowing it"

We then stated the defendants loss of earnings for the two days and got that as well. I ,as lay-rep was going to ask for my costs but thought better of it; after all the Judge had done us proud and I didn't want to push it, a win is a win.

"Here's your two tickets back" said the Judge, "I hope it wasn't a pay & display car park, otherwise I maybe seeing you again in the near future".

"Not bloody likely" I whispered to him as I took the tickets back.

Then we legged it and left them all to it.

Prankster Analysis

It seems the claim was dismissed because the LPC Law lady did not have the 'right of audience' - the right to speak to the court. Without that right there was nobody to speak on ParkingEye's behalf and therefore the claim was dismissed.

The right of audience is an important concept. Only certain people can speak at court, and this is a privilege maintained by the court so that in the case of wrong-doing, the court can find somebody to punish.

This is explained further in an excellent article by DJ Hill, who also sits at Scarborough.

http://www.lawgazette.co.uk/57199.article

It may be that DJ Neaves has found time to read DJ Hill's article and discuss it with him at some point in the past. The article suggests that if a person is not a qualified solicitor or barrister or not employed by a firm of solicitors then there is no right of audience.

The status of most LPC Law advocates is believed to be self-employed people with some form of legal qualification. However, they are not directly employed by LPC Law, but are simply paid an agreed fee to take on each case.

Unless they are therefore a solicitor or barrister in their own right, there is therefore not automatic right of audience.

In the small claims track, anyone can be a lay representative with rights of audience. However, the party they are representing must be present. As ParkingEye never send anyone to court, this criteria is not satisfied.

The Prankster admits he was informed of this before, but was sceptical. He tips his hat to the person who told him this - you know who you are.

How is this applicable?

If you have a hearing with ParkingEye in the near future, you should bring this matter to the court's attention. This is not a silver bullet; in a small claims hearing the Judge has ultimate discretion and can override the rules if they wish, and have good reason. However, if your court is near Scarborough, judges may well have a mind to follow the precedent set in this case.

To the court manager.

ParkingEye v Me, my case reference

ParkingEye have stated they will not be attending court, but will be sending a representative from LPC Law. In 3JD05392 ParkingEye v Mrs S (16/05/2014 Scarborough). DJ Neaves found that the LPC Law representative was not employed by LPC Law, but was a self-employed person paid a fee for attending the hearing. He found they did not have right of audience and the claim was dismissed.

I wish to raise this issue for the current case. The right of audience is an important concept discussed by DJ Hill in this article. http://www.lawgazette.co.uk/57199.article

Furthermore, by not sending a representative ParkingEye prevent myself and the court from questioning them.

Happy Parking

The Parking Prankster