Are the DVLA gearing up for legal action against ParkingEye?

ParkingEye have been operating at Southampton Town Quay since April 2012, and by July 2014 had issued 18,627 tickets. At £100-£110 a pop, this will have netted ParkingEye a cool £1.8 million if all were paid.

However, since October 2012 they have also been alleging that keeper liability applied at that site. This is of course untrue. The Protection of Freedoms Act 2012, schedule 4 describes that keeper liability only applies on relevant land, and that land where byelaws cover parking is not covered by the Act.

The Government guidelines (page 10) make this clear;

The provisions in Schedule 4 are intended to apply only on private land in England and Wales. Public highways are excluded as well as any parking places on public land which are either provided or controlled by a local authority (or other government body). Any land which already has statutory controls in relation to the parking of vehicles (such as byelaws applying to airports, ports and some railway station car parks) is also excluded

Southampton Town Quay is a port and has byelaws which cover parking, and therefore keeper liability does not apply - only the driver is liable to parking charges.

Despite this, and despite being warned several times by members of the public, ParkingEye continued to issues tickets stating keeper liability applies.

Amazingly the DVLA only became aware of this on the 5th August 2014 as this FoI request shows.

This was one day before The Prankster blogged about the situation.

The FoI request also shows that other information was requested, but is withheld by the DVLA in case anybody has broken the law.

The documentation you requested is held. However, DVLA considers it exempt from disclosure under section 31(1)(g) of the FOIA and in particular section 31(2)(a). DVLA believes that disclosure of the information requested would be likely to prejudice DVLA’s ability to exercise its function for the purpose of ascertaining whether any person has failed to comply with the law. 

The Prankster therefore wonders who the DVLA beleive might have broken the law. The obvious suspect is ParkingEye. By claiming that they can sue the registered keeper under PoFA when they can't there may be a tort of deceit going on.

Once the DVLA have finished looking at ParkingEye, they may also want to check out VCS and APCOA for claiming keeper liability at various airports, and AS Parking for claiming keeper liability on a council car park in Cornwall.

Happy Parking

The Parking Prankster

Picture of the week. CEL screw up POPLA appeal.

A post on pepipoo describes how Civil Enforcement Limited are trying to pull the wool over POPLA's eyes with a series of misleading and contradictory statements.

They tried to pretend the Data Protection Act does not allow them to produce a copy of the contract. This is clearly nonsense.

They tried to pretend the Parking Charge of £70 is a core contractual term.

If it was a core term, it would be given equal prominence to the actual core contractual terms, shown here on the signage.

The Prankster cannot see that there is a charge of £75 anywhere on this sign. Perhaps it is in the small print - but if so then it is not a core term. Despite this, CEL seem to have a disconnect with reality, asserting that the charge is mentioned in large bold font.

Although CEL argue the amount is a contractual charge, the NtK states the charge is for breach of contract - payment not made in accordance with signage.

The signage small print, happily for us decoded by the motorist in his appeal, also confirms the charge is for breaching conditions. It also confirms it is a deterrent, and not therefore based on a pre-estimate of loss calculation.

Later on, they say it is a pre-estimate of loss after all.

They list various random categories, 'some of' which make up the charge, in the hope the assessor will magically guess which ones they are.

Which leads us on to the picture of the week.

The Prankster freely admits the only reason for this entire blog is the naked woman spread-eagled over the bonnet of the car.

Happy Parking

The Parking Prankster

Roxburghe in administration

Roxburghe have gone into administration on 16 September 2014. According to one of their staff, almost everyone was made redundant with no pay, leaving only a skeleton crew.

Roxburghe act as debt collectors for the parking industry. In the most usual way of operating, a parking company will appoint a debt collector to chase a parking charge. The debt collector then sends scary letters, adding their own fee on top on the parking charge. If the motorist pays up, then they keep this fee and pass the rest of the money back to the parking company.

As debt collectors, unlike bailiffs, have no legal powers, many people ignore them.

Roxburghe have previously had troubles, being banned from DVLA access for three months. In February, the OFT revoked their consumer credit licence, branding them 'unfit'. Roxburghe appealed this decision, which is still being reconsidered.

Alastair Turnbull, a solicitor who acted for Roxburghe and other firms has also been stripped of the consumer credit licence.
Gary Osner, the director of Roxburghe appears to already have a phoenix company ready, ZZPS.

Gary Osner was made a director of the British Parking Association Ltd  in July 2014. It is not known how the BPA Ltd will react to the news that as well as his company previously being unfit and barred from DVLA access, he can now add insolvency to the impressive list of credentials. Possibly they will make him joint CEO with Patrick Troy.

Happy Parking

The Parking Prankster

CPM UK operate entrapment site in collusion with Hole in One pub manager in Lytham

A thread on moneysavingexpert describes a the Hole in One pub car park in Lytham where the pub manager was apparently colluding with CPM UK to trap motorists.

Apparently the pub was not making enough money from normal pub activities so the manager looked to scam motorists for parking charges to top up income.

The motorist explained how the sign was not only covered by bushes, but was also turned around to face the other way. The sign explained cars needed a permit, but did not explain how to get one. The motorist visited the pub, but at no time was told he needed a permit.

Two car park attendants hid in a van to trap motorists, making no attempt to mitigate losses by warning motorists.

The motorist duly appealed, which was turned down. He then appealed to POPLA where the appeal was upheld because CPM UK offered no evidence.

The motorist visited the pub again where he noticed the signs were gone. On enquiring inside, he was told about the nefarious activities of the former manager.

Happy Parking

The Parking Prankster

Has Stephen Duff of Proserve broken the law by conducting litigation? Part Two

The Prankster previously reported that Stephen Duff of Proserve may have broken the law by conduction litigation (700 times).

Apart from the  Solicitors Regulation Authority (SRA) the Law Society had also been approached. It is not within their remit but as they have been asking the powers that be to prosecute Wonga for something similar it was considered that they may have some clout. The response on behalf of the CEO of the Law Society includes the following:

A letter has been sent from our Chief of Corporate Affairs to Paul Philip, the SRA’s Chief Executive, asking that he ensure this matter is investigated, and prosecuted if the evidence is sufficient.

Perhaps the Law Society was mindful of the provisions of the s22 of the Solicitors Act 1974 which provides for it to be an offence for anyone to a prepare a document for legal proceedings  for payment. A Court Claim form perhaps. Or s20 which states that no unqualified person, acting as a solicitor, may commence any action in his own name. As we know Mr Duff has signed Statements of Truth in his name and competed the box on the claim form for the Solicitor in the name of his firm.

Ooh errr

Happy Parking

The Parking Prankster

DVLA unable to answer a simple yes/no question. ICA investigator slaps them on the wrist

Background

ICA = "Independent Complaints Assessor" - as opposed to ICO (Information Commissioner's Office) who deal with matters of data protection and Freedom of Information issueS.

The Vehicle Certification Agency (VCA) - one of the agencies of the DfT - has useful guidance about ICAs at http://www.dft.gov.uk/vca/referral-to-ica.asp

For DVLA complaints see https://www.gov.uk/government/organisations/driver-and-vehicle-licensing-agency/about/complaints-procedure

For DfT complaints see https://www.gov.uk/government/organisations/department-for-transport/about/complaints-procedure

Blog
A motorist has been unable to get a yes no question answered by the DVLA. The question was not especially difficult.

Is compliance with the BPA Ltd CoP a necessary requirement for the DVLA in determining reasonable cause?

The story begins when the motorist was issued a windscreen ticket by Local Parking Security (LPS) Ltd who at the time were in breach of the British Parking Association Ltd Code of Practice (CoP). Although there were several breaches, the main one was that the charge was only decreased by 33% for early payment, not 40% as required by the CoP. The motorist therefore brought this to the attention of the DVLA who stated that details are only given out to organisations who adhere to the code of practice.

The motorist asked the DVLA not to give out his details to LPS Ltd because as they were in breach of the CoP there was no reasonable cause to access his data.

The DVLA gave out his data anyway, and replied on 12 November, reiterating that reasonable cause does not relate to full BPA Code compliance.

The motorist replied on 13 November.

“I take serious issue with your statement, "As previously mentioned, reasonable cause does not depend on full compliance with the code of practice"

This is a complete 'U' turn and an unequivocal contradiction on your previous response in which you stated that;

"....vehicle keeper information is disclosed only to companies that are members of an Accredited Trade Association (ATA) and adhere to its code of practice"

The motorist then chased the DVLA for replies up to 28 February when they finally replied.

Information from the vehicle record is released under reasonable cause provisions where the reason for the request relates to the vehicle or its use, following incidents where there may be liability on the part of the driver. The Agency would not be able to justify withholding personal information from third parties able to demonstrate reasonable cause without evidence that such disclosure would cause unwarranted and substantial distress or damage.

He replied on 3 March

Full compliance with the Code of Practice either applies to reasonable cause or it doesn't; which is it, I don't want any stock DVLA 'lines’ trying to fudge the answer, I am entitled to a ‘yes’ or ‘no’ straight answer from the DVLA to a straight question.

The DVLA relied on 14 March, with a stock DVLA line, fudging the answer

The motorist wrote again on 17 March

“The issue that I require you to address is that of the effect of non-compliance with the BPA Ltd CoP on 'reasonable cause'. You will note that both David Dunford and Liz Symons have sought to duck and dive the issue. In her latest response, for example, Liz Symons has deliberately changed the meaning of my enquiry from (in essence); is compliance with the CoP an essential ingredient of 'reasonable cause' to does compliance with the CoP equal 'reasonable cause' and to which she has then answered in the negative. What Liz Symons has done is deliberately manipulated and misrepresented my enquiry in order to avoid answering it. I know full well that compliance with the BPA Ltd CoP does not equal 'reasonable cause' because there are also other factors taken into account. That wasn't my question. My reasonable enquiry therefore still stands. Is compliance with the BPA Ltd CoP a necessary requirement for the DVLA in determining reasonable cause? Yes or No.

Kevin Watts from the DVLA replied on 28 March. Kevin Watts lost his letter, but luckily the motorist was able to provide a copy to the ICA investigator.

“The disclosure of vehicle keeper data under the reasonable cause provisions is a discretionary power of the Secretary of State, who has adopted a policy that requires all private car parking operators to obtain membership of an appropriate Accredited Trade Association (ATA) in order to request vehicle keeper details. This policy is intended to protect vehicle keepers from misuse of their information. One of the conditions of the membership of an ATA would be to abide by its Code of Practice (COP). The requirement for an operator to comply with an ATA’s COP is just one of the measures government has put in place to improve standards in the private parking industry through encouragement of robust self-regulation rather than government regulation at significant public cost. Essentially, the reasonable cause legislation is a legal gateway in which to request data from the DVLA. Compliance with an ATA’s COP is just one of the requirements to help inform the DVLA of the legitimacy of the request. Strict contract terms detail when information may be requested and how it can be used. No organisation has direct access to DVLA vehicle keeper data. If you feel that any of the practices used by the company do not comply with the BPA’s code of practice, you may wish to contact the BPA at Stuart House, 41- 43 Perrymount Road, Haywards Heath, RH16 3BN. I hope this makes the DVLA’s position clear.”

On 7 April the motorist asked for an answer to his question again.

On 11 April Kevin Watts replied that the DVLA had nothing to add.

On 13 April the motorist lodged a complaint and the ICA took over. The DVLA ran interference, failing to provide a number of crucial documents, and making the investigation harder.

The ICA investigator found that:

The short answer to your question is “No, compliance with the code is not a necessary requirement in determining reasonable cause”.

He also found that only lip service is paid to the stated requirements. If a breach is found and reported to the DVLA they do nothing themselves. The most they will do is pass information to the BPA, who then also do nothing.

In fairness to the DVLA, your report of alleged breaches by LPS did not itself amount to proven breaches: it was for the BPA to investigate, take any necessary action in relation to LPS’s accreditation and then inform the Agency of the outcome. In that circumstance LPS might fail to meet a key criterion to receive DVLA data; future applications by LPS, and access to the DVLA database, could then be refused or suspended. However, although the DVLA says it has tough expectations of the ATA, for some reason enforcement action was not taken by the BPA in the period in which LPS was given your data or, apparently, since.

Turning to the essence of your complaint, I am not at all reassured that the DVLA gave you sufficient evidence of its concern that the BPA should fulfil its obligations. It states that its delegation to the ATA “promote[s] greater self regulation and further reinforce[s] protection of motorists’ privacy” but little or nothing seems to have happened after it referred your genuine compliance concerns to the BPA. In the absence of a clear statement from the BPA, based on a robust investigation, that LPS was in full Code compliance, my view is that LPS’s status as a data recipient remained open to question.  

On balance, I cannot see that the DVLA’s handling is congruent with its aim of instilling confidence in the disclosure process and ensuring fair treatment and clear standards. I contrast the BPA’s limp response referred to you by the DVLA (paragraph 14) with the DVLA rhetoric reproduced in paragraph 28. I do not think that the Agency’s handling here was consistent with the oversight of “tough safeguards” which is suggested in its literature.

  The investigator concluded

In the latter stages of the correspondence you pressed the DVLA for a yes/no answer to the straightforward question I dealt with in the previous section. For some reason, the Agency did not feel able to answer this question even though to do so would have required fewer words than the statement that it had answered the question already. That said, I think the underlying point in your case had little to do with reasonable cause - incontestable in your case – and everything to do with the basis of the Agency’s assurance that LPS was code compliant and suitable to provide data to.   

The investigator decided that no maladministration had taken place

Unfortunately the Agency’s handling of your correspondence stalled before and after you had requested ICA review. The Agency was then unable to provide me with key documents. This necessitated further communications with you (see paragraph 21).

As I have stated, the erratic and piecemeal disclosure of information in your case is completely uncharacteristic of the DVLA. I acknowledge your view that this is part and parcel of a deliberate approach designed to thwart your complaint. However, I also note that some of the documents I have struggled to obtain, for example the DVLA’s letter of 28 March, represented clear and timely statements of the Agency’s position. The Agency also knew from an early stage that I was approaching you direct so my view is that no advantage could come from resisting disclosure deliberately. On balance I find that the Agency’s undoubted poor administration fell short of maladministration.

Taking all of the above into account, I have no doubt that the DVLA mishandled the correspondence with you and me. I remind it of the Ombudsman Principle “Public bodies should create and maintain reliable and usable records … [and] should manage records … to ensure that they can be retrieved and that they are kept for as long as there is a … business need”.  I uphold this part of your complaint. I recommend that the CEO of the DVLA apologises to you for the lapses I have identified and offers you a payment of £75 in recognition of the Agency’s poor administration which, as well as stalling at the local stage, occasioned a delay of at least three months in my review and further time and effort on your part in preparing a document set for me. 

Essentially were are therefore left in the same position as before. The DVLA trumpets far and wide that it only discloses data where there is reasonable cause, but the nitty gritty is rather different. There is very little actual effort made to ensure this, and the audits the DVLA boasts about are little more than rubber stamping exercises. The vase number of complaints uncoverable via an internet search show that the industry goes unregulated; there is no pro-active effort made to uncover dodgy practices and when these are uncovered, no timely effort is made to sort these out or punish transgressors.

The following conclusions can be drawn from the investigation

1. The DVLA attempted to hide relevant correspondence from the ICA – which is a breach of the Civil Service Code of Conduct
2. The ICA appears to confirm that the DVLA does not have sufficient safeguards in place  
3. The ICA has concluded that the DVLA has obligations to investigate but that it has delegated that to the BPA. 
4. The ICA finally confirms that the DVLA’s usual response and business standard is in direct conflict with what they claim it to be.
5. The ICA confirms that the DVLA have a policy of being useless and thus when they are useless they are policy compliant.
6. The DVLA welcomes further complaints about non-compliant parking companies
7. The standards set out in the civil service code of conduct are treated with disdain by the DVLA 
8. The DVLA have a policy of saying they are doing something, in the hope that complaints go away and then they file and forget
9. This quote should be included in all complaints to the DVLA; "Concluding, the issue of real concern to me here is the lack of evidence of vigilance in the DVLA’s dealings with the BPA “ This lack of vigilance can then becomes evidence as a norm in the DVLA to build up the picture to the ICA/Ombudsman. 

 
Happy Parking

The Parking Prankster

Has Stephen Duff of Proserve broken the law by conducting litigation?

It has come to the Prankster’s notice that a formal complaint has been lodged with the Solicitor’s Regulation Authority (SRA) against Proserve Enforcement Solutions/Stephen J Duff. It is alleged that Proserve/Mr Duff may have been conducting litigation contrary to the provisions of the Legal Services Act 2007. It is a criminal offence to conduct litigation when not entitled to do so under that act. On summary conviction the penalty is imprisonment for up to six months and a fine of up to £5000. On indictment the term is up to 2 years and an unlimited fine.

As Proserve is known to have issued 700+ claims at the Ipswich Europark alone, the legal profession may well take a dim view of his activities.

The Act defines the “conduct of litigation” in Schedule 2 as, for example, issuing proceedings. Issuing proceedings involves the completion of the claim form, signing the statement of truth at the end of that form and placing your name and address as the party on whom proceedings should be served. Rather like this...

Note that it says that the Claimant or their Solicitor’s address should be inserted. Mr Duff is neither.

Then there is another problem in that is alleged that Mr Duff is not entitled to sign the statement of truth on behalf of a third party. CPR 22 para 3.11 gives examples of who can and cannot sign..

Mr Duff often expresses his signature to have been placed there as "Litigation Friend" but you can only do that if the claimant is a child or a protected person e.g person in hospital or a person who by reason of mental disorder is incapable of managing and administering his own affairs. It may be of course, that Mr Nigel Robson of Ransomes Europark is mentally incapable and therefore Mr Duff has perfect right to do this. However, Mr Robson may have other views.

Where the statement of truth has been improperly signed it provides grounds for having the case struck out. Improperly signing a statement of truth is a contempt of court.

If you have received a claim from Mr Duff, and the foot of page 2 is like the example above, then you may wish to ask Mr Duff on what basis he is conducting litigation and signing the statement of truth.

If you consider that there has been unlawful activity against you, you may wish to complain to the SRA at report@sra.org.uk . You will need to complete their complaint form which can be found at http://www.sra.org.uk/consumers/problems/report-solicitor.page 

Scroll down to “How to report a Solicitor or firm.” 

In your complaint you may wish to say something like

Please see the attached claim form which, has been filed by Proserve Enforcement Solutions and its proprietor, Mr Duff, has signed the statement of truth. Proserve is an agent of the landowner and as such I believe that he is not entitled to sign a statement of truth. Where he has issued proceedings I believe that his conduct is caught by the Legal Services Act as it falls to be the conduct of litigation and which I do not believe he is legally allowed to undertake. Proserve, (nor Mr Duff), does not appear to be a member of any of the regulatory bodies established under the Act. Mr Duff is now issuing revised claim forms signed by someone (apparently) entitled to do so. I would request that you consider taking action against Proserve/Mr Duff, under your common law powers of prosecution, if the SRA is satisfied that he has conducted litigation contrary to the provisions of the Legal Services Act.

Mr Duff is now serving substituted Claim Forms with a statement of truth signed by someone else in the hope that the claim will not get struck out. It remains a fact however that he has signed a statement of truth and which remains on the court record. Mr Duff appears to be covering his back by saying in covering letters “”We do not provide legal representation or advice to ……. “ 

Nice try but when it comes to any hearing remember to mention to the court that Mr Duff issued proceedings and signed the statement of truth when it does not appear that he was entitled to do so under the Legal Services Act and as such the claimant should not be permitted to profit from that conduct. Then sit back and let the Judge ask some rather awkward questions.

Mr Duff may wish to borrow from his local library “The Debt Collection Merry-Go-Round: How to deal with harassment and unfair practice from debt collectors (published Sept 2009)" and have a close look at page 37 which reads

Debt Collectors are not authorised to carry on litigation which as explained above is a "reserved activity." So the debt collection company will have to instruct a person who has the right to conduct litigation which will usually be a Solicitor. What undoubtedly happens is that the debt collection companies prepare court papers for clients but get the client to sign the Statement of Truth. On the claim form the debt collection company will probably put their address. Sometimes, the debt Collection Company will sign the Claim Form as "Litigation Friend". They are wrong on both counts.

The Cambridge County Court advises that Mr Duff’s bailiff certificate is due for renewal next year. If anyone wishes to report that he is potentially acting illegally they should contact the Suffolk Police Authority with the details. Their contact page is at this link:

http://www.suffolk.police.uk/contactus.aspx

If Mr Duff is acting illegally then he may want to ask the court to take 700+ other offences into consideration.

Happy Parking

The Parking Prankster