Civil Enforcement Limited fail to turn up in court

Always good fodder for a slow news day, and when The Prankster needs to concentrate more on festive jollifications than blogging.

Yet again, Civil Enforcement Limited fail to run up in court. Yet again it seems an attempt may have been made to trick the defendant into not turning up as well, with an email from 'Sharon' asking the defendant to urgently get in touch..

It is not known whether the defendant was awarded costs.

Here are the full details on pepipoo

Mr Duff needs help for judicial review

Mr Duff is seeking witness statements from individuals for his upcoming Judicial Review. If anyone wishes to assist him here is a draft you may like to personalise by inserting the relevant information into the red sections and deleting any sections which do not apply. Just check your paperwork and if Mr Duff

1. Sent you a charge notice more than 14 days after the alleged parking event

2. Did not serve you with a valid Notice to Driver

3. Claimed VAT on top of damages (which he was doing until recently) and which Ransome's Counsel advised the court was unlawful

4. Included references to rights to chase the Registered keeper under the Protection of Freedoms Act, when he couldn't because his Notice to Keeper was more than 14 days after the event

5. Signed the County Court claim form statement of truth

Then why not send this witness statement to the DVLA DSP@dvla.gsi.gov.uk

Dear Mr Pickering,

Proserve Enforcement Solutions

With reference to the Judicial Review that the above firm will be applying for I thought that you may find the following witness statement of assistance. It reveals the extent to which the Proserve enforcement model appears to fail to meet the DVLA's/Government's requirements on so many levels.

                                                               1. On behalf of the DVLA

                                                               2. Witness Statement of Name

                                                               3. Date of Statement Date

                                              

           

In the High Court

Queen’s Bench Division

   

               Case Number number

Between

The Queen on the application of Duff

v Driver & Vehicle Licensing Agency 

(DVLA)

____________________________

Witness Statement of Name on behalf of the DVLA

____________________________

1. My full name is name of address and I am a job title or retired or unemployed
2 I am making this witness statement in support of the DVLA                                         

3. I have read the letter dated the 4th June 2014 from the DVLA to Mr Duff of Proserve Enforcement Solutions and noted that it comments that “Although you have made the point that your primary purpose is to take action to ensure that your clients are protected against unlawful interference with their land, the nature of this interference is parking-related trespass, which is regarded as a relevant obligation in Schedule 4 of the Protection of Freedoms Act. The measure adopted by ProServe to enforce this where the use of DVLA data is involved is the same as those of traditional parking operators, i.e. the imposition and pursuit of charges.The introduction of the ATA model and its subsequent extension to all parking companies came about in order to put in place parameters for operators without formal regulation or governance. You have set out your position with regard to matters such as signage, ticketing, charge levels and appeals, but these are matters which successive ministers have regarded as being for an ATA to monitor and ensure compliance with, so as to provide the necessary assurances to DVLA that our data is being used appropriately. I should also point out that the minister's requirement is that motorists are offered an independent appeals service if the appeal is rejected by the company that issued the charge”.

4. On the date I received a Charge Notice from Proserve Enforcement Solutions demanding from me damages for an alleged trespass or breach of contract for a vehicle allegedly parking at name of site. Added to the claim was a sum allegedly for VAT although VAT could not lawfully be added to any claim for damages. I regarded this as a false representation.

5. The notice referred to in paragraph 4 was served more than 14 days after the alleged parking event yet referred to an ability on the part of Mr Duff/his client to exercise rights under The Protection of Freedoms Act 2012 to pursue the registered keeper of the vehicle. I understand that such rights cannot be exercised when such a notice is served more than 14 days after the parking event (paragraph 9 of Schedule 4 of the Protection of Freedoms Act 2012 refers) where no Notice to Driver had been served. No valid Notice to Driver was served upon me. This notice appeared to be misleading and legally incorrect

6. On the date I received from the County Court a claim form claiming damages for a breach of contract or a trespass and which appeared to have been issued by Mr Duff. Mr Duff had signed the statement of truth on that claim form although, I understand, he is not a Solicitor or otherwise authorised to sign such a statement of truth. It is my understanding that Mr Duff is not authorised by an appropriate regulatory body to conduct litigation under the terms of the Legal Services Act 2007 nor to act as a Solicitor under the Solicitors Act 1974.

7. I understand that Mr Duff/Proserve Enforcement Solutions is contracted to undertake enforcement action against any party allegedly parking in contravention of a land owners requirements at the site and has caused to be erected at site notices setting out the land owner’s requirements. I understand that in the case of Ransomes Park Limited v Nicolas Anderson the Judge, on appeal, concluded that the signage used by Mr Duff was unclear and ambiguous and could not be relied upon. Mr Duff has not amended his signage at site since that decision.

8. Mr Duff did not permit me to have any access to any independent appeal service.

I believe that the facts stated in this witness statement are true

Signature

Name

Address  

Date  

When Parking Companies go rogue

The Prankster advises potential customers of parking companies to check up on their previous customers before committing themselves. Some parking companies have cordial relationships with their customers...and some do not.

Take Civil Enforcement Limited, for example. The Co-op engaged them to manage their car parks some time ago but seem to have lost total control. Even when the Co-op want CEL to cancel parking tickets, they are ignored.

Good Afternoon,

Thank you for your email and your comments are noted.

As advised in my earlier response, it is simply a statement of fact that CEL and DEAL will not respond to requests from Co-op to discontinue Court actions, regardless of the reasons for such requests. Accordingly, it is not a question of this issue being escalating to another level of authority within Co-op, but that CEL/DEAL will not accede to such requests, regardless of who they emanate from within Co-op.
Where Co-op is able to comment further, I have endorsed responses below.

I trust this clarifies the position, as I do not think that Co-op is able to assist further in this matter.
Yours sincerely


Deborah Misell-WilliamsExecutive Customer Careline Team

The Prankster understands that CEL are no longer used by the Co-op, which is not surprising. Civil Enforcement Limited destroy Co-op's customer base by pursuing Co-op customers to court for minor parking transgressions. A customer overstaying for a few minutes by shopping is not expecting to have to fork out several hundred pounds for the privilege - CEL increase the amount claimed to around £500. This no doubt ensures the customer will never return to the Co-op.

The Prankster suggests landowners who want their car park managed find a parking company who will work with them to maintain and improve their customer base rather than destroy it.

Happy Parking

The Parking Prankster

ParkingEye win in court. Shooting fish in a barrel

A1JD0339 ParkingEye v Mr M. Chippenham Court, 16/12/2014 in front of DJ Asplin. Not being the driver is no defence. £100 awarded for claimant, plus £90 costs.

The Prankster rocked up in Chippenham Court to observe a ParkingEye case. He was primarily there to see if ParkingEye informed the judge that the case law they most rely on, ParkingEye v Beavis case was being appealed. As it turned out, that was not relevant to the case in hand.

ParkingEye were represented by Stacy Payne from LPC Law while the defendant represented himself. DJ Asplin conducted the hearing, and began by apologising for the formal setting. He explained he would summarise the case. The case concerned a Holiday Inn car park in Bath. The defendant's vehicle was parked there for 3 hours without being a guest of the hotel. The published charge for parking there for that length of time was £100. There are other charges for parking if you are a guest.

Prankster note. Without seeing the signage, The Prankster assumes the learned judge was wrong on this point. In all other ParkingEye car parks The Prankster has seen, the charge is for breach of contract; not a contractual charge as the judge described.

The judge made a wry comment as to the size of ParkingEye's bundle he had been forced to wade through beforehand, but commented that it contained authority from the hotel for ParkingEye to act, photographs of the number plate and signage, and that it went on at considerable length regarding the legalities of the case.

The defendant's case, on the other hand, consisted of the single point he was not the driver. The car was owned by his company and was a pool car which could have been driven by any of 5 other people, none of whom had admitted to being the driver.

The judge explained kindly that although the defendant might think that a clever defence, parliament had fixed that loophole 2 years ago,  and that was no longer a valid defence.

He explained ParkingEye had a right to levy charges, that the driver was not staying in the hotel, and that the driver was responsible for the charge. As no-one had come forward admitting to be the driver, the responsibility therefore fell on the keeper of the vehicle. The case was over in 5 minutes without the claimant needing to speak, and with only a few sentences from the defendant.

DJ Asplin awarded the parking charge of £100, £15 court filing fee and £25 hearing fee. He explained he was not convinced about the solicitor filing fee of £50 but after some debate between himself and Ms Payne, in which the motorist did not join in, decided to award it.

Prankster note. There are several reasons why this fee of £50 is not valid. HHJ Moloney in ParkingEye v Beavis did not award this fee.

Ms Payne, looking somewhat embarrassed, explained she had also been requested by ParkingEye to ask for her costs. The judge asked where she came from, which turned out to be Great Malvern. The judge queried that although Chippenham's solicitors were in decline, surely ParkingEye could have found someone local. Ms Payne explained she was not asking for travel costs but her fee of £175 plus VAT. The judge ruled these were not allowable costs in a small claims court unless the defendant had behaved unreasonably, which he had not.

The final total came to £190 which the defendant paid immediately.

Prankster note. The defendant was lucky. Not being the driver has no hope of being a valid defence. Other judges may have ruled he behaved unreasonably in defending the claim, and so awarded higher costs.

So as it turned out, Beavis was not mentioned at all, and all Ms Payne had to do was quibble about costs. The Prankster recommends that motorists research the legal aspects of the case more fully before preparing a defence, and that if they don't want to do this, the safest option might be to pay up rather than risk an extra £200-£300 of costs.

Of course, the best option is to fully engage with the appeals process and get the charge cancelled at POPLA. So far, all ParkingEye's charges have been found to be penalties (and therefore invalid) by POPLA.

Happy Parking

The Parking Prankster

Ransomes v Anderson judgment available

The transcript of the appeal judgment in Ransomes Park Limited v Anderson is now available on The Prankster website, and will make useful reading for anyone who is being sued by Proserve Ransomes or any other site which uses Proserve.

Several useful points arise

1) The signage is gibberish and cannot be used to create a contract. HHJ Moloney concisely deals with this in points 13 to 16.

2) A trespass has occurred and so some damages are payable. HHJ Moloney had no idea what these would be, and to order a re-trial to assess these would be out of proportion to the costs involved. With the consent of both parties, he therefore took the pragmatic view that he would guess at an amount. However, he made it clear that this was a guess and that this would not set a precedent for future cases.

 37. I do not want this assessment to be regarded as a precedent, or a sum that ought to be awarded in other cases. I have indicated the desirability that proper evidence is produced that will justify whatever sum is in fact claimed in a particular case

He also made it plain that in cases of trespass, it is the actual damages incurred which count. It was laughable that all 18 cases on one invoice were charged at one hour each.

29. I note that all 18 of the cases on the invoice I have seen are charged at precisely one hour each. That is inherently improbable. To be frank, it smacks to me of an attempt to introduce into a trespass claim the sort of “agreed flat fee” approach commonly used in contractual parking cases, which as I have explained cannot apply in a tort case

3) In future cases, Ransomes will need to prove it was liable to pay Proserve the amount invoiced.

30. What I am referring to here is an apparent failure by Ransomes to prove that it was
ever liable to pay Proserve, based on the fact that it did not seek or receive any proof from Proserve that the time had been expended. That is not a ground of appeal in this case, but in future cases I consider that as part of proving its loss Ransomes should plead and prove the amount of work that Proserve did, or is likely on the basis of its general business model to have done, in relation to the particular case in question. 

4) It is also open to any defendant to prove the work could have been done cheaper.

22 Fourthly, even in a case where the loss is foreseeable, and is actually incurred, it is
open to the defendant to reduce the amount of his liability by proving that the claimant has failed to mitigate his loss. That is to say, proving that there were reasonable steps open to the claimant to reduce his loss but the claimant unreasonably failed to take those steps and thus, in effect, unnecessarily increased the amount of his own loss. If a defendant can show that, then he need only pay the lesser sum that the claimant ought to have lost and not the greater sum that he in fact lost. 

At this point, The Prankster would like to introduce the relevant part of the costs document used by Excel Parking in POPLA appeals.

As you can see, Excel can do the job of issuing a ticket and getting DVLA data for the sum of £11.21 + £9.67, or a total of £20.88.

Numerous other parking companies also have figures that come out around the £20 mark for this kind of activity.

The Prankster therefore suggests that any motorist who believes he has trespassed makes an offer of £20.88 to settle.

However, it is also worth noting two other points.

1) HHJ Moloney failed to take into account the fact the Proserve were already paid a fixed fee by estate residents to patrol the estate. This should therefore not form part of any costs and an estimated 'patrol' fee can be deducted from the £11.21.

2) If a trespass occurs the trespasser should be given sufficient warning to depart. If you abandon your vehicle, you may therefore be liable, but if a Proserve employee comes up to your vehicle while you are there and photographs it without first asking you to move, you may not be.

3) If you are there, you can also mitigate Proserve's loss by offering to pay up there and then. This will remove the £9.67 costs and most of the £11.21. The Prankster suggests an offer of £5 would be sufficient to cover costs. Make a note of your offer, and if rejected, get the Proserve employee to sign they he has rejected your offer.

On a side note, Proserve have been given permission to move forward to a Judicial Review to see whether they need to join an ATA before the DVLA will give them keeper details again. This will take place sometime in 2015.

Happy Parking

The Parking Prankster

Independent Parking Committee Kangaroo Court Exposed

The British Parking Association run an appeals system (POPLA), which although it has its faults, is at least mostly independent, mostly open and in its own way mostly fair to the motorist.

The Independent Parking Committee on the other hand run an appeals system (IAS) which is held behind closed doors, can be provably influenced by the IPC and from the results, is biased towards the parking companies.

Nothing illustrated this more than two results for G24 Parking who recently left the BPA for the IPC.

Here is the result from POPLA

The Appellant raises several grounds of appeal but it is only necessary for the purposes of this appeal to deal with one. This is the submission that the parking charge does not reflect a genuine pre-estimate of loss.

Where such a submission is made, there is a burden on the Operator, and not the driver, to provide a genuine pre-estimate of loss which details how they calculated the parking charge amount. It does not need to be particularly detailed or amount to exactly the charge amount because it is simply an estimate. However, one must be provided.

The Operator has not provided any evidence which establishes the charge reflects a genuine pre-estimate of loss. They simply state that their charge amounts to liquidated damages and is in accordance with the recommendations of the BPA. This is not sufficient to discharge their burden and so I cannot find that the charge is justified in this case. Therefore, I find that the charge is unenforceable and the Appellant is not liable to pay it.

Accordingly, I allow the appeal.

Ricky Powell
Assessor

Here is the result from the IAS
The appeal is here, for completeness

Appeal Outcome: Dismissed

The Adjudicators comments are as follows:

The Appellant raises a number of challenges, which I will respond to in turn.
1a This appeal is not concerned with the failures or otherwise of the internal appeal. The Operator is a member of the IPC.

1b In this appeal the Operator does not have to prove anything, the onus is on the Appellant. A breach of the code of practice does not automatically mean that the charge is invalid. The requirements of the code are best practice. Falling short of best practice does not mean the Appellant had insufficient notice. I can read the content of the sign the Appellant claims is unreadable and the significant terms are no different from the other signs at the site.

2 Genuine pre-estimate of loss. Again it is not for the Operator to prove but for the Appellant. Where the claim is for breach the test to decide whether the charge is valid is to consider whether the charge is proportionate, has a tendency to deter, and is commercially justifiable. The intention was clearly to deter drivers from parking beyond a period of time. When one considers the likely cost of managing checking and enforcing the site, in the absence of any evidence to the contrary I find the charge proportionate, and as the Operator’s only income commercially justifiable.

3 The Appellant has provided no evidence this sign was nearest their car.

4 This is not relevant. The Operator contends they are bringing the charge not for overstaying but on the basis the Appellant was not a customer. This is clearly a term and the other terms on the contractual sign make it clear that by breaching this term the Appellant is liable to pay the charge.

5 This is therefore irrelevant since I consider a contract has been formed.
Finally I do not find the contract ambiguous and therefore the doctrine of ‘contra proferentem’ does not apply.

The IAS is not fit for purpose because

• the operator sees the motorist's evidence and makes representations, but the motorist is not allowed to see the operator evidence or make representations
• the adjudicator is anonymous and the selection process for choosing an adjudicator is capable of being abused
• the normal rule of law, where the claimant is required to prove their case is turned on its head
• there is no independent board overseeing the appeals process, as there is with POPLA
• there is no requirement to have an annual report published, as there is with POPLA

In this particular case there are even more worrying elements.

The adjudicator dismissed a statement by the keeper as untrue because the keeper had provided no evidence to back this up. This is clearly absurd. 

 The sign which was nearest to the car, according to the driver

         The Appellant has provided no evidence this sign was nearest their car.

The adjudicator also made up his own 'facts' to suit his arguments.

 This is not relevant. The Operator contends they are bringing the charge not for overstaying but on the basis the Appellant was not a customer

This is clearly not true. The NtK clearly states the charge is for overstaying.

Furthermore, the assessor clearly does not understand contract law, and is not therefore fit to be an assessor.

I can read the content of the sign the Appellant claims is unreadable and the significant terms are no different from the other signs at the site.

The first sign shows the charge is a contractual charge (you can stay longer than 3 hours. The charge is £50). The second shows the charge is for breach of contact (You can only shop here. If you go elsewhere you are in breach of contract) (Prankster note. Staying longer than 3 hours does not appear to be one of the 5 terms and conditions which attract a parking charge).

This is fundamental to parking contracts and any assessor who does not understand the difference is not fit to work as an assessor.

Furthermore, the assessor is clearly lying when he says 'I can read the content of the sign the Appellant claims is unreadable'.

The Prankster defies anyone to read the sign from the photograph above. An assessor who cannot tell the truth has no place in being an assessor.

The Prankster considers this is ample proof the IPC appeals system is a kangaroo court and not fit for purpose.

How can a parking company which has had its Genuine Pre-Estimate Of Loss calculations consistently ridiculed by POPLA for 2 years suddenly come up with a convincing explanation of its losses to a different appeals system?

How can a charge which it is admitted is the 'Operator’s only income' possible equate to a loss if it is used to run a profit making company?

The Prankster calls on the DVLA to suspend the ATA status of the IPC until they use a system which runs on the same lines as POPLA, and which is seen to be fairly run.

Furthermore, the Prankster calls on the DVLA to require the IPC to name the assessor used for the above case, and to ban them from further assessments.

Meanwhile The Prankster notes that should G24 want to proceed to court if the keeper does not pay up, then keeper liability under the Protection of Freedoms Act 2014 does not apply. Under the act, the reason for issuing the charge must be stated. As G24 have confirmed the charge is for not being a customer to the IAS, they cannot change their tune in court. In any case, staying longer than 3 hours is not one of the terms and conditions which attracts a parking charge.

Happy Parking

The Parking Prankster

Have DVLA learnt lessons from RAME charity case?

The RAME charity bus case was featured on BBC TV and can be seen here: http://www.nmag.co.uk/nmag-tv/.

An 84 year old man was pursued by a parking company as the keeper of a vehicle. His details were obtained from the DVLA who had no right to hand them out as the driver had already been identified. During the investigation the parking company lied to the DVLA; the DVLA accepted at face value the parking company account and did not check them, thus compromising the investigation.

Lynette Rose, Deputy Corporate Director of the DVLA, wrote in a letter dated 13th June 2013;

"DVLA officials accepted at face value the account of events provided by Premier Parking Solutions (PPS) and did not check thoroughly enough the information provided. This compromised the investigation and led to the Agency making a decision with only some of the facts"

and

"I have also asked for work to be undertaken to improve the way in which complaints of this nature are handled. This will ensure that they are processed through the appropriate channels at all stages. I can assure you that the staff concerned recognise the need to ensure that each complaint is investigated properly"

The investigation into the complaint made the following recommendations.

Now we are a year on from the parking event, The Prankster asks if any lessons have been learned by the DVLA. What is the nature or the work undertaken to improve the way in which complaints are handled?

Many people have contacted The Prankster to say their complaints to the DVLA are being fobbed off. Here is a typical example.

Thank you for your email received on 2/12/14. Your email reference number is xxxxxxx.
I am afraid we cannot assist you at DVLA. Please contact:
British Parking Association - 01444 447300

If the DVLA are not regulating the private parking industry, and the British Parking Association are not regulating the private parking industry, just who is?


Happy Parking

The Parking Prankster