Link Parking and Overstone Court - getting your money back

Link Parking entered into an agreement with Isis Cardiff Management Company Limited to control unauthorised parking at Overstone Court, Cardiff. Unfortunately they decided it was in their remit to control authorised parking as well, and according to details given to the Prankster went into a feeding frenzy from day one, issuing tickets to residents like confetti.

This type of ticketing has never been legally supported and there is plenty of case law around to support the view that the lease has primacy of contract, and that this cannot be unilaterally overridden. So if your lease allows you to park without conditions, then a parking company cannot require you to display a permit to park.

There is now a persuasive judgment regarding Overstone Park in Cardiff. DDJ Metcalf has a number of pertinent comments in his judgment of the case of Link Parking v Parkinson, including this one

This parking space does not fall within the common parts of the property; it is the property of Mrs Parkinson, and on that basis I cannot see how the management company can interfere with her enjoyment of it, or charge her for its usage via a parking penalty or otherwise. It seems to me that to do so would have required a variation of the original lease and I have not seen such a variation.

His full judgment, courtesy of Ms Parkinson, is available on the Prankster's web site.

This is a persuasive judgment supporting the view that all tickets issued by Link to residents parking in their own spaces are not valid.

Getting your money back

If you have been issued a parking charge, and Link got your data from the DVLA, then it is likely they committed a data protection breach by obtaining keeper data for land where they had no rights to issue tickets. The case of VCS v Phillip establishes that £250 is an amount which court will award. This is a minimum. Courts have awarded up to £750.

If you have paid a parking charge then you can attempt to get your money back from Link.

If you have been taken to court and lost because you did not use the right legal arguments, then it might be too late to appeal the judgment - you usually only have 21 days, and you might not be able to introduce new arguments anyway - the appeal will normally only be allowed on points raised in the initial hearing. However, the data protection breach still applies, so you may be able to 'balance the books' by claiming for the data protection breach. If you are still in time, and raised the point that you were a resident then you may be able to appeal.

With all of these issues you should follow the correct legal procedures. First issue a letter before claim, and then if there is no reply, or you cannot come to an agreement, follow up with an actual claim.

If the amount is large, or if you do not fully understand this, you should get legal advice on the course of action to take.

It is important to note that this only applies to parking in your own space. Different arguments apply to similar situations and you may not be able to claim for all of these .This includes;

• Parking with permission in someone else's space
• Parking without permission in someone else's space
• Parking in communal areas
• Parking in visitor spaces

These charges may or may not be valid, and would need an examination of the all facts.

Sample letter before claim for parking in your own space

Dear Link Parking

Letter Before Claim

In 2016 you issued me with a number of parking charges for parking in my own space without displaying a ticket.

[details here]

My existing lease gave me full permission to park, and you had no rights to unilaterally override that. There is a large body of case law which establishes this. In Saeed v Plustrade Ltd [2001] EWCA Civ 2011 it was found the managing agent could not reduce the amount of parking spaces available to residents. There are a number of persuasive judgments in the lower courts. In Jopson v Homeguard [2016] B9GF0A9E, on appeal it was found that the parking company could not override the tenant's right to temporarily stop near the building entrance for loading/unloading. In Pace v Mr N [2016] C6GF14F0 [2016] it was found that the parking company could not override the tenant's right to park by requiring a permit to park. In Pace v Mr N [2016] C7GF51J1, PACE came back again, this time claiming that clause 6.3 of the lease allowed the terms of the lease to be varied. The judge rules that this clause required a month's notice to be given, and as this had not occurred, the point was moot. The claim, and 7 others relying on this, were dismissed.

Of particular interest is Link Parking v Ms Parkinson C7GF50J7 [2016], which concerns this building, Overstone Court. The judge examined the lease and found that the parking company could not override the tenant's right to park by requiring a permit to park.

You obtained my personal details from the DVLA for the purpose of pursuing a parking charge, However, there was never any possibility this charge could be valid. Only I have the right to enforce parking regulations on my own space. 

My name and address information (together with other information) is classified as personal data within the meaning of s1(1) of the Data Protections Act (DPA). As there is no possibility that any monies were owed to you by myself, then attempting to charge a parking charge is caused harassment and personal distress to myself, is using it in ways which violate principles 1 and 2 of the DPA, and s13 of the DPA provides for financial compensation for this.

The case of Vidal-Hall v Google Inc [2014] EWHC 13 (QB) provides authority that misuse of personal data is a tort and that damages may be non-pecuniary. The case of Halliday v Creation Consumer Finance Ltd [2013] All ER (D) 199 provides authority that a reasonable sum for compensation would be £750.

The case of VCS v Phillip, claim number C9DP2D6C Liverpool 07/12/2016, while not binding, is persuasive that a DPA breach occurs when a parking charge is not legitimately pursued, and that a sum of at least £250 is compensation for pursuing a purported parking charge when there is no reasonable prospect of success.

I am therefore claiming £250 from yourself for misuse of my personal data under s13 of the DPA.

In addition, I paid the parking charge of [£100] and I therefore require immediate repayment of that amount.

The total payable is [£350].

You have 14 days to remit this amount to myself. After that time I may file a claim without further correspondence.

The rules on pre-action conduct are here

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_pre-action_conduct

I believe I have provided you with all necessary information.

I am willing to consider alternative dispute resolution and suggest the Consumer Ombudsman.

Other sites

Link Parking have a large number of residential sites. While you may be able to claim back any monies paid and for data protection breaches at these sites, each case will turn on the facts, which will need an examination of the lease.

You can claim back for up to six years. However you should bear in mind that if there are too many valid claims, Link Parking may not have enough money to pay back all claimants.


Happy Parking

The Parking Prankster

Gladstones Epic Fail - Hayes and Harlington Station

PCMUK v M. M C3GF45K9 12/12/2016 Clerkenwell
PCMUK v M. M C3GF46K8 12/12/2016 Clerkenwell

Guest court report

There were two PCMUK cases heard in Clerkenwell County Court today, both filed by Gladstones and both resulting from briefly stopping at Hayes and Harlington Station. 

First case 

Gladstones failed to file their evidence bundle on time. They were given leave to refile their claim. Costs were awarded against the claimant. 

Second Case

The second case was lost by Gladstones as the signage they relied upon for forming a contract was too high to be read from a car. 

Prankster Note

This is the second time in as many weeks that Gladstones have filed their evidence late regarding this Station. Although the IAS Baristas follow the directions of their leader Bryn Holloway, and refuse to uphold appeals regarding this station, it is clear his instructions are flawed as real judges continue to throw claims out.

It is of course obvious that you cannot form a contract by performance unless you have time to discover, read, understand and accept the contract. This is something Bryn Holloway apparently finds hard to understand, which is why in The Prankster's opinion he is not fit to be the lead assessor of the IAS.

Happy Parking

The Parking Prankster

Court Report - Oxford - Another Gladstone's Epic Fail

Case No. C1GF00T3 PCM (UK) v Alan Johnson, Oxford County Court, 09/12/2016, before District Judge Matthews.

Guest Report

Claimant represented by Mr Grosvenor instructed by Elms Legal, Defendant represented by Bargepole.

This arose from a PCN issued at the infamous Hayes & Harlington station, where the private access road’s turning circle is blocked off due to construction work for the Crossrail project. Mr J had pulled in to drop off a prospective employee he had been interviewing, and stopped for a few seconds to let the passenger out of the car, during which time the PCM goon had stepped out of the shadows and taken a photograph. The original £100 charge had been inflated to £219, thanks to the creative addition of spurious amounts by the Gladstone’s robo-claim team.

The signage states “No Stopping or Waiting at any time unless parked fully within the confines of a marked bay for a maximum of 20 minutes”, although by the time a motorist has read the sign high up on a pole, it would be too late as the photo has already been taken. Mr J had appealed to the Operator and to the IAS previously, but the IAS decision was the expected rejection based on a unique interpretation of contract law known only to marsupials.

The principal defence arguments were:    

-         There could be no contract construed from the forbidding signage
-         Absent any contract, a claim could only be brought in trespass, and only by the landowner
-         Even if a contract could be construed, it would not be reasonable to expect a motorist to read the sign and decide whether to agree to the terms before a photo was taken and charge subsequently issued
-         The IPC, IAS and Gladstones are all operated by the same two controlling minds, and the IAS appeal rejection must be viewed in that context.
-         Whatever the outcome, the additional amounts added by Gladstones are not recoverable.

However, the case never got as far as any of that, as the Defence first raised a preliminary procedural matter. The Court’s directions had specified that all documents should be filed and served not later than 14 days before the hearing, meaning by 24 November. Mr J had received a witness statement of Georgina Philpot, dated 25 November, but in an envelope postmarked 28 November, which arrived on 1 December. The Judge confirmed that the Court copy had been received on 30 November.

The Judge asked Mr Grosvenor (who had been parachuted in at short notice for this case) for an explanation, and as he didn’t have one, suggested he take instructions. After a short adjournment, in which Mr Grosvenor appeared to be shouting into his phone, the best that could be offered was that Gladstone’s were “very busy, and it got overlooked”.

DJ Matthews was unimpressed, and proceeded to give his judgment:

-         The case had been allocated, and listed for hearing, on 5 September, so the Claimant had more than adequate notice.
-         The Directions, and dates of receipt of the Claimant’s bundle, were as stated by the Defence. He noted that Mr J’s email address was on the Directions Questionnaire, so they could have served the documents by that method, but didn’t.
-         It is open to a Judge to apply sanctions for non-compliance, including rejection of statements or evidence, and that would apply here.
-         Both the Defence witness statement and the Claimant’s disallowed statement included legal arguments, but there was no problem with that.
-         This was not a minor breach. Gladstones are a professional firm, whereas the Defendant is a litigant in person, and the fact that they overlooked the Court timetable was inexcusable, and “a matter of concern”.
-         It therefore follows that the Claim is struck out in its entirety.

We then got on to costs, and tried to argue further costs on the basis of unreasonable behaviour. But the Judge didn’t go with that, saying that it had been struck out for procedural reasons, and they may wish to resubmit a fresh claim. However, if they did, the Defendant could object on the grounds of abuse of process.

So Mr J was awarded his ordinary costs for loss of earnings, travel to court, and parking, totaling £114.20, and everyone except Mr Grosvenor went away happy.

Prankster Notes

The Prankster apologises for the lateness of this report. He was unable to stop laughing long enough to file it.

A most special irony is that the judge mistook Gladstones for "a professional firm".

Happy Parking

The Parking Prankter

NCP charge 91 year old motorist for paying too early

Mr Philip Lindsey, a 91 year old motorist, has been ticketed by NCP apparently for paying on entrance rather than on exit.  When Mr Lindsey arrived at the car park, he paid the £1.50 tariff for a daily stay. The system requires you to enter your registration plate and only accepts plates which are in the car park. it is therefore unlikely Mr Lindsey made a mistake unless the machines are themselves faulty.

He stayed a few hours and then left within the time paid for.

A few days later he received a charge for not paying on exit.

The signage does not require you to pay on exit - only to "pay for the required length of stay".

Mr Lindsey appealed to NCP who refused to cancel the charge.

Prankster Note

In the Pranksters opinion NCP had no cause to obtain Mr Lindsey's personal data from the DVLA as no contravention has occurred. It is NCP's responsibility to make sure their systems work; not the motorists. NCP further compounded their mistake, causing distress and harassment by not cancelling on appeal.

Mr Lindsey may therefore well have a claim against NCP for a breach of data protection. A sum of £250 would appear to be appropriate.

Smart Parking settled out of court for £250 for a similar event when they issued a charge for no valid reason.

In court, £250 was awarded against VCS for issuing a charge which had no prospect of being valid.

Happy Parking

The Parking Prankster

BW Legal misleading motorists over Peel Centre signage

BW Legal have been filing large numbers of claims for parking events at the Peel Centre, Stockport.

The Prankster can reveal BW Legal have been misleading motorists as to the signage in place at the particular time of their parking event.

As the wording on the signage is obviously key to any case this will of course have a material bearing on any claim. In Excel v Cutts the judge found that the signage at the Peel Centre was deficient and misleading as they were in March 2010. The judgment can be found here. It will be persuasive for any cases around that time. Excel owner Simon Renshaw-Smyth was so upset he said the ruling was ".....an embarrassment to the judicial system" and the judge was "not fit to serve the civil courts"

In the Cutts case evidence was presented to show that in the three years from 2008 to 2011 Excel issued a total of 11,498 parking tickets to drivers who had parked at the Peel Centre car park without paying and displaying. But, by comparison, this council car park in the centre of town, similar in size to the Peel centre, but with pay and display nine times larger, issued only 3000 tickets for not paying and displaying in the same time. It is clear therefore that Excel's signage was deficient in 2010.

In some cases BW Legal have been claiming later signage was in place when it was not. A useful tool in this regard is Google Streetview. This has an archive function which goes back to 2010. The signage is somewhat blurry, but good enough to tell that this signage photo submitted by BW Legal...

...was different to the signage actually in place at the time.

When you receive photos of signage from BW Legal you should therefore check them using Google Streetview and raise a complaint if they are not accurate.

It is also worth remembering that the Peel Centre is divided into 3, so the signage BW Legal submit must be from the area the car was parked, not from the other 2 areas.

The signage is the element which potentially forms a contract with the motorist, so if BW Legal submit wrong information in court claims they are essentially misleading the judge.

Signage coverage

The Peel Centre is the single most complained about carpark in the Prankster's postbag. Excel parking regularly issue tickets due to failures of their own machines to properly record ticket purchases, and when their ANPR fails to record double visits. Additionally, the car park is extremely poorly signed, so many people do not realise it is pay and display. This map shows how most spaces in zone one are too far from the signage. Worryingly, some of the worst-signed areas are for disabled drivers.

Did BW Legal file a witness statement in your claim with inaccurate photographs? If so, contact The Prankster at prankster@parking-prankster.com

Happy Parking

The Parking Prankster

Liverpool Business Park - Motorist wins claim for £250 for data protection breach

VCS v Phillip, Claim number C9DP2D6C Liverpool 07/12/2016

VCS, You've been Gladstoned, and Vidalled too.

Mr Phillip was being driven to the Liverpool Rowing Club one day when the driver took a wrong turn, ending up on Liverpool International Business Park. Realising her error, she turned around, and in this 32 second manoeuvre, was caught on camera by VCS who issued a Parking Charge Notice for a non-parking event.

An initial appeal was rejected, as was an appeal to POPLA, as VCS were members of the BPA at the time.

VCS sent this through the gamut of debt collectors and the matter ended up as a BW-Legal Roboclaim. Unusually, the Defendant wanted to not only win the battle, but also take part in the war, and with The Prankster's assistance filed not only a solid defence, but also a counterclaim.

1) There is no contract. The signage forbids parking, even for an instant, and therefore there is no consideration. There have been a number of similar cases recently including UKPC v Masterson and PCMUK v Hall et al. This therefore is a case of trespass, and in such cases only the land owner can sue, and then only for actual damages incurred. Where there is no damage a nominal £1 is usually awarded
2) Even if the signage did offer a contract, the font size is too small and the words too many to be safely read while driving. They can therefore only be read while stopped and the normal time allowed in these situations is 5-10 minutes in car parks to allow for a genuine meeting of minds and for the driver to understand and comprehend any potential contract. There can therefore be no contract entered into by consideration.
3) Even if a contract was entered into by consideration, the signage does not contain the information required by the Consumer Contracts (Information, Cancellation And Additional Charges) Regulations 2013, enacted 13 June 2014. As per clause 13(1), without this information any contract is not binding on the consumer
4) Even if the contract was binding, the charge is a penalty and an unfair consumer charge. ParkingEye v Beavis is the leading authority on this. Although ParkingEye won the case, the judgment makes it clear that if the charge is not to be a penalty/unfair consumer charge, the driver must have ample time to be able to read and digest the contractual terms so that they can fairly agree to the terms. As this has not happened the charge is not saved from being a penalty/unfair consumer charge, and unless VCS have incurred costs of £100, the charge is excessive.

The counterclaim was based on the paperwork not being compliant with POFA and there being no possibility of a legal parking charge and therefore there was no "reasonable grounds" to pursue the keeper or driver, such pursuit being a breach of section 13(2) of the Data Protection Act 1998.

BW Legal offered a generic "no it isn't" reply to defence and counterclaim which did not answer any of the points raised in the counterclaim.

Mr Phillip filed a witness statement which included a video showing the signage from the driver's eye view, essentially proving there was no possibility that the driver could enter a contract as the signs were neither readable nor even particularly visible. He also filed as evidence relevant extracts from the Department Of Transports guides for signs on the highway. He made arrangements with the court to show the videos during the hearing.

Faced with this overwhelming defence, BW Legal discontinued the claim 12 days before the trial. Unluckily for their client VCS, they appeared to forgot there was a Counterclaim.

As the Prankster was busy with "real life (tm)" at the time, he invited a professional "Parking Terrorist", John Wilkie of Private Parking Appeals, to assist the Defendant (now the claimant in the Counterclaim) on the day. The day was today, so Mr Wilkie left Glasgow quite early to be at Liverpool County Court by 10am.

There were a number of VCS cases at Liverpool today. Messrs Pickup and Worthington and Ms VanDays were all present, but none of them were instructed in this matter. The parties were called in on time at 11.30! Mr Wilkie did have to pick up his jaw from the floor on the way into court as a result.

With no attendance from VCS or their solicitors, the Judge invited Mr Wilkie to lose the case on his own. He argued:

1) The Claim was not valid in the first instance, as the signage did not offer a parking contract, the 32 second stop was well within the 10 minute grace period, and while the ATA Code of Practice may not form a part of the Law, it DOES form part of the KADOE contract allowing reasonable cause. As such, as the CoP was breached, there were no reasonable grounds under regulation 27 for the Parking Company to seek keeper information, and this was a breach of the Data Protections Act, section 13(2)

2) Additionally, Section 13(2) does not require proof of damage, only proof of breach. Damages follow, as the court confirmed in Google v Vidal-Hall. The judge was already fully aware of this case, and cast only a brief glance over Mr Wilkie's copy.

3) Damages must be sufficient that the process of law, and the intent of the Legislation is not brought into disrepute (Purves v Joydisk Ltd[Scotland]). Nowadays, £250 is an appropriate sum to award as "nominal" damages, but sufficient to show the court's displeasure at the breach such that justice is seen to be done.

4) As such, the conduct of the claimant, in pursuing then discontinuing, and not answering the counterclaim was entirely unreasonable, and smacked of Rookes v Barnard 1964, such that Exemplary or Punitive damages ought to be awarded at ten times the initial counterclaim. This is also
supported by CPR 16.4. In deference to his duty to the court, Mr Wilkie immediately conceded that this had not been pleaded earlier, and the Claimant had no opportunity to answer this point if the judge was persuaded of its validity.

5) Finally, Under rule 27.14(2)(g) the defendant ought to be entitled to punitive costs, again for the unreasonable conduct of the Claimant in failing to attend or even have the courtesy of excusing its attendance.

In giving judgment, the Judge mentioned Mr Wilkie's "helpful submissions" and was happy that he had ably assisted the Defendant.

1) The claim by VCS, having been discontinued, is dismissed.

2) The Claimant did not have reasonable grounds to pursue the keeper - this was not a parking event, it was a stop to turn which is necessary, and implicit in a right to pass and repass. The evidence of the Defendant has not been challenged and is on its face entirely honest and reasonable. As such, the DPA breach is proven.

3) The Defendant did not need to show, or quantify damages, Google v Vidal-Hall makes it clear that damages follow the breach.

4) The quantum sought by the Defendant was entirely reasonable, pleaded from the start, and there was nothing before the court, either from the Claimant or in binding case law to go behind this figure and examine it. Accordingly, the defendant has judgment in his counterclaim in the sum of £250.

4) The conduct of the claimant did not, in this case (and in the evidence before the court), cross either the threshold of Unreasonable conduct for rule 16.4, or rule 27.14(2)(g) and so the Defendant was only entitled to nominal costs of £104.40.

The total judgment is £354.40, payable within 14 days.

Mr Phillip was delighted, and celebrated with an Americano with Milk, courtesy of Mr Wilkie. It is rumoured that Mr Wilkie's head has not yet arrived back in Glasgow, having been too big to get through the courtroom door.

John Wilkie' comments

"This was a critical case for the 'parking terrorists' as we have argued that the Parking Companies are breaching the DPA on a number of occasions, and this has now been confirmed by the courts. They MUST comply with the KADOE contract, and the ATA CoP to be entitled to Keeper details, and
failure to do so, such as in Excel v Mr C at Stockport, will open them up to legal action.

"While this decision is not in itself a Precedent, the Google v Vidal-Hall ruling IS binding on the lower courts, as is ParkingEye v Beavis which deals with the ATA CoP being part of the conditions that the PPC must meet (Para 94-95)

"Parking Companies will have to now understand that, even after issuing proceedings, they can be attacked on their conduct, and in the event of a loss, it would be possible for the winning defendant to issue a claim for this breach regardless of any previous hearings.

"Where there are parking companies selling their 'debts' to unregulated, unregistered companies like ZZPS or MIL, then it is possible to bring a clam against both the PPC and the Debt Collectors, before they even issue their claim against you.

Prankster's Notes

This is an important case, and although not binding it does establish that where a parking company has no legitimate grounds to pursue a parking claim, they are committing a breach of the DPA.

It also establishes that £250 is a reasonable minimum amount to claim, although of course higher amounts can be claimed if justified.

Any motorist who has won a parking claim in court, or has had a parking charge cancelled by POPLA** or who has been issued a charge for stopping at Liverpool Business Park can consider issuing a claim against the parking company. The Limitations Act will apply, so this can only go back 6 years.

A number of parking companies issue claims and then back out at the last minute. Although costs are sometimes awarded against them, this is not always the case leaving defendants out of pocket and having spent time and energy for nothing. Issuing a counterclaim forces a hearing which means the defendant can claim costs.

A number of parking companies also play the numbers by failing to cancel an initial appeal, but folding at POPLA. Motorists can file claims against these companies too if a DPA breach has occurred.

Happy Parking

The Parking Prankster

**both motorists who have had a parking charge cancelled by the IAS can also counterclaim

Signage at Liverpool Business Park

Vehicle Control Systems are in the habit of issuing £100 as a charge for briefly stopping anywhere in Liverpool Business Park, including the laybys.

The signage is similar to that at Liverpool Airport, which has previously been analysed by The Prankster

This youtube video shows the signage at the park.

00:07-00:10 For comparison, here is a proper road sign. You can read all the words.
00:14-00:17 Here is another proper sign. You can read all the words
00:28-00:31 Here is the main VCS sign. You can only read the words 'No Stopping'
00:35-00:36 Here is a subsidiary VCS sign. You cannot read any words as the sign does not face traffic and the driver would have no indication of what this refers to.

It is clear that no competent legal professional would ever contemplate a charge could be valid in this type of case. Firstly, it is not possible to fully read the signs while driving past at normal road speed. A key criteria for a contract to be in place is a meeting of minds, and this can never be in place if one party cannot read the contract. The normal time given for this in a car park is five minutes once the vehicle is stationary; not 2 seconds in a moving vehicle.

Secondly, the signage is in any case forbidding and makes no offer. As it says 'No Stopping' there is no offer to stop. There is therefore no contract, but this would make anyone stopping a trespasser.

Thirdly, the charge of £100 is a penalty and unfair consumer term. The case of ParkingEye v Beavis [2015] UKSC 67 is the leading authority on this, and it makes it clear that the penalties law is in play for charges of this size. It also makes it clear that a motorist must have a fair chance to read the signs and accept the bargain; otherwise the term is unfair.

It is also worth pointing out that from 00:28-00;30 a competent motorist would be keeping half an eye on the dog, in case it ran out, and not on the signage. The presence of this type of signage is therefore a safety issue.

This facebook video shows is is dangerous to take your eyes off the road for more than 2 seconds.

https://www.facebook.com/DrivingSpain/videos/500413180146039/

This government publication on X-Height for road signs shows that the signs used by VCS are positioned too close to the junction, use fonts which are too small, contain too many words, and are positioned too low.

This Government publication further reinforces the minimum font sizes to use. Section 1.3 and appendix A are useful references for font sizes, height above ground and minimum clear visibility distances. At 30mph the sign should be 0.6m above ground, have 60m clear visibility and a font size of 8cm. The font size of the £100 charge is 4cm, or half the required size.

The Prankster suggests that any motorists taken to court for this site files the youtube and facebook clips, together with the government documents as evidence, and makes the above points in their defence.

If the keeper is not the driver then an additional point apples as VCS do not currently use the keeper liability provision of the Protection Of Freedoms Act 2012, sch 4. Therefore only the driver can be liable for any charge issued.