Excel v Ms X. Liverpool. 1/2/2017
Ms X received a parking fine in January 2015 from Excel.
When she read it she was flabbergasted as it was for a car park in Birmingham - a place she has never visited. She contacted Excel straight away who directed her to contact the police which she did. She received a log number for the call which she passed onto the company. Months passed and she received more letters but took bad advice from forums and ignored them. Unfortunately this was the wrong thing to do. She received court proceedings and filed a defence stating the obvious that it wasn't her; the police informed her that her car must have been cloned.
She appeared in Liverpool County Court and the judge decided to adjourn as Excel's case was that the lady had only produced a report number, not a crime number. The judge awarded £75 in wasted costs to Excel. Ms X was given 2 weeks to come up with a crime reference.
However, when Ms X tried to contact the police they refused to give a crime reference as a crime had not been committed against her by cloning her plates. At this point she began to worry as she had been informed a CCJ could cost her her job at the post office.
At this point Coupon-Mad stepped in and helped create a witness statement which fully explained the situation. Ms X had been at the hairdresser at the time, so she got a photograph of her appointment book plus a witness statement confirming she was at her salon. Luckily enough her father keeps a diary and he had written in it he had collected her to go shopping, so this also formed part of the evidence.
She returned to court on 1st February. The judge was the same as before and when she walked in she could tell he was impressed with the evidence pack. The judge went through the evidence and asked the VCS solicitor how he wanted to proceed and he just shook his head saying "She has proved she wasn't the driver."
Ms X nearly fell off the chair.
The judge then read through the entire case and then asked me if she had anything to say.
"Yes please, I would like to state that for 2 years I have worried about this case, I had a phone call a week before the hearing telling me that they would not accept my witness statement and I should accept an offer to pay a reduced amount with a payment plan."
The BW Legal enforcer then tried to con her that the 'fine' would rise to £500 is she went back to court. He tried to say the judge would not accept her new witness statement and evidence and he had only allowed her to get a crime reference number, which she had not done.
Ms X therefore said that due to all her stress and running around chasing her tail she would like the £75.00 court fees she had incurred written off. The judge once again asked the solicitor what he thought and his answer was "Well sir you did make that order and she did get a second chance."
Once again Ms X nearly fell off the chair!
She asked could she reply and the judge said "No I have this". He then proceed to to reel off the evidence she had supplied, then all the flaws in the VCS witness statement and his final sentence was "and seeing as your company deal with these issues day in and day out, you should have known a crime reference number wouldn't be supplied so you wasted all of our time, so I wipe the costs!"
Ms X nearly did a cartwheel but instead went right up to the judge and shook his hand and thanked him for being understanding and wished him a great day. She walked out 10 foot tall.
Prankster Note
A hat tip to the VCS solicitor they hired on the day for conceding Ms X was not the driver. The Prankster knows some solicitors who would not have done this - for instance the one who tried to argue that although the car was recorded as having an MOT at the time, perhaps the mechanics were not carrying out the MOT in their garage, but in a car park a few miles away.
Congratulations to Coupon-Mad, rescuer of lost causes.
The Prankster also suspects this was not a cloned car after all, but a simple ANPR misread. This would appear much more likely, given the poor accuracy of ANPR. He has not seen the VCS evidence though, so cannot confirm this.
Of course, sometimes your car really is cloned.
http://www.dailymail.co.uk/news/article-4196014/Shocked-woman-finds-car-identical-parked-opposite.html
The Prankster recommends personalising your car so that there is some unique feature near your numberplates which you can use to identify your car.
Finally, The Prankster would like to highlight the despicable behavior of BW Legal. Phone calls like this drag the legal industry and the parking industry into disrepute.
Happy Parking
The Parking Prankster
Putting the fun back into parking
Click for guide to fighting ParkingEye court claims
Click for help with low-cost appeals and court defences
Monday, 6 February 2017
Sunday, 5 February 2017
MIL lose. Ms Kauser denied rights of audience again
MIL Collection v Mrs M, Oldham County Court, 3/2/2017, C5QZ4M9H
Mr M, Mrs M's ex-husband, has some experience in law, and as a result was gong to lay rep for this case, but contacted the BMPA via Bargepole and asked for further details of the Mrs C case (as reported recently) especially in regard to right of audience.
John Wilkie of Private Parking Appeals was the Lay rep for that case, so he offered some pointers and offered to come along for the fight if he was free.
As it happens, he was, and so popped down to Oldham from Glasgow, and was offered the chance to lay-rep the case.
When everyone was identified by the usher, it turned out that the advocate sent along by Elms Legal was the delightful Ms Kauser (again) who had been denied right of audience at Burnley only two weeks ago.
As a result Mr Wilkie rolled out a few relevant persuasive cases, including Ellis v Larson and McShane v Lincoln, both of which examine closely the question of a "solicitors agent" as done the recent publication by the Law Gazette at https://www.lawgazette.co.uk/law/bar-council-solicitors-agents-could-face-prison-term/5059560.article
Having been pointed to these matters, the judge properly examined both Mr Wilkie's right of audience, and Ms Kauser's. An interesting bombshell dropped by Ms Kauser is that MIL apparently intend to appeal the Mrs C Case.
Mr Wilkie, as always, relied on the Lay Representatives (Right of Audience) Order 1999, which makes him an exempt person within the meaning of Schedule 3 of the Legal Services Act 2007.
Regrettably for Ms Kauser, she was unable to satisfy the judge that she was involved in the "Conduct of Litigation" nor that she was "Supervised" such that she was also an exempt person. As she had no right of audience, and specifically because MIL Collections are professional debt collectors,
she was refused audience, and asked to stand down from the case. She indicated an intention to appeal the judge's finding in this case, which was additionally refused.
As a result of MIL not attending, not being represented and not producing their witnesses, Mr Wilkie invited Judge Greensmith to strike out the claim under rule 27.9, which the judge did, and also granted £93.70 costs for the Defendant due to the unreasonable conduct of MIL.
The judge generously thanked Mr Wilkie for his assistance, and Mr M for his well-prepared and well-pleaded documentation. Mr Wilkie is now at home in Scotland, though he has left his Ego at the court, as it could not fit back out through the door.
Prankster notes
The Prankster is aware of a court statement by Alan Davis in which he states "Any advocate that attends on [MIL's] behalf is fully compliant with the requirements of the Legal Services Act 2007." This seems to be as accurate as his previous claim in Parking news to send an advocate to
every single court hearing. The Prankster suggests that Alan Davis and The Truth are not common bed-fellows.
MIL Collections, you've been Gladstoned, yet again.
Rights of audience are further examined here
http://www.4kbw.net/news/28102016123256-rights---wrongs-of-audience/
http://www.pibriefupdate.com/content/law-journal-summaries/news-category-2/3949-mcshane-is-such-a-shame-paul-stanton
https://nearlylegal.co.uk/2017/01/solicitors-agents-yet-no-rights-audience/
The Bar Council's advice is here
http://www.barcouncil.org.uk/media/404046/solicitor_s_agents.pdf
Happy Parking
The Parking Prankster
Mr M, Mrs M's ex-husband, has some experience in law, and as a result was gong to lay rep for this case, but contacted the BMPA via Bargepole and asked for further details of the Mrs C case (as reported recently) especially in regard to right of audience.
John Wilkie of Private Parking Appeals was the Lay rep for that case, so he offered some pointers and offered to come along for the fight if he was free.
As it happens, he was, and so popped down to Oldham from Glasgow, and was offered the chance to lay-rep the case.
When everyone was identified by the usher, it turned out that the advocate sent along by Elms Legal was the delightful Ms Kauser (again) who had been denied right of audience at Burnley only two weeks ago.
As a result Mr Wilkie rolled out a few relevant persuasive cases, including Ellis v Larson and McShane v Lincoln, both of which examine closely the question of a "solicitors agent" as done the recent publication by the Law Gazette at https://www.lawgazette.co.uk/law/bar-council-solicitors-agents-could-face-prison-term/5059560.article
Having been pointed to these matters, the judge properly examined both Mr Wilkie's right of audience, and Ms Kauser's. An interesting bombshell dropped by Ms Kauser is that MIL apparently intend to appeal the Mrs C Case.
Mr Wilkie, as always, relied on the Lay Representatives (Right of Audience) Order 1999, which makes him an exempt person within the meaning of Schedule 3 of the Legal Services Act 2007.
Regrettably for Ms Kauser, she was unable to satisfy the judge that she was involved in the "Conduct of Litigation" nor that she was "Supervised" such that she was also an exempt person. As she had no right of audience, and specifically because MIL Collections are professional debt collectors,
she was refused audience, and asked to stand down from the case. She indicated an intention to appeal the judge's finding in this case, which was additionally refused.
As a result of MIL not attending, not being represented and not producing their witnesses, Mr Wilkie invited Judge Greensmith to strike out the claim under rule 27.9, which the judge did, and also granted £93.70 costs for the Defendant due to the unreasonable conduct of MIL.
The judge generously thanked Mr Wilkie for his assistance, and Mr M for his well-prepared and well-pleaded documentation. Mr Wilkie is now at home in Scotland, though he has left his Ego at the court, as it could not fit back out through the door.
Prankster notes
The Prankster is aware of a court statement by Alan Davis in which he states "Any advocate that attends on [MIL's] behalf is fully compliant with the requirements of the Legal Services Act 2007." This seems to be as accurate as his previous claim in Parking news to send an advocate to
every single court hearing. The Prankster suggests that Alan Davis and The Truth are not common bed-fellows.
MIL Collections, you've been Gladstoned, yet again.
Rights of audience are further examined here
http://www.4kbw.net/news/28102016123256-rights---wrongs-of-audience/
http://www.pibriefupdate.com/content/law-journal-summaries/news-category-2/3949-mcshane-is-such-a-shame-paul-stanton
https://nearlylegal.co.uk/2017/01/solicitors-agents-yet-no-rights-audience/
The Bar Council's advice is here
http://www.barcouncil.org.uk/media/404046/solicitor_s_agents.pdf
Happy Parking
The Parking Prankster
Worst Parking Company - Jan 2017
The worst parking company of January 2017 is Excel Parking Services. The award is based on the number of complaining motorists contacting The Prankster during the period.
Most complaints regarding Excel were due to charges being issued even though tickets were purchased, charges issued when no contravention took place, poor signage or for bullying, aggressive and misleading debt collection letters.
In second place were Link Parking. Link Parking are one of the minnows of the industry but generate a huge amount of complaints completely out of proportion to their size. Most complaints were due to Link issuing tickets to residents parking in spaces they owned.
In third place were Vehicle Control Services. Simon Renshaw-Smith can be proud that his companies take 2 of the top 3 places for awfulness. Most complaints were due to tickets issued in cases where the amount is too large for a charge issued for a trespass event, or for bullying, aggressive and misleading debt collection letters.
In fourth place were ParkingEye. Complaints ranged from double dipping (visiting the car park twice), issuing tickets in hospitals, issuing tickets within the grace period and poor signage.
UKPC complaints were mostly for tickets to residents parking in spaces they owned.
PCM(UK) complaints were mostly for scam sites such as Heath Parade.
In all, complaints were received for 30 companies, which is not bad as there are around 200 in total. Most companies never or hardly ever appear on The Prankster radar. There are only a few bad apples which turn up time and time again. Some are to be expected given their size but a few of the smaller ones regularly appear due to the particular predatory practices they employ.
It is also the case that if The Prankster features a particular operator or car park in the blog, often other complaints about that operator or site flood in, which will influence the results.
In all, the top 3 companies account for almost half of all the complaints.
Happy Parking
The Parking Prankster
Euro Parking Services Ltd fail to turn up in court
Euro Parking Services Ltd v Mr X . C6GF8K42 West Bromwich 31/1/2017. Employment Judge Pirani
Mr X was parked in the Farley centre, West Bromwich for about 20 minutes on 24th March 2016. When he came back to my car there was a Euro Parking Services Ltd PCN on the car for an alleged breach of contract. He saw the civil enforcement officer and showed him that the upside down ticket was in date and still had time left on it. The officer told Mr X that it was his mistake but he had just wrote the details in his new book and didn't want to mess the book up by ripping pages out; however if Mr X contacted the office they would cancel the charges.
They refused to cancel the charges and the appeal to the apparently independent "IAS" was dismissed.
Euro decided to pass the case to Gladstones debt collection service who upped the claim to £100. Then a claim form from the courts arrived for a claim of £233. Mr X submitted his defence in October and then in January he submitted his witness statement.
As is becoming usual Gladstones did not comply with the court's order as they were meant to serve the witness statement 14 days prior to the hearing. They waited for Mr X's and blatantly submitted it after they received his, which was about 9 days before the hearing. In their witness statement they focused on the Beavis case which in Mr X's opinion is completely different.
The court hearing was on 31st January 2017. The judge was Employment Judge Pirani. There was no representation for the claimant therefore the judge dismissed their claim and awarded Mr X £4 for parking but nothing for lost wages. In Mr X's witness statement he mentioned that Euro Parking Services would need to show that they have a contract with the land owner to manage that land. The judge stated that my disputes over whether they had a contract with the land owner would not have stood as none of that matters when the contract was between me and euro parking services. She did not mention any of my other arguments.
Mr X was parked in the Farley centre, West Bromwich for about 20 minutes on 24th March 2016. When he came back to my car there was a Euro Parking Services Ltd PCN on the car for an alleged breach of contract. He saw the civil enforcement officer and showed him that the upside down ticket was in date and still had time left on it. The officer told Mr X that it was his mistake but he had just wrote the details in his new book and didn't want to mess the book up by ripping pages out; however if Mr X contacted the office they would cancel the charges.
They refused to cancel the charges and the appeal to the apparently independent "IAS" was dismissed.
Euro decided to pass the case to Gladstones debt collection service who upped the claim to £100. Then a claim form from the courts arrived for a claim of £233. Mr X submitted his defence in October and then in January he submitted his witness statement.
As is becoming usual Gladstones did not comply with the court's order as they were meant to serve the witness statement 14 days prior to the hearing. They waited for Mr X's and blatantly submitted it after they received his, which was about 9 days before the hearing. In their witness statement they focused on the Beavis case which in Mr X's opinion is completely different.
The court hearing was on 31st January 2017. The judge was Employment Judge Pirani. There was no representation for the claimant therefore the judge dismissed their claim and awarded Mr X £4 for parking but nothing for lost wages. In Mr X's witness statement he mentioned that Euro Parking Services would need to show that they have a contract with the land owner to manage that land. The judge stated that my disputes over whether they had a contract with the land owner would not have stood as none of that matters when the contract was between me and euro parking services. She did not mention any of my other arguments.
Prankster Notes
It is a common trick by parking wardens to say head office will cancel the ticket. They say this just to get rid of you. Call their bluff by asking them to write "cancelled" in their book, or by asking them to record that a valid ticket was purchased. Don't be surprised if they change their tune and run away.
This is the second hearing in recent weeks reported to the Prankster which has been heard by an Employment Judge.
The hearing shows the great disparity between judges in the small claims court and the wide variety of judgments over basically the same facts.
Mr X was perfectly entitled to claim for lost wages, or for having to take a day's holiday, so it is not clear why the judge would not award this. Perhaps defendants should take a print out of the relevant section on costs with them
(e) a sum not exceeding the amount specified in Practice Direction 27 for any loss of earnings or loss of leave by a party or witness due to attending a hearing or to staying away from home for the purposes of attending a hearing;
In addition, not bothering to turn up or to inform the court allows costs for unreasonableness to be charged.
(g) such further costs as the court may assess by the summary procedure and order to be paid by a party who has behaved unreasonably;
Many judges have in the past awarded these costs when the other party does not turn up.
As to the contract with the landowner, many judges have ruled that for a contract to be valid there must be a clear chain of authority from the landowner. Taking this back to first principles, this would seem to be logical. Otherwise, a parking company could rock up to your house, stick a sign on the door, and charge you for parking at you own house.
There may well be an apparent contract between you and the parking company formed by the signage, but they had no right to offer the contract in the first place. This is the equivalent of the parking company trying to selling you Buckingham Palace.
The leading case law on this matter is Vehicle Control Services Limited v HMRC [2013] EWCA Civ 186
21. The Upper Tribunal's reasoning on this part of the case was that since VCS did not have the
right under its contract with the car park owner to grant a licence to park, it could not have
contracted with the motorist to grant such a right. In my judgment there is a serious flaw in this
reasoning.
22. The flaw in the reasoning is that it confuses the making of a contract with the power to perform
it. There is no legal impediment to my contracting to sell you Buckingham Palace. If
(inevitably) I fail to honour my contract then I can be sued for damages
This explains clearly that a Parking company can make a contract with a motorist, even if they do not have the right to perform it.
And if they do not have the right to perform it, their right to enforce it would appear to be dubious.
This situation occurs most commonly in blocks of houses with assigned parking spaces. If a parking company is engaged to manage the parking, they cannot override the resident's leases. Homeguard v Jopson [2016] B9GF0A9E made this very clear recently, and Ms Jopson was awarded £2000 in costs in the small claims court under the unreasonableness rule 27.14(2)(g).
However it also applies to any contractual parking case. If the parking company do not have the right to offer parking, they are on a sticky wicket taking the matter to court.
Happy Parking
The Parking Prankster
APCOA misleading motorist into thinking they lost POPLA appeal
A motorist received a Parking Charge Notice from APCOA over a year ago. He raised an appeal with POPLA, which was put on hold whilst the Beavis case was being considered.
When Beavis was finally resolved, he received a letter from POPLA saying that my case was now with an ombudsman, and that I would have a chance to provide evidence. He never heard from the ombudsman. However, very soon afterwards he did hear from AOCOA, gleefully informing me that the ombudsman had found in their favour, and that he'd better pay up immediately or face the consequences.
At this point he contacted POPLA for clarification, without success. Eventually he gave up, assuming he was onto a loser. He paid APCOA £100, and insisted on a written receipt.
Now, months later, he has received a letter from POPLA saying that they have upheld his appeal and the operator must cancel the charge! He contacted POPLA to explain the situation and request advice on how to recover his £100, but they say they cannot get involved.
So the motorist is currently out £100.
Prankster Notes
The Prankster suggests all motorists in this situation contact the British Parking Association and appraise them of the fact so they can investigate. It is a breach of the code of practice to pursue a charge while still with POPLA.
aos@britishparking.co.uk
If this does not work, then the motorist can sue APCOA for their money back. They may also have an additional claim for breaches of the data protection act in the region of £250-£750.
Happy Parking
The Parking Prankster
Friday, 3 February 2017
UKPC lose shared car park claim. Landowner letter conflicts with signage
C5HW6D0P – UKPC v Miss D, Romford County Court, 03/02/2017, before District Judge Dodsworth.
Guest Report
UKPC represented by Mr Gibson (Solicitor’s agent), Defendant represented by Bargepole (as Lay Representative).
Facts
Miss D was employed by a company in London E5, which had a shared car park with other companies on the small estate. She was instructed by her employer that she could use any free bay in that car park, and did so for the first three years. In 2015, the landowner brought in UKPC, and sent letters to the companies on the estate, stating that their employees must not park on yellow lines, or in hatched areas. The UKPC signage made reference to parking permits, but none were issued by her employer, whose Director maintained that employees could still freely park in bays.
Miss D was subsequently issued with four PCNs, and eventually a Claim for a total of £770 was issued by SCS Law on behalf of UKPC. For each of the PCNs, the Claimant’s photos showed that her car was parked in a bay, and not on any yellow lines or hatched areas.
Points of Defence
The defence and witness statement set out the main points as follows:
1/ The Claimant is suing the wrong Defendant. Miss D’s employer instructed her to park as she did, and this became an implied term of her contract of employment. She relies on that contract as having primacy over any purported contract conveyed by the Claimant’s signage. If the Claimant wishes to pursue the charges, they should have sued the employer citing vicarious liability.
2/ The Claimant’s signage also states ‘Wheel Clamping In Operation’. This is a threat to commit a criminal act contrary to s8 of the Criminal Justice Act 1967, and renders any contractual terms void under the ex turpi causa rule.
3/ The Claimant’s signage is deficient in that it omits at least four of the mandatory pieces of information required by the CCR 2013, and therefore the Defendant cannot be held liable under the contract.
4/ In any event, the additional sums of £240 would not be recoverable by the Claimant as it exceeds the British Parking Association (BPA) maximum.
The Hearing
Although the Judge had a very full list for the day, this case was called in first at 10:10, for which everyone was grateful.
Mr Gibson had first dibs, and argued that the Defendant was liable under the contract created by the signage, as this had to be viewed as a consequential extension of the letter from the landowner. He stated that the sign suggesting vehicles could be clamped was not one put up by the Claimant, although he did concede that the UKPC signage was placed directly underneath it. He argued that, under the CCR 2013, it was not a distance contract, because the car park in question was a place of business of the Claimant for the purposes of parking enforcement, and therefore Schedule 1, which is less onerous than Schedule 2, should apply. Finally, he said that the additional £60 per ticket was recoverable, as it was stated on the signage and therefore contractual.
The Defence arguments were then advanced, and it was asserted that Miss D relied on her contract with her employer, together with the copy of the landowner’s letter to her, and did not breach any of those terms, so the Claimant’s signage had no effect. The signage was clearly tainted by illegality, and Miss D was asked to show on her mobile the meta-data of the picture, which proved it had been taken in 2016. The CCR 2013 defined a distance contract, which this clearly was, as there was no simultaneous physical presence of both trader and consumer, and also as indicated by the EU Guidance. Finally, the extra £60 per ticket was outside the BPA Code Of Practice, which the Beavis judgment had stated was highly relevant.
The Judgment
The Judge stated that the facts were not in dispute, Miss D’s car had been parked in the car park without a permit on the four dates given.
He disagreed that Miss D was the wrong defendant; any claim by UKPC against her employer could only be in tort, and would be difficult to make out on the facts.
However, he did agree with the Defence submission that the warning about clamping was in breach of POFA 2012, and therefore the illegality defence was made out.
He also said, even if he was wrong on the illegality point, that because the terms expressed in the landowner’s letter were substantially different from those on the signage, there was uncertainty of terms, and the claim would be dismissed for that reason.
On the CCR 2013 point, he expressed no opinion as to whether or not it was a distance contract, other than to say that the EU guidance, which talks about rental of a parking space, was probably intended to apply to a space allocated to a property under a lease or tenancy agreement. It had been hoped that this might be the first case to get a favourable judicial ruling on the Regulations, but the issue was effectively avoided.
On costs, because Miss D is on maternity leave, no loss of earnings was applicable, so she just got £7.70 to cover travel and parking.
Prankster Notes
This judgment is also applicable to residential parking cases. If the lease/tenancy does not give primacy of contract for parking, then the actual contract is probably entered into when the landowner sends out letters with parking permits. The signage is not relevant to residents and is there to create contracts with non-residents, or to warn off trespassers.
As this paperwork usually either conflicts with the eventual signage signage or does not clearly state the parking charge, then the case law in Beavis provides that the charge is an unenforceable penalty or unfair consumer charge.
Happy Parking
The Parking Prankster
Guest Report
UKPC represented by Mr Gibson (Solicitor’s agent), Defendant represented by Bargepole (as Lay Representative).
Facts
Miss D was employed by a company in London E5, which had a shared car park with other companies on the small estate. She was instructed by her employer that she could use any free bay in that car park, and did so for the first three years. In 2015, the landowner brought in UKPC, and sent letters to the companies on the estate, stating that their employees must not park on yellow lines, or in hatched areas. The UKPC signage made reference to parking permits, but none were issued by her employer, whose Director maintained that employees could still freely park in bays.
Miss D was subsequently issued with four PCNs, and eventually a Claim for a total of £770 was issued by SCS Law on behalf of UKPC. For each of the PCNs, the Claimant’s photos showed that her car was parked in a bay, and not on any yellow lines or hatched areas.
Points of Defence
The defence and witness statement set out the main points as follows:
1/ The Claimant is suing the wrong Defendant. Miss D’s employer instructed her to park as she did, and this became an implied term of her contract of employment. She relies on that contract as having primacy over any purported contract conveyed by the Claimant’s signage. If the Claimant wishes to pursue the charges, they should have sued the employer citing vicarious liability.
2/ The Claimant’s signage also states ‘Wheel Clamping In Operation’. This is a threat to commit a criminal act contrary to s8 of the Criminal Justice Act 1967, and renders any contractual terms void under the ex turpi causa rule.
3/ The Claimant’s signage is deficient in that it omits at least four of the mandatory pieces of information required by the CCR 2013, and therefore the Defendant cannot be held liable under the contract.
4/ In any event, the additional sums of £240 would not be recoverable by the Claimant as it exceeds the British Parking Association (BPA) maximum.
The Hearing
Although the Judge had a very full list for the day, this case was called in first at 10:10, for which everyone was grateful.
Mr Gibson had first dibs, and argued that the Defendant was liable under the contract created by the signage, as this had to be viewed as a consequential extension of the letter from the landowner. He stated that the sign suggesting vehicles could be clamped was not one put up by the Claimant, although he did concede that the UKPC signage was placed directly underneath it. He argued that, under the CCR 2013, it was not a distance contract, because the car park in question was a place of business of the Claimant for the purposes of parking enforcement, and therefore Schedule 1, which is less onerous than Schedule 2, should apply. Finally, he said that the additional £60 per ticket was recoverable, as it was stated on the signage and therefore contractual.
The Defence arguments were then advanced, and it was asserted that Miss D relied on her contract with her employer, together with the copy of the landowner’s letter to her, and did not breach any of those terms, so the Claimant’s signage had no effect. The signage was clearly tainted by illegality, and Miss D was asked to show on her mobile the meta-data of the picture, which proved it had been taken in 2016. The CCR 2013 defined a distance contract, which this clearly was, as there was no simultaneous physical presence of both trader and consumer, and also as indicated by the EU Guidance. Finally, the extra £60 per ticket was outside the BPA Code Of Practice, which the Beavis judgment had stated was highly relevant.
The Judgment
The Judge stated that the facts were not in dispute, Miss D’s car had been parked in the car park without a permit on the four dates given.
He disagreed that Miss D was the wrong defendant; any claim by UKPC against her employer could only be in tort, and would be difficult to make out on the facts.
However, he did agree with the Defence submission that the warning about clamping was in breach of POFA 2012, and therefore the illegality defence was made out.
He also said, even if he was wrong on the illegality point, that because the terms expressed in the landowner’s letter were substantially different from those on the signage, there was uncertainty of terms, and the claim would be dismissed for that reason.
On the CCR 2013 point, he expressed no opinion as to whether or not it was a distance contract, other than to say that the EU guidance, which talks about rental of a parking space, was probably intended to apply to a space allocated to a property under a lease or tenancy agreement. It had been hoped that this might be the first case to get a favourable judicial ruling on the Regulations, but the issue was effectively avoided.
On costs, because Miss D is on maternity leave, no loss of earnings was applicable, so she just got £7.70 to cover travel and parking.
Prankster Notes
This judgment is also applicable to residential parking cases. If the lease/tenancy does not give primacy of contract for parking, then the actual contract is probably entered into when the landowner sends out letters with parking permits. The signage is not relevant to residents and is there to create contracts with non-residents, or to warn off trespassers.
As this paperwork usually either conflicts with the eventual signage signage or does not clearly state the parking charge, then the case law in Beavis provides that the charge is an unenforceable penalty or unfair consumer charge.
Happy Parking
The Parking Prankster
Muppet lawyers Hurley and Davies claim against non-existent vehicle
AS Parking v "Fleet Management Ltd".
Guest Blog
On the 29th of May 2015, AS Parking allegedly ticketed a vehicle in the Main Car Park Port Isaac, Cornwall. Which is curious, because the vehicle was registered with the DVLA on July 31st 2015.
Nonetheless, Super-Kev at AS Parking applied to the DVLA at some point in August 2015 for the keeper details, which came back as a fleet management company, and proceeded to issue a Notice to Keeper.
The Fleet Management company replied with a “this vehicle was not registered at the time, please check your details” type of letter, along with a copy of the V5 confirming the date of registration. The issue seemed to have been dropped as no reply was received, and the fleet management company carried on with their daily processing of dozens of PCNs. Regardless of the compliance with POFA 2012, the fleet management company maintain their professionalism by responding to each NtK as if they were fully compliant.
For reasons still unknown, AS Parking then sent a final reminder in June 2016, nearly a year after their initial Notice to Keeper. In July 2014 a document from Messrs’ Hurley & Davies arrived, pertaining to be a Letter Before Claim. Clearly as an error has been made, the Fleet management company provided a copy of the V5 in reply, along with a covering letter. It’s usually prudent and sensible to be upfront in such instances, and potentially save a lot of work further down the line.
Alas, it was futile.
On July 19th 2016, a claim form from Northampton arrived with the fleet management company, suggesting that £237.77 should be paid to AS Parking. Needless to say, this was acknowledged, however before a lengthy defence was submitted, the fleet management company tried to apply some common sense to the issue.
Another letter to Gladstones was sent on July 22nd, along with a letter to AS Parking, and also the landowners - St Endellion Parish Council, who in their infinite wisdom not only agreed to let AS Parking “manage” their site at Port Isaac, but also refused to acknowledge the clear error in the claim, and their Parish Clerk suggested that the fleet management company should submit the defence and continue the debacle.
In the interest of transparency and fairness, (something that seems to elude the business empire of Hurley & Davies), the fleet management company again highlighted the error to Gladstones on August 4th. No reply was received, although a number of read receipts were returned by the email.
Needless to say a defence was submitted, covering the usual aspects of keeper liability, landowner authority, challenging whether it was even relevant land under POFA, but also highlighting the clear error in issue date and registration date.
August 16th, 2016, correspondence was received at the Fleet Management company from Gladstones confirming receipt of the defence and the intention to have the case “heard on the papers”. Not a chance – this particular fleet manager is well aware of the tricks and tactics of Gladstones, so refused to accept this offer, and again the clear error was highlighted.
It also occurred to the fleet manager that this case would likely be heard in Truro, something of a 700 mile round trip and involving an overnight stay. Again in the interests of transparency. All parties including the landowner were notified that the costs claimed in defence could be significant. No reply was received from any of the other parties.
Imagine the surprise of the fleet manager when notification from the court was received on August 30th to confirm the case would be heard in Manchester – a nice commutable distance, but not quite as picturesque as Cornwall.
Once again, the fleet manager reminded all parties that the case was continuing despite the clear error in the claim. Once again, nobody responded.
And then it all went quiet. Had somebody seen sense? Had the claim been discontinued? On October 10th 2016, a letter from the courts was received, and scheduled a hearing for January 2017...in a court not 2 minutes away from the Fleet Management company.
On the 19th December 2016, a hearing fee was paid, so it looked like the fleet manager was going to have to prepare for a short trip to court, but decided to worry about it after Christmas, because just how much preparation would be needed to show two individual documents to a District Judge?
At some point over Christmas, the greatest living legal minds in Cheshire had something of a Eureka moment, because on December 31st, a Notice of Discontinuance was filed with the court.
The fleet manager is now a little disappointed at missing out on the opportunity to face the mighty Gladstones in court. Despite the regular court claims received by the company, to date, none have gone to a hearing. Gladstones seem happy to pursue individual people all the way, but seem very reluctant to face up to corporate entities in court room. How could they argue that a Ltd company was the driver, on the balance of probabilities? And how do they argue keeper liability when even POFA recognises that the Keeper and Registered Keeper are not necessarily one and the same?
Helpfully, a certain QC called Jonathan Kirk (you may have heard of him from Parking Eye v Beavis) very successfully argued that distinction in front of HHJ Burgess – Regina (House of Cars) -v- Derby Car and Van Contracts Limited [2012] but we’ve not had the opportunity to test this in front of a judge yet.
Maybe next time…
Prankster Note
Legal muppets William Hurley and John Davies continue on their misguided mission to bring the legal profession into disrepute.
Their firm Gladstones Solicitors had no fewer than 9 chances to recognise their utter dereliction of duty to their client, and failed each time. Their strategy of reducing costs by ignoring all communications from defendants is now well established, but fails all legal guidelines.
It must be said Gladstones were lucky that the defendant was a company. Had the defendant been a person then they may have had a rather large data protection claim against AS Parking.
As it is perhaps they may still look forward to a word from the Solicitors Regulatory Authority.
AS Parking...you've been Gladstoned!
The IPC
It has to be noted that Hurley and Davies strategy of non-communication is not only a characteristic of the Gladstones business, but is also the way they run the IPC and the IAS. The Prankster has seen a large number of complaints against both the IPC and IAS. Without fail they receive template replies which do not address the complain and dismiss the complaint without Hurley and Davies having to lift a finger apart from to press the print 'Fob off' button.
Not only that, but they deliberately make the complaints process as difficult as possible, requiring it to take place online and requiring a large amount of personal data seemingly unconnected to the complaint.
The Prankster calls on the government to remove ATA status from the IPC until they provide a proper complaints procedure which genuinely considers complaints.
Happy Parking
The Parking Prankster
Guest Blog
On the 29th of May 2015, AS Parking allegedly ticketed a vehicle in the Main Car Park Port Isaac, Cornwall. Which is curious, because the vehicle was registered with the DVLA on July 31st 2015.
Nonetheless, Super-Kev at AS Parking applied to the DVLA at some point in August 2015 for the keeper details, which came back as a fleet management company, and proceeded to issue a Notice to Keeper.
The Fleet Management company replied with a “this vehicle was not registered at the time, please check your details” type of letter, along with a copy of the V5 confirming the date of registration. The issue seemed to have been dropped as no reply was received, and the fleet management company carried on with their daily processing of dozens of PCNs. Regardless of the compliance with POFA 2012, the fleet management company maintain their professionalism by responding to each NtK as if they were fully compliant.
For reasons still unknown, AS Parking then sent a final reminder in June 2016, nearly a year after their initial Notice to Keeper. In July 2014 a document from Messrs’ Hurley & Davies arrived, pertaining to be a Letter Before Claim. Clearly as an error has been made, the Fleet management company provided a copy of the V5 in reply, along with a covering letter. It’s usually prudent and sensible to be upfront in such instances, and potentially save a lot of work further down the line.
Alas, it was futile.
On July 19th 2016, a claim form from Northampton arrived with the fleet management company, suggesting that £237.77 should be paid to AS Parking. Needless to say, this was acknowledged, however before a lengthy defence was submitted, the fleet management company tried to apply some common sense to the issue.
Another letter to Gladstones was sent on July 22nd, along with a letter to AS Parking, and also the landowners - St Endellion Parish Council, who in their infinite wisdom not only agreed to let AS Parking “manage” their site at Port Isaac, but also refused to acknowledge the clear error in the claim, and their Parish Clerk suggested that the fleet management company should submit the defence and continue the debacle.
In the interest of transparency and fairness, (something that seems to elude the business empire of Hurley & Davies), the fleet management company again highlighted the error to Gladstones on August 4th. No reply was received, although a number of read receipts were returned by the email.
Needless to say a defence was submitted, covering the usual aspects of keeper liability, landowner authority, challenging whether it was even relevant land under POFA, but also highlighting the clear error in issue date and registration date.
August 16th, 2016, correspondence was received at the Fleet Management company from Gladstones confirming receipt of the defence and the intention to have the case “heard on the papers”. Not a chance – this particular fleet manager is well aware of the tricks and tactics of Gladstones, so refused to accept this offer, and again the clear error was highlighted.
It also occurred to the fleet manager that this case would likely be heard in Truro, something of a 700 mile round trip and involving an overnight stay. Again in the interests of transparency. All parties including the landowner were notified that the costs claimed in defence could be significant. No reply was received from any of the other parties.
Imagine the surprise of the fleet manager when notification from the court was received on August 30th to confirm the case would be heard in Manchester – a nice commutable distance, but not quite as picturesque as Cornwall.
Once again, the fleet manager reminded all parties that the case was continuing despite the clear error in the claim. Once again, nobody responded.
And then it all went quiet. Had somebody seen sense? Had the claim been discontinued? On October 10th 2016, a letter from the courts was received, and scheduled a hearing for January 2017...in a court not 2 minutes away from the Fleet Management company.
On the 19th December 2016, a hearing fee was paid, so it looked like the fleet manager was going to have to prepare for a short trip to court, but decided to worry about it after Christmas, because just how much preparation would be needed to show two individual documents to a District Judge?
At some point over Christmas, the greatest living legal minds in Cheshire had something of a Eureka moment, because on December 31st, a Notice of Discontinuance was filed with the court.
The fleet manager is now a little disappointed at missing out on the opportunity to face the mighty Gladstones in court. Despite the regular court claims received by the company, to date, none have gone to a hearing. Gladstones seem happy to pursue individual people all the way, but seem very reluctant to face up to corporate entities in court room. How could they argue that a Ltd company was the driver, on the balance of probabilities? And how do they argue keeper liability when even POFA recognises that the Keeper and Registered Keeper are not necessarily one and the same?
Helpfully, a certain QC called Jonathan Kirk (you may have heard of him from Parking Eye v Beavis) very successfully argued that distinction in front of HHJ Burgess – Regina (House of Cars) -v- Derby Car and Van Contracts Limited [2012] but we’ve not had the opportunity to test this in front of a judge yet.
Maybe next time…
Prankster Note
Legal muppets William Hurley and John Davies continue on their misguided mission to bring the legal profession into disrepute.
Their firm Gladstones Solicitors had no fewer than 9 chances to recognise their utter dereliction of duty to their client, and failed each time. Their strategy of reducing costs by ignoring all communications from defendants is now well established, but fails all legal guidelines.
It must be said Gladstones were lucky that the defendant was a company. Had the defendant been a person then they may have had a rather large data protection claim against AS Parking.
As it is perhaps they may still look forward to a word from the Solicitors Regulatory Authority.
AS Parking...you've been Gladstoned!
The IPC
It has to be noted that Hurley and Davies strategy of non-communication is not only a characteristic of the Gladstones business, but is also the way they run the IPC and the IAS. The Prankster has seen a large number of complaints against both the IPC and IAS. Without fail they receive template replies which do not address the complain and dismiss the complaint without Hurley and Davies having to lift a finger apart from to press the print 'Fob off' button.
Not only that, but they deliberately make the complaints process as difficult as possible, requiring it to take place online and requiring a large amount of personal data seemingly unconnected to the complaint.
The Prankster calls on the government to remove ATA status from the IPC until they provide a proper complaints procedure which genuinely considers complaints.
Happy Parking
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