Wright Hassall prove their incompetence to deal with parking issues

In a worrying move the British Parking Association recently appointed parking company debt collectors Wright Hassall as brand-POPLA agents to deal with stayed cases. Wright Hassall have for some time regularly made it obvious they do not understand parking related law. This current thread on pepipoo confirms they are still clueless and motorists are likely to get shafted during the upcoming appeals process.

The pepipoo case concerns a parking charge from Excel Parking, and as any fule kno, Excel Parking do not rely on keeper liability but pursue the keeper on the basis that they were the driver. Here is a typical Notice to Keeper from Excel (from stock data on the BMPA website, not the actual one in question). It is missing at least the statutory requirements specified in 9(2)(e) and 9(2)(f) of the Protection of Freedoms Act 2012, schedule 4.

In this case, the keeper was not the driver, and therefore directed Wright Hassall to drop the charge.

Wright Hassall replied as follows

You have confirmed that you were not the driver at the time of the contravention. However, Paragraph 9(2)(b) of schedule 4 of the Protection of Freedoms Act 2012, states for parking events in England & Wales that the operator must inform the registered keeper that the driver of the motor vehicle is required to pay the parking charge in full. It also notes that, as the operator does not know the driver’s name or current postal address, the registered keeper, if they were not the driver at the time, should inform the operator of the name and current postal address of the driver and pass the notice to them.

The Act also warns that if, after 29 days, the parking charge has not been paid in full and the operator does not know both the name and current address of the driver, they have the right to recover any unpaid part of the parking charge from the registered keeper. This warning is given under Paragraph 9(2)(f) of Schedule 4 of the Protection of Freedoms Act 2012 and is subject to the operator complying with the applicable conditions under Schedule 4 of that Act.

Further if you have previously confirmed the details of the driver and they have not made payment or denied responsibility, Schedule 4 of the Protection of Freedoms Act 2012 states liability remains with the registered keeper.

In The Prankster's opinion, it would be difficult to find somebody with a poorer understanding of parking related law than the Independent Appeals Service, but Wright Hassall seem to have scraped that barrel.

To dissect their incompetence, Wright Hassall have started out by misquoting 9(2)(b), which states nothing of the sort. They refer to registered keeper, while the Act refers to keeper. The two are not necessarily the same, as the Act makes clear in 2(1). They then misquote 9(2)(e), somehow turning an obligation of the operator into an obligation of the keeper. Along the way, they once again mangle keeper into registered keeper, and state that a current postal address of the driver is required. This is wrong - the Act defines the requirements to also allow 'an address at which the driver can conveniently be contacted'. Next, 9(2)(f) is similarly reversed, magically changing from a operator obligation into driver obligation.

The choice of paragraphs is exceptionally ironic, as Excel Parking miss out both 9(2)(e) and (f) in their notices.

In short, Wright Hassall totally fail to acknowledge that Excel's notice to keeper is not compliant with keeper liability.

Finally, Wright Hassall dive into the realms of fantasy, stating the keeper remains liable if the driver has not made payment or denied responsibility. Nowhere in the Act is this stated; the keeper can provide the name and address of the driver any time up until the beginning of proceedings. Once they have done this, their liability ends, regardless of whether the driver pays.

Presumably Wright Hassall meant to say the keeper is liable if the driver denies responsibility, rather than has not denied responsibility, but regardless, they are wrong. Whether or not the driver denies responsibility**, the keeper has fulfilled their obligations and are no longer liable.

Flabbergasted

The Prankster is frankly, flabbergasted.

Still Flabbergasted

The Prankster is still flabbergasted. These are the people that the British Parking Association have selected to represent brand-POPLA, and they fail the basics of parking law. The Prankster considers that knowledge of the Protection of Freedoms Act 2012, schedule 4 is a mandatory requirement for that role.

However, Wright Hassall's incompetence does not end there. They state their letter before claim complies with annex A and B of the pre-action protocol without realising these ceased to exist almost a year ago, in April 2015. A solicitor firm filing claims who do not keep themselves current with the pre-action protocol hardly inspire confidence.

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

Next, they misapply Fairlie v Fenton

Any person who makes a contract in his own name without disclosing the existence of a principal, or who, through disclosing the fact that he is acting as an agent on behalf of a principal, renders himself personally liable on the contract, is entitled to enforce it against the other contracting party. It therefore follows that a lawful contract between the car park operator and the motorist will be enforceable by the car park operator as a party to that contract. This is supported by case law of Fairlie v Fenton (1870 LR 5 Exch 169). 

The Prankster agrees with Fairlie v Fenton, but the crucial part is 'renders himself personally liable'. Essentially this means the operator can sue the motorist if the motorist can sue the operator. In practice, this rarely is the case. The benefit to the motorist is the provision of a parking space, but if that goes wrong, the operator is quick to absolve themselves of responsibility. If the parking surface has a pothole and a vehicle suffers damage, or if the car park surface is covered in ice and the driver slips getting out of the car, then typically it will be the landowner the motorist sues, not the operator of a pair of cameras.

Additionally, if the motorist is driving a hire car and wrongly gets issued a ticket, they often find themselves the recipient of a £50 administration charge from the hire company even though the parking charge is cancelled. In such circumstances the parking operator is quick to deny of responsibility stating it is not their fault and they are acting as agents of the landowner.

Clearly then, in the majority of cases Fairlie v Fenton acts to the benefit of the motorist, not the detriment.

Along the way, Wright Hassall also misquote the IAS appeal procedures, stating that if a motorist appeals within 21 days they must pay a fee of £15 and the result is binding on them. This is not correct, and those conditions only apply to appeals made after 21 days.

They also make this blanket statement:

the car parks under management by ZZPS’s Clients have clear terms and conditions for parking

As the car park in question is the Peel Centre, one of the worst signed car parks in the country and one which forms a sizable part of The Prankster's mailbag, nothing could be further from the truth.

Here is a map showing just how bad signage coverage is in part of the Peel Centre. Only the bays in green have a reasonable chance of noticing signage. Bays in red have almost no chance. Of particular concern is the dearth of signage by disabled bays. The Prankster considers Excels disrespect for disabled drivers in this car park as wicked.

So there you have it. The British Parking Association have appointed parking company debt collectors to deal with motorist appeals, who clearly are incompetent and not qualified to do the job. 

What now?

Happy Parking

The Parking Prankster

**If the nominated driver denies they were the driver, this is a different matter. The Parking company could in theory pursue the keeper, who would then need to prove on the balance of probabilities they correctly named the driver. The Prankster has seen this situation a few times, mainly between ex-husband and wife.

Gladstones Solicitors score triple whammy

Newcastle County Court, B3GF344V Park With Ease Ltd -v- Mr D

Trebles all round for Gladstones Solicitors as they managed to convince yet another hapless parking company to use their services. With Gladstones scoring fees for the legal profession for filing the claim and preparing the witness statement, not to mention the legal representative used in court, the parking company will have shelled out 3 times to various legal firms for the pleasure of being trounced.

The matter concerned a parking charge initially for £25 invoiced by Park With Ease. This case will have cost an estimated amount of £300 in legal fees alone. As this is not reclaimable in the Small Claims track, the Gladstones sales team are presumably experts in their field to convince parking companies it is worthwhile to fork out 12 times the initial charge. Gladstones are fast become the joke of the parking industry with a series of high profile losses in court, and no reported wins against any defence, let alone a substantive one, so the sales force are no doubt experts in the persuasive arts.

The motorist had paid the correct parking charge, but his wife had entered the registration incorrectly. Park With Ease's own evidence showed the machines were unreliable and had 3 false payments with no matching registration numbers around the time of the parking event.

The defendant also pointed out that TripAdvisor and other web forums showed a number of other motorists being scammed in the same manner.

The Park With Ease representative quibbled about the defence witness statement, trying to insinuate there was an anomaly and that the motorist had not really paid.

The judge spent some time asking detailed questions about the technicalities of the number-plate recognition system & the payment machine. (Prankster note - most likely the Park With Ease representative would not be able to answer these questions correctly, as they were a hire-by-the-hour lawyer bussed in for the day)

The judge ruled that the case hinged on whether the motorist had paid or not, and that the burden of proof lay with Park With Ease to show that the motorist hadn't. As he felt they hadn't been able to show that without any doubt the claim was dismissed.

Another well deserved win for Gladstones Solicitors sales team as they trouser bucket-loads of cash from the ill-advised parking company, and of course a well deserved win for the motorist in getting the claim dismissed.

Prankster Note

It is perfectly possible to install parking machines that work properly and only accept valid registration numbers. Park With Ease would be well advised to use this type of machine rather than waste their money persecuting motorists because their own system is flawed.

At some point no doubt parking companies will wake up and smell the coffee and realise that Gladstones are taking them for a ride.

Happy Parking

The Parking Prankster

Landowner warning - do you want Devere to operate your car park?

The Prankster received a worrying report about Devere Parking Services Limited, who held a motorist's employers to ransom to attempt to enforce a parking charge.

In The Prankster's opinion Devere do not provide genuine car park management, and instead use aggressive parking enforcement to generate income for themselves without providing a proper service. A typical Devere operation is to 'manage' a business car park by issuing permits to permitted workers. Sadly however, Devere make their money not from unauthorised motorists abusing the car park, but from genuine users. Typically these genuine users will be penalised with huge charges for trivial matters such as permits falling of the windscreen.

This is of course not proper management. A genuine parking company would on investigation and confirmation the motorist had permission to park, cancel the charge. The parking company incurs no substantial cost in doing this, and no abuse of the car park has taken place.

Today the government stated their commitment to stamping out aggressive enforcement of this type.

We will [...] help tackle aggressive parking enforcement and excessive parking charges, and take steps to tackle rogue and unfair practices by private parking operators

However, in one particular car park, Devere have gone a step further. The Prankster was informed that a motorist received a parking charge because their permit blew off the dashboard in the wind. The motorist appealed, which was declined. The motorist then appealed to the IAS. This body has all the characteristics of a kangaroo court, so it is no surprise the IAS 'Barista' also declined the appeal.

Although Devere are quite happy to charge the motorist in this manner, they fail to provide proper management of the car park. Twice this month the motorist has been unable to park in their allocated bay and has been forced to pay for parking elsewhere. Devere's operation therefore appears to be based on making money for Devere without providing a proper service to legitimate car park users. It is no comfort to a motorist if the person in their parking space had to pay £100 to Devere. The service therefore appears to be worthless.

Following the IAS appeal the motorist was advised they had to pay by 20/2/2016. However, this was not quick enough for Devere, who held the motorist's employers to ransom by refusing to issue replacement permits until the motorist has paid the charge.

If you are a landowner considering using Devere, then you might want to consider whether you appreciate your tenants being held to ransom in this manner, and whether it is worth using a parking company who do not appear to be able to control a car park to keep out unwanted vehicles but are happy to victimise genuine users with aggressive enforcement..

Happy Parking

The Parking Prankster

Government re-iterate commitment to stamp out dodgy parking charges

The DCLG today issued their "Single departmental plan: 2015 to 2020", available at this link.

In it, they re-iterated their commitment to stamp out dodgy parking practices by rogue operators.

We will [...] help tackle aggressive parking enforcement and excessive parking charges, and take steps to tackle rogue and unfair practices by private parking operators

Since the ParkingEye v Beavis case the Prankster's postbag has been overflowing with complaints about parking operators, who seem to feel it is open season on motorists. All kinds of dodgy practices are emerging from the woodwork.

The Prankster therefore welcomes the announcement and looks forward to learning about the details.

Happy Parking

The Parking Prankster

Picture of the week. Filing claims is lucrative business

The claims business appears to be turning out well for Gladstones Solicitors, who file claims and prepare witness statements on behalf of parking companies. Gladstones keep costs down by doing no due diligence and filing whatever their customers give them. This does cause a little embarrassment at times, but overall seems to be a winning strategy for keeping the money rolling in.

Well done Gladstones and we look forward to seeing the shiny new offices.

Happy Parking

The Parking Prankster

Excel Parking charge £40 to appeal

Excel Parking are in some cases charging a non-refundable £40 to appeal their parking charges. This is broken down as £25 to Excel, and £15 to the Independent Appeals Service. The full parking charge of £100 also needs to be placed in an escrow account so that once the IAS go through the formalities, Excel can take your money without any hassle.

Notwithstanding the obvious absurdity of paying a non-refundable £40 to appeal £100, the letter raises serious questions about Excel's ethics in this situation, insinuating that the Consumer Ombudsman are not accredited to deal with matters arising over parking charge notices and can only deal with communications, energy, property and copyright licencing. The Consumer Ombudsman is a brand name of Ombudsman Services. The Chartered Trading Standards Institute lists them as an approved ADR body here http://www.tradingstandards.uk/advice/ADRApprovedBodies.cfm

Ombudsman Services is approved by CTSI to provide approved ADR procedures across a wide range of consumer sectors including retail, motor, home improvements, copyright and trade schemes. Also see below under other Competent Authority approvals.

A spokesperson from Ombudsman Services provided the following information to The Prankster

Ombudsman Services (OS) has a number of brands including OS: Energy, OS: Property, OS: Communications, and OS: Consumer Ombudsman and each brand deals with a different type of complaint.  So if a consumer wants to complain about their energy supplier, they can take the complaint to OS: Energy, or if they want to complain about their broadband supplier they can take the complaint to OS: Communications.

Where a motorist wants to appeal their parking charge (from a BPA member), they need to use POPLA which is administered by Ombudsman Services, but is not an Ombudsman scheme.

OS: Consumer Ombudsman
When the new ADR regulations came into effect, it became compulsory for businesses to signpost complainants to a certified ADR body.  Many businesses were already part of ombudsman schemes because government or trade bodies had mandated it (eg. banks using The Financial Ombudsman, Solicitors using The Legal Ombudsman, Energy Companies using OS: Energy etc.) but that did leave many businesses in a position where they hadn’t previously had any requirement to use an ombudsman scheme. In some instances, there weren’t ombudsman schemes established that could take complaints from various business types.  When the ADR directive came about, numerous additional ombudsman and ADR schemes were created to give the consumer somewhere to turn, and give retailers/businesses a certified ADR provider they could signpost to. One scheme created and certified was OS: Consumer Ombudsman.
 

The new ADR regulations referred to are the Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations. Regulation 19 requires all companies to inform consumers of a qualified ADR Entity to deal with a dispute once the internal handling has ended.

The British Parking Association use Brand POPLA* to deal with their member's disputes once internal handling finishes, but as POPLA is not a qualified ADR entity, then BPA parking companies are still required to list at least one which is. However, and this is where things may get confusing, although they are required to list an ADR Entity which is competent to deal with the dispute, they are not compelled to actually use that entity.

Recommending the rival IAS would probably stick in the throat, and so Ombudsman Services are recommended instead.

Here are the relevant notes from the BPA minutes of 16/6/2015 regarding the issue:

Here is an example from BPA member CARE Parking rejecting a motorist's appeal.

The Prankster contacted Ombudsman Services to check that the message given by the BPA was correct.

I blog about parking related matters as The Parking Prankster, and as such I have a large number of motorists emailing me each day for help.

I understand Ombudsman Services run the POPLA service now, which is not an ADR Entitry, but it seems as if you may run a parking related ADR Entity service as well. In the recent newsletter the BPA sent out to their members they advised as follows:

In order to comply with the EU ADR Directive, the following wording should be used on all appeal rejection letters from the 1^st October 2015: ‘You have now reached the end of our internal appeals procedure. [Insert standard operator text to appeal to POPLA, including 28 day time limit for doing so, the POPLA verification code and the POPLA website address]By law we are also required to inform you that Ombudsman Services (www.ombudsman-services.org/) provides an alternative dispute resolution service that would be competent to deal with your appeal.  However, we have not chosen to participate in their alternative dispute resolution service.  As such should you wish to appeal then you must do so to POPLA, as explained above.’

If motorists cannot use POPLA (eg if they are in Scotland) I would like to advise them to use your other ADR service instead. My feeling is that it is always better to try and resolve disputes rather than using the court system. However I cannot find details on your website on the link provided by the BPA. Please can you confirm that you do run an ADR Entity competent to deal with parking matters, and if so provide me with full details and the correct link to use to which I can refer motorists to.

The Prankster received a detailed reply which stated the matter would be handled under the Consumer Ombudsman brand, which is essentially an 'ADR Entity of last resort', handling consumer disputes not covered by other mandatory provisions. This would be better handled using this web link, rather than the one given by the BPA.
http://www.consumer-ombudsman.org/

However, although Ombudsman Services could deal with parking related matters, it would require the co-operation of the parking company. The process would also operate in a different way to POPLA. Even though Ombudsman Services do currently administer POPLA, this is under a different scheme which is not ADR Entity approved.

Excel are therefore totally incorrect in their reply

Court Procedure

The practice directions for pre-action conduct make it clear it would be unwise simply to ignore Excel's offer of ADR.

14.  The court may decide that there has been a failure of compliance when a party has
(c) unreasonably refused to use a form of ADR, or failed to respond at all to an invitation to do so.

15. Where there has been non-compliance with a pre-action protocol or this Practice Direction, the court may order that
(c) sanctions are to be applied.

16. The court will consider the effect of any non-compliance when deciding whether to impose any sanctions which may include—
(a) an order that the party at fault pays the costs of the proceedings, or part of the costs of the other party or parties;
(b) an order that the party at fault pay those costs on an indemnity basis;
(c) if the party at fault is a claimant who has been awarded a sum of money, an order depriving that party of interest on that sum for a specified period, and/or awarding interest at a lower rate than would otherwise have been awarded;
(d) if the party at fault is a defendant, and the claimant has been awarded a sum of money, an order awarding interest on that sum for a specified period at a higher rate, (not exceeding 10% above base rate), than the rate which would otherwise have been awarded.

Awarding costs on an indemnity basis removed the protection of the small claims track costs limitation, and therefore should be avoided.

However, using the IAS is not a sensible option. The Prankster has already exposed the IAS as having all the characteristics of a kangaroo court. Even parking companies agree on this.

The motorist might as well burn £40 and send £100 to Excel as use the IAS. The motorist should therefore reply robustly to Excel.


Dear Excel,  

Your information is incorrect and I can confirm the Consumer Ombudsman is qualified to assist with our dispute. You can confirm this by contacting them at Ombudsman Services, The Brew House, Wilderspool Park, Greenall's Avenue, Warrington, WA4 6HL.

Additionally, The Consumer Ombudsman is free to consumers. 

Please therefore indicate whether you are now willing to use their services to attempt to resolve our dispute. I remind you that failing to respond at all to an offer to use ADR is against pre-court protocol and if this matter proceeds to court I will ask the court to award my full costs on an indemnity basis regardless of the result of any hearing.

I robustly reject your offer to use the IAS for several reasons. Firstly, it is not reasonable to expect me to pay a non-refundable total of £40 for a dispute over £100. Secondly, and most importantly, the IAS has been exposed as having serious flaws and so it does not make sense to agree to a binding judgment by an organisation whose findings are regularly overturned in the courts. Additionally, although the IAS currently has ADR Entity status, this is under review by the CTSI because the IAS does not meet the statutory requirements. I understand the IAS has a limited time to improve, and after that ADR Entity status is lost.

The major failings of the IAS are as follows, together with a reference to the statutory requirements defined in the Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations

• Failure to name the assessors (5c)
• Failure to allow the consumer to respond to all evidence (7b)
• Failure to provide competent and/or unbiased assessors (3a, 3c)
• Failure to handle conflict of interest with Gladstones Solicitors (4c)
• Failure to deal with all disputes (13)

These are all well-documented and I can provide more details if you require.

Additionally, in this case I consider that the £40 cost of appeal fails 6(b)(ii) 

I would be prepared to consider using the IAS once it meets all these statutory requirements. If this is acceptable then I suggest we defer the matter for now and that you contact me again once the CTSI has re-verified the IAS.

Alternatively I would consider using the IAS now under the following conditions

1) The service is free to me

2) The results are not binding on me, and that you agree to indemnify me against all costs arising from any disagreement I have with the result

If this is agreeable I will draw up a draft contract which you can sign and return togeether with a non-refundable cheque for £15 which I will use to appeal to the IAS.

Yours faithfully,

A Motorist.

Happy Parking

The Parking Prankster

*POPLA is a brand, which means that different organisations can deal with POPLA appeals. Some appeals will be deal with by Ombudsman Services, and some by parking company debt collectors.

Civil Enforcement Limited carry out more revenge claims

Civil Enforcement Limited have been found to file even more claims against motorists in places where their contracts have been terminated.

This report in the Ipswitch Star tells the story of 10 workers at the B&M store in Copdock Ipswitch who were issued tickets incorrectly by CEL in May 2013. The workers were informed by the store that as workers they had permission to park. However, now CEL have had their contract cancelled they have resurrected the tickets and taken the workers to court.

This is not an isolated incident. The Prankster previously blogged about the case where CEL filed claims once their contract at a hotel was cancelled. Before that, The Prankster blogged about other cases, such as retail stores and train stations.


Prankster Note

Any landowner thinking of making a contract with Civil Enforcement or Creative Car Parks should think long and hard before putting pen to paper. CEL have already filed revenge claims against hundreds of motorists. This pattern cannot be accidental so you use them at your peril.

If you think parking companies should not file revenge claims once their contracts are cancelledconsider signing Barry Beavis's petition asking for regulation of the industry.

Happy Parking