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Thursday, 22 June 2017

Excel lose in Cardiff. Judge explains why Elliott v Loake and CPS v AJH films not relevant

Excel Parking Services Ltd v Mrs. Lynzi Evans
Judge: DJ McKay
Claim no: C8DP79CC  in the Cardiff Civil Justice Centre.
Legal representative of BW Legal: Mr Singh

Observer's court report

Mr Singh was asked to outline his case by the judge. Photographic evidence was presented by Mr Singh to show the vehicle parked in the Excel car park of SA1 Swansea showing an invalid pay & display ticket which had been purchased the previous evening. Mr Singh pointed out that the ticket had expired at 7:18pm on Saturday 21st January 2012. Photographs showed that the vehicle remained in position at 11:10 am the following day. Therefore, the car had outstayed its welcome and the car park operator was entitled to issue the PCN due to a breach of the T’s & C’s. Mr Singh said that there was a "reasonable assumption" that the keeper of the vehicle was also the driver at the time it was parked therefore, Excel were entitled to request information about the driver from the DVLA in order to issue a notice to keeper to recover their loss. He accepted that the incident pre-dated POFA by 9 months but he intended to rely on Elliott v. Loake and CPS v. AJH Films in order to demonstrate keeper liability.

The judge turned to the defendant but rather than questioning the defence he proceeded to talk Mr Singh through it instead. He noted the observations regarding Elliott v Loake and CPS v AJH Films and referred to the copies of the judgements of these cases which were included with the witness statement. He explained why they had no relevance to the claimant's case. He also referred to the Excel v Lamoreux judgement and the problem with establishing driver identity even when an incident was after the introduction of POFA. More importantly, he then moved on to the fact that as this claim was pre-POFA, keeper liability was not possible without any additional evidence to support it. Consequently, the claimant's case relied entirely on Elliott v Loake and CPS v AJH Films. At this point Mr Singh requested that the judge might adopt a "pragmatic approach" in allowing these cases to influence his judgment.

The judge then moved on to summarise as follows. Elliott v Loake was a different type of case entirely. It was a criminal case which meant that there was a legal obligation upon the keeper of the vehicle to give the name of the driver in criminal law. As this claim involved no criminal offence, then Elliott v Loake had no relevance to it. In the CPS v AJH Films case, the judge fully agreed with the Defendant's witness statement which correctly pointed out that this case involved employer/employee liability. As this claim was not a comparable situation, it also had no relevance to the claimant's case.

The judge noted that the defence witness statement was filed 12 weeks prior to the court date and clearly explained why these cases were of no relevance to this claim and then questioned Mr Singh on why the claimant was unable to provide any further evidence. Surely, the claimant should have withdrawn their claim once they realised that they couldn’t do this? The judge also added that the claimant had ample time to investigate and challenge the problems raised by the defence in relying upon these cases to prove keeper liability. Mr Singh was unable to provide an answer to this other than to state that he had only read through the paperwork the day before the hearing. Again, Mr Singh emphasised the importance of the judge adopting a pragmatic stance in accepting the two cases as proof of keeper liability.

The judge then went on to consider the relevance of POFA in relation to the claim. He read from the Ministry of Transport document (Guidance on Section 56 and Schedule 4 of the Protection of Freedoms Act 2012: Recovery of Unpaid Parking Charges) which had been included in the defence witness statement. He noted that the introduction of this act was meant to assist parking companies in the transfer of liability to the keeper but as this incident pre-dated POFA it didn’t apply to this case. The Lamoureux judgement also showed that even though a claim is made after the introduction of POFA, there can be no assumption in law that the keeper was the driver at the time of the incident.

The judge concluded that as the defence witness statement was so comprehensive and presented an overwhelming case; and as the claimant could offer no tangible evidence that Mrs Evans was the driver of the vehicle and because the incident was pre-POFA, she could not be held liable for the charge. This confirmed the importance of POFA in claims where keeper liability are being raised. For all these reasons, the claim was struck out. Mr Singh then requested leave to appeal but the judge refused this on the basis of the overwhelming evidence provided by the defence. This would leave the claimant with no successful prospect for any appeal. Costs were then awarded to the defendant to the value of £199.00 to be paid within 21 days.

Following a short break the judge then moved on to the counterclaim being brought by the defendant for a breach of the Data Protection Act. The judge didn’t feel that there had been a breach as he felt there was no misuse of personal data. He felt that this would only really apply in situations where personal information was passed to third parties with no material interest in the parking incident. Mr Singh was also quite emphatic that in the absence of any information from the keeper, the claimant had no other option than to continue to pursue her for the charge as no information regarding the identity of the driver had been presented. The judge didn’t seem to want to explore the counterclaim any further. The judge then proceeded to strike out the counterclaim of £250.00.

Prankster Note

Despite judges regularly throwing out claims based on Elliott v Loake, the IPC's so called "Independent" Appeals Service still have not taken this on board. The IAS is overseen by head barista Bryn Holloway. The Prankster questions Bryn's integrity and competence. The Prankster believes that no properly competent legal person would embarrass themselves by trying to argue that Elliot v Loake is case law which finds that the keeper is the driver.

The Prankster has seen many judgments from Bryn's posse of legal no-hopers and the Prankster's overall impression is that the IAS is institutionally biased against motorists and has a poor understanding of the law regarding parking. The Prankster questions Byrn's morals and judgement in allowing himself to be associated with such a shoddy, incompetent and biased operation.

Happy Parking

The Parking Prankster



Wednesday, 21 June 2017

NW Car Park golden duck in first court outing

NW Car Parks Ltd v Ms R. D3QZ93D2. Liverpool. DDJ Causton

This post on MSE reports a court loss by NW Car Parks.

NW Car Parks were represented by employee Lisa Mathew. Ms R represented herself.

MSE Observer report

The defendant and their family were celebrating a joyous occasion and had parked their vehicle in a dimly lit car park in the hours of darkness in Preston. A parking ticket was paid for and the family went off to enjoy their evening. On returning to the vehicle, the family were upset to find that a PCN was attached to the vehicle's windscreen. The ticket had been issued as the back wheel was slightly over the marking of the parking bay.

Subsequent correspondence from NW was ignored, as the defendant believed that, as they had purchased a parking ticket, they were not liable for the charge. The usual chain of letters came and went until NW issued a claim.

On receipt of the claim, the defendant chose to defend the claim and fully complied with the courts directions by preparing their signed and dated witness statements etc within the required time frame. Unfortunately NW chose not to provide a witness statement, merely sending the defendant an unsigned/undated document which was effectively a timeline of events.

The Judge asked Ms Mathew to explain why NW had not provided a witness statement, She replied by stating that this was NW's first court claim and that they did not know they needed to provide one! The Judge told Ms Mathew that NW had failed to comply with the directions. NW provided photos of the vehicle parked, yet provided photos of the signage in broad daylight. The defendant questioned this and quite rightly stated that the car park was poorly lit and signs were not easily readable.

Ms Mathew advised the Judge that the defendant had not engaged in NW's 'fair' appeal service. The Judge asked the defendant the reason for this. They advised him that they felt that, as they had paid to park, the pcn should not have been issued in the first place and that an appeal would be futile. After a short deliberation, the Judge dismissed the claim as NW had not complied with directions and that one wheel was only slightly over the bay marking.

The defendant was only awarded travel expenses of £5.50, They did ask about costs, but as they are self employed this was refused.

It must be noted that the defendant conducted themselves in a highly professional manner. I was most impressed by they way the defended the claim. I spoke to the defendant after the case and they told me that another family member had initially told them to pay the parking charge!

Congratulations to Ms R for a well deserved win and for seeing NW out for a 'golden duck'!

Prankster Note

NW Car Park would be well advised to pick their claims with a bit more due diligence, and to follow the court's directions.

Happy Parking

The Parking Prankster

Vehicle Control Services have no right to issue charges at Smyth street, Wakefield

VCS v Ms E at Sheffield. DJ Weir

This case was for a parking event at Smyth Street in Wakefield. This suffers from the same Excel/VCS cock up as Albert Street does - the signage is in the name of Excel parking, but VCS issue the parking charges. As any contract can only be between the motorist and Excel, VCS have no rights to issue or enforce charges.

The motorist was assisted by the BMPA in preparing paperwork and with guidance, but represented themselves in court. VCS instructed BW Legal who got Elms Legal to provide Mr Pickup as their representative.

Ms E court report

When I first went in I mentioned the rights of audience but Deputy Judge Weir (I think that was his name) dismissed this and said as this was the small claims court it did not apply there! I said I had been advised to raise this but he dismissed me again saying anyone can represent anyone and given that Mr Pickup was a barrister he was more than qualified so I didn't want to push my luck any further.

At my first opportunity I mentioned I was puzzled how my ticket and therefore contract was with Excel Parking yet the claim is with VCS and the witness statement was from BW Legal? The judge said he would come back to these points and asked Mr Pickup to ask me any questions he had. His focus was on why I hadn't mentioned they had offered to settle for £10 in my first appeal to them. I said that my letter to them was to point out they had not considered my second point being an apparent lack of adherence to POFA 2012. I commented to the judge that I found this puzzling. The Judge said we could come back to this later and I had made it clear in my witness statement to him anyway.

Mr Pickup also wanted to know why I failed to mention in my witness statement that I failed to disclose who the driver wa. He went on quite a bit about this but the judge jumped in and said that as I had acknowledged that I bought the ticket from Excel, I entered into the contract with them and as such he wanted to see the evidence of the contract between Excel and VCS.

Mr Pickup could not produce anything and tried to have it dismissed by questioning why I am only just mentioning this. The judge then pointed out that I had mentioned it earlier in my witness statement and went on to read it. He agreed a 10 minute adjournment to allow Mr Pickup to produce some evidence on this point. Mr Pickup was unable to produce anything the Judge was happy to use as evidence. He tried to argue that they are sister companies so are linked but the judge appeared understanding to the situation but wasn't being swayed on this.

The judge then dismissed the case on the grounds that the barrister, a Mr Pickup, "representing VCS" was unable to produce a contract to show that VCS can bring this case on behalf of Excel parking and link this to the permission from the landowner.

I then raise the question of my costs and produced them. VCS, or rather Mr Pickup had not seen them, so he looked at them as did the Judge but unfortunately the Judge would only consider actual costs for attending. I wasn't out of pocket from work and had paid £2 to park. He said I was entitled to claim £2 if I so wished. I said that would be quite ironic if I did given the circumstances which he found quite humorous and said irony was not lost in here!

I pushed again for him to consider my other "research costs" and all my wasted time in the defending the case. He praised the fact that while it was clear that the thorough research had indeed resulted in the case being dismissed he said he was unable to allow any other costs as he could only do this if the case was found to be malicious or ill founded (or a term similar to that) and as the case was dismissed he could not make a judgement or look further at the evidence to conclude this had been the case.

At the end te just advised Mr Pickup feedback to VCS that they need to make their terms and conditions clearer to reflect the Excel/VCS link not only on their paperwork but also in their signage. Also the quality of the photographic evidence and lack of contract they send to the court were poor.

The judge also advised me to always ensure I check terms and conditions in future.

It feels bittersweet just now, while it is great that it was dismissed I do think that VCS should have paid costs too. What does make me feel good is that I was up against an apparently "experienced" barrister (I have since seen his name mentioned, all related to parking cases) and he didn't win this case!

Prankster Note

Mr Pickup does indeed feature a lot in parking cases. As any reader of this blog or follower of his career will know, he specialises in trying to misdirect judges away from the legal issues, since these leave him in a hopeless position.

Instead, he tries to put motorists in  bad light by claiming they have failed to name the driver. Of course, it is his client's responsibility to do this, not the defendant.

The Prankster also considers that any real barrister would know the proper legal situation regarding contracts. It is first year legal 101 hat only the parties to a contract may sue on the contract. VCS are not a party to the contract between Excel and the motorist and so have no right to sue, sister company notwithstanding.

The Prankster therefore questions whether Mr Pickup has the right qualifications and knowledge for the job he is doing. Alternatively, if Mr Pickup is fully aware his clients have no case, The Prankster questions Mr Pickups morals in taking on these cases.

The Prankster also questions the judge for not awarding costs. VCS had zero hope of winning this claim as they were not a party to the contract between Excel and the motorist. The judge could therefore have awarded costs under the unreasonableness rule, 27.14(2)g.

Happy Parking

The Parking Prankster

No score draw in Brentford. P&PM claim adjourned to a cooler day

C3GF78FE – Parking & Property Management Ltd -v- Mr S, before District Judge Nicholson. 21/06/2017

Claimant represented by Mr Offord (Solicitor’s Agent). Defendant represented by Bargepole, via the BMPA.

This involved 2 x PCNs issued to the Defendant’s vehicle, while parked without displaying a permit in the numbered space designated in his Lease of the apartment. An interesting feature is that, as evidenced by a letter from the DVLA, P&PM had never applied to the DVLA for keeper details, so no-one is sure where they got them from.

There was also a Counterclaim in play, claiming £750 for DPA breach, £150 for trespass, and £95 for additional time spent defending which would not be recoverable as ordinary costs, so £995 in total. The Defendant had already filed this, before Bargepole was instructed in the case.

Defence

The main Defence arguments were that the lease established primacy of contract, and there was no evidence of a variation. As the Claimant had not obtained the RK details from the DVLA, they were unable to rely on keeper liability, and had no evidence of who the driver was (could have been Mr S or his wife). The contract with the Managing Agent did not authorise P&PM to litigate in their own name.

Counterclaim

That P&PM had no reasonable cause to obtain (by whatever means) or to process the RK’s data. That they had no authority to enter the parking space and put notices on the car, therefore trespass to land and property. That by unreasonably pursuing charges to which they were not entitled, they had caused distress to the Defendant, and financial loss in terms of time spent on this.

Unfortunately, DJ Nicholson decided that the allocated 2-hour slot was insufficient time to read the voluminous case authorities, and make rulings on what he described as ‘a number of complex legal arguments’. The case was therefore adjourned for a half day hearing at some future date.

A more cynical person than Bargepole might conclude that, on the hottest June day for 41 years, and with the Court’s air-conditioning system about as effective as a gnat farting on your hand, this was the strategic option.

Prankster Note

P&PM's greed, coupled with their poor understanding of parking related law, could lead them to losing £1500 or more on the claim.

Parking companies brought in to manage residential parking are not there to feather their nests by victimising the residents. Their presence is to deter unwanted parking, not to penalise residents whose lease gives them the unfettered right to park.

Will Hurley's lack of morals and leadership in failing to correctly advising his IPC customers of the situation in residential parking could yet lead to his undoing. Parking companies who have been badly advised by him have up to 6 years to bring a claim.

Happy Parking

The Parking Prankster

Tuesday, 20 June 2017

Excel application to reinstate case thrown out

Excel v Ms X C8DP57P6 26 May 2017, Stockport, DJ Ayres

Back in January Excel's claim against a motorist at the notorious Peel centre was struck out for failing to obey the judge's directions.

Excel thought they had complied so appealed the decision. The relisting hearing was held at Stockport on 26th May. The motorist represented themselves. Excel were represented by Mr Pickup. The Prankster assisted the motorist by suggesting a letter to write to the court to oppose the relisting.

In the hearing District Judge Ayres ordered the application dismissed and the motorist was awarded costs for their expenses of the day. They reported that the the letter did the trick.

DJ Ayres said that Excel would have to start all over again if they wished to pursue the matter.

After the hearing Mr Pickup said that if Excel do decide to restart the case, it would be several months before any decision is made. The Prankster, having seen the papers, has seen that excel were relying on Elliot v Loake. As the driver on the day was not known, and as Excel do not use keeper liability, The Prankster considers that any further money spent on this case would be a waste.

Prankster Notes

A ticket for the time parked was purchased and Excel have not contested that. Unfortunately the purchaser accidentally entered their own car's registration instead of the car which was parked.

Excel's attempt to charge for this accident is therefore a complete waste of time and energy for all parties. Their system is clearly flawed and designed to entrap motorists so they can maximise the number of parking charges issued. A proper system would only allow a registration to be entered if the ANPR system recognises that it in the car park.

Happy Parking

The Parking Prankster


Saturday, 17 June 2017

Charles Clowes takes over as IPC COO

Charles Clowes has moved from NCP to take over as COO of the IPC.

His linkedin profile suggests this happened this month.



Here is the press release on this matter:

The International Parking Community (IPC) has confirmed the appointment of Charles Clowes as its new Chief Operating Officer. Clowes joins the Accredited Trade Association from National Car Parks (NCP) where he was Head of Commercial and responsible for the development and implementation of new digital and customer service initiatives.
"This is an influential and significant role and our search for the right person has taken quite some time," says the IPC's Will Hurley. "However, our patience has been worthwhile and we're absolutely delighted to welcome Charles to the team. His first hand experience of designing and delivering new service initiatives in the parking industry and his expertise in digital engagement is absolutely in line with our aspirations for the continued growth of the IPC. His knowledge of collaborative service developments and progressive strategic partnerships will also be invaluable as we look to engage further with all stakeholders and other influential organisations"
"I am really looking forward to using my experience in parking management to create real benefits for the IPC and its members," adds Clowes. "Having recently been at the heart of NCP's Senior Leadership Team with responsibility for shaping governance and conduct, I am a passionate advocate of building close ties with the Government and other external organisations to help drive ever higher levels of professionalism in the industry."
The introduction of a new Chief Operating Officer will see Will Hurley moving to become Chief Executive of the IPC with John Davies stepping aside to resume his former role as Director of Gladstone's Solicitors. The changes aim to provide further clarity and focus for the organisation as it now looks to build on the success of the past 4 years and ensure it remains fully aligned with the evolving priorities of members as well as the expectations of service users.
This looks like part of the continuing attempts by Will Hurley and John Davis to play down the links between the IPC and Gladstones Solicitors, and pretend there is no conflict of interests between the two companies.

The Prankster confidently expects Charles will have little trouble driving "ever higher levels of professionalism". When you start from the bottom, it is hard not to improve.

Happy Parking

The Parking Prankster


IPC issue yet another code of practice

It appears the buffoons at the IPC are having trouble proofreading their code of practice. Version 6.1 has now been released, hot on the heels of Version 6 - or as it was known in the actual document, Version 5.

This version restores the requirement to check addresses before issuing a court claim.

Old
It is suggested the maximum parking charge should be: £100. Where there is a prospect of additional charges, reference should be made to this where appropriate on the signage and/or other documentation

New
Parking charges must not exceed £100 unless agreed in advance with the IPC. Where there is a prospect of additional charges, reference should be made to this where appropriate on the signage and/or other documentation.
Where a Parking Charge becomes overdue a reasonable sum may be added. This sum must not exceed £60 (inclusive of VAT where applicable) unless Court Proceedings have been initiated.
Before issuing court proceedings on any unpaid parking charge which is over 12 months old, the operator must first perform a suitable check of the defendant’s last known address.

Happy Parking

The Parking Prankster