The Parking Prankster and Lynnzer helped a defendant with preparations for a ParkingEye court case this week, but all credit must go to the Mrs Baddeley for her sterling efforts, putting in the work and research before the hearing, then performing extremely well on the day. ParkingEye tried their usual tricks, filing an inch of paperwork then another 2 inches of paperwork after the filing deadline, but this turned out to be more hindrance than help. Here is the account of the hearing, mostly in her own words.
The LPC Law solicitor was a Mr Johnston from Oxford. No dirty tricks, no extra evidence, very nice man. They didn't have anyone available in Birmingham. It was snowing when we went this morning and the poor chap had got soaked and had gone to dry off when I arrived. We met at about 11.40 and he asked if we could go and have a word somewhere quiet, as the waiting room was quite busy. We went in the corridor and he told me he only got the paperwork this morning and there was a mountain of it.
He hadn't had time to read most of it. I said that I'd not had time to read the second lot that PE sent (there were two big, big envelopes when I got home on Saturday night) - only had 2 days to deal with the first lot, which was quite substantial. I said we'd never get through all of it in an hour, so I was going to concentrate on my main two points - lack of authority to take action in their own name and not a genuine pre-estimate of loss. We agreed that we would discard everything after my defence and PE's reply to it and the evidence for those, as both these points were pretty well covered in the first submissions.
The judge was District Judge Bull and the hearing was at the Priory Courts in Bull Street (lol), Birmingham. After introductions he said he'd only got the bundle today and there was no way he could read all of it, as there was so much more than would be usual for such a small claim. Would we like to adjourn for a couple of weeks to allow him time to read it all? We said no and told him what we'd agreed, which he thought was very sensible.
First off he said he wasn't at all impressed with the way PE had just sent a pile of papers with no numbering or proper order to it, making it very difficult to find his way round it. He said he wouldn't expect me, a lay person, to know how to present a bundle, but PE do this all the time, so should know. I pointed out my very orderly file and papers all marked up with coloured post-its and told him my paperwork would have been like this if I'd been in the country, but I had to have it copied and delivered by someone else.
Mr Johnston went first, starting with authority to pursue in their own name, with evidence being John McCluskey's (of the managing agents for the site, Marriots) witness statement. Judge wasn't very interested in any other cases quoted as evidence. Pulled both of us up pretty quickly (but not in a nasty way) most times we mentioned other cases. Basically he said he was making the decision so there weren't any precedents. He questioned who this witness statement writer was. The statement said he was a 'partner'. Was he a partner in PE or Marriotts? I explained the relationship. He commented on the fact that nowhere was the landowner identified. He questioned if it should have been the landowner, if anyone, taking the action.
Next up, genuine pre-estimate of loss (GPEOL). DJ Bull was interested in whose loss we were talking about - PE's or the landowner's. Solicitor concentrated on PE's loss. Judge wanted to know how the £53 calculation was arrived at. He completely disregarded their "we have consulted Barrister Jonathan Kirk QC" and "he says it's fair and a genuine pre-estimate" ...etc., as there was no mention of the actual calculation and he was pretty adamant again that it was him who would decide if it was a GPEOL or a penalty. He had a thick law book that he referred to every now and again and read bits out of, so he did take note of some precedents that he himself found. I think he said the book was all contract law. He had a real go about PE not providing any evidence whatsoever that the charge was a GPEOL, so Mr Johnston moved on to 'commercial justification'. I got a bit worried here, as it sounded like Judge might be persuaded by this from the bits he read from the book. The solicitor then quoted (and DJ Bull seemed pretty interested in this) PE v Somerfield Stores, where Judge Heggarty said £75 was probably not a penalty, which turned out to be a gift for me when it was my turn, as I knew this case.
My go next. First I said I admitted that either me or my husband had overstayed and that the signage was clear, told him a bit about the shops available and explained why I didn't appeal or contact PE till claim made. Pointed out that when I or my husband used the car park, we didn't enter with the intention of overstaying - it was an oversight by him or me due to losing track of time, and whichever of us it was would be spending more money if we stayed longer, so it was actually advantageous to the shops and ultimately to the landowner.
I then objected to the witness statements, McCluskey's - no proof without seeing contract. They said they'd sent the witness statement from the landowner, but McCluskey wasn't the landowner. No contract to prove the statement, PE had used untrue witness statements before in these cases - he didn't want to hear about those or photocopied signatures, etc. I'd asked several times and they wouldn't disclose it. Showed the one from ParkingEye's standard contract (photocopy was very poor - tiny writing and blue didn't copy clearly) I'd written out clause 22 and read it out. He wasn't madly impressed, as it wasn't the actual contract with Newtown Shopping Centre. I laboured the point a bit - why hadn't they disclosed the contract? Because it didn't give authority, etc. Did the BPA bit - must have written authority. he didn't want to hear about the BPA at all. I objected to the Jonathan Langham witness statement, as it was riddled with inaccuracies, insinuations, etc. and read out just a few of the most salient points I'd noted, including that he said I'd pieced my defence together from defences distributed on online forums. Pointed out I'd done online research and written defence myself, thank you very much, and spent many hours doing it. How else could I find out any info when i'm not a law expert? Judge said my using internet was only to be expected and law profession use it all the time.
Went on to Pre-estimate. Used the money flow diagram to explain how PE got 'consideration' and landowner paid VAT. Showed POPLA appeals and said I'd got transcripts. Not interested at all! So presented my own calculations re, the claimed £53 per PC. Used 2011-2012 company accounts to show 31% of turnover is profit, but extended this to show that profit is actually 50% - they invest £9 million approx and make £4.5 million approx. If I put 9m in the bank and get back another 4.5m the interest rate would be 50%, so that's what their actual profit is. So think about it - is it 13%, 31% or 50%? Then did calculation for actual charge. 629,000 DVLA requests. I allowed generous 20% off for stolen vehicles and unregistered numbers, so 500,000. £13.5m divided by 500,000 = £27. Approx one third is profit, so £18. Costs of running the business accounts for most of this, which don't count, so actual average revenue from each PC is about £4-£5. Addressed PE v Somerfield Stores and explained what it was all about and PE refusing to increase free parking time, as Somerfield wanted, proved that they weren't looking after the interests of the landowner, but their own profits. He liked that, I think.
Break for lunch and come back at 2.15 for the judgement! That was unexpected. Kept us waiting about 20 mins. Judge started off by saying how impressed he was by my calm delivery, knowing what I was on about, etc. Went on to authority to pursue in own name. Said he discounted Langham witness statement, as it wasn't a 'Statement of Truth'. (I think it was supposed to be, but maybe he didn't see the "I believe it's true" bit on the last page. Or maybe he'd taken on board the inaccuracies etc. I'd pointed out - not sure). However, and this was a bit of a shock after what he'd said earlier, he said he had to accept John McCluskey's witness statement, as it was a Statement of Truth. i.e. he said it was true, so it must be true. What? So on that point he found for the claimant.
Well, you can imagine how I felt at this point. I thought OK, so he buttered me up with all that praise, just so I wouldn't feel so bad when he told me I'd lost.
However he went onto GPEOL and slaughtered PE for not providing any evidence whatsoever of loss to either them or the landowner, for not providing any calculation to justify their charges ("Mrs Defendant, on the other hand, had prepared,etc."), might be some 'commercial justification' by increasing customer turnover, but agreed with me that it was probably advantageous if people shopped for longer anyway. Pointed out that PE only make any money if people break the rules, so it's in their interests if people do. All in all, taking everything into consideration, he found for the defendant. I was very relieved!
He asked if I wanted to claim costs. I asked if I could and told him costs were only £21 for photocopying and postage. "OK £20 - lets call it expenses". Didn't want to see receipts or calculation, which was quite funny as I think the outcome hinged greatly on PEs lack of a calculation. lol
The Prankster makes the following comments
- ParkingEye's habit of trying to misdirect the court from the actual issues by using a blizzard of paperwork is obviously not impressing the courts. "there was no way he could read all of it, as there was so much more than would be usual for such a small claim"
- ParkingEye's blizzard is also not useful for their own contract lawyers, who get paid a fixed fee of around £200-£300 to turn up at the hearing. LPC Law do not charge travel costs to their clients so poor Mr Johnson had to travel from Oxford to Birmingham and back and get soaked all for nothing. As he only got the paperwork on the day there was no way he could properly prepare for the case.
- This therefore plays into your hands if you have to attend a hearing. Although you will be up against a trained advocate, you will hopefully know your case well and be able to demolish the key points of the claimant's case
- ParkingEye's attempt to discredit the defendant for using the internet was rubbished by the judge. In future all defendants can now quote from this case. 3JD03769 ParkingEye v Baddeley 11/01/2014. District Judge Bull stated that 'using the internet was only to be expected and the law profession use it all the time.'
- It is worrying that despite ParkingEye repeatedly providing landowner witness statements which make false claims, judges continue to accept these despite the witnesses never appear in court for questioning. ParkingEye only get away with this because this is the small claims court. They would be laughed out of a higher court, with the witness statement wedged up somewhere they would rather it was not
- The judge rightly discarded Jonathan Langham's witness statement. The Prankster has seen many of these and they contain large numbers of untrue statements, misleading statements, factual errors and unsubstantiated allegations
- ParkingEye's false claims that their costs are £53 per ticket issued were completely discredited by the defendant's careful analysis of their accounts, and validated by the judge. ParkingEye have made these fictitious claims in many of the court cases they won, which casts doubts on the reliability of the verdict. Knowingly submitting false evidence could well be the undoing of ParkingEye later on.
- It was probably a blessing in disguise for ParkingEye that their late evidence was not used. This contained so many false statements that their credibility would have been blown out of the water had the judge been inclined to adjourn the case to study it. This was a case where an extra 2 inches is not an advantage.
Lastly of course, well done to the defendant! Although ParkingEye do win regularly at court this case proves that with careful preparation and a judge prepared to hear both sides of a case the right verdict will be reached.
The Parking Prankster