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Saturday, 17 May 2014

ParkingEye lose in court. Reason not known - defendant giggling at the time

3JD05392 ParkingEye v Mrs S (16/05/2014 Scarborough). DJ Neaves dismissed the claim as the claimant's representative had no right of audience.

Guest Blog, from Mrs S's lay representative (Mr S)
This was a second hearing. The first was adjourned because there was no time to hear the claim.

We arrived at court to find that there had been a previous hearing at 12.30pm, apparently to read the case. We were due in at 2pm.

In truth we were "bricking it", after all, Court is a bit of a lottery. We even forgot to bring a pen & paper, and note the LPC lady's name.

We walked into court and sat down. The judge confirmed our names, along with the smug LPC Lady, who had a lever arch file nearly a foot thick. Perhaps they are learning their lesson and bringing transcripts. I was quietly watching her flick through , noticing that she too had the redacted contract, so I thought "Here we go, I'll get her on that."

Before we even said a word, the judge asked the LPC lady in what capacity she was there. She looked a little confused and stated that she was there under instruction from her client. Apparently she can be there in one of two capacities, she obviously chose the wrong one!!

Cue fits of giggling and smirking from us because , thanks to Bargepole's previous court blogs, I knew what was coming.....

The judge then stated that this wasn't allowed under CPR regulations and therefore there was no evidence to be able to be presented and dismissed the claim. She then asked if she could be there in the other capacity. The Judge then said "you can't have two bites of the cherry and I have already dismissed the claim."

She then stated that her capacity has been allowed in other courts. "That maybe so, but not in my Court" said the Judge.

"Now as to costs" said the Judge, and this is the funny bit.....

"Has the defendant incurred any travel costs?" asked the Judge.

Because the case had been previously adjourned due to no time, we asked if we could claim costs for the two days.

The Judge said "yes" so we handed over two tickets, one for £2.80 and one for £5.00.

"This is ParkingEye's Car Park" said the Judge, "How ironic!"

The LPC lady then piped up and said "It wasn't my clients fault that the case had been adjourned, so why are you allowing this?" to which the Judge stated "It wasn't the defendants fault either, and because the claim has been dismissed, costs are allowed and they have been carried over from the previous adjournment so I am allowing it"

We then stated the defendants loss of earnings for the two days and got that as well. I ,as lay-rep was going to ask for my costs but thought better of it; after all the Judge had done us proud and I didn't want to push it, a win is a win.

"Here's your two tickets back" said the Judge, "I hope it wasn't a pay & display car park, otherwise I maybe seeing you again in the near future".

"Not bloody likely" I whispered to him as I took the tickets back.

Then we legged it and left them all to it.


Prankster Analysis

It seems the claim was dismissed because the LPC Law lady did not have the 'right of audience' - the right to speak to the court. Without that right there was nobody to speak on ParkingEye's behalf and therefore the claim was dismissed.

The right of audience is an important concept. Only certain people can speak at court, and this is a privilege maintained by the court so that in the case of wrong-doing, the court can find somebody to punish.

This is explained further in an excellent article by DJ Hill, who also sits at Scarborough.

It may be that DJ Neaves has found time to read DJ Hill's article and discuss it with him at some point in the past. The article suggests that if a person is not a qualified solicitor or barrister or not employed by a firm of solicitors then there is no right of audience.

The status of most LPC Law advocates is believed to be self-employed people with some form of legal qualification. However, they are not directly employed by LPC Law, but are simply paid an agreed fee to take on each case.

Unless they are therefore a solicitor or barrister in their own right, there is therefore not automatic right of audience.

In the small claims track, anyone can be a lay representative with rights of audience. However, the party they are representing must be present. As ParkingEye never send anyone to court, this criteria is not satisfied.

The Prankster admits he was informed of this before, but was sceptical. He tips his hat to the person who told him this - you know who you are.

How is this applicable?

If you have a hearing with ParkingEye in the near future, you should bring this matter to the court's attention. This is not a silver bullet; in a small claims hearing the Judge has ultimate discretion and can override the rules if they wish, and have good reason. However, if your court is near Scarborough, judges may well have a mind to follow the precedent set in this case.

To the court manager.

ParkingEye v Me, my case reference

ParkingEye have stated they will not be attending court, but will be sending a representative from LPC Law. In 3JD05392 ParkingEye v Mrs S (16/05/2014 Scarborough). DJ Neaves found that the LPC Law representative was not employed by LPC Law, but was a self-employed person paid a fee for attending the hearing. He found they did not have right of audience and the claim was dismissed.

I wish to raise this issue for the current case. The right of audience is an important concept discussed by DJ Hill in this article. http://www.lawgazette.co.uk/57199.article

Furthermore, by not sending a representative ParkingEye prevent myself and the court from questioning them.

Happy Parking

The Parking Prankster




15 comments:

  1. Can I detect a hint of intense dislike of Parking Eye on the County Court Circuits ?

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    1. They are not particularly liked on many of the circuits and particularly in East Anglia.

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  2. No last words from Hill Dickenson ? ;)

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  3. By writing early doors to the court, do we not run the risk of tipping off PE and LPC...who could then adjust their case/brief?

    I wonder if an alternative [albeit riskier] approach would be to wait until the actual day of the hearing before bringing this up??

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    Replies
    1. It would be best to keep it for the day of the court. It is a handy bit of ammunition to ambush PE with at the last minute.

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  4. Their right of audience is something I have questioned for as long time. I can'tr remember if I nodded this over to the Prankster but it's something I made a lot of noise about on PPP over the late summer 2013.

    There was already a case somewhere up in Cumbria where this had already happened and the case was thrown out.

    ALWAYS question the right of audience if there's no representative from PE who can be questioned, or the LPC person has no qualifications to answer questions on behalf of PE, as they most certainly don't

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    Replies
    1. I would agree whole heartedly. It could mean the difference between winning and losing.

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  5. In our case, the Judge repeatedly mentioned the fact that Jonathon Langham and John Briant (both of whom served "witness statements" were not in court on the day.

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  6. I was told this before my hearing, but was sceptical and never tried this approach for fear of appearing pedantic and annoying the judge. Shame

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  7. I've just noticed the final paragraph in DJ Hill's article,

    "………..it is now a criminal offence to carry on a reserved legal activity (including an activity in the form of the exercise of a right of audience); see sections 14 to 17 of the Legal Services Act 2007. No court can permit a criminal activity to take place before it."

    I wouldn't think any Judge would have discretion on this, they would have to kick LPC out. ParkingEye have deep pockets though and would probably spend whatever was necessary to persecute their victims.

    I imagine a case where The Prankster appearing for the motorist with Hill Dickinson for PE might be a little, erm, frosty. The following blog would be entertaining though.

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  8. I had a great debacle on this right of audience thingy on PPP.
    I even called LPC Law and got an email by response to my question on their rights of them representing myself in a case if I didn't want to go to court myself.
    It makes interesting reading and the topic could be re-opened for further comment following this latest case.

    A plan of action for future cases should perhaps be made now the facts are better understood. Maybe an inclusion to an Amicus Curiea thingy to alert the judge. Worth a go at least to see how it works. That way there will be no early warning to PE or LPC and even the defence wouldn't know of it either, until the case is heard.

    See: http://forums.pepipoo.com/lofiversion/index.php/t83422.html

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  9. This will only have limited effect as if it starts to stymie their business then LPC Law will just switch to a zero hours contract for their advocates. They will then theoretically be employees even if only used & paid on an "As & When" basis.

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  10. Not sure on that one Nigel
    LPC will not want to give the advocates 'employee' status [even on zero hours contracts]....
    Also why would LPC want to change their business model just for PE.....LPC probs have lots of other customers whose opponents don't ask about 'right of audience'.



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  11. Assuming this snowballs, wouldn't this cause the current PE court model to be un-economicable? I mean, they are surely losing money already with using LPC Law to enforce the tickets (which is a consolation, alebit not a huge one, to anyone that loses), and if they had to send a member of staff to every hearing, it would quickly become too expensive to take people to court.

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  12. Going through this whole escapade right now. Have yet to be set a small claims court date though. I know there is a wealth of information our there but with work and other commitments i would struggle to trawl through it all and find the parts that i should use. Looking for a bit of help from someone who has experience with PE and when they do push on to SCC. Any ideas where i could start?

    Thanks in advance!

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