The courtroom was full to overflowing for the hearing, with representatives from Parking Companies such as Park Direct and Euro Car parks; debt recovery companies such as Debt Recovery Plus, ATAs such as the Independent Parking Committee, and of course representatives from motoring organisations such as the BMPA, NMAG, NoToMob, pepipoo and MSE.
Adding to this were the legal teams. Barry Beavis was represented by Sa'ad Hossain QC and members of his chambers, ably assisted by Davis Carrod and Andy Foster. ParkingEye had Jonathan Kirk QC to represent them, with David Altaras and Rachel Ledson sitting behind to open folders and find the right pages. Alex Cooke and other employees of ParkingEye were also present. The Consumer Association had three representatives.
The three judges kicked off proceedings at 11, Lord Justice Moore-Bick took the centre seat with Lord Justice Patten on the left and Sir Timothy Lloyd on the right.
Mr Hossain was all over the legal arguments but struggled with the fundamentals of how parking actually works. Lord Justice Moore-Bick expressed the opinion that the problem could be solved simply be reinterpreting the signage so that the amount was a contractual charge rather than for breach of contract. This of course would have been a disaster for ParkingEye, leading to a huge backdateable VAT bill and a disaster for landowners, with a huge backdateable rates bill, but these points were not raised. However, Mr Hossain responded by saying he disagreed, because the disparity between the first two hours (free) and anything after that (£85) would tend to indicate it was a disguised penalty. [Prankster note; this has already been established in the CEL v McCafferty appeal]
Lord Justice Moore-Bick expressed the opinion that it would be chaos if ParkingEye were not able to enforce parking regulations, but nobody took the opportunity to point out that many other parking companies, with enforceable charges in the region of £20-£30, could have successfully managed that car park as they do many others all around the country.
Lord Justice Moore-Bick also fancied that he might like to reinterpret ParkingEye's contract with the landowner so that they were agent and not principal, but the contract was written in illegibly small blue on white writing, and could not be read.
Lord Justice Moore-Bick also fancied their might not be a contract with the motorist at all, but a licence to park. This was Andy Foster's argument in the previous hearing, but was dismissed by HHJ Moloney.
Lord Justice Moore-Bick expressed the opinion that it was in the interests of the landowner and retailers that a 2 hour limit be observed. No one took the trouble to point out that is was not proven that the landowner was happy with the arrangement. Many other landowners, such as Somerfield, B&Q and Northumbria Health Trust have kicked out ParkingEye because of their aggressive ticketing policies. Other landowners may want to kick out ParkingEye but are too scared because of the penalty clauses in their contract, such as the one ParkingEye enforced on Somerfield. Retailers at Riverside retail park are apparently unhappy with ParkingEye because ParkingEye decreased the parking time from 3 hours to 2 hours so they could keep up their enforcement revenue, and the retailers have not reported seeing any benefit from this cut in time.
Lord Justice Moore-Bick expressed the opinion that if ParkingEye were not allowed to manage the car park then disabled motorists would be seriously disadvantaged by able-bodied motorists pinching their spot. At this point The Prankster could take no more and scribbled stuff on his pad ready to make a paper aeroplane and throw it at Mr Hossain. Luckily Mr Carrod beat him to it, and as he was sat considerably closer was able to pass it to Mr Hossain, who was then able to inform the court that ParkingEye did not stop motorists abusing disabled spots. They were purely involved in traffic management which was dome by cameras at the entrance and exit, and which did not monitor disabled spots.
There then followed a long and detailed trail through the authorities on penalties. Sir Timothy Lloyd looked to be asleep, but of course this could not be correct as The Prankster was a long way back and Sir Timothy must just have been concentrating with his eyes closed.
At the lunch break The Prankster was worried that Mr Hossain has lost the judges and that they were more concerned with parking becoming unenforceable that the legal arguments. This could have been easily addressed in The Prankster's opinion.
After lunch Patrick Troy of the BPA rocked up. The courtroom was full so first he tried to sit in ParkingEye's seats, but was politely moved on as he was not involved with the case. The only other seat was by Will Hurley from the IPC, so with an uneasy look Mr Troy settled in beside his arch rival.
Mr Kirk did not appear to fare much better than Mr Hossain once the afternoon session started. The judges were not always convinced by Mr Kirk's interpretation of the key references. Crucially, they could not understand where ParkingEye's losses were. If the landowner managed the car park, the losses would be obvious. Similarly, if ParkingEye restructured the contract so that there were penalties to them for overstays, that would also work. But with the current contract (which had been reprinted on A4 at lunch time) no loss to ParkingEye could be identified.
In fact, ParkingEye profited from overstays. The only loss Mr Kirk could identify was if ParkingEye got sacked. Thus, ParkingEye's charge of £85 was valid because if they could not enforce it, they would get sacked and lose the right to charge £85. Thus their potential loss was £85. [Prankster note: the trouble with this circular argument is that £85 can be replaced by £x, where £x is any number, and the logic would still hold. The lowest £x The Prankster knows of where parking enforcement still works is £20]
The Judges did not seem too impressed by this argument and asked if there was any evidence at all that the landowner would cancel the contract.
At this point Mr Kirk accidentally called the charges penalties, which led to laughter all round and murmurs of 'own goal', and he then struggled to find any justification at all.
The judges eventually called a halt to proceedings without the Consumer Association being required to talk at all. Judgment was promised at an unspecified time in the future.
There was no real indication what the judges would decide, and The Prankster thought it could go either way. The defendant's team failed to address the issue that parking would descend into chaos, while the claimant's team failed to establish any loss had occurred.
It is possible that whatever the judgment is, it will not clear up the situation. Several options were mentioned during the hearing which could allow ParkingEye to change their business model in the future. On the other hand, the judgment may only turn out to be applicable to the very few free car parks where ParkingEye pay £1,000 a week to the landowner.
The Parking Prankster