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Monday, 9 May 2016

Bargepole spanks UKPC in court - no contract exists in a trespass case

Case B6QZ4H3R, before Deputy District Judge Ellington, UKPC v Mr M.

The claimant’s documents had been served by SCS Solicitors, and they were represented by Miss Nottage of LPC Law. Bargepole was called in as Lay Rep although did not prepare the Defendant’s bundle, which was done by Salmosalaris.

The case was listed for 10am, but it was 12:05 before they were called into court. It soon became apparent that neither the Judge, nor Miss Nottage, had much if any previous experience of parking cases, so it was a Janet and John first steps education exercise.

The defendant’s car had been issued with two windscreen parking charges, when parking without a permit outside a housing complex (staff accommodation) within the grounds of Colchester hospital.

The claimant’s case was that they were authorized by Swan Housing to enforce parking, that their sign saying ‘No Unauthorised Parking’ created a contract with the driver, and that their NTK was POFA-compliant and therefore the keeper was liable. They hadn’t produced a copy of a contract between UKPC and Swan Housing, and their rep tried to show it to the Judge on her laptop. Bargepole  objected to that, and the Judge agreed, stating they should have filed and served it 14 days before trial.

Bargepole's arguments were that there was no evidence of a chain of authority from the landowner (the NHS Trust) to UKPC, so no standing; that even if they did have standing, their signage was forbidding and did not make a contractual offer to motorists not displaying a permit; and thirdly that their NTK did not comply with s8 of Schedule 4 of POFA 2012, as it specified no period of parking, and didn’t properly identify the creditor.

These arguments went on until 1:25, when the Judge sent everyone out so she could have some lunch, and consider her judgment.

The judge called the parties back in at 2:15, and she gave Judgment. She said that the evidence of the relationship between the landowner, Swan Housing, and UKPC was inconclusive; however that didn’t matter because the signage displayed clearly only made an offer of parking to permit holders, and therefore only permit holders could be bound by the contractual terms conveyed. The circumstances of this were different from Beavis, and therefore that ruling did not assist the claimant in this case.

Any remedy for parking without a permit could only lie with the freeholder, under a tort of trespass. But that wasn’t being claimed here, and as the present claimant has no cause of action, the claim is dismissed.

Mr M was awarded £95 costs for taking time off work to attend, payable within 14 days.

Prankster Note

Parking companies claim the ParkingEye v Beavis case is a magic silver bullet, justifying all parking charges. However this is clearly not the case; the Beavis case was only concerned with the level of charge, and there are many reasons why a charge may not be valid as well as the level of charge. In this particular claim the landowner could have sued for trespass, as per Ransome Park v Anderson, but the parking company had no right to do this.

Happy Parking

The Parking Prankster

51 comments:

  1. Just to be clear this individual wasn't a permit holder, and so wasn't authorised to park on site, but did anyway?

    Why is this being reported as if it is a good thing - surely these are the exact scenarios which actually should be enforceable in the courts!

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    1. It might have been if the landowner (as apposed to the PPC) had taken the motorist to court:-

      "In this particular claim the landowner could have sued for trespass, as per Ransome Park v Anderson, but the parking company had no right to do this."

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    2. Except that damages in tort would be entirely inadequate and an injunction is often impractical and, being a discretionary remedy, sometimes not granted! Should we expect landowners to have to sue for injunctions on a weekly basis?

      I am not sure that 'Mr M' merited the assistance he received.

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    3. Nobody is condoning abuse of landowners' rights, but the point is that the 'punishment' is disproportionate to the 'crime'.

      UKPC were after 2 x £100 parking charges, plus £60 ;legal costs', plus solicitors fees, plus interest, totalling some £405.

      The NHS Trust published parking policy for that location, which we exhibited as part of the defence pack, stipulates a charge of £25 for parking without permit, reduced to £10 if paid in 14 days.

      So UKPC had no cause to make their £100+ charges, as agreed by the Judge.

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    4. Except that thanks to you the Defendant has ended up with no 'punishment' at all.

      And what about permit holder land where there is no existing policy, where this blog has now suggested you can park with impunity?

      The charge may be disproportionate with reference to an apparent pre-existing policy, but IMO the argument that the punishment is disproportionate cannot work when it is not disproportionate at a retail park.

      Parking for more than two hours at a retail park is no more 'authorised' than parking without a permit, and any distinction drawn between the two is artificial.

      If anything I'd suggest that a £100 charge would be more justified in the latter scenario. I fear that for many of you this is not so much about doing 'the right thing' anymore, but about sticking it to parking companies regardless of whether, actually, the motorist has abused someone's land.

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    5. There are many ways parking could have legitimately been enforced on this site. The hospital chose not to use one of these. As to the actual details of whether the landowner was or was not abused, the case notes handed to me are silent - this case was fought on legal grounds. However, it is worth noting that "landowner rights" is something of red herring raised by parking companies. In the Beavis case, for instance, ParkingEye were instructed to cancel by the landowner, but did not. The same happened recently in a Link Parking case. The end result of that was, the landowner cancelled Link's contract.

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    6. The blog itself says the landowner would have had a valid claim in trespass, so I'm not sure how you can backtrack now by arguing that the landowner's rights weren't being abused? They only want permit holders parking on site, and he's not a permit holder.

      The point I am making, which appears to be being skirted, is that this defendant does not appear to have been worthy of any assistance, and publicizing a result like this is simply going to encourage more like him.

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    7. I understand your point. The point I am making is that the car park could have been managed in a responsible way to avoid all this, but was not. There was no need ever for the parking company to take court action, and there was no evidence that the landowner's rights were abused - while the landowner COULD have sued for trespass, there is no evidence they would have won. Incidentally, there is nothing to stop them starting a case now against the motorist if they wish.

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    8. Yes, but as I've indicated above, the remedies in trespass are either inappropriate or impractical for the vast majority of cases.

      No evidence that the landowner's rights were being abused? The landowner doesn't want non-permit holders on site. The defendant can't have been a permit holder because otherwise, in the court's own judgment, the contractual offer would have been open to him.

      From a non-legal perspective, what is irresponsible about the way the paring in this case has been managed, on the facts. Landowner decides they don't want non-permit holders on site. Non-permit holder parks on site. Non-permit holder receives ticket(s). Seems perfectly responsible form of management to me?

      What seems irresponsible is the next part. Non-permit holder ignores ticket(s). Non-permit holder gets off scot free to go and do it all over again.

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    9. So they need to find a more effective method of managing their land, as clearly a Judge thinks a PPC model is inadequate. Perhaps the landowner should sue the PPC for failure to deliver on their contract to 'manage' their land for them. If you pay for a service that doesn't (and has been judged cannot) deliver, you have the right to sue - oh, wait, is it 'pay' that's the problem here?

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    10. We are not talking about whether the model is inadequate as a point of law (although I accept this judge seems to think so), we are talking about where the merit is to be found in:

      (1) Assisting this particular defendant; and
      (2) Letting like-minded individuals know what they might be able to get away with parking where they know they shouldn't.

      Prankster et al. make a big show about how they don't condone abuse of landowner rights, and how it's about finding a balance, so why then do we have a case of actively assisting a trespasser and then publicizing the result? What possible benefit to the balance between landowner and motorist rights can this have?

      As for your second point, very few services are 100% effective, but if it's having some effect maybe the landowner appreciates that fact? Personally I don't park where I see signs telling me not to, but I am aware others have a different sense of entitlement.

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    11. And you think it right that a private company should PROFIT by imposing penalties on land in which they have no proprietary interest?

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    12. Morally, I have no issue with a private company profiting where they have the landowners consent to charge people who park on their land when they shouldn't do.

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    13. Then on that point we are morally poles apart.

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    14. Clearly.

      You seem to think it's ok to trespass, get away with it and then tell other people how they might be able to do the same.

      I think that a company profiting from a small minority of offenders while discouraging a number more is a reasonable solution to said issue.

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    15. There is already a remedy in law for trespass.

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    16. Are you the 'Mick' from excel parking?

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    17. Yes, an injunction - because clearly it's practical for the only way to stop a landowner at a residential development preventing trespassers from parking on site is to sue each and every one for an injunction, which is a discretionary remedy with no guarantee of being granted. It also has no deterrent effect prior to being granted - basically, you can park as many times as you like without detriment until (if at all) an injunction is granted to stop you.

      Ah yes, if I have a problem with trespassers parking where they shouldn't the only explanation is that I work for Excel parking! Strong argument.

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    18. Neither an injunction against a trespasser nor a futile attempt at claiming that a contract exists is the solution to the landowner's requirement to enforce the parking regime.
      Providing adequate parking spaces for visitors to the hospital staff accommodation would be the simplest solution & should have been specified when planning permission was granted. This isn't a retail park needing to enforce a turnover of spaces. Nor is it a car park where commuters will abuse the facilities. The only people who would want to park at the accommodation blocks are people who have a legitimate reason either because they are residents or visiting a resident.

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    19. And pray tell how that helps issues around trespassing at a residential development for example? It's all very well saying 'adequate parking' should have been provided, but with more and more developments going up to try and accommodate the housing needs of the nation it's more and more difficult to provide ample parking - so, instead we have to look to the adequacy of actual solutions, which seem to be somewhat lacking in this area.

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    20. You also seem to be very familiar with the dynamics of this particular site, have you been there?

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    21. I am familiar with various hospital sites where the staff accommodation as in this case has been outsourced. I have driven past Colchester Hospital & looked on Google Street View. In common with most modern hospitals it is on a campus site & well away from the town centre. There is no reason for anyone to park there unless they are a member of staff or a visiting the hospital or in the case of the accommodation blocks a resident or visiting a resident.
      There is always a solution. If there are insufficient parking spaces then more need to be provided & if there is no more room on the site then they need underground or multi-storey car parks.
      This court case is only applicable to this particular situation just as Beavis is only applicable to town centre sites that need to enforce a turnover of parking spaces & deter commuters from parking up & leaving their cars for the day.

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    22. I agree with you Mick. The law as it stands at the moment is one sided in favour of these transgressors. to prevent this sort of thing happening a proper deterrent is needed. I think they should clamp the cars and charge lots of money to get them removed. That would put a stop to this abuse.................. Oh wait, hang on a minute. Hasn't that been tried before? Sorry my memory isn't what it used to be.

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    23. Mick, what makes you think that UKPC "have the landowners consent to charge people who park on their land"?

      This is a perfectly serious question. Because they say so? But they declined to produce an admissible contract. Generally when somebody tries to pull a fast one in that manner, it throws their credibility into doubt.

      Well, I say serious question, but it's rhetorical. The judge didn't find it credible that they have permission. Perhaps next time he'll instruct UKPC's representative to bring a toothbrush.

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  2. For what it's worth I think you miss the main point.
    Trespass was committed against a landowner. The landowner had appointed a PPC to "manage parking activity". The PPC failed to manage and someone parked without authority.
    By failing to effectively manage parking, ie preventing someone from parking without authority, the PPC wins. Funny old world when you contract with someone to manage your parking and reward them for failing to do it. I wonder why they don't stop people from parking when they ought not then?
    The non authorised parking would/may have still happened and the landowner could have taken action directly.

    The landowner has lost nowt. Zilch. They allow ticketing on their land for the benefit of the PPC, not to derive a personal income from it. An act of trepass doesn't necessarily need to be limited to a provable loss. If the award for the trespass is meagre and unrewarding enough to take action, then it's the law that needs to be changed.

    Yeah, and we do delight in sticking it to em. They stick it to us often enough.

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    1. I agree, the law does need to be changed. Currently a non-resident trespasser would have a stronger defence than a resident who forgot to display their permit, and that cannot be right.

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    2. No way. A non resident hasn't got the right of peaceful enjoyment by virtue of a lease or rent.
      A resident SHOULD NEVER be targetted. A management scheme is supposed to be for the benefit of the leaseholder or residents.

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    3. And a right of peaceful enjoyment to your property is of bugger all use if the only property under the lease is the flat or house you live in, not where you've parked.

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  3. UKPC is using a perversion of contract law in an attempt to enforce a private parking regime. This case simply shows that this approach is not appropriate or valid for this situation & that parking should have been managed by other means e.g. by using a barrier & a swipe card like the parking at the staff accommodation at my local hospital.

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  4. Mick , you make excessive play on the perceived need for punishment, which by its very nature a private company has no right to impose

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    1. I would call it the need for proportionate deterrence personally.

      And we know that in the law of contract you can 'punish' to the extent that you can claim an amount in no way reflective of loss provided it is proportionate to a legitimate interest. I see no reason why an artificial distinction should be drawn between such deterrence being available for parking at a retail park, but not a residential development.

      Government should put all private parking on a statutory footing and regulate it.

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    2. I don't think that the PPCs will be very keen on the Government putting all private parking on a statutory footing and regulating it as that will be an end of their licence to print money. The whole PPC business model is to fail to do the job they are engaged to do. If they were successful in deterring unauthorised parking they would have no income. PPCs perverting contract law is not the solution to managing parking.

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    3. Why do you assume I care whether the PPCs will be keen on it or not? All I'm saying is that I think everything should be put on a statutory footing to avoid this piggybacking on contract law, and it should be regulated to ensure the system is not abused.

      I disagree, actually, that they cannot operate a profitable company if they are successful in deterrence. I imagine they are successful to an extent, but there will always be those that flout the rules and they subsidise the industry, allowing it to continue to operate under the current model.

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  5. Earlier, the primary objection appeared to be that the defendant was 'assisted.' By the same token, the claimant was 'assisted' by LPC Law. Or are you not allowing the defendant the same chance in court as the claimant????

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    1. The law firm don't portray themselves as doing what's right and wrong, only as representing their client. It's the hypocrisy between claiming that it's not about condoning abuse of a landowner's land and then actively assisting a trespasser.

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    2. No hypocrisy here, I was simply representing my 'client' to try and give him equality of arms with the claimant, represented by a legal professional.

      It was also never admitted or found in court that he was the driver at the material times, he was being pursued as the keeper, so there was no evidence that he had been a trespasser.

      Had we needed to get as far as the third main point of the defence, our argument would have been that as UKPC hadn't issued a NTK which was compliant with POFA, they were unable to hold the keeper liable in any event.

      If landowners wish to employ PPCs to enforce parking restrictions, they need to find a way of doing so which the courts will support. And this one wasn't.

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    3. David, being as you are not a paid professional you have the enviable luxury of being able to pick and choose which cases you assist with. I simply wonder why you chose this case, when there are undoubtedly more worthy cases out there!

      It may not have been admitted that he was the driver, but innocent people don't plead the fifth ;)

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    4. I seem to remember in the 4/14 minute overstay blog you were horrified that the moral standpoint was mentioned, preferring instead that the exact letter of the law was exercised. M'learned Bargepole has done his best to accommodate you and now we see that the moral standpoint is preferred. Just sayin'.

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    5. Not sure I see the inconsistency. In both instances the motorist has breached the landowner's wishes for who/how long someone should be parked on their land.

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    6. The inconsistency is not in who did what to whom but in whether the law should be rigidly applied or whether the rights and wrongs should be considered. You felt (4/14) that the Judge was incorrect in considering that ParkingEye were being unreasonable instead preferring that the law be applied in a black and white fashion. Bargepole argued in this case, and the Judge agreed, that a strictly prohibitive environment cannot benefit from Beavis so the exact letter of the law was applied Whether the naughty motorist deliberately breached the terms, knowing Bargepole would ride up on his impressive white stallion, is besides the point. The law was applied.

      You can't have it both ways. If you want to apply the law in one case then apply it in this one also, morals in this one then leave the previous one alone. And don't even get me started on hypocrisy and landowner rights and wishes.

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    7. My position is that, morally, people should be following the rules and regulations that the landowner chooses to instigate on THEIR land.

      Why, morally, does a person have the right to exceed the maximum stay beyond their own sense of entitlement?

      As for having it both ways, you could equally parrot the same argument right back at you. David and Alex can't argue on the one hand that the law shouldn't be applied strictly in the ParkingEye case, but that it should be here, ignoring the moral issues.

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    8. The landowner doesn't choose the rules though, do they? The operator chooses the rules which will harvest the most money and then continues to persecute in cases where the landowner has tried to intervene. So much for what the landowner wants then.

      One could say that the law was applied in the previous case. de minimis is a long established legal principle and considering that the victim did in fact pay, she demonstrated to have showed willing. People by and large will try to comply with petty parking rules but don't run away with the thought that those rules are the most important thing in people's lives. They really are not.

      I'll tell you what the real problem is. Parking weasels are not entirely unlike a racing Greyhound. When the trap opens all the Greyhound wants to do is to catch, kill and eat the electric hare. He is completely oblivious to the other dogs or to the huge crowd around him. All he sees is the hare and he's going to have it. It is this unbreakable focus which lost the right to clamp, will in the fullness of time clip this regime, and as sure as eggs are eggs, will lose you whatever comes in next. Meanwhile, landowner rights are slowly being eroded but somehow, it's the public's fault. We are the selfish ones.

      I know you don't get it but also I don't get your perspective. We are opposite sides and probably always will be. We must simply agree to disagree.

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    9. I highly doubt the landowner doesn't decide which rules get imposed - that will be decided at the contracting stage. With regard to the landowner intervening to cancel charges, that may be the case in some instances, but is there any evidence it was the case here? None that I can see.

      De minimis was clearly considered not to apply in the Beavis ruling where the judges stated it wouldn't matter to them if the overstay was by a minute! That's the letter of the law, just as we are talking about with the trespass issue here.

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  6. UKPC struggle with the concept of keeper liability. One of my cases' points of appeal was the creditor not being identified in the NTK. UKPC's finest legal eagles countered that with,

    "We note your reference to Schedule 4 of the Protection of Freedoms Act 2012. We have now corresponded with you on more than a single occasion and in doing so, we have clearly identified that we are the creditor and that we seek the outstanding charge. As you have correctly pointed out, identifying ourselves as the creditor is not the same as naming ourselves as the creditor. We have sent correspondence to you in our own name, we also have our registered address, contact details and a means to pay on our documentation, all of which fully complies with the requirements in the Protection of Freedoms Act and all of which indicates clearly that we are the creditor."

    Never argue with an idiot. They will simply drag you down to their level and beat you with experience.

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  7. What I don't understand is why the parking policy of a £25 charge for parking without a permit wasn't the key part of the signage? If it were then a contract would have existed and Beavis could have applied...

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    1. Really? Here's a reminder of how the Supreme Court clarified this.

      << Parking charge “neither extravagant nor unconscionable… taking into account use of this particular car park & clear wording of the notices” >>

      Note "this particular car park", which was one attached to a busy retail park where a turnover of parking spaces was essential to the businesses on site. Further it was in close proximity to a mainline railway station and a deterrent was required to deter commuters from using the car park for free parking while commuting into London.

      Doesn't sound much like "a housing complex (staff accommodation) within the grounds of a Colchester hospital" does it? The Beavis 'silver bullet' can explode in either direction!

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    2. Not arguing that the car park use is different, I was just commenting on the "clear wording of the notices" part.
      I'm totally against people parking where they should not and equally against companies charging ridiculous fees for legitimate users who are considered an easy source of income.

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    3. It's the '&' in the SCC statement that makes the difference in relation to your proposition!

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    4. OK, I'll agree that Beavis isn't relevant but I still wonder if the signage included the parking policy wording. If the wishes of the landowner are not respected by the PPC then it could be argued that those parking against the wishes of the landowner are not wholly to blame.

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  8. Mick Murdock finally shows himself.

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