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Saturday, 13 May 2017

UKPC lose residential case. Will victim get costs before UKPC are wound up?

C8HW3P0T – UKPC v Miss B, before District Judge Jones. 12/05/2017

UKPC were represented by Mr Elfer (not a practicing solicitor or a regulated barrister). Bargepole appeared as the Defendant’s Lay Representative. £1590 was claimed, for multiple tickets for parking at her own residence.

This was a residential parking case, for which Barry Beavis had assisted with the defence submissions. The main defence points were:

1/ Miss B had a tenancy agreement, predating UKPC’s appointment, which granted her rights to park without the need to display a permit.
2/ Ticketing bona fide residents was not within the purpose of the scheme
3/ The signage forbade unauthorized parking, therefore there was no consideration and so no contract
4/ There was no evidence of a chain of authority from the landowner to the Claimant
5/ This was clearly distinguishable from ParkingEye v Beavis

Bargepole wasn’t going to challenge the Claimant’s advocate’s Right of Audience, as the Defendant wanted this done and dusted on the day, with no adjournments. But as it turned out, he didn’t need to. The DJ started by asking all the parties who they were, and in what capacity they appeared. Mr Elfer stated that he was there as a Lay Representative. After a few seconds of stunned silence, the DJ asked if I had a copy of the Lay Representatives order, and Bargepole directed him to s3 (2)(a), which says that a lay representative can only represent a party if the client attends.

Mr Elfer argued that in CPR PD 3, a judge has discretion to hear any person, even if excluded by the Order, and that it would be in the interest of the overriding objective to allow him to speak.

The DJ agreed that he could exercise discretion. However, the Claimant had not notified the court that their Witness, Mr Kieran Ali, would not be attending, and had not previously notified the Court that they wished the hearing to be conducted by a person who was not an exempt person under the LSA 2007. They had not notified the Defendant of any of this either, and this potentially disadvantaged the Defendant who would not have had the opportunity to question the Witness in a case involving complex issues.

The ruling was that the Defendant had acted entirely properly in complying with Court directions, and arranging for a lay representative to put their case, whereas the Claimant had not. Therefore, Mr Elfer could not represent the Claimant in the absence of any representative of the Claimant company.

Bargepole  then directed the Judge to CPR 27.9, dealing with non-attendance of parties, and he agreed that this applied. He would ignore all of the Claimant’s submissions, and based on the Defence argument that the Defendant had an unfettered right to park granted by their tenancy, the claim was dismissed.

On the subject of costs, Bargepole  referred to the Costs Schedule sent by the Claimant’s legal representatives, SCS Law, which the Defendant had received a few days ago, and Bargepole only became aware of on the morning of the hearing. This document set out total costs £651.20, including the £70 filing fee and £115 hearing fee. The other £466 was an inventive matter of pure fantasy, including £195 for drafting a witness statement, a £105 advocate fee, and £96 ‘fixed fee for issuing claim’, despite the claim form already including the standard £50.

Bargepole  submitted that this was not only an abuse of process, but also a deliberate attempt to mislead the Court and the Defendant, and possibly crossed the threshold of Contempt of Court. As such, it was evidence of unreasonable behaviour by the Claimant, which, together with their unreasonable behaviour in failing to discharge their obligations to the Court, meant that additional costs could be claimed under CPR 27.14(2)(g).

Miss B was therefore awarded a total of £170.80, to include Bargepole's advocate fee. Bargepole also asked the Judge to make the costs payable within 7 days, as UKPC are due in the High Court on 22 May for a winding-up petition by HMRC, and Miss B wanted the costs paid before they went out of business.

Bargepole also advised Mr E to submit his invoice ASAP, if he expected to get paid for his work today.

Prankster Notes

Parking companies are well known for submitting fictitious costs. This time it backfired on them.

Even if UKPC had sent a proper advocate, they had little chance of winning. In a residential claim, the lease will usually overrides any signage erected by parking companies, although the actual wording will be key and may vary from claim to claim.

The point of a residential scheme is not to penalise the residents, but to stop non-residents abusing the spaces, and parking companies would do well to keep that in mind.

Happy Parking

The Parking Prankster





12 comments:

  1. Good to see you back PP, especially commenting on UKPC's misfortune. Poor things, on top of all that winding up stuff as well. :)

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  2. Oh thank goodness and I thought you couldn't find anywhere to park all this time :-)

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  3. Well good job by bargepole but I would have asked for costs against SCS Law, this means applying to make them a party, see NON PARTY COSTS ORDERS IN CPR

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    1. You mean CPR 46.2, I presume, but that also means allowing them to contest the ruling at a further costs hearing, which is the last thing this defendant would have wanted.

      But, if you believe this could have been handled better, why don't you volunteer to represent a defendant at a court near you, then when you win the case send the Prankster your report, and we can all marvel at your legal pyrotechnics.

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  4. DJs awarding Lay Reps charges, is this new?

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    1. Not new, but only reclaimable if the Judge agrees that the other side has behaved unreasonably, as per CPR 27.14(2)(g). Which UKPC/SCS clearly had, in this case.

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  5. Methinks Mr Elfer should be reported to the SRA.
    If someone get's a good kicking for this sort of abuse then it may well make it difficult or dodgy for others to take business of this sort.

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    1. A suberb plan, with just one tiny flaw in it.

      He is not a Solicitor, and does not claim to be one, therefore the SRA have no jurisdiction over him.

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    2. Ah, you got me David......
      I see where this was brought out now. We are so used to seeing people presenting themselves as solicitors who still have no ROA so I think perhaps this is a new ploy to get them in where ROA might not be questioned so deeply.

      Their game is blown.......

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  6. If there is a report to be made it against the firm that instructed him to attend. That is worth a go.

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  7. Well the winding up case wasn't heard so it looks like the defendant should still get their money!

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