Saturday, 16 December 2017

Courts buckling under number of claims

The Law Society Gazette has published an article warning that the courts are buckling under the number of claims issued, which has reached a 10 year high.

From July to September this year, the Ministry of Justice reported that 560,000 claims were issued in the county court – the second highest quarterly figure since 2006. Of these, 445,000 were specified money claims, a figure which was up 15% on the same period in 2016. The number of claims being defended increased year on year by 5% to 76,000.

If there have been 76,000 hearings between July and September, we can estimate there are 304,000 per year. The Gazette figures also imply 1 in 7 claims goes to a hearing.

Has the Parking Industry contributed to this problem?

Undoubtably. The British Motorists Protection Association keeps a tally of the number of parking hearings. Although it is not informed about all of them, there have been at least 6,828 of them (not including set-asides and re-hearings) this year.  On this basis, parking companies file about 48,000 claims a year.

Parking hearings also contribute just over 2% to the total number of hearings.

Of these, well over half are filed by Gladstones Solicitors, who are owned by Will Hurley and John Davies. These are the same people who run the International Parking Community, a trade association who give members access to the DVLA keeper database. The IPC also run an appeals service which is well known for being run in an unfair manner with a clear bias against motorists

Will Hurley and John Davies have therefore set themselves up as judge, jury and executioner, with a nice little conveyor belt going.

They set up a trade association apparently designed to attract the rogues and bottom feeders of the industry. They dismiss motorists appeals on bogus grounds not in line with decisions made by the real courts. They then feed the charges through from the IPC to Gladstones, funding the costs themselves, but adding an estimated £125 per claim for their own pockets (£50 debt collection charge, £50 filing fee, £25 court fee).

Even though Gladstones have proven themselves to be totally incompetent in court, their approximately 4,000 hearings can be viewed as something of a loss leader. It is the 28,000 cases which never get to court which are the true business model of Gladstones, who are creaming in an estimated £3.5 million from a largely automated process requiring no effort or thought.

It is interesting that a pair of scoundrels can make themselves rich through a business model which disregards the fact that they are hopeless in court, (as often reported), but instead relies on bullying and intimidation to make motorists pay charges which based on Gladstones record, they would not be liable for if the case went to a hearing.

Happy Parking

The Parking Prankster

The great private car park planning approval scam

Guest blog from shuteyepark, from the Consumer Action group forums

In December 2013 my daughter received a Parking Charge Notice (PCN) from ParkingEye after over-staying a 2-hour free parking limit at Rivington Services (otherwise known as Bolton West Services) on the M61 Motorway.

When we received the PCN we carefully investigated the ANPR system on site and discovered that although the cameras had planning permission the associated signage did not have advertisement consent. The Council’s Enforcement Officer contacted the landowner and / or private parking company (PPC) and requested them to apply for consent for the signs, and this consent was eventually granted in April 2015. The planning documents stated that the signs had been erected in May 2011, i.e. some four years prior to receiving consent.

Having not received any of the original PCN papers due to problems with the post, my daughter found herself with a CCJ  which we attempted to have set aside. We were in court five times, what with adjournment, stays to await Beavis verdicts and then the set aside application itself.

At the final hearing in 2016 at the Bolton County Court we relied, you might think unwisely, on a defence that the signage was illegal.  ParkingEye’s Claims Handler, David Greenbank, although not attending the hearing, had submitted a Skeleton Argument containing a claim that they had been granted planning permission for the signs retrospectively. The judge found in favour of ParkingEye and anyway we had run out of time and he was anxious to move on to the next case (back-to-back parking cases).  We had evidence to prove our case, but weren’t allowed to present it.

Some time later I came across another case heard at Barrow County Court in May 2015 where again ParkingEye were Claimant.  Indeed the very same Claims Handler, this time in a Witness Statement bearing a statement of truth, made the same claim: that they had been granted planning permission retrospectively for the cameras and signage.

Then I came across a third case, this time involving the car park at Dovecot Street, Stockton-on-Tees and a CAGger known as ‘terrier82’ who on 11th November 2016 reported: “Lost in court today, said due to the retrospective application making it legal.”  It looks as if yet another judge had been persuaded by this retrospective signage planning permission scam. Tracing back through the ‘terrier82’ CAG thread to 29th June 2016 I found a copy of a Defence to Counterclaim Document indicating that the Claimant was once again ParkingEye. I wondered how many more cases they have won based upon false evidence? They didn’t get away with it at Crewe County Court in September when the judge found their evidence was “tantamount to perjury” ( uk/2017/09/parking-eye-witness-tantamount-to-perjury.html). So at Bolton, at Barrow, at Stockton and finally at Crewe County Court a single PPC has tendered evidence that cannot be true.  Please send in your comments if you know of others.

Incensed by losing our case in court, and seriously concerned about possible miscarriages of justice, I set about investigating possible abuses of the planning system.  For several years retired solicitor Robert Ransome had done some sterling work in listing private car parking sites that lacked planning approval.

I decided to conduct a comprehensive forensic investigation into planning as it relates to private car parks. I have now investigated over 400 sites, including all the ‘usual suspects’.  The results are astonishing. At around three quarters of the sites I was unable to find advertisement consent for the parking signage. At almost all of the remaining sites advertisement consent applications were made for signs all of which were illegally in place. Usually these applications followed complaints made to the Local Planning Authority (LPA) by members of the public, councillors and in one case a solicitor.  The belated applications ranged up to 10 years post- installation, with an average of some 30 months. It was extremely unusual to find a single site where planning had been applied for in advance which, in most cases, we are all legally required to do.

Soon I discovered that over five or more years the PPCs have been playing a cat- and-mouse game with the LPAs.  Of the 400+ sites studied I found 60 where the LPA, almost invariably after receiving a complaint, directed or requested that the advertiser apply for planning permission and / or advertisement consent. Searching through vast numbers of planning registers I noted the criteria involved in private car park planning.

Meanwhile, I contacted scores of LPAs and asked whether planning approvals can be back-dated, because ParkingEye clearly purports that if a site didn’t have planning approvals these could always be obtained later.  To date, 133 LPAs have responded and almost without exception they state that ANPR cameras require planning permission (as land is being developed), and parking signs are classed as advertisements and normally require advertisement consent, a completely separate and parallel system to planning permission.

Almost invariably the LPAs consider parking signs each smaller than 0.3sqm in area as having ‘deemed consent’, and signs exceeding this size as not having deemed consent but requiring ‘express consent’ under Class 2, Schedule 3 of the Town and Country (Control of Advertisements) (England) Regulations 2007 (or the Welsh equivalent, the 1992 Regs).

ANPR cameras attached to buildings have deemed consent - e.g. under the Town and Country Planning  (General Permitted Development Order) 1995 - but cameras mounted on new, dedicated free-standing poles (as most ANPR cameras are) normally require planning permission. This planning permission can be applied for belatedly, and after four years unauthorised cameras are immune from enforcement (see, for example: Beehive Centre, Cambridge; Peel Centre, Stockport; and Welcome Break, South Mimms, Motorway Service Area).

The situation for advertisement consent is quite different.  Advertisements do not become immune from enforcement until 10 years after installation. Anyone who displays an unauthorised advert commits a criminal offence, and it is immediately open to the LPA to bring a prosecution in the Magistrates’ Court under s.224 of the Town and Country Planning Act 1990. The penalty on conviction is currently up to £2,500, and in the case of a continuing offence a further daily fine of up to £250 until the contravention ends. Where a LPA achieves a successful conviction for failure to comply with an enforcement notice they can apply for a confiscation order under the Proceeds of Crime Act 2002, to recover the financial benefit obtained through unauthorised development. This power is not used often.

Government policy, however, is that LPAs should not rush to prosecute, and the authorities have expressed concern about the financial risks of losing against large commercial concerns with deep pockets.  So what tends to happen when a PPC is detected as having unauthorised ANPR cameras and / or signs is that the LPA politely requests them to apply for the appropriate approval, which is almost invariably granted.  Only if an advertisement is considered to be detrimental to public safety or amenity can it be refused. Of the 60 sites where I found LPA enforcement against PPCs / owners,  55 complied with the enforcement deadline, which is normally 7 – 28 days.  At the remaining 5 sites the deadline was breached by one month (Aldi, Blaby; and North Tees Hospital), two months (Hindpool Retail Park; and Corner House Retail Park), and three months (The Range, Barrow). How ironic, that a PPC that pursues parkers / keepers for overstays of mere minutes can itself breach planning enforcement directions by months! Such hypocrisy!

PPCs have known since at least the end of 2012 that advert consent was required for their parking signage. Why, then, did they continue to flout the planning laws by failing to obtain approval for all other sites for at least the next five years?  As one Enforcement Officer put it:  “Having been aware that the signs at (XXXX) Retail Park were unauthorised I am surprised your company has not addressed other unauthorised signage at other locations within this borough, especially when criminal liability is attached to your flagrant breach of the Advertisement Regulations.”

So the first big question is:  Do private car park parking signs comply with the rules? Do they have deemed consent?  Answer: No, they almost always exceed the 0.3sqm area threshold.  The largest sign eligible for deemed consent would be around 550 x 550mm (area approx 0.3sqm), the sort of size we see occasionally in car parks as repeater signs. The Planning Portal states: “You may need to apply for advertisement consent to display an advertisement bigger than 0.3 square metres.....”  . Virtually all private car parks have signs larger than this threshold size, and most car parks have at least one large sign, e.g. at the entrance. And it only takes one large sign amongst many to break the rules. Some PPCs, e.g. ParkingEye, often have standard sizes of signs at their sites, e.g. 600 x 800mm = 0.5sqm area, and all of these require express consent from the LPA.

It is interesting to note that Riverside Retail Park (Chelmsford) did not have advert consent at the time Barry Beavis received a PCN there, but the issue was not raised by the defence.  (Footnote:  The LPA says that they would have granted planning permission and advert consent if an application had been made).

In the present study of 400+ sites, 305 (over 70%) appeared to have no advert consent whatsoever.   A further 98  (approx 25%) did not apply for advert consent until they were ‘outed’ by complaints from the public.  By that stage they may have been issuing parking charges for many years, even ten years. The average time of lacking consent was around 30 months, and many thousands of unauthorised parking charges may have been issued per site during that time. In total,  millions of victims may have been unfairly penalised. (In most of these cases it was ParkingEye that applied for the planning, despite their false claims that they were not able to apply).

The second big question is:  Can PPCs obtain advert consent retrospectively?  The answer is a definite “NO”. There is no such thing as retrospective advert consent. This is confirmed by virtually every LPA contacted. Space does not here permit a full recital of other evidence that supports this statement. However, in the Court of Appeal in the case of Andre Agassi  v.  S. Robinson (H. M. Inspector of Taxes) [2005] EWCA Civ 1507 there was a modern slant on the old dictum that nobody should profit from their unlawful conduct.  At [20] and [28] is stated that costs recoverable in litigation cannot include the costs of any activities that are unlawful.

Illegality defences were explored in the Court of Appeal in ParkingEye Ltd  v. Somerfield Stores Ltd [2012] EWCA Civ 1338 where Laws L.J. at [29] concluded that ParkingEye, when contracting with Somerfield, did not at the outset have an intention to deliberately break the law. Consequently he upheld the contract. Contrast that with this present situation where some PPCs have deliberately broken the law by erecting their contract-bearing signage without first having in place the mandatory prior advert consent required by law. As we have seen, any unauthorised advertising constitutes a criminal offence which will remain so for all time. Such illegality cannot be reversed by a subsequent grant of advert consent. In contrast to the Somerfield situation, where illegality was incidental to the contract and unintentional, here illegal wrongs have been committed at the time of entering contracts with defendants. Furthermore, the wrongs are deliberate, are central to the contract, are criminal (not civil torts) and are repeated at multiple sites on multiple occasions over half a decade or so. The scale is industrial.

While the debate continues about legal issues, there is another important issue to consider: adherence to codes of practice. In order to obtain the details of a vehicle’s registered keeper from the DVLA a PCC must be a member of an Accredited Trade Association (ATA) that is recognised by the DVLA.  There are currently two ATAs: The British Parking Association (BPA) and the Independent Parking Community (IPC).  Both ATAs have an Approved / Accredited Operator Scheme (AOS) and a Code of Practice (CoP).  Every version of every CoP that I have seen requires their Member PPCs to conduct their businesses according to the Law.

In the case of the BPA the CoPs state: “2.4    When there is relevant legislation and related guidance, this will define the overall standard of conduct for all AOS members. All AOS members must be aware of their legal obligations and implement the relevant legislation and guidance when operating their businesses......”   and: “4.3    Under the Code you must keep to all the requirements laid down by law.”

In the case of the IPC the CoP ( e.g. 26th September 2014 version) states: “It remains the duty of the operator to appraise themselves with any legal provisions that concern their operations and to adhere to them.”  and: “2.4    If you obtain and process vehicle keeper’s data you are obliged to: 2.42   Be compliant with all necessary legislation.”  and: “3.1   This Code is designed to complement the laws which apply to the parking industry. It is your responsibility to ensure that your business adheres to all relevant legal provisions.”

To summarise, the PPC (whether a BPA member or an IPC member)  has an overriding duty to comply with the law in creating and enforcing its contract with a motorist (or, by extension under the Protection of Freedoms Act 2012, with a vehicle’s keeper), and in communicating the terms of that contract.

In the judgment in Cavendish Holdings BV v. Talal El Makdessi; ParkingEye Limited  v. Beavis [2015] UKSC 67 the judge drew attention to the BPA CoP.  At [111] is stated: “.....while the Code of Practice is not a contractual document, it is in practice binding on the operator since its existence and observance is a condition of his ability to obtain details of the registered keeper from the DVLA. In assessing the fairness of a term, it cannot be right to ignore the regulatory framework which determines how and in what circumstances it may be enforced.”

Virtually 100% of sites in this survey either had no advert consent whatsoever for their parking signs, or were obliged to apply belatedly with no possibility of back- dating. Most of the signs are, or at some time were, unauthorised and displaying unauthorised signs is a criminal offence. All AOS CoPs require their members to operate within the law, but the elephant in the room, the inconvenient truth, is that the signage is almost entirely outside the law. Meanwhile PPCs that do not adhere to the CoP are not entitled to obtain keeper particulars from the DVLA, yet they do.  Indeed, a typical DVLA KADOE  contract with the PPC, at [A5.1], requires users to: “ all times comply with Law and Industry Best Practice....” and, at [A6.1],  to: “.....comply with the ATA’s Code of  Practice or conduct.”

Many of us have complained to PPCs, to the BPA and to the DVLA but all deny that there is a problem – every complaint seems to be suppressed. What we have here is a vast gravy train of citizens’ money, continuously gaining speed and now out of control. The ATAs are not independent, being funded in a cosy arrangement with the PPCs, and turkeys don’t vote for Christmas!  The DVLA, too, are turning over vast amounts of our money in data access fees; they continually claim they do not profit from this service, but the costings they have produced seem to be more akin to those relating to manual (V888) enquiries rather than electronic enquiries which appear to operate with minimal human involvement.

There may be questions about the statistical sampling method used in this study. Sites were investigated initially because they were high-profile, controversial car parks, and of course it may well be that low-profile orthodox sites may be missed. For that reason, the study is being extended and another 400 sites are currently under investigation. Planning registers are now being searched, not only by postcode / applicant name, but non-specifically using catch-all searches  on key- words such as ‘ANPR’, ‘camera’, ‘recognition’ and ‘automatic’.

To conclude, this study raises serious concerns about the monitoring and regulation of private car parks. These results form part of a much larger report to be presented to MPs in advance of a Parliamentary debate on self-regulation listed for the New Year.  Meanwhile, PPCs should be held to account and should refund all those parking charges gained at sites that are or were being operated in breach of the law and CoPs. There is particular concern that many PPCs are claiming to operate within the CoPs when they are actually in breach; they use the CoP as a kind of veneer or cloak of respectability and the public and authorities are being seriously misled. These interim results will inevitably fuel demands for the introduction of a proper independent statutory regulation system, since self-regulation really isn’t working.

Prankster Note

It is of course very worrying that private parking companies such as ParkingEye charge motorists huge sums for trivial overstays, while operating a deliberate policy of not complying with the law.

One ParkingEye employee confided their strategy to The Prankster

One thing to note that may be of interest to you motorists is that the majority of sites, there is no planning permission.
We operated a model of retrospective planning.
So get the go ahead from the client, bang the system in and then if there was any noise file a retrospective planning order.
Point was to save on costs. And it worked.

Shuteyepark has done a vast amount of research regarding planning permission and advertising consent. His research can be downloaded from here.

Happy Parking




Thursday, 14 December 2017

Excel lose parking case against company. No reason for filing claim ever apparent

Excel Parking Services Ltd vs Clever Car Finance Ltd. D6DP7R03.12/12/17. Skipton County Court. 

Judge Faye Wright presiding
Claimant represented by Mr Pickup of Elms Legal
Defendant represented by Mrs R – company director
Lay Representative for the defendant – Ian Lamoureux

Guest Report


The company was the owner of the vehicle but not the Registered Keeper. The driver – Mrs R, was an employee and insured to drive the vehicle. On the date in question Mrs R was using the vehicle for personal reasons, on a shopping trip with her 3 year old child.

The Pay and Display machines at Cavendish Retail Park were not accepting coins and so Mrs R was unable to obtain a valid ticket. She tried for several minutes. She then attempted to find the car park attendant for assistance but was unable to do so. Being unable to obtain a ticket or find assistance she left the car park.

The first communication received by the company defendant was a ‘Final Reminder Notice’ (FRN). The FRN explained that it was “now too late to appeal”. Mrs R immediately responded from her personal email account explaining that she was the driver.

Excel replied to say the “appeal” was rejected. Mrs R sought advice from a Facebook group, at the same time the company started receiving debt collection letters from BW Legal. She used a paid for appeal service to send further emails to Excel denying liability for any debt. The emails were ignored and the BWL letters continued. Eventually court papers arrived addressed to the company.

In total 4 emails were sent to Excel, all in the name of the driver with no mention of, or reference to, the company.

Not understanding the particulars of claim or the legal difference between herself and the company, Mrs R submitted an internet template defence which did not address the pertinent points and made irrelevant arguments. The case was allocated to the claimant’s home court in Leeds.

Seeking advice from another Facebook group, Barry Beavis put Mrs R in touch with Ian Lamoureux who agreed to assist with the case and Lay Rep for the defendant.

IL advised Mrs R to request the case be re-allocated to the defendant’s home court in Skipton, which was granted. He then advised on an email to Skipton requesting an ‘unless order’ for the claimant to state their cause of action against the company defendant. No response was received. It never became known what cause or reason the claimant had to pursue the company.

IL assisted with writing a witness statement. This inevitably contained statements contradictory to the defence. The evidence relied upon was the first email from Mrs R; proof that the company was not the RK; a sworn affidavit by Mrs R stating that she was using the vehicle for personal reasons unconnected with the company. Cases relied on were Excel vs Smith, C0DP9C4E and C1DP0C8E ( CPS vs AJH Films does not transfer liability from driver to keeper). IL also assisted with a skeleton argument to directly rebut the claimant’s witness statement and highlight their unreasonable conduct.
IL was advised and supported at various stages by Coupon-Mad (SchoolRunMum) and Bargepole.

Excel were relying on:

CPS vs AJH Films Ltd [2015] EWCA Civ 1453: A Court of Appeal refusal to allow an appeal for a case where on the (undisclosed) facts the driver was found to be acting as an agent of the company
Excel v Jennings C6QZ0T47, a small claims hearing where the judge surprisingly found that family members were acting as agents of the registered keeper.

The hearing

IL had assisted with creating a ‘preliminary matters’ document, amended from Bargepole’s template to include a section disputing the claimant’s witness statement being written by a paralegal who claimed to have “conduct of action” – a ‘reserved legal activity’.

The three preliminary matters were quickly dismissed by Judge Wright:

  1. The paralegal was authorised because BW Legal were regulated
  2. The claimant had not failed to comply with CPR 27.9 because they were represented by an advocate, therefore in attendance.
  3. The advocate had RoA because he was instructed by Elms Legal who were registered with the SRA.

The hearing began with Mr Pickup conducting a lengthy cross examination of Mrs R focussing mainly on the first email and the claimant’s assertion that it was sent on behalf of the company as it didn’t expressly state that it wasn’t. Mrs R stuck by the statements in her witness statement and skeleton argument that the email was written by her personally, in her name, and made no reference to the company.

Mr P’s delivery was shaky and nervous and some of his questions were directed to Mrs R personally rather than as the company representative. IL had to intervene more than once to point out that Mrs R was here as the company representative and not personally the defendant. IL was eventually reprimanded by the Judge for assisting Mrs R with her evidence under CE.

The claimant had stated in their witness statement that the first email response to the FRN was sent by the company from a company email address. They had adduced the email into evidence but the print out (perhaps deliberately) did not show the top of the email with the ‘from’ address.

The defence had adduced the same email showing that the email was sent from Mrs R’s personal address. This was damning to the claimant. Judge Wright went through the rest of their witness statement which offered nothing by way of actual proof or even persuasive evidence that the company was liable. She dismissed CPS vs AJH Films as irrelevant and said the Jennings case did not bind her, nor did she find it persuasive.

She drew attention to some of the irrelevant and contradictory statements in the defence but accepted the defendant had submitted an internet template defence which it did not really understand. She said this was a common problem for defendants.

In summing up Judge Wright said the case rested on whether Mrs R had been given either expressed or implied authority from the company to enter into a contract on its behalf at the material time. It was incumbent on the claimant to prove or convince her of such on the balance of probabilities, which it had failed to do.

Claim dismissed.

IL made a strong argument for costs pursuant to CPR 27.14(2)(g) on the basis that the claimant never had any right or reason to pursue the company in the first place and had full knowledge of who was driving prior to action being commenced.

It had ignored all reasonable attempts by Mrs R to engage in pre-action correspondence in order to narrow the issues and avoid litigation. It had also submitted false evidence in order to mislead the court.

Judge Wright disagreed that this crossed the threshold of unreasonable behaviour and awarded costs only for travel and parking.

Interestingly, after dismissing the case and dealing with costs. Judge Wright gave Mr P a lengthy ‘talking to’ about Excel’s woeful particulars saying they did not comply with CPR part 7 or the accompanying practice direction. She said she sees this all the time and all the judges at Skipton are fed up with it.

She went on to say that she understands there are a limited number of characters that can be used but that most other PPCs get around this by submitting separate, more detailed particulars. She explained that if the PoC had been brought to the attention of the court earlier she would have issued an order for further and better particulars. She urged Mr P to make sure this message was delivered back to his client.

Prankster Notes

It would be clear to anyone with the slightest legal knowledge that there was no possibility of  successful claim against the company. They were not the driver or keeper of the vehicle. The driver was not acting as their agent and the vehicle was not being used for company business.

This was therefore nothing more than clumsy attempt at bullying.

From the conduct of this case it is clear that the owners of Excel and BW Legal are morally bankrupt and it is especially worrying that they have apparently attempted to present evidence in a clearly false way. They are essentially demanding money under false pretences.

The Prankster therefore has no hesitation in stating that in his opinion Simon Renshaw-Smith of Excel and  Sean Barton and Rachael Withers of BW Legal are morally corrupt individuals who should not be in the industries they work in. Their businesses are run in a shambolic way with woeful understanding of the legislation and responsibilities in their industry sector. They have poor regard to consumer rights and their responsibilities to their customers.

Mr Pickup does not escape censure for his behaviour either. He needs to be reminded that his primary duty is to the court, and that if his client is attempting to mislead the court in the way it presents evidence he should not allow this. Perhaps he can take a moral lead from the prosecuting barrister in this case.

There, as soon as the barrister, Jerry Hayes, found that the police were withholding evidence which undermined their case, he disclosed it.

The Prankster believes that as soon as it was clear to Mr Pickup that his witness had lied, he should have requested to halt the hearing to ask for instructions, and if his client refused to drop the claim, then he should have considered his next actions carefully.

On a legal note, it is worth pointing out that CPS vs AJH Films refusal to appeal, it was found that "This case involves a decision on the particular facts." Therefore, while it is clear that a driver can be acting as an agent of a company in some circumstances, it is also clear that in other circumstances they are not. As the facts themselves were not disclosed, this is not therefore useful case law. The judgment is concerned whether or not an appeal would be allowed, and as one of the reasons was that the appellant did not turn up, this further lessens the usefulness of the case.

In The Prankster's view, Mr Pickup was therefore either legally incompetent to try and use this case; or, if he was actually aware of its shortcomings without clearly bringing these to the attention of the judge, then he was underhand and despicable; his duty is to the court.

On a separate note, if you are fighting a parking claim in Skipton, and the particulars of claim are not clear, you should bring it to the attention of the court. Excel have a long track history of not bothering to file proper particulars at any court, let alone Skipton.

The Prankster congratulates Mr Lamilad, for his assistance to the defendant, along with Coupon mad, Bargepole and everyone else who assisted.

Happy Parking

The Parking Prankster

Friday, 8 December 2017

Murdo Fraser MSP introduces Proposed Regulation of Privately-operated Car Parks (Scotland) Bill

Murdo Fraser MSP has introduced a bill to regulate the car parking industry.

An overview of the bill is here;

The consultation document is here;

Several of Mr Fraser's constituents have fallen foul of Smart Parking, a company with a chequered history. Their low standards and deficient machinery have caused huge numbers of motorists to be issued charges when they have not transgressed. Their appalling behaviour may be the tipping point behind this bill, rather like the clamping in Changegate Car Park, Haworth of the car Betty Boothroyd was travelling in may have led to the banning of clamping in England and Wales.

The bill aims to address the issues of excessive charges, the inconsistency of signage, the process for appealing imposed penalties, and the presentation of invoices.

More controversially, to ensure that issues of 'fairness' to operators are also considered,the bill also aims to examine the introduction of keeper liability, which would help operators to identify those who would become liable for charges.

Anyone wishing to reply to the consultation needs to do so before 2 March 2018.

Happy Parking

The Parking Prankster

UKPC lose 7 ticket residential case. Judge rules resident can park in safety

UKPC v Ms H. D5HW059T Manchester Civil Justice Centre. 07/12/2017. District Judge Ranson

Guest Report 

I listened in on the above case this afternoon, where UKPC had issued 7 tickets in a six month period last year to a resident of a block of flats. The claim was for just over £1100.00. Six of the tickets were issued for not parking in her allocated bay, and 1 ticket was issued for not parking within a marked bay.

Ms H explained that, due to drug users frequenting the parking area (due to broken security gates) she had not felt safe parking in her allocated bay as the area was littered with needles. Instead, she parked in a well lit communal area within the apartment block grounds, close to her apartment and displayed her permit.

Several complaints were made to the landlord, but these fell on deaf ears.

SCS sent a Ms Hurley to represent  the claimant. She provided  photos of the vehicle on 6 occasions parked in the communal area. She also provided one photo of the vehicle in pitch dark alleging that it was not parked within a marked bay - it was so dark you could not even see any bay markings!

After hearing both sides, the Judge dismissed the claim as the landlord had not addressed the issue with the needles and therefore, as Ms H had complained on several occasions, Ms H was not able to park in her allocated bay and had parked in a safe, well lit, needle free area instead.

Ms H was understandably very upset by the proceedings and was extremely relieved by the outcome. She didn't want costs and just wanted to go home.

Prankster Notes

Sadly some parking companies have no intention of operating a proper residential parking service. Their sole intention is to gouge residents by creating an inappropriate set of rules conducive to issuing as many charges to residents as possible.

It is clear to The Prankster that UKPC, owned by Rupert John Williams, is one of these companies. UKPC have a long history of deceit and malpractice. They have been taken to court by Trading standards twice, and their wardens have been caught manipulating photographs to pretend motorists overstayed.

The Prankster believes that reform is long overdue for this company.

Happy Parking

The Parking Prankster

Thursday, 7 December 2017

British Parking Association put up the shutters for Brexit. Address for service in Germany 'not acceptable'

It appears the British Parking Association (BPA) are ready to seal off the UK from the rest of the world as this MSE thread shows.

BusyBee1904 received a notice to keeper from NCP for a parking event. As they were not the driver, they discharged their responsibility by providing the name and address of the driver, who lived in Germany.

Here is where things got a little weird. NCP refused to accept the address, and continued to chase BusyBee1904 for the parking charge. BusyBee1904 therefore filed a complaint with the British Parking Association who came up with this perposterous response.

"I am advised that a name and full address was provided for the driver, however, as the person concerned is a resident of Dusseldorf, outside of the UK, the operator was unable to accept that as a serviceable address. Schedule Four of the Protection of Freedoms Act 2012 requires a serviceable address to be supplied in order to transfer liability. As none has been supplied, the liability has reverted back to the Registered Keeper in accordance with the legislation."

Here is the requirement from the Protection of Freedoms Act, 2012 (POFA).

5 (1) The first condition is that the creditor [...] is unable to take steps to enforce that requirement against the driver because the creditor does not know both the name of the driver and
a current address for service for the driver.

So what is a "current address for service"? Well, that is conveniently defined at the beginning of the Act, in paragraph 2(1). 

“current address for service” means [...] in the case of the driver, an address at which the driver for the time being resides or can conveniently be contacted;

As the address where the driver resides has been supplied, a "current address for service" has clearly been supplied. The second condition has also clearly been met. For the benefit of the British Parking Association, the way to conveniently contact somebody living in Dusseldorf is via something those of us in the know call a "letter". You pop this "letter" in an "envelope", write the address on the outside and stick on a prepaid delivery charge those of us in the know call a "stamp".

Apparently some intrepid company call the Royal Mail is prepared to venture outside the scary boundaries of the United Kingdom for the princely sum of £1.05. Simply take this "letter" to them and they will do the rest.

The Prankster understands that the BPA might not yet have progressed beyond carrier pigeon, and that the attrition rate of these is unacceptably high across the channel. He is happy to advance parking knowlege several centuries and introduce the BPA and their clients to the heady delights of the "post". 

No charge has been made for this educational service.

Prankster Notes

Service of the claim form where before service the defendant gives an address at which the defendant may be served
6.8  Subject to rules 6.5(1) and 6.7 and the provisions of Section IV of this Part, and except where any other rule or practice direction makes different provision –
(a) the defendant may be served with the claim form at an address at which the defendant resides or carries on business within the UK or any other EEA state and which the defendant has given for the purpose of being served with the proceedings...

It does therefore seem strange that the British Parking Association has chosen to refine "address for service" in a manner which neither complies with POFA or with the legal definition from practice directions.

The Prankster therefore recommends that anyone in a similar position raises complaints to the DVLA and the IOC, and also considers making a claim against the parking company for harassment and breach of the Data Protection Act. From May 2018, a data protection breach can cost a company €20 million or 4% of annual global turnover and therefore this is a very useful tool to use against parking companies wilfully ignoring the law and data protection requirements.

Dear DVLA,
I wish to raise a complaint about NCP. They are pursuing me for keeper liability. However, I have provided them with the name and address of the driver, who lives in Germany.

I refer you to the Protection of Freedoms Act, 2012 (POFA), paragraph 2(1).“current address for service” means [...] in the case of the driver, an address at which the driver for the time being resides or can conveniently be contacted;

As the driver both resides and can be conveniently contacted at the address given, it is clear that keeper liability no longer applies.

I have also contacted the British Parking Association, who incorrectly stated that keeper liability still applied.

Please therefore take the appropriate corrective action against both NCP and the BPA, and keep me informed of your progress.

Dear ICO,

I wish to raise a complaint about NCP. They are breaching the first principle of the data protection act 1998 by using my personal data in a manner which is neither fair nor lawful.

They are pursuing me for a parking charge under the keeper liability provisions of the Protection of Freedoms Act 2012. However, I was not the driver, and I have discharged my responsibilities under the act by providing the name and address of the driver, who lives in Germany.

I refer you to the Protection of Freedoms Act, 2012 (POFA), paragraph 2(1).“current address for service” means [...] in the case of the driver, an address at which the driver for the time being resides or can conveniently be contacted;

As the driver both resides and can be conveniently contacted at the address given, it is clear that keeper liability no longer applies.

They are therefore using my personal data in a manner which is both unfair and unlawful by using it to pursue myself for the parking charge.

Although "address for service" is defined explicitly in POFA, I also refer you to practice direction 6.8, which also makes is clear that even if it had not been, a lawful address for service can in any case be anywhere in the EAA

Service of the claim form where before service the defendant gives an address at which the defendant may be served
6.8  Subject to rules 6.5(1) and 6.7 and the provisions of Section IV of this Part, and except where any other rule or practice direction makes different provision –
(a) the defendant may be served with the claim form at an address at which the defendant resides or carries on business within the UK or any other EEA state and which the defendant has given for the purpose of being served with the proceedings.

Dear NCP

Letter before claim

I wish to raise a complaint about your actions. You are breaching the first principle of the data protection act 1998 by using my personal data in a manner which is neither fair nor lawful.

You are pursuing me for a parking charge under the keeper liability provisions of the Protection of Freedoms Act 2012. However, I was not the driver, and I have discharged my responsibilities under the act by providing the name and address of the driver, who lives in Germany.

I refer you to the Protection of Freedoms Act, 2012 (POFA), paragraph 2(1).“current address for service” means [...] in the case of the driver, an address at which the driver for the time being resides or can conveniently be contacted;

This is therefore a breach of the first data protection principle, which states data must be used fairly any lawfully. The data protection act provides that damages can be claimed if a breach occurs.

Your continued actions are causing me stress and distress, and this therefore also constitutes harassment under the Protection from Harassment Act 1997.

I therefore request that you immediately confirm you will no longer pursue this parking charge, and invite your offer to cover reasonable damages.

If you fail to reply within 14 days I reserve the right to take legal action. I am open to appropriate alternative dispute resolution. Please therefore also view this as a challenge to the parking charge, and issue me with a POPLA code.  

The Prankster has previous blogged that POPLA view an address for service as valid even if it is abroad.

Happy Parking

The Parking Prankster

Sunday, 3 December 2017

VCS spend over £1,000 chasing bogus £100 parking charge at Albert Street, Birmingham

VCS v Ms O C8DP9D8C Birmingham 1/8/2017

Ms O parked her car in  Albert Street, Birmingham in 2014, entered her registration and paid the correct amount. She was certain this was done properly. As the car was a hire car she had taken special care to enter the registration correctly.

Vehicle Control Services disagreed, and issued a parking charge. Ms O contested this at POPLA and sadly the POPLA assessors believed VCS over Ms O and the appeal was declined. At this point Ms O contacted The Prankster for help. The Prankster checked the POPLA evidence pack and noticed that the signage at this car park was in the name of Excel Parking, and not VCS.

Sadly, the incompetent assessors at POPLA had not noticed this.

This of course meant that VCS had no contract with Ms O and therefore no right to pursue any parking charge.

The Prankster helped Ms O point this out to VCS, and also over the course of a few years to their debt collectors Rossendales and BW Legal.

The Prankster also helped Ms O file a complaint with the Credit Services Association, complaining about the bullying and misleading letters she had been sent by BW Legal.

BW Legal filed a claim anyway, and Ms O filed a counterclaim for misuse of her personal data.

VCS had a long history of filing court claims regarding this car park, but pulling out if the defendant raises the defence that the signage was not in their name, such as VCS v Zozulya, claim A8QZ6666 and VCS v Ms M, claim 3QZ53955.

It is therefore clear to The Prankster that they were fully aware they had no valid claim, and that this was therefore a speculative claim and an attempt at bullying Ms O into paying up.

Despite this, BW Legal got their 'Litigation Executive' Rohan Krishnarao to file a reply to defence stating that he felt the defence was embarrassing for its lack of particularity. He asked for the defence and the counterclaim to be struck out.

This is a standard trick by BW Legal and as far as The Prankster can tell, dear Rohan puts this on all his cases regardless of merit. Perhaps this is a trick he learned while studying law at Cardiff University.

Hearing 1

The first hearing was an allocation hearing on Monday 23 Jan 2017. Interestingly, the week before the hearing, the Prankster got hold of a document from the BW Legal dated 18 November stating that VCS had ordered BW Legal to stop pursuing Ms O. As BW Legal were still pursuing Ms O, The Prankster wondered what was going on.

Prior to the hearing The Prankster tried to give this document to BW Legal's solicitor, a bad tempered older gentleman. He refused to accept this and started ranting that Ms O had no legitimate counterclaim as her details had been validly obtained from the DVLA. Obviously he had not read the case notes - as this was a hire car, the DVLA would not have had her details to give out. The Prankster decided to leave him to his own devices.

Immediately the hearing started, the solicitor announced that VCS were discontinuing the claim. This left only the counterclaim. The judge ordered Ms O to file more detailed particulars. The solicitor asked if they could have a directions hearing once these were filed.

Hearing 2

Despite asking for a directions hearing, VCS had no directions they wished to ask for. Neither did Ms O. The judge therefore gave the only direction he could, which was to set a date for the next hearing.

In passing he mentioned that he heard most of the parking cases in Birmingham and initially thought this was another run-of-the-mill case until he realised that the claim was discontinued and only the counterclaim was valid. He was now sad that he would not be hearing it, as it looked rather interesting.

He did mention that the particulars looked overly long, at which the Prankster had to smile a wry smile, as they had been asked to lengthen them at the previous hearing.

After the hearing the BW Legal representative, a younger chap, confided that he had no idea why the directions hearing had been asked for. He speculated it might have been an attempt to discourage Ms O from continuing by introducing extra hearings.

Hearing 3

There was some confusion over the hearing fee for the counterclam hearing. Ms O attempted to pay it, but the incompetents at BW Legal had for some reason already paid the £25.

VCS engaged Ms Empson, who introduced herself as a barrister.

Ms O was represented for the third time by The Prankster.

There was a pre-hearing discussion. It turned out BW Legal had given Ms Empson the wrong paperwork and the old particulars of claim. The Prankster allowed her to photocopy his copy. She said a counterclaimant witness statement had not been filed. The Prankster replied they were relying on the particulars, which were also a statement of truth signed by the counterclaimant.

BW Legal had also not filed a witness statement. However, after some discussion it turned out they had, but for some unaccountable reason had sent it to the wrong address, despite no other claim paperwork going there. Ms Empson showed The Prankster the witness statement which turned out to be the same as their defence. As it was not introducing new material, The Prankster was happy to continue.

Ms Empson explained she would be attacking the defence for not showing any loss. The Prankster explained he would rely on Vidal-Hall v Google on that point.

In the hearing the DDJ got immediately stuck into the minutia of the Data Protection Act and quizzed The Prankster fiercely on what the personal data was and what the exact breach was. There was quick agreement  that the issue was around principle 1 - was data processed fairly and lawfully.

The DDJ then dived off down subclauses (a) and (b). The Prankster explained he was not claiming non-conformance with the subclauses; only the 'fair and lawful' provision.

There was then some argument on when the breach occurred. The Prankster explained that in principle VCS could start the process of asking for a parking charge. However the breach occurred once they had been informed that their claim was not valid and they continued for several years to press on anyway, causing distress and harassment.

The Prankster could see the DDJ was in two minds. At this point the hearing still had not got into why the parking charge was not valid, so The Prankster asked the DDJ if he might explain this, as he thought this would help. He read the first line of the sign from the bundle. "By parking here you are entering into a contract with Excel Parking". He stated it was basic contract law that a third party could not sue on a contract between two other parties. He asked what VCS were doing bringing a court claim in the first place as only Excel had the right to do this.

The judge had a light bulb moment.

He said VCS could act as agents for Excel, and collect money on their behalf, but only Excel could bring a claim. He asked Ms Empson if she had anything to add. Unsurprisingly she did not.

The hearing then went through the letters to Rossendales and BW Legal explaining to them that the charge was not valid because VCS were not a party to the claim, and their template replies totally ignoring the issue. The hearing also went through the other claims VCS had filed and then discontinued.

The hearing examined quantum of damages. Ms Empson stated Ms O had never listed her costs. The Prankster explained the costs were trivial; postage and printing, and not worth individually listing. Instead, he was relying on Vidal-Hall v Google and the costs took into account the distress caused by 2 years of letters which were all template replies never addressing the issues raised. The amount was set both to reflect this distress, taking into account the level of the parking charge and the need to set an amount to stop parking companies claiming money they were not allowed.

The judgment was then made.

The judge found that the data processed was personal data.
The judge found that it had been processed unfairly and unlawfully.
However, for technical reasons he found that in this particular case, there was no breach.

However, despite that, he said that the court had other methods whereby he could deal with claimants who abused the court process. He then went on to costs. He explained that although the counterclaim failed, the courts themselves had discretion to address the matter.

He stated that VCS had behaved unreasonably in bringing the claim after such a long time; when they had been informed of the reason for failing; when they had brought and discontinued other claims.

He then quizzed the defence on the time spent over the case, allowing this at the litigant in person rate. He then discounted this by 50% to take into account that the counterclaim failed, arriving at the figure of £222 - not a million miles from the £250 claimed. This was awarded under the unreasonableness rule, 27.14(2)g

Ms Empson contested that the claim was not unreasonable but the DDJ disagreed.. Costs to be paid within 14 days.

Prankster Notes

Although this case was lost on a technical reason, this applied only to this case. The Prankster believes that other similar cases would succeed, and also that if Ms O appealed, she would have had a good chance of success. However, for obvious reasons, she chose not to.

What is good news is that Simon Renshaw Smith's greed and utter lack of morals in pursuing this case has led to his comeuppance and a substantial loss for his company.

This will have cost;
£27 POPLA fee
£54 BW Legal costs
£50 BW Legal filing fee
£50 two hearing fees
£700 3 sets of representation costs, including 1 barrister
£222 costs

All told, this is well over £1,000. Perhaps Simon has a valid claim against POPLA. After all, if they had done their job properly in the first place, the appeal would have been upheld then.

It also means that if Simon brings any more cases for Albert Street, Birmingham using the wrong claimant he would likely be facing another substantial costs ruling.

Happy Parking

The Parking Prankster