Supplementary Witness Statement for chris0147 (Defendant)

Supplementary Witness Statement for chris0147 (Defendant)

in the County Court at XXXXXXXXX Claim No. XXXXX

- Contents

Page 2-10 Witness Statement

Page 11-15 Appendix A; Excel v Smith approved

judgement - Manchester Court

Page 16-47 Appendix B; Excel v Lamoureux approved

judgement - Skipton Court

Page 48-55 Appendix C; PCM v Bull approved

judgement - High Wycombe Court

Page 56-61 Appendix D; VCS v Burzynski approved

judgement - Derby Court

Claim No: XXXXXXXX Page 1 of 61

IN THE COUNTY COURT AT XXXXXXXXXXX

CLAIM No: XXXXXXXX

BETWEEN

VEHICLE CONTROL SERVICES LIMITED

(Claimant)

-and-

CHRIS0147

(Defendant)

WITNESS STATEMENT

1. The Claimant states that my vehicle attracted a “charge notice” for being parked

in breach of their terms. I will show the reasons why they cannot enforce this

charge against me.

2. On the 28th August 2019, my vehicle was photographed by an unknown person

apparently parked in the location specified by the Claimant.

3. It should be noted that all of the photographs that the Claimant has produced in

evidence are timed within a very short (2 minute) period. The photographs also show

that the driver was present in the vehicle and contradict the Claimant’s Witness

Statement as they do not show a card affixed to the vehicle.

4. The Claimant’s Witness Statement, which was prepared by one of their legal team

and contains no statement from their parking attendant, makes no mention of the

driver’s presence and goes on to state that a small card was left on the vehicle, which

to the best of my knowledge was not the case.

5. I would therefore question why the attendant on the day did not mitigate the

Claimant’s loss by informing the driver that they were on private property, or

observe the vehicle for a sufficient time before issuing the charge notice. There is no

contemporaneous account of the event, so it is difficult to tell.

6. It is my belief that the Claimant has not shown that the driver was actually parked

in contravention of the terms.

Claim No: XXXXXXXX of 61

7. The IPC Code of Practice states that drivers must be allowed a “consideration

period” before enforcement action is taken. The Claimant has not evidenced that the

driver was given this opportunity and it is my belief that the attendant was operating

in a predatory manner, which is also contrary to the code.

8. The Claimant sent me a charge notice (Notice to Keeper) some days after the

parking event.

9. In their Witness Statement, the Claimant states that I had ‘failed to act upon’ each

notice. This is not the case. I have contacted the Claimant asking for further

information to be provided with evidence in regards to the claim so that I could

review my position and act appropriately. The only option provided by the

Claimant has been for myself to accept all liability and pay the charge or to name

the driver of the vehicle on the day in question. As this is not a legal requirement

therefore it is unreasonable to claim that I have failed to act.

10. Instead of engaging with me, the Claimant issued a Claim via the Money Claim

website dated 30th January 2020. I responded by acknowledging the claim and filed

a defence.

11. The Claimant is in breach of the pre-action protocol which requires them to engage

with a defendant following the issue of Letter Before Claim. The Claimant failed to

address my questions and request for further information and proceeded with a

Claim. I believe that this is unreasonable behaviour.

12. My understanding is that the Claimant is a notorious “serial litigator”, has no

interest in engaging with individuals who respond to a Letter Before Claim and

makes the minimum effort to respond (or does not respond at all) before issuing a

claim should the charge not be paid.

13. The Claimant is unable to enforce the charges they allege apply, for reasons

including, but not limited to, their own failure to abide by the Protection of

Freedoms Act (the POFA) 2012 Schedule 4 - not abiding by the statutory timescales

and prescribed wording not present on their NTK.

29.1. The POFA is legislation introduced by the government to provide a

mechanism for a parking firm, provided it fully complies with the strict terms

of the statute, to acquire the right to recover debt from the keeper of the

vehicle if the identity of the driver is unknown. It was the intention of the

government that this would be the only lawful means that parking charges

could be recovered from the keeper.

29.2. Although the British Parking Association Limited (BPA) and the International

Parking Community (IPC) Codes of Practice are not statutory, the BPA code of

practice was given a quasi-statutory status in the Judgment handed down by the

Supreme Court, in ParkingEye Ltd v Beavis [2015] UKSC 67, where at and

[96], Lord Neuberger refers to the need for compliance with a code of conduct

in order for parking operators to obtain data from the DVLA, and to the BPA

Code being a detailed code of regulations applicable to private parking. This

should transfer and be the case for the alternative Accredited Trade Association

(IPC) and their code of practice also.


29.3. Contrary to the Claimant’s assertions, no notice was left on my vehicle. Even

if a notice was left and hidden from me by the driver, the “card” described in

the Claimant’s Witness Statement is obviously intended to be a Notice to

Driver.

29.4. It is my opinion that the Claimant is playing fast and loose with the rule book.

The failure of the elusive card to have any of statutory information present

upon it in turn means that the keeper cannot be held liable for any breach

undertaken by a driver of the vehicle.

29.5. The Claimant allows drivers five days to pay or submit an appeal. This five-day

limit specified in which the driver has to appeal is also not covered by the IPC

Code which states that appeals should be able to be undertaken for a period of

21 days. This 21 day allowance is also against the Alternative Dispute

Resolution (ADR) for Consumer Disputes (Competent Authorities and

Information) Regulations 2015 which states Alternative Dispute Resolution

should be permitted access for a period of 12 months.

29.6. The ADR service offered by the claimant does not comply with this

regulation.

29.7. The Claimant’s NTK refers to an incident date of 28/08/19 and the issue date of

that notice is less than 14 days later. This is not compliant with Paragraph 8 of

the POFA which states:

“(1) A notice which is to be relied on as a notice to keeper for

the purposes of paragraph 6(1)(a) is given in accordance with

this paragraph if the following requirements are met.

(2) The notice must—

Q. specify the vehicle, the relevant land on which it was

parked and the period of parking to which the notice

relates;

R. inform the keeper that the driver is required to pay

parking charges in respect of the specified period of parking

and that the parking charges have not been paid in full;

S. state that a notice to driver relating to the specified

period of parking has been given and repeat the information

in that notice as required by paragraph 7(2)(b), (c) and (f);

T. if the unpaid parking charges specified in that notice to

driver as required by paragraph 7(2)(c) have been paid in

part, specify the amount that remains unpaid, as at a time

which is—

specified in the notice to keeper, and

no later than the end of the day before the day

on which the notice is either sent by post or, as

the case may be, handed to or left at a current


address for service for the keeper (see sub-

paragraph (4));

U. state that the creditor does not know both the name of

the driver and a current address for service for the driver

and invite the keeper—

(i) to pay the unpaid parking charges; or

(ii) if the keeper was not the driver of the

vehicle, to notify the creditor of the name of the

driver and a current address for service for the

driver and to pass the notice on to the driver;

(f) warn the keeper that if, at the end of the period of 28

days beginning with the day after that on which the notice

to keeper is given—

(i) the amount of the unpaid parking charges (as

specified under paragraph (c) or (d)) has not been

paid in full, and

(ii) the creditor does not know both the name of

the driver and a current address for service for the

driver, the creditor will (if all the applicable

conditions under this Schedule are met) have the

right to recover from the keeper so much of that

amount as remains unpaid;

(g) inform the keeper of any discount offered for prompt

payment and the arrangements for the resolution of disputes

or complaints that are available;

(h) identify the creditor and specify how and to whom

payment or notification to the creditor may be made;

(i) specify the date on which the notice is sent (if it is sent

by post) or given (in any other case).

(3) The notice must relate only to a single period of parking

specified under sub-paragraph (2)(a) (but this does not prevent the

giving of separate notices which each specify different parts of a

single period of parking).

(4) The notice must be given by—

(a) handing it to the keeper, or leaving it at a current

address for service for the keeper, within the relevant

period; or

(b) sending it by post to a current address for service for the

keeper so that it is delivered to that address within the

relevant period.


(5) The relevant period for the purposes of sub-paragraph (4) is

the period of 28 days following the period of 28 days beginning

with the day after that on which the notice to driver was given.

(6) A notice sent by post is to be presumed, unless the contrary is

proved, to have been delivered (and so “given” for the purposes

of sub-paragraph (4)) on the second working day after the day

on which it is posted; and for this purpose “working day” means

any day other than a Saturday, Sunday or a public holiday in

England and Wales.

(7) When the notice is given it must be accompanied by any

evidence prescribed under paragraph 10.

(8) In sub-paragraph (2)(g) the reference to arrangements

for the resolution of disputes or complaints includes—

(a) any procedures offered by the creditor for dealing

informally with representations by the keeper about the

notice or any matter contained in it; and

(b) any arrangements under which disputes or

complaints (however described) may be referred by

the keeper to independent adjudication or

arbitration.

29.8. The method and timing of communication for when the Notice to Keeper

is supposed to be delivered in less than fourteen days is for when the use

of automatic number plate recognition systems are in place. This is not the

case for this parking area. Any images are taken by patrolling

enforcement personnel and have not at any point been issued to the

defendant.

29.9. If it is agreed that a notice was left on the vehicle, the Claimant has

incorrectly used Paragraph 9 of the Protection of Freedom Act 2012,

Schedule 4, when in reality they should have used sections 7 and 8 that

apply in this instance for charges issued via an on-site attendant.

29.10. If it is agreed that no notice was left on the vehicle, the Claimant still fails

to comply with the Protection of Freedoms Act as it fails to use the

statutory warning text and instead states that the keeper is liable for the

charge “within 28 days of issue” which is at least 2 days sooner than the

Act allows.

29.11. The Claimant may state that nothing in Paragraph 4(6) of the POFA

affects any other remedy the creditor may have against the keeper of the

vehicle or any other person in respect of any unpaid parking charges, but

this fails to account for Paragraph 4 (2) which states:

“The right under this paragraph applies only if—


(a) the conditions specified in paragraphs 5, 6, 11 and 12 (so

far as applicable) are met; and

(b) the vehicle was not a stolen vehicle at the beginning of the

period of parking to which the unpaid parking charges relate.”

Paragraph 6 goes on to state that:

(1) The second condition is that the creditor (or a person acting for

or on behalf of the creditor)—

(a) has given a notice to driver in accordance with paragraph 7,

followed by a notice to keeper in accordance with paragraph 8;

or

(b) has given a notice to keeper in accordance with paragraph 9.

(2) If a notice to driver has been given, any subsequent notice to

keeper must be given in accordance with paragraph 8.”

As the Claimant has failed to abide by the requirements of paragraph 7

and 8 or 9, then they fail to abide by paragraph 6 and consequently

paragraph 4 so they have no alternative remedy against me, the keeper.

29.12. Given that all applicable statutory conditions have not been met, the

Claimant cannot recover any charges from the keeper under the POFA.

And given that I cannot be presumed to be the driver there is no cause of

action against me.

29.13. It is my understanding that if any part of the Claimant’s claim shall fail

then the claim should be dismissed in its entirety.

29.14. The POFA also states that the only sum a registered keeper can be pursued

for (if Schedule 4 is fully complied with, which it was not) is the sum on

the NTK. The Claimant cannot add additional arbitrary sums when

pursuing the keeper.

30. I, the registered keeper, am under no obligation to disclose the identity of the driver,

and the onus is on the Claimant to prove their case. The Claimant has shown no

evidence that I was the driver on the date in question.

31. Mr Greenslade’s wording from the POPLA Annual Report 2015 - (Exhibit 1, Page

9, Keeper Liability):

However keeper information is obtained, there is no ‘reasonable

presumption’ in law that the registered keeper of a vehicle is the driver.

Operators should never suggest anything of the sort. Further, a failure by

the recipient of a notice issued under Schedule 4 to name the driver, does

not of itself mean that the recipient has accepted that they were the driver at

the material time. Unlike, for example, a Notice of Intended Prosecution

where details of the driver of a vehicle must be supplied when requested by


the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper

sent a Schedule 4 notice has no legal obligation to name the driver. Any

evidence in this regard may therefore be highly relevant.

32. I refer to the persuasive appeal case of Excel Parking Services v Smith M17X062

(appeal) Stockport, 08/06/2017 a ruling which established that outside of the

POFA, the only alternative course of action against a defendant is if the keeper is a

company entity and the driver an employee engaged on company business (as was

the situation in the case of Combined Parking Services v AJH films). I dispute the

Claimant’s assertion that this case is distinguished when it is clearly not.

33. I also refer to the case of Excel Parking Services v Lamoureux, C3DP56Q5 at

Skipton 17/11/2016. The Judge was critical of the claimant’s attempts to hold the

keeper liable. The judge suggested that the only way Mr Lamoureux could be held

liable was if he was the driver and Excel could prove he was (which they could

not). The judge stated “I think the claim against Mr Lamoureux is totally

misconceived because it has no evidence that he is the driver and it seems to be

relying on some assumption that the registered keeper is the driver because it is not

seeking to rely on the Protection of Freedoms Act 2012”.

34. In the case of Vehicle Control Services vs Quayle C1DP010H, in front of DDJ

Gourley at Liverpool on 4th May 2017; the claim was dismissed on the grounds

that keeper liability did not apply as the Claimant was not compliant with POFA

and they offered no evidence of who was driving.

35. The Defendant refers to Excel Parking Services v Mr B C7DP8F83 at Sheffield

14/12/2016. In this case the Keeper elected to offer no evidence, and put the

claimant to strict proof that he was the driver. This of course was an impossibility

for the claimant. The Judge made it clear that without proof of driver, and without

invoking Keeper Liability, there was no claim against the keeper.

36. Failure to set out clear parking terms, ParkingEye Ltd v Beavis (2015) UKSC 67

distinguished.

36.1. The Claimant relies upon ParkingEye Ltd v Beavis, insofar as the Court were

only willing to exempt a parking charge from falling foul of the penalty rule

which would normally render it unrecoverable, in the context of a private

land car park of commercial value, it being a 'complex' case where the driver

was a visitor with no prior licence or rights to park, and where the signage

regarding the penalties imposed for any breach of parking terms were clear -

both upon entry to the site and throughout.

37. It is my belief that the parking signage in this matter was, without prejudice to

the primary defence, inadequate.

37.1. The signage did not comply with the requirements of the Code of Practice of

the Independent Parking Committee ("IPC") Accredited Operators Scheme,

an organisation to which the Claimant was a signatory.


37.2. The IPC code states that entrance signs should be visible to drivers on

their way into a controlled area. To date, the Claimant has not provided

any photographic proof of their entrance sign.

37.3. The IPC code also states that the main signs should:

“Advise drivers that if a charge remains unpaid for a period of 28

days after issue then an application will be made for the Keeper’s

details from DVLA, or, that they may be requested immediately such

that a notice may be served on the keeper by post;”

There is no such wording on the signs at this location, only a vague

warning that keeper details may be requested from the DVLA.

37.4. As well as not complying with the IPC requirements, the signage is

“forbidding” in nature. The signs offer parking for “Valid VCS Permit

Holders Only”. There is no offer to park for an agreed sum of £100. It

would not be possible to enter into a contract for something which is not

on offer. The matter then becomes one of trespass.

37.4. I refer to the cases of Parking Control Management v Bull, Lyndsay and

Woolford, Claim No. B4GF26K6 & 2 other claims. The parking company

relied on a sign also saying:

“By parking or remaining at this site otherwise than in accordance with

the above you, the driver, are agreeing to the following contractual terms:

You agree to pay consideration in the form of a parking charge in the sum

of £100 to be paid within 28 days of issue”.

District Judge Glenn at High Wycombe on 21st April 2016, concluded

that:-“On each occasion when the defendants parked on the roadway they

trespassed against the interest of Thames Valley Housing Association

Limited and Thames Valley Housing Association Limited would have been

entitled to seek an injunction from doing it and would have been entitled to

sue them for damages and those damages might have represented a

reasonable charge for doing what they had done. However, in my

judgment, there was never any contractual relationship, whether one

categorises it as a licence or simply some form of contractual permission,

because that is precisely what PCM were not giving to people who parked

on the roadway.”

37.6. I refer to PACE Recovery -v- Lengyel, Claim No. C7GF6E3R examined by

District Judge Iyer, sitting at Manchester County Court. In paragraphs 13 to

15 of the Judgment, it is held that if there was any contract, it would have

been impossible for the Defendant to perform.

37.7. Given the similarity of the causes of action between the referenced cases

and the present case, the District Judges’ rulings may be regarded as

persuasive.


37.8. The signs displayed at this location have similar wording to those in the

cases above. There is an implied agreement to pay £100 if one parks

without displaying a permit but, like the case above, this is not a contract.

No offer to park has been extended to non permit holders therefore making

it forbidding.

37.9. You may forbid people if you own the land and seek damages but you can

not ask a parking company on one hand to forbid and then on the other hand

to ask for £100. There is no offer made in these circumstances that any

driver is able to accept.

38. The Claimant is not the landowner and is merely an agent acting on behalf of

the landowner and has failed to demonstrate their legal standing to form a

contract.

39. The Claimant is not the landowner and suffers no loss whatsoever as a result

of a vehicle parking at the location in question.

40. The Claimant is put to strict proof in the form of a valid contract, between Vehicle

Control Services and the landowner, that shows it has sufficient interest in the land

or that there are specific terms in its contract to bring an action on its own behalf.

As a third party agent, the Claimant may not pursue any charge.

41. If in the alternative it is the Claimant's case that his claim is founded in trespass

(which is in any event denied) then any damages in trespass can only be assessed

based on a calculation of the proportion of income lost based on the time of the

alleged occupation. Any sum sought could therefore only be minimal and de-

minimis.

42. Only the landowner can pursue a case under the tort of trespass not this Claimant,

and as the Supreme Court in the Beavis vs ParkingEye (2015) [2015] UKSC 67

case confirmed, such a matter would be limited to the landowner themselves.

43. The Claimant’s Witness Statement is signed as a statement of truth by Ambreen

Ashad. I submit that this individual has no direct knowledge of this car park, was

not present at the time of the parking event and therefore cannot accurately state

what happened on the material date. I again note that there is no contemporaneous

statement from the attendant who photographed my vehicle. Statement of Truth

I beieve that the facts contained in this Witness Statement are true. I understand that

proceedings for contempt of court may be brought against anyone who makes, or causes to

be made, a false statement in a document verified by a statement of truth without an honest

belief in its truth.

Signed:

Dated:

chris0147, Defendant


IN THE COUNTY COURT AT MANCHESTER Claim No.

C0DP9C4E/M17X062

Manchester County Court and

Family Court Hearing Centre

1 Bridge Street West

Manchester

M60 9DJ

Thursday, 8th

June 2017

Before:

HIS HONOUR JUDGE SMITH

Between:

MR ANTHONY SMITH

Appellant

-v-

EXCEL PARKING SERVICES LIMITED

Respondent

______________________

Lay Representative for the Appellant: MR CLAYTON

Counsel for the Respondent: MISS A

______________________

JUDGMENT

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JUDGMENT

HIS HONOUR JUDGE SMITH:

1. I am dealing with two conjoined appeals by Anthony Smith against a decision of Deputy District Judge Cowell sitting in the Stockport County Court on 13th March 2017 in favour of Excel Parking Services Limited.

2. The claims are both claims which are very familiar to these courts in that they arise from

the parking of a vehicle on private premises in what is ostensibly a public car park but in

circumstances which, because of the existence of clear signage, give rise to a contract between the person who is driving the vehicle and parking it and the company which is entitled to charge for the parking. There seems to be no serious dispute in this case that all

of the necessary elements of a contract were met on the dates in question, namely 2nd and 8th May 2015, but for the identity of person who was actually driving the vehicle.

3. Deputy District Judge Cowell in a very brief judgment which I have read, stated that both

parties relied on a decision of the Court of Appeal, Combined Parking Solutions Limited v AJH Films Limited [2015] EWCA Civ 1453, and she found that there was nothing to

significantly distinguish the facts in that case from this case.

4. I drew to the attention of the parties at the outset of this hearing the Practice Direction on

the citation of authorities, going back to 200, which specifically states that a decision on an

application for permission to appeal must not be cited unless it established a new principle or extended the present law. That was not the case in relation to the case of Combined

Parking Solutions v AJH Films. It established no new principle. It was clearly and on its

face decided on the specific facts of that case which involved the defendant being a company rather than an individual and it also was a very short judgment of a single Lord

Justice. Therefore it is not a judgment which should have been cited to the deputy district judge and insofar as she appears solely to have based her judgment on that, it seems to me

that she did fall into error.

5. Rather surprisingly, after having given her judgment, the deputy district judge was told for

the very first time by the parties that there had been a judgment precisely one week earlier

in the same court between the same parties by Deputy District Judge Hunter arising from

another parking occasion on the same property on 7th May 2015, I think. The date does not

really matter. That was a much more extensive judgment and again relied heavily on

Combined Parking Solutions Limited v AJH Films Limited, and the Deputy District Judge

Hunter reached the contrary conclusion to that of Deputy District Judge Cowell. She was

therefore faced with a position where there were inconsistent judgments on exactly the

same facts between exactly the same parties and it was for that reason that she gave

permission to appeal. She was also critical of the parties, and I adopt that criticism, that

neither of them had drawn this to her attention before the hearing commenced. Although

both parties are at fault in that respect the greater share of the responsibility must fall on the

legally represented party, Excel Parking Services Limited, who would have been more

aware of the need to draw that to her attention.

6. The matter, as I say, comes before me today and, having raised the issue of the improper

citation of Combined Parking Solutions Limited, counsel for Excel agreed with me that the

appropriate approach was based on the law of agency in general terms even without

reference to that specific case. In that respect I drew her attention to paragraph 8-068 of

Bowstead on Agency which states:


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“An undisclosed principal may sue or be sued on a contract made on his

behalf or in respect of money paid or received on his behalf by his agent acting within the scope of his actual authority. Where a contract is

involved the agent on entering into it must have intended act on the

principal’s behalf.”

7. In response she submitted, and I accept, that in addition to actual authority I can consider

implied authority, namely, authority to do anything reasonably incidental to the use of the

vehicle. I accept that this may be a situation for implied authority or actual authority.

8. The position of Mr Smith is not challenged in that he says that although he is the

registered keeper of the vehicle he had actually bought it for the use of his granddaughter, she had used it at all material times and she had used it on the occasions

in question. He denies that there was ever any intention for her to enter into this

contract on his behalf. 9. In response Excel contend that there is in the facts of this case a unique relationship

between Mr Smith and his granddaughter such that it was her intention to enter into the

contract on his behalf and not her own, namely, he had chosen to retain the ownership

of the vehicle and he had permitted her to drive it and he therefore would have retained

specific legal responsibility in situations, for example, where she had been caught

speeding or involved in an accident as registered keeper he would have been contacted

in the first instance if she had not provided details on the scene. 10. In my judgment, as suggested by Mr Clayton, who I have allowed to act as lay

representative of Mr Smith, those are not particularly good analogies because there are specific legal obligations on a keeper of a vehicle in those circumstances and they are

not governed by the general law of agency. 11. There is, of course, a specific regime within the Protection of Freedoms Act 2012,

schedule 4, to allow a parking company in precisely these circumstances to take

proceedings against a registered keeper of a vehicle in circumstances where the identity

of the driver is not known. Excel did not choose to take such proceedings and instead

rely today on the general law of agency. 12. I did express in the course of submissions some concern as to Mr Smith’s reason for

simply not telling Excel in response to the notices served on him that it had been his

granddaughter who was driving the vehicle and his son-in-law, Mr Clayton, in his

submissions and also in the way in which the defence is drafted makes it clear that, if I

can put it in colloquial terms, Mr Smith does not have a lot of time for Excel seeking

parking charges in these circumstances. The fact is that they are legally entitled to do

so, but his conduct does not derogate from the general law of agency. 13. In my judgment the claimant in the action, Excel Parking Services Limited, who bear

the burden of proof, have not satisfied me on the balance of probabilities either, first ly,

that the contract was made on behalf of Mr Smith, secondly, that it was in the scope of

his granddaughter’s actual or implied authority to do so, or thirdly, that she intended to

act on his behalf. It seems to me that quite the contrary is the case, that somebody


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parking a car in a car park would expect themselves to be liable for any parking charges.

For example, if the person parked the car and went to the machine to pay, the normal

assumption would be that they would be paying with their own money and would not be

looking for reimbursement from the keeper of the vehicle. That would be a parking contract.

I can see no reason why a different analysis should apply if somebody does not pay at all or

pays but overstays the period for which they are paying.

14. In all those circumstances it seems to me that Excel have failed to make out their claim.

That, on the face of it, does put a company like Excel in a difficult position because they have

to work on an assumption that the registered keeper was the driver unless the registered keeper

tells them to the contrary and that enables a registered keeper to prevent the company from

taking proceedings against the correct defendant, namely the driver. It may well be that that is

precisely why schedule 4 of the Protection of Freedoms Act was enacted to enable companies

in those circumstances to have a real remedy. Whether or not that is the case, and I do not

know, this judgment does not leave companies like Excel without a remedy, for that reason.

Accordingly the appeal is allowed.

THE JUDGE: Yes, is there anything further that arises?

MISS A: No, thank you, your honour.

THE JUDGE: No, thank you. Therefore the appeal is allowed and the order, or orders because I

assume she made separate orders in both cases, are set aside and the claims are dismissed.

MR CLAYTON: All right. Can Mr Smith get his costs by any chance?

THE JUDGE: What costs?

MR CLAYTON: Because obviously I quite agree with what you say, it should have never

been... got here in the first place. With regard to three separate cases that could all have been

heard at once it was put to the court that they could be heard all at the same time. I think they

have been disproportionate in putting three cases, you know... they put three cases obviously

for the same thing as three separate cases so obviously we are here now because one judge has

said one thing, one judge has said another thing, and there has been a conflict, an abuse of the

court’s process.

THE JUDGE: I am sorry, you have not answered my question, what costs.

MR CLAYTON: Yes. So obviously he has had to draft... we have had to draft all this, pay fees

for the court, a transcript, [inaudible] transcript, parking, you know, these things cost him

money. He did not have to be here.

THE JUDGE: Usually a successful appellant can recover any court fees and disbursements.

The small claims costs regime will apply to his actual legal costs or costs of his own time,

but is there any reason why Excel should not pay the disbursements?

MISS A: There are no details of any costs paid. We are not aware of what those costs may

be.


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THE JUDGE: Do you have details?

MR CLAYTON: The transcripts cost Mr Smith £80. I know that the costs are limited in the

way, you know, obviously... There was time obviously preparing paperwork, obviously you

can see the trial bundle here. Stationery fees. You know, the nominal...

THE JUDGE: Was there any appeal fee paid to the court?

MR CLAYTON: Not at this moment in time, no.

THE JUDGE: Because there is usually a fee. Is he fees exempt then?

MR CLAYTON: I think so, yes. [Inaudible] fees exempt. So I think he is... so we did not hear

from the court regarding the fees. We just ticked the box to say about the fees. So I do not

know if they are going to come back and say we want our fees. I do not know. I do not know

how that works.

THE JUDGE: No, if a fee was due it would have been collected when the documents were filed.

MR CLAYTON: Right, that is fine. That is not a problem. So it is just really for Mr Smith’s

time and...

THE JUDGE: I am afraid for a small claims matter which includes an appeal no allowance is

made for time.

MR CLAYTON: That is not a problem, but he has paid out on stationery, transcripts, things

like that.

THE JUDGE: I will allow the cost of the transcript. I will order that Excel pay to him the cost

of the transcript upon provision to them of proof of what that is. The invoice or whatever.

MR CLAYTON: Yes, that is fine. I have kept all the receipts. We have got a parking receipt

here for today.

THE JUDGE: How much is that?

MR CLAYTON: I think it is £9.

THE JUDGE: Right. That again is a normal disbursement, is it not? So transcript fee of £80

subject to proof, parking of £9. I am afraid I am not going to make an order in respect of

stationery. That is just an overhead that I never order.

MR CLAYTON: Right.

MISS A: Your honour, could we include within your order that the payment of £80 be paid

within 20 days of receipt of the invoice?


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THE JUDGE: Fourteen days of receipt. Yes, so you need to send to Excel’s lawyers a copy

of the transcript invoice. They will then have 14 days from receipt to pay.

MR CLAYTON: So is it just the transcript? There is no parking?

THE JUDGE: Since you have got that here I am allowing that anyway.

MR CLAYTON: All right, that is fine.

THE JUDGE: That will be payable.

MR CLAYTON: Right, that is fine. No problem. All right, thank you very much.

THE JUDGE: Thank you. Thank you very much indeed. I will give you one of the two

bundles back since they are effectively identical. Thank you.

MR CLAYTON: Thank you. I have got three here so... Just in case everyone did not have

anything I brought copies.

THE JUDGE: Yes, that is very helpful. Thank you.

MR CLAYTON: Thank you very much.

THE JUDGE: Good afternoon it now is.

MR SMITH: Good afternoon. Have a good day.

THE JUDGE: Thank you.

MR CLAYTON: Take care.

[Hearing ends]


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IN THE COUNTY COURT AT SKIPTON Claim No. C3DP56Q5 and

other

The Court House

Otley Street

Skipton

BD23 1RH

Thursday, 17th November 2016

Before:

DISTRICT JUDGE SKALSKYJ-REYNOLDS

Between:

EXCEL PARKING SERVICES LIMITED

Claimant -v-

MR IAN LAMOUREUX

Defendant

______________________

Case No. C3DP56Q5

Counsel for the Claimant: MR PICKUP

Case No. not known

Counsel for the Claimant: MS RAYMAN[?]

The Defendant appeared In Person

______________________

TRANSCRIPT OF PROCEEDINGS UP TO AND FOLLOWING JUDGMENT







INDEX TO TRANSCRIPT

Page

Opening argument by MR PICKUP ....................................................................................................... 23

MR IAN LAMOUREUX – Sworn

Examined by THE COURT.................................................................................................................... 24 Cross-examined by MR PICKUP ......................................................................................................... 25

Opening argument by MS RAYMAN.................................................................................................. 26


[The quality of the recording was poor in parts;the claimant’s solicitor and the defendant were difficult to hear at times. The transcriber has endeavoured to provide as accurate a transcript as possible.]

MR PICKUP: Good morning, madam.

THE DISTRICT JUDGE: Good morning, Mr Pickup, is it?

MR PICKUP: Yes.

THE DISTRICT JUDGE: Yes, morning, and Mr Lamoureux.

MR LAMOUREUX: That’s it, yes.

THE DISTRICT JUDGE: Yes, please take a seat.

MR LAMOUREUX: Thank you very much.

THE DISTRICT JUDGE: Right. For your benefit in particular, Mr Lamoureux, I am

sure Mr Pickup has heard this before. This is a small claims hearing. That means

that strict rules of evidence do not apply but nevertheless, it is important to tell the

truth at all times. I will not be asking you to give evidence on oath, but that does not

mean that the matter should be taken lightly.

What I am going to do is I am going to go through the points made on both sides,

particularly concentrating on the defence and give you both the opportunity to ask

each other questions and address me as to the relevant law. At the end of the

matter, I am going to give a judgment, with reasons. You can ask me for further

reasons if either side does not understand the reasons. I will also be giving a

judgment, as I say, with reasons at the end of the matter.

Any party who is dissatisfied with the judgment or feels that I have got the law or

facts wrong can ask me for permission to appeal. I will only give permission to

appeal if I think or I agree that I have got the facts or the law wrong, although why I

should give a decision if I think the facts or law are wrong I do not really know, but

even if I do not give permission to appeal, any party who wishes to appeal has 21

days from today. It is a very strict time limit; 21 days from today takes us to 8th

December to make an application to appeal to the designated circuit judge in Leeds.

There is a fee for requesting permission to appeal and any judgment in the

meantime must still be paid.

So that is jumping ahead a bit but I thought I would mention that right at

the beginning.

Thank you for your bundle of documents, Mr Lamoureux, it is very useful. I have

also got from the claimant a witness statement. Have you seen that detailed

witness statement?

MR LAMOUREUX: Yes, I have.

THE DISTRICT JUDGE: Mr Pickup, have you had the claimant’s [sic] bundle?


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MR PICKUP: Yes, we have had everything, I think, yes.

THE DISTRICT JUDGE: Right. MR LAMOUREUX: I have brought copies if anybody... THE DISTRICT JUDGE: If anybody needs anything. Right. Just to summarise, the claim is straightforward. Basically, Excel Parking Services Limited operates a car park. Is it called the Cavendish...? MR PICKUP: Retail Park, yes. THE DISTRICT JUDGE: Retail park in Keighley. It does that under licence from the owner of the car park who gives them permission to run the car park. Not only do they give them permission to do so, the owner of the car park relies upon Excel Parking Services to run a parking scheme, otherwise the car park would become blocked and legitimate shoppers visiting the shops in that location – I am not quite sure which shops they are and no doubt Mr Pickup can tell me if it becomes an issue – would not be able to park. They would not be able to go in and make purchases. So it is important that the landowner has a scheme that works and Excel Parking Services will say, “Well, we have put in place a scheme that works in order to limit the use of the car park to legitimate purchasers shopping in the surrounding retail premises.” Now, as I understand it, the way this parking scheme works is that there are notices at the entrance to the Cavendish... What is it called, Cavendish Retail Park? MR PICKUP: Cavendish Retail Park, madam, yes. THE DISTRICT JUDGE: Retail Park. There are notices at the entry to the car park and dotted around in the car park detailing that this is a 24-hour pay on entry pay and display car park:

“Customers have ten minutes from entering the car park to purchase a valid pay and display ticket. Disabled parking charges apply. Parking enforcement cameras are in operation. Please refer to the full terms and conditions. Signs located at the pay and display machines.” So, in other words, drivers entering the car park are alerted to the fact that this is a pay and display car park and then close to the machines, the actual tariffs are set out, which are also exhibited to the witness statement showing that at all times between Monday and Sunday from 7.00am to 7.00pm, including bank holidays, drivers choosing to park in this car park must pay 50p for the first hour if they just want an hour, £1.00 if they want one to two hours, £1.50 for two to three hours, and £2.50 for three to four hours. Then if they choose to park between 7.00pm and 7.00am at any time, they have got to pay £1.00 for twelve hours’ parking. So those are the signs.

Now, I know you are saying, Mr Lamoureux, that you do not think those signs are

clear or clear enough and the background is yellow, the writing is blue, there are

certain signs all around which you say are a little bit confusing with strange sorts of

pictures on the side there and we will get to that. Now, my understanding of how


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this car park works is this that when a driver enters their registration details

which they have to do into the machine, this is automatically recorded. A

computer obviously feeds the numbers back to the camera which photographs the

vehicle entering and leaving the car park and this is all mentioned in the witness

statement of Mr Krishna [Rao?]. Have you received that witness statement, Mr

Lamoureux?

MR LAMOUREUX: I received the witness statement, yes. I’m concerned that the

witness isn’t here for me to ask questions about this statement and challenge it.

THE DISTRICT JUDGE: Yes, true, he is not here. I take it he is not here, Mr Pickup?

MR PICKUP: No, madam, but we are just relying on his evidence.

THE DISTRICT JUDGE: His evidence.

MR PICKUP: Yes.

THE DISTRICT JUDGE: Well, we will see if cross-examination becomes relevant.

MR PICKUP: Yes.

THE DISTRICT JUDGE: So just to explain, the driver enters a registration number.

That automatically tallies with the vehicle’s details and registration number

which are photographed as the vehicle comes into the car park and leaves.

So there is a camera photographing the vehicle entering, a camera photographs the

vehicle leaving, and a record is made of how long the vehicle remains in the car

park. The entering of the registration number must tally with the photographs of

the vehicles entering and leaving. If the vehicle is there for three hours obviously

the computer will know that the relevant parking charge is whatever it is. Three

hours is £1.50. So the machine will tally with the cameras. It will check the length

of time that the car remains in the car park, checks the registration number, and if

the correct fee has been paid. So it is all highly digitalised as you can imagine, Mr

Lamoureux. So I take it you understand how the system works?

MR LAMOUREUX: Yes, I do. Yes.

THE DISTRICT JUDGE: Now, you are saying that you were not the driver.

MR LAMOUREUX: Yes.

THE DISTRICT JUDGE: That is the thrust of your defence. You were not the driver.

Therefore, you are not liable.

MR LAMOUREUX: Correct, yes.

THE DISTRICT JUDGE: And you are saying that the claimant should be complying

with the Protection of Freedoms Act 2012.

MR LAMOUREUX: That is my... That is the only legal route that they have to hold

the keeper liable.


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THE DISTRICT JUDGE: Yes. Mr Pickup, you are disputing that, is that right? You are

saying you do not have to rely on the protection of—

MR PICKUP: Well, no, madam, we have not used that in the claim form. We are just

relying on the fact that it is a contract when you go in and that’s been breached by the

fact that they... hasn’t paid the £100.00.

THE DISTRICT JUDGE: Sorry, the driver has breached the contract?

MR PICKUP: Well, yes, the relevant—

THE DISTRICT JUDGE: But he says he is not the driver.

MR PICKUP: But he had not informed the claimant of that. There is absolutely no way it

could have known. He has only mentioned this in his defence for the first time. THE DISTRICT JUDGE: Did he—

MR PICKUP: No, he has never mentioned it. The notice—

THE DISTRICT JUDGE: Right, hang on, let me get this right.

MR PICKUP: There has been no appeal. The first time we heard it from Mr

Lamoureux was when he wrote his defence to the claim after it had been issued. Now,

the notice was given—

THE DISTRICT JUDGE: So let me get this. So the defendant did not respond to the

initial letter. Right, let us have a look at that initial letter, Mr Pickup.

MR PICKUP: Yes, it is page 2 of the exhibit.

THE DISTRICT JUDGE: Page 2 of the exhibit.

MR PICKUP: Well, 2 and 3, actually.

THE DISTRICT JUDGE: Right, let us all look at that.

MR PICKUP: There are two pages to it.

THE DISTRICT JUDGE: Let us look at that. Page 2, right, and another one.

MR PICKUP: Yes. That is the second page.

THE DISTRICT JUDGE: Right, so it is addressed to you, Mr Lamoureux.

MR LAMOUREUX: Yes.

THE DISTRICT JUDGE: “This parking charge notice is issued to...” Is that your vehicle,

[REGISTRATION REDACTED]...? Well, are you the registered keeper?


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MR LAMOUREUX: I am the registered keeper of that vehicle, yes.

THE DISTRICT JUDGE: Yes:

“...for allegedly breaching the car park terms and conditions in the

privately operated car park at Cavendish Retail Park. The alleged

contravention was detected and recorded by the automatic number plate

recognition cameras at the site. The reason for the contravention is

parked without purchasing a valid pay and display ticket for the vehicle

registration mark. The terms and conditions to which the driver agrees to

be contractually bound are clearly placed at the entrance to the car park.”

However, you are saying you do not know anything about that because you are not the driver.

MR LAMOUREUX: Absolutely.

THE DISTRICT JUDGE: Right:

“If you were not the driver, please complete and return the relevant

section on the reverse of this notice giving the driver’s full name and

serviceable address in order that we can direct this parking charge notice

and please pass this notice to the driver. If the vehicle was on hire on the

date of the contravention or had been sold prior to the date of

contravention, please provide the relevant details by completing the

relevant section on the reverse of this notice and provide relevant

supporting evidence. Should the registered keeper either provide an

unserviceable name and address of the driver, or the named driver denies

they were the driver, we may pursue the registered keeper for any

parking charge amount that remains outstanding on the assumption they

were the driver.”

Right, all right. Now, the defendant Mr Lamoureux is saying... Sorry, Mr Lamoureux, did you respond to this notice at all?

MR LAMOUREUX: No, I didn’t. There was absolutely no need for me to respond.

THE DISTRICT JUDGE: And why do you say that?

MR LAMOUREUX: There’s no legal requirement for me to respond to that. There’s no

adverse inference that can be made towards me for not responding to it. I wasn’t the

driver. The contravention referred to is absolutely nothing to do with me. I’ve not

entered into any contract with Excel whatsoever. So if the parking charge notice

had been worded differently in a legal format stating the legal statute of the

Protection of Freedoms Act, that would have put upon me a different type of

requirement but they haven’t done that. That is their mistake and their, if you want

to call, it negligence or something else for not doing that, that’s their choice not

to use that statute and therefore there is no requirement for me to name... Even if

I did know who the driver was, there would be no need for me to name that driver.


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THE DISTRICT JUDGE: All right. So going through this step by step, Mr Pickup, what

is the legal requirement on Mr Lamoureux to respond at all to that? He is not the

driver and I take it you cannot prove he was.

MR PICKUP: Well, no.

THE DISTRICT JUDGE: Well, it cannot be contested, can it? We cannot prove that he

was the driver, can we?

MR PICKUP: No.

THE DISTRICT JUDGE: No.

MR PICKUP: Well, the assumption of course, madam, is that it is his vehicle and it was

filmed. I do not think that is denied.

THE DISTRICT JUDGE: Well, he is the registered keeper.

MR PICKUP: The registered keeper.

THE DISTRICT JUDGE: Yes.

MR PICKUP: So they get the details from the DVLA.

THE DISTRICT JUDGE: To show he is the registered keeper, yes.

MR PICKUP: That is the only way they can pursue what we say is the contractual

obligation to pay the PCN, the parking charge notice. That is then sent obviously to

that address, which it was. It clearly states in here about the driver and the terms

and conditions to which the driver agrees to. Now, unless we have any other

information from Mr Lamoureux to say that he is not the driver, it is assumed that

he is the driver, it does say there, “Please note...” Like you have mentioned—

THE DISTRICT JUDGE: Yes, but does he have to? That is the crux of the matter.

MR PICKUP: Well, on the second page as well, madam, it does say at the bottom,

“Notification of the driver, hirer/keeper details” in the yellow box again:

“If you are not the registered keeper of the vehicle on the contravention

date, please provide any information that will lead to the identification of

the correct registered keeper responsible for this charge by completing

the following section and returning it to the address above within 28 days

of the issue date of the notice.”

THE DISTRICT JUDGE: Yes. I take it you got absolutely no response at all until the

defence, is that what you are saying?

MR PICKUP: Sorry, what do you mean, madam?

THE DISTRICT JUDGE: The defendant did not respond at all to any of these letters.


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MR PICKUP: No, nothing. Nothing.

THE DISTRICT JUDGE: Do you accept that, Mr Lamoureux, you did not respond to

these letters?

MR LAMOUREUX: Yes, I do. I mean, this is... I don’t remember receiving the

notices in question, but I don’t deny that I didn’t respond, if that makes sense.

THE DISTRICT JUDGE: Yes. Letters dated...?

MR PICKUP: 6th August, madam.

THE DISTRICT JUDGE: 6th August and what was the other one?

MR PICKUP: Sorry, the other one, madam?

THE DISTRICT JUDGE: The next one, what is the date on the next one?

MR LAMOUREUX: The final reminder notice?

THE DISTRICT JUDGE: Yes, here it is, yes.

MR PICKUP: Sorry, yes, 17th September.

THE DISTRICT JUDGE: 17th September. So you did not respond at all.

MR LAMOUREUX: No.

THE DISTRICT JUDGE: Do you not have to rely on the Protection of Freedoms Act in

that situation?

MR PICKUP: Well, if that is what the defendant is saying, I would say he would have

to say where we breach it. It is on the defendant to say what has been done wrong.

In his defence, he has not mentioned anywhere how it is wrong or how... So the

claimant is unable to locate as to the reasons why he thinks that is the case.

THE DISTRICT JUDGE: Right. Let me just read out the Protection of Freedoms Act:

“(1) This Schedule applies where—

(a) the driver of a vehicle is required by virtue of a relevant

obligation to pay parking charges in respect of the parking of

the vehicle on relevant land; and

(b) those charges have not been paid in full...”

It is section 4 of the Protection of Freedoms Act 2012. Thank you very much by

the way for including that, Mr Lamoureux, very helpful, “Right to claim unpaid

parking charges from keeper of vehicle,” yes.


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MR PICKUP: This was sent to the driver though, madam.

THE DISTRICT JUDGE: Well, no, it was sent to the keeper.

MR PICKUP: Well, sorry, it was sent to the keeper.

THE DISTRICT JUDGE: It was sent to the keeper.

MR PICKUP: It was sent to the keeper, yes, but the... Sorry, carry on. I will not

interrupt.

THE DISTRICT JUDGE: Yes. So you do not know who the driver is, that is the point,

and you are pursuing him because he is the keeper. You cannot prove he is the

driver. Right, so paragraph 4 says:

“(1) The creditor has the right to recover any unpaid parking charges

from the keeper of the vehicle.

1. The right under this paragraph applies only if—

the conditions specified in paragraphs 5, 6, 11 and 12 (so far as applicable) are met; and

the vehicle was not a stolen vehicle...”

Right, just let us get that out of the way. Mr Lamoureux, was this vehicle stolen at any time?

MR LAMOUREUX: No.

THE DISTRICT JUDGE: No, so you are not relying on that one. Then paragraph 5 goes

on to the conditions that must be met:

“(1) The first condition is that the creditor—

(a) has the right to enforce against the driver of the vehicle the

requirement to pay the unpaid parking charges [let us assume for today’s purposes that the signs were adequate

and that the claimant has the right to enforce against the

driver] but;

(b) 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.”

Right, well, that applies here. You do not know the name of the driver and you have

not got a current address. Basically, the defendant to whom you have sent the

notice, you know he is the registered keeper, he is doing nothing and he is saying

absolutely nothing. Paragraph 6:


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“(1) The second condition is that the creditor (or a person acting for or on behalf of the creditor)—

(a) has given a notice to driver in accordance with paragraph 7,

followed by a notice to keeper in accordance with paragraph 8;

or [and this is the important one, I think, here because you do

not know who the driver is]

(b) has given a notice to keeper in accordance with paragraph 9.”

So we know that paragraph 9 comes into play. Paragraph 9 says:

“(1) A notice which is to be relied on as a notice to keeper for the

purposes of paragraph 6(1)(b) is given in accordance with this

paragraph if the following requirements are met.

(2) The notice must—

(a) specify the vehicle, the relevant land on which it was parked

and the period of parking to which the notice relates...”

Now, are we saying that complies, Mr Lamoureux, because you are saying you have not complied.

MR LAMOUREUX: Yes.

THE DISTRICT JUDGE: So I will go through the Act and you then tell me how they

have not complied. So do we accept they have complied with that one?

MR LAMOUREUX: Yes, they have mentioned the place where it was parked and the

period of parking, what they refer to as duration of stay.

THE DISTRICT JUDGE: Yes. Well, it is the same, yes, so they have complied with

that bit. Right, let us keep flipping back.

“Inform the keeper that the driver is required to pay parking charges in

respect of the specified period of parking and that the parking charges

have not been paid in full.”

Yes, do we accept that one has been complied with?

MR LAMOUREUX: I think it’s ambiguous because it doesn’t actually say that the

driver is required to make payment. It says the driver agrees to be contractually

bound.

THE DISTRICT JUDGE: Contractually bound, yes.

MR LAMOUREUX: But it doesn’t use that wording and correct wording in [inaudible]

is essential.


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MR PICKUP: It goes on to say, “In accordance with the applicable terms and

conditions, a payment of £100.00 is required within 28 days,” following on from

what it has just said about that.

MR LAMOUREUX: That is not what my—

THE DISTRICT JUDGE: Sorry, where does it say?

MR PICKUP: Just in the paragraph below the terms and conditions.

THE DISTRICT JUDGE: Yes, here we are:

“In accordance with the applicable terms and conditions, a payment of

£100.00 is required within 28 days of the issue date of this notice.

However, a reduced sum of £60.00 will be accepted if paid within 14 days.”

MR PICKUP: I would say that is enough, madam, to suggest—

THE DISTRICT JUDGE: Right.

MR LAMOUREUX: I dispute that. The Protection of Freedoms Act is a legal route

and the correct wording is mandatory if the Act is going to be used. That’s not what

the parking charge notice says and that is their choice not to word it that way. They

can choose to word it close to the correct wording, or they can choose to use the

correct wording.

THE DISTRICT JUDGE: And you say what would the correct wording... “The driver

is required to pay parking charges in respect of the parking [inaudible] not been

paid in full.” Right.

MR PICKUP: So there is a box as well there saying, “Charge now payable £60.00.”

THE DISTRICT JUDGE: Sorry, where is that box?

MR LAMOUREUX: No, that’s not the [inaudible].

MR PICKUP: Underneath, in between the defendant’s name and the two photographs

in the red box.

THE DISTRICT JUDGE: “Charge now payable £60.00.”

MR PICKUP: Yes.

THE DISTRICT JUDGE: So you are saying, Mr Lamoureux, that (b) has been

contravened.

MR LAMOUREUX: Yes.

THE DISTRICT JUDGE: I will reserve judgment on that. At (c):


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“Describe the parking charges due from the driver as at the end of that

period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the

attention of drivers) and the other facts that made them payable.”

Well, they have said the terms and conditions to which the driver agrees to be

contractually bound upon entering the site are clearly placed at the entrance to the

car park. Are you saying they are in breach of that one, or do you accept that they

have adequately described the circumstances?

MR LAMOUREUX: I’m okay with that. Again, the only thing I have... problem I have

with this is, “Describe the parking charges due from the driver as at the end of that

period...” I’m not sure that’s made clear in the parking charge notice. Yes, there are

references that could be sort of put together to almost make it look like that has

been adhered to, but they’re very separate from each other. I’m not sure that’s...

I’m not sure that complies in that regard.

THE DISTRICT JUDGE: Has there been any decision on whether this notice complies

with—

MR LAMOUREUX: Excel admit it doesn’t comply.

MR PICKUP: Well, I have done many of these cases, madam, and whilst I appreciate

they are all different and they are only persuasive, I have never had a judgment

where the judge has said that this notice does not comply.


MR PICKUP: It has always been taken as a proper notice.

THE DISTRICT JUDGE: What puzzles me, Mr Pickup, is why Excel argues it does not

have to comply with the Protection of Freedoms Act and they do not have to rely on

it. I find that difficult.

MR PICKUP: Yes.

THE DISTRICT JUDGE: I think for today’s purposes you are relying on it, and I can

understand why, but why does Excel take the view that it does not have to rely

because there is case law that the keeper is not the driver? We know the registered

keeper. There is presumption in law that the registered keeper is the driver, is

there?

MR PICKUP: No, madam. I think they are just trying to say that because they have

done all they can, the fact that all they have heard from... Well, eventually they

have heard from Mr Lamoureux, but until they had heard from anyone, all they can

do is rely on what they have already sent. They have not had... Sorry, go on.

THE DISTRICT JUDGE: I think in law if the registered keeper keeps quiet, I do not

think they can then assume that the registered keeper is the driver. I think they then

have to rely on the Protection of Freedoms Act 2012. Anyway, let us carry on.


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MR PICKUP: All right.

THE DISTRICT JUDGE:

“Specify the total amount of those parking charges that are unpaid, as at a

time which is—

(i)specified in the notice...”

Now, have they said... Have they complied with that, do you say?

MR PICKUP: Yes, madam, it does say, “In accordance with the applicable terms and

conditions, a payment of £100.00 is required within 28 days of the issue date of

notice” and then it goes on about the reduced sum.


MR PICKUP: Above that, madam, it does say the reason for the contravention, parked

without purchasing.


MR PICKUP: And then it also mentions the means by which the requirement was

brought to the attention of drivers. Those are the terms and conditions and it

describes how it has been done above that the alleged contravention was detected

and recorded by the cameras.

THE DISTRICT JUDGE: Yes. Strictly speaking, it does not actually say nothing has

been paid, or does on the... Let us have a look at the second one. “Payment of the

outstanding amount of £100.00.” I suppose by implication that is saying it has not

been paid otherwise—

MR PICKUP: And again, that is—

THE DISTRICT JUDGE: The amount payable is £100.00 and so clearly it has not been

paid. I must say, the wording could be clearer:

“Specify the total amount of those parking charges that are unpaid, as at a

time which is—

(i) specified in the notice; and

(ii) no later than the end of the day before the day on which the notice

is either sent by post or, as the case may be, handed to or left at a

current address for service for the keeper...;

(e) state that the creditor does not know both the name of the driver and a

current address for service for the driver and invite the keeper—


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(i) to pay the unpaid parking charges...”

MR LAMOUREUX: I definitely dispute that. There’s no reference to that whatsoever.

THE DISTRICT JUDGE: Yes, where does it say that? It does not seem to say, “We do

not know the name of the driver. Therefore, we are inviting you to pay.”

MR PICKUP: Well, the previous paragraphs are assuming or it is implied that you are

the driver unless you say so otherwise because then it goes on to say in bold, “If

you were not the driver...”

MR LAMOUREUX: The Protection of Freedoms Act, paragraph 9(2)(e) does say to

state that the creditor does not know both the name of the driver and the...

[Inaudible] imply it, just state it.

MR PICKUP: But they do not yet know whether it is... There is no way anybody can

say,

“We do not know the name of the driver because we have not heard anything.”

MR LAMOUREUX: Well, of course they can say that because you do not know the

name of the driver. Of course they can say that.

MR PICKUP: But until we have any more information, there is no way they could say

that, “We do not know the name of the driver.”

MR LAMOUREUX: I, again, don’t understand what you mean by that. You don’t

know the name of the driver so you can say, “At this stage, we don’t know the name

of the driver and we are inviting you to pay.” That seems... I don’t have much, if

any, legal knowledge but that seems clear enough to me.

THE DISTRICT JUDGE: It does not seem to say that, Mr Pickup. I am quite surprised

this point has not arisen before, time and time again. It says that:

“Should the registered keeper either provide an ... or the named driver

denies they were the driver, we may pursue the registered keeper for any

parking charge amount that remains outstanding on the assumption that

they were the driver.”

However, it does not say, “State that the [inaudible] does not know both the name

of the driver and current address.” Yes. You have informed them of the discount

and you have identified the creditor and specified how and to whom payment

or notification should be made. So, Mr Lamoureux, which of those provisions are

you saying have been breached?

MR LAMOUREUX: I’m not happy with subparagraph (b) from section 2.

THE DISTRICT JUDGE: Yes, “

“Inform the keeper that the driver is required to pay parking charges in

respect of the specified period of parking and that the parking charges

have not been paid in full.”


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So those words, “The parking charges have not been paid in full.” Yes, and then—

MR LAMOUREUX: Yes, I submit that subparagraph (e) has not been complied with in

any way, shape, or form.

THE DISTRICT JUDGE: Yes:

“(e) state that the creditor does not know both the name of the driver

and a current address for service for the driver and invite the

keeper—

(i) to pay the unpaid parking charges...”

MR LAMOUREUX: And I know I haven’t got to it yet, but I also submit that subparagraph (f) has not been complied with in any way, shape, or form.

THE DISTRICT JUDGE: Right, (f), let us go on to that. It says:

“(f) warn the keeper that if, after the period of 28 days beginning with

the day after that on which the notice is given—

(i) the amount of the unpaid parking charges specified under

paragraph (d) has not been paid in full, and

(ii) the creditor does not know both the name of the driver and a

current address for service for the driver,

the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so

much of that amount as remains unpaid.”

Right, Mr Pickup, where is that mentioned?

MR PICKUP: Well, again, it is implied through the final sentence of that if you are not the driver paragraph:

“Should the registered keeper either provide an unserviceable name

and address of the driver, or the named driver denies they were the

driver, we may pursue the registered keeper for any parking charge

amount that remains outstanding on the assumption that they were the

driver.”

MR LAMOUREUX: That’s irrelevant to that point. Where is there any mention, “Warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given...”?

MR PICKUP: On the second page, the yellow box mentions the 28 days, that it needs to

be... “If you are not the registered keeper...”


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THE DISTRICT JUDGE: Yes, it does look to me as if it has not been strictly adhered to this Act. Obviously, you will have to address me later, Mr Pickup, on why the Act...

Are you saying you do not have to adhere to the Act, or you do?

MR PICKUP: Well, my instructions, madam, are that we do not because—

THE DISTRICT JUDGE: Why?

MR LAMOUREUX: May I just add a point?

THE DISTRICT JUDGE: Just let Mr Pickup finish.

MR LAMOUREUX: Sorry, yes, of course.

THE DISTRICT JUDGE: I am puzzled as to why the claimant thinks that it can... What

is the authority for saying that if you send this notice to the keeper, which you have

to do, and he does not respond, you do not then have to rely on the Protection of

Freedoms Act 2012?

MR PICKUP: I think it is merely saying that they are relying on the evidence they have

got rather than they are saying that we are using the Act... Sometimes, I have seen

claim forms which refer to the Act and specifically mention the fact that they are

using that Act.


MR PICKUP: But they are not using the Act. They say they are just using it through—

THE DISTRICT JUDGE: Sorry, this company Excel sometimes relies on that?

MR PICKUP: No.

THE DISTRICT JUDGE: Other companies do?

MR PICKUP: Yes.

THE DISTRICT JUDGE: Yes, Parking Eye certainly does.

MR PICKUP: Yes. Because it has come up as an issue in the defence, we are saying—

THE DISTRICT JUDGE: “We did not know before.”

MR PICKUP: —we never mentioned that we were going to rely on it anyway,

effectively.

THE DISTRICT JUDGE: Sorry, are you a solicitor agent, Mr Pickup?

MR PICKUP: Yes, madam.


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THE DISTRICT JUDGE: You do not work for the company?

MR PICKUP: No, I do not.

THE DISTRICT JUDGE: Yes, helpfully, I do know that there is case law that says the

keeper is not the driver and there is no such assumption, but helpfully, Mr

Lamoureux has produced part of an extract. It is R (on the application of Duff) v

Secretary of State for Transport [2015] EWHC 1605, but there is other case law to

this effect. There is no reasonable presumption in law that the registered keeper of a

vehicle is the driver. It is trite law. I do not even need to rely on R (on the

application of Duff v Secretary of State for Transport. Everybody knows that you

cannot assume that the keeper is the driver which is why most parking companies,

such as Parking Eye, always rely on the Protection of Freedoms Act 2012 and the

notice should comply. Any other points in there that you say do not comply, Mr

Lamoureux?

MR LAMOUREUX: No, I was just going to draw your attention and you have

probably already read it, to just underneath subparagraph (f), it does say:

“The creditor will (if all the applicable conditions under this Schedule are

met) have the right to recover from the keeper so much of that amount as

remains unpaid.”

THE DISTRICT JUDGE: Yes, so the Act actually makes that very clear. Yes. Right, I

am puzzled as to why Excel does not think it needs to comply with this Act. I feel

there issome oversight on its part here and cross-examination of Mr... What is his

name again?

MR PICKUP: Krishna Rao.

THE DISTRICT JUDGE: Mr Krishna Rao may have assisted us but, of course, he is not

here and he does not deal with why the Act does not apply. Let us just see what he

says on this. At paragraph 19:

“For the avoidance of any doubt, the claimant does not seek to rely on the

Protection of Freedoms Act or keeper liability in respect of this claim.

Therefore, the defendant’s reliance on the Protection of Freedoms Act is

misconceived.”

I do not understand that. Now, Mr Pickup, can you help me?

MR PICKUP: I cannot offer anymore. I [inaudible] ask if the matter to be stood down

if I could speak to—

THE DISTRICT JUDGE: For a short time. Could you do that please?

MR PICKUP: Yes.

THE DISTRICT JUDGE: Because I am very confused. I am wondering if we have

missed something here.


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MR PICKUP: Yes, madam.

THE DISTRICT JUDGE: I will stand it down for 15 minutes and then depending on

what you say, I must tell you, Mr Pickup, I am minded to say that the claimant has

to rely on the Protection of Freedoms Act in this situation because there is no

assumption that this man is the driver. He is the registered keeper and therefore the

whole thrust of the case will be: has the claimant complied with the Act? I just

say, on the face of it, it looks as if they have not.

MR PICKUP: All right, madam, yes.

THE DISTRICT JUDGE: All right.

MR PICKUP: I appreciate there is another case with Mr Lamoureux—

THE DISTRICT JUDGE: It is exactly the same point because I—

MR PICKUP: Well, I do not know. I cannot say.

THE DISTRICT JUDGE: Sorry, are there two?

MR PICKUP: Yes, there is one at 11.30.

THE DISTRICT JUDGE: Is that on the same points?

MR PICKUP: Well, I am not representing Excel on that case.

THE DISTRICT JUDGE: You are not?

MR PICKUP: But there is somebody else who is here.

THE DISTRICT JUDGE: There is someone else.

MR LAMOUREUX: I just wanted to—

THE DISTRICT JUDGE: No, let me just stand this down for the 15 minutes and I will

then

look at the other... I did not appreciate there was another file as well.

MR LAMOUREUX: Yes, sorry. With regards to that, I did email you. I sent you a

letter, sorry, an email, a few days ago. You might not have got it because I sent it to

Harrogate because that was the only address I had and they said they forwarded it to

you. It was actually to draw your attention to how I thought it was unreasonable for

Excel to have these two cases against me and [inaudible].

THE DISTRICT JUDGE: Yes. Well, I did not see that. Well, we will deal with that in

the second case.

MR LAMOUREUX: I appreciate it was probably a bit short notice.

THE DISTRICT JUDGE: We will deal with that in the second case.


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MR LAMOUREUX: Right.

THE DISTRICT JUDGE: You can leave those papers if you wish, it is entirely up to

you. I will not touch them.

MR LAMOUREUX: I will leave the bag, if that is all right, but I will just take my stuff

to have a read through it.

THE DISTRICT JUDGE: Yes, fair enough. Yes.

MR PICKUP: Thank you very much, madam.

THE DISTRICT JUDGE: Fair enough. Thank you.

[Short adjournment]

THE DISTRICT JUDGE: Mr Pickup, any assistance from those instructing you?

MR PICKUP: I finally got through to them but I did not have my reference number to

hand and then the matter was called on. I do have it now.


MR PICKUP: In the absence of leaving again, I think really the point is that if

Mr Lamoureux could be cross-examined, I would have to ask him whether or not he

was the driver.

THE DISTRICT JUDGE: Well, let us just do that.

MR PICKUP: We have to do that anyway, do we not?

THE DISTRICT JUDGE: Yes. He has already said that he was not, but all right, we will

do that. Mr Lamoureux, you are not under oath but nevertheless, it is extremely

important for you to answer this question truthfully. In fact, I can put Mr

Lamoureux on oath if you prefer.

MR PICKUP: Yes, I think—

THE DISTRICT JUDGE: Shall we do that?

MR PICKUP: Yes.

MR IAN LAMOUREUX – Sworn

By THE COURT

Q. Right, just give your full name and address if you would please. No, it is not on the card.

A. Sorry, I don’t know what I were thinking then. Ian Lamoureux, [ADDRESS REDACTED]


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Cross-examined by MR PICKUP

Q: All right. On the date of 25th

July 2015, did you park in Cavendish Retail Park?

A. No, I did not.

Q. You did not and is your vehicle registration number [REGISTRATION REDACTED]? A. I am the registered keeper of that vehicle.

Q. Who else can drive that vehicle? A. Lots of people who have insurance policies that cover them to drive other cars on

that basis of their policy. On the actual insurance policy is myself and my wife.

Q. Right. So you are saying on that day you do not know... You have not adduced whether or not it was you, or your wife, or was it your son or daughter, did you say?

A. No, I’ve said other people can drive the car on the basis that they have an insurance policy that allows them to drive other cars.

Q. So if it was not you, you don’t know who was driving your car on the day?

A. I’m not saying that, no.

Q. Right. So you are not prepared to answer?

THE DISTRICT JUDGE: So you are not saying you do not know.

A. I’m not saying that, no.

MR PICKUP: You are just not prepared to answer who was driving. A. I’m saying that there’s no legal requirement for me to answer that question and you

have the [inaudible].

Q. Well, I think that might be helpful for the court if you did.

A. It would have been helpful for the court if you’d followed the Protection of

Freedoms Act mandatory wording.

V. Madam, I do not know whether you might allow this evidence into the court today.

I have just been given a print off of a forum which the defendant has made assertions in. Now, I appreciate that it has not been adduced into evidence, but I just

wanted to just show it to you and Mr Lamoureux and see whether he could clarify

anything that is mentioned on it. B. Madam, I object to this. I have no knowledge of the—

THE DISTRICT JUDGE: It is a bit late in the day, Mr Pickup.

A. I’ve no knowledge of this forum. I wouldn’t—

9. I know unfortunately the case was called on late because another matter of 45 minutes

had been slipped in.

MR PICKUP: As in it was given to him this morning before that.


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THE DISTRICT JUDGE: Well, just ask him questions, if you wish.

MR PICKUP: Yes. [To the witness] This is a print off of a forum topic on “Far

[inaudible]” as it is called, private parking, tickets, and clamping, court claim for

BW Legal Excel Parking. The first one is by someone called, “I am I Lad” on 19th

June 2016 and id says:

“I’ve received County Court claim forms from Northampton County

Court for an unpaid PCN. The claimant is Excel Parking Services

Limited. The particulars of claim, the claimant’s claim is for the sum of

£100.00 with monies due from the defendant to the claimant in respect of

the parking charge notice on 25th

July 2015.”

It is blanked out the times and everything for obviously different reasons. It then goes on to say:

“Background – I do not have any specific recollection of this occurrence.

I use this car park regularly, as does my wife who also drives my car.

Other family has also used my car. I usually pay for my parking, but I

know I’ve forgotten on occasions to buy tickets and I’ve received other

PCN letters from Excel and BW Legal.”

I just wondered whether you could confirm or deny that that was yourself who made those comments.

A. I have absolutely no idea what you’re talking about.

Q. All right.


MR PICKUP: That is all I can [inaudible].

THE DISTRICT JUDGE: Yes. Right. All right, is there anything else? I feel I need to

go on and make a judgment now.

[Judgment follows]

THE DISTRICT JUDGE: Anything else?

MR LAMOUREUX: Well, with respect, madam, I’d like to make an application for my

costs.

THE DISTRICT JUDGE: What are they?

MR LAMOUREUX: Could I ask for time to get them to you and work it out?

Because I’ve been working on the case so much, I haven’t brought a costs schedule

with me, but if I could provide something to you in the next few days—


MR PICKUP: Well, none were claimed in the defence or the witness statement.


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MR LAMOUREUX: I do mention it in my defence, sorry, in my witness statement that

[inaudible].

THE DISTRICT JUDGE: Well, I can accept you might have expenses attending today. I

might not need evidence of those. Are you claiming loss of earnings?

MR LAMOUREUX: No, litigant in person expenses as well as—

THE DISTRICT JUDGE: Just attending today?

MR LAMOUREUX: The amount of time I’ve had to spend... Madam, my time has

been spent on defending this misconceived claim against me. I’ve had to spend

hours and hours, time that has been taken away out of my—

THE DISTRICT JUDGE: It is a small claim matter and—

MR LAMOUREUX: Waste my time.

THE DISTRICT JUDGE: What provision is this under? The normal rule is that a

defendant can claim loss of earnings, but they have to be substantiated, and

travelling expenses which generally the court can accept without proof. That is

about as far as it goes. Mr Pickup?

MR PICKUP: Yes, that is what I was about to say. Yes.

THE DISTRICT JUDGE: That is as far as it goes.

MR LAMOUREUX: I am aware from my research that in similar cases to this that

have reached the same judgment as yourself that the defendant has been awarded

costs on a litigant in person basis for the time that it’s taken then to prepare their

case and defend the case and it’s on that basis—

THE DISTRICT JUDGE: Are you sure they were small claims?

MR LAMOUREUX: Yes, absolutely, yes, from the research that I’ve done on these

cases. I’m happy to—

THE DISTRICT JUDGE: Let us have a quick look at the two judgments you have. I am

not sure we are allowed to adjourn for that reason, but I am minded to adjourn the

case because, unfortunately, I do not think I am going to get to it, but then there are other reasons. Accordingly, I am going to dismiss the claim. So Excel Parking and

Mrs S—

MR PICKUP: Well, I was actually the advocate on that [inaudible].

THE DISTRICT JUDGE: Yes, you were, I see that. What happened on that, were there

any costs?

MR PICKUP: No, there were not any costs.


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THE DISTRICT JUDGE: No costs were awarded and the next one is...

Court of Appeal decision, I think. Yes, it is the Court of Appeal. So they can

award costs. I think you may be mistaken, Mr Lamoureux. What we can award in

the small claims court is loss of earnings but they have got to be substantiated up to

a maximum of £95.00 and we can award travel and expenses. So I can certainly

award your travelling expenses today from Keighley to Skipton.

MR LAMOUREUX: It’s okay.

THE DISTRICT JUDGE: Nominal.

MR LAMOUREUX: But thank you.

THE DISTRICT JUDGE: Right. So no costs order. So the claim is dismissed.

MR PICKUP: All right.

THE DISTRICT JUDGE: That is the judgment. The claim is dismissed. You stay in,

Mr Lamoureux. Mr Pickup, what is the lady called in the matter?

MR PICKUP: I think Ms Rayman.

THE DISTRICT JUDGE: Yes. Could you send her in?

MR PICKUP: I will.

THE DISTRICT JUDGE: Ms Rayman.

MR LAMOUREUX: Again, I’ve brought copies of this next case if you want?

THE DISTRICT JUDGE: Yes, I think I have got everything. Yes, unfortunately we are

running a bit late due to the fact that another matter was put in. I might have to

adjourn today.


THE DISTRICT JUDGE: Are you raising the same defence in this one?

MR LAMOUREUX: Essentially, yes.


MR LAMOUREUX: That’s why I’ve... There are differences and in my witness

statement I’ve been able to refer to specifics of the claimant’s witness statement

even though she is not the representative [inaudible] again. I have been able to, you

know, refer to points in that because I got their bundle before I submitted my

witness statement. So I’ve been able to be a bit more detailed and thorough in the

witness statement for this one, but essentially, the alleged contraventions are the

same.


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THE DISTRICT JUDGE: The same.

MR LAMOUREUX: Yes and the main points of the defence are the same.

THE DISTRICT JUDGE: Yes, come in. Please come in, Ms Rayman.

MS RAYMAN: Good afternoon.

THE DISTRICT JUDGE: Good afternoon. Unfortunately, yes, I have had quite a

morning. Let me explain what has happened. These two matters were listed correctly

at ten o’clock and 11.30, one and a half hours each.

MS RAYMAN: Yes.

THE DISTRICT JUDGE: For some reason, a rather lengthy telephone conference

which lasted for an hour was slipped in to the list in a situation where, frankly, it

should not have been. All I can do is apologise at how late this matter is starting.

What I wanted to say is this. I have just heard the matter of Excel Parking Services

v Lamoureux, the other case number, C3DP56Q5, in which I made a finding that

the defendant or the defendant admits he is the registered keeper, but clearly he

denied, on oath, that he was the driver of the vehicle and I accepted that. What

troubled me is that the maker of the witness statement on behalf of the claimant was

not seeking to rely on the Protection of Freedoms Act 2012.

MS RAYMAN: Right.

THE DISTRICT JUDGE: Which, in my view, the claimant would have to do in a case

where they cannot prove who the driver was. They then can proceed against the

registered keeper but only in very specific circumstances they have to comply with

the notice. Now, let me just check, which witness statement is Excel relying on

here, is it the witness statement of Anita [Dyal?]?

MS RAYMAN: Yes, that is correct, madam.

THE DISTRICT JUDGE: What I was going to suggest is really I feel that the claimant

needs to provide further information here as to why it does not feel that it needs to

rely on the Freedom of Information Act [sic].

MS RAYMAN: Madam, if I may. I understand what has happened because I had a

quick two minutes as Mr Pickup exited the room. So he gave me a brief just as

much as you have advised. I am not sure what madam’s understanding is of the Act

or whether my understanding is incorrect in that with the parking charge notices that

have been issued [inaudible] the bundle for Mr Pickup’s previous claim, it says

parking charge notice. It does not actually stipulate notice to keeper or notice to

driver.


MS RAYMAN: With [inaudible] a parking charge notice it is akin to when the old

format in which the parking attendant would have affixed a parking charge notice

on the vehicle’s windscreen and that is what this is. It is that, in effect, save for the

fact that


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because of the ANPR systems, it is no longer manually [inaudible] to the vehicle. It is then computerised and sent out.

THE DISTRICT JUDGE: Yes, indeed.

MS RAYMAN: Now, my understanding of Protection of Freedoms Act was that if you

do want to rely on it, you need to say you are relying on it and then once you have

said you are relying on it, you need to be compliant with what the [inaudible] is.

THE DISTRICT JUDGE: Yes, absolutely.

MS RAYMAN: From looking through my documents and the evidence that the

claimant has provided me with, it has not stated that it relies [inaudible] this claim.

THE DISTRICT JUDGE: No, they have specifically said they are not. I am looking at

paragraph 43.

MS RAYMAN: Yes, of the witness statement.

THE DISTRICT JUDGE: The witness says:

“The defendant states that the Protection of Freedoms Act 2012 schedule

4 has not been complied with. Notwithstanding that, the claimant claims

no right to pursue the defendant as the registered keeper under POFA.”

MS RAYMAN: Right.

THE DISTRICT JUDGE: Sorry, she is saying this.

MS RAYMAN: Yes.

THE DISTRICT JUDGE: Yes. She is saying the claimant has failed to meet the

conditions of the Act and has never acquired any right to pursue the defendant in

this capacity.

MS RAYMAN: No, madam, that is the defendant’s—

THE DISTRICT JUDGE: I see, she [inaudible].

MS RAYMAN: [Inaudible].


MS RAYMAN: So that is the defendant’s position.


MS RAYMAN: And the claimant [inaudible] is that they do not rely on it. They

[inaudible] statute for the benefit of the court in response to the [inaudible]. All

right, we are not relying on it. We do not have to because we have not stated we are

relying on it. There is nowhere on these parking charge notices that says notice to

keeper or


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notice to driver. In fact, it says within these parking charge notices that, “If you are

not the driver, please complete the relevant section…” et cetera. Having no

evidence to suggest otherwise and no evidence to the contrary, the claimant would

have no other option but to go down the route to pursue the owner of the vehicle

because it has not complied with the terms and conditions that state, “If you were

not the driver, get in touch. If you were not the driver, appeal on these

[inaudible].” As we have [inaudible] practice directions, these also have specific

rules to follow in this event, “If you were not the driver, this is the rule. This is your

ground of appeal” but the defendant has not done that. Like I said, [inaudible] no

notice of keeper noted on here. Therefore, that is my understanding of why they

perhaps have said that they are not relying on the Protection of Freedoms Act.

There is some case law that is mentioned in the witness statement, madam,

[inaudible]. Yes, it applies to a different matter, however, the principle again is

what the claimant seeks to rely on. The principle determined by a judge,

determined in the courts, said that this is the [inaudible]. There is no evidence

otherwise and then you would pursue that individual and you would pursue the

registered keeper. I am not sure madam’s opinion as stands is on—

THE DISTRICT JUDGE: Let me tell you what I was minded to do, Ms Rayman.

MS RAYMAN: Yes, of course.

THE DISTRICT JUDGE: I was minded to adjourn the matter.

MS RAYMAN: Right.

THE DISTRICT JUDGE: For several reasons.

MS RAYMAN: Yes.

THE DISTRICT JUDGE: First of all, it is unfortunate that the court has run out of time.

There are some fairly significant issues here which I feel the claimant needs to think

about. On the one hand, it seems to be saying in this witness statement that it is not

placing reliance on the Protection of Freedoms Act 2012. In that case, it needs to

explain to the court how it is going to assert that the registered keeper is liable. So

either it is asserting that this defendant is the driver in which case there has got to be

evidence of it, or it is asserting that he is liable as the registered keeper in which

case it must comply with the Protection of Freedoms Act 2012.

MS RAYMAN: Yes, madam.

THE DISTRICT JUDGE: If it is saying that it does not need to comply with the

Protection of Freedoms Act 2012, it needs to say why and...

MS RAYMAN: I understand. Having read what has been submitted and in light of

the submissions that [inaudible], if you are still minded to... Again, I am not—

THE DISTRICT JUDGE: You would not oppose it?

MS RAYMAN: I would not oppose an adjournment on those grounds.


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THE DISTRICT JUDGE: No and you have made a careful note of what I said and

indeed I have done a judgment on the other matter.

MS RAYMAN: Yes, of course.

THE DISTRICT JUDGE: It has to say either, “This man is the driver and we have the

following evidence,” or, “He is not the driver. Therefore, we rely on Protection of

Freedoms Act” POFA.

MS RAYMAN: Yes.

THE DISTRICT JUDGE: To say, “We have no evidence that he is the driver,” which I

think they are saying, I do not know, “But we are not relying on POFA” I do not

understand their legal position. It needs to be clarified.

MS RAYMAN: All right. Madam, in mind of what I said, did that hold any substance

for you in terms of when I was referring to the parking charge notices not having

notice to keeper and therefore would not go down that [inaudible] down to the

normal as akin to fixing the parking charge notice on the vehicle? Is that a

submission that you...

THE DISTRICT JUDGE: I do not really want to deal with submissions due to a lack of

time.

MS RAYMAN: Right, that is not a problem. Of course, I understand.

THE DISTRICT JUDGE: I feel that the witness statement needs to elaborate on why it

does not feel that it needs to rely on the Protection of Freedoms Act 2012.

MS RAYMAN: Yes. Not a problem, madam. The other thing, if I may, I understand

that the claimant provided you with some extracts relating to this claim. They had

not been provided previously so they have not been submitted into court. So you

may not want to—

THE DISTRICT JUDGE: Make a direction on that. Do you want a direction?

MS RAYMAN: Yes, please.

THE DISTRICT JUDGE: Right and what directions are you—

MS RAYMAN: That in the [following?] extracts the defendant actually states that he

may have been driving the vehicle, he just cannot remember, but he is going to say

it anyway and he hopes he does not get [inaudible] consent to park. That is what it

states in those extracts. If you want to view those or if you want to leave it until the

next—

THE DISTRICT JUDGE: Well, no, as I say, unfortunately I am having to adjourn for

various reasons.

MS RAYMAN: Yes, of course. I understand.


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THE DISTRICT JUDGE: I did think there were some extracts like that because Mr

Pickup mentioned them and I actually felt it would be rather unfair to rely on them

now when they have not been put in evidence.

MS RAYMAN: Yes. I understand.

THE DISTRICT JUDGE: So adjourn to next available date after and we will go back to

the date. How long will those instructing you need to put in this new piece of

evidence?

MS RAYMAN: I would say a maximum of 14 days. It should not take that long,

madam.

THE DISTRICT JUDGE: We will say, “The claimant shall file and serve the evidence

from...” what is it called The Internet Forum?

MS RAYMAN: Yes.

THE DISTRICT JUDGE: “...upon which it wishes to rely.” So, “Claimant shall file

and serve any evidence from The Internet Forum upon which it wishes to rely by

4.00pm on...” Seven days should be sufficient. Yes, let me just have a look. You

can have 14 days if you prefer. We will say by 1st December. Do you want to

serve any further evidence, Mr Lamoureux about this Internet Forum thing?

MR LAMOUREUX: I would like to review my defence and, yes, and I may want to

submit additional evidence.

THE DISTRICT JUDGE: You may want to submit additional

“Defendant shall file—

MR LAMOUREUX: Or rebuttals.

THE DISTRICT JUDGE: —and serve any rebuttal evidence by 4.00pm on...”

you 14 days after that.

MR LAMOUREUX: Thank you.

THE DISTRICT JUDGE: By 15th December 2016. Then the next available... I think

1.5 hours was rather short for these matters given that there are some serious

defence issues here.

MS RAYMAN: Given the defence, yes.

THE DISTRICT JUDGE: I do not understand why it was listed for such a short period.

So adjourned to the next available date after... I am afraid we are now going to

after Christmas.

MS RAYMAN: Yes.

THE DISTRICT JUDGE: So after 9th January... No, I will say after 11th January 2017.

I am going to say time estimate three hours.


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MS RAYMAN: Yes.

THE DISTRICT JUDGE: I think it warrants it.

MS RAYMAN: I saw this [inaudible].

THE DISTRICT JUDGE: It is a short time estimate, is it not, given all the issues that

we have to go through?

MS RAYMAN: Yes.

THE DISTRICT JUDGE: So, “Adjourned until the next available date after 11th

January 2017 time estimate three hours. Claimant shall file and serve any evidence

from The Internet Forum upon which it wishes to rely by 4.00pm on 1st December

2016. The defendant shall file and serve any rebuttal evidence by 4.00pm on 15th

December 2016.”

MS RAYMAN: In light of the issues you wanted clarifying, will that just be the

standard before the hearing 14 days [inaudible] fresh witness statement [inaudible]?

THE DISTRICT JUDGE: Yes. Do you think those instructing you will want to? Yes, I

think they should clarify—

MS RAYMAN: They should, given that that may be the issue again when we get to

that hearing.

THE DISTRICT JUDGE: Well, this reliance on the Protection of Freedoms of Act, they

are going to have to clarify their position on that.

MS RAYMAN: Yes.

THE DISTRICT JUDGE: It could be done in the form of submissions.

MS RAYMAN: Unless that...

THE DISTRICT JUDGE: It is normally.

MS RAYMAN: If it is not yourself, maybe they may deem that as additional

evidence—

THE DISTRICT JUDGE: Which we need. I will tell you what, what I would prefer is

that both parties put forward submissions on—

MS RAYMAN: In advance of the hearings?

THE DISTRICT JUDGE: In advance of the hearing particularly on the Protection

of Freedoms Act 2012. I understand what the defendant’s point is. I am not even

sure he needs to do it, but I will give him permission to—

MS RAYMAN: Yes, that is [inaudible]—


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THE DISTRICT JUDGE: But I think the claimant definitely needs to put in submission

as to why it is not placing reliance on the Protection of Freedoms Act 2012.

MS RAYMAN: Yes.

THE DISTRICT JUDGE: Yes and whether they have complied with that or not. “The

parties shall file and serve written submissions as to why Protection of Freedoms

Act 2012 is applicable or not applicable and whether it has been complied with

by...” So you will have each other’s additional evidence and that is by 15th

December. So by 29th December. So presumably all you will need to say, Mr

Lamoureux, is, “It does apply because I am the registered keeper, not the driver”

and you are saying it has not been complied with and you need to rehearse why.

MS RAYMAN: Yes, a repeat of his defence.

THE DISTRICT JUDGE: A repeat of his defence today.

MS RAYMAN: Yes.

THE DISTRICT JUDGE: I think the claimant has a lot more to explain.

MS RAYMAN: Yes.

THE DISTRICT JUDGE: Yes. Yes, Ms Rayman, anything else that we need so that we

can make today as useful as possible?

MS RAYMAN: In respect to [inaudible] assistance, to specify the

particular...

THE DISTRICT JUDGE: That you are saying have not been complied with?

MS RAYMAN: Yes that have not been complied with so that should the claimant, even

if it is [inaudible] at the hearing, then at least we have got something to go by

instead of spending the majority of the hearing going through the Act.


MS RAYMAN: That may be helpful.


MS RAYMAN: That is great, thank you, madam.

THE DISTRICT JUDGE: All right. Right, thank you, Ms Rayman.

Mr Lamoureux.

MS RAYMAN: You have had a long day.


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THE DISTRICT JUDGE: Obviously, if you want to seek costs on the next occasion, Mr Lamoureux, come armed with evidence.

MR LAMOUREUX: Yes, I will [inaudible].

THE DISTRICT JUDGE: As I say, the small claims rules are fairly clear, I think, but

there

may be some case law that I am unaware of where it has been allowed.

MR LAMOUREUX: Okay, yes.

THE DISTRICT JUDGE: Yes. It may be arguable and you may want to argue that the

claimant has unreasonably pursued the case, something like that.



MR LAMOUREUX: Okay.

MS RAYMAN: Good luck for the rest of the afternoon.

THE DISTRICT JUDGE: Yes. I hope it is better than this. Are you in the next—

MS RAYMAN: It is Mr Pickup that is in the next hearing.

THE DISTRICT JUDGE: Right. It is a totally different case, yes.

MS RAYMAN: The defence is different, relying on different grounds, and we may

have a

hearing. If not, it may be wise to do the same as we have in this one.


MS RAYMAN: Thank you very much.

THE DISTRICT JUDGE: Thank you very much.

MR LAMOUREUX: Thank you.

THE DISTRICT JUDGE: Thank you, Mr Lamoureux.

MR LAMOUREUX: Thanks.

THE DISTRICT JUDGE: Good afternoon to both of you. Goodbye.

MR LAMOUREUX: Thank you very much, and to you. Bye.

[Hearing ends]


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IN THE COUNTY COURT AT HIGH WYCOMBE Claim No. B4GF26K6 & 2

OTHER CLAIMS

The Magistrates and Family Court

Easton Street

High Wycombe

HP11 1LR

Thursday, 21st April 2016

Before:

DISTRICT JUDGE GLEN

Between:

PARKING CONTROL MANAGEMENT (UK)

Claimant -v-

CHRISTOPHER BULL

Defendant

______________________

Counsel for the Claimant: MR THOMAS SAMUELS

Lay Representative for the Defendant: MR DAVID CARROD

______________________

JUDGMENT APPROVED BY THE COURT







JUDGMENT DISTRICT JUDGE GLEN:

1. I give this judgment in all three cases brought by Parking Control Management (UK)

Limited against the following defendants: Mr Christopher Bull, Miss Jane Lyndsay and

Mr Christopher Woolford. My decision in each case is identical and there has been no

distinction between the defendants that has been brought to my attention which is

material to this case. I have heard these claims together because all parties agree that

they raise identical issues of fact and law and there are very small differences and that

they can be resolved by this single judgment.

2. In each case the claimant brings an action against the defendant for what are described,

and I will call them, parking charges. In the case of Mr Bull it is alleged that he parked

his car, registration number on the roadways of what is known as the Wye

Dene Estate on various dates between 6th October 2014 and 12th November 2014. On

each occasion it is said he incurred a charge of £150, making a total of £750 made up

of a £100 charge and £50 as an additional enforcement amount, as I will call it as

neutrally as I can. In the case of Mr Woolford, he parked a series of different vehicles

on various occasions between 22nd September 2014 and 21st December 2014. Again on

each occasion he has been visited with a £150 total charge, making a total of £1,350. In

the case of Miss Lindsay, she parked a vehicle, , on various occasions

between 6th October 2014 and 16th December 2014 and in the same way has incurred a

total charge of £900. There is no dispute in this case that the vehicles in question were

parked on the roadways of the estate on the dates and times that are said to have

incurred the charge.

3. The claimant in this case has been represented by Mr Samuels of counsel and I am

grateful to him for both his succinct skeleton argument and his succinct submissions on

the points at issue which I will identify in a moment. Mr Carrod has come to represent

the defendants. I have allowed him to speak on their behalf and he has done so again

with economy and clarity and I am grateful to him also for his skeleton argument on

the points in issue.

4. As part of this case I have read the various documents presented to me by the parties,

which include but are not limited to a witness statement from each defendant in more

or less identical terms, their original defences, again in more or less identical terms, and

the replies to those defences and the witness statements in each case of Miss Philpott,

again in pretty much identical terms. I have taken all of those matters into account in

reaching my decision together with the oral submissions made to me by the parties in

the course of this morning’s, now this afternoon’s, hearing.

5. The facts of this matter are simply as follows. The Wye Dene Estate is, as I understand

it, a development of properties which, for relevant purposes, have been let on shared

ownership leases by Thames Valley Housing Association. Each of the defendants holds

a property (it may be a flat or a house, I do not know, I suspect it is probably a flat) on

a shared ownership lease and that shared ownership lease appears to have included not

only the flat itself but also a single parking space for their use.

6. I indicated during the course of the hearing that I would assume, and I do assume, for

the purposes of this judgment because unfortunately no copy of the leases are before


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me, that the leases in the usual way contain the demise of a term of years in relation

to both the flat and the parking space and grant rights of way or easements, to give them their technical term, over the communal roadways. For these purposes I am

sure they grant rights of way over other areas too, but over the communal roadways

on the estate. As a matter of law, a right of way does not convey a right to park.

7. In 2013 it appears that the managers of the estate and the residents had a meeting at

which an indication was given that there was an intention to introduce a parking

regulation scheme relating to the roadways. One of the issues that we had to resolve

at the start of this case was that it was said at that meeting that the purpose of the

parking scheme was to deter offsite parking, ie, by people who do not live on the

estate. I had to consider whether that was an issue which had its own separate life in

the context of these proceedings. I decided that it would be wrong, as it was not

raised in the defence, to allow it to be used for anything other than an indication of

one purpose for the scheme, but we have no evidence of what was said at the

meeting other than what Miss Lindsay says and we have no evidence from Thames

Valley Housing Association about the purpose for which they appointed, as I am

satisfied they did appoint, the claimant to regulate parking on the land. 8. At some time, perhaps in 2013 but probably more likely in 2014, the claimant

erected various signs at various points along the roadways of the estate and there

has been no suggestion to me in argument that those signs did not adequately draw

to the attention of persons on the estate what they have to say. Those signs say this. They are headed by Parking Control Management’s logo and they say this:

“This site is private land and is managed and operated by PCM (UK) Ltd. Parking conditions apply.”

Those parking conditions are stated to be as follows:

“No parking on this roadway at any time. No parking either wholly or

partially on paved, landscaped or access areas at any time. Enforcement in operation 24 hours.”

Then in slightly smaller type underneath those one would have thought fairly clear words are these words:

“By parking or remaining at this site otherwise than in accordance with the above you, the driver, are agreeing to the following contractual terms.”

There is a box saying “Parking charge notice” and it says:

“You agree to pay consideration in the form of a parking charge in the sum of £100 to be paid within 28 days of issue. This is reduced to £60 if

paid within 14 days. You will be liable for additional parking charges

for each and any subsequent 24-hour period or part thereof that the

vehicle remains or if it returns at any time.”

Then there are other bits which I am not going to mention, but I will mention this other note:


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“Failure to pay this charge may result in the vehicle keeper’s details

being requested from the DVLA. Enforcement action may incur additional costs that will be added to the value of the parking charge

and for which the driver will be responsible.” 9. I have seen some limited photographs of the estate and from those photographs I

notice that the estate roads are relatively wide, they have fairly generous pavements,

they, as Mr Samuels has suggested, pass by the various flats including the balconies

and windows of those flats and obviously they permit circulation of traffic around

the estate including, of course, delivery vehicles, emergency vehicles and

potentially rubbish disposal vehicles. It is always dangerous to form any opinion

from looking at photographs but I would have said that parking on one side of the

road was unlikely to impede traffic except in the sense that they may have to stop

and pass. Parking on both sides almost certainly would impede certainly larger

traffic. The photographs suggest that people do park on the side of the road on a

regular basis, but that is in one sense neither here nor there. 10. At the start of the case we identified three issues which needed to be resolved in this

case in order to establish whether the claimant was going to succeed or not. The

first of those issues is whether in any sense a contract arose between the claimant on

the one hand and each of the defendants on the other at the time that they parked

their car on the roadways within the estate. The second issue if there is a contract,

because it becomes academic if there was not, was whether the charge was either

potentially a consideration for parking or alternatively a penalty for breach of the

contract which one assumes exists. The last issue was the meaning of the part of the

notice which talks about additional costs being added to the parking charge and the

extent to which the claimant is entitled to add an arbitrary, or a fixed figure at £50,

to the claim in each case for those charges. 11. The issue of parking and charges for parking has been a difficult one over the years

and in particular the issue of whether or not these charges can be considered to be penalties has been one that has attracted some lively litigation involving another parking firm, a well-known firm known as ParkingEye. In the case of ParkingEye Limited v Beavis [2015] UKSC 67, the Consumer Association intervening, the dispute eventually reached the highest court in this country, the Supreme Court, and, as I understand it, on 4th November last year a seven judge court gave an opinion on the outcome of that appeal. I will not summarise the outcome of that decision but I will deal with what the findings were in relation to the issues which we are concerned with.

12. The first issue is the question of contract. In the Beavis case ParkingEye regulated

the use of a car park serving commercial premises where a free parking period was

permitted and where thereafter anybody overstaying the two-hour free parking

period was required to pay a charge of £85. The Supreme Court decided there

essentially was a contract for two hours free parking which, if breached, resulted in

a fixed damages clause requiring payment of £85 and the Supreme Court went on to

decide that that was not a penalty. Analysing the route by which the Supreme Court decided the issue of contract is not easy

because the parties were agreed, as they were before the Court of Appeal, that there was a

contractual relationship between the parties and therefore the matter was


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not argued before the court. However, there are some useful parts of the analysis and I am going to deal with those because this is an important issue.

13. Lord Justice Neuberger, with whom Lord Hodge agreed at paragraph 284 of the

judgment, at paragraph 94 held that Mr Beavis in that case had a contractual licence

to park his car in the retail park on the terms of the notice posted at the entrance

which he accepted by entering the site and those terms were that he would not stay

for more than two hours etc. He notes that the Court of Appeal, and indeed the

Supreme Court, doubted this analysis, but on reflection he says this was correct and

he became clear that this was a contractual licence. 14. Lord Mance, dealing with the same issue at paragraph 189, had a bit more difficulty

with this analysis. He was unhappy with the idea of a contractual licence because,

of course, ParkingEye did not have any interest in the car park itself out of which it

could grant a licence. I am not sure that would necessarily, with respect to a much

more eminent lawyer than myself, have been a fact which would have prevented the

grant of a licence. You do not need a legal title to grant a licence. What he does go

on to say is this. In paragraph 190 he says:

“It may be suggested that Mr Beavis thereby promised nothing which

can in law constitute valuable consideration. He was being given a

licence, on conditions, and he would have been a trespasser if he

overstayed or failed to comply with its other conditions. But

ParkingEye was not in possession of the car park, or capable of bringing

proceedings in trespass. It had a mere right to control parking at the site

– the right to permit or refuse others to park there on such conditions as

it might stipulate. By promising ParkingEye not to overstay and to

comply with its other conditions, Mr Beavis gave ParkingEye a right,

which it would not otherwise have had, to enforce such conditions

against him in contract. Even if no parking charge had been stipulated,

enforcement would still have been possible in law, even if a claim for

damages or for an injunction might not in practice have been likely.

With the stipulated parking charge, the nature of the intended contract is

even clearer, although the question arises whether the Parking Charge is

an unenforceable penalty. The quid pro quo provided by ParkingEye in

return for Mr Beavis’s promise was the grant of permission to park for

up to two hours in its discretion free of charge, on conditions. Each

party thus gave the other valuable consideration.”

15. I simply record that Lord Toulson also provided an analysis of the matter which I

find rather inconclusive and there was no other consideration of the issue by the Supreme Court judges.

16. Why is this important? It is important for this reason. In the Beavis case the scheme

was categorised by the permission the ParkingEye gave Mr Beavis to be in the car

park for a limited period of time. So whether you call it a contractual licence or

whether you simply call it a contractual permission, as Lord Mance in the end did,

that was the consideration and the consideration flowing the other way was Mr

Beavis’s agreement to be bound by those terms. 17. I am afraid that in my judgment that analysis just does not work in this case. It does

not work for this reason. If the notice had said no more than if you park on this


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roadway you agree to pay a charge then it would have been implicit that PCM was

saying we will allow you to park on this roadway if you pay £100 and I would agree

with Mr Samuels’ first analysis that essentially the £100 was a part of the core

consideration for the licence and was not a penalty for breach. The difficulty is that

this notice does not say that at all. This notice is an absolute prohibition against

parking at any time, for any period, on the roadway. It is impossible to construct out

of this in any way, either actually or contingently or conditionally, any permission

for anyone to park on the roadway. All this is essentially saying is you must not

trespass on the roadway. If you do we are giving ourselves, and we are dressing it

up in the form of a contract, the right to charge you a sum of money which really

would be damages for trespass, assuming of course that the claimant had any

interest in the land in order to proceed in trespass.

18. I think Mr Samuels recognised the difficulty of his conditional obligation argument,

ie you must not park here but if you do then you have got to pay, and he urged upon

me in the alternative that one had to look outside of just the roadways and look at

the leases and the rights and obligations under the leases as a whole and to

construct, as it were, a package of mutual obligations and benefits which gave rise

to consideration for a contract whereafter a breach would result in a charge. 19. I am not with him on that argument. The leases are a self-contained set of rights and

obligations. They grant a leasehold title in relation to the parking space and the flat.

They probably grant a right of way over the roadways, but they say nothing at all

about the right to park on the roadways. In my judgment the question of the ability

to park on the roadways is a quite separate matter. On each occasion when the

defendants parked on the roadway they trespassed against the interest of Thames

Valley Housing Association Limited and Thames Valley Housing Association

Limited would have been entitled to seek an injunction from doing it and would

have been entitled to sue them for damages and those damages might have

represented a reasonable charge for doing what they had done. However, in my

judgment, there was never any contractual relationship, whether one categorises it

as a licence or simply some form of contractual permission, because that is

precisely what PCM were not giving to people who parked on the roadway. 20. For that reason alone I will dismiss this claim, but as the parties have taken the

trouble to argue the other issues that arise and in case the matter has to go to any higher court, I will indicate what my views were on the remaining issues.

21. As I have already indicated in the course of argument, the question of whether a

clause is a penalty, assuming we get this far, is whether it is a secondary obligation

imposing a detriment which is out of all proportion to the legitimate interests of the

innocent party to the contract. At paragraph 97 of Lord Neuberger’s judgment he

identified in short form the various legitimate interests of ParkingEye Limited.

They were essentially on the one hand the commercial interests of controlling

parking in terms of the interests of the various commercial entities who would

expect customers to use their car park, and also the commercial interests of

ParkingEye itself in being able to make a profit and cover the costs of running the

scheme. 22. Mr Samuels in argument before me has urged upon me that essentially identical

considerations apply, or at least comparable considerations apply, and I agree with


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him. In my judgment either ParkingEye or Thames Valley had a legitimate interest

in regulating the use of the roadways, in ensuring amongst other things that people

from off the estate did not park there, ensuring that access by people to their own

parking spaces was not restricted, preventing obstruction of the roadways to

emergency or delivery vehicles, and preventing disturbance to residents from

people who park right outside their windows or underneath their balconies and may

or may not decide to exit their car before listening to some music they are

particularly fond of. I also find that it is a legitimate interest on the part of the

claimant to recover money and to make a commercial profit and I would not have

been persuaded that £100 was disproportionate to the legitimate interests that I have

identified.

23. I would, however, have not made any additional award in relation to the £50. In my

judgment this is not a liquidated damages clause. It is not more than telling the

parker that additional costs may be generated if you do not pay. That is a statement

of the obvious, it is not a contractual entitlement and to the extent that it keys up, as

it were, a claim for damages for breach of contract, there is not a shred of evidence

before me to prove that that sum was £50. I suspect that most of the additional costs

identified in Miss Philpotts’ witness statement would have been caught up in the

£100 flat charge in any event and I would have refused to make an award of that

sum. 24. As I have already indicated, for the reasons I have given, all three of these claims

will be dismissed.

MR CARROD: Thank you, sir. I would just like to ask the defendants if they have any

costs they wish to claim?

THE DISTRICT JUDGE: Yes, please do.

MR CARROD: They have taken time off work, if they could do that [inaudible].

The maximum figure you can claim is £95. You have to be able to justify that.

THE DISTRICT JUDGE: Let us just be clear about what we are talking about here,

Mr Carrod. Someone who comes to court as a witness, which effectively also

means a party because they may be called upon to give evidence, is entitled to

recover a maximum of £95 for loss of earnings. So in each case I need to ask

you, I am assuming you are Mr...?

MR BULL: Bull.

THE DISTRICT JUDGE: Are you working currently?

MR BULL: Yes.

THE DISTRICT JUDGE: And have you lost income as a result of coming to court today?

MR BULL: Yes.

THE DISTRICT JUDGE: Does your income exceed the sum of £95 per day?

MR BULL: Yes. Claim No: XXXXXXXX of 61

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THE DISTRICT JUDGE: Do you require that to be given on oath, Mr Samuels?

MR SAMUELS: No, sir, I do not think so.

THE DISTRICT JUDGE: Same questions for you please, Miss Lindsay.

MISS LINDSAY: Yes, I work.

THE DISTRICT JUDGE: You are in work.

MISS LINDSAY: Full time, yes.

THE DISTRICT JUDGE: Have you lost income as a result of coming here today?

MISS LINDSAY: Yes.

THE DISTRICT JUDGE: Do you earn more than £95 a day?

MISS LINDSAY: [No?].

THE DISTRICT JUDGE: Do you want to tell me how much you earn a day?

MISS LINDSAY: [Probably £80?].

THE DISTRICT JUDGE: Mr Woolford?

MR WOOLFORD: Yes. [£95 as well?].

THE DISTRICT JUDGE: All right. Very well. In each case I will order the defendant

recover against the claimant witness expenses in Mr Bull’s case of £95, in Miss

Lindsay’s case £80 and in Mr Woolford’s case £95. Anything else?

MR CARROD: That is all, thank you, sir.

THE DISTRICT JUDGE: Thank you.

MR BULL: Thank you.

MISS LINDSAY: Thank you very much.

THE DISTRICT JUDGE: That is my judgment.

MR WOOLFORD: Thank you, sir.

[Court adjourns]


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Case No: E1QZ7X7C

IN THE COUNTY COURT AT DERBY

Derby Combined Court Centre

Morledge

Derby

DE1 2XE

BEFORE:

DEPUTY DISTRICT JUDGE GRIFFITHS

BETWEEN:

VEHICLE CONTROL SERVICES CLAIMANT

- and -

ADAM BURZYNSKI DEFENDANT

Legal Representation

Mr McFarlan (Counsel) on behalf of the Claimant

Mr Adam Burzynski (Defendant), Litigant in person

Other Parties Present and their status

None known

Judgment

Judgment date: 31 May 2019

Transcribed from 13:23:44 until

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“This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than

in accordance with relevant licence or with the express consent of the Authority. All rights are

reserved.” Number of Folios: 36



Deputy District Judge Griffiths:

1. This is a claim brought by Vehicle Control Services Limited against Mr Adam

Burzynski concerning a claim for recovery of parking charges arising out of the

parking of a vehicle owned by Mr Burzynski on 10 December 2017 at a location known

at Woolpack Lane parking spaces, which is, I am told, located within the Lace Market

in Nottingham.

2. I have heard submissions on the part of the Claimant presented by Mr McFarlan, and I

have heard evidence and submissions from the Defendant, Mr Burzynski. I have also

read a lengthy witness statement put forward on behalf of the Claimant by a person

called Kangheri Hock, a paralegal employed directly by the Claimant which sets out

the details of the Claimant’s processes and exhibits documents relating to those

processes and also exhibits documents which are individually relevant to this particular

event.

3. The vehicle in question was a Ford Fiesta, and it was alleged to have been unlawfully

parked, or parked in contravention of the site regulations, at 20.31 hours, so half past

8 in the evening on 10 December 2017. The car park in question is a permit holder

only car park. Permit holders are only permitted to park on displaying a valid permit

at any particular time and it is alleged by the Claimant that the Defendant’s vehicle

was parked without displaying a valid permit. The sum claimed is £160.

4. The Claimant’s evidence relating to this particular event shows that at the time of this

occurrence one of the Claimant’s patrol officers issued a document which was wrapped

up in a polythene bag and placed under the windscreen wiper of the vehicle, a

document which said:

“Attention, document enclosed. This is not a parking charge notice but

warns that a parking charge may be payable.”

5. It says:

“The car park operator has reason to believe that this vehicle is

parked in contravention of the advertised terms and conditions. As a

result a parking charge notice may be issued to the registered keeper

through the post. You may view details of the recorded contravention and

take the appropriate action by visiting the website address below.”

And directions were then given to a website.

6. Eight days later a document was sent to Mr Burzynski in his capacity as the registered

keeper of the vehicle, a document which appears at page 40 of the Claimant’s bundle.

The document was headed:

“Parking charge notice and notice to keeper.”

And therein was set out a summary of the alleged contravention and a warning that

unless the sum of £100 was paid within 28 days then court action would follow.

Alternatively, if Mr Burzynski were to allege that he was not the driver of the vehicle


then he had to notify the Claimant of the full name of the driver and a current address

for service within the same 28 day period. And if he failed to do that and failed to pay

the parking charge then he would render himself liable for the charge. The amount of

charge stated in that notice is £100.

7. Mr Burzynski challenges the Claimant’s claim on a number of grounds. He made some

very lengthy submissions about the Claimant’s alleged failure to follow the correct

process under the Protection of Freedoms Act 2012. In particular, he submits that the

notice which was applied to the windscreen of the vehicle amounted, in effect, to a

notice to the driver for the purposes of the Act because it refers to the Claimant’s

website which itself sets out in the circumstances of the alleged infringement.

8. Mr Butzynski submits that the notice had all the hallmarks and requirements of a notice

to driver as required by paragraph 7 of Schedule 4 of the Act, namely it must specify

the vehicle, the land on which it was parked and the period of parking. It must specify

the parking charges and explain why they are payable and must specify a period within

which payment must be made. This information was available from the on-line link

referred to in the notice. Under the provisions of paragraph 8(5) of schedule 4, the

notice to keeper should not be issued by the car park operator for at least 28 days from

the day after the date of service of the notice to driver. In this case, the issue date was

only 8 days, the notice being issued on 18 December in relation to the contravention

date on 10 December. Paragraph 4 of schedule 4 provides that a creditor can only

recover unpaid parking charges if the conditions specified in paragraphs 5, 6, 11 and

12 are met. In this context the Defendant asserts that paragraph 6 has not been met

because that paragraph requires that a notice to driver must have been given under

paragraph 7 followed by a notice to keeper under paragraph 8. And Mr Burzynski

asserts and submits that the notice to him as the keeper of the vehicle was therefore

invalid and not in accordance with the provisions of paragraphs 4, 6 and 8.

9. He further submits that the signage in the car park was inadequate and not sufficiently

prominent as to be reasonably noticeable by a user of the car park. The significance

of the signage in general terms in this type of case is important because the

fundamental basis of the car park operator’s claim is based upon a contract alleged to

have come into being between the person parking and the car park operator, the terms

of which are set out in notices displayed at the car park which are deemed to have

come to the notice of the user of the car park.

10. But of course in order for those notices to be effective in conveying the terms and

conditions of the car parking contract, the notices must be reasonably apparent to

anybody using the car park. In this case Mr Burzynski submits that they were not.

The Claimant produces as evidence of the signage a site plan which shows three

warning signs on the rear wall of the car park, together with a number of photographs

of those signs. Just pausing there, there is an internal discrepancy in the Claimant’s

evidence on this point because the site plan at page 28 of the Claimant’s bundle shows

the warning signs in different locations to the photographs.

11. The warning sign on the far right hand side of the site plan is not borne out by the

photographs. There is no sign at that location, although there is one not far from there

on the back wall of the car park as shown on pages 32 and 33 of the Claimant’s bundle.

Going back to the site plan, the warning sign alleged to be exhibited on the far left of


the rear wall again is not borne out by the photographs. There is one quite close to it

but not in the same place, also on the back wall. The photographs themselves are dated

February ‘14 and others in December ‘14 and Mr Burzynski submits that this cannot

be conclusive evidence of the position of signage as at the date of this incident in

December 2017.

12. He says that there was no lighting at the car park and bearing in mind that this incident

occurred during the hours of darkness in December at about half past 8 in the evening,

lighting would have been required to see these notices. He himself has produced

photographs taken at night, albeit in October, but at a similar time of day and under

the hours of darkness, which indeed show the car park as quite a dark place with no

independent lighting. And he submits that the lack of clear signage, and in particular

the failure to exhibit signage at the entrance to the car park not only breaches the

Claimant’s own code of practice but also means that any user of the car park cannot

reasonably be expected to see the signs.

13. The signs themselves are relatively small. I accept Mr Burzynski’s submission that

they are somewhere between an A4 and an A3 size judging by the photographs which

have been produced. All the signs on the photographs appear to be above head height.

They are all on the back wall and in the context of this incident it is significant that the

Defendant’s Ford Fiesta appears to have been parked at the front of the car park some

distance away from the rear wall. In my estimate, doing the best I can, I would say the

car was at least four or five car lengths away from the back wall, which was the location

of the nearest sign.

14. Just pausing there, I have come to the conclusion that the Claimant’s claim fails on the

question of signage. I am not at all satisfied that there was sufficient signage in this

car park for any reasonable user of the car park to have seen the signage at the time

and date in question, under the hours of darkness. I paid particular attention to the fact

that there was no signage at all at the entrance. All the signage was at the rear of the

car park so anybody coming into the car park and turning left and parking at the front

of the car park would stand very little chance of actually seeing the warning signs, all

of which were stuck at the back of the car park in shadow at this particular time.

15. They were above head height which made them all the more difficult to spot, especially

from a vehicle, and were rather small in dimension. Mr Burzynski himself drew

attention to the fact that the walls upon which these notices were posted are walls of

buildings which have in part previously been demolished or in respect of which there

are exposed openings, window openings, some of which have been boarded up, there

are air vents and so forth, all of which give a patchwork quilt appearance to that back

wall.

16. It is unfortunate that the three signs in question are of very similar dimensions to the

blocked up windows which also are at a similar height to those signs, and even looking

at the photographs one has to study them quite intently to realise that amongst that

patchwork quilt of oblong and square shapes on that rear wall there are some warning

signs, and that is when one is aware that there are warning signs supposedly present.

When I was looking at these photographs originally, I had to look quite intently to see

the warning signs. Further, one cannot be sure of the locations of the signs as at 10

December 2017 due to the contradictions between the Claimant’s site plan and

photographs.


17. So, I am satisfied that there was a total inadequacy of warning signs in this car park.

On that ground alone I find in favour of Mr Burzynski. 18. However, I am also minded to uphold his submission in relation to the points that he

raises about the significance of the document that was attached to the windscreen of

the car in question. I think on balance I am persuaded that it was a notice to driver for

the purposes of the Act because it was part and parcel of a process linked to the

Claimant’s website which enabled the recipient of such a notice to be given full details

of the alleged contravention in accordance with paragraph 7 of schedule 4.

19. This to my mind has all the hallmarks of a notice to driver. The effect of that is that

the notice to keeper, which was subsequently issued eight days later, would have been

invalid because it breached the provisions of paragraphs 6 and 8 of schedule 4 which

requires that a notice to keeper cannot be issued until 28 days have elapsed from the

date of the notice to driver. In my judgment, the fact that the Claimant’s document

that was appended to the vehicle states that it is not a parking charge notice makes no

difference in this regard. It has all the hallmarks of a notice to driver and indeed that,

in reality, is what it was.

20. It was a notice given to the driver of the vehicle which contained or referred to all the

details required of a notice to driver for the purposes of the Act, and I think merely

stating that it is not intended to be such a notice has no legal effect. There were other

challenges to the process by Mr Burzynski. He challenged the fact that the sum now

claimed by the Claimant of £160 is excessive because the provisions of paragraph 8.2C

and D coupled with 8.2F mean that the sum claimed by the Claimant has to be limited

to the charge set out in the notice to keeper, which was £100. But in view of the fact

that I have dismissed the claim for other reasons, that point becomes rather academic.

21. In Summary,

(a) The Claim is dismissed on the grounds that the Claimant’s signage was wholly

inadequate no contract was formed between the parties on the basis of that signage.

(b) Although not necessary to decide the case, I uphold the

Defendant’s submission that the Claimant failed to comply with the

provisions of Schedule 4 of the Protection of Freedoms Act 2012

concerning the Notice to Driver and Notice to Keeper.

This Transcript has been approved by the Judge.

The Transcription Agency hereby certifies that the above is an

accurate and complete recording of the proceedings or part thereof.

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Supplementary Witness Statement for chris0147 (Defendant)

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Transcript of Supplementary Witness Statement for chris0147 (Defendant)