Senior Judge Spanks Civil Enforcement in Appeal Hearing

At: Luton County Court
Before: Mr Recorder Gibson QC
Date: 21/02/2014
Case No.: 3YK50188 (AP476) On Appeal from Watford County Court
Appellant: Civil Enforcement Limited – Repesented by Barrister Richard B Ritchie QC
Respondent: Kerry McCafferty – Assisted by myself

This was an appeal by CEL against a ruling by Judge Wharton at Watford County Court on 03/10/13, that CEL’s charge of £150 was a penalty, and therefore not enforceable. The original Judge had followed OBServices v Thurlow closely, and reached the same conclusion.

The grounds of appeal were that the Judge at first instance had failed to properly recognise that the £150 was a contractual sum, and was not therefore subject to any test as to whether it represented a genuine pre-estimate of loss.

I was accompanied to the hearing by Andy “Two Dinners” Foster from Pepipoo, who was able to provide some helpful pointers as we went along.

The first issue to be decided was that of representation. The CPR rules do not allow for right of audience for a Lay Representative in an Appeal hearing, but the Judge has discretion over that. Mr Ritchie objected to my speaking on the Respondent’s behalf, and the Judge asked Mrs McCafferty (who had conducted her own case at the original hearing) why she wanted my assistance. She explained that I had written the skeleton argument for her, and was generally more au fait with the issues. He ruled that she was sufficiently articulate to conduct her own case, but that I could assist as a McKenzie Friend.

He then asked Mr Ritchie to present the case for the Appellant, which really centred around the fact that the £150 was a contractual charge, motorists had the choice to pay £5 for a day’s parking by phone, or if they didn’t pay within 10 minutes of arrival, they were contractually liable to pay £150. He quoted at great length, passages from Euro Appointments v Claessens, Exports Credits Guarantee v Universal Oil, and others in support of his arguments. Behind him were sitting Mr Abrahams and a lady from CEL, and they brought with them an actual sign.

The respondent was asked to reply, and we relied on the main points in the skeleton, which were that the purpose of the charge was to deter, and it was therefore a penalty; that the appeal had been brought on different grounds from those at the original hearing; and that the cases cited by Ritchie involved individually negotiated contracts between parties of equal standing, and could therefore be distinguished from the present case.

We were sent out for half an hour while the Judge considered his decision, and at this stage it was difficult to tell which way he was leaning.

When we returned, he went through his summary, the first point being that the requirement to pay £150, although in much smaller font than the rest of the sign, did form part of the contract to which the Respondent agreed. However, he had to look at the construction of the contract, and it was clear to him that the £150 was not a genuine offer to park at that price, but its main purpose was to deter. It was, therefore, a penalty dressed up as a contractual term, and not recoverable.

He dismissed the appeal, and awarded the Respondent her costs. I had applied for costs as a Lay Rep, but as I was now only a McKenzie, no costs were payable.

Ms McCafferty went off a happy bunny, not having to pay a penny of their £350 claim, and Andy and I found an all-you-can-eat buffet restaurant, who will now have to put their prices up after his visit.