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  • FIRST POST
    • bargepole
    • By bargepole 21st Feb 14, 3:24 PM
    • 2,027Posts
    • 5,774Thanks
    bargepole
    Senior Judge Spanks Civil Enforcement in Appeal Hearing
    • #1
    • 21st Feb 14, 3:24 PM
    Senior Judge Spanks Civil Enforcement in Appeal Hearing 21st Feb 14 at 3:24 PM
    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.
    Speeding cases fought: 24 (3 of mine, 21 for others). Cases won: 20. Points on licence: 0. Private Parking Court Cases: Won 27. Lost 9.
Page 1
  • kirkbyinfurnesslad
    • #2
    • 21st Feb 14, 3:33 PM
    • #2
    • 21st Feb 14, 3:33 PM
    Now We are even beating companies represented by QC's!!!
    Well Done You lot!!!,
    • Coupon-mad
    • By Coupon-mad 21st Feb 14, 3:46 PM
    • 48,865 Posts
    • 62,357 Thanks
    Coupon-mad
    • #3
    • 21st Feb 14, 3:46 PM
    • #3
    • 21st Feb 14, 3:46 PM
    Yay! Another one to adduce in defences and this time, that rare beast, an appeal heard by a Senior Judge!
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

  • ledsons teeth
    • #4
    • 21st Feb 14, 4:03 PM
    • #4
    • 21st Feb 14, 4:03 PM
    Bargepole. I wish I owned a hat so I could take it off to you. I am constantly amazed at the hard work you do in these cases. And great results into the bargain. CEL actually turning up to court is a rarity, I believe. Maybe they know the Prankster is two away.
    Well done Sir.
    • Half_way
    • By Half_way 21st Feb 14, 4:03 PM
    • 3,686 Posts
    • 5,223 Thanks
    Half_way
    • #5
    • 21st Feb 14, 4:03 PM
    • #5
    • 21st Feb 14, 4:03 PM
    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.
    what action will civil enforcement, and/or those who allow them onto their land be taking to address the issues raised by this?
    will they be contacting any one who has paid this so called contractual charge to offer an apology and a refund+costs ( where applicable)?
    • The Slithy Tove
    • By The Slithy Tove 21st Feb 14, 4:03 PM
    • 3,201 Posts
    • 4,619 Thanks
    The Slithy Tove
    • #6
    • 21st Feb 14, 4:03 PM
    • #6
    • 21st Feb 14, 4:03 PM
    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.
    Originally posted by bargepole
    • esmerobbo
    • By esmerobbo 21st Feb 14, 4:03 PM
    • 4,646 Posts
    • 6,117 Thanks
    esmerobbo
    • #7
    • 21st Feb 14, 4:03 PM
    • #7
    • 21st Feb 14, 4:03 PM
    Well done, to all concerned!

    May be of interest to another contractual agreement outfit!
    • trisontana
    • By trisontana 21st Feb 14, 4:20 PM
    • 8,921 Posts
    • 13,625 Thanks
    trisontana
    • #8
    • 21st Feb 14, 4:20 PM
    • #8
    • 21st Feb 14, 4:20 PM
    Now We are even beating companies represented by QC's!!!
    Well Done You lot!!!,
    Originally posted by kirkbyinfurnesslad
    I blame it all on those "armchair lawyers" who seem to know the law better than the professionals.
    What part of "A whop bop-a-lu a whop bam boo" don't you understand?
    • Stroma
    • By Stroma 21st Feb 14, 4:26 PM
    • 7,919 Posts
    • 8,408 Thanks
    Stroma
    • #9
    • 21st Feb 14, 4:26 PM
    • #9
    • 21st Feb 14, 4:26 PM
    If it's an appeal, does it mean its binding on other courts?
    When posting a parking issue on MSE do not reveal any information that may enable PPCs to identify you. They DO monitor the forum.
    We don't need the following to help you.
    Name, Address, PCN Number, Exact Date Of Incident, Date On Invoice, Reg Number, Vehicle Picture, The Time You Entered & Left Car Park, Or The Amount of Time You Overstayed.
    Anti Enforcement Hobbyist Member
    • bod1467
    • By bod1467 21st Feb 14, 4:31 PM
    • 14,797 Posts
    • 13,463 Thanks
    bod1467
    If it's an appeal, does it mean its binding on other courts?
    Originally posted by Stroma
    Exactly what I was wondering. However I suspect it's not at a high enough court to be able to set a precedent.
    • bargepole
    • By bargepole 21st Feb 14, 4:34 PM
    • 2,027 Posts
    • 5,774 Thanks
    bargepole
    If it's an appeal, does it mean its binding on other courts?
    Originally posted by Stroma
    Persuasive, but not binding.
    Speeding cases fought: 24 (3 of mine, 21 for others). Cases won: 20. Points on licence: 0. Private Parking Court Cases: Won 27. Lost 9.
    • IanMSpencer
    • By IanMSpencer 21st Feb 14, 4:42 PM
    • 975 Posts
    • 790 Thanks
    IanMSpencer
    Exactly what I was wondering. However I suspect it's not at a high enough court to be able to set a precedent.
    Originally posted by bod1467
    It is a precedent, just not as strong as higher courts. You can certainly refer to it and it will be something that another judge can consider.
  • ledsons teeth
    Just noticed the CEL barrister was Richie Ritchie.
    • bondy lad
    • By bondy lad 21st Feb 14, 4:56 PM
    • 961 Posts
    • 1,024 Thanks
    bondy lad
    well done to all,,,please take a bow.how much did that barrister charge charge????,,,hopefully alot.ritchie ritchie eh,,,more ritchie now then.
    • SevenTowers
    • By SevenTowers 21st Feb 14, 5:05 PM
    • 414 Posts
    • 698 Thanks
    SevenTowers
    Well done BP - Respect!
    • Nodding Donkey
    • By Nodding Donkey 21st Feb 14, 5:41 PM
    • 2,395 Posts
    • 2,012 Thanks
    Nodding Donkey
    I bet there'll be barristers queuing up to represent parking companies now

    I know they still get paid but what an embarrassment
    • The Deep
    • By The Deep 21st Feb 14, 6:06 PM
    • 6,846 Posts
    • 5,865 Thanks
    The Deep
    Excellent news, it seems so obvious. No one in their right mind would agree to pay that sort of some for a few hours parking, why has it not been sat on before, and if it has, why are PPCs still trying their luck.

    All we need now is a few PPCs to appeal against genuine estimates of loss and lose, but I doubt if they will.
    Last edited by The Deep; 21-02-2014 at 6:10 PM.
    • 4consumerrights
    • By 4consumerrights 21st Feb 14, 6:06 PM
    • 1,960 Posts
    • 2,849 Thanks
    4consumerrights
    [
    QUOTE=bargepole;64771218]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.
    Very well done Mr Bargepole and team - why was CEL's charge £150 - was this pre-POFA/previous BPA COP limits?

    Surprising at the choice of Barister by CEL - Mr Ritchie's expertise lies in insolvency cases - maybe CEL will need him again at this rate!

    CEL really must be dumb to appeal - their charges like all PPCs have no legal basis for justification by whatever pretence they purport their charges are based upon.

    If I was the OP - I would seriously consider raising a personal costs notification now against CEL for harassment and stress caused. I note that the original thread stated that also the signage was not compliant - so no "contract" (even if able to offer one) was made and that the sum for the alleged breach did not reflect a genuine pre-estimate of loss. Hardly surprising this was deemed a penalty for failing allegedly to pay for a £5 ticket.

    He quoted at great length, passages from Euro Appointments v Claessens, Exports Credits Guarantee v Universal Oil, and others in support of his arguments......

    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.
    These PPCs do like citing these individually negotiated contracts which have no relevance to their pre-determined signage, which cannot be compared on a like-for like basis to support the commercial justification case.

    No doubt you both enjoyed your well earned buffet - but really Bargepole you are implying that Andy “Two Dinners” Foster may have ate too much? Surely under the terms of their "all-you-can-eat buffet restaurant" it is part of the contractual arrangement that you must eat all that you can for the price paid - depending on the wording and signage of course.
  • kirkbyinfurnesslad
    [

    Very well done Mr Bargepole and team - why was CEL's charge £150 - was this pre-POFA/previous BPA COP limits?

    Surprising at the choice of Barister by CEL - Mr Ritchie's expertise lies in insolvency cases - maybe CEL will need him again at this rate!

    CEL really must be dumb to appeal - their charges like all PPCs have no legal basis for justification by whatever pretence they purport their charges are based upon.

    If I was the OP - I would seriously consider raising a personal costs notification now against CEL for harassment and stress caused. I note that the original thread stated that also the signage was not compliant - so no "contract" (even if able to offer one) was made and that the sum for the alleged breach did not reflect a genuine pre-estimate of loss. Hardly surprising this was deemed a penalty for failing allegedly to pay for a £5 ticket.



    These PPCs do like citing these individually negotiated contracts which have no relevance to their pre-determined signage, which cannot be compared on a like-for like basis to support the commercial justification case.

    No doubt you both enjoyed your well earned buffet - but really Bargepole you are implying that Andy “Two Dinners” Foster may have ate too much? Surely under the terms of their "all-you-can-eat buffet restaurant" it is part of the contractual arrangement that you must eat all that you can for the price paid - depending on the wording and signage of course.
    Originally posted by 4consumerrights
    Maybe a ticket for staying to long ?
  • ColliesCarer
    [ Surely under the terms of their "all-you-can-eat buffet restaurant" it is part of the contractual arrangement that you must eat all that you can for the price paid - depending on the wording and signage of course.
    Originally posted by 4consumerrights
    Does that mean once you have you suffer the Penalty
    (holds hands over ears to drown out the load groans)

    Sorry couldn't resist - but well done to all concerned. Great win!!
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