ParkingEye DEFEATED in Court today

bargepole

Claim No. 3QT62646
In the: Brentford County Court 23/10/2013
Before: District Judge Jenkins
Claimant: ParkingEye Ltd – represented by Mr. Larda (sp?) of LPC Law
Defendant: Ms Anita Sharma – represented by myself
Amount Claimed: £100 Parking Charge + £50 Solicitor Costs + £25 Court Fee = £175.

The Defendant had parked at Starbucks, on the EuroGarages Heathrow site, allegedly for 1h 45mins, where the PE signage states the max stay time is 1h 30m.

We had prepared a defence, which essentially relied on three key points:

The planning consent for the site (redeveloped in 2012) included a statement from the building consultants that parking would be restricted to 2 hours. The landowner, and/or PE, were therefore breaching those conditions by reducing it to 1.5 hours, and the court had a duty not to allow them to benefit from such illegality under the ex turpi causa rule.

The camera pictures only showed the vehicle at the very edge of the give way line on to the main road, and the defendant had given a statement that she had to queue for a long time to leave the premises. There was, therefore, no actual evidence that she had parked for longer than 1.5 hours.

The claim was for damages arising from breach of contract, but the claimant had not shown how the actions of the defendant had caused a loss, or genuine pre-estimate of loss, to PE.

We assembled at Brentford court shortly before 10am, and then Mr Larda turned up at 10:05. He asked if I was involved in the “Private Eye” case. I said do you mean the satirical magazine, and he eventually got his names right.

He then wanted to hand me two documents, one of which was a further Reply to Defence, attempting to rebut our reply to PE’s original Reply to Defence. This document was dated 16/10, which is 7 days before the hearing, and was never received by the defendant. He also produced a copy of a paid parking charge, from one of PE’s other car parks, which had been issued to the same vehicle at a later date. He said that this proved that the Defendant accepted liability for PE’s contractual charges.

I said that I was sure he was aware of the CPR rules which state that any documents to be relied on in a hearing, must be served on the court and the other side not later than 14 days before the hearing, and I would object to the inclusion of both those documents.

After waiting around for an hour, we were called into Court 2, a proper courtroom and not a side conference room. Judge Jenkins got us all to sit down, established who was who, and we got started.

My kids often call me Mr Grumpy, but this Judge completely redefined that description. Without any preamble, he tore into Mr Larda, asking him whether his client owned the land in question. Once it was established they didn’t, he said that he was going to strike out the claim, but if the landowner wanted to resubmit a new claim in his own name, they could.

At this point, it might have been prudent for the other side to accept that decision, and go away to resubmit a new claim jointly between the landowner and PE. But Mr Larda decided to argue the toss, and waved in front of the Judge a copy of the contract between EuroGarages and PE.

The judge said that contract was a commercial matter between PE and the landowner, and didn’t create any contractual relationship with motorists who used the car park. Mr Larda then started citing Fairlie v Fenton, claiming that it was a case which established that an agent had the right to take legal action in their own name. The Judge asked if he had a transcript of the case – Errr No, was the reply, and the Judge said he wasn’t interested in hearsay about cases which happened in other courts, he was only concerned with this claim in this court.

Undeterred, Mr Larda ploughed on, saying that he disagreed with the Judge’s view of the legal position, and that PE’s claims had been accepted as valid, and cases won, in courts “all over the land”. Again, the Judge asked if he had any transcripts, and again there were none. By this time, the Judge was looking at Mr Larda as if he was wishing we still had capital punishment in this country, and he could reach for his black cap.

At one point, I thought Mr Larda had finished speaking, and was going to jump in and say that, in any case, there were serious contradictory terms in that landowner contract which would render it invalid, but when the Judge barked “Don’t interrupt!”, I kept quiet.

The Judge then announced that, in his opinion, a contractual arrangement to manage parking does not give rise to a cause of action to claim for damages, and the lack of ownership of the land meant that the claimant had no standing to bring such an action in their own name. He was therefore going to dismiss the claim, and wrote copious notes which he said would appear in the written Judgment.

Mr Larda immediately stated that they wished to appeal. The Judge, now looking even more thunderous, said that he would refuse permission to appeal, on the basis that such an appeal would have little realistic prospect of success.

I then asked if the Defendant could be awarded her costs, which we had already submitted in our court bundle. He asked the Defendant whether she had taken the day off work, and what her lost earnings were, but unfortunately she gave a completely different figure from the one I’d put down. So the Judge said that if he had two different amounts, one on paper and one given by the defendant, he wasn’t going to make any costs award at all. Disappointing, but lesson learned.

So in effect, the Judge actually followed the ruling in VCS v Ibbotson quite closely (the transcript of this was in our bundle), but he didn’t actually refer to it during his summary.

Anyway, the bullies didn’t win, so quite a good day!

spacey2012

No right of audience to represent in litigation, a killer in these claims.
You either have it or you dont, you have to have the conveyed right to bring that audience in proceedings.
Never under estimate this point in a defence, this time the judge pulled it for the defendant so hats off to the honourable Judge Jenkins for serving justice.

We Salute you sir.

Guys_Dad

Great result, but I am not sure that the Hon Judge was correct in his judgement otherwise the whole Private Parking industry has just ended!!!!!

Curiosity - in what capacity were you there - McKenzie friend or what?

Guys_Dad

spacey2012 wrote: »

No right of audience, a killer in these claims.
You either have it or you dont, you may have the right to represent in audience but you have to have the conveyed right to bring that audience in proceedings.
Never under estimate this point in a defence, this time the judge pulled it for the defendant so hats off to the honurable Judge Jenkins for serving justice.

We Salute you sir.

How is this relevant??? The judge didn't say that. The judge said that the claimant had no rights of ownership, not that their tub of Larda had no right of audience.

In common law, a right of audience is generally a right of a lawyer to appear and conduct proceedings in court on behalf of their client. That is miles apart from the right of a PPC to claim against a motorist.

bargepole

Guys_Dad wrote: »

Great result, but I am not sure that the Hon Judge was correct in his judgement otherwise the whole Private Parking industry has just ended!!!!!

Curiosity - in what capacity were you there - McKenzie friend or what?

I was there as a Lay Representative - see CPR 27, 3.2

Coupon-mad

Fabulous news. Well done bargepole for going above and beyond.

That is one for a transcript to be obtained by the pepipoo regulars then! :T

fisherjim

What a great result :T
No doubt Parking eye will be adding this to their website news!

peter_the_piper

Sounds like the judge had had a parking eye ticket, either that or was getting fed up with spurious claims. Getting close to vexatios litigant maybe.

spacey2012

The term is conveyance if the right of audience , does the contract convey that right to the representation here today.
If it does not, then they have no right to sit and claim anything.
The Other famous forum has been far to quick to brush this under the carpet, instead relying on defences that enter POFA way too high.
In this case foundation of the case was not prevalent and the judge attacked it himself.
One thing is absolutely certain, always go after this, build your defence on the foundation evidence first, then move forward on to other points.

This case number must now be put forward not as precedent but as recommendation and hopefully a couple more will put parking eye and their poacher turned game keeper on here back in the box.

Attack LOWER than POFA, parking eye wont want too many like this with the bill to go with it as well.

Let us rejoice in this victory and they have lots on the cards as well.
I will be mailing them to remind them to put this on the website, or perhaps the poacher can do it for them ?

Hovite_2

@Bargepole - would you mind if I used a redacted version of your post on the Aldi Facebook page ?

nigelbb

In cases of overstaying in a free car park it has always been my opinion that even if one accepts that there is a contract for parking that the contract can only ever be with the landowner or leaseholder and never with a parking management company. It's nice to see that this judge agrees with me.

This decision does pull the rug away from under the whole PPC scam. If the PPC has no right to take a motorist to court then it must be the landowner/leaseholder who sues the motorist but the PPC was brought in so that the landowner/leaseholder didn't get tainted with the dirty business of enforcing parking regulations. It's like the CIA hiring mercenaries for black ops so they have plausible deniability. The likes of Starbucks or ALDI etc are never going to want to take their customers to court as it would be pure PR poison.