Lost to PE in Court Today: Had to happen sooner or later!

bargepole

Claim No: 3JD01025, Croydon County Court, District Judge Parker
ParkingEye represented by Ms Chaker, Solicitors Agent
Ms Maskell assisted by me as Lay Rep
Claim for £165 for 2h 18m stay at Rheidol in Oct. 2102

We were up against it right from the start on this one, when the Judge declared that she was minded to follow the Judgment in Beavis.

A further problem was that, although the defendant had submitted a witness statement saying that she had parked separately in the two distinct areas of the car park, the Judge ruled that whilst that might have been a strong point in her favour, it wasn't pleaded in her original defence, and therefore could not form part of the case.

Her original defence was some piece of template crap she had downloaded from somewhere, before anyone from the forums or I got involved. Most judges would have let that go, but not this one, so the lesson to be learned is make sure all the points are covered, however briefly, in the initial defence, then they can be expanded on in the skeleton.

So this left me with trying to distinguish the Beavis case. I pointed out that they hadn't provided any landowner contract, despite being asked to do so at the directions hearing, and their witness statement from Fletcher King was on PE headed paper, and non-compliant. The Judge was highly critical of PE over this, but in the end ruled on balance of probabilities that PE would not be issuing charges at that location unless they had permission from the landowner.

We also got into the agent/principal argument, and here the Judge ruled that they were acting as an agent for an undisclosed principal, since no principal is indicated on the signage or subsequent letters, so they could take action in their own name.

She basically agreed with HHJ Moloney's analysis that yes, the charge was a penalty, but that it could be commercially justified. I asked if the case could be stayed pending the outcome of the appeal, but she said that the decision would be several months away, and this would be disproportionate to the amount and importance of the claim.

Judgment given to claimant for £175 in total.

We requested leave to appeal, and she said that she wouldn't put it on the Order, but we were free to apply to the Circuit Judge within 21 days, and if we sent in an agreed note of Judgment, she would sign it off quickly for us.


Will advise further if the defendant decides to appeal, but my view is that it's probably not worth the risk.

Redx

shame, but I take your point and not everybody can win, this is part of the current problem where it all depends on the judge and the cases they accept or not I suppose

but a great pity that the initial defence wasnt put together in such a way as to carry weight in court , I assume no popla appeal was made either ?

Ivor_Pecheque

Good on yer' for trying.

This law stuff is all very subjective. Put it this way, if Judges were flying a plane, each having their different "take" on things, you'd likely never fly :-(

bargepole

Redx wrote: »

shame, but I take your point and not everybody can win, this is part of the current problem where it all depends on the judge and the cases they accept or not I suppose

but a great pity that the initial defence wasnt put together in such a way as to carry weight in court , I assume no popla appeal was made either ?

The initial defence was just some outdated template which she found somewhere, and it hadn't been adapted in any way to suit this particular case, so it was virtually worthless.


DO NOT USE TEMPLATES!!!!!


There was no POPLA appeal, because she was a Uni student, and all post went to her parents' home in Croydon. So she was unaware of the parking charge until December when she came home at the end of term, and of course it was well past 28 days so no appeal was accepted by PE.


Had she put this fact in her original defence, we could have made an argument on that point, but she didn't, so we couldn't.

4consumerrights

Unfortunately people will continue to use templates no matter what. Thinking they need do nothing else.

However trying to get people to change their approach to things esp on forums is like trying to get blood out of a stone.

Hot_Bring

And yet again it shows those that preach taking it to court because POPLA is a kangaroo court and part of the scam are suggesting playing a dangerous game.

bargepole

Hot_Bring wrote: »

And yet again it shows those that preach taking it to court because POPLA is a kangaroo court and part of the scam are suggesting playing a dangerous game.

Indeed. I had a chat while we were waiting for Judgment with the LPC Law rep, and she said she does quite a few of these in the South London courts.
In many cases, the defendants turn up with a defence which they've obtained online somewhere, and simply do not understand one word of it, and are incapable of making a coherent argument.

In some cases, this results in Judges awarding full costs for unreasonable behaviour. So that's another £250 on top of the claimed amount.

4consumerrights

Hot_Bring wrote: »

And yet again it shows those that preach taking it to court because POPLA is a kangaroo court and part of the scam are suggesting playing a dangerous game.

Quite and they wont back that advice with hard £££ if someone then lost in court because of their advice.

jkdd77

Given that PE were previously held by the CoA to have committed "the tort of deceit" (in PE v Somerfield), and given that past unredacted contracts suggest that PE do not in fact have the right to pursue claims in their right, the judge's decision, on the balance of probabilities, that PE do have this right seems somewhat questionable.

I'm also surprised the judge was so quick to ignore the actual case law (such as Lordsvale v Zambia), which suggested that commercial justification could only apply where "the predominant function was not to deter the other party from breach", since PE charges are clearly designed to deter the motorist from breach.

"Whether a provision is to be treated as a penalty as a matter of construction to be resolved by asking whether at the time that the contract was entered into the predominant contractual function of the provision was to deter a party from breaking the contract or to compensate the innocent party for breach. That the contractual function is deterrent rather than compensatory can be deduced by comparing the amount that would be payable on breach with the loss that might be sustained if breach occurred."

I don't see any reason why the defendant could not appeal, and then ask for the appeal to be stayed pending the CoA ruling in PE v Beavis. Personally, I hope the defendant does indeed appeal, but understand that it is easy for me to be militant from the safety of my chair when it is not my time and money at risk.

Coupon-mad

That's a shame bargepole - it sounds like it was a thankless task trying to make a silk purse out of a 'pigs ear' of an initial defence when the Judge had already decided she likes the cut of Moloney's jib!

bazster

Hot_Bring wrote: »

And yet again it shows those that preach taking it to court because POPLA is a kangaroo court and part of the scam are suggesting playing a dangerous game.

PoPLA is a kangaroo court and part of the scam. Or do you want to argue otherwise?