Court Report: Leeds - UKPC v M (Appeal Hearing)

Lamilad

Might want to pour yourself a drink before starting this as, many of you know, I don't do concise court reports.

In fact, it's too long for the main body of this thread so the actual report is posted in the comments below

Court Report

UKPC vs M.  F0HW0M5V (Appeal Hearing)

07/09/20. Leeds Combined Court. Before His Honour Judge Saffman

Claimant/ Respondent represented by Ben Leb of Stour Chambers

Redx

cant see it at all , but thanks for letting us know when you have sorted it, should be a good read

perhaps attach it as a pdf or word doc, or host it elsewhere with a link from here ?

Lamilad

NOTES

I don’t have an in-depth knowledge of this case as I was brought in at the last minute to assist the Defendant/ Appellant, at the appeal hearing, with no prior knowledge of the matters in question. I received the full bundle of documents on the evening of Sunday 6th Sept for the hearing at 10am Monday 7th. I should point out that, as far as I know, this case has been led (not sure from at what stage) by another knowledgeable advisor, with some assistance from Bargepole.

 

Bargepole also provided me with some excellent support and advice on Sunday night whilst I was ‘cramming’. I don’t mind admitting that, as I am not as much involved in parking matters as I used to be, I did feel some nerves and trepidation going into this; mainly due to feeling ‘out of the loop’ and theconcern that I may find myself ‘stumped’ and/or unable to respond to challenges/ curve balls... – [as it turned out being an argumentative so and so who, as my ex wife used to say, “has an answer for everything” is a trait you don’t lose easily]. It also didn’t help that I was going up against a respected Barrister and expert in property law… On top of that, I had never even Lay Rep’d a residential case before.

 

BACKGROUND:

Ms M received 6 PCNs between Aug 18 and March 19 for not displaying a permit whilst parked in her own parking space on the residential estate where she lived, in York. The property is leasehold. The parties to the Head lease for Ms M’s property were the landowners, the estate Management Agency (“MA”) and a housing association who were the Lessee. The residence was demised to Ms M by way of an underlease with the housing association. Both head and under lease stated clearly that Ms M had exclusive use of parking space 23 which was marked out in red on a site plan of the estate. Neither lease mentioned anything about parking management or the requirement to display a permit whilst parked. Ms M had held the underlease since 2004. UKPC were brought in to manage parking on the site in 2014.

 

UKPC issued a claim against Ms M in Aug 19 for the 6 ‘contraventions’. Shortly after Ms M wrote a letter asking them to discontinue proceedings, explaining that she had an exclusive right to park in her space with no restrictive covenants. A copy of her underlease was enclosed.

 

FIRST HEARING

This was held at York County Court on 27/02/20 before Deputy District Judge Ditchfield. Ms M had filed a defence and skeleton argument (“SA”) (forum/ group assisted) but no WS. The C highlighted this as a ‘breach of a court order’ but as there was no significant dispute over facts, the Judge was happy to proceed with Ms M giving evidence on the day. Ms M suffers with various anxiety and stress related conditions which made it difficult for her to present her case in a coherent, intelligible manner. Her main arguments were: -

·         that the case should be struck out as an abuse of process due to the added £60 charge (as per Judge Grand’s order),

·         primacy of contract,

·         lack of authority - as the contract to operate produced by UKPC expired in 2015.

UKPC countered that the lease allowed the MA to bring in new regulations, as needed, to manage the amenities (which included parking spaces). The contract to operate was an ongoing contract as implied, if not explicit, in the wording. They also made a big deal about the fact that the parking space no. 23 was not actually demised to Ms M as part of her property, she was merely allocated ‘a parking space’ and the MA actually retained title over the spaces on behalf of the landowners, and could introduce conditions as they saw fit. – [I never quite understood where they were coming from with this as parking space no. 23 was specifically demised along with the main property under the lease. Perhaps the others involved could elaborate as I only had time to ‘skim’ the leases]

 

In what reads as a quite astonishing Judgement – going against everything we see sensible Judges saying on a regular basis up and down the country – DDJ Ditchfield found that the parking space was not demised to Ms M and, as such, the MA could introduce parking management to protect the amenities for the residents, as allowed by the lease. He also accepted that the contract to operate was valid, as the wording implied it was ongoing; and that the £60 additional charge was allowed as it was a clearly stated contractual charge for debt recovery which was not prohibited by Beavis as the SC Judgement did not discuss third party recovery.

 

APPEAL HEARING

The Judgement was appealed on 3 grounds where it was claimed DDJ Ditchfield had erred in law: -

·         Ground 1: Primacy of the lease – The underlease clearly stated that parking space no. 23 was demised to Ms M and she had exclusive use of it. The location was shown, edged in red, on the site plan

·         Ground 2: Authority to operate – The contract stated it would run for a period of 12 months from when it was signed in 2014. No where was it stated that this was a rolling contract

·         Ground 3: Abuse of Process – It is well established that the £60 charge is an abuse of process because it attempts to countermand the Beavis Judgement; it is disallowed by PoFA s4(5); and is an unfair term pursuant to sch 2 of the CRA

The Appellant’s SA, written by Bargepole, expanded on these grounds and made several submissions in support of each one.

 

I met Ms M at Leeds Combined Court and, after navigating their ill-thought-out one way system, we eventually found our way into the courtroom where I handed the clerk a preliminary matters document requesting that the Judge exercise his general discretion under PD 27, 3.2(3) to allow me to act as Lay Rep for Ms M – something usually not allowed at appeal level. Mr Leb objected to this saying Lay Reps were excluded under the CPRs and that the rules on ROA, as prescribed in the Legal Services Act 2007, were there for a reason and the Judge should take that into account. HHJ Saffman said he would hear me in order to expedite matters and help the hearing run smoothly but would revoke my ROA if he felt it wasn’t working.

 

Judge Saffman asked if I would like to go through my submissions (in the SA) or add anything. I said I had nothing to add but would be happy to discuss or clarify any points if it assisted the court. The Judge shook his head so I said I would like to challenge the Respondent’s submissions.

 

Their submissions basically repeated and expanded on the findings on DDJ Ditchfield in his judgement. They particularly focussed on the use of the word “exclusive” (use) in relation to the parking space, in preference to words like unconditional or unfettered. They suggested that these words were deliberately not used because it was intended that use of the space would be subject to conditions as introduced at the discretion of the MA – such as the requirement to display a parking permit.

 

Following Bargepole’s advice, that ground 1 was the strongest argument and should be enough to succeed on its own, I had devoted most of my prep to this and attacked it heavily for quite some time. Even getting a bit ‘ranty’ at one stage which the Judge didn’t seem to mind [usually I am curtailed when I ‘go off on one’]. My points were that because the word “exclusive” was used this didn’t imply that use of the space was conditional and it was an extraordinary leap for the R to suggest such, to the point of absurdity. Any conditions that fundamentally affected they way Ms M could use her space would have to be explicitly stated within the lease or could only be added afterwards by way of a Deed of Variation.

 

I challenged the R assertion that displaying a permit did not impact Ms M’s “exclusive use” of the space because it absolutely did…. How could it be “exclusive use” if the MA could exercise control over it and a parking company could display parking signs on it and issue PCNs – How can that be “exclusive use”? It’s anything but! Requiring a permit would also potentially prohibit Ms M from being able to use her space – again going against the lease. Because if she didn’t have the permit, for whatever reason, then her only choice to avoid a charge would be to not park [I was getting lots of nodding and agreeing grunts from the Judge with this]. Where I think I nailed this point was that the lease actually says that the space was for the exclusive use of the Lessee and their visitors and employees… So the parking scheme derogated her rights under the lease because her visitors wouldn’t have a permit. What if she was at work, with her permit in her car, and she needed a friend to come round and let the gas man in? – they wouldn’t be able to display a permit. – [I got a “yes, absolutely” from HHJ Saffman which any Lay Rep will tell you is liking finding a £20 note in an old pair of jeans]

[CONTINUED BELOW.....]

Lamilad

[CONTINUED FROM COMMENT ABOVE.......]

Surprisingly Judge Saffman seemed to agree with the original Judgement on ground 2 – that it was implied strongly enough that the contract to operate was ongoing. This was because the 12-month period was described as “the initial period” during which the agreement could not be terminated. There was another paragraph stating that ‘either party could terminate the agreement by giving one month’s notice’ which the Judge believed must refer to the period after the ‘initial period’ therefore implying it was a rolling contract. I stood firm that no where within the contract did it say it was rolling or ongoing. Neither did it use wording like ‘this contract will continue until terminated by either party’ (like many others I’ve seen before). I argued it would be a simple and obvious matter for the legally qualified people writing the contract to include such wording rather that relying on assumption and implication. Despite me digging my heels in I could sense the Judge was not with me on this so I moved on to ground 3.

 

Here's where I came a little unstuck and that ‘out of the loop’ moment happened. I was confidently going through the findings in Judge Grand’s judgement when HHJ Saffman cut me off with “but that judgement has been overturned on appeal” there was a pause and I could feel my mouth drying up – [at this moment I did recall seeing some commentary on various parking groups/ forums about this but I hadn’t read them in any detail]…

“Weren’t you aware?” Judge Saffman asked

“No, Sir, I wasn’t aware of that”

“What about you, Mr Leb?”

He wasn’t aware either which did hide my embarrassment a little.

 

We spent a bit of time on this which involved the Judge reading out the appeal judgment which overturned Judge Grand’s order, and me scrambling to find some solid ground to plant my feet on. In the end I said - ‘well the appeal doesn’t say the additional charge is valid it simply says that the core £100 charge can still be pursued and the Ms M's position remains that the charge is an abuse of process and disallowed by Beavis and the CRA.

 

Again I was cut off by the Judge saying ‘it’s not disallowed by Beavis because that doesn’t talk about debt recovery – [previously I would have been able to recite several key paragraphs from Beavis word for word but right now I couldn’t think of a single one]. I think I mumbled something like ‘Beavis does discuss the cost of operating the scheme and admin costs which would include debt recovery’. Judge Saffman read a few paras out and came back with ‘no, it doesn’t mention third party debt recovery, it wasn’t relevant in Beavis’

 

I could see he wasn’t going to bail me out by finding the relevant paragraphs for me [Judges at Skipton probably would have done] so I was happy to get off this subject and move to my summation. Despite this setback I remained confident that I had dealt my killer blows on the first issue. I summed up the Appellant’s position again focussing heavily on ground 1 and the points that I knew had landed with the Judge... HHJ Saffman now invited Mr Leb to discuss the Rs submissions…

 

As expected Mr Leb concentrated on the use of the word “exclusive” saying that meant exclusive use ‘with conditions’. There was a lot of stuff in their SA about the interpretation and meaning of words in legal documents and how they can and should be construed. I was very dismissive of these in my presentation saying ‘they were a load of irrelevant convoluted nonsense trying to confuse the court into believing that the words in the lease/ contract didn’t really mean what they said and actually meant what the R wanted us to believe’.

 

Mr Leb was cut off almost constantly by HHJ Saffman who kept bringing everything back to primacy of the lease and the fact the Ms M had exclusive use of the space, and the parking scheme derogated her rights. Mr Leb replied that it did not as she could still exclusively use the space. To which the Judge responded that she couldn’t if she didn’t have her permit, or her visitors couldn’t as they wouldn’t have a permit – [it was reassuring to her the Judge repeating my arguments]. To be fair to Mr Leb, he earned his fee. He really tried to convince the Judge that use of the space was ‘conditional’ and so the parking scheme was allowed. It was mainly him just making the same arguments in different, cleverer ways but Judge Saffman was having none of it. I was in no doubt, at this point that the appeal had succeeded and that was confirmed when the Judge stopped Mr Leb going on to his submissions for grounds 2 and 3 by saying “you can talk about them if you want but I think you know you’ve already lost on ground 1”

 

Mr Leb did talk briefly about his other submissions but tailed off after a couple of minutes as it was obvious the Judge wasn’t interested and was already scribbling notes for his judgement.

 

In his judgement HHJ Saffman said that he would have liked to have dug deeper into the added £60 charge and if Ms M had been represented by legal counsel he may have invited further submissions to explore this in-depth and come to a decision. He said his feeling was that a higher court does need to reach a decision on this once and for all that provides direction to lower courts.

 

Making my case for unreasonable behaviour costs I reminded the Judge that Ms M had written to UKPC long before court, enclosing a copy of her lease which proved her position beyond any doubt and should have prevented this matter ever seeing the inside of a courtroom. I also pointed out that this was ignored, and R made no attempt to reciprocate Ms M’s efforts to engage and act reasonably with each other. I added that just because they had got lucky with a Judge who had erred in law did not grant any credibility or validity to the baseless and unmeritorious nature of their claim. I talked about their aggressive pursuit of Ms M and their dogged determination to get as much money as possible out of her using fear and threats; and involving the courts in this behaviour as an aggressive form of debt collection. The Judge seemed to be lapping this up so I became more impassioned in working this angle. I compared how a reasonable party would behave to how R had conducted themselves i.e a reasonable party would have engaged with Ms M after one or two PCNs to try to resolve the issue and prevent recurrence. They would have responded to Ms M’s letter and worked with her to try and avoid protracted litigation. Whereas UKPC were content to simply issue ticket after ticket, after ticket; send threatening letters then dash of to court to get their pound of flesh. I threw in that the Dammerman test requires that the court must find that there is a reasonable explanation for the Rs aggressive behaviour and repeated failure to engage or accept the Appellant’s position that their behaviour was unreasonable and they are liable for full schedule of costs as submitted.

 

Mr Leb countered with the usual response – that the bar was very high, the R had a genuine case which it took 2 hearings to resolve which must mean it had some credibility especially as it had been successful in the first instance. And they had complied fully with all court orders and directions. He finished with – ‘simply bringing a claim to court that fails is not unreasonable’

 

I was really feeling confident about this and felt I had argued my case more powerfully than Mr Leb. HHJ Saffman did take a long pause to think about it but eventually said that whilst he agreed R had been aggressive and could have done more to engage with Ms M he did not feel they had crossed the threshold into unreasonable behaviour, and he strongly believed the courts had a responsibility to maintain the low cost nature of small claims. He actually said to pursue a claim aggressively is not unreasonable [hmm…]

 

So fixed costs were awarded for both hearings amounting to approx. £220 for loss of 2 days pay, travel and parking. Mr Leb tried to put the blockers on that by saying Ms M must prove her income but fortunately the Judge wasn’t interested.

 

As a final act, Ms M requested that I ask the Judge to strike out 2 other identical claims which are still at an early stage. I knew this would fail as I’ve tried it before but Ms M insisted, as she could not bear to go through this again. So, I did ask, and sure enough HHJ Saffman said he could not do that. But he added that if they got to court, she should refer to this Judgement… and she would have a much stronger claim for unreasonable behaviour.

 

Afterwards, I couldn’t help feeling bitterly disappointed about not getting the full costs but Ms M was absolutely elated, like the weight of the world had been lifted off her shoulders so that made me feel a little better. I had a brief chat with Mr Leb – a very pleasant, amiable chap who said he would speak UKPC and advise them to discontinue the other the claims. I thanked him and as I walked away muttered under my breath “good luck with that

beamerguy

Great to see you back Lami ......... up to your usual high standard I see.
Was this UKPC case brought by SCSLaw per chance

Lamilad

Was this UKPC case brought by SCSLaw per chance

Of course. They instructed Mr Leb. He didn't have a high opinion of them.

bargepole

It should not be underestimated what a Herculean task this was.

Getting ROA as a Lay Rep at an appeal hearing is as rare as hen's teeth, but the CPR Practice Directions do give the Court discretion to hear anyone, even in circumstances excluded by the Lay Rep Order. Fortunately, HHJ Saffman was persuaded that the hearing would run more smoothly if Lamilad made the Appellant's submissions, instead of the nervous and tongue-tied Appellant.

The opposing barrister was a specialist in property law, but Lamilad stuck to his guns (and the skeleton I had drafted) and came away with a famous victory, and one which will assist many others once we obtain the Judgment transcript.

And of course, BW Legal's little rant about Lay Reps is increasingly looking utterly pathetic and vindictive now.

beamerguy

Lamilad said:

Was this UKPC case brought by SCSLaw per chance

Of course. They instructed Mr Leb. He didn't have a high opinion of them.

Mr Leb was so right.   I think the boss of SCSLaw should pay very close attention to the parking scammers as it's not just covid that kills businesses 

Umkomaas

Brilliant Lami, super, super result and report. To (semi) quote a song, 'Nobody could do it better'. Very well done. 

if Ms M had been represented by legal counsel he may have invited further submissions to explore this in-depth and come to a decision. 

Thank God she wasn't!

Wow, you've come so far since your very nervous, hesitant steps, when you first came to the forum just 4 years ago. Absolute kudos and admiration from me. 

Can I book you should I be daft enough to fall for a PPC scam?  Don't stay awake! 😆

Cerberus1007

I can't believe the judge even considered the extra £60. These "debt collectors" have zero enforcement powers so why would it even be necessary to involve them? If one debt collector can be involved, why not four or five?

beamerguy

Cerberus1007 said:

I can't believe the judge even considered the extra £60. These "debt collectors" have zero enforcement powers so why would it even be necessary to involve them? If one debt collector can be involved, why not four or five?

They have to go through the motions when they already know the answers.
The debt collectors just play musical chairs with each other ... DRP, ZZPS, ZENITH and whatever wriggly worm who wants to join in peddling their rubbish