Finding of fact win

beamerguy

This must be a case of "Charman, don't ring us, we will ring you"

Umkomaas

Trying to find something positive in his favour, he's one of the very, very few PPC employees brave enough to come out from under their stone to face a Judge, unlike the majority of his cowardly cohort. 

Unfortunately he's had both his nuts cracked.  That's why his buddies remain in hiding!

Coupon-mad

payin4nowtavinitout said:

As previously mentioned, please find the finding of fact Judgement transcript. Hope it helps anyone reading the site who is unsure whether to have it out in court. This forum and it's posters were a great help.

"

IN THE COUNTY COURT AT MIDDLESBROUGH 

Case No:  F2GF40PG 

11am – 11.06am

Tuesday, 1st September 2020

 

Before:

DISTRICT JUDGE ROBINSON

  

B E T W E E N:  

PACE RECOVERY & STORAGE LIMITED 

and

Mr  xxxxxxxx

 

MR CHARMAN appeared In Person for the Claimant Company

THE DEFENDANT appeared In Person

 

JUDGMENT

(Approved) 

This Transcript is Crown Copyright.  It may not be reproduced in whole or in part, other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.

 WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child.  Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media.  Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached.  A person who breaches a reporting restriction is liable to a fine and/or imprisonment.  For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.

DJ ROBINSON:  

 

1.                  Having heard from both parties and considered the evidence before me, I will now deliver a short judgment in this claim.  It is important to note it is the final decision of the court and should any party wish to appeal it after it is delivered, they should ask me for permission to do so and provide reasons.

2.                  The case before the court today concerns two parking charge notices issued by the claimant against a vehicle owned by the defendant.  The dates of those charges are 26 June 2019 and 3 July 2019.

3.                  The claimant is Pace Recovery & Storage Limited, represented today by one of the directors, Mr Charman, and the defendant is Mr Righteous who represented himself.

4.                  I am working remotely and apologise to the parties if there are any pauses while I am delivering judgment; it is simply because I am flicking between the documents before me electronically that I may need to refer to when delivering this judgment.

5.                  I will not summarise the procedural background to the claim as it is clear from the papers, but the claim proceeds on the Small Claims Track in the County Court.

6.                  The claimant’s position, put simply and as I outlined at the outset, is that that the defendant’s vehicle was parked on the two dates dated at QPR’s Estate without displaying a valid permit.  It states that it is contracted by the landowner to operate a parking management scheme on the land.  

7.                  The statement of Mr Charman states that the signs where the vehicle parked are clear and unambiguous and that, by parking failing to display a valid permit, the driver accepted the liability for a £100 charge.

8.                  The defendant’s position, put simply, is that he was not driving the vehicle but he accepts his vehicle was parked in the location on the dates and times alleged.  He states that no contract was entered into, that there was inadequate signage and furthermore that the parking terms were not set out clearly.  He also says that it is not known what time the vehicle entered and, if it was at night, there are no lights illuminating the signs such that the signs would not be visible in any event.

9.                  Those are very short summaries in respect of the positions of the parties, but I have taken into account all of the evidence in submissions before the court, but I consider it is not necessary to set them out in any notebook form within this judgment.

10.              The relevant law is contained in the Protection of Freedoms Act 2012 by virtue of Section 56 and Schedule 4; they provide for the recovery of parking charges.  A prerequisite to such recovery is that there must be a contract in relation to the charge or a tort, that is some other civil wrong, for which damages are claimed.

11.              This is a case brought by the claimant on the basis of a contract and the basic principles of a contract is that there must be an offer, acceptance of the offer and consideration, which is some form of tangible benefit and if the claimant is bringing a case he must prove its case and the application of the law on the balance of probabilities, that is to say its position is more likely than not to be correct.

12.              There was an issue before the court at the outset about a previous judgment that had been sent in by the claimant, the defendant’s position being that the claimant should not be able to rely upon it given its late filing with the court.  Whilst I accept that the claimant should have filed any evidence it sought to rely upon, this is a judgment of the court and is readily available and I must apply the law and I cannot simply exclude a judgment if it is considered relevant simply because it has not been filed on time.  Therefore, I will and I have taken that judgment into consideration.

13.              I now come to make a number of findings of fact upon the evidence that I have read and heard.

14.              Firstly, I find that a reasonable and prudent driver would have understood if he was on private land when it left the main highway.  This is because there is a change in the road surface and I have made this finding on considering the photographs before me.

15.              Secondly, the driver of the defendant’s vehicle passed the sign advising the driver that terms and conditions were in operation and that failure to comply with them would result in a penalty charge of £100.  I make this finding on the basis of looking at the photographs on both dates and noting the position of the gate to the land and the position of the vehicle.

16.              Whilst I cannot read the signage from the photographs which I have seen, I accept the evidence of Mr Charman as to what it does say and indeed the defendant confirms it to be the case too, having returned to the site and looked at the signage.

17.              Thirdly, the said sign was placed on the side of a building which is set back from the gate and offset to the left as evidenced by the photographs.  I find that this was placed at a height and in such a position that it was not readily viewable by reasonably prudent driver who was approaching the area from the road and turning into the location. In turning into the location, a reasonably prudent driver would need to be reasonably alert to the possibility of increased pedestrians given the proximity of parking bays and parked cars and a number of residences.  I find that a reasonable and prudent driver would not, at the moment of entering the gate, be looking upwards from the driving seat to the said wall location which is set back from the main gate as I have already found.  I make these findings on the photographic evidence before me and noting the proximity of the entrance to the road which I can see in the photograph.  I find that a reasonable and prudent driver would not have failed to see the signage if, for example, they were present at the gated entrance itself and not set back and offset on the wall.

18.              Signage is also on the left-hand side and the driver’s vehicle is, as the majority of cars in the UK are, right-hand drive, thus adding to the likelihood that the sign was not immediately viewable or indeed viewed when the driver entered.

19.              Fourthly, I find that there was a sign on a wall parallel to where the defendant’s vehicle was parked.  It is on the opposite side to the parking bays and is on the side of the building at which there are no parking bays and planting can be seen in the vicinity of that location.  On looking at page 82 of the bundle, there is some vegetation that is growing up there which may or may not have caused some obscurity to that sign.  I make no finding on that but raise it as simply a possibility.  I find it did, however, cause a divide between the parking bays and the building itself such that the placing of the sign on the side of the building is insufficient to provide terms to the driver entering that area.  Furthermore, I cannot read the sign on the photographs and I find that such a sign in isolation in that vicinity is insufficient, given what I have said in relation to the first sign not being viewable.  Had the sign been at the side of where the vehicles were, then I would likely have found that this was sufficient.  

20.              Within my judgment this sign, where it is located on the opposite side, is too far removed from the parking bays and there was no other warning to the driver of the terms of the contract to be entered into.

21.              Fifthly, in finding that the driver did not reasonably view the signage before parking, I find that the signage was therefore not sufficient to alert a prudent and reasonable driver, and as such I find that there is no valid contract.

22.              I have considered whether, having been issued with the first penalty notice charge, the driver was on notice of the contract such that by the occasion of his second parking charge he must be said to be bound by it.  However, I find this is flawed because the driver is in the same position in that he cannot reasonably be expected to know the terms of the contract simply because a penalty notice charge had been applied on that occasion.  The facts remain that I have found a reasonable and prudent driver would not have observed the signage.

23.              Furthermore, I find the placing of the sign on the entrance of the car park in the manner described, being on the edge of the building and above immediate eye level, would be unfair if it was to be found to create a contract.  Therefore, considering Section 71 of the Consumer Rights Act 2015, I find any purported contract on this basis would therefore render the relevant terms pertaining the imposition of the penalty charging notice to be unfair.

24.              In view of those findings that I have made, I find that there is no valid contract and I must therefore dismiss the claimant’s claim.

 

End of Judgment"

payin4nowthavingitout said:

As mentioned in replies I had another hearing with Mr Charman and Pace yesterday.

Different Judge, DDJ. I barely said two words unlike last time out.

The Judge picked Charman up on signage. PACE used two signs on residential sites. The sign that does not say "No Parking Area" was the sign the Judge got his teeth into. Forty five minutes of Charman on the hook for his wording of the sign. It was better than him exhaling a huge sigh of disappointment previously.

My witness statements were all about the previous case and the transcript pointing out the signs positioning was not good enough. Never got a mention.

The Judge said the sign did not give a clearly achievable offer, particularly how a permit could be sought. It was not made clear how a motorist could achieve parking and the wording on this was too small and too low down the sign. "You've talked around the issue very well Mr Charman but I'm not convinced". I was never convinced but I was not expecting this.

The Judge stated he would state his rationale in the order so I hope a further transcript will not be necessary. Charman "wouldn't let it lie" and sought permission to appeal, which the Judge initially at least seemed to entertain. Charman was insistent it was a lawful contract, "with respect Sir" ad infinitum but seemed to lose it when he stated Judges up and down the country had accepted his signs in circa 400 cases.

I could barely contain myself as the Judge denied his permission to appeal request.

This was two cases combined but all four cases should have been combined as they concern the same site, claimant, defendant, vehicle and 8 tickets over a 4 month period.

So yesterday was for circa £1050 and 5 tickets. Previous final hearing was for  circa £450 and 2 tickets. So that's 7 - 0 by my maths.

It's not the money, it's not winning, it's the taking part and the experience of Michael being taken apart.

Coupon-mad said:

Brilliant!  Thanks so much for getting and sharing this transcript.

So that people can use it and so they are not printing out a forum post that a Judge will disregard as hearsay, could you show us a redacted scan or legible photo of the judgment itself please, so it's the true document?  Or pm it to me and I will redact your name off it if you'd rather do it that way?

Excellent point CM.

The case number is F2GF40PG

Great resource, thanks!

We can use this case as a great example of a judge properly applying the Consumer Rights Act in order to consider the prominence/legibility (fairness) of parking signs:

IN THE COUNTY COURT AT MIDDLESBROUGH 

Case No:  F2GF40PG 

Tuesday, 1st September 2020

Before:

DISTRICT JUDGE ROBINSON

B E T W E E N:  

PACE RECOVERY & STORAGE LIMITED 

and

Mr  xxxxxxxx

Le_Kirk

payin4nowthavingitout said:

Le_Kirk said:

22.              I have considered whether, having been issued with the first penalty notice charge, the driver was on notice of the contract such that by the occasion of his second parking charge he must be said to be bound by it.  However, I find this is flawed because the driver is in the same position in that he cannot reasonably be expected to know the terms of the contract simply because a penalty notice charge had been applied on that occasion. 

Did it really say PENALTY?

Not actually seen any of the PCN's but on the NTK it's merely CN and Charge Notice. In the Bundle it was Charge Notice on the ticket too.

Strange then that the judge (a earned fellow going by the finding of fact document) would call it by the wrong term, especially given it would have been written down.

Le_Kirk

Mickey666 said:

Still, all power to those helping fight these scams.  Imagine how much more difficult (impossible?) it would be without internet forums!

Absolutely and yet the claimants often (read it on their witness statements) who claim (as if it is a bad thing) that the "defendant has used t'Internet to construct a defence" and therefore it must be thrown out!

Umkomaas

Le_Kirk said:

Mickey666 said:

Still, all power to those helping fight these scams.  Imagine how much more difficult (impossible?) it would be without internet forums!

Absolutely and yet the claimants often (read it on their witness statements) who claim (as if it is a bad thing) that the "defendant has used t'Internet to construct a defence" and therefore it must be thrown out!

Signs of certain desperation!

henrik777

Le_Kirk said:

payin4nowthavingitout said:

Le_Kirk said:

22.              I have considered whether, having been issued with the first penalty notice charge, the driver was on notice of the contract such that by the occasion of his second parking charge he must be said to be bound by it.  However, I find this is flawed because the driver is in the same position in that he cannot reasonably be expected to know the terms of the contract simply because a penalty notice charge had been applied on that occasion. 

Did it really say PENALTY?

Not actually seen any of the PCN's but on the NTK it's merely CN and Charge Notice. In the Bundle it was Charge Notice on the ticket too.

Strange then that the judge (a earned fellow going by the finding of fact document) would call it by the wrong term, especially given it would have been written down.

The majority of people think they're penalties. Reality is that they're not dissimilar so in the grand scheme of it, it's pretty irrelevant. IMHO.

Le_Kirk

henrik777 said:

Le_Kirk said:

payin4nowthavingitout said:

Le_Kirk said:

22.              I have considered whether, having been issued with the first penalty notice charge, the driver was on notice of the contract such that by the occasion of his second parking charge he must be said to be bound by it.  However, I find this is flawed because the driver is in the same position in that he cannot reasonably be expected to know the terms of the contract simply because a penalty notice charge had been applied on that occasion. 

Did it really say PENALTY?

Not actually seen any of the PCN's but on the NTK it's merely CN and Charge Notice. In the Bundle it was Charge Notice on the ticket too.

Strange then that the judge (a earned fellow going by the finding of fact document) would call it by the wrong term, especially given it would have been written down.

The majority of people think they're penalties. Reality is that they're not dissimilar so in the grand scheme of it, it's pretty irrelevant. IMHO.

Agreed and I nearly put that but it just seems strange that someone in a judge's position would use the wrong word in a case involving law and accuracy.  As someone on this forum is fond of posting - accuracy is sine qua non!

bargepole

Umkomaas said:

Trying to find something positive in his favour, he's one of the very, very few PPC employees brave enough to come out from under their stone to face a Judge, unlike the majority of his cowardly cohort. 

Unfortunately he's had both his nuts cracked.  That's why his buddies remain in hiding!

I met Mr Charman once at a hearing in Croydon (PACE v Noor). I asked him why he didn't use the hired guns from the likes of Elms, SCS etc., and he replied that they were mostly useless, and he stood a better chance if he argued his case in person, On that occasion, he made a far better job than a paid advocate would have done, but at the end of the day, the Judge ruled that the terms of the lease trumped everything, so case dismissed.

payin4nowthavingitout

bargepole said:

Umkomaas said:

Trying to find something positive in his favour, he's one of the very, very few PPC employees brave enough to come out from under their stone to face a Judge, unlike the majority of his cowardly cohort. 

Unfortunately he's had both his nuts cracked.  That's why his buddies remain in hiding!

I met Mr Charman once at a hearing in Croydon (PACE v Noor). I asked him why he didn't use the hired guns from the likes of Elms, SCS etc., and he replied that they were mostly useless, and he stood a better chance if he argued his case in person, On that occasion, he made a far better job than a paid advocate would have done, but at the end of the day, the Judge ruled that the terms of the lease trumped everything, so case dismissed.

Yes, I read the Noor case, he seemed to distance himself from Gladstones in that case. He is correct to argue his case himself, he is far better than the overpaid legal reps. However, he was a Parking Clamper before he ran his PPC and prior to that he was in the Met. He is no stranger to the court system and he has been getting away with scamming people for years as most don't fight the Roboclaims he profits from with Gladstones backing him up. His court experience of decades is invaluable but it is also in part his downfall as he's arrogant in his belief that ripping people off is his right. He has no interest in protecting the freedoms of residents and scoffs at what Councils charge inches away from his poorly maintained sites that are testament to his parsimony. He has no interest in mediation, moderation or compromise. In his view he's entitled to his £160 and he still argues Beavis validates his £100 and the £60 double charge. He is a cowardly, bully despite his semblance of civility which is merely to ingratiate himself with the Judge as he attempts to rob thousands from you. When he is pressed his mask slips and he gets found out. He needs to go away and do something positive.