Won in court today—-(Previously) A little help and advice please.

berty50

I’m helping an elderly friend who’s got a court hearing for a 12 minute overstay in a UKPC managed car park. I was drafted in to help as I know my way around the small claims court system so I’m okay with protocol and the structure of it etc and have got him thus far through the system. 

I don’t imagine for one minute it’ll get to the court hearing but we’ve got three weeks to prepare the witness statement, court bundle and there are a few points I’d appreciate help and, or opinions on.

First, the Land Owners Management Agreement they produced for our CPR 31.14 request is dated a year after the event so unless they turn up with a correctly executed agreement I think that’s enough, however looking at the overstay, the legal argument would seem to centre on the definition of a parking event and the definition of grace periods, which of course are grey areas, but still a decent enough case to argue. 

We’ve got Ashby v Tolhurst for a legal definition of parking and I’d also like to refer to the governments withdrawn Private Code of Practice which gives a nice statement in 2:24 defining the parking period as not the period recorded when a vehicle enters or departs controlled land.

It also has an overview of grace periods, defining the initial one as a consideration period along with a chart to indicated allowed periods to be added to the parking event time.

So a couple of questions from anyone that may have experience in these specific matters. 

- Is there any additional case law or legal references to define a parking event? 

- Can I use the Private Code Of Practice references as this is currently withdrawn? (I would argue that it’s the governments intended protocol and withdrawal was for charges and costs) 

i understand there’s other points such as contract definitions, unfair charges to add to the witness statement but my main legal argument is really about the actual parking time. 

Thank you..

Fruitcake

Does the elderly friend have mobility issues? If so, then the Equality Act 2010 comes in to play. The Act requires service providers to make reasonable allowances for people with protected characteristics such as health conditions or disabilities that mean they require more time to carry out everyday activities.
Companies must make allowances for people who need more time and must anticipate these needs. Failing to do so is indirect discrimination. Once a company knows a person has a disability, then to penalise them by continuing with litigation becomes direct discrimination.

Was there some incident that delayed the friend such as dealing with heavy traffic, congestion, changing a flat tyre, being taken ill etcetera, or were they loading or unloading people or goods?
All of the above is covered by the Jopson v Homeguard case. The transcript is available online.

Umkomaas

First, the Land Owners Management Agreement they produced for our CPR 31.14 request is dated a year after the event so unless they turn up with a correctly executed agreement

They can't. They need to submit in their WS everything they intend to rely on. Pulling a rabbit out of the hat at the hearing will be an 'ambush', and is not allowed. Be wary of that in case they try. 

But as this is UKPC and (presumably) DCB Legal, please read this thread if you've not already done so:

https://forums.moneysavingexpert.com/discussion/6377263/dcb-legal-record-of-private-parking-court-claim-discontinuations/p1

Le_Kirk

berty50 said:

- Is there any additional case law or legal references to define a parking event? 

Search the forum for "Green Button" and you will find the following: -

Add in that the judge in the case of Thornton vs Shoe Lane found that the contract (parking period) does not begin until the motorists has agreed to the parking terms by inserting their money and pressing the green button.

You can follow up by asking Auntie Google for help finding the case.

berty50

Fruitcake said:

Was there some incident that delayed the friend such as dealing with heavy traffic, congestion, changing a flat tyre, being taken ill etcetera, or were they loading or unloading people or goods?
All of the above is covered by the Jopson v Homeguard case. The transcript is available online.

Thanks for the response. This car park is a notorious bottle neck at certain times of the day as it only has one in and out route. I have a local press article where they reported on this and timed their exit which was 20 minutes. The date of the alleged offence was 21st Dec, four days before Xmas so it was very busy.  My friend says he drove around twice looking for a parking place before he could park, in addition it was congested when he left so it would have taken quite a time to exit via the ANPR camera.

I have now have Jolson v Homeguard (appeal) thank you. 

berty50

Umkomaas said:

First, the Land Owners Management Agreement they produced for our CPR 31.14 request is dated a year after the event so unless they turn up with a correctly executed agreement

They can't. They need to submit in their WS everything they intend to rely on. Pulling a rabbit out of the hat at the hearing will be an 'ambush', and is not allowed. Be wary of that in case they try. 

But as this is UKPC and (presumably) DCB Legal, please read this thread if you've not already done so:

https://forums.moneysavingexpert.com/discussion/6377263/dcb-legal-record-of-private-parking-court-claim-discontinuations/p1

Umkomaas said:

First, the Land Owners Management Agreement they produced for our CPR 31.14 request is dated a year after the event so unless they turn up with a correctly executed agreement

They can't. They need to submit in their WS everything they intend to rely on. Pulling a rabbit out of the hat at the hearing will be an 'ambush', and is not allowed. Be wary of that in case they try. 

But as this is UKPC and (presumably) DCB Legal, please read this thread if you've not already done so:

https://forums.moneysavingexpert.com/discussion/6377263/dcb-legal-record-of-private-parking-court-claim-discontinuations/p1

Thanks for the reply.

I understand that they can’t produce this on the day, although I’m sure a few may try! what I meant to say was if they included this in their witness statement bundle.

The lawyers are QDR and not DCB. 

berty50

Le_Kirk said:

berty50 said:

- Is there any additional case law or legal references to define a parking event? 

Search the forum for "Green Button" and you will find the following: -

Add in that the judge in the case of Thornton vs Shoe Lane found that the contract (parking period) does not begin until the motorists has agreed to the parking terms by inserting their money and pressing the green button.

You can follow up by asking Auntie Google for help finding the case.

Thanks for your reply.

I wasn’t aware of this case so will familiarise my self with it. No green button in this case as ANPR camera in place, however this does focus on the mind on when the parking contract is officially accepted in this type of situation. As it has to be when the vehicle is parked in an appropriate parking place and signage read. 

Fruitcake

berty50 said:

Fruitcake said:

Was there some incident that delayed the friend such as dealing with heavy traffic, congestion, changing a flat tyre, being taken ill etcetera, or were they loading or unloading people or goods?
All of the above is covered by the Jopson v Homeguard case. The transcript is available online.

Thanks for the response. This car park is a notorious bottle neck at certain times of the day as it only has one in and out route. I have a local press article where they reported on this and timed their exit which was 20 minutes. The date of the alleged offence was 21st Dec, four days before Xmas so it was very busy.  My friend says he drove around twice looking for a parking place before he could park, in addition it was congested when he left so it would have taken quite a time to exit via the ANPR camera.

I have now have Jolson v Homeguard (appeal) thank you. 

Have a look at this case reported by the Parking Prankster on his blogspot a few years ago. Note that the comment about not a genuine pre-estimate of loss is no longer a valid point, but the rest is. Make sure you quote the case number.

Parking Prankster: Waiting for a space is not Parking. ParkingEye lose in court. Beware of snakes at Fistral Beach (parking-prankster.blogspot.com)

With reference to the Jopson case, make sure you spell Jopson correctly. Note that it was an appeal case and is therefore persuasive on the lower courts. Note the judge's comments around para 19 and 20 when he mentions a vicissitude of some small duration.
I would suggest that being stuck in traffic would be such a vicissitude.

If the friend has dashcam footage, a smart 'phone with location tracking enabled, a vehicle with a black box, or passengers who are prepared to write a short WS about the delays in finding a space or delays in leaving, then all of that should be mentioned at the defence stage and included in the WS.

The Consumer Rights Act 2015 requires fairness to be applied in all cases even if it has not previously been mentioned in the defence. Failing to allow a grace period where a motorist was delayed due to external forces would be unfair.

Le_Kirk

berty50 said:

Le_Kirk said:

berty50 said:

- Is there any additional case law or legal references to define a parking event? 

Search the forum for "Green Button" and you will find the following: -

Add in that the judge in the case of Thornton vs Shoe Lane found that the contract (parking period) does not begin until the motorists has agreed to the parking terms by inserting their money and pressing the green button.

You can follow up by asking Auntie Google for help finding the case.

Thanks for your reply.

I wasn’t aware of this case so will familiarise my self with it. No green button in this case as ANPR camera in place, however this does focus on the mind on when the parking contract is officially accepted in this type of situation. As it has to be when the vehicle is parked in an appropriate parking place and signage read. 

The "green button" is just a specific way of saying that once you have paid, your parking period starts, NOT as you drive passed the ANPR camera.

berty50

Le_Kirk said:

berty50 said:

Le_Kirk said:

berty50 said:

- Is there any additional case law or legal references to define a parking event? 

Search the forum for "Green Button" and you will find the following: -

Add in that the judge in the case of Thornton vs Shoe Lane found that the contract (parking period) does not begin until the motorists has agreed to the parking terms by inserting their money and pressing the green button.

You can follow up by asking Auntie Google for help finding the case.

Thanks for your reply.

I wasn’t aware of this case so will familiarise my self with it. No green button in this case as ANPR camera in place, however this does focus on the mind on when the parking contract is officially accepted in this type of situation. As it has to be when the vehicle is parked in an appropriate parking place and signage read. 

The "green button" is just a specific way of saying that once you have paid, your parking period starts, NOT as you drive passed the ANPR camera.

I looked up the case and also searched the forum for Green Button examples which didn't show anything.. I'm struggling to see how i can use this with ANPR  as its quite old and seems to more about contract law rather than parking time?

Coupon-mad

NCP green button gives loads of search results.  Try again.

And why not also quote from the new law coming in, which says that the period of parking does not start when the car passes a camera (or words to that effect).  The Code is not in place yet but it is the 'gold standard' of rules to regulate parking on private land and the current delay will not revisit that section; it is in the new Code from 2023ish.

No links needed. Google DLUHC CODE PARKING.