Court Report: case won on Fairlie v Fenton and Hancock v Promontoria

Coupon-mad

This was a case I won in February but I waited, just in case BW Legal thought they had any grounds to appeal.  They didn't.

I rarely attend court - too busy and people are best appearing as true witnesses for themselves, in my view - but @bargepole was double booked and needed me to step in as a one-off:

NCP v Mr X : court report (CVP)

Chelmsford Court, DDJ Campbell

Listed for 2 hours but this hearing took 3 hours, mainly featuring an angry female legal rep for NCP (I'll call her 'Ms Legal Rep') trying to dominate and not give me a chance to speak.  

Deliberate?!

The DDJ had both skeletons but not much else; half the bundle from both sides was missing. I was quicker to email our side's stuff over (...early brownie point?) while Ms Legal Rep faffed a bit.

The Judge read and took in everything very efficiently.   

Detailed submissions including a skelly had been prepared by @bargepole

Background:

This case was about a longstanding railway commuting motorist who had held an Annual Pass over many years, at a railway station where Greater Anglia (GA) had signed a 'Service Agreement'. This appointed NCP to carry out certain tasks connected with administering a car parking scheme.

The Service Agreement (landowner authority effort) was VERY heavily redacted but this wasn't known until after the parties' WS had been exchanged, so it was on my list to raise verbally.

On 5 occasions in July 2019 Mr X used the car park as he did every week, but, unfortunately for him (because I think NCP had stopped sending the reminders that they used to) he didn’t know that his Annual Pass had expired.

He was completely floored when NCP churned out loads of postal PCNs a month later, at £75 each.  This claim was for 5 of those.

NCP didn't bother to comply with the BPA CoP by giving the mandatory 40% discount.  The discount bribe was £50 (well worth us checking this in NCP railway cases...).

The hearing:

Ms Legal Rep spoke (spat?) first and requested to ask Mr X a couple of questions, like "when you drove into the car park, did you know your Annual ticket had expired?"  (Eh? I thought, what game are you playing?  ...of course he didn’t, that’s the whole point)!

He fielded that well, then she pressed: "who has use of this season ticket, was it just you?"

Not sure why she didn’t just say ‘were you driving?’ as I’d prepared him for that question and he would have answered truthfully - yes it was him.  We had never tried to hide that!  Anyway, he confirmed only he used the Annual Pass.

All a bit pointless - except it was a chance to put Mr X on the spot despite him using a lay rep. I'd warned him to expect aggressive cross-examination though, so this ploy didn't faze him.

After that, unusually I was asked to address an issue that interested the DDJ. He wanted to know, what authority Mr X relied upon for saying in his defence that the 5 PCNs were ‘unenforceable’.

I took him to the BPA CoP, POFA and the Beavis case para 111 where it was said that it cannot be right not to consider the Code of Practice when assessing the fairness of a term.  That led to a discussion about the CRA 2015 and whether the 5 late-served PCNs (with only a 33% discount, in breach of the BPA CoP) were unfair consumer notices.

Tried hard to persuade the Judge that waiting one/two months before sending the PCNs was unfair and caused a significant imbalance in Mr X’s rights, to his detriment, and went against the doctrines of fairness and open dealing, especially as he was a known customer for years who paid them over £1200 annually.

DDJ Campbell was interested to hear about the CRA section on ‘consumer notices’ as well as ‘terms’ having to be fair - seemed a new concept to him - but he wasn’t convinced there was a detriment that made the notices unenforceable.

This was because even if that first PCN had been sent very quickly and by day 14, the first 4 PCNs were sequential (issued on 1, 2, 3, 4th July) so that wouldn’t have been in time to stop the other PCNs, except the 5th one.  This Judge was really on the ball!

Anyway, he didn’t think it was unfair either, that NCP had not reminded Mr X about his Annual ticket renewal, even though they had always sent a letter in previous years.

Ms Legal Rep carried off (and it worked) a jaw-dropping - in my view 'load of tosh' - argument when we looked at the BPA CoP 19.7 about the minimum discount having to be 40%.

She read out the clause from v7 of the CoP and actually said that because it is worded:

‘If the motorist pays early, you must offer them a minimum 40% discount’

...that this DIDN’T mean that a PPC has to offer that on the PCN up front!  She argued that only comes into play if the person pays.   DDJ Campbell said, but that would mean people who pay would go online & pay £50 and the PPC would then send them all a partial refund.   She said yes, but it wasn’t NCP’s fault that the BPA CoP was worded that way... but there was nothing to say that the PCN itself has to offer a 40% discount!

I would have laughed out loud had it not been a formal court hearing but I knew we were probably OK, because the DDJ was straight onto a point in bargepole's submissions: ...the Fairlie v Fenton issue.

He looked at the blurry signage photos and took up the point that the defence pleaded, that the railway signs look like the contract is offered by Greater Anglia.

Because both NCP and GA are at the bottom of the signs it is (at best) ambiguous, and there appeared to be nothing on the signs that established that the contract was in fact offered by NCP in their own right.  I didn’t have to say a word on this as he took up that mantle and was clearly working towards kicking the case out due to NCP appearing only to be an agent without the right to sue, but Ms  Legal Rep fought and fought.

She spent what I thought was a ludicrous amount of time (best part of an hour!) going round in circles in discussion with the Judge, trying to convince him that his concerns about 'no standing' were not relevant.

She used OPS v Wilshaw ... the Judge said he knew HHJ Simpkiss, so I kept quiet about knowledge of that APPALLING judgment and it wasn’t my ‘turn’ anyway.

Ms Legal Rep virtually dragged him to look at various pages of the landowner authority, which didn’t really help the Claimant because the copious black redactions, on page after page, were obstructive to knowing what was in the Service Agreement.

Continued in next post... 

Coupon-mad

....

So (on video) they then discussed between them - whilst me and Mr X sat silently observing - why it should be acceptable to redact a contract that you are relying upon as evidence in court.

The DDJ clearly wasn’t happy about the heavy redactions and said it stopped him being able to construe the Service Agreement.

An increasingly desperate Ms Legal Rep firstly tried to say that landowner authority was irrelevant anyway (OPS v Wilshaw) but he wasn’t convinced the cases were similar because nothing in the signs or Service Agreement in this NCP case led him to conclude that NCP could be tenants-at-will.  He really knew his stuff...

He said everything visible in the Service Agreement smacked of NCP being agents acting on GA’s behalf, merely administering parking management and PCNs.  And the redactions stopped him from construing it properly... so Ms Legal Rep then spent ten minutes trying to argue that the huge amount of redactions merely covered irrelevant information (begs the question: why redact them then?).

I couldn’t interrupt - not my turn and they were deep in discussion - but I quietly found Hancock v Promontoria (Chestnut) Ltd [2020] EWCA Civ 907.

The minute DDJ Campbell asked ‘Mrs Coupon-mad, is there anything you wish to add?’ (AT LAST I COULD SPEAK!) I took him straight to the Hancock case, and he lapped it up.  Ms Legal Rep (a solicitor, I think) was a bit dumbfounded.

Hancock v Promontoria confirmed what he was saying and it's binding.

I wanted to move on and get a word in about the Claimant's WS (from an NCP employee) and point out unreasonable conduct.  The witness had repeated the spurious and untrue accusations that were in the earlier template BW Legal WS (which bargepole had managed to get thrown out at an initial Directions hearing) which said in effect that Mr X's defence was a "forum template that he couldn't possibly understand".

It wasn't a forum template (at all) because Mr X wasn't forum-assisted, he was bargepole-assisted.  His defence and all submissions were bespoke to suit his case.

I wanted to also point out that the evidence of signs was unreadable, so it was impossible to see the contract terms.

But the Judge had heard enough and proceeded to give a long judgment:

The Judgment, based on my shorthand notes:

The Judge summarised the background then said that the basis of the right to collect unpaid parking charges is always dependent upon the facts but it being private land, he said:

"this case is dependent upon the law of contract, confirmed by various authorities... some at appeal level may be persuasive, but I am bound by a decision at CoA level."

The questions for the Judge to determine first were:

is there a contract? 

what are the terms and who are the parties?

He said the defence case had raised some quite important points. 

Firstly, regarding redactions in a contract and he smiled and said I had assisted the court by finding relevant authority. 

Secondly, GA authorised NCP to contract with the Defendant every time he entered the car park and the argument by the Defendant is that the person who contracted is GA.  The Defendant's case on this was that NCP appear to be an agent of a disclosed principal, so the person who must sue is GA, not NCP.

He said this was where the first major difficulty in the C’s case arises.  Much had been redacted from the contract, which he found "troubling".

The Judge said that to construe a contract a court needs to see the whole contract "one cannot construe it properly with heavy redactions".

He was grateful to Mrs Coupon-mad for taking him to read the authority within a CoA case which he said "is right on point".

{DDJ Campbell then quoted loads of Hancock v Promontoria from para 88 in detail}.

The Judge declared that in this case he could not properly rely upon any part of the Service Agreement.

He then covered the question as to "who the parties are".  

He said that looking at the contractual signs allows the reader to draw inferences.  He focussed on the signage photos in the Claimant’s bundle which said:

“our cameras record your numberplate on entry & exit” (this is above the logos of NCP and GA).

And: “Terms and conditions apply when parking with us”.  Again NCP and GA.

And: “Welcome to the station car park”. 

The Judge mused: who would the public think owns this "station car park"?

The inference is it's GA offering the contract.

He stated that OPS v Wilshaw is a persuasive but not binding case - but it could be distinguished. 

In Mr X's case there is only a contract that NCP will ‘manage’ and carry out administrative duties. Nothing that creates a tenancy-at-will.  So DDJ Campbell found as fact that the only person who can sue is GA.

The importance of this sort of "technical" forensic determination about who can sue (he said) was to prevent a situation where a court might give judgment for NCP, then at a later date, GA could still approach Mr X and say “you trespassed, and we wish to sue you” and a Defendant would have no defence to that by saying “but NCP have already sued me”.

He then dismissed the claim.

Coupon-mad

Ms Legal Rep said the clients would want to appeal on 2 issues:

(a)  The finding that the contract offeror is GA, and

(b)   The redactions point.

DDJ Campbell refused, saying that (a) was a first instance decision of fact that he was entitled to make based on what was before him, and (b) was based upon binding case law, so if NCP wanted to seek to appeal they’d have to take that direct to the Supreme Court!

I asked for costs for Mr X, referred to his costs schedule from July 2022 and the fact that costs had been reserved in DDJ Craig’s adjournment and new hearing notice.

DDJ Campbell barked ‘This is small claims’.

I said yes, but in this case there has been wholly unreasonable conduct as follows:

-          I stated that the (struck out) WS of BW Legal included untrue accusations about Mr X's defence being "cut & paste" from MSE, and that the first hearing had been adjourned due to that WS being struck out and requiring NCP to supply one instead, so (according to the Hearing Order of DDJ Craig from August) as far as I knew we were only here due to BW/NCP causing two hearings...  

Ms Legal Rep interrupted and said she had notes from the first short hearing and that DDJ Craig had said at the outset that the court was 'short on time' and they would only be able to deal with the preliminary matters and due to running out of time, the hearing was being adjourned anyway (not solely due to BW Legal’s WS).   

OK...

-          I then noted that there had been unreasonable conduct from the outset because the POC were wholly inadequate as the claim failed to even state the location, the five dates, the amount of the PCNs, the term(s) or the conduct relied upon, and as such they failed to state all facts necessary for the purpose of formulating a cause of action and were in breach of CPR 16.4, 16PD3 and 16PD7.5.

DDJ Campbell wasn’t interested because in his view, it had not caused Mr X any detriment because he was able to seek assistance and defended the case well, AND he knew what it was all about.

 

-          I then pointed out that the rants about Mr X in the new WS was certainly ‘conduct that permitted of no reasonable explanation’ (Dammerman test applied) because at THREE paragraphs she had repeated the untrue accusations about Mr X’s defence being cut & paste from MSE.  Her section about this essentially the same wording (verbatim) as seen in the struck out WS, and cannot have been "information that was within her knowledge" because it was patently untrue.

DDJ Campbell refused costs. 

He said he "had sympathy" with the point about untrue allegations being made not once but twice, that Mr X put up a copied defence from the internet.

He could see that is "obviously not the case" and he strongly deprecates the fact that so many defendants in parking claims see this same accusation.

He continued that he thinks the allegation of ‘cut & paste’ is better directed at the Claimant and not the Defendant.

He said: "It is quite wrong that Defendants have to litigate in the face of allegations of bad faith... but costs are not there to punish for bad behaviour.  Costs are to recompense."

He said it comes pretty close {to meeting the high bar for costs for unreasonable conduct} but there would be ‘No Order as to Costs’.

22nd Feb 2023

I will leave it up to @bargepole if he wishes to add the claim number.

bargepole

It was case no. H3DP6J3R.

Many thanks to @Coupon-mad for taking this on. After the original hearing, the Court re-listed it on a date when I was already booked for another case, but I had a more than able deputy to step in.

I thought that the strongest argument would be the lack of 40% discount on the original PCNs, and NTKs served out of time  but the Judge found that the agency argument, where NCP had no standing to sue, was the winning point.

I had said in the skelly that the outright lies written by BW Legal in their original WS and skelly should mean that their supervising solicitor should have to appear before the Judge to answer a charge of Contempt of Court, but DDJ Campbell didn't go down that road.

Maybe next time.

patient_dream

Well done Coupon, beating BWLegal again

THE JUDGE SAID ...

"It is quite wrong that Defendants have to litigate in the face of allegations of bad faith... but costs are not there to punish for bad behaviour.  Costs are to recompense."

He said it comes pretty close {to meeting the high bar for costs for unreasonable conduct} but there would be ‘No Order as to Costs’.

Some of these judges are beyond intelligent understanding ..... 

He already said "Costs are to recompense" ..... what the hell did he think the OP HAD BEING DOING ALL THIS TIME .. sitting on a park bench drinking coffee

SAD

Coupon-mad

Also the D had paid out money because he used bargepole to write his submissions.  So the costs assessment wasn't trying to profit, merely to recompense Mr X's unavoidable losses.

However, the Judge was a good 'un and maybe refuses costs to avoid appeals and make his parking case judgments bulletproof.

He knew what he was doing, I think.

The D was happy and said it all went over his head so he wouldn't have coped very well on his own for that 3 hour hearing!

These two arguments will work for all NCP station claims and also cases brought by Minster Baywatch.

And any cases with heavily redacted contracts.

Boat_to_Bolivia

Coupon-mad said:

-          I then pointed out that the rants about Mr X in the new WS was certainly ‘conduct that permitted of no reasonable explanation’ (Dammerman test applied) because at THREE paragraphs she had repeated the untrue accusations about Mr X’s defence being cut & paste from MSE.  Her section about this essentially the same wording (verbatim) as seen in the struck out WS, and cannot have been "information that was within her knowledge" because it was patently untrue.

DDJ Campbell refused costs. 

He said he "had sympathy" with the point about untrue allegations being made not once but twice, that Mr X put up a copied defence from the internet.

He could see that is "obviously not the case" and he strongly deprecates the fact that so many defendants in parking claims see this same accusation.

He continued that he thinks the allegation of ‘cut & paste’ is better directed at the Claimant and not the Defendant.

Excellent work @Coupon-mad

The above sums up nicely just how spurious the claims of these odious scam artists are on every level!

A travesty the D didn't get his costs imho.

A pleasure to read, thank you. 

patient_dream

Coupon-mad said:

Also the D had paid out money because he used bargepole to write his submissions.  So the costs assessment wasn't trying to profit, merely to recompense Mr X's unavoidable losses.

However, the Judge was a good 'un and maybe refuses costs to avoid appeals and make his parking case judgments bulletproof.

He knew what he was doing, I think.

The D was happy and said it all went over his head so he wouldn't have coped very well on his own for that 3 hour hearing!

These two arguments will work for all NCP station claims and also cases brought by Minster Baywatch.

And any cases with heavily redacted contracts.

ok, the main thing is the OP is a happy bunny, and you Brighton lady  have notched up another BWL medal on your belt of successes

Umkomaas

Nice one @Coupon-mad, NCP don't do Court very well do they - this case, HMRC 'Green Button' and Mayhook towing?  Oh dear. Better they concentrated on managing car parks properly, as they seemingly used to do many years ago. Money, the root of their evil now, no doubt!

The_Slithy_Tove

Coupon-mad said:

The D was happy and said it all went over his head so he wouldn't have coped very well on his own for that 3 hour hearing!

Having read your posts, I can't blame him. Most of it went over my head, too, especially when you were referring to these other cases, I was completely lost. Well done to you (and others like bargepole) for being prepared to go "into the weeds" to get all the arguments lined up in the face of aggressive litigants.

B789

Great court report and win for you @Coupon-mad. As a student of all this, I am trying to confirm my understanding of the reason for the judges decision based on both Fairlie v Fenton and Hancock v Promontoria.

Correct me if I'm wrong but because of the redactions in the contract between GA and NCP it could not be established that the agent (NCP) had the right sue on behalf of the known principal (GA). So Fairlie v Fenton was persuasive because of this. However, the nail in the coffin, so to speak, was the fact that the principal was known and so, without evidence (an unreacted contract) the only inference the judge could make is that only the principal (GA) could bring a claim against the defendant using Hancock v Promontoria as binding case law.