Our old friend Gloucester Peel Centre

SmallBoat

So here's a question:

I am fighting a PCN from VCS, who managed the Peel Centre car park in 2022. We are at the court stage & my witness statement is submitted.

However, I've just found out that some time in July 2023, Peel parted company with VCS and are now using Ocean Parking to manage the car park.

I am already challenging VCS's landowner contract as it is not clear that they may bring proceedings in the landowner's name. Given that VCS are no longer managing the car park, does this strengthen my case that they have no foundation to bring proceedings? Or have they managed to slip the net on this one given that the claim is dated June 2023?

I still have a very strong case based on all the usual stuff (no use of POFA, failure to identify driver, double-dipping, unfair terms etc), but I feel this will just tip everything over the edge if VCS no longer have any standing with the landowner.

Coupon-mad

They can bring a case regardless of no longer infesting (not 'managing!) a site.  They had landowner authority on the material date.

SmallBoat

Fair enough. I thought that would probably be the case but am looking for all possible leverages of course.

The landowner only permits them to pursue charges in accordance with the POFA and they've already acknowledged twice that they're not doing that, so I think I'm pretty safe on landowner contract.

SmallBoat

I thought I'd leave an update on this as people are often interested to know what happens in court. I'd say my experience was a bit atypical from what is often described here.

As expected, I got side-tracked by VCS's representative, a Mr Mohamed (apologies to him if I've spelled his name wrong, as there are lots of variants on the name) in advance. He made a half-hearted attempt to settle for the claimed fee minus £70, but to be fair to him didn't push it - I'd turned up to court ready to fight my case.

The hearing was not in the judge's office but in a proper courtroom with just me and Mr Mohamed sitting on the front row. The judge was brusquely efficient: not rude, but not exactly kindly and welcoming either. I got the impression he was treating me as a 'proper' litigant in person rather than some random who'd had threatening letters sent to them by VCS. He was condescending of my 'research on the internet'. I did point out that I was a lay defendant and entitled to put up a vigorous defence by whatever means, but I got the impression that my legal points weren't going to wash with him

There was no representative from VCS so I challenged Mr Mohamed's right of audience. The judge said no, anyone could represent anyone in Small Claims. I did at least get him to dig out his copy of Practice Direction 27a (Small Claims) but he still exercised a right of discretion and chose to hear Mr Mohamed.

Mr Mohamed chose to present VCS' NTK as reliant on the Protection Of Freedoms Act, which I had some strong words about in my response given that VCS had directly told me twice that they weren't relying on POFA (and of course they were not compliant either). The judge astutely picked up on VCS' poor map of the car park which had not included all the cameras. Both Mr Mohamed and the judge made a big deal out of the signage and the scale of the £100 PCN, but I wasn't really reliant on either as I pointed out.

During my submission, I made an error, or was at least induced into making one. This was a double-dipping (exit/re-enter) case, and at one point the judge summed up my car movements saying 'you drove into the car park, and you drove out' or words to that effect. Of course, I had made no such admission at any point and felt obliged to mention this (maybe I should have stayed quiet). He then questioned me directly on who the driver was, and I didn't feel able to withhold information under direct questioning in court, so the full driver details were then disclosed. I was blamed for withholding this in my Witness Statement and previously in my submissions to VCS, even though at the time I was being challenged as the keeper.

Because driver details were disclosed, the judge decided (correctly in my layperson's view) that this was a simple breach-of-contract case that swung on proving the facts, so asked not to hear any more from me on chain-of-contract or unfair terms. I thought it was interesting that he allowed the case to swing from 'keeper liability' to 'driver liability' apparently at his discretion and I believe this favoured the claimant a bit too much.

There was a bit of a debate on the £70 top-up fee which the judge looked like he was never going to allow and even Mr Mohamed wasn't up for this fight, saying 'well - it's only a parking violation' at one point. Note that the £70 was exactly the same amount he had offered to knock off the settlement earlier, so even VCS' legal representatives know this won't wash.

The judge pretty much did Mr Mohamed's summing up for him which I found a bit egregious. Even a surprised Mr Mohamed could only say 'you put it much better than I could, sir'. It felt like these two had done the dance a few times.

Anyway, despite getting a bit of a rough ride from the judge, the good guy won. The judge pinpointed that VCS had not proved that my car was parked for the full period claimed, that I had presented a consistent defence since first appeal, and he ultimately had no reason to disbelieve me. I had not claimed costs, and the judge tellingly said that if I had, he wouldn't have allowed them because he wasn't pleased about the withholding of driver identity.

My takeaway from the hearing is that there is more weight to how you present yourself and engage with the case, than there is on your legal acumen. I was dressed in my interview suit, had engaged VCS politely and professionally at every point, had not asked for costs, and made reasonable, non-polemic points even if they were 'approached with caution' in some areas, to use the judge's words. I think it was these factors that at least helped the judge make his decision. Perhaps I'd have done even better by dispensing with the Practice Directions, the POFA, the Consumer Rights Act, and my big list of nit-picks on the IPC Code Of Conduct: but even if I didn't use them, they still gave me an extra bit of confidence being in my back pocket. I was unprepared for direct questioning on the identity of the driver, given the number of cases I'd seen where the judge had supported the keeper's right not to disclose. Perhaps I'd have done better by challenging up front exactly whether I was being brought to court as the keeper or the driver, rather than letting the judge flip-flop it.

Umkomaas

Super court report .... and thank you so much for updating your thread. Well, what a good win.  As I was reading through your post, I was saying to myself 'Oh no, this is going to be a loss', but smiled contentedly as I read your penultimate paragraph. Tough time, but 'the good guy won'. 

You should start writing suspense novels! 😁

Coupon-mad

Same!  I didn't know the test at the end until I read it.  Nicely done.

ANOTHER VCS ONE BITES THE DUST!

nopcns

Great court report. I'm still waiting for my first court appearance as a lay rep. All the cases I'm handling privately have never reached court (yet) and I'm being mentored by an actual district judge! It was interesting to read how you felt about challenging the judges direct question about whether you were the driver and how you felt intimidated enough to not challenge the question with your right not to answer the question.

Well done though.

Le_Kirk

 He then questioned me directly on who the driver was, and I didn't feel able to withhold information under direct questioning in court, so the full driver details were then disclosed. I was blamed for withholding this in my Witness Statement and previously in my submissions to VCS, even though at the time I was being challenged as the keeper.

Which law states that anyone has to disclose the driver's name; only that if you are defending as keeper but were actually the driver, say so?

nopcns

You had every right to refuse to disclose the drivers details to the judge. However I understand how you felt intimidated into giving away the details. If you had refused, the judge is still not allowed to infer that you were the driver just because of your refusal to answer the question.

The judge should only base their decision on the facts before them.  If a judgement were made, after a refusal to answer a question, based on an assumption or inference that you must have been the driver, then that judgment is ripe for an appeal.

SmallBoat

Thanks everyone. There's quite a big difference between sitting on the internet saying 'there's no law that says you have to disclose' and sitting in front of a judge who is not only asking you direct questions, but is also assuming that you are the driver unless you tell him otherwise. I really didn't want to have to take this up to appeals court for the sake of a £100 error.

But, anyway, lessons have been learned.

Coupon-mad

Which Judge & Court was it?

There is no legal presumption you were driving and there is persuasive case law on that, supporting your position, from a Circuit Judge last year.

But you were right to answer a direct question from a Judge.  I've been at hearings with similar barked questions about who was driving, in cases where the Defendant was not. Totally unneeded.  Irrelevant even.

Some Judges overstep the mark.  I get it. You fielded it well (showed you were not the driver) and won your case.  Nicely done.