Friday, 8 December 2017

Murdo Fraser MSP introduces Proposed Regulation of Privately-operated Car Parks (Scotland) Bill

Murdo Fraser MSP has introduced a bill to regulate the car parking industry.

An overview of the bill is here;

The consultation document is here;

Several of Mr Fraser's constituents have fallen foul of Smart Parking, a company with a chequered history. Their low standards and deficient machinery have caused huge numbers of motorists to be issued charges when they have not transgressed. Their appalling behaviour may be the tipping point behind this bill, rather like the clamping in Changegate Car Park, Haworth of the car Betty Boothroyd was travelling in may have led to the banning of clamping in England and Wales.

The bill aims to address the issues of excessive charges, the inconsistency of signage, the process for appealing imposed penalties, and the presentation of invoices.

More controversially, to ensure that issues of 'fairness' to operators are also considered,the bill also aims to examine the introduction of keeper liability, which would help operators to identify those who would become liable for charges.

Anyone wishing to reply to the consultation needs to do so before 2 March 2018.

Happy Parking

The Parking Prankster

UKPC lose 7 ticket residential case. Judge rules resident can park in safety

UKPC v Ms H. D5HW059T Manchester Civil Justice Centre. 07/12/2017. District Judge Ranson

Guest Report 

I listened in on the above case this afternoon, where UKPC had issued 7 tickets in a six month period last year to a resident of a block of flats. The claim was for just over £1100.00. Six of the tickets were issued for not parking in her allocated bay, and 1 ticket was issued for not parking within a marked bay.

Ms H explained that, due to drug users frequenting the parking area (due to broken security gates) she had not felt safe parking in her allocated bay as the area was littered with needles. Instead, she parked in a well lit communal area within the apartment block grounds, close to her apartment and displayed her permit.

Several complaints were made to the landlord, but these fell on deaf ears.

SCS sent a Ms Hurley to represent  the claimant. She provided  photos of the vehicle on 6 occasions parked in the communal area. She also provided one photo of the vehicle in pitch dark alleging that it was not parked within a marked bay - it was so dark you could not even see any bay markings!

After hearing both sides, the Judge dismissed the claim as the landlord had not addressed the issue with the needles and therefore, as Ms H had complained on several occasions, Ms H was not able to park in her allocated bay and had parked in a safe, well lit, needle free area instead.

Ms H was understandably very upset by the proceedings and was extremely relieved by the outcome. She didn't want costs and just wanted to go home.

Prankster Notes

Sadly some parking companies have no intention of operating a proper residential parking service. Their sole intention is to gouge residents by creating an inappropriate set of rules conducive to issuing as many charges to residents as possible.

It is clear to The Prankster that UKPC, owned by Rupert John Williams, is one of these companies. UKPC have a long history of deceit and malpractice. They have been taken to court by Trading standards twice, and their wardens have been caught manipulating photographs to pretend motorists overstayed.

The Prankster believes that reform is long overdue for this company.

Happy Parking

The Parking Prankster

Thursday, 7 December 2017

British Parking Association put up the shutters for Brexit. Address for service in Germany 'not acceptable'

It appears the British Parking Association (BPA) are ready to seal off the UK from the rest of the world as this MSE thread shows.

BusyBee1904 received a notice to keeper from NCP for a parking event. As they were not the driver, they discharged their responsibility by providing the name and address of the driver, who lived in Germany.

Here is where things got a little weird. NCP refused to accept the address, and continued to chase BusyBee1904 for the parking charge. BusyBee1904 therefore filed a complaint with the British Parking Association who came up with this perposterous response.

"I am advised that a name and full address was provided for the driver, however, as the person concerned is a resident of Dusseldorf, outside of the UK, the operator was unable to accept that as a serviceable address. Schedule Four of the Protection of Freedoms Act 2012 requires a serviceable address to be supplied in order to transfer liability. As none has been supplied, the liability has reverted back to the Registered Keeper in accordance with the legislation."

Here is the requirement from the Protection of Freedoms Act, 2012 (POFA).

5 (1) The first condition is that the creditor [...] is unable to take steps to enforce that requirement against the driver because the creditor does not know both the name of the driver and
a current address for service for the driver.

So what is a "current address for service"? Well, that is conveniently defined at the beginning of the Act, in paragraph 2(1). 

“current address for service” means [...] in the case of the driver, an address at which the driver for the time being resides or can conveniently be contacted;

As the address where the driver resides has been supplied, a "current address for service" has clearly been supplied. The second condition has also clearly been met. For the benefit of the British Parking Association, the way to conveniently contact somebody living in Dusseldorf is via something those of us in the know call a "letter". You pop this "letter" in an "envelope", write the address on the outside and stick on a prepaid delivery charge those of us in the know call a "stamp".

Apparently some intrepid company call the Royal Mail is prepared to venture outside the scary boundaries of the United Kingdom for the princely sum of £1.05. Simply take this "letter" to them and they will do the rest.

The Prankster understands that the BPA might not yet have progressed beyond carrier pigeon, and that the attrition rate of these is unacceptably high across the channel. He is happy to advance parking knowlege several centuries and introduce the BPA and their clients to the heady delights of the "post". 

No charge has been made for this educational service.

Prankster Notes

Service of the claim form where before service the defendant gives an address at which the defendant may be served
6.8  Subject to rules 6.5(1) and 6.7 and the provisions of Section IV of this Part, and except where any other rule or practice direction makes different provision –
(a) the defendant may be served with the claim form at an address at which the defendant resides or carries on business within the UK or any other EEA state and which the defendant has given for the purpose of being served with the proceedings...

It does therefore seem strange that the British Parking Association has chosen to refine "address for service" in a manner which neither complies with POFA or with the legal definition from practice directions.

The Prankster therefore recommends that anyone in a similar position raises complaints to the DVLA and the IOC, and also considers making a claim against the parking company for harassment and breach of the Data Protection Act. From May 2018, a data protection breach can cost a company €20 million or 4% of annual global turnover and therefore this is a very useful tool to use against parking companies wilfully ignoring the law and data protection requirements.

Dear DVLA,
I wish to raise a complaint about NCP. They are pursuing me for keeper liability. However, I have provided them with the name and address of the driver, who lives in Germany.

I refer you to the Protection of Freedoms Act, 2012 (POFA), paragraph 2(1).“current address for service” means [...] in the case of the driver, an address at which the driver for the time being resides or can conveniently be contacted;

As the driver both resides and can be conveniently contacted at the address given, it is clear that keeper liability no longer applies.

I have also contacted the British Parking Association, who incorrectly stated that keeper liability still applied.

Please therefore take the appropriate corrective action against both NCP and the BPA, and keep me informed of your progress.

Dear ICO,

I wish to raise a complaint about NCP. They are breaching the first principle of the data protection act 1998 by using my personal data in a manner which is neither fair nor lawful.

They are pursuing me for a parking charge under the keeper liability provisions of the Protection of Freedoms Act 2012. However, I was not the driver, and I have discharged my responsibilities under the act by providing the name and address of the driver, who lives in Germany.

I refer you to the Protection of Freedoms Act, 2012 (POFA), paragraph 2(1).“current address for service” means [...] in the case of the driver, an address at which the driver for the time being resides or can conveniently be contacted;

As the driver both resides and can be conveniently contacted at the address given, it is clear that keeper liability no longer applies.

They are therefore using my personal data in a manner which is both unfair and unlawful by using it to pursue myself for the parking charge.

Although "address for service" is defined explicitly in POFA, I also refer you to practice direction 6.8, which also makes is clear that even if it had not been, a lawful address for service can in any case be anywhere in the EAA

Service of the claim form where before service the defendant gives an address at which the defendant may be served
6.8  Subject to rules 6.5(1) and 6.7 and the provisions of Section IV of this Part, and except where any other rule or practice direction makes different provision –
(a) the defendant may be served with the claim form at an address at which the defendant resides or carries on business within the UK or any other EEA state and which the defendant has given for the purpose of being served with the proceedings.

Dear NCP

Letter before claim

I wish to raise a complaint about your actions. You are breaching the first principle of the data protection act 1998 by using my personal data in a manner which is neither fair nor lawful.

You are pursuing me for a parking charge under the keeper liability provisions of the Protection of Freedoms Act 2012. However, I was not the driver, and I have discharged my responsibilities under the act by providing the name and address of the driver, who lives in Germany.

I refer you to the Protection of Freedoms Act, 2012 (POFA), paragraph 2(1).“current address for service” means [...] in the case of the driver, an address at which the driver for the time being resides or can conveniently be contacted;

This is therefore a breach of the first data protection principle, which states data must be used fairly any lawfully. The data protection act provides that damages can be claimed if a breach occurs.

Your continued actions are causing me stress and distress, and this therefore also constitutes harassment under the Protection from Harassment Act 1997.

I therefore request that you immediately confirm you will no longer pursue this parking charge, and invite your offer to cover reasonable damages.

If you fail to reply within 14 days I reserve the right to take legal action. I am open to appropriate alternative dispute resolution. Please therefore also view this as a challenge to the parking charge, and issue me with a POPLA code.  

The Prankster has previous blogged that POPLA view an address for service as valid even if it is abroad.

Happy Parking

The Parking Prankster

Sunday, 3 December 2017

VCS spend over £1,000 chasing bogus £100 parking charge at Albert Street, Birmingham

VCS v Ms O C8DP9D8C Birmingham 1/8/2017

Ms O parked her car in  Albert Street, Birmingham in 2014, entered her registration and paid the correct amount. She was certain this was done properly. As the car was a hire car she had taken special care to enter the registration correctly.

Vehicle Control Services disagreed, and issued a parking charge. Ms O contested this at POPLA and sadly the POPLA assessors believed VCS over Ms O and the appeal was declined. At this point Ms O contacted The Prankster for help. The Prankster checked the POPLA evidence pack and noticed that the signage at this car park was in the name of Excel Parking, and not VCS.

Sadly, the incompetent assessors at POPLA had not noticed this.

This of course meant that VCS had no contract with Ms O and therefore no right to pursue any parking charge.

The Prankster helped Ms O point this out to VCS, and also over the course of a few years to their debt collectors Rossendales and BW Legal.

The Prankster also helped Ms O file a complaint with the Credit Services Association, complaining about the bullying and misleading letters she had been sent by BW Legal.

BW Legal filed a claim anyway, and Ms O filed a counterclaim for misuse of her personal data.

VCS had a long history of filing court claims regarding this car park, but pulling out if the defendant raises the defence that the signage was not in their name, such as VCS v Zozulya, claim A8QZ6666 and VCS v Ms M, claim 3QZ53955.

It is therefore clear to The Prankster that they were fully aware they had no valid claim, and that this was therefore a speculative claim and an attempt at bullying Ms O into paying up.

Despite this, BW Legal got their 'Litigation Executive' Rohan Krishnarao to file a reply to defence stating that he felt the defence was embarrassing for its lack of particularity. He asked for the defence and the counterclaim to be struck out.

This is a standard trick by BW Legal and as far as The Prankster can tell, dear Rohan puts this on all his cases regardless of merit. Perhaps this is a trick he learned while studying law at Cardiff University.

Hearing 1

The first hearing was an allocation hearing on Monday 23 Jan 2017. Interestingly, the week before the hearing, the Prankster got hold of a document from the BW Legal dated 18 November stating that VCS had ordered BW Legal to stop pursuing Ms O. As BW Legal were still pursuing Ms O, The Prankster wondered what was going on.

Prior to the hearing The Prankster tried to give this document to BW Legal's solicitor, a bad tempered older gentleman. He refused to accept this and started ranting that Ms O had no legitimate counterclaim as her details had been validly obtained from the DVLA. Obviously he had not read the case notes - as this was a hire car, the DVLA would not have had her details to give out. The Prankster decided to leave him to his own devices.

Immediately the hearing started, the solicitor announced that VCS were discontinuing the claim. This left only the counterclaim. The judge ordered Ms O to file more detailed particulars. The solicitor asked if they could have a directions hearing once these were filed.

Hearing 2

Despite asking for a directions hearing, VCS had no directions they wished to ask for. Neither did Ms O. The judge therefore gave the only direction he could, which was to set a date for the next hearing.

In passing he mentioned that he heard most of the parking cases in Birmingham and initially thought this was another run-of-the-mill case until he realised that the claim was discontinued and only the counterclaim was valid. He was now sad that he would not be hearing it, as it looked rather interesting.

He did mention that the particulars looked overly long, at which the Prankster had to smile a wry smile, as they had been asked to lengthen them at the previous hearing.

After the hearing the BW Legal representative, a younger chap, confided that he had no idea why the directions hearing had been asked for. He speculated it might have been an attempt to discourage Ms O from continuing by introducing extra hearings.

Hearing 3

There was some confusion over the hearing fee for the counterclam hearing. Ms O attempted to pay it, but the incompetents at BW Legal had for some reason already paid the £25.

VCS engaged Ms Empson, who introduced herself as a barrister.

Ms O was represented for the third time by The Prankster.

There was a pre-hearing discussion. It turned out BW Legal had given Ms Empson the wrong paperwork and the old particulars of claim. The Prankster allowed her to photocopy his copy. She said a counterclaimant witness statement had not been filed. The Prankster replied they were relying on the particulars, which were also a statement of truth signed by the counterclaimant.

BW Legal had also not filed a witness statement. However, after some discussion it turned out they had, but for some unaccountable reason had sent it to the wrong address, despite no other claim paperwork going there. Ms Empson showed The Prankster the witness statement which turned out to be the same as their defence. As it was not introducing new material, The Prankster was happy to continue.

Ms Empson explained she would be attacking the defence for not showing any loss. The Prankster explained he would rely on Vidal-Hall v Google on that point.

In the hearing the DDJ got immediately stuck into the minutia of the Data Protection Act and quizzed The Prankster fiercely on what the personal data was and what the exact breach was. There was quick agreement  that the issue was around principle 1 - was data processed fairly and lawfully.

The DDJ then dived off down subclauses (a) and (b). The Prankster explained he was not claiming non-conformance with the subclauses; only the 'fair and lawful' provision.

There was then some argument on when the breach occurred. The Prankster explained that in principle VCS could start the process of asking for a parking charge. However the breach occurred once they had been informed that their claim was not valid and they continued for several years to press on anyway, causing distress and harassment.

The Prankster could see the DDJ was in two minds. At this point the hearing still had not got into why the parking charge was not valid, so The Prankster asked the DDJ if he might explain this, as he thought this would help. He read the first line of the sign from the bundle. "By parking here you are entering into a contract with Excel Parking". He stated it was basic contract law that a third party could not sue on a contract between two other parties. He asked what VCS were doing bringing a court claim in the first place as only Excel had the right to do this.

The judge had a light bulb moment.

He said VCS could act as agents for Excel, and collect money on their behalf, but only Excel could bring a claim. He asked Ms Empson if she had anything to add. Unsurprisingly she did not.

The hearing then went through the letters to Rossendales and BW Legal explaining to them that the charge was not valid because VCS were not a party to the claim, and their template replies totally ignoring the issue. The hearing also went through the other claims VCS had filed and then discontinued.

The hearing examined quantum of damages. Ms Empson stated Ms O had never listed her costs. The Prankster explained the costs were trivial; postage and printing, and not worth individually listing. Instead, he was relying on Vidal-Hall v Google and the costs took into account the distress caused by 2 years of letters which were all template replies never addressing the issues raised. The amount was set both to reflect this distress, taking into account the level of the parking charge and the need to set an amount to stop parking companies claiming money they were not allowed.

The judgment was then made.

The judge found that the data processed was personal data.
The judge found that it had been processed unfairly and unlawfully.
However, for technical reasons he found that in this particular case, there was no breach.

However, despite that, he said that the court had other methods whereby he could deal with claimants who abused the court process. He then went on to costs. He explained that although the counterclaim failed, the courts themselves had discretion to address the matter.

He stated that VCS had behaved unreasonably in bringing the claim after such a long time; when they had been informed of the reason for failing; when they had brought and discontinued other claims.

He then quizzed the defence on the time spent over the case, allowing this at the litigant in person rate. He then discounted this by 50% to take into account that the counterclaim failed, arriving at the figure of £222 - not a million miles from the £250 claimed. This was awarded under the unreasonableness rule, 27.14(2)g

Ms Empson contested that the claim was not unreasonable but the DDJ disagreed.. Costs to be paid within 14 days.

Prankster Notes

Although this case was lost on a technical reason, this applied only to this case. The Prankster believes that other similar cases would succeed, and also that if Ms O appealed, she would have had a good chance of success. However, for obvious reasons, she chose not to.

What is good news is that Simon Renshaw Smith's greed and utter lack of morals in pursuing this case has led to his comeuppance and a substantial loss for his company.

This will have cost;
£27 POPLA fee
£54 BW Legal costs
£50 BW Legal filing fee
£50 two hearing fees
£700 3 sets of representation costs, including 1 barrister
£222 costs

All told, this is well over £1,000. Perhaps Simon has a valid claim against POPLA. After all, if they had done their job properly in the first place, the appeal would have been upheld then.

It also means that if Simon brings any more cases for Albert Street, Birmingham using the wrong claimant he would likely be facing another substantial costs ruling.

Happy Parking

The Parking Prankster

Saturday, 2 December 2017

Private Parking Solutions hammered in court

Private Parking Solutions (London) Ltd v Ms B D0GF1A8R Brentford. DDJ Chohan 22 Nov 2017

PPS wished to charge Ms B, a resident, for parking in her own space while not displaying a permit in her courtesy car.

Ms B retorted that she had been a resident for 20 years, that she had the right to park in her own space, and that PPS had no rights to issue charges to her.

PPS disagreed and so instructed the famously incompetent Gladstones Solicitors to file a claim on their behalf. As can be expected if you hire joke solicitors, things did not turn out well for them.

Gladstones did not bother to follow the directions the court issued, and did not bother to file a bundle until after the hearing had actually started. When they did, it was their usual template nonsense, shoddily thrown together and worse than useless.

The bundle promised to include an agreement from the landowner authorising parking management, but did not.

The parking attendant, Jakub Gajewski, who is also the sole director of PPS issued two witness statements, one of which claimed that he made physical or verbal contact with the driver. This was incorrect.

During the hearing, PPS were represented by Mr Wogan. Ms B was represented by counsel.

DDJ Chohan was suitably unimpressed by the way Gladstones had conducted the case, finding that they had not complied with the directions previously issued. The claim was dismissed and costs of £350 were awarded under the unreasonable behaviour rule, 27.14(2).g.

Prankster Note

Jakub Gajewski has previously been blogged about due to the underhand and devious tactics his operators use. He was kicked out of a car park in Ashford, but continues to file claims, although he has lost all reported cases. There is now a civil restraining order being sought against him.

In this newspaper article he claims to operate 300 car parks, although this seems to be unlikely, particularly as he acts as one of his own car park attendants.

In short then, he appears to be a rogue. As such he is in good company employing Gladstones Solicitors, and their rogues gallery of Will Hurley, John Davies, Jamie Ashford and Helen Cook. None of these five seem to have the faintest idea of the law surrounding parking.

It is a strange world that we live in, given that these people are directors of parking companies, directors of parking trade associations and solicitors specialising in filing claims for parking charges.

PPS are now £350 worse off, plus the cost of their own representative, the court costs of £75 and the costs of instructing Gladstones. When you employ a firm of solicitors who appear blissfully unaware of the requirements of the court process, let alone the issues surrounding parking claims, this is what happens.

This is not an isolated incident - Gladstones are a byword for incompetence and shoddiness.

PPS, you've been Gladstoned!

Happy Parking

The Parking Prankster

Monday, 6 November 2017

Ex-tower Nigel Barrington-Fuller made bankrupt

This week The Prankster referred to the case of Mayhook v NCP. In that case Nigel Barrington-Fuller, an ex-barrister towed away Mr Mayhooks car from an NCP car park and refused to return it. Mr Mayhook successfully sued NCP and Barrington-Fuller, and was awarded damages and costs.

As a postscript to this story, it has now emerged that Barrington-Fuller has not paid NCP monies owed to them and had therefore been made bankrupt in May 2017.

The story was reported on pepipoo.

It is not known whether the monies owed had anything to do with the Mayhook case.

Mr Mayhook was awarded £87,000, broken down as follows;

Solicitors costs £45000
Barrister £12500
After the event Insurance £24000
Disbursements £4500

This did not include NCP or Mr Barrington-Fuller's costs - presumably they shelled out a similar amount. It is therefore quite possible that the bankruptcy concerned monies that Barrington-Fuller owed to NCP as part of this settlement. However, this is of course just speculation.

Happy Parking

The Parking Prankster

Sunday, 5 November 2017

IPC Kangaroo Court strikes again

The IPC appeals service, the IAS,  has been regularly exposed as a kangaroo court which does not provide a fair or independent appeals service. Instead, it is institutionally biased towards the parking operator.

A fair service would produce results which are by and large the same as would be produced in a court of law. Sadly the lead assessor Bynn Holloway has created a bogus set of rules for his minions to
follow which achieve almost exactly the opposite.

For example, in the civil courts the burden of proof is on the claimant. Although Bryn is apparently a barrister, and therefore should know this, he has created an appeals service in which the exact opposite applies.

Many parking companies have decided not to use the keeper liability provisions of the Protection Of Freedoms Act 2012, and so only the driver is liable. In those cases it is therefore up to the parking company to prove the driver is in fact, the person they are accusing of being liable. A large number of small claims cases have shown this to be the case. Here is just one of the many recent cases

Therefore it strikes me that there is a simple question that the court has to ask itself. Is there evidence produced by the claimant to show that Miss Quayle, and I will call her Miss Quayle for the remainder of the judgment, is there evidence to show from the claimant that Miss Quayle was on a balance of probabilities the driver on 28th December 2014 when the car was parked in the Princes Dock area? The claimant has produced absolutely no evidence that the defendant was the driver and simply says that they are entitled to presume that the defendant was the driver because effectively she was the registered keeper at the time.
I disagree. 
However contrary to this, on Bryn Holloway's misguided orders, his lackeys regularly assume that the keeper was the driver even though the parking companies offer no evidence whatsoever.

Even worse, evidence the keeper provides to show they were not the driver is regularly ignored. In one case the Prankster helped with, the parking company stated on the driver was male. The keeper was female and therefore any fair appeal service would find for the keeper. However, this was not good enough evidence for the IAS. The keeper also provided witness statements from the occupants of the vehicle that she was not even present at the time of the incident (she was at home preparing a meal). Even this was not good enough for the IAS! The appeal was dismissed.

Of course, it is not possible to run a fair appeals service which believes whatever the parking company states, however incredulous, while simultaneously disbelieving the evidence of the motorist.

When motorists complain they have received a poor decision Bryn routinely refuses to investigate and instead sends out a template letter stating that he cannot investigate because this would compromise the service. Of course, this is smoke and mirrors. Any proper appeals service would properly investigate complaints.

The Prankster therefore has no hesitation in saying that based on the available evidence it appears that Bryn Holloway is an incompetent fraud who lacks the experience, moral fibre and legal knowledge to run an appeals service fairly and properly. In the Prankster's opinion he has zero credibility and should seriously consider whether he is the right person for the job.

Bryn's lackeys hide behind the cloak of anonymity. The Prankster believes that this is because if their names were to become public they would lose all credibility in the legal community. The Prankster therefore has no hesitation in saying that based on the available evidence it appears that Bryn's minions are either biased or incompetent, and have no place in serving on an appeals service.

Here is one recent example of the IAS's bias and incompetence.

The motorist parked in a car park in Folkestone run by CPM a couple of months ago. It turned out the ticket machine was out of order; a small group of people gathered round it and one person phoned the number given. She was told to text the car reg no to the mobile number given, which the motorist duly did. Two hours later they returned to find a PCN recently affixed to the car.

The motorist appealed to CPM, which was declined, and then in due course to IAS where the appeal was also dismissed. At no point was the point answered that the motorist had sought out and obeyed the instructions of the parking company.

The Prankster firmly believes that if this goes a claim the parking company will be laughed out of court by the judge. Essentially an oral change to the parking contract has been discussed and agreed by both parties, and this will therefore take precedence over any signage.

The fact that Bryn Holloway fails to understand this proves in the Prankster's eyes that he is not a fit person to run an appeals service and that his knowledge of contract law is shaky at best and non-existent at worst.

Happy Parking

The Parking Prankster