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Indigo v Nurses at UHW Cardiff, Permission to Appeal Refused
bargepole
post Sun, 15 Oct 2017 - 20:58
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Many on this forum will have taken an interest in the case, heard at Cardiff in July 2017 over three days, of Indigo v various medical staff at UHW Cardiff. There were 3 'lead defendants', representing some 80 defendants in total, some with multiple PCNs issued for failing to display permits at their workplace, totalling thousands.

The Judge found for the Claimants on all seven issues identified, and made a finding of unreasonable behaviour against the Defendants, awarding the Claimants their assessed costs of £26,000.

An application for permission to appeal both the substantive judgment, and the costs award, was lodged with the court, but the Circuit Judge has now refused that, so it's the end of the line for any appeal.

There will, apparently, be a further hearing, to determine how the costs are to be allocated between the lead defendants, the other defendants, and any third party costs awarded against the lay representatives.

The transcript of the Approved Judgment is here (a long read): https://1drv.ms/b/s!AhdXZ_haugJXgagUqi3DJjUJZX5DaA

The transcript of the Post-Judgment Cost Discussions is here (even longer): https://1drv.ms/b/s!AhdXZ_haugJXgagVKQDBfFN9baYLuw


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We'll fight them on the roads, we'll fight them in the courts, and we shall never, ever, surrender
Cases Won = 20 (17 as McKenzie Friend) : Cases Lost = 4. Private Parking tickets ignored: 3. Paid: 0.
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post Sun, 15 Oct 2017 - 20:58
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anon45
post Mon, 16 Oct 2017 - 13:46
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QUOTE (bargepole @ Sun, 15 Oct 2017 - 21:58) *
Many on this forum will have taken an interest in the case, heard at Cardiff in July 2017 over three days, of Indigo v various medical staff at UHW Cardiff. There were 3 'lead defendants', representing some 80 defendants in total, some with multiple PCNs issued for failing to display permits at their workplace, totalling thousands.

The Judge found for the Claimants on all seven issues identified, and made a finding of unreasonable behaviour against the Defendants, awarding the Claimants their assessed costs of £26,000.

An application for permission to appeal both the substantive judgment, and the costs award, was lodged with the court, but the Circuit Judge has now refused that, so it's the end of the line for any appeal.

There will, apparently, be a further hearing, to determine how the costs are to be allocated between the lead defendants, the other defendants, and any third party costs awarded against the lay representatives.

The transcript of the Approved Judgment is here (a long read): https://1drv.ms/b/s!AhdXZ_haugJXgagUqi3DJjUJZX5DaA

The transcript of the Post-Judgment Cost Discussions is here (even longer): https://1drv.ms/b/s!AhdXZ_haugJXgagVKQDBfFN9baYLuw

Having ploughed through both transcripts, all I can say is that is an absolutely extraordinary, profoundly perverse, and deeply unjust decision, particularly on the issue of costs, especially those awarded against nurses and other motorists not directly party to the case or to Mr. Wilkie's conduct. This is even so given the lies apparently told by Indigo in order to win their case (reminiscent of the Beavis case itself, not least the redacted contract and the suspicious circumstances surrounding the postponement of that original hearing), and the millions of pounds Indigo could now seek against staff and others relating to other unpaid invoices, and the broader 'public interest' angle surrounding hospital staff being charged £188* when left with nowhere to park and lives to urgently save.

*The addition of the fictional and wholly fabricated "contractual charges" of £108 per invoice in collecting the alleged debt is a clear example of 'double recovery', given that the SC ruled in Beavis that the parking charge itself is meant to cover collection costs.

If every defendant who puts forward a defence point which is held to be without merit is liable to costs on the grounds of "unreasonable behaviour", notwithstanding that the same defence points have succeeded in similar cases, then many, many, barristers and solicitors have been guilty of unreasonable behaviour in presenting rejected cases in various courts, and it means any motorist defending a PPC claim could be liable for huge costs, even on the supposedly costs-limited small claims track, simply for putting forward one or more standard Pepipoo defence points that have succeeded in other cases, even post-Beavis.

Is there really no way to use the fighting fund to apply to the High Court or Court of Appeal for leave to appeal, or to appeal the refusal of the Circuit Judge to grant leave to appeal, at the very least on the issue of costs? Alternatively, it is possible to use the fighting fund to assist a 'Cardiff Hospital' defence put forward by a different motorist who did not agree to be bound by the outcome of this case, with a view to appealing the likely adverse decision to a different circuit judge, or perhaps, depending on the precise details of such a (hypothetical) judgment, higher still?

If not, then what should the advice be to motorists going forward? Pay up?

This post has been edited by anon45: Mon, 16 Oct 2017 - 17:30
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Jlc
post Mon, 16 Oct 2017 - 18:23
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QUOTE (anon45 @ Mon, 16 Oct 2017 - 14:46) *
If not, then what should the advice be to motorists going forward? Pay up?

It seems unreasonable to do otherwise...

What gave me a wry smile was that just before I read BP's post I had someone post on Facebook that private parking fines are unenforceable and should be ignored as any contact is admitting liability. Geez....


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information

Private Parking - remember, they just want your money and will say almost anything to get it.
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anon45
post Mon, 16 Oct 2017 - 22:37
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Chitlord's comment in the other thread seems relevant to the issue of costs: http://forums.pepipoo.com/index.php?showto...14690&st=40
http://www.bailii.org/ew/cases/EWCA/Civ/2017/269.html
QUOTE
Sir Thomas Bingham MR in Ridehalgh v Horsefield [1994] Ch 205, 232F in the context of wasted costs. In that case, he said: “Conduct cannot be described as unreasonable simply because it leads in the event to an unsuccessful result or because other more cautious legal representatives would have acted differently.

One thing that this case and the VCS case have in common is district judges, and then circuit judges, twisting the law on contract formation to uphold PPC charges even where the signage is grossly inadequate- essentially holding that the presence of any signage at all is sufficient to validate an utterly punitive charge (and, in this case, a fabricated £108 in collection costs notwithstanding that the charge is meant to cover these costs), even where the signage is objectively forbidding (based upon existing case law and the natural meaning of the English language) and the amount of the charge is hidden in the tiniest font imaginable.

This sits uneasily with the ruling in the Beavis case, where, in disengaging the penalty rule which had previously been engaged, enormous emphasis was placed on the clear signage and the visibility, in large font, of the core charge, and also with case law from Denning's 'red hand rule', Interfoto Picture Library v Stilletto [1989] QB 433, and statute law from the Consumer Rights Act 2015 suggesting that onerous terms in business-consumer contracts must be made clear in order to be enforceable by a business against a consumer.

In this case, Indigo deliberately sold far more permits than spaces in order to cynically maximise profits from subsequent invoices, so it's arguable, particularly given the nurses involved and their vital work, that the 'public policy'/ 'socioeconomic' / 'commercial justification' to disengage the rule against enforcement of penalties in the Beavis car park itself does not apply here, such that the charge ought properly to have been deemed an unenforceable penalty.

Beavis itself is profoundly unlikely to be overturned except in the event that public outcry eventually causes Parliament to step in with primary legislation as it did with clamping, but it seems that it may take a trip to the High Court or Court of Appeal to make clear to district and circuit judges that Beavis didn't make charges enforceable where signage is inadequate, or where PPCs act with 'unclean hands', nor did it legitimise the charging of hundreds of additional pounds in non-existent "collection costs" for each invoice issued.

This post has been edited by anon45: Tue, 17 Oct 2017 - 20:20
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bargepole
post Tue, 17 Oct 2017 - 06:25
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QUOTE (anon45 @ Mon, 16 Oct 2017 - 23:37) *
In this case, Indigo deliberately sold far more permits than spaces in order to cynically maximise profits from subsequent invoices ...


That's not quite right, it was the NHS Trust who issued the permits, which staff had to apply for, and justify on the basis of how far away they lived.

But the number of permits issued was around 4 or 5 times the number of available spaces, and it could take up to two months in some cases to get a permit, or to get an expired one renewed.

Another issue was that, even where permits were correctly displayed, and the £1.05 daily fee paid, that only allowed parking for a 12-hour period. Some staff were rostered for 12-hour shifts, which frequently overran.

Indigo were instructed by the Trust to issue PCNs to any vehicle not displaying a valid permit, and/or not having paid the daily charge. The 'penalty' was £20, reduced to £10 if paid within 14 days.

So, with the wisdom of hindsight, a better strategy might have been for the defendants to bring a class action against the Trust, on the basis that the entire parking scheme was not fit for purpose, and that it caused staff to incur penalties from a third party while carrying out their duties under their contracts of employment.

Had they received better support from their Trade Unions - mainly UNISON - this might have been a viable option, but both the Unions, and the representatives of the Labour-controlled Welsh Assembly, were strangely reluctant to take on the Trust management.


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We'll fight them on the roads, we'll fight them in the courts, and we shall never, ever, surrender
Cases Won = 20 (17 as McKenzie Friend) : Cases Lost = 4. Private Parking tickets ignored: 3. Paid: 0.
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Jlc
post Tue, 17 Oct 2017 - 07:48
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QUOTE (bargepole @ Tue, 17 Oct 2017 - 07:25) *
Another issue was that, even where permits were correctly displayed, and the £1.05 daily fee paid, that only allowed parking for a 12-hour period. Some staff were rostered for 12-hour shifts, which frequently overran.

It's quite different to the frozen food at the checkout scenario...

It's a sorry sorry state of affairs.


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information

Private Parking - remember, they just want your money and will say almost anything to get it.
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anon45
post Tue, 17 Oct 2017 - 20:20
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I understand that, in addition to being ordered to pay the invoices, inflated "collection costs", and unjust costs for supposed "unreasonable behaviour" (IMO, Mr. Wilkie's behaviour pales in comparison to Indigo's lies), the nurses now face hundreds of additional claims for outstanding invoices incurred before this judgment was handed down, and on which they are likely to face summary judgment unless they pay Indigo every inflated or fictitious penny demanded.

Bargepole's latest point on the issuing of permits and the nature of the shifts further supports my assertion that the socioeconomic justification for disengaging the 'penalty rule' in the Beavis case (of which 'commercial justification' was the main determining factor, but not the sole one) does not apply here, at least not against nurses who had been unable to validly park (or to pay for an appropriate period of parking) despite purchasing a permit.

For what it's worth, I agree with southpaw82 in the other thread that the decision not to pay for a barrister for the original hearing was an "amazing" one, (and not in a positive sense), even without the benefit of hindsight, particularly when the cost could have been split across all 70-odd linked defendants.

There is a further profound injustice in that many of the linked defendants only agreed to be bound because of HHJ Vosper's decision that the case should remain on the small claims track, thus limiting costs as far as they knew at the time, bearing in mind that they were not responsible for Mr. Wilkie's subsequent behaviour.

The Civil Procedure Rules state:
QUOTE
52.6
(1) Except where rule 52.7 applies, permission to appeal may be given only where—
(a) the court considers that the appeal would have a real prospect of success; or
(b) there is some other compelling reason for the appeal to be heard.
I believe that both of these conditions were unequivocally met, particularly in relation to the appeal against costs, and against the appeal against the inflation of the original sum, and that the circuit judge erred in refusing leave to appeal.

The ruling does not set case law; therefore, would it be possible to use the 'fighting fund' to assist one or more of the nurses in fighting a subsequent claim by Indigo at the same car park based on largely identical facts, with the intention of getting the case before a different district judge, with a better defence and a better, more qualified, and more professional representative, and with the intention of appealing a refusal to grant leave to appeal as far as is possible (preferably starting with a different circuit judge)?

This post has been edited by anon45: Tue, 17 Oct 2017 - 21:10
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bargepole
post Tue, 17 Oct 2017 - 22:01
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Here is the link to the Circuit Judge's refusal to grant leave to appeal: https://1drv.ms/b/s!AhdXZ_haugJXgag0LdcJ_S69-Nslsg

He's pretty much saying, why did you even bother defending this case.

This post has been edited by bargepole: Tue, 17 Oct 2017 - 22:03


--------------------
We'll fight them on the roads, we'll fight them in the courts, and we shall never, ever, surrender
Cases Won = 20 (17 as McKenzie Friend) : Cases Lost = 4. Private Parking tickets ignored: 3. Paid: 0.
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mail380
post Tue, 7 Nov 2017 - 19:52
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It goes to show just callous and uncaring these parking companies and the people that run them are. Putting money ahead of the work the doctors and nurses do is a sad reflection on our society, what has the UK come to?
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anon45
post Thu, 4 Jan 2018 - 20:38
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What happened at the costs hearing, and are there any plans to use the 'fighting fund' to help the nurses to defend Indigo's inevitable claim for the millions of pounds worth of other outstanding invoices, with a view to getting the next hearing before a different judge?
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