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Senior Judge Spanks CEL at Appeal Hearing, Charges ruled a penalty
bargepole
post Fri, 21 Feb 2014 - 15:24
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At: Luton County Court
Before: Mr Recorder Gibson QC
Date: 21/02/2014
Case No.: 3YK50188 (AP476) On Appeal from Watford County Court
Appellant: Civil Enforcement Limited – Repesented by Barrister Richard B Ritchie QC
Respondent: Kerry McCafferty – Assisted by myself

This was an appeal by CEL against a ruling by Judge Wharton at Watford County Court on 03/10/13, that CEL’s charge of £150 was a penalty, and therefore not enforceable. The original Judge had followed OBServices v Thurlow closely, and reached the same conclusion.

The grounds of appeal were that the Judge at first instance had failed to properly recognise that the £150 was a contractual sum, and was not therefore subject to any test as to whether it represented a genuine pre-estimate of loss.

I was accompanied to the hearing by Andy “Two Dinners” Foster from Pepipoo, who was able to provide some helpful pointers as we went along.

The first issue to be decided was that of representation. The CPR rules do not allow for right of audience for a Lay Representative in an Appeal hearing, but the Judge has discretion over that. Mr Ritchie objected to my speaking on the Respondent’s behalf, and the Judge asked Mrs McCafferty (who had conducted her own case at the original hearing) why she wanted my assistance. She explained that I had written the skeleton argument for her, and was generally more au fait with the issues. He ruled that she was sufficiently articulate to conduct her own case, but that I could assist as a McKenzie Friend.

He then asked Mr Ritchie to present the case for the Appellant, which really centred around the fact that the £150 was a contractual charge, motorists had the choice to pay £5 for a day’s parking by phone, or if they didn’t pay within 10 minutes of arrival, they were contractually liable to pay £150. He quoted at great length, passages from Euro Appointments v Claessens, Exports Credits Guarantee v Universal Oil, and others in support of his arguments. Behind him were sitting Mr Abrahams and a lady from CEL, and they brought with them an actual sign.

The respondent was asked to reply, and we relied on the main points in the skeleton, which were that the purpose of the charge was to deter, and it was therefore a penalty; that the appeal had been brought on different grounds from those at the original hearing; and that the cases cited by Ritchie involved individually negotiated contracts between parties of equal standing, and could therefore be distinguished from the present case.

We were sent out for half an hour while the Judge considered his decision, and at this stage it was difficult to tell which way he was leaning.

When we returned, he went through his summary, the first point being that the requirement to pay £150, although in much smaller font than the rest of the sign, did form part of the contract to which the Respondent agreed. However, he had to look at the construction of the contract, and it was clear to him that the £150 was not a genuine offer to park at that price, but its main purpose was to deter. It was, therefore, a penalty dressed up as a contractual term, and not recoverable.

He dismissed the appeal, and awarded the Respondent her costs. I had applied for costs as a Lay Rep, but as I was now only a McKenzie, no costs were payable.

Ms McCafferty went off a happy bunny, not having to pay a penny of their £350 claim, and Andy and I found an all-you-can-eat buffet restaurant, who will now have to put their prices up after his visit.




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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 Fri, 21 Feb 2014 - 15:24
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PearlJosh
post Fri, 21 Feb 2014 - 15:27
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Would it be possible to get similar support from a Pepipoo member for most court cases?
Congratulations by the way, surely the way these bullies do business has to stop soon if they're losing so frequently?
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ManxRed
post Fri, 21 Feb 2014 - 15:28
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Superb. Does this set any kind of precedent?


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kirkbyinfurnessl...
post Fri, 21 Feb 2014 - 15:35
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QUOTE (ManxRed @ Fri, 21 Feb 2014 - 15:28) *
Superb. Does this set any kind of precedent?


Its "persuasive" but not a precedent, has more influence then a normal county court hearing


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Gan
post Fri, 21 Feb 2014 - 15:37
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IIRC their claims state that they're for breach of contract

Their witness statements then state that the defendant is mistaken for thinking it was for a breach
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Broadsword
post Fri, 21 Feb 2014 - 16:04
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Correct me if I am wrong but when the DVLA/BPA Ltd were investigating CEL's £150 charges last year I am pretty darn sure that in the end CEL eventually declared their hand as 'damages' under 19.5 rather than a contractual sum under 19.6

If they have now done a 'U' turn on that assurance to the DVLA (I presume in a statement of truth) that their £150 charges were in reality the price to park then I should imagine that there's a potential hefty VAT bill that needs settling with HMRC?

(Well done indeed btw)
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Salmosalaris
post Fri, 21 Feb 2014 - 16:10
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RIP contractual charge ?


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EDW
post Fri, 21 Feb 2014 - 16:10
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QUOTE (bargepole @ Fri, 21 Feb 2014 - 15:24) *
At: Luton County Court
Before: Mr Recorder Gibson QC
Date: 21/02/2014
Case No.: 3YK50188 (AP476) On Appeal from Watford County Court
Appellant: Civil Enforcement Limited – Repesented by Barrister Richard B Ritchie QC
Respondent: Kerry McCafferty – Assisted by myself

This was an appeal by CEL against a ruling by Judge Wharton at Watford County Court on 03/10/13, that CEL’s charge of £150 was a penalty, and therefore not enforceable. The original Judge had followed OBServices v Thurlow closely, and reached the same conclusion.

The grounds of appeal were that the Judge at first instance had failed to properly recognise that the £150 was a contractual sum, and was not therefore subject to any test as to whether it represented a genuine pre-estimate of loss.

I was accompanied to the hearing by Andy “Two Dinners” Foster from Pepipoo, who was able to provide some helpful pointers as we went along.

The first issue to be decided was that of representation. The CPR rules do not allow for right of audience for a Lay Representative in an Appeal hearing, but the Judge has discretion over that. Mr Ritchie objected to my speaking on the Respondent’s behalf, and the Judge asked Mrs McCafferty (who had conducted her own case at the original hearing) why she wanted my assistance. She explained that I had written the skeleton argument for her, and was generally more au fait with the issues. He ruled that she was sufficiently articulate to conduct her own case, but that I could assist as a McKenzie Friend.

He then asked Mr Ritchie to present the case for the Appellant, which really centred around the fact that the £150 was a contractual charge, motorists had the choice to pay £5 for a day’s parking by phone, or if they didn’t pay within 10 minutes of arrival, they were contractually liable to pay £150. He quoted at great length, passages from Euro Appointments v Claessens, Exports Credits Guarantee v Universal Oil, and others in support of his arguments. Behind him were sitting Mr Abrahams and a lady from CEL, and they brought with them an actual sign.

The respondent was asked to reply, and we relied on the main points in the skeleton, which were that the purpose of the charge was to deter, and it was therefore a penalty; that the appeal had been brought on different grounds from those at the original hearing; and that the cases cited by Ritchie involved individually negotiated contracts between parties of equal standing, and could therefore be distinguished from the present case.

We were sent out for half an hour while the Judge considered his decision, and at this stage it was difficult to tell which way he was leaning.

When we returned, he went through his summary, the first point being that the requirement to pay £150, although in much smaller font than the rest of the sign, did form part of the contract to which the Respondent agreed. However, he had to look at the construction of the contract, and it was clear to him that the £150 was not a genuine offer to park at that price, but its main purpose was to deter. It was, therefore, a penalty dressed up as a contractual term, and not recoverable.

He dismissed the appeal, and awarded the Respondent her costs. I had applied for costs as a Lay Rep, but as I was now only a McKenzie, no costs were payable.

Ms McCafferty went off a happy bunny, not having to pay a penny of their £350 claim, and Andy and I found an all-you-can-eat buffet restaurant, who will now have to put their prices up after his visit.




First of all, excellent result.

Second of all ha-ha-ha.

Third of all, a QC using http://www.bailii.org/ew/cases/EWCA/Civ/2006/385.html what utter garbage.

Hopefully ParkingPrankster will consider paying for the approved judgement.




For a fairly simple statement of the law of penalties as it now stands see:


Brookfield Aviation International Limited v Van Boekel (26 July 2013, Unreported) Mayor’s and City of London County Court, His Honour Judge Hand QC






This post has been edited by EDW: Fri, 21 Feb 2014 - 16:14
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Quicksilver
post Fri, 21 Feb 2014 - 16:16
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What was the reaction of the CEL people? Emotional or ?

Q.
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FieryPhil
post Fri, 21 Feb 2014 - 16:16
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Its very heartening to see Barristers spanked so thoroughly by unrepresented members of the public, that little lots probably cost them at least £1000 for the barrister + all other costs allowed. laugh.gif

Good skills guys, I bet they wont be trying that on again...
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bargepole
post Fri, 21 Feb 2014 - 16:18
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QUOTE (Broadsword @ Fri, 21 Feb 2014 - 16:04) *
Correct me if I am wrong but when the DVLA/BPA Ltd were investigating CEL's £150 charges last year I am pretty darn sure that in the end CEL eventually declared their hand as 'damages' under 19.5 rather than a contractual sum under 19.6

If they have now done a 'U' turn on that assurance to the DVLA (I presume in a statement of truth) that their £150 charges were in reality the price to park then I should imagine that there's a potential hefty VAT bill that needs settling with HMRC?

(Well done indeed btw)

The actual parking event was Sept 2012, and therefore pre-POFA, and several versions ago of the BPA COP.


--------------------
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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EDW
post Fri, 21 Feb 2014 - 16:19
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http://xxiv.co.uk/barristers/richard-ritchie

not a QC?

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Kezzam
post Fri, 21 Feb 2014 - 16:26
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As the respondent today I want to record a very big thanks to the forum and in particular Bargepole for all his support throughout this process. You are all doing a great job to support honest members of the public, like me, who don't feel the extortionate parking charges, and bullying tactics by these firms are fair. Thank you and if this case in anyway helps others it will have been worth it.
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EDW
post Fri, 21 Feb 2014 - 16:26
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As regards Brookfield


See para 67, the judge was not coninvied when PEOL was discussed.

67
In particular he submitted that I should reject Mr Dooney’s account of a meeting of the
Claimant’s directors in 2007 at which the sum of €5,000.00 had been arrived at as a
genuine pre-estimate of damage in the event that the pilot simply walked off the job
never to return. That evidence was unsatisfactory; Mr Dooney could not recall exactly
when the meeting had been, although he thought it might have been before the 2007
Contract between the Claimant and Mr Van Amsteel. Nowhere in his witness
statements does Mr Dooney make any reference to this meeting, which was introduced
for the first time in his oral evidence.



In future cases the PPC should be asked how/when the PEOL was calculated.

This post has been edited by EDW: Fri, 21 Feb 2014 - 16:27
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Broadsword
post Fri, 21 Feb 2014 - 16:28
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QUOTE (bargepole @ Fri, 21 Feb 2014 - 16:18) *
QUOTE (Broadsword @ Fri, 21 Feb 2014 - 16:04) *
Correct me if I am wrong but when the DVLA/BPA Ltd were investigating CEL's £150 charges last year I am pretty darn sure that in the end CEL eventually declared their hand as 'damages' under 19.5 rather than a contractual sum under 19.6

If they have now done a 'U' turn on that assurance to the DVLA (I presume in a statement of truth) that their £150 charges were in reality the price to park then I should imagine that there's a potential hefty VAT bill that needs settling with HMRC?

(Well done indeed btw)

The actual parking event was Sept 2012, and therefore pre-POFA, and several versions ago of the BPA COP.


but they were still required by the DVLA (poking the BPA Ltd with a sharp stick) to show their hand on whether or not it was damages or a contractual sum - PoFA didn't impact on what their charges were (damages or contractual sum) and also CEL just simply carried on as they done before PoFA in any event. It took the DVLA (I think) 18 months of asking (whilst still releasing data to them) before CEL eventually fessed up that their charges were indeed 'damages'
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The Slithy Tove
post Fri, 21 Feb 2014 - 16:29
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It all confirms what Grahame R of CP Plus Ltd said on LinkedIn in a PPC whinge thread:

QUOTE
Of course the elephant in the room regarding enforcement is deterrent; without an effective deterrent many motorists will ignore the rules and this goes for on-street as well as off-street. The only reason people generally avoid parking on a yellow line is the likelihood that they will receive a PCN coupled with the PCN amount being enough to deter them

Yes, we knew all along, it's a deterrent and thus an unenforceable penalty made to look like a contracturally agreed sum. Nice of the judge to agree with what a PPC has already told us.

This post has been edited by The Slithy Tove: Fri, 21 Feb 2014 - 16:31
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andy_foster
post Fri, 21 Feb 2014 - 16:32
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'Twas a good day out. Just a couple of minor points.

Firstly, whilst the learned judge did indeed express a clear opinion that the £150 charge was a penalty ostensibly intended to deter non-payment, other than somewhat trivial question as to whether the terms and conditions being in small print formed part of the contract which was accepted by performance, the issue in the appeal was whether on proper construction of the contract, the charge of £150 for breaching the term requiring payment by phone within 10 minutes was actually for breaching the requirement to pay by phone within 10 minutes, and therefore clearly a penalty which bore no relation to any genuine pre-estimate of loss, or whether it was somehow a genuine offer to those who were unable or unwilling to pay by phone within the 10 minutes to park for a mere £150 which they could presumably pay at their leisure.

Secondly, if assisting the failed appellant and their expensive barrister by clarifying the learned judge's verdict with the somewhat less jargon-laden phrase "You ain't singing, you ain't singing, you ain't singing any more" is such a problem, why isn't it mentioned in the civil procedure rules or the practice direction?

This post has been edited by andy_foster: Fri, 21 Feb 2014 - 17:06


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Andy

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EDW
post Fri, 21 Feb 2014 - 16:33
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I wonder if they will go to the COA, I doubt it. Bad result means PPC's biz model finished.
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Jlc
post Fri, 21 Feb 2014 - 16:42
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As I recall they were a breach basis until they switched to the £100 signs last September or so. They couldn't convince POPLA of the losses so switched to contractual sum. Of course you can't agree to pay a core term with a breach.


--------------------
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, SAR=Subject Access Request

Private Parking - remember, they just want your money and will say almost anything to get it.
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andy_foster
post Fri, 21 Feb 2014 - 16:43
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As it would be a second appeal they would have to seek permission from the Court of Appeal, rather than being able to ask Mr Recorder Gibson QC for permission. However, Mr Gibson did indicate in no uncertain terms that if it had been within his gift to grant permission, he would have refused.


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Andy

"Whatever the intention of Parliament was, or was not, the law is quite clear." - The Rookie
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