Every few months, a friend, colleague or acquaintance starts a conversation along the lines: ‘I have got this parking penalty and I don’t think it’s right.’ Almost invariably, it’s a private parking penalty and not one issued by a council. We talk through what challenging the penalty may involve and the conclusion ‘I think I’ll just pay it’ follows.
I am all for challenging wrong parking penalties. But, given a choice between (a) paying a £50 penalty and (b) a tedious and time-consuming dispute, people choose the penalty. Which is, no doubt, what makes the private parking industry so profitable.
I’ve only found – so far – one person keen to take on a parking company. She’d parked outside a Tesco for five minutes to buy some Calpol for a poorly baby. Her attitude to the parking company, Euro Parking Services, and their legal advisers, Gladstones Solicitors, was ‘They can fuck off if they think I am paying that.’ They did, and she won.
On 25 March 2016, my friend – H – had a poorly child. She drove to the Tesco Express on Stanley Road in Wakefield, parked outside, went in and bought some Calpol, and came out to find she had a £100 parking charge notice stuck to her windscreen. She had parked on a very worn and feint ‘NO PARKING’ marking. She did not pay the charge.
The parking company was Euro Parking Services Limited which is easily, but wrongly, confused with Euro Car Parks Limited. Euro Parking Services was incorporated in 2014, has assets of £44,000 and one director, 27 year old Shamshar Singh. Euro Car Parks was incorporated in 1976, and has assets of over £4 million, a company secretary and a board of six directors. Presumably the initial subscriber(s) to Euro Parking Services chose a name similar to Euro Car Parks to try gain some gravitas.
Euro Parking’s Shamshar Singh also helps run Spectra Lounge Limited, a Birmingham hairdressing salon. I don’t know if he does highlights in addition to running his parking operations.
Euro Parking’s court claim
DATE – DESCRIPTION – AMOUNT – DUE DATE
25/03/16 PF59FWG/23659 £150 22/04/16
Total due – £150
AND THE CLAIMANT CLAIMS
The Claimant claims the sum of £153.32 for Parking charges and indemnity costs if applicable including £3.32 interest pursuant to S.69 of the County Courts Act 1984 Rate 8.00% pa from dates above to 01/08/16 Same rate to Judgment or (sooner) payment Daily rate to Judgment £0.03
Total debt and interest £153.32
Legally speaking, this is rubbish. It’s a ‘roboclaim’ – automatically generated from a database with minimal human involvement. The form fails its main purpose in that it does not enable the defendant or court to understand the claimant’s case. A claim should comply with the Civil Procedure Rules (CPR), in particular CPR 16.1 and 16.4 which require the form to contain a concise statement of the nature of the claim (breach of contract, negligence, etc) and a concise statement of the facts on which the claimant relies.
No doubt Gladstones Solicitors’ approach is to spend as little time as possible on the form because a significant number of people receiving a claim will feel sufficiently threatened to simply pay. The roboclaims are a cost-effective way of extracting money from defendants. A ‘pile it high and sell it cheap’ approach to legal services. While minimising time and costs is fine in principle, solicitors should still comply with the CPR. Gladstones should not draft – and the court should not issue – claims with inadequate particulars.
I was surprised to see the form signed by a qualified solicitor, Jamie William Ashford. Mr Ashford studied and trained for at least six years to become a solicitor and has practised for five years. I don’t speak for Mr Ashford but, personally, I’d find it degrading to have to put my name to claims like this. It’s a claim for breach of contract and he’s not managed to get the words ‘breach of contract’ on the form? Though perhaps it is deliberate – if the words ‘breach of contract’ are on the form, less people pay up because they have a basic understanding of how contract law works.
Anyway, in response to the claim, H filed a defence form N9B which said:
The claim discloses no cause of action known to law. It’s not so much a claim as a collection of unrelated words – what does ‘DATE – DESCRIPTION – AMOUNT – DUE DATE – 25/03/16 – PF59FWG/23659 – £150 – 22/04/2016’ signify?
The absence of a statement as to the nature of the claim also breaches Part 16.2(1)(a) of the Civil Procedure Rules.
Given that the claim discloses no cause of action known to law, the Claimant cannot recover any court fees, costs, expenses or interest. Contrary to the Claimant’s contention, it should be the Claimant which is liable for the Defendant’s costs and expenses on an indemnity basis.
The judge agreed and ordered Euro Parking to file proper particulars of claim or the claim would be struck out. Unexpectedly, Euro Parking did so and the claim continued. The legal basis of the claim was the familiar contractual parking claim: the parking signs, including the penalty, formed an offer which H accepted by parking her car. The claim was for breach of contract. The leading authority is, of course, the Supreme Court case ParkingEye Limited v Beavis  UKSC 67.
Defences to Euro Parking’s claim
H had three defences to Euro Parking’s claim for £150. They were set out in a written skeleton argument – summarised below – and sent to the other side and the court before the trial. H did not get chance to argue them because neither Euro Parking nor Gladstones solicitors turned up for the trial. The judge dismissed the claim and H got her costs.
Defence 1 – the ‘missing’ parking signs
Euro Parking submitted evidence – a witness statement from Mr Singh – about the parking signs at the Tesco Express. He did not include any photos of actual signs in situ, only paper versions. The images are above. He included a site plan with dots to indicate where the signs were. He did not say when the parking signs had been installed.
H did not see any signs when she parked her car but accepted the signs might have been there. However, H’s partner visited the site after H got the first letter from Euro Parking to see if he could see the signs. There were no signs when he visited. After the claim was issued, H went back to the Tesco Express and signs had been installed. Although it was not clear when the signs had been installed, they were definitely not installed in the places indicated on Mr Singh’s plan. The plan claimed signs were in places they were not.
The first defence raised a simple issue of fact – were the parking signs there when H parked her car? If the parking signs were not present when H parked, there was no offer, no contract and could be no claim for breach of contract.
Defence 2 – a reasonable user would not have seen the signs or been aware of the terms
H’s second argument – if the first defence failed – was based on what Lord Neuberger and Lord Sumption said in ParkingEye:
90. At all material times since then, ParkingEye has displayed about 20 signs at the entrance to the car park and at frequent intervals throughout it. The signs are large, prominent and legible, so that any reasonable user of the car park would be aware of their existence and nature, and would have a fair opportunity to read them if he or she wished to do so.
94. The £85 is described in the notice as a ‘parking charge’, but no one suggests that that label is conclusive. In our view it was not, as a matter of contractual analysis, a charge for the right to park, nor was it a charge for the right to overstay the two-hour limit. Not only is the £85 payable upon certain breaches which may occur within the two-hour free parking period, but there is no fixed period of time for which the motorist is permitted to stay after the two hours have expired, for which the £85 could be regarded as consideration. The licence having been terminated under its terms after two hours, the presence of the car would have constituted a trespass from that point on. In the circumstances, the £85 can only be regarded as a charge for contravening the terms of the contractual licence.
It is clear from the above that a contract in ParkingEye was formed because the notices were frequent, large, prominent and legible. They were an offer clear to any reasonable user and the offer was accepted when Mr Beavis parked his car. H argued that Euro Parking’s signs in her case were inadequate:
- The frequency, size, prominence and legibility of the signs were not such that a reasonable user would have seen them or realised the terms.
- The main sign in this case was very different to the sign in Beavis in that it contained no mention of the penalty for failing to comply with the terms – the £100 penalty was buried in the text on the back of the sign and a reasonable user would not have been aware of the penalty.
The second defence was essentially that a reasonable user may not be aware of the offer and/or not had fair opportunity to familiarise themselves with the terms. There was no offer, no contract and could be no claim for breach of contract.
Defence 3 – was the charge an unreasonable penalty?
The third defence relied on the obvious differences between ParkingEye and H’s case and what Lord Neuberger and Lord Sumption said about the penalty rule:
98. Against this background, it can be seen that the £85 charge had two main objects. One was to manage the efficient use of parking space in the interests of the retail outlets, and of the users of those outlets who wish to find spaces in which to park their cars. This was to be achieved by deterring commuters or other long-stay motorists from occupying parking spaces for long periods or engaging in other inconsiderate parking practices, thereby reducing the space available to other members of the public, in particular the customers of the retail outlets. The other purpose was to provide an income stream to enable ParkingEye to meet the costs of operating the scheme and make a profit from its services, without which those services would not be available. These two objectives appear to us to be perfectly reasonable in themselves. Subject to the penalty rule and the Regulations, the imposition of a charge to deter overstayers is a reasonable mode of achieving them. Indeed, once it is resolved to allow up to two hours free parking, it is difficult to see how else those objectives could be achieved.
99. In our opinion, while the penalty rule is plainly engaged, the £85 charge is not a penalty. The reason is that although ParkingEye was not liable to suffer loss as a result of overstaying motorists, it had a legitimate interest in charging them which extended beyond the recovery of any loss. The scheme in operation here (and in many similar car parks) is that the landowner authorises ParkingEye to control access to the car park and to impose the agreed charges, with a view to managing the car park in the interests of the retail outlets, their customers and the public at large. That is an interest of the landowners because (i) they receive a fee from ParkingEye for the right to operate the scheme, and (ii) they lease sites on the retail park to various retailers, for whom the availability of customer parking was a valuable facility. It is an interest of ParkingEye, because it sells its services as the managers of such schemes and meets the costs of doing so from charges for breach of the terms (and if the scheme was run directly by the landowners, the analysis would be no different). As we have pointed out, deterrence is not penal if there is a legitimate interest in influencing the conduct of the contracting party which is not satisfied by the mere right to recover damages for breach of contract. Mr Butcher QC, who appeared for the Consumers’ Association (interveners), submitted that because ParkingEye was the contracting party its interest was the only one which could count. For the reason which we have given, ParkingEye had a sufficient interest even if that submission be correct. But in our opinion it is not correct. The penal character of this scheme cannot depend on whether the landowner operates it himself or employs a contractor like ParkingEye to operate it. The motorist would not know or care what if any interest the operator has in the land, or what relationship it has with the landowner if it has no interest. This conclusion is reinforced when one bears in mind that the question whether a contractual provision is a penalty turns on the construction of the contract, which cannot normally turn on facts not recorded in the contract unless they are known, or could reasonably be known, to both parties.
100. None of this means that ParkingEye could charge overstayers whatever it liked. It could not charge a sum which would be out of all proportion to its interest or that of the landowner for whom it is providing the service. But there is no reason to suppose that £85 is out of all proportion to its interests. The trial judge, Judge Moloney QC, found that the £85 charge was neither extravagant nor unconscionable having regard to the level of charges imposed by local authorities for overstaying in car parks on public land. The Court of Appeal agreed and so do we. It is higher than the penalty that a motorist would have had to pay for overstaying in an on-street parking space or a local authority car park. But a local authority would not necessarily allow two hours of free parking, and in any event the difference is not substantial. The charge is less than the maximum above which members of the BPA must justify their charges under their code of practice. The charge is prominently displayed in large letters at the entrance to the car park and at frequent intervals within it. The mere fact that many motorists regularly use the car park knowing of the charge is some evidence of its reasonableness. They are not constrained to use this car park as opposed to other parking facilities provided by local authorities, Network Rail, commercial car park contractors or other private landowners. They must regard the risk of having to pay £85 for overstaying as an acceptable price for the convenience of parking there. The observations of Lord Browne-Wilkinson in Workers Bank at p 580 referred to in para 35 above are in point. While not necessarily conclusive, the fact that ParkingEye’s payment structure in its car parks (free for two hours and then a relatively substantial sum for overstaying) and the actual level of charge for overstaying (£85) are common in the UK provides support for the proposition that the charge in question is not a penalty. No other evidence was furnished by Mr Beavis to show that the charge was excessive.
101. We conclude, in agreement with the courts below, that the charge imposed on Mr Beavis was not a penalty.
The grounds for concluding that the charge imposed in H’s case was a penalty were:
- Mr Beavis parked for two hours 56 minutes in clear breach of the two hour limit stated on the face of the main sign. H parked for 5 minutes, not in breach of the terms of the main sign.
- In ParkingEye the charge was £85 which was on the face of the main sign. in H’s case it was £100 not on the face of the main sign but in the small print.
- H’s charge was not imposed to mange the efficient use of parking space in the interests of the retail outlets – there were no customers who were unable to park because H parked her car in front of Tesco Express for five minutes.
- H’s charge was not imposed to deter commuters or other long-stay motorists from occupying parking spaces for long periods or engaging in other inconsiderate parking practices, thereby reducing the space available to other members of the public
- The £150 claimed in H’s case was almost twice the penalty claimed in ParkingEye despite the infringement lasting a fraction of the period.
- The £150 claimed in H’s case is double or treble the Wakefield Council charges of £70 or £50, depending on the seriousness of the contravention.
- The charge in H’s case was not, as in ParkingEye ‘prominently displayed in large letters at the entrance to the car park and at frequent intervals within it.’
The third defence was essentially that the charge in H’s case had no legitimate underlying purpose and was out of proportion to Euro Parking’s interests. It was an unlawful penalty.
H never got to find out if her defences would have worked because no-one from Euro Parking or Gladstones Solicitors turned up at the trial. The judge said neither Euro Parking nor Gladstones Solicitors had been in touch to inform the court they would not be attending. It is discourteous and unprofessional for parties not to attend court without letting the court know.
Why did no-one attend? I expect Gladstones Solicitors did not send a representative because they were not paid to send one. And Mr Singh did not attend because he could not be bothered. Or perhaps he was worried he would either have to concede the parking signs had not been installed when H parked, or have to lie and say they were.
More broadly, H’s case illustrates why contractual parking claims are a happy hunting ground for parking companies and lawyers. If you issue 100 notices at £100 a time, it’s potentially £10,000 in revenue. Even if you have to write off 25% as unrecoverable for some reason – cannot trace owner, successful challenges, etc – it’s still £7,500. Say your costs – standard letters and roboclaims – are £2000 including the one or two per 100 who defend your claim to trial, then it’s a profitable business.
What makes it more profitable – and highly unattractive – are the psychological aspects of the process. The get-up of the letters and documents provided by the parking companies and their solicitors are designed to make you think they have the law on their side. And it’s only going to get worse if you defend the claim. The threatening letters and documents are, of course, going to members of the public with limited legal knowledge.
As to whether the parking companies and solicitors do have the law on their side, they plainly did not in this case. More serious than any of the points in H’s defence is the question of whether Euro Parking had any legal right to enter into parking contracts for the car park. According to the Land Registry, the car park is owned by Leathbond Limited, care of Michael Simkins LLP, Lynton House, 7-12 Tavistock Square, London WC1H 9LT. The title number is WYK454722 and described as ‘land and buildings on the west side of Stanley Road, Wakefield.’
The agreement produced by Euro Parking to support its right to enter parking contracts is signed by James Millard of LCP Management Limited and refers to Units 1 – 4 Stanley Road, Wakefield, WF1 4LH. LCP is neither the Leathbond nor the Michael Simpkins referred to in the Land Registry title. Two obvious questions are: what gives LCP Management the right to grant Euro Parking the right to manage the parking on Leathbond’s land? And secondly, even if they can, the rights relate only to the units (the buildings) and not the land (the car parking).
On the face of it, Euro Parking had no legal right to contract for parking where H parked. Which means every penalty notice issued by Euro Parking for the car park is invalid. And every claim issued by Gladstones Solicitors for the car park hopeless. It seems completely impossible that neither Euro Parking nor Gladstones Solicitors did not realise this. And if they did realise, then they must have suspected they had no right to recover any money?
Gladstones Solicitors and International Parking Community
Aside from H’s case, the connection between Euro Parking’s solicitors and Euro Parking’s trade body and appeal service is striking. Gladstones Solicitors acts for a number of parking companies, including Euro Parking. The International Parking Community is a trade body and provides an appeal service to a number of parking companies including, Euro Parking.
International Parking Community is a trading name of United Trade and Industry Limited. That firm has a single director, William Hurley who owns between 25% and 50% of the shares. John Davies was a director until 28 May 2017 and still owns between 25% and 50% of the shares.
It is unfortunate that Euro Parking is represented by Gladstones Solicitors and uses the appeal service operated by United Trade. Both were controlled, and remain substantially owned, by the same people. Perhaps John Davies resigned from United Trade and Industry and William Hurley resigned from Gladstones Solicitors to deal with the issue of apparent bias. But, despite the double resignation, using the appeal service is like going to court, losing and finding out that the judge is paid by the same person who stands to benefit from enforcing the judgement against you. Or that the people who profit from advising the other side in the dispute also employ the judge in the dispute.
In Davidson v Scottish Ministers Davidson  UKHL 34, Lord Bingham said [para 7]:
In maintaining the confidence of the parties and the public in the integrity of the judicial process it is necessary that judicial tribunals should be independent and impartial and also that they should appear to be so. The judge must be free of any influence which could prevent the bringing of an objective judgment to bear or which could distort the judge’s judgment, and must appear to be so.
Were the same rule to apply to International Parking Community and Gladstones, it is arguable that the relationship fails the test for apparent bias. It’s all far too cosy for comfort?
Civil Procedure Rules, Part 16 Statements of Case (link is to justice.gov.uk)
Davidson v Scottish Ministers Davidson  UKHL 34 (link is to bailli.org)
ParkingEye Limited v Beavis  UKSC 67 (link is to bailli.org)