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Default CEL Spanked in Court Today

Case No. ******

Civil Enforcement Ltd v ******* (£350 claimed)

 

At: Watford County Court

 

The Defendant uses this P&D car park on a daily basis, and on one

occasion forgot to pay the £5 daily charge.

 

I helped her with her defence, and this is the message I received today:

 

Dear Bargepole,

I attend court today against CEL and the case was dismissed!

Thank you so very much for your help- it was instrumental in the outcome!

The Deputy district Judge was particularly influenced by the OBSERVICE v

THURLOW case.

 

 

A Mr Abraham attended for CEL with a female associate.

 

The judge did consider there was a contract in place, but only for the £1 or

£5 parking fee. He considered the onerous £150 term was not adequately drawn to

my attention as it is in such small print. Also the £150 was not a genuine pre

estimate of loss. They raised at court the loss was made up of salary,

stationery, building costs ect but he was having none of that, saying that was

the admin cost of bringing the case, not the pre estimated loss of me failing to

pay £5. Where it to be the case he referred to Thurlow that CEL could not have

offered a reduction for an early payment.

 

I am very relieved and appreciate all your assistance.

Excellent. Can somebody please post a link to Observices v Thurlow.

Just had a thought. This case really does need to get to the attention of POPLA.

CASE 5 – OB SERVICES VS COLIN THURLOW

JUDGMENT (As Approved), Tuesday 13th July 2010

Following the decision in this case the defendant appealed and asked for the decision to be reviewed which is shown below as case 5A below

The Claimant was represented by Ms Thomlin

The Defendant appeared in person.

1. DISTRICT JUDGE NIELD: What we have here is a claim by Observices Parking Consultancy Ltd (OPC I shall call them) against Mr Colin Thurlow for parking payment in respect of parking on 11th September 2009 on a private development at Greenhithe. Mr Thurlow’s vehicle was R342 JGR. It is not in dispute that that was Mr Thurlow’s vehicle, that he was driving it and that it was parked where the claimant says it was parked on that day.

2. The issue is whether there was a deemed contract between Mr Thurlow and OPC and that depends on the prominence of the signage upon which the claimant relies and whether Mr Thurlow saw it or should have seen it.

3. There is established court authority to the effect that if somebody parks on private land then there is a contract to pay whatever charge is set out if that parking regime and set of charges is made known to the person parking.

4. The claimant relies on the numerous parking notices which they have put in their photographs at various parts of the estate. Some are large ones setting out the general conditions and, in particular, that if anybody parks there they agree to pay £100 which would be reduced to £50 if paid within 14 days and some are smaller ones directing people to the larger signs where the terms and conditions are displayed. For example, the small one says “OPC parking restrictions, patrolled area. Please see the conditions of acceptance of the parking restrictions on the main board.”

5. It is common ground that there is one way into this development. Mr Thurlow drove in that way to visit the memorial of his old ship, HMS Worcester, which he had last seen in 1965. I can well understand that that was important to him and something he had not done since he last left in 1965. This housing estate was not there then. He says he knows Greenhithe and can find his way in. He says he negotiated his way in through the roads using his sense of direction towards the river. He parked as shown on the Google map well into the estate so that he was reasonably close to where the memorial is at Hatton Mews near the junction with Lighterman’s Way.

6. As he says, the memorial is beautifully laid out but there is no provision for anybody to park who is visiting. That begs the question of what visitors are in fact to do? I can understand that. Mr Thurlow says that his attention was mainly directed to finding the memorial. He looked for markings on the road to see if there were any yellow lines to prevent parking. He said that his attention was not really directed towards signs on posts. He did not observe any that he may have passed and none registered with him, he says.

7. I can understand all that but the test is whether they were plainly there to be seen and whether they were sufficiently drawn to anybody’s attention coming into the estate. We see, for example, on Mr Thurlow’s own photograph in the bottom left hand corner, the bonnet of his car in the foreground and in the bottom right and at the middle of the photograph one of the small signs to which I have referred. It says that parking restrictions apply and it is a small sign which says: “Please see the conditions of acceptance of the parking restrictions on the main board.” So that is clearly in view and I find that there are sufficient large notices with the details on at various parts of the estate so that it has to be more likely than not that in getting to Hatton Mews and Lighterman’s Way, Mr Thurlow must have passed one or more of them.

8. That being so, there is a deemed contract between Mr Thurlow and OPC. He has to be taken to have been aware of those restrictions and the contents of the main board. So OPC are entitled to make their charge. I do understand Mr Thurlow’s point that he was not actually causing any obstruction and that he thought, given the reason for his visit, that special circumstances should apply. I understand his writing to the claimant to see if it would waive the charge. Some would say that they should have done and that it would have been reasonable to do so, but there is no obligation on OPC to do that. They are entitled to stick to their strict legal rights as they have done in this case. So they are entitled to succeed with their parking claim.

COMMENT: We have replicated this case as per the court judgment. Mr Thurlow accepted that the vehicle was his and that he was driving it at the time. He said that he did not see the signs which were dotted around the estate where he parked. The judge ruled that the signs were prominent (in fact there was one in the background of the picture of Mr Thurlow’s car).

The judge therefore found that there was a deemed contract between Mr Thurlow and Observices parking consultancy and allowed the claim. An important point here is that the amount claimed was referred to as a parking charge although in reality it was a penalty.

By having entered into the contract Mr Thurlow had agreed to pay the parking charge – we assume that the case was found in favour of the enforcement company because their claim was not for a penalty payment but for the parking charge. However see the subsequent judgment below in the appeal review.

The defendant appealed and asked for this case to be reviewed (see below)

CASE 5A: OBSERVICES v THURLOW

Review of Case (5), 10th February 2011

This hearing was a review of the decision of District Judge Nield of 18TH March 2010 (above).

The case was heard by HH Judge Daniel Pearce-Higgins QC who agreed that the signs were prominent enough and that there was therefore a “deemed contract” between Mr Thurlow and Obs Services.

However, the judge ruled that:

“the real issue is the effect of the notice (the parking charge notice attached to the car) ” which stated he was “not authorised to leave or otherwise occupy the OPC area with your vehicle, the vehicle was parked in contravention to the terms and conditions of the OPC area. You are therefore required to pay the sum of £100 within 28 days, pursuant to the terms and conditions clearly displayed within the OPC area. The charge will be reduced to £50 if received within 14 days”

He said that:

“the terms were clear. Parking without permission is not authorised. If you do so a charge will be made. It does not suggest you are permitted to park on payment of a fee. It says clearly that you are not permitted to park and seeks to agree the payment of a charge (£100) for unauthorised parking. Mr Thurlow was at all times being treated as a trespasser. In my judgement that can only be an attempt to agree the damages payable for unauthorised parking, rather than the grant of permission to park on the basis of an agreed fee, pursuant to an implicit contractual agreement”

The judge said that it had also been accepted that there was no obstruction and continued:

“The question then arises as to whether there is a genuine attempt to quantify loss or a penalty clause (a threat or deterrent to breach)”

He referred to the case of Mc Gregor:

“You look at the matter at the time of the agreement. What is the sort of loss that may be sustained in the event of a trespass? It is difficult to see what sort of loss that could occasion. The notice indicates that the purpose of the charge is to discourage use”.

“In my judgement the answer is clear. £100 is not a genuine pre estimate of loss, if it were why is he prepared to accept £50 (if paid promptly)? It was clearly a threat to deter parking”

The judge finally ruled that:

“On the basis that the effect of the notice is effectively to seek to impose a penalty clause. It is unenforceable. No loss or damage is asserted or proved. In these circumstances the claimant has no claim and the appeal is allowed”

COMMENT: This was a review of the previous case in which the judge referred to the signs being prominent and ruled that the motorist had entered into a deemed contract. He had referred to the notices being prominent and that the motorist had agreed to pay the parking charge. The appeal judge accepted that the signs were prominent but focused on the parking chsrge notice.

This did not suggest that the motorist could park on payment of a fee; it was clearly a penalty or a deterrent and therefore it amounted to a penalty for trespass and was therefore unenforceable under contract law. He also mentioned the discount for early payment which again confirmed the amount calculated was not a payment for damage suffered as a result.

wow. In my limited but speedily growing experience of this 'business',that is it in a nutshell isn't it?

it was asked by a judge in one of the other cases 'if the pre-estimate of losses is £300, then why are you taking a loss of £150 and saying you will accept that, if the estimate

is £150, then why have you added on another £150?'. The judge then denied the claim as a penalty.

it was asked by a judge in one of the other cases 'if the pre-estimate of losses is £300, then why are you taking a loss of £150 and saying you will accept that, if the estimate

is £150, then why have you added on another £150?'. The judge then denied the claim as a penalty.

So did the judge see a breakdown of £150 as pre estimate of loss to decide it wasn't a penalty?

Very interesting....at long long last CEL in court yesterday agreed that the sum of £150 was:

DAMAGES....FOR BREACH OF CONTRACT.

So did the judge see a breakdown of £150 as pre estimate of loss to decide it wasn't a penalty?

He saw it all as penalty and dismissed the lot.

It's already on here somewhere, if I come across it I will link to it.

He saw it all as penalty and dismissed the lot.

 

Sorry I miss read it... I thought he allowed the 150 but not the 300 !!!

It makes a great read. He said 'so which one is it, it can't be both'.

Having read each case again there can be NO DOUBT at all that there is no basis to charge a ticket at £100.

POPLA have been made aware.