Bolton NHS Foundation Trust

[Dante1978]

Hi All,

 

I'm seeking advice over a parking ticket my wife was issued whilst on an emergency call out as the surgeon on call at Bolton NHS Hospital. She basically parked in the closest bay to the emergency department which was an oncology patient bay, not in the staff car park which is some way from the emergency department. It was the early hours didn't fancy the walk in the dark after the hospital had posted warnings about staff members been attacked in the car parks! She wrote to the parking department explaining that she was called in on an emergency case, to which she was told that she would still have to pay a £20 fine instead of the 50 max parking fine. It does state on the ticket;

 

"Providing payment is received within 14 days of the date of issue of this notice, a sum of £20 will be accepted as full and final settlement. Should payment not be received within 14 days the trust will only accept full payment of £50 to be received within one calendar month of the date of this notice. If full payment is not received in this time a claim will be made in the County Court where judgment will be sought for debt to include any and all costs incurred in recovery."

 

We have just received a Claim Form in the Northampton County Court, the Claimant been Bolton NHS Foundation Trust, the Defendant been my wife.

 

She would like to contest this ticket on the grounds that it was an emergency, is this possible? I certainly understand her feelings in the unfairness of this ticket (the total cost now been sought is £136.08) but I want a more concrete response other than please m'Lord its just not fair!

 

Any info and guidance on this matter would be gratefully received.

[kirkbyinfurnesslad]

I have to say for that sum, which is quite low @ £20 i would have simply paid up.

 

You would struggle i think to argue against a £20/50 charge, others may disagree

[Dante1978]

Thanks, unhappily as I mentioned they are now claiming for £136.08, which is something to question. But thank you.

[ericsbrother]

There is the defence of necessity, bit like firemen shouldnt be done for criminal damage when breaking into a burning building. Now, as it is a little understood defence I woulduse it but not rely on it.

As the claimant is presumably the hospital she was therefore parked at the behest of her employer and therefore there is no breach of contract that can attract this charge. You will find that the claim is issued in the name of the trust but in reality it is issued by whoever the parking company is and they are putting the trust's name on their claim as they ahve no right to issue in their own name.

We will need more detsil on what the signs say, who the management company is, who is the person who actually signed the form on behalf of Bolton NHS trust and a little about the nature of the call-whether this is a regular place of work for her or other contractual detail that gets her to work there.

There are other cases where these claims have been spat out by the courts so using them as examples will help, a couple are on this forum posted by scouse magic and another.

It is not a fine but it can be an unenforceable penalty and therefore the wording of the sign and proprietorial interest is of the greatest importance. Also, the siting of the sign and its visibility to someone in the dark. Your wife may also have a claim against the trust for breach of contract unless her terms of employment say that she has to pay to attend and that is unlikely. I would consider putting in a counterclaim for exactly the same amount where you can on the part of the form you return to the court. This will stop the claimant just dropping the claim and leaving you with any costs you have borne to defend.

Dont put up any personal details but show the particulars of claim as they may very well have got that wrong as well. Also, tell us exactly what paperwork was received and exactly when. timing is critical as there may be no case to answer as procedures may have not been followed which would prevent them from claiming against her but that is only one facet of a defence.

[Ganymede]

The legal defence of "necessity" only applies to criminal law and there has to be an immediate threat to life so wouldn't really apply to a parking ticket.

[esmerobbo]

There seems to be plenty of defence points to pick out of their own T&Cs here https://www.whatdotheyknow.com/request/car_parking_penalties_for_staff.

 

Here is one for starters!

 

4.5 Night Staff

 

Staff working nights i.e. between 20:45 hours and 07:45 hours and displaying a valid staff permit are allowed to park on all visitors’ car parks, however it is recommended that night staff should use Chadwick car park, opposite Main Entrance which is the one most frequently used and therefore many people in the locality. Night staff are not permitted to park in any marked disabled bays.

 

And then!

 

11.2 Penalties for Illegal / Unauthorised parking

 

To maintain car park management and preserve its credibility, a firm consistent approach will be adopted for all offenders. This will be achieved by using the following sanctions:

 

11.2.1 Staff, Patients and Visitors

 

a) First offence – a warning notice will be issued and is valid for 6 months.

b) Further offences will result in the issue of a breach of contract notice if within 6 month timescale of issue of warning.

c) A payment of £10.00 will be imposed if paid within 14 days. Anyone who wishes to appeal against the breach of contract notice is asked to put their reasons for the appeal in writing to the Divisional General Manager of Diagnostics Therapies & Facilities, Davenport House, Royal Bolton Hospital, Minerva Road, Farnworth, Bolton, BL4 0JR, within 10 days of receiving the breach of contract notice. Quoting the serial number on the letter.

d) Failure to pay within 14 days and the Trust will instigate action by it’s solicitors to pursue payment. A payment of £50.00 plus solicitors costs will be incurred if payment is received within 28 days of the issue of the notice.

e) Failure to pay within 28 days will result in the matter being pursued via the courts, except in exceptional mitigating circumstances.

f) Once a breach of contract notice has been issued car park / security staff are not authorised to discuss the matter.

 

So I don't see were the offer of £20 came from.

Edited November 20, 2013 by esmerobbo

[Dante1978]

Thank you for the info.

 

The offer of £20 is from the wording on the ticket. Where you have mentioned the £10 fine it is written as £20 on the ticket. Unhappily my wife did write to the associate director but outside of the 14 day period and so they are saying that it has already gone to their solicitors and so we find ourselves with this Northampton County Court Claim Form. However, although not in writing my wife did talk to the parking department the morning of the incidence to explain the situation. I think the issue has arisen due to my wife been called in at three in the morning and not getting out of theater until after the usual nightshift/dayshift change over.

 

The note on point 11.2.1.e. is of interest as they were made aware of an emergency issue as that was the reason she was called in, which she can quite clearly prove!

 

Again, thank you for the info.

[ericsbrother]

The wording of th T&C's is soemthing that can be taken apart but it would be useful to know what the claim on the form says and also how tyour wife is employed by the trust- directly or otherwise and does she get paid travel to work costs when visiting this and other establishments.

Who has issued the claim. You say that the hospital trust has gone through their solicitors, is the parking managed by a company or directly by the trust and who are the solicitors.

The part 11.2.1 d makes it clear that the charge is a penalty, not recovery of a loss as the costs are in addition to the penalty.

[Dante1978]

My wife was a registrar at Bolton and not paid by the trust but by the deanery. She receives no allowance for travel but does have a parking permit which was on display.

 

Claimant: Bolton NHS Foundation Trust

 

Claim: Unpaid breach of contract notice

 

Value: £50 plus costs

 

Now totaling £136.08 due to Solicitors fee (£50) and court fee (£35) + 1.08 intrest on the breach of contract fine of £50

 

Wording

 

Particulars of Claim

 

1. The Claimant's claim is for the sum of £51.08 being 50.00 for monies due for breach of contract by the Defendant in respect of which a breach of contract notice has been issued by the Claimant to the Defendant (as referred to below) and the sum of £1.08 of interest.

 

2. On......., at............ the Defendants vehicle (the vehicle) was parked on the Claimant's premises which is privet land. The vehicles reg is........ The Vehicle is a ........... and registered to the Defendant. The Defendant entered into a contract with the Claimant when they entered the Claimant's premises and parked their vehicle on the Claimants property.

 

3. A breach of contract notice numbered........ was issued by the Claimant to the Defendant on ............. in respect of the vehicle in breach of the following terms and conditions.

 

Condition 3, Parked in a No Waiting area or outside an authorised parking place.

Condition 5, Parked causing an obstruction/inconvenience or preventing emergency access/exit.

Condition 7, OR, as described, CH/UNIT Patients Only Parking

 

The terms and conditions are prominently displayed on the Claimants premises.

 

4. The Claimant solicitors sent a letter before action to the Defendant before proceedings were issued to attempt to recover the outstanding amount.

 

5. Further the Claimant claims interest pursuant to Section 69 of the County Courts act 1984 at a rate of 8% per annum from the date of the breach to the date herein namely the sum of £1.08 and continuing interest at a daily rate of £0.01 pence per day until the Judgment or sooner payment.

 

 

 

The Solicitors named are Trethowans LLP

 

 

As I mentioned before they did receive a letter from my wife explaining the situation,i.e. she was on an emergency call out in the early hours of the morning and that was why she was parked in the empty bay for the oncology departments patients visitors.

 

 

I personally dont see how they can say she was improperly parked in a bay for visitors and claim for Conditions 3&5!!!

 

I can see their view point in terms of losses incurred if they were not made aware of the reasons why my wife parked there, ie. its an emergency! Their only parking policy states that cases of mitigating circumstances will be considered!

 

It seems that because my wife did not address the issue in writing within the 14 days they stipulate she has been placed in the process chain and their is no lee way or will to be removed from the process.

 

I would point out that no definition is placed on the term "emergency" but it was as it turn out a life or death issue for someone, which can be proved, as can the fact that she was the emergency on call response.

 

 

I hope this clarifies the situation and helps with any guidance or advice in this matter.

[Scouse Magic]

Hi All,

 

I'm seeking advice over a parking ticket my wife was issued whilst on an emergency call out as the surgeon on call at Bolton NHS Hospital. She basically parked in the closest bay to the emergency department which was an oncology patient bay, not in the staff car park which is some way from the emergency department. It was the early hours didn't fancy the walk in the dark after the hospital had posted warnings about staff members been attacked in the car parks! She wrote to the parking department explaining that she was called in on an emergency case, to which she was told that she would still have to pay a £20 fine instead of the 50 max parking fine. It does state on the ticket;

 

"Providing payment is received within 14 days of the date of issue of this notice, a sum of £20 will be accepted as full and final settlement. Should payment not be received within 14 days the trust will only accept full payment of £50 to be received within one calendar month of the date of this notice. If full payment is not received in this time a claim will be made in the County Court where judgment will be sought for debt to include any and all costs incurred in recovery."

 

We have just received a Claim Form in the Northampton County Court, the Claimant been Bolton NHS Foundation Trust, the Defendant been my wife.

 

She would like to contest this ticket on the grounds that it was an emergency, is this possible? I certainly understand her feelings in the unfairness of this ticket (the total cost now been sought is £136.08) but I want a more concrete response other than please m'Lord its just not fair!

 

Any info and guidance on this matter would be gratefully received.

 

Hi there, I am hoping I can help you with this as I believe you can win.

 

I am basing my response on what you have stated is 100% correct, however as I am not a solicitor, always explore other options, but from your story, I have to say I am horrified.

 

What kind of a world do we live in, when a NHS Trust (Well thats the guise) would take staff, patients or visitors to court for parking in whatever circumstances, when we are all meant to care!!! That is what the NHS is a pride of Great Britain for?

 

Now then, these issues fluctuate up and down the UK...Indeed some hospitals operate free parking, others are dearer to park than others, and there are no set rules set in stone.

 

Threthowans are the solicitors in this matter......Search the internet for a FOI request regarding thethowans and Aintree Hospitals, where Aintree paid Threhowans £110,000 in one year, to recover something like £5000......A public waste of money, and not good press.

 

But notwithstanding that, Bolton NHS do not appear on the BPA approved operator scheme, so I am wondering who operates parking there, and is it a private company or employees of the trust?

 

I honestly think a court would take a very dim view of this, as this could have been kept out of court, and common sense should have prevailed, and I think you will win....

 

Lets face it, we are not talking about a nearby resident who simply left their car overnight for free purely because it suited them, your wife was called to an emergency, so how can one make a rash decision about the preservation of life, or where the most appropriate place to park is?

 

Your defence is as follows...

1. Your wife was called to an emergency and therefor invited by the landowner, and subsequent issues of contract / breaches of, are irrelevant.

 

2.The driver of the vehicle has been denied their rights of independent appeal under the Protection of Freedom Act 2012.

 

3. The charge is a penalty, by the value of the charge, designed to intimidate into prompt payment and thus unrecoverable in law, as the landowner can only claim a sum of money that would put him in the same position, had the breach not occurred given the circumstances.

 

4. If the Trust or their agents are using words such as Fine, Penalty, Offence etc, then that implies that they are acting under statute such as police or council, and they have no authority to do so......

 

Im totally shocked.....

 

Good luck, we are all here

Edited November 21, 2013 by Scouse Magic

[Scouse Magic]

About defence point 2.

"2.The driver of the vehicle has been denied their rights of independent appeal under the Protection of Freedom Act 2012."

 

What should have happened is that the trust or their parking management should have invited the driver or registered keeper to appeal, and if unsuccessful, issue a popla code, but this is a clear abuse of the court process.

 

BPA / AOS members can operate parking & issue tickets.....Only ATA members can access DVLA information, so who accessed the RK details?

 

Hospitals by virtue have a nasty habit of trying to quietly profiteer out of parking, but cannot be seen to do so, because they would be liable for taxes and seen to be running a business......And would attract a large media attention.

 

Merely because the NHS is funded by the tax payer.......................

[esmerobbo]

Trethowns won an Aintree case this week unfortunately the Judge went with this!

 

"The claimants claim is liquidated damages for a breach of contract following the defendents vehicle being in breach of the claimants terms and conditions whilst parked on the claimants private property. the breach was for parking on double yellow lines, not in a marked bay, on a pavement, resulting in obstruction or inconvenience to others, The charge is a pre-determinded fixed amount brought about by the defendent in seeking to use the claimants site other then in accordance with the conditions under which he has entered. the conditions are imposed for the orderly running of the car park on the site. It cannot be said that the charge causes a significant imbalance in the parties rights as wheter the charge will be levied or not depends on the actions of the defendent. the charge is levied under the contract, The breach is the defendents vehicle being parked contrary to the terms and conditions. The £50 is a charge levied for the defendents vehicle not being parked in a authorised area. it is not a penalty for the defendent breaching the contract, with reference to the charge given, in the case of Hadleigh V baxendale it was found that the charge was in fact liquidated damages and not punitive charge, moreover the wording penalty and fine should not be viewed as significant nor deprive the claimant from remuneration as in the case of OPC V Thurlow. Here the court stated however you word it, the test is weather the sum agreed is a genuine pre estimate of loss, therefore the court has to look at what the reality of the matter is".

 

"The british parking association code of practise is not relevant or applicaple in these circumstances, the losses the claimant suffers as a direct result of people breaching the parking terms and conditions are the cost of employing staff to monitor the car parking areas, the cost of cameras giving to staff in order to take photographic evidence of each incident aswel as printing administration and maintenance costs in no uncertain terms does the claimant profit from issuing of breach of contract notices. The charges merely cover the pre estimated losses suffered and in most cases the trust does make a loss. moreover a genuine estmate of losses does not need to be a precisely calculated figure as in the case of Dunlop V New garage. here lord dunedin stated, It is no obstacle to the sum stipulated being a pre estimate of damage that the consequences of the breach are such as to make precise pre estimation almost an impossibility".

 

I dont see how a security person who would be there anyway can be calculated into the equation. As we have seen before the county court can be a lottery.