1 Big Car Park, 2 landowners, Valid parking ticket but Parking Charge Issued

The Claimant relies on the Court of Appeal case of Vehicle Control Services v Her Majesty’s Revenue & Customs [2013] EWCA Civ 186, as establishing a precedent that the present Claimant can bring proceedings in its own name. The Defendant asserts that the facts of VCS v HMRC were substantially different from the present case, and that therefore the case can be distinguished from the present case for the following reasons:

The VCS v HMRC case was primarily concerned with VAT liabilities, and the question of whether VCS’s charges should be considered a charge for a service, and therefore subject to VAT. It was held that they were damages for breach of contract, and therefore not subject to VAT. However, the terms under which motorists were deemed to have entered into a contract with VCS were materially different from the present case. In VCS v HMRC, the landholder appointed VCS to operate a permit scheme, whereby those persons authorised to park received a permit, together with a letter from VCS outlining its conditions of use.

It was held, at para. 27, that “ ... in my judgment the significance of that is that in effect VCS promised to contract with persons nominated by the landowner. It does not make the contracts “contracts entered into as agent for the landowner”. No landowner's name appears on the permit or the terms and conditions. By clause 4.3 of the contract between VCS and the landowner, the landowner agreed to ensure that all authorised vehicles displayed a VCS permit. The effect of that clause was that the landowner gave up the right to grant direct authorisation to anyone to park in the car park. The right to park could only be conferred by means of a contract between VCS and the motorist. If there was any agency it was an agency for an undisclosed principal. In the case of an agent acting for an undisclosed principal, the agent can sue and be sued on the contract. "

It is clear from this that VCS were not acting as an agent for the principal, they were contracting in their own right, for an undisclosed principal. In the present case, the Claimant does hold himself to be an agent of the principal, whose identity is disclosed in both the Claimant's signs and the witness statement purportedly signed by the landholder's representative.

97. ParkingEye concedes that the £85 is payable upon a breach of contract, and that it is not a pre-estimate of damages. As it was not the owner of the car park, ParkingEye could not recover damages, unless it was in possession, in which case it may be able to recover a small amount of damages for trespass. This is because it lost nothing by the unauthorised use resulting from Mr Beavis overstaying.

Lord Mance at 190: Mr Beavis… was being given a licence, on conditions, and he would have been a trespasser if he overstayed or failed to comply with its other conditions. By promising ParkingEye not to overstay and to comply with its other conditions, Mr Beavis gave ParkingEye a right, which it would not otherwise have had, to enforce such conditions against him in contract.

‘’ But it may fairly be said that in the absence of agreement on the charge, Mr Beavis would not have been liable to ParkingEye. He would have been liable to the landowner in tort for trespass, but that liability would have been limited to the occupation value of the parking space.’’