Parking Eye v Somerfield Judgment

taffy056

Thing is in a lot of cases the supermarkets don't own the land and haven't instructed the ppc, and can you imagine the headlines if a retailer takes someone to court? Tesco sues customer for parking, despite them spending £200 on in the store. It would be commercial suicide!

I can see this case bringing an end to the scammers infesting car parks, they have won £300k , but lets face it parking eye are never going to be near a coop again, once contracts are up its goodbye, they are going to lose substantially more than that. It's our job to highlight this to every retailer.

BASFORDLAD

No doubt perky QC will have something to say on this.....

HO87

mo786uk wrote: »

This case seems to have kicked off around 2006 onwards and got to court in March 2011 (that may be the date the document was published - it probably took months to write up so the eharing could have been months before) so a lot of the info about them not having taken anyone to court is probably outdated.

I draw your attention to the hearing date - 25 July 2012 and the judgment which was delivered on 17 October 2012 (although details of it would have been made available to the parties before that). Publication of the judgment was delayed by the subsequent appeal for which it would have been made available in the first instance. Court proceedings were issued in 2011 - hence the case reference relating to that year. The case was not decided then. The judgment was made at some point between the 25 July 2012 and the hearing of the Appeal. To suggest otherwise is to misunderstand how the court system works.

Some events considerably predate the court proceedings and that is very clear. It is also clear that the amount of evidence could not have been delivered on a single date. That notwithstanding it is clear from the wording of aspects of the judgment that the case of VCS -v- HMRC was not in anyway considered although the matters that it dealt with directly - specifically proprietory interest and parties to contracts - were highly relevant and it was available before final pleadings and this case being decided. I suggest that in all likelihood neither party pleaded the case and it was not considered.

As for other evidence the Smith case was in train for a considerable time prior to its being heard in December 2011 and must have been within the potential perview of parties to this case before evidence was provided either in written form or given verbally.

mo786uk wrote: »

Given the law change of being able to take registered owners to court AND the fact that a HC Judge has said £37 and even £75 is not a penalty I can forsee many more claims going through in the coming years.

Yes consumers could still argue a claim made against them is a penalty and argue the toss on the facts but its a risky strategy.

I draw your attention to the judgment in the case of VCS -v- HMRC. Relying on the definition of a charge as a penalty or otherwise does not and will not form a central part of a defence. To suggest that cases would hinge on that aspect is to substantially misunderstand the law as it currently stands.

mo786uk wrote: »

Consuemr Action Group was making a big deal about this case yesterday when the COA Judgement came out but this HC Judgement reads very badly for consumers because as you say the Judge a) is not spending huge amounts of time on certain issues and b)doesnt seem to be very consumer focussed anyway.

That may be because the case he was dealing with did not involve consumer law per se. I can't see that it reads badly for consumers simply because it does not have that focus. That would be rather like suggesting that a car repair manual for a Renault Clio was of little assistance when dealing with a Ford Galaxy. Its a matter of horses for courses. You shouldn't lose sight of the fact that the judgment is long and detailed and will take some analysis before it is clear what can be taken from it.

mo786uk wrote: »

The Consuemr Action Groups front page is still talking about whether parking charges are enforceable - they quite clearly are as long as you follow a few basic rules.

They may be basic but are very specific and, I'd respectfully suggest, there are few PPC's out there prepared to put their hands on their hearts and swear they could fulfil the tests as they are now defined. s.4 POFA represents a pyrrhic victory for private parking and for any PPC to attempt to hold it up as some enormous reinforcement of the PPC case it is likely to be regarded as little more than whistling in the dark.

mo786uk

HO87 wrote: »

I draw your attention to the hearing date - 25 July 2012 and the judgment which was delivered on 17 October 2012 (although details of it would have been made available to the parties before that). Publication of the judgment was delayed by the subsequent appeal for which it would have been made available in the first instance. Court proceedings were issued in 2011 - hence the case reference relating to that year. The case was not decided then. The judgment was made at some point between the 25 July 2012 and the hearing of the Appeal. To suggest otherwise is to misunderstand how the court system works.

Some events considerably predate the court proceedings and that is very clear. It is also clear that the amount of evidence could not have been delivered on a single date. That notwithstanding it is clear from the wording of aspects of the judgment that the case of VCS -v- HMRC was not in anyway considered although the matters that it dealt with directly - specifically proprietory interest and parties to contracts - were highly relevant and it was available before final pleadings and this case being decided. I suggest that in all likelihood neither party pleaded the case and it was not considered.

As for other evidence the Smith case was in train for a considerable time prior to its being heard in December 2011 and must have been within the potential perview of parties to this case before evidence was provided either in written form or given verbally.


I draw your attention to the judgment in the case of VCS -v- HMRC. Relying on the definition of a charge as a penalty or otherwise does not and will not form a central part of a defence. To suggest that cases would hinge on that aspect is to substantially misunderstand the law as it currently stands.


That may be because the case he was dealing with did not involve consumer law per se. I can't see that it reads badly for consumers simply because it does not have that focus. That would be rather like suggesting that a car repair manual for a Renault Clio was of little assistance when dealing with a Ford Galaxy. Its a matter of horses for courses. You shouldn't lose sight of the fact that the judgment is long and detailed and will take some analysis before it is clear what can be taken from it.


They may be basic but are very specific and, I'd respectfully suggest, there are few PPC's out there prepared to put their hands on their hearts and swear they could fulfil the tests as they are now defined. s.4 POFA represents a pyrrhic victory for private parking and for any PPC to attempt to hold it up as some enormous reinforcement of the PPC case it is likely to be regarded as little more than whistling in the dark.

I can't be bothered to multi quote but to respond to your points

1) The 2012 hearing date was from the COA. The discussion about PE not having taken anyone to court - which was the point I was addressing was made in the HC which took place in at least March 2011 or before. So it is not accurate to suggest, based on this recent transacript alone, that PE have not taken anyone to court since July 2012 from the COA hearing.

Indeed someone has pointed out that they have since tried.

2) With regards to VCS V HMCS, I have to admit I have forgotten the ins and outs, but presumably its an issue that can be remedied with tighter contracts or closer realtionships between the agent and landowner etc

3) I disagree - it will no doubt be refernced because it still covers some specific points

4) What all of these cases do is provide a framework for PPC to exist within and with each case it seems there is a new thing a PPC could do to be within the law.

Much like with Consumer Credit - I am not if all these big cases necessarily work in favour of the consumer / against the company.

ManxRed

Re: 2) above.

Your presumption is a bit weak here. The freeholder of the land would have to assign the rights of the land, or grant a leaseholding to the PPC. I really can't see a landowner doing this to some parking company. Its not something you could insert into a standard PPC contract. Without such consideration, the PPC CANNOT form a contract with a driver, and therefore CANNOT bring a claim in respect of a breach.

mo786uk

ManxRed wrote: »

Re: 2) above.

Your presumption is a bit weak here. The freeholder of the land would have to assign the rights of the land, or grant a leaseholding to the PPC. I really can't see a landowner doing this to some parking company. Its not something you could insert into a standard PPC contract. Without such consideration, the PPC CANNOT form a contract with a driver, and therefore CANNOT bring a claim in respect of a breach.

But the landowner can get the PPC to do it as their agent. Whilst some might think Sainsburys and the like wont want the reputational risk of giving parking tickets - I am not so sure.

My local Sainsburys has its own car park, they used a 3rd party agent to monitor it

If I get a ticket I know ultimatley it comes because of a Sainsbury decision, not their agent the parking company. It is irrelevant to me that sainsburys name is not on the ticket (but granted I imagine it would matter for some and can see why sainsburys would not want their name on it)

Assuming that some form of contract cannot or is unlikely to be given to a PPC to give them the right to take action in their own right for trasspass, I think the only alternative is the landowner does it themselves. I don't think they are going to give a freeforall to motorists - because afterall they must have restrictions for a comemrcial reason.

taffy056

No they cannot, the parking company would have to hold propriety rights to the car park, which a retailer is very unlikely to give to a third party company, or they would have to own it. And still this issue has been raised in vcs v hmrc which says that they cannot issue claims or offer parking.

Which makes the wheel come off somewhat for them, I don't believe I have seen one claim from the parking companies that have succeeded since that judgement, well excluding Bournemouth and Devere.

Coupon-mad

mo786uk wrote: »

But the landowner can get the PPC to do it as their agent.

No they cannot. More than one binding (higher than County) Court case tells us that only the landowner or person with proprietary rights can sue for losses due to trespass. Look at the VCS Court cases linked here:

https://forums.moneysavingexpert.com/discussion/2214803

And the Protection of Freedoms Act and the new BPA Code of Practice ONLY allows a fake PCN to be issued if it's for losses (not under some contract terms to pay).

HTH

mo786uk

What I meant was that I think there is a disctinction between

a) Tesco has a PPC working their car park. The PPC just had a contract with Tesco that they monitor the car park and the PPC keeps the fee. In this case the PPC does not have an interest in the land to sue for tresspass.

b) Tesco has the PPC doing as the above, but Tesco does wnat to sue peopel directly. They can farm out that process to a PPC but have it done under their name/authority.

My understand of the VCS case is that situation a occured.

I don't see why a landowner, such as Tesco cannot sue the driver themselves but use an agent to do it. Its slightly different because in situation b that circumvents the issue in VCS.

Whether Tesco can get a PPC to act as their agent but make it looks liek its the agent that is giving the ticket is another matter. Presumably they would be named as a party on any court paperwork.

Lets not forget PPCs only exist with the consent of the landowners.

taffy056

No in the vcs case in order for a parking company to have the ability to go to court they must have an interest in the land, so that goes beyond a contract. And as the landowner may not be the retailer what possible loss have they got ? All they are doing is leasing it to a shop, so there is no loss to them at all. Can you really see tesco et al suing customers for parking ?