POPLA Decisions

trisontana

Another GPOL for VCS at Liverpool airport:-

http://forums.pepipoo.com/index.php?act=attach&type=post&id=25598

kirkbyinfurnesslad_2

Spot the error.

The appellant has made various representations; I have not dealt with them all as I am allowing this appeal on the following ground.

It is the appellant’s case that the operator can only claim their actual or pre- estimated losses arising directly out of the breach of contract.

The signage produced in evidence by the operator states that a parking charge notice would be issued to “to deter” misuse of the car park. This wording appears to indicate that the parking charge represents damages for a breach of the parking contract. Accordingly, the charge must be a genuine pre-estimate of loss. The estimate must be based upon loss flowing from a breach of the parking terms.

The operator’s case is that the sum sought is not a genuine pre-estimate of loss or damages. The operator submits that the charge is a cont ractual obligation.

Considering carefully, all the evidence before me, I find that the parking charge represents damages for breach of contract; I also find t hat the amount of the £100 parking charge does not represent a genuine pre- estimate of loss.

Accordingly, this appeal must be refused.



Amber Ahmed
Assessor

peter_the_piper

trisontana wrote: »

Another GPOL for VCS at Liverpool airport:-

http://forums.pepipoo.com/index.php?act=attach&type=post&id=25598

Glad the assessor chucked this one out but how can VCS have made and loss when they were not in the car park?

bod1467

kirkbyinfurnesslad wrote: »

Spot the error.

:rotfl:

Didn't we have one like this earlier in the thread? And wasn't it the same assessor?

trisontana

Yet another GPOL for PE:-

http://forums.pepipoo.com/index.php?showtopic=86062&hl=

This very telling remark from the assessor:-

"Although the operator has stated that the charge is commercially justified, the amount sought for the breach of the terms and conditions cannot be the the entire source of the income and must be lost based loss & not a collection of income streams that they profit from as a company
The whole business model of an Operator in respect of a particular car park operation cannot of itself amount to commercial justification."

BrightonandHove

Another forum assisted win with GPOL versus Parking Eye.

You see Parking Eye - you can get people banned but it won't stop the wins :rotfl:

https://forums.moneysavingexpert.com/discussion/4778137

hoohoo

https://www.facebook.com/download/376811865787555/POPLA%20appeal%20Dec%202013.pdf

If link doesn't work, this is in facebook group: Parking Eye Car Park Management - My Campaign against injustice.

6 page Matthew Shaw epic

ParkingEye v Cox

ParkingEye lose. Matthew Shaw trashes ParkingEye's 5 page explanation for GPEOL with a 6 page counter.

Sorry, PDF file is not cut and pastable, but might have to type it out later.

kirkbyinfurnesslad_2

Hoo hoo u can covert it on line into word just Google pdf tp word conversion.

I think we May need to add ome or two things in future

fisherjim

hoohoo wrote: »

https://www.facebook.com/download/376811865787555/POPLA%20appeal%20Dec%202013.pdf

If link doesn't work, this is in facebook group: Parking Eye Car Park Management - My Campaign against injustice.

6 page Matthew Shaw epic

ParkingEye v Cox

ParkingEye lose. Matthew Shaw trashes ParkingEye's 5 page explanation for GPEOL with a 6 page counter.

Sorry, PDF file is not cut and pastable, but might have to type it out later.

Blimey!!


09 December 2013
Mr Cox (Appellant) -v-
ParkingEye Ltd (Operator)
The Operator issued parking charge notice number 590991
arising out of the presence at Fistral Beach, TR7 1EW, on 21 September 2013, of a vehicle with registration mark W
The Appellant appealed against liability for the parking charge. The Assessor has considered the evidence of both parties and has determined that the appeal be allowed.
The Assessor’s reasons are as set out.
The Operator should now cancel the parking charge notice forthwith.





Reasons for the Assessor’s Determination
The Operator issued a parking charge notice (‘PCN’) for parking without making a valid payment. The Operator’s automatic number plate recognition system (‘ANPR’) recorded the Appellant’s vehicle enter the site at 15:59 and exit at 16:53, a stay of 54 minutes. No payment was made for the Appellant’s vehicle to park. The Operator submits that a parking charge is now due in accordance with the clearly advertised terms of parking which required motorists to pay for parking. The Operator submitted photos of site signage in support of its case.
The Appellant disputes that the PCN was properly issued. Amongst other grounds, it is the Appellant’s case that the £100 parking charge is a penalty and not liquidated damages due under contract. Specifically, the Appellant submits that the Operator has not quantified its loss as a result of the breach.
The signage produced in evidence by the Operator states that a PCN would be issued for “failure to comply”. This wording appears to indicate that the parking charge represents liquidated damages for a breach of the parking contract. If it is damages, then it cannot be a penalty and must be a genuine pre-estimate of loss. The estimate must be based upon loss flowing from a breach of the parking terms. This might be, for example, loss of parking revenue or even loss of retail revenue at a shopping centre. On the Operator’s submission, this might also include commercial justification.
The Operator submits that it is a “commonly held legal argument” that the amount claimed for breach of contract should reflect the losses incurred by the alleged breach and that, if they do not, they should be considered a penalty. The Operator submits that this argument is no longer the method adopted when deciding whether a charge is a penalty or not.
Loss in a case of breach of contract or tort is usually the actual loss caused. However, where the claim is for liquidated damages, the sum need not necessarily be the specific loss caused by the actual breach. Nevertheless, it must be obvious that the loss claimed cannot be something that could not have been so incurred. It must be a genuine pre-estimate of the likely loss flowing from the alleged breach.
The Operator cited various county court decisions. These decisions are considered persuasive but not binding authorities. Only decisions of the Superior Courts are binding. The Operator has referred to the well-known case on whether a sum is a genuine pre-estimate of loss or a penalty, Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC 79. Therein is the classic statement, in the speech of Lord Dunedin, that a sum: “... will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach”.



The Operator has also cited a number of more recent cases, including a reference in county court matter called ParkingEye Limited v Shelley (2013), in which District Judge Dodd apparently adhered to the finding of Colman J in Lordsvale Finance Plc -v- Bank of Zambia [1996] QB 752 that “whether a provision is to be treated as a penalty is a matter of construction to be resolved by asking whether at the time the contract was entered into the predominant contractual function of the provisions was to deter a party from breaking the contract or to compensate the innocent part for the breach [...] deduced by comparing the amount that would be payable on breach with the loss that might be sustained if breach occurred”.
However, in that same case Coleman J said that the “dichotomy between a genuine pre-estimate of damages and a penalty does not necessarily cover all the possibilities. There are clauses which may operate on breach, but which fall into neither category, and they may be commercially perfectly justifiable”.
This and another case cited by the Operator, Cine Bes Filmcilik Ve Yapimcilik and Another -v- United International Pictures and Others [2003] EWCA Civ 1669, can be distinguished from the current appeal. In neither of those cases (and unlike the situation for parking operators) did the total sum of the money payable amount, effectively, to the whole basis of the business of one party to the contract.
The Operator submits that Judge Dodd in Shelley (the full judgment was not provided) found the key issue was not whether or not the charge was a pre- estimate of loss but rather whether the purpose of the parking charge was to deter breach, or if the dominant purpose was commercially justified. They submit that he found on a balance of probabilities that the dominant purpose was regulation of the car park area, that it was not common for the courts to find a penalty within a contract and that a breakdown of the costs was not required, as the contract was formed on its own terms.
It is not clear as to how ‘regulation’ and ‘deter’ practically differ in the scenario of operating a car park. In any event, the whole business model of an operator in respect of a particular car park operation cannot of itself amount to commercial justification.






In these situations, where a parking charge notice is issued, there will be a contract to park, albeit usually a fairly simple one. However, subject to statutory consumer protection provisions (e.g. the Unfair Contract Terms Act 1997), it is this contract which the driver has entered into with the car park operator when parking their vehicle. Where such a contract provides for liquidated damages, the question is whether the sum sought lies within a genuine pre-estimate of loss.
The Appellant submits that general running costs of the Operator’s business cannot be included in any alleged losses incurred by the Operator.
As to what might be a genuine pre-estimate of loss, there are those items which clearly do fall within the definition. It would seem obvious that the actual direct costs arising out of the presence of the vehicle in breach of the conditions of parking do. These would include the fee payable to the Driver and Vehicle Licensing Authority (DVLA) to obtain keeper details (currently £2.50), where required, and the administrative expenses involved. So too would costs in preparing and sending notices, such as staff costs. Parking revenue from other vehicles that would have paid to park properly in the space occupied would also appear to be such as loss. However, often there is no charge to park. All of these sums, apart from staff costs, are likely in themselves to be fairly modest.
As to other heads, one must look at what is being sought. The Operator submitted that “this is a very difficult industry in which to determine a completely accurate pre-estimate of loss. This will depend both on the losses to ParkingEye, and on potential losses to the landowner, and will vary according to the time of day, the day of the week and even upon the weather.” They state that they have calculated the outstanding parking charge amount as a genuine pre-estimate of loss as they incur significant costs in managing a car park to ensure motorist comply with the stated terms and conditions and to follow up any breaches of these.
Loss could include legal and professional costs in pursuing the charge. However, membership of trade bodies and erecting signage are business costs and do not obviously arise from a breach of a parking contract. Items such as resurfacing and paving of the car park would seem in reality to be the costs of business and would not amount to a pre-estimate of loss or even commercial justification. These sums would presumably have to be paid by an operator in any event.






Operators have previously attempted to calculate a sum for each specific head of loss. This is not necessary and may be very difficult to do with any great precision. A genuine pre-estimate of loss is just what it says. The sum should represent a loss, not a profit. It is not the business overheads of the operator. It may well be that operators incur significant costs in managing parking locations but a genuine pre-estimate of loss cannot be their entire source of income.
The Operator also relies upon ParkingEye Limited -v- Somerfield Stores Limited [2011] EWHC 4023 (QB) This case involved wider issues between the same Operator and a company for whom they provided what might be called car park services. The Operator has partially quoted HH Judge Hegarty in respect of the £75 parking charge, described as a ‘fine’. At 428, the Learned Judge concluded that a charge of £75 could probably not be argued to be a penalty. However, HH Judge Hegarty also considered that an increase to £135 in the event of failure to pay would probably render it a penalty.
The Operator has also produced a list of eleven county court decisions between 19 July and 29 August 2013 which they say are every case they have had since the creation of POPLA where the issue of genuine pre- estimate of loss has been raised. The short précis of each show that in none has the judge found against the Operator, although it is not clear exactly what heads were put forward for the pre-estimate of loss.
Each appeal will always turn on its own facts but both parties should be clear that a genuine pre-estimate of loss need not be a detailed estimate. It is not the specific loss caused by the actual breach but may include loss incurred or loss that might reasonably be incurred. However, it cannot include sums that are really the general business costs of the Operator’s car park services operation.
It would appear that the courts have accepted commercial justification for charges in this regard. Thus the charge cannot be a penalty but can be a genuine pre-estimate of loss or be commercially justified. Whether these two are the same category or not, the charge must be based on loss, not cost. The charge could well be in excess of £70 and a sum up to the BPA’s maximum of £100 might not be unreasonable. Parking charges are unlikely to exceed £100 but it would be open to an operator to justify why, in a particular case, one does.
It is for the operator to submit, when the issue is raised (even if by a mere assertion), what the pre-estimate or justification is. However, the sum is an






estimate rather than an exact loss and a substantial proportion of heads of costs being allowable may mean that the total sum is.
Whilst some heads submitted in this present case may fall within a genuine pre-estimate of loss, I find that a substantial proportion of them do not. For example, the “fees required to manage the business effectively”, would imply just that, a business cost rather than a loss.
Equally, for the reasons set out above, a list of all their costs in the case cannot amount to commercial justification.
Considering carefully all the evidence before me in this present case, I find that the damages sought do not substantially amount to a genuine pre- estimate of loss or fall within commercial justification.
The appeal is allowed on this ground alone.
It does not fall for me to decide any remaining issues.
Matthew Shaw
Assessor

Coupon-mad

Who wins? You decide!

Matthew Shaw's epic version above, or Marina Kapour's previous 'longest POPLA decision ever' (post #60 here):

http://forums.pepipoo.com/index.php?showtopic=83433&st=40&start=40

...that one has already been posted a few pages back but I saw a lot of evidence of classic 'template paragraph use' in both!