BBC1 Wed 10 July Your Money, Their Tricks

bazster

Orrin wrote: »

The fact that so many PPCs try to recover their charges as damages when they would be on much stronger ground presenting them as a contractually agreed charge for parking just goes to show what a sham the whole industry is.

They wouldn't be on stronger ground because in a free car park there is no contract.

Orrin

bazster wrote: »

They wouldn't be on stronger ground because in a free car park there is no contract.

The contract would be for parking beyond the initial free period. See Parkingeye Ltd v Somerfield Stores Ltd [2011] EWHC 4023 (QB), [428]

In relation to these various contractual issues affecting the users of the car parks, therefore, I conclude that any motorist using the car park would be contractually bound to pay the charge of £75 if he exceeded the specified time limit and a demand for payment was made upon him. Whilst he might argue that the charge in question amounted to a penalty and was therefore irrecoverable, I think he would probably fail in that contention. But it seems to me, on the limited material presently before me, that he would probably succeed in any argument that the increase to £135 in the event of a failure to pay within the specified period did amount to a penalty.

Orrin

HO87 wrote: »

And how on earth can you describe this as an industry. Where is the industry? And where is the product?

According to the BPA it's a 'profession' :eek:

HO87

Sadly, Orrin you are quoting from a judgment that dealt with a very specific contract and not simply one that applies across the spectrum. The wording of signs in free car parks need to be carefully crafted to ensure that they contain a contractual offer regardless of whether the charge the PPC seek to enforce is one in breach of contract or a contractual charge.

nigelbb

Orrin wrote: »

The fact that so many PPCs try to recover their charges as damages when they would be on much stronger ground presenting them as a contractually agreed charge for parking just goes to show what a sham the whole industry is.

They are on no stronger legal ground dressing them up as a contractually agreed charge as they are still clearly penalties intended to deter. Claiming that it's a contractually agreed charge to pay £100 to park outside a marked bay or to obstruct a fire exit is just nonsense.

bazster

"Whilst he might argue that the charge in question amounted to a penalty and was therefore irrecoverable, I think he would probably fail in that contention."

Not exactly precedent-setting, is it?

Orrin

HO87 wrote: »

Sadly, Orrin you are quoting from a judgment that dealt with a very specific contract and not simply one that applies across the spectrum. The wording of signs in free car parks need to be carefully crafted to ensure that they contain a contractual offer regardless of whether the charge the PPC seek to enforce is one in breach of contract or a contractual charge.

Oh yes, those carefully crafted signs (para. 49):

These incorporated the logos of both ParkingEye and Somerfield, stated that it was a "customer only" car park with a one hour maximum stay and made it clear that a failure to comply the time limit might result in a "£50 penalty ticket".

Obviously the facts of each case will be different and that part of the judgement is probably obiter anyway, but you still have a high court judge saying that a £75 "penalty ticket" for overstaying in a free car park amounts to a recoverable contractual charge.

Orrin

bazster wrote: »

Not exactly precedent-setting, is it?

Certainly not, but it's clear that the issue isn't as straightforward as "free car park no contract".

nigelbb wrote:

They are on no stronger legal ground dressing them up as a contractually agreed charge as they are still clearly penalties intended to deter.

Judge Hegarty disagrees:

If this is the price payable for the privilege, it does not seem to me that it can be regarded as a penalty, even though it is substantial and obviously intended to discourage motorists from leaving their cars on the car park for any lengthy period of time.

nigelbb

Orrin wrote: »

Judge Hegarty disagrees:

I referred to "offences" like blocking a fire exit. However you dress it up it's a penalty to deter the behaviour not permit it but only at an inflated price.

Whether the charges were deemed penalties or not in the PE vs Somerfield case is moot because they could never be tested in court. The charges were unenforceable as PE's contract specifically said that customers could not be taken to court.

HO87

Orrin wrote: »

Oh yes, those carefully crafted signs (para. 49):

Obviously the facts of each case will be different and that part of the judgement is probably obiter anyway, but you still have a high court judge saying that a £75 "penalty ticket" for overstaying in a free car park amounts to a recoverable contractual charge.

As you correctly identified the judge's comments are entirely obiter - and the judge's own words make that clear. Persuasive? Conceivably, but most certainly not binding. The contents of the signs and their import were never examined and para. 47 forms part of the judge's enumeration of the history of the case and forms no part of his decision. Unless the signs are carefully crafted (and many that have been discussed on this board do not deserve that title) then there is no contract and there can be no breach (aside from any reference to penalty or allusion to deterrence).

I have no intention of expanding on the description of "carefully crafted".