POFA 2012: Well there's a funny thing!

bazster

Something just dawned on me as I was reading a thread on PePiPoo.

POFA 2012 defines a parking charge thus:

(a) in the case of a relevant obligation arising under the terms of a relevant contract, means a sum in the nature of a fee or charge, and

(b) in the case of a relevant obligation arising as a result of a trespass or other tort, means a sum in the nature of damages,

Well that's clear enough, right? (a) is referring to a contractually-agreed charge (note in particular the distinction implied between a "charge" in (a) and "damages" in (b)).

So, it's (b) that the likes of ParkingEye are relying on when they try to hold a keeper liable for damages arising from breach of contract.

Wrong! (b) refers specifically to damages resulting from a tort. Breach of contract isn't a tort! The definitions further emphasise this, and more:

“relevant contract” means a contract (including a contract arising only when the vehicle was parked on the relevant land) between the driver and a person who is—

(a)the owner or occupier of the land; or

(b)authorised, under or by virtue of arrangements made by the owner or occupier of the land, to enter into a contract with the driver requiring the payment of parking charges in respect of the parking of the vehicle on the land;

What? WHAT? WHAT?

A contract is only a "relevant contract" for POFA 2012 Schedule 4 if it requires the payment of parking charges! So in a free car park, where the contract sets out only damages for breach but no parking charges, the contract is not "relevant"!!!

And there's more:

“relevant obligation” means—

(a) an obligation arising under the terms of a relevant contract; or

(b) an obligation arising, in any circumstances where there is no relevant contract, as a result of a trespass or other tort committed by parking the vehicle on the relevant land;


Which more-or-less repeats the definition of a "parking charge", except it further emphasises the distinction between contract and tort. Of course, "an obligation arising under the terms of a relevant contract" could mean an obligation to pay damages for breach - but that has already been scotched by the definition of "parking charge".

So a relatively forensic reading of POFA 2012 Schedule 4 leads to this somewhat striking conclusion: POFA 2012 provides for keeper liability to arise in respect of parking charges and fees, and in respect of damages for a tort. There is NO provision for keeper liability in respect of damages for breach of contract!!!

nigelbb

I like your reasoning but the parking contract in a free car park is always going to be between the motorist & the landowner so no payment is necessary to form a “relevant contract” (some hold that no contract can be formed without payment of a consideration on the part of the motorist but put that argument aside for the moment)

“relevant contract” means a contract (including a contract arising only when the vehicle was parked on the relevant land) between the driver and a person who is—

(a)the owner or occupier of the land; or

However this raises a problem for Parking Eye etc who insist that the "parking charge" is for breach of contract for if the contract is between the motorist & the landowner then a 3rd party like Parking Eye cannot take the motorist to court to enforce that contract.

The language used in drafting Schedule 4 of POFA 2012 makes perfect sense if you read it as referring to parking charges as you & I would know them e.g. pay & display & then damages for trespass if those charges aren't paid. It's only the PPCs who have twisted the meaning of POFA 2012 to include their unenforceable penalties as "parking charges".

bazster

I agree with you Nigel but you've missed my point.

Let's suppose for the sake of argument that the signage setting out the contract is erected by the landowner, makes a contract with the landowner, and there is no PPC involved. If it's a free car park, and the contract specifies no parking charges (notwithstanding that it might contain liquidated damages clauses), it is still not a "relevant contract", and in any case there is still no provision for keeper liability with respect to damages for breach of contract. So even the landowner can't hold the keeper liable (but might be able to hold the driver liable).

nigelbb

I am not disagreeing either but re-read my last paragraph as this explains where all the confusion arises from.

trisontana

When POFA was first announced over 18 months ago I did ask the question of what was meant by "parking charge". Was it a P&D ticket for example, or the stupid sums asked for by PPCs for breaking their rules. Even then nobody could give a straight answer.

The_Slithy_Tove

Interesting academic exercise. However, none of it will be tested until a PPC actually enters a court room in an attempt to use POFA and keeper liability. We've not seen many post PoFA cases yet (one on Pepipoo is suing someone who is neither the RK nor the driver, just the person who happened to send in the appeal - could be interesting).

And even then, it will depend on how the judge interprets it, if he even bothers. While the likes of Judge McIlwane would surely try to skewer a PPC trying it on, we have seen other cases where the judge appears to have pre-judged the issue, and doesn't listen at all to the defendant's case. So, only if a case ever gets to a higher court will we really know. I can't see that happening any time soon, if ever.

bazster

Well it will not be tested in a court room unless someone puts it in their defence! If we take your defeatist argument ("what's the point, District Judges make it up as they go along?") to it's logical conclusion there is no point submitting a defence at all!

The_Slithy_Tove

I'm not being defeatist, just a bit more realistic. Sure, it's a valid line to take in any case which relates to PoFA and keeper liability. But there's no way I'd recommend relying on it. As with all court defences over these tickets, and, indeed, POPLA appeals, it's the scatter0gun approach which puts up as many hoops as possible for the PPC to jump through. If a judge rules on non-application of PoFA, then great. If for the reasons above (rather than the more likely reasons of non-compliant paperwork), even better. If, instead, he were to rule on one of the other defences, such as no loss or no contract, at least it's a win.

I never suggest the DJs make it up as they go along. Just that anecdotal evidence suggests some are less clued up than others, and some seem to have distain for non-legally trained people defending themselves. But better a lottery with a reasonable chance that zero chance of success if no defence submitted at all. It's back to the as-many-lines-of-defence-as-one-can-muster approach.

Orrin

It's an interesting argument but I agree with TST that there's no guarantee a DJ would agree. Worth including as an appeal point where the PPC is using POFA and seeking damages for breach of contract in a free car park though.

It also supports my view that PPCs would be on firmer (though by no means solid) ground pursuing a contractual charge rather than damages.

I don't know about judges being disdainful of non-legally trained defendants, but perhaps they are less likely to be persuaded by technical or "clever" legal arguments than most (lay) people think.

bazster

I disagree that this is "technical" or "clever", it merely requires the ability to read!

bazster

nigelbb wrote: »

I am not disagreeing either but re-read my last paragraph as this explains where all the confusion arises from.

Yes I quite agree.