Fine on hospital property, given to staff

Coupon-mad

And to add more food for thought for point #8 showing this to be a penalty, some of this being relevant to Hospital cases, how about quoting some relevant County Court decisions which - whilst not being precedents, are compelling.

In Aintree University Hospitals NHS Foundation Trust v. Paul Helmn (20th August 2010) the claimant tried to claim £50 from Mr Helmn for parking in a disabled bay in the hospital car park without displaying a blue badge. The judge found that the sum was a contractual penalty was not a genuine pre-estimate of loss; therefore unenforceable.

In Rhyl County Court on 13th December 2011, Aintree University Hospitals NHS Trust v Perrera (Case No. 1UD12840) the District Judge stated that the fact that charges can change from one week to the next, indicates that the parking charge is a threat and deterrent.

In Aintree University Hospitals NHS Foundation Trust v. William Forshaw (6th June 2011) the judge stated: “Only the police and local councils can issue parking tickets in the normal sense of the word; landowners, on the other hand, rely on contract law. Therefore, some landowners put up signage when you enter their property, saying that you have entered into a contract with them, and that you must park in a certain way or in certain places. If you do not, the contract you have entered into states that you have to pay a sum, as per that stated in the contract. This is where it gets interesting. Case law dating back 100 years or more stating that if the sum of money demanded is more than the losses that the landowner has suffered, then it is considered a contractual penalty, and is therefore unenforceable. In other words the landowner can claim for genuine pre-liquidated losses, not demand a penalty on event of a contractual breach. For example, if the cost of parking is £2, which a motorist does not pay, then the landowner can make a claim for that £2, not for a £50 ‘charge’, even if this is on the signage, as £50 would constitute a penalty, which then becomes unenforceable”.

and other decisions about charges for breach' being penalties:

- Dunlop Pneumatic Tyre Co Ltd v New Garage & Motor Co Ltd Lord Dunedin offered as tests which might prove "helpful, or even conclusive":

"(A) It will be held to be penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach..….

(B) It will be held to be a penalty if the breach consists only in not paying a sum of money, and the sum stipulated is a sum greater than the sum which ought to have been paid ….. This though one of the most ancient instances is truly a corollary to the last test. Whether it had its historical origin in the doctrine of the common law that when A. promised to pay B. a sum of money on a certain day and did not do so, B. could only recover the sum with, in certain cases, interest, but could never recover further damages for non-timeous payment, or whether it was a survival of the time when equity reformed unconscionable bargains merely because they were unconscionable ….. is probably more interesting than material.

( C) There is a presumption (but no more) that it is penalty when "a single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage".

- Lordsvale Finance Plc v. Bank of Zambia [1996] QB 752, 762G,
discussing Dunlop:
"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 provision was to deter a party from breaking the contract or to compensate the innocent party for breach. That the contractual function is deterrent rather than compensatory can be deduced by comparing the amount that would be payable on breach with the loss that might be sustained if breach occurred."

- Excel Parking Services v Hetherington-Jakeman, Mansfield County Court, March 2008.
“I have already decided that the charges are not recoverable anyway, but it is important I think for me to say whether I think it is a penalty, and I think it is a penalty. It seems to me that it is not a pre-estimate of damages. It is a payment of a sum of money that is intended to effectively frighten or intimidate someone into making a payment promptly. It is a figure that is far beyond any costs that could realistically or reasonably be incurred by the claimants in trying to run this system.”

- In OBServices Parking Consultancy Ltd vs Thurlow, in the Worcs CC Claim No: 0QT34807, 10th February 2011 (on appeal) the Circuit Judge ruled:
- the sum amounted to an unenforceable penalty clause
- no loss caused by breach of contract
- common discount reinforced lack of pre-estimate of loss

Scigal_2

Hi all thanks so much

Everything got sent off in time. And now we have received the questionnaire, asking us if we'd like mediation or not.

Im thinking we should click yes?

Coupon-mad

Yes - this is covered by bargepole in one of the links I give in the NEWBIES thread under small claims. Mediation is a bit pointless (don't be intimidated into paying or making an offer to make it go away) but shows the court you were willing to discuss the matter. But your premise is that you are not liable and don't have to help them to ID who was driving, even if you knew for sure (bearing in mind any friend or relative with fully comp insurance could feasibly have been the driver all that time ago).

I would also attach a covering letter with the N180 which repeats the request for the strike out. Assume that your local court has NOT seen any of it yet, repeat it (not the whole defence, just the reason why the case should be struck out as having no prospects of success because you are the wrong Defendant and the NHS Trust has not established any keeper liability as they did not use the documents required in Schedule 4 of POFA2012). You want someone at the Court to see the covering letter and see if the Judge will strike the case out nice and early.

Scigal_2

Hi all, well this has reared up again

My husband emailed 3 times to set up mediation, this seems to have been ignored by the claimant and now we have a fat bundle of court papers in front of us for a hearing in two weeks time

Scigal_2

My husband has just got home from work and is refusing point blank to go anywhere nr that court room. I have to write them a letter and just bloody pay it.

Coupon-mad

At least wait until the day before the hearing - your OH isn't even liable and this may well be discontinued by the claimant days before. Happens a lot and they are waiting to see if you fold first - DON'T!

Even in the hearing it's not very difficult to argue that a keeper who wasn't driving is not liable if a PCN didn't follow the strict procedure in POFA 2012 - as long as you've sent your own 'fat bundle' to the court before the filing deadline. Did you? meet the filing deadline mentioned in the court hearing info? Never mind mediation - there is no question of it - there's no case to mediate as long as you filed your defence in time (not the initial defence).

You had it sewn up in a nutshell here:

Scigal wrote: »

morning!
The company and Trust in question is not a member of the ATA and have not invoked the POFA 2012 in their ticket nor appeals procedure. They have not established the keeper liability in law. The registered keeper was not the driver on the occasion for which the invoice was dated and any contact about it you know that fact is harassment of the wrong party. A registered keeper in not liable unless the strict procedures and regulation within POFA 2012 have been followed, and they clearly have not.

Your husband is NOT liable - it should be a pretty short hearing if he just repeats the above! But if he really won't go, WAIT until the day before. They might blink first.

bazster

Sounds to me like a strike on the domestic front is in order.

Scigal_2

Coupon-mad wrote: »

At least wait until the day before the hearing - your OH isn't even liable and this may well be discontinued by the claimant days before. Happens a lot and they are waiting to see if you fold first - DON'T!

Even in the hearing it's not very difficult to argue that a keeper who wasn't driving is not liable if a PCN didn't follow the strict procedure in POFA 2012 - as long as you've sent your own 'fat bundle' to the court before the filing deadline. Did you? meet the filing deadline mentioned in the court hearing info? Never mind mediation - there is no question of it - there's no case to mediate as long as you filed your defence in time (not the initial defence).

You had it sewn up in a nutshell here:

Your husband is NOT liable - it should be a pretty short hearing if he just repeats the above! But if he really won't go, WAIT until the day before. They might blink first.

Hi thanks, all we've done is filed the initial defence, of which theynhave sent 35 pages refuting every point and proving case law examplaes and photogrpaghs ( most of which relate to a different parking area!)

We've heard nothing until.now.the judges directions were that he wanted us to mediate, to which we agreed, my OH has emailed several times, they said theyd get back to us. And now we have this bundle on our doorstep. Its a bit lopsided. We've been gicen a week in order to get everything to the court. Its hardly fair. Hes refusing on the grounds of he cant learn the case in a week, he cant argue it in court, hes a very quiet and timid man it would make him very ill to go through this. Im the gob!!!!! in the family, not him.


Nothing is signed by them by the way, then solicitor has signed the company name not in their own hand and i beleve under PD they have to actually sign it.

Scigal_2

Shall i upload their respinse and redact personal info?

Scigal_2

Reading it they say they dont have to give us a popla code because they are a hospital and run by the government, and therefore do,not need to be regulated by bpa