Parking eye's attempts to justify charges

4consumerrights

Parking Eye's continued attempts to justify their charges is falling apart.......

Now that Parking Eye are repeatedly failing to justify their charges for breach of contract where they are losing for no GPEOL, they are now attempting to justify their charges as a commercial justification for liquidation of breach of terms as seen in many threads recently.

Parking Eye refer this attempt at commercial justification to the case of Azimut-Benetti Spa v Healey which was a multi-million pound yacht building deal - hardly a direct comparison.

The Judge ruled in favour of the commercial justification and the amount claimed as a justifiable balance of both parties rights. Both parties had freely agreed to the terms and conditions when drawing up the contract and had the benefit of expert representation in negotiations - (rather like in the buy-out terms for Parking Eye and Capita!)

Hardly relevant in the case of Parking charges where the motorist has no say in the terms imposed.

http://www.bristows.com/articles/commercial-justification-of-liquidated-damages


The Court found in favour of the shipbuilder, ruling that the liquidated damages clause was not a penalty as it had a clear commercial and compensatory justification which attempted to strike a balance between the interests of the parties. The Court was also influenced by the fact that the clause had been freely entered into by the parties, both of whom had the benefit of expert representation. The Court made clear that in commercial contracts of this kind, the terms agreed by the parties should normally be upheld. - See more at: http://www.bristows.com/articles/commercial-justification-of-liquidated-damages#sthash.rjmXafiM.dpuf

and here:
http://www.addleshawgoddard.com/view.asp?content_id=5371&parent_id=5366

ampersand

Thanks for more P-eye input, but have you triplicated final para?

4consumerrights

Apersand - yes thanks it was triplicated somehow when copying and pasting - now deleted.

esmerobbo

Shame on you Rachel took months looking for a case to argue commercial justification and you put a spanner in all her hard work!

Having just read through the case this sort of kills it for PE does it not?

"a clause may be commercially justifiable provided that its dominant purpose is not to deter the other party from breach"

Guys_Dad

I agree. What an inappropriate precedent.

If they use this in their papers, then the following paragraph from the case should be quoted.

"Judge Blair found that the evidence showed that the dominant purpose of clause 16.3 was not to deter breaches by the buyer. There was a clear commercial justification underpinning the clause: clause 16.3 significantly provided a mechanism for striking a commercial balance between the parties in the event of termination, including providing for overpayments and unused fittings to be returned to the buyer."

In parking cases, the dominant purpose of the clause is to deter breaches of the parking conditions. We know that it is really an opportunity to impose excessive charges but the facade the PPCs purport to operate is that the charge is to deter breaches. I would like them to claim otherwise.

So, POPLA appeals in PE cases should anticipate this by saying that the charges are there to deter breaches and are not commercial justification as in cases such as this one.

When does Rachel sit her exams?

The_Slithy_Tove

Unfair contract terms also come in, here. The parties in a parking so-called contract are not equal, as the driver has no input into negotiating the terms. This makes it completely unlike PE's cited example, where both parties are on an equal footing.

In other words, their argument is completely flawed.

You would have thought PE might employ people who have a vague understanding of the law, wouldn't you?

peter_the_piper

You'd have thought the Judge would have a vague understanding of the law as well.

Stroma

I've seen this before somewhere, not sure if it was parking eye or other company, it may have been on pepipoo though

spacey2012

They key legal word was "drawing"
Drawing up a contract is a contract where it has been individually negotiated and signed as such.
Parking Eyes version is that even though they have no consideration to offer (consideration is what is given) as they can not give what they do not own.
When someone parks your car, the contract they drew up, the one you have never even seen makes you liable for the running costs of their company they offset against tax every year.

A bit different from signing a drawn up contract somewhat.
Clutching at straws is what they are doing.

It all starting to unravel on them !
Get Popcorn, this is good viewing.

Looks like Capita have bought themselves a dummy.

fil_cad

Rentokill are good at clearing severe rat infestations, i wonder if they could eradicate parking eye?

spacey2012

The company that has just bought parking eye must be holding their head in their hands.
They have bought a company that is based on scamming people.
They rely on senile old county court judges for the odd case, but sooner or later they are going to pick on the wrong one.
One high court challenge and the whole business plan of these PPC's is over.