The Beavis Decision

The_Deep

I keep reading draft appeals stating that it is a flawed decision. We may well believe that to be the case, but is it flawed? Did the judge make a mistake, or are we second guessing the outcome of the appeal?

How many of those glibly making this claim could make a convincing argument as to how Judge Moloney got it wrong?

BenefitMaster

The_Deep wrote: »

I keep reading draft appeals stating that it is a flawed decision. We may well believe that to be the case, but is it flawed? Did the judge make a mistake, or are we second guessing the outcome of the appeal?

How many of those glibly making this claim could make a convincing argument as to how Judge Moloney got it wrong?

The judge accepted that the PE Charge was a penalty, but then justified it with Commercial Justification.

A commercially justifiable penalty, as a matter of contract law, needs to be between parties of equal standing, and needs to flow in both directions. I have such a term in my contracts regarding Late Payment of Commercial debts.

In the case of the Beavis decision, the parties did not negotiate terms, PE simply imposed terms on the weaker party. So there is no flow of rights in both directions. As a result, HHJ Moloney extended Commercial Justification far beyond that which the law has previously allowed.

IMHO, IANAL, HTH, HAND :-)

The_Deep

HHJ Moloney extended Commercial Justification far beyond that which the law has previously allowed.


Indeed BM, but you have not addressed the question. Is it, at this time, in law, a FLAWED decision?

bargepole

The_Deep wrote: »

I keep reading draft appeals stating that it is a flawed decision. We may well believe that to be the case, but is it flawed? Did the judge make a mistake, or are we second guessing the outcome of the appeal?

How many of those glibly making this claim could make a convincing argument as to how Judge Moloney got it wrong?

If you look at the 'leave to appeal' document which HHJ Moloney issued, it states:


"I allowed permission on the main issue, which is whether a charge of £85 for as little as half an hour's overstay in a car park is an unenforceable penalty clause.
I decided that, although it has the principal characteristics of a penalty, namely an intention to deter breach rather than simply compensate for loss occasioned by breach, nevertheless it was enforceable because it was commercially justifiable and not disproportionate or oppressive.
There are no clear decisions of the higher courts on this point in this or a similar context, but recent Court of Appeal decisions in commercial cases indicate varying approaches.
There is a real prospect that a higher court might conclude that this was an unenforceable and/or unfair contract term."


So in essence, he has really left it up to the CoA to make the definitive ruling on that point, and for that reason I don't believe that his decision as it stands should carry much weight until that is settled.

bazster

Also, in previous cases where a penalty was held to be commercially justifiable the judgments nonetheless made it clear that a penalty would not be upheld if its primary purpose was to deter breach. In ignoring this Moloney attempted to write new law from the bench of the County Court.

Furthermore Moloney held that PE was the principal and hence had locus standi even though PE redacted crucial parts of their contract with the landowner which might have show they were merely agent. This latter point, however, does not form part of the appeal grounds.

The_Deep

The judge accepted that the PE Charge was a penalty, but then justified it with Commercial Justification.

A commercially justifiable penalty, as a matter of contract law, needs to be between parties of equal standing, and needs to flow in both directions. I have such a term in my contracts regarding Late Payment of Commercial debts.

In the case of the Beavis decision, the parties did not negotiate terms, PE simply imposed terms on the weaker party. So there is no flow of rights in both directions. As a result, HHJ Moloney extended Commercial Justification far beyond that which the law has previously allowed.


Yes, I understand all of that, but is it flawed, and if it is not then should we be advising people to say that it is.

What happens if the appeal goes against Mr Beavis? Much egg on hobbyists' faces?

bazster

The_Deep wrote: »

HHJ Moloney extended Commercial Justification far beyond that which the law has previously allowed.


Indeed BM, but you have not addressed the question. Is it, at this time, in law, a FLAWED decision?

What answer do you want, or are you merely posturing?

It's as plain as the nose on your face that Moloney came to a conclusion unsupported by case law. If that constitutes a flawed decision, then his decision was flawed. Doesn't mean that the Court of Appeal won't agree with him: if they do, then we have new law.

If you are using a different definition of flawed then say what it is.

bazster

The_Deep wrote: »

What happens if the appeal goes against Mr Beavis? Much egg on hobbyists' faces?

Right, so you are just posturing. I'm out.

The_Deep

I most certainly am not posturing.

I am just suggesting that, until we have the result of the Beavis appeal, we should refrain from calling Judge Maloney's decision flawed.

Controversial yes, illogical, perhaps, unexpected, by all means, but flawed, I think not.

esmerobbo

Until the COA decide its neither flawed or un-flawed its just an opinion.

Since PE and others are using it as if it is a precedent we would have no more egg on face then them until it is decided.

bargepole

The_Deep wrote: »

HHJ Moloney extended Commercial Justification far beyond that which the law has previously allowed.


Indeed BM, but you have not addressed the question. Is it, at this time, in law, a FLAWED decision?

It is, at this moment in time, simply a decision in a first instance hearing from a small claims case. There are many such decisions in the public domain, some in favour of the claimants, others in favour of the defendants.


Whenever a defendant refers to such a case in their defence papers, ParkingEye will try to discredit it as 'flawed' or 'untypical', or simply say that they disagree with the Judge.


It's all a matter of opinion, and will remain so until the CoA rules on it.