The Beavis Decision

The_Deep

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

Indeed, it is an opinion, but should we be voicing that opinion in appeals.

bod1467

The_Deep wrote: »

Indeed, it is an opinion, but should we be voicing that opinion in appeals.

Yes. After all small claims are generally judged on the balance of probabilities.

BenefitMaster

The_Deep wrote: »

Much egg on hobbyists' faces?

Hobbyists? This isn't a hobby for me...

Coupon-mad

Well I consider it flawed so am very happy to call a spade a spade. We'll see.

bazster

Coupon-mad wrote: »

Well I consider it flawed so am very happy to call a spade a spade. We'll see.

It was made without any supporting case law therefore it was flawed. If the CoA agrees with it then (i) the CoA's decision will not be flawed because the CoA can make new law, whereas the County Court cannot and (ii) similar County Court decisions in future will not be flawed because there will be case law. But Moloney's decision will still be flawed on the basis of the lack of case law at the time.

Anyone who thinks that "flawed" in the context of the civil law is some kind of absolute has failed to understand how it works. Case law is continually changing and evolving and a decision today may be flawed whilst an identical decision tomorrow may not be.

None of this need be a criticism of Moloney. Some argue (plausibly) that he deliberately went out onto a limb in order to force the thing into a court of record.

andy_foster

The judge found that the charge was a penalty. He was correct to do so. He heard uncontested evidence, both in the form of ParkingEye documents and oral evidence from their witness that the purpose of the charge was to deter breach. That is the very essence of a penalty clause.

He also decided that penalties can be enforceable under contract law if they are commercially justified, and that commercial justification applies to "take it or leave it"consumer contracts. He was wrong on both counts.

Penalties are not enforceable under contract law. Any man who knows the law knows that. That is a general principle of civil law - penalties are an evil which the law cannot and will not uphold. Until a few years ago, any clause for breach which could not be justified as a genuine pre-estimate of loss was struck down as a penalty. However, more recently clauses which were not penalties (did not have the predominant contractual purpose of deterring breach) but could not be justified as a genuine pre-estimate of loss have been upheld in commercial contracts individually negotiated between parties of comparable bargaining power, if there was valid commercial justification (e.g. enabling a speedy de-coupling) and most importantly the predominant commercial purpose was not to deter breach.

Commercial justification does not and cannot allow a penalty to be upheld, even if the other criteria are met.

Upholding penalties under contract law would require going behind authorities from the House of Lords going back almost 100 years. No court below the Supreme Court has the authority to do so.

Commercial justification is predicated on the argument that if parties of comparable bargaining power wish to freely enter into individually negotiated commercial contracts, the courts ought to respect their freedom to enter into such contracts and not interfere except where such agreements contravene public policy or the law (e.g. penalties, gambling debts, illegal drugs, etc.). The judge acknowledged that there were no authorities allowing commercial justification in "take it or leave it" consumer contracts, but decided that it must by necessity have universal application - which is clearly wrong - statute provides protection for consumer contracts which does not apply to commercial contracts, parties entering into a contract on the other party's standard terms have protection that those who individually negotiate do not have, etc.

Unlike the penalty issue, the Court of Appeal is not strictly bound by higher authorities to find that Commercial Justification cannot apply to "take it or leave it" consumer contracts, but it would need to disregard much of its own authorities to do so.

N.B. A clause can be called a penalty by the parties but still be enforceable, not just because it is commercially justified in an individually negotiated contract, but if its true purpose is not predominantly to deter breach

The_Deep

So, flawed it is. I'll get my coat.

Coupon-mad

In this discussion you were 'up against' Andy Foster and bargepole who were the team acting as reps for the defendants, so they heard it all from the horse's mouth.

Some argue (plausibly) that he deliberately went out onto a limb in order to force the thing into a court of record.

I tend to think he did but I also read that he said (up front) that he was trying to present a case so that defences could be struck out in future! Not claims, defences!:(

jkdd77

I'd be interested to get an opinion from those involved in the case on Prankster's post: http://parking-prankster.blogspot.co.uk/2014/07/did-parkingeye-deliberately-deceive-hhj.html
suggesting that:
1) That the landowner contract presented to HHJ Maloney was redacted by PE, and;
2) That the full, non-redacted version of the contract would, according to Prankster, most likely have shown that PE were not in fact the principal (if so, HHJ Maloney erred in ruling in favour of PE).

If the Prankster is indeed correct, then I wonder whether it might be worth applying to the CoA for leave to add additional grounds of appeal?

However, I can understand that, for obvious reasons, those involved in the case may well be unable to comment in order to avoid prejudicing the appeal.

bazster

Coupon-mad wrote: »

In this discussion you were 'up against' Andy Foster and bargepole who were the team acting as reps for the defendants, so they heard it all from the horse's mouth.
I tend to think he did but I also read that he said (up front) that he was trying to present a case so that defences could be struck out in future! Not claims, defences!:(

Yes I saw that too. Speculation as to his motives is mostly just that, speculation, but the bit about striking out defences seems to be straight from the horse's mouth, although IIRC Pranky characterised it as just a bit sloppy on Moloney's part rather than deliberately one-sided.