ParkingEye-v-Beavis Appeal: Date Set

jemgee

As a chartered surveyor I was involved with construction contracts and the the use of a Penalty was unenforceable. The term used was Liquidated and Ascertained Damages which always required a GPEOL to be prepared specific to each project. Could I suggest that a GPEOL cannot be uniform across a company such as PE as each of their sites will involve unique circumstances and costs.

Keatings chambers were the pre-eminent authority for building cases and this may be worth looking at?

http://www.keatingchambers.co.uk/multimedia/New%20Folder/Liquidated%20damages%20-%20are%20they%20penal.pdf

HO87

jemgee wrote: »

As a chartered surveyor I was involved with construction contracts and the the use of a Penalty was unenforceable. The term used was Liquidated and Ascertained Damages which always required a GPEOL to be prepared specific to each project. Could I suggest that a GPEOL cannot be uniform across a company such as PE as each of their sites will involve unique circumstances and costs.

Keatings chambers were the pre-eminent authority for building cases and this may be worth looking at?

http://www.keatingchambers.co.uk/multimedia/New%20Folder/Liquidated%20damages%20-%20are%20they%20penal.pdf

Thanks for posting up the document. It sums things up reasonably well but breaks no new ground in terms of where we are with GPEOL - and quotes all of the principal authorities (by way of cases) used in Beavis.

Of course a GPEOL cannot be universal. Any fule kno that for sure. It is trying to convey that point in court and the problem is that cases are heard independently, in often isolated courts and relate to single incidents. Adequately conveying the bigger picture is usually impossible and there are few judges, I'd suggest, that would admit it- small claims court freedoms (in terms of what evidence and how it is presented) notwithstanding.

jemgee

c+p from the last paragraph of this
http://www.olswang.com/articles/2014/01/avoidingpenaltyclauses/

'law on penalties. Whilst the decision of the High Court in Cavendish signalled a modern approach with an emphasis on the commercial justification of such mechanisms, the Court of Appeal appears to have placed the emphasis once again on whether or not the provision is a genuine pre-estimate of loss.'

COA is December 2013 so presume this could be 'persuasive' for Beavis?

HO87

jemgee wrote: »

c+p from the last paragraph of this
http://www.olswang.com/articles/2014/01/avoidingpenaltyclauses/

'law on penalties. Whilst the decision of the High Court in Cavendish signalled a modern approach with an emphasis on the commercial justification of such mechanisms, the Court of Appeal appears to have placed the emphasis once again on whether or not the provision is a genuine pre-estimate of loss.'

COA is December 2013 so presume this could be 'persuasive' for Beavis?

Hitherto the commercial justification argument has only succeeded in circumstances where the parties were of equal standing - usually legally represented - and where the contract was individually negotiated. The very nature of the usually PPC "contract" is that it is unilateral and the motorist has no opportunity to negotiate - it is simply "take it or leave it".

ManxRed

Yes, in modern contracts 'penalties' are in there and called something else, the common one is 'Service Credit'. However, as HO says, these are contracts which are negotiated and agreed between parties using legal representation, and there's usually a clause in the agreement which states that too.

bazster

HO87 wrote: »

Hitherto the commercial justification argument has only succeeded in circumstances where the parties were of equal standing - usually legally represented - and where the contract was individually negotiated.

And also with the express reservation that, regardless of any commercial justification argument, a penalty will still be struck down if its primary purpose is deterrence.

spikyone

bazster wrote: »

My personal opinion is that contractual charges are subject to the The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, and if a court agreed with this then such charges would be dead in the water. As Coupon Mad keeps saying, these regulations mean that the days of stealth contracts being foisted on consumers are over.

Oh dear lord, not this again... CC(ICAC) Regulations are about changing your mind after you've made a contract, they're absolutely nothing to do with "stealth contracts". 'Consumer Protection from Unfair Trading Regulations' still exists and it's CPUTR legislation that applies to "stealth contracts".


Under the CC(ICAC) Regs, if the consumer has already taken advantage of the service for which the contract existed, then they have to pay pro rata for the service that they have used. Cancellation of the contract is not retrospective, so if there was a contractual charge of £100 that arose from the time the contract was in place, it doesn't cease to exist. This is most clearly defined in 14(3) of the EU Directive on which the UK legislation is based.


Lastly, the interpretation of CC(ICAC) that C-m advocates also relies on being able to convince a judge that leaving your car in a car park isn't an express request for the provision of a service of parking, that parking isn't a day-to-day activity, and that it constitutes a distance contract. Much of it is no more than poorly-supported opinion, and there is certainly no case law to back it up.


I'd say a change to contractual charging models is still a win for the motorist. In relation to bargepole's point on structuring of contractual charges, this would be difficult to tally with the Equality Act if applied to bays for disabled motorists. There would also need to be a means of paying the pseudo-fine for such signage to be legitimate.

bazster

Yeah, whatever. No point in arguing with someone who either hasn't read the statute (the entire statute) or is incapable of understanding it.

Mike172

What we doing regards to appeals at the moment then..... Just appealing as normal?

Last thing i want are CCJ's

- If a POPLA appeal submitted now was due for hearing in 2 months time, and PE won next month the GPEOL arguament wouldnt count surely. I knows theres other appeal points. Just feel like I am submitting appeals that are going to be (potentially) invalid in a month.

Redx

irrelevant, you cannot get a CCJ unless you lose in court and dont pay within 28 days

so you have to lose IN COURT and not pay before a CCJ can be enforced

I assume none of that has happened to you ? if not why worry about it ?

I do not believe that B Beavis has a CCJ yet over this parking issue , so fail to see how you could get one at this moment in time

on a side note, the FLIGHT DELAY COMPENSATION case in Liverpool yesterday has been ruled on and is on bbc news website, so various judgements are coming through in favour of the consumer , because the judge there has ruled that JET2 cannot delay compensation any longer (I would assume this may go to appeal though, just like the Beavis case)

we can only hope that the COA judgement is favourable to these cases too