Dispatches: Channel 4 at 8pm Tonight

Cornucopia

You think we should have this vast technical and legal infrastructure because a few people are too timid to go into the shop, look around a bit, and ask for parking validation?

MothballsWallet

James_H wrote: »

The BPA have posted a response on their blog:

http://www.britishparking.co.uk/Blog/bpa-dispatches-further-insight/763

And I tweeted a (belated) response to them on that there Twitter

You can find it here (if the link works, I'm not sure how to link to a tweet).

TDA

bod1467 wrote: »

if PPC PCNs were, say, £20 I don't think anyone would really bat an eyelid

But is that not the very problem with lowering the amount of the charge? If no one bats an eyelid, the element of deterrence (the entire goal of the contract - theoretically at least) doesn't exist. I don't subscribe to the parking chaos theory propagated by the BPA, but if there is no deterrent at all then in some locations people WILL abuse parking - I've seen it for myself, both in residential areas near town centres/train stations and shopping centres.

Any liquidated damages clause (even one that is a GPEOL!) has an element of deterrence to it, this is one reason why we have the modern commercial justification approach with the test being whether the predominant purpose of the clause is to compensate loss or deter breach. In the context of parking, the law will soon be elucidated on this matter!

Personally I am of the view that rates should be in line with local councils (in order that there be a genuine deterrent to errant parking), but that the industry should operate within, and be regulated under, a restrictive statutory framework, with a regulatory body set up and staffed by the government - paid for by operators, who are required by law to register with the body.

Fergie76

But if you allow deterrents in one industry, such as parking, what's to stop mobile provider charging me £100 for going 1 text or minute over my allowance?

Half_way

Fergie76 wrote: »

But if you allow deterrents in one industry, such as parking, what's to stop mobile provider charging me £100 for going 1 text or minute over my allowance?

Or a restaurant charging a penalty for dirty tablecloths, or a fine for a bad review on trip advisor http://www.bbc.co.uk/news/technology-30100973

hoohoo

Some companies do charge £20. It works. Therefore there is no justification for a charge of £85.

Of course, companies that do this, don't make their profits from parking charges. They charge an administration fee to the landowner.

The trouble is, as this was not introduced as evidence in the original hearing, it will be difficult to introduce at the court of appeal.

Cygnus_Alpha

hoohoo wrote: »

Some companies do charge £20. It works. Therefore there is no justification for a charge of £85.

Of course, companies that do this, don't make their profits from parking charges. They charge an administration fee to the landowner.

The trouble is, as this was not introduced as evidence in the original hearing, it will be difficult to introduce at the court of appeal.

I totally agree. £20 would deter me. But why charge the minimum possible to deter when you can charge £100 and make lots of money by intimidating people.

TDA

Fergie76 wrote: »

But if you allow deterrents in one industry, such as parking, what's to stop mobile provider charging me £100 for going 1 text or minute over my allowance?

Simple, and addressed in my previous post. The matter is put on a statutory basis. It is therefore entirely limited to this one area where deterrence is (and should be) the aim of the game, not a side note.

In the examples you give the purpose of the contract itself is not to deter the other party from doing something (as it is in parking) it is the provision of a working mobile phone for a monthly payment, the exchange of money for a meal or of the same for a stay at a hotel. The hypothetical penalty clauses you mention do not go to the root of the contract, they are ancillary to it. In all these scenarios the consideration is the payment of a fee by the consumer. In parking the consideration is the promise NOT to breach the terms and conditions. It is the central purpose of the contract to deter what is perceived as bad parking.

Moloney in his own judgment - he highlighted that the penalty doctrine emerged, in part, because damages was usually sufficient to deter the other party from breach. To give an example, if a guest were to overstay at a hotel by two hours and the cost of the room was £50 an hour, the knowledge of the consumer that they would be required to pay £100 should they overstay was sufficient to deter breach. For obvious reasons the same does not apply to parking, where damages alone are not necessarily enough to deter the breach. I would therefore hope that the ratio of any common law ruling in PE's favour would limit it to cases where the root purpose of the contract is to deter breach (and in all honesty, outside of parking, I can think of few cases where such a contract would exist).

Or, as I suggested in my previous post, put the whole thing on a statutory basis which forces the PPC's to play ball and negate the need for CA to even consider the possibility of commercial justification in the consumer context.

Cornucopia

TDA wrote: »

Simple, and addressed in my previous post. The matter is put on a statutory basis. It is therefore entirely limited to this one area where deterrence is (and should be) the aim of the game, not a side note.

In the examples you give the purpose of the contract itself is not to deter the other party from doing something (as it is in parking) it is the provision of a working mobile phone for a monthly payment, the exchange of money for a meal or of the same for a stay at a hotel. The hypothetical penalty clauses you mention do not go to the root of the contract, they are ancillary to it. In all these scenarios the consideration is the payment of a fee by the consumer. In parking the consideration is the promise NOT to breach the terms and conditions. It is the central purpose of the contract to deter what is perceived as bad parking.

I'm not convinced that this is a valid distinction. In all cases, we are talking about a penalty being imposed for breach of Ts & Cs.

I don't see the "normal" use of a parking space as being any different to the "normal" use of a hotel room.

For me, the distinction is a practical one. I would think carefully before doing business with a Hotel that had a reputation for using excessive penalties.

With parking, I may not know at the point of deciding to park. Having said that, I tend to avoid the Hospital car park for a variety of reasons, including enforcement.

There is a further dimension, which is that I do not accept that a company should derive all of most of its profits from penalties for breach. I find this morally repugnant in and of itself, as well as raising issues of conflict of interest. Therefore if there is to be firm guidance on the amount of penalties, it should be set at a rate to provide a fair (single digit percentage) ROI, and no more.

One issue that I am wondering about (assuming that the Beavis appeal does not produce an outcome favourable to drivers) is that of contract agreement.

Whilst I understand that the Courts have accepted this kind of contract can be posted on signs and agreed by drivers simply entering the car park and parking there, I'm wondering if the contract can be subject to negotiation by prior agreement (with the landowner).

I'm thinking that a number of such approaches by drivers will become a burden to the landowner, even if the answer in every approach is "no" to the drivers' proposed alternative terms. Given that the landowner has already indicated their willingness to operate on the basis of contract acceptance through action, I think it would be possible to structure the proposed alternative contract in such a way as to require a response if the Landowner does not want to be bound by it.

Contracts are, after all, a willing agreement between two parties deemed equal in law.

Cygnus_Alpha

Cornucopia wrote: »

I'm thinking that a number of such approaches by drivers will become a burden to the landowner, even if the answer in every approach is "no" to the drivers' proposed alternative terms. Given that the landowner has already indicated their willingness to operate on the basis of contract acceptance through action, I think it would be possible to structure the proposed alternative contract in such a way as to require a response if the Landowner does not want to be bound by it.

Contracts are, after all, a willing agreement between two parties deemed equal in law.

Funnily enough I was thinking along similar lines. In response to their notice, I am about to issue a contract variation to a PPC which will give them 14 days to reply if they do not wish to be bound by its terms.