Dispatches: Channel 4 at 8pm Tonight

trisontana

I have finally got round to seeing the actual programme. So are the BPA Ltd going to do something about UKPC's incentive scheme which, according to Troy, goes against their COP? And what about those PPCs who have just signed contracts with hospitals which go against government guidelines on hospital parking? I won't be holding my breath.

nigelbb

andy_foster wrote: »

Cornucopia's suggestion has merit insofar as if a contract is negotiated and agreed with the landowner prior to entering the car park, that could 'trump' the offer communicated by the signs and acceptance thereof by performance. The chances of the landowner agreeing to such an offer seems unlikely unless you have a lot of leverage.

My local Tesco has a gigantic sign offering FREE PARKING at the entrance which trumps any offer communicated by the signs that Smart Parking have erected high on lamp posts in a barely readable font scattered around that car park. I suspect the situation is the same in many retail car parks. In fact if the landowner has vast & inviting car park attached to their retail premises isn't that offering an implicit licence to park as how else are their customers going to access the store & take home their shopping?

bazster

nigelbb wrote: »

My local Tesco has a gigantic sign offering FREE PARKING at the entrance which trumps any offer communicated by the signs that Smart Parking have erected high on lamp posts in a barely readable font scattered around that car park. I suspect the situation is the same in many retail car parks. In fact if the landowner has vast & inviting car park attached to their retail premises isn't that offering an implicit licence to park as how else are their customers going to access the store & take home their shopping?

I totally agree. Advertising free parking, having huge signs you can see for miles and so forth all clearly amounts to an implied licence to enter and park. As Andy has suggested previously the PPC signs simply amount to variations of the terms of the licence. No contract exists 'cos they can't offer as consideration that which you already have i.e. permission to park. And if you breach the terms you simply become a trespasser.

andy_foster

bazster wrote: »

As Andy has suggested previously the PPC signs simply amount to variations of the terms of the licence. No contract exists 'cos they can't offer as consideration that which you already have i.e. permission to park. And if you breach the terms you simply become a trespasser.

IMHO this is a far weaker argument than the lack of consideration from the driver. A bare licence can be revoked. If there were no signs in a conventional supermarket car park, there would be an implied licence* to park there. PPC signs in most 'free' car parks would either revoke such an implied licence, or modify the terms of it - I do not recall ever being involved in a discussion in which it would have mattered whether they replaced or modified an implied licence. As the signs simply offering "free parking" do not require consideration from the motorist (and lack certainty), they cannot be the basis for any contractual licence to park which could prevent a licence being revoked by notice.

IMHO the relevance of the "Free Parking" signs is that they emphasise the fact that no consideration is required from the motorist, so there cannot be a contract.

*During the 'test case'** when I sought to explain the difference between a bare licence and a contractual right to park, I stated that if there were no signs, there would have been an implied licence for customers of the shops to park. HHJ Moloney QC disagreed. At the Ransomes Park appeal, he explained that if there were no signs in the park there would be an implied licence. Some of my students simply take longer than others to grasp certain issues.

** What should have been the killer argument (on consideration from ParkingEye) was that ParkingEye's sign stated that parking was at the sole discretion of the site - meaning that they were not offering a contractual right to park there (consideration), but a bare licence which the motorist could not enforce if the site simply changed its mind.

jkdd77

It's a great shame that the neither the issue of consideration nor the issue of privity of contract will be considered by the CoA on Tuesday.

In response to TDA's earlier post, many of us, whilst not legally qualified, have great misgivings about HHJ Moloney's judgment, for the following reasons:

1) In addition to the gross inconsistency on the question of consideration as explained above by andy_foster, HHJ Moloney ruled that PE had the right under their contract with the landholder to pursue cases in their own right, notwithstanding that the landholder had objected to this invoice and directed PE to cancel it. However, PE's contract with the landholder, as presented to court, was heavily redacted, and it appears from the Prankster website that the judge disregarded objections from the defendant's representatives and accepted PE's word that they had this authority, even though it appears that the redacted sections prove that PE in fact had no such authority;

2) HHJ Moloney ruled that, even though the charge was a penalty and not a GPEoL, it was nevertheless 'commercially justified', ignoring that all the case law from the higher courts suggest that 'commercial justification' applies only between two parties of equal bargaining power. He also attached great weight to the comparison with LEA penalty charges (themselves significantly lower in Cambridge than are PE invoices), ignoring that LEA penalty charges have statutory backing and need not be either 'commercially justified' or a GPEoL;

3) The original hearing was postponed after PE's second-choice representative failed to show up after receiving a phone call telling him that the case was postponed. HHJ Moloney seemed to think that the caller was linked to the defendant or to internet forums, yet evidence from the Prankster website suggested that the caller was linked to PE, who had a clear motive in postponing the case until their preferred lawyer was available;

4) HHJ Moloney, in granting permission to appeal, only allowed permission on the question of penalty/ 'commercial justification', and stated that the reason for granting leave was "so that defences can be struck out", which seems a bit one sided.

andy_foster

jkdd77 wrote: »

It's a great shame that the neither the issue of consideration nor the issue of privity of contract will be considered by the CoA on Tuesday.

If the contract formation/consideration point was being considered, there would be a danger that we could win solely on that point, leaving the penalty issue either undecided* or a perverse fudgement which we would be unable to appeal.

Compared to changing the fundamental business model of issuing penalty charges for breach of terms of parking, creating a valid contract for parking would be a trivial change.

* Ignoring that the question of whether a penalty can be enforced under contract law has been decided repeatedly and consistently for hundreds of years.

jkdd77

andy_foster wrote: »

If the contract formation/consideration point was being considered, there would be a danger that we could win solely on that point, leaving the penalty issue either undecided* or a perverse fudgement which we would be unable to appeal.

Compared to changing the fundamental business model of issuing penalty charges for breach of terms of parking, creating a valid contract for parking would be a trivial change.

* Ignoring that the question of whether a penalty can be enforced under contract law has been decided repeatedly and consistently for hundreds of years.

I agree that this would be a highly unsatisfactory outcome, but, even so, a win on such a point would still seem preferable to a loss, both for Mr. Beavis and for motorists in general, unless the intention is to try to appeal a loss on the penalty issue to the Supreme Court itself.

Cornucopia

andy_foster wrote: »

Cornucopia's suggestion has merit insofar as if a contract is negotiated and agreed with the landowner prior to entering the car park, that could 'trump' the offer communicated by the signs and acceptance thereof by performance. The chances of the landowner agreeing to such an offer seems unlikely unless you have a lot of leverage.

I originally suggested this [pre-empting the contract terms on the signage by prior negotiation with the Landowner] simply as a means of hassling the Landowner, and making them share some of the pain of their commercial decision to engage a PPC.

However, thinking about it, I can see actual benefits, depending on the circumstances...

1, Disability rights. Asking for better than standard terms on parking as a consequence of a disability.

2. Commercial. Asking for better than standard terms as part of a commercial proposition, ie. furnishing a house, need 3 hours parking.

3. Legal. Proposing that the terms on the signage are unlawful, and asking for indemnification.

I think a Landowner would need to consider these properly, especially (1), which is probably a legal requirement (to consider).

Cygnus_Alpha

andy_foster wrote: »

Cornucopia's suggestion has merit insofar as if a contract is negotiated and agreed with the landowner prior to entering the car park, that could 'trump' the offer communicated by the signs and acceptance thereof by performance. The chances of the landowner agreeing to such an offer seems unlikely unless you have a lot of leverage.

However, your suggestion, much like those of displaying signs in your car refuting an offer which you have accepted by performance, appears to be fundamentally flawed. As a general principle, silence cannot be construed as acceptance. It is hard to conceive of a situation where a PPC could be deemed to have accepted a motorist's offer of variation of terms by performance.

Andy, thank you for that.

In this case, the PPC has kept my money and then said I breached the contract which I had not agreed to. If the PPC can foist a contract on me by saying that leaving my car there means I accept their terms and conditions, then surely I can foist a variation of that contract by saying that if they don't return my money then they are deemed to have accepted it in return for my parking on their land.

What do you think?

Cornucopia

I wouldn't even bother sending them money, although sending them 65p to cover the return postage might be an interesting gambit.

I would just say that non-response by them constitutes acceptance of your not unreasonable alternative contract. It may not be strictly legal, but it would make a nice court case where the slim distinction between contract by performance and contract by non-performance could be discussed.