Dispatches: Channel 4 at 8pm Tonight

Cygnus_Alpha

Cornucopia wrote: »

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.

Interesting. I could word it so that the act of keeping my money is the 'performance'. I haven't sent them any money. There was a glitch on either ringgo or my phone app which meant they say they received the payment late by some hours. They say I didn't pay and want to 'fine' me and yet have kept my money.

Cornucopia

If they are using electronic payment options, do they say payment has to be received before parking?

Sounds like an obvious requirement for a contract, but if they have selected/provided elements of the payment mechanism, then I think their case is a poor one unless they explicitly state that cleared pre-payment is required (and they/the payment service provider provides a mechanism to check it).

bazster

andy_foster wrote: »

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.

It's not ParkingEye's licence to revoke (unless they act merely as the landowner's agent, which opens up a whole new can of worms for them).

They are in a cleft stick. If PE is the principal, they cannot offer permission to park as good consideration because I already have it from the landowner. As a third party PE has no standing to revoke that permission, and I don't see the landowner doing so.

Conversely if they are the landowner's agent then they could revoke the licence on behalf of the landowner but they have no standing to make a contractual offer in their own name i.e. if the landowner's permission is revoked everyone becomes a trespasser!

TDA

salmosalaris wrote: »

@ TDA
could you answer my post 141 please
Apologies accepted

If it is desirable to the landowners to deter abuse (and it is, the more footfall they get at a shopping centre, the stronger the position they are in when it comes time to negotiate the rent the tenants pay them), then given it is the landowners who authorise PE to operate it is desirable to PE that at some motorists do not breach the terms and conditions . If no one was deterred certainly PE would make more money in the short term, but they could quite possibly lose the contract, and are may not receive repeat business.

Moloney highlighted the value to landowners as below:

"a, the need to provide parking spaces for their commercial tenants' prospective customers;
b, the desirability of that parking being free so as to attract those customers;
c, the need to ensure a reasonable turnover of that parking so as to increase the potential number of
such customers;
d. the related need to prevent "misuse" of the parking for purposes unconnected with the tenants'
businesses, for example by commuters going to work or shoppers going to otT-park premises; and
e. the desirability of running that parking scheme at no cost, or ideally some profit, to themselves,"

Now, of course, we know that in reality there is far more value to PE in the contract being breached than there is in it not, but consideration need not be adequate. If it is of even notional value that is enough - and if used chocolate wrappers are of adequate value, the potential for repeat business and continuation of the contract for PE certainly is.

bazster wrote:

Yes there is. It's private land, you have an existing obligation in common law not to be there at all, save as permitted by the landowner (i.e. you have an obligation not to trespass). If you arrive at 2:00 p.m. and the landowner permits you to stay for two hours then all that happens at 4:00 p.m. is that you become subject again to your existing obligation not to be there at all.

The argument that a promise to leave is consideration is tantamount to saying that a promise not to trespass is consideration. Patently absurd.

We shall have to agree to disagree on this point. Any obligation (under the common law tort of trespass) not to be on the land ceased to exist when the invitation to park was extended. If you've been invited onto land you are not a trespasser - unless you are suggesting that everyone who has parked at a shopping centre car park has been a trespasser? Thus at the point the contractual offer is accepted through the act of parking the obligation to leave after two hours (specifically two hours, not just to leave) is not an existing obligation, it is a new obligation and valid consideration.

salmosalaris

TDA wrote: »

If it is desirable to the landowners to deter abuse, then given it is the landowners who authorise PE to operate (and it is, the more footfall they get at a shopping centre, the stronger the position they are in when it comes time to negotiate the rent the tenants pay them) it is desirable to PE that at some motorists do not breach the terms and conditions . If no one was deterred certainly PE would make more money in the short term, but they could quite possibly lose the contract, and are may not receive repeat business.

Moloney highlighted the value to landowners as below:

"a, the need to provide parking spaces for their commercial tenants' prospective customers;
b, the desirability of that parking being free so as to attract those customers;
c, the need to ensure a reasonable turnover of that parking so as to increase the potential number of
such customers;
d. the related need to prevent "misuse" of the parking for purposes unconnected with the tenants'
businesses, for example by commuters going to work or shoppers going to otT-park premises; and
e. the desirability of running that parking scheme at no cost, or ideally some profit, to themselves,"

Now, of course, we know that in reality there is far more value to PE in the contract being breached than there is in it not, but consideration need not be adequate. If it is of even notional value that is enough - and if used chocolate wrappers are of adequate value, the potential for repeat business and continuation of the contract for PE certainly is.
.

As I said earlier I could buy that if the landowner was the contracting party but HHJ went to great lengths to distance PE from the landowner. I think the only benefit to PE you mention is repeat business but that is tooweak an argument to be of genuine value and repeat business is not offered by the motorist .For PE to make a profit and be able to even contemplate repeat business there have to be significant breaches, the very thing you claim will lead to them losing the contract and the very thing they are meant to be preventing .

Fergie76

Apart from Banking PPC world must be the only where they are reward for being rubbish at their job, because if they were any good and actually managed the car park, there would be little or no breaches.

Castle

So, to sum up in PPC world:
The better you are at your job, the more money you lose and vice versa; the worse you are, the more profit you make.

Cornucopia

Fergie76 wrote: »

Apart from Banking PPC world must be the only where they are reward for being rubbish at their job, because if they were any good and actually managed the car park, there would be little or no breaches.

Err... no.

The whole point is that the PPCs are denied by law the two most obvious means to police car parks - clamping and removal.

In the absence of those options, the question is, what is the lawfulness of their third option, penalty charges?

TDA

salmosalaris wrote: »

As I said earlier I could buy that if the landowner was the contracting party but HHJ went to great lengths to distance PE from the landowner. I think the only benefit to PE you mention is repeat business but that is to weak an argument to be of genuine value and repeat business is not offered by the motorist .For PE to make a profit and be able to even contemplate repeat business there have to be significant breaches, the very thing you claim will lead to them losing the contract and the very thing they are meant to be preventing .

I understand where you are coming from, but personally feel that if, as in Chappel & Co v Nestle, a used chocolate wrapper is considered sufficient consideration, the potential for repeat business certainly must be. It doesn't matter whether the repeat business is offered by the motorist, rather than the landlord, only that their promise not to breach the terms of the contract may provide that value.

I completely agree that the value they get from (multiple) breaches of such a contract greatly exceeds the value that they get from compliance. But that does not mean that value does not exist, even to an extremely limited extent, and that is all that is necessary for it be good consideration in the eyes of the law.

Fergie76

Cornucopia wrote: »

Err... no.

The whole point is that the PPCs are denied by law the two most obvious means to police car parks - clamping and removal.

In the absence of those options, the question is, what is the lawfulness of their third option, penalty charges?

No, by managing, I mean feet on ground, directing traffic to the parking space, stopping people before they leave the premises etc.