Need a little help prof of losses.

chrisjose1913

So i have had a rebuf reply from armtrac it's said


"In regards to Genuine Pre Estimate of Loss (GPEOL). Although we have enclosed this with our previous evidence pack - Our terms and conditions are clearly advertised on the Warning Signs, these signs are displayed at the entrance and throughout this parking location informing drivers this is Private Property where parking restrictions are in place and they make it clear that a Parking Charge Notice of £100 will be issued if a breach occurs; if the claim is an agreed contractual term/breach then the Appellant has agreed to pay and Armtrac Security Services does not have to show loss. Recent case law has made it clear that loss is only relevant where the Operator claims an amount that is unconscionable. As the amounts claimed here are similar to those considered appropriate in court, the level of cost Armtrac Security Services has suffered is irrelevant."

I need a response

hoohoo

It doesnt really matter. As this is the IPC, the operator can spout whatever guff they like.

Captain_Krunch

hoohoo wrote: »

It doesnt really matter. As this is the IPC, the operator can spout whatever guff they like.

Not so, these will be the last of their BPA tickets so the question is valid.

neil.net

I'm not sure Armtrac understand the principles of case law, in order for a previous case to be relevant it must be a case where the facts/details of the case are somewhat similar to the current case in question - simply stating that case law has proved "XYZ" isn't enough, whether the charges are similar or not. Have they said what case? I'm reading between the lines here and am thinking it's the PE v Beavis appeal.

If it is the Beavis appeal, then they have mis-read something:

...loss is only relevant where the Operator claims an amount that is unconscionable.

this point applies to distinguishing whether a charge is a penalty or a claim for damages (damages by nature are based on losses) - it could be considered a penalty if the charge is "extravagant and unconscionable in comparison to the greatest conceivable loss". If it is "unconscionable..." then it's a penalty (and unenforceable), if it's not "unconscionable..." then it would be damages which would normally be based on losses. The original Beavis case allowed commercial justification, but it would be worth challenging such justification if the points in your case are different to the original Beavis Case.

They state it is a contractual charge, but then state it applies to a breach - if it is for breach of terms/contract, this would normally be for damages/losses. Do you have the wording of the signs?

Captain_Krunch

This could be a ticket from before their move to the IPC so the question is valid.

chrisjose1913

Yes they were a bpa member at the time. the PPC pack even had BPA code of practice. The claim is also for breach of contract.

chrisjose1913

neil.net wrote: »

I'm not sure Armtrac understand the principles of case law, in order for a previous case to be relevant it must be a case where the facts/details of the case are somewhat similar to the current case in question - simply stating that case law has proved "XYZ" isn't enough, whether the charges are similar or not. Have they said what case? I'm reading between the lines here and am thinking it's the PE v Beavis appeal.

If it is the Beavis appeal, then they have mis-read something: this point applies to distinguishing whether a charge is a penalty or a claim for damages (damages by nature are based on losses) - it could be considered a penalty if the charge is "extravagant and unconscionable in comparison to the greatest conceivable loss". If it is "unconscionable..." then it's a penalty (and unenforceable), if it's not "unconscionable..." then it would be damages which would normally be based on losses. The original Beavis case allowed commercial justification, but it would be worth challenging such justification if the points in your case are different to the original Beavis Case.

They state it is a contractual charge, but then state it applies to a breach - if it is for breach of terms/contract, this would normally be for damages/losses. Do you have the wording of the signs?

neil.net

Yeah, I'd say breach:

FAILURE TO COMPLY WITH THE TERMS AND CONDITIONS

Technics

I note that POPLA have removed the previous SBV v KMJ adjudication from the "Key case" page on their website and replaced it with the CoA judgement. It would seem they intend to treat the new judgement as precedent for future appeals they consider.

neil.net

Yeah, I noticed that too. Whilst I appreciate it has a big impact, the appeal only relates to whether or not the charges are penalties. The original case ruled on the charges being commercially justifiable, but there were very particularly reasons (rightly or wrongly) for the judges decision. Appeals and court cases can be in relation to so much more, I thought a key case should cover a variety of aspects.

Northlakes

From my reading and understanding of the CofA judgement I think the Beavis ruling was case and contract specific (although PPC's will extract from the judgement what they wish to read).

PE was paying the landowner a fixed amount per month to exercise the right to issue PCN's therefore there would have been a loss to the BA pension fund if they were unable to collect these sums.

Unless the PPC was paying the landowner for this right (you would need to see sight of the contract) there would no loss to the landowner or them, therefore any sum claimed must fall within a GPEOL. Any amount above this is considered a penalty and not enforceable.

Others with a more legal background may be able to give their thoughts, but in any case the ruling is not final. The judgment will be subject to an appeal to the Supreme Court.