"Not genuine pre-estimate of loss" is still a strong argument

bargepole

TDA wrote: »

I'd accept that there may be an argument that it doesn't apply to P&D car parks, but if £85 is not extravagant and unconscionable even where the courts have accepted there was no direct loss whatsoever, how can anyone hope to successfully argue that it is extravagant and unconscionable where there is a direct loss. Similar public policy considerations apply as for any other contravention of parking regulations...

The argument would be that, in the judgment, the charge was deemed necessary as a deterrent to prevent motorists abusing the free parking facility, and clogging up the car park, preventing other customers from using the spaces.


In a car park for which parking is paid for at an hourly rate, no such deterrent is necessary. You park for an hour, you pay for an hour. If you want to stay for six hours, you pay for six hours.


It's a similar situation to staying in a hotel: if you stayed for two nights but only paid for one, the hotel can legally pursue you for the unpaid amount of one night's stay (plus costs), they can't suddenly decide that there's also a charge of 10x or 20x the room rate - that would clearly be held to be a penalty in any litigation.

The_Deep

It's a similar situation to staying in a hotel: if you stayed for two nights but only paid for one, the hotel can legally pursue you for the unpaid amount of one night's stay (plus costs), they can't suddenly decide that there's also a charge of 10x or 20x the room rate - that would clearly be held to be a penalty in any litigation.

Excellent comparison

Shell2015

Must agree with The Deep, that was a fantastic comparison bargepole.

Sorry for setting off what appears to be a rather involved discussion by the way.

So what I am getting is that really no one is 100% sure and this needs to go before a few courts to see which way it swings. I wonder if any of the PPC's are willing to try and push this at court yet, though I suppose most court cases are going to be put on hold once the SC appeal papers go through.

Is there anything to be said for the argument that council penalty charges are lower so anything above them is unenforcible?

I recall this being mentioned in the original Beavis case but it seemed Judge Maloney was unaware of the actual council charges for overstay. However following the CoA judgement it sounds like they can pretty much ignore this regardless now (may have just answered that myself).

Guys_Dad

Not an excellent comparison, I am afraid. If the hotel had a sign up saying that if you exceeded your stay you would be charged a stated sum, then it would be an excellent comparison, but a hidden, sprung charge not previously advised can not be considered in the same bracket as a displayed penalty charge.

Castle

Shell2015 wrote: »

Is there anything to be said for the argument that council penalty charges are lower so anything above them is unenforcible?

So how much do councils charge for "leaving site"?

TDA

bargepole wrote: »

It's a similar situation to staying in a hotel: if you stayed for two nights but only paid for one, the hotel can legally pursue you for the unpaid amount of one night's stay (plus costs), they can't suddenly decide that there's also a charge of 10x or 20x the room rate - that would clearly be held to be a penalty in any litigation.

Perhaps but that does not address the point raised above which distinguishes the P&D example, namely that a nights stay at a hotel would quite possibly be financially worth pursuing (a factor the importance of which was highlighted in the judgment as relevant), 4 or 5 quid for a P&D wouldn't.

Why would anyone bother paying for a P&D ticket when they know that the absolute worst that could happen if they get caught out is that they have to pay the same base rate?

In any event do you not have to pay for the hotel room before they hand you the key? It is not possible to make use of the 'service' without paying as it is in the car park scenario. I also doubt they'd have much trouble getting you kicked out if you tried to stay an entire extra night!

It seems to me that the example is far from analogous.

I'm not saying that a Court would definitely not hold that the judgment did not apply to P&D tickets, merely suggesting that it is far from clear cut. It is fairly clear from the influence of policy on the decision that the court don't want to see parking facilities abused.

They focused on the problem caused by overstays, and rightly so given that that was at issue on the facts, but that does not necessarily mean that other abuse would not cause them similar concern. Frankly, they seem content for parking operators to mirror councils in both what they issue for, and the amounts that they charge (notwithstanding the question of whether they were misled about the amount of LA charges in the area).

Shell2015

Castle wrote: »

So how much do councils charge for "leaving site"?

I would 'assume' they do not have a penalty for that in most cases?

Though, my point was more aimed at situations where the council have the same or comparable contravention.
For example say the local council charge £25 if paid early for parking without displaying a P&D ticket, £50 if paid later. PPC charges are in most cases easily double that.


However as I also said it might be a moot point since the CoA seemed to ignore that part of the original Judgment anyhow.

misterbarlow

The_Deep wrote: »

how can they even claim any loss in the first place if no charge is ever even made to park there by them to start with!!

They are not claiming for a loss, GPEOL has gone out of the window, They are claiming for a commercially justified penalty for being there when you should not be, (trespass)?

Well for my case, I sent them the template, and their rejection was accompanied by a two page letter outlining their GPEOL for issuing the charge..

bargepole

TDA wrote: »

In any event do you not have to pay for the hotel room before they hand you the key to your room? It is not possible to make use of the 'service' without paying as it is in the car park scenario. I also doubt they'd have much trouble getting you kicked out if you tried to stay an entire extra night!

Fair point, most large hotels will put a marker on your card when you check in. Perhaps a seaside B&B where you were paying cash might be a better example.

TDA wrote: »

I'm not saying that a Court would definitely not hold that the judgment did not apply to P&D tickets, merely suggesting that it is far from clear cut. It is fairly clear from the influence of policy on the decision that the court don't want to see parking facilities abused.

Agreed that it is far from clear cut, and we will probably see widely differing interpretations from different District Judges in different courts. It can also perhaps be argued that the public policy considerations might not apply in the case of an underpayment in a P&D car park, depending on the reasons for the underpayment. Most cases we come across are not deliberate evasion of the fee, but arise through ambiguous tariffs on the signage, failures of the payment machines, errors in entering registration numbers, and various others.

salmosalaris

TDA wrote: »

My reading of the judgment is that the courts have framed the test of a penalty as whether it is extravagant and unconscionable and basically said that in the context of parking it's not. Whether the charge is a genuine pre-estimate of loss is indicative (more so in the usual commercial context) but it is not decisive. It is one factor to be considered among others such as, in this case, public policy considerations.

I'd accept that there may be an argument that it doesn't apply to P&D car parks, but if £85 is not extravagant and unconscionable even where the courts have accepted there was no direct loss whatsoever, how can anyone hope to successfully argue that it is extravagant and unconscionable where there is a direct loss. Similar public policy considerations apply as for any other contravention of parking regulations.

Crucially, non-payment of £3 is precisely an example of a figure that, where recovery to be limited to that loss alone, which would not be financially worth pursuing in the courts. This reflects the judges view that, in the context, the amount charged would need to be a figure worth pursuing.

To be honest, it makes sense. If all you can claim for parking from those who don't buy a ticket is the amount they should have paid no one would ever buy a pay & display ticket ever again. Why bother? Odds are you'll get away with it (and thus have free parking) and if you don't, all you'd have to pay is what was due in the first place.

I'm sorry I can't agree with you . The judgment centres on the fact that the contract in Beavis is non financial and designed to deter overstaying and maintain space availability for the good of the landowner , businesses and other motorists .
In the case of paid parking where that vehicle was welcome to park for a fee the only possible effect is loss of the parking revenue . The contract is obviously financial and surely subject to the same judgment re penalties or unfair terms as any other contract . Parking isn't that special !