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

salmosalaris

TDA wrote: »

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).

Ok I will give another analogy .
I visit a pub for a meal . I order a main course and pay for it . I then decide I'll have a dessert , the waitress takes my order at the table and serves it . I leave the pub completely forgetting to pay for the dessert .
Do I owe the cost of the dessert £5-00 or a penalty charge of £100 for failing to make payment before leaving simply because it's not worth chasing the £5-00 in court should I refuse to pay . And what about if I offer to pay the inadvertently forgotten charge ? Do I still owe £100 ?

Guys_Dad

salmosalaris wrote: »

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 !

Would that be correct if there was a time limit on parking? In other words, if it was, say, £1 for up to 2 hours as some supermarkets had, but no parking whatsoever beyond? I can see the argument for a variable stay car park, but I am sure that the argument about a commercially acceptable deterrent against overstayers could be applied by a court as well.

However, where I do think GPEOL is still king is where there is no invitation to park and, in fact, a motorist is a trespasser such as parking when premises are closed and no parking is allowed.

salmosalaris

Well if you overstay a maximum period of parking , whether paid or not , it would seem the Beavis judgment could suggest the charge is enforceable because the same arguments would surely apply ? However the original contract would have been a financial one .
The difference comes when the vehicle is welcome to park beyond the time originally paid for providing payment is made . In that case the PPC charge is purely a deterrent to non payment and surely therefore a penalty , especially as there is an easily quantifiable loss .

TDA

salmosalaris wrote: »

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 !

I would suggest that the judgment almost entirely centres on policy issues. The judges clearly consider deterrence of parking abuse through such charges desirable for society at large.

On the contrary, I would suggest that Parking is in fact quite special. There are very few contractual scenarios anything like it. Very few contracts exist where the sole (purported) purpose is to deter breach.

salmosalaris wrote: »

Ok I will give another analogy .
I visit a pub for a meal . I order a main course and pay for it . I then decide I'll have a dessert , the waitress takes my order at the table and serves it . I leave the pub completely forgetting to pay for the dessert .
Do I owe the cost of the dessert £5-00 or a penalty charge of £100 for failing to make payment before leaving simply because it's not worth chasing the £5-00 in court should I refuse to pay . And what about if I offer to pay the inadvertently forgotten charge ? Do I still owe £100 ?

A better analogy certainly, but do the same policy considerations readily apply where there is not the same level of default as there is with P&D tickets. The scenario you describe is hardly commonplace, and that's ignoring the fact that if you get caught running out on a restaurant without paying you might be charged with a crime, the punishment for which somewhat outweighs the £5!

The point is, you don't need a deterrent of a £100 penalty to prevent people running out of restaurants without paying. You arguably (seemingly in their Lordships view) might need one to prevent people not paying to park.

salmosalaris

I think you are reading more into the judgment than was there .
With the greatest respect the CoA know full well there was no contract anyway but have then contrived an explanation of how Mr Beavis is contractually bound . This is pure public policy but
A. Is that the job of the courts ?
B. Have the unintented consequences been considered ?
The judgment made specific reference to the fact this was not a financial contract and that if it was the usual rules would apply . Would be interesting to stick a 50p underpayment in front of them and how they could then justify a similar charge
Plus re your crime aspect
How is deliberately underpaying a parking tariff any different ?
And I stated it was an inadvertent error and that payment was offered as soon as the error was realised
Personally I think the reference to non financial contracs was made because the CoA realised in a paid parking scenario their reasoning could not apply

TDA

salmosalaris wrote: »

I think you are reading more into the judgment than was there .
With the greatest respect the CoA know full well there was no contract anyway but have then contrived an explanation of how Mr Beavis is contractually bound . This is pure public policy but
A. Is that the job of the courts ?

Yes, often, although less commonly in contract than in, say, tort.

salmosalaris wrote: »

Plus re your crime aspect
How is deliberately underpaying a parking tariff any different ?
And I stated it was an inadvertent error and that payment was offered as soon as the error was realised
Personally I think the reference to non financial contracs was made because the CoA realised in a paid parking scenario their reasoning could not apply

I don't think it is any different in principal, what is different is that you'll never see anyone being charged under the car parking scenario where it is very difficult to argue there was intent to deprive given it is not always abundantly clear that payment is required. Hardly the case when you order food from a restaurant, and I would be interested to find out how often the 'I just forgot to pay' excuse would succeed.

salmosalaris

TDA wrote: »

I would suggest that the judgment almost entirely centres on policy issues. The judges clearly consider deterrence of parking abuse through such charges desirable for society at large.

On the contrary, I would suggest that Parking is in fact quite special. There are very few contractual scenarios anything like it. Very few contracts exist where the sole (purported) purpose is to deter breach.



A better analogy certainly, but do the same policy considerations readily apply where there is not the same level of default as there is with P&D tickets. The scenario you describe is hardly commonplace, and that's ignoring the fact that if you get caught running out on a restaurant without paying you might be charged with a crime, the punishment for which somewhat outweighs the £5!

The point is, you don't need a deterrent of a £100 penalty to prevent people running out of restaurants without paying. You arguably (seemingly in their Lordships view) might need one to prevent people not paying to park.

On what basis do you suggest parking is quite special ? What facts do you have ? Do more people fail to pay in a P&D car park than book doctor's appointments and fail to show up , book a table at a restaurant and fail to show , be late with their payments for all sorts of services ??
I suggest you are purely summising without evidence .

salmosalaris

TDA wrote: »

Yes, often, although less commonly in contract than in, say, tort.



I don't think it is any different in principal, what is different is that you'll never see anyone being charged under the car parking scenario where it is very difficult to argue there was intent to deprive given it is not always abundantly clear that payment is required. Hardly the case when you order food from a restaurant, and I would be interested to find out how often the 'I just forgot to pay' excuse would succeed.

I mention that scenario because I did exactly that once , rang the pub and paid for the dessert . There is absolutely no difference .
The CoA likened parking tickets to their statutory counterparts . But they are not , they are issued under contract law . If Paliament wishes to put these things on the same footing then they should do it , if not then usual contract law applies

TDA

salmosalaris wrote: »

I mention that scenario because I did exactly that once , rang the pub and paid for the dessert . There is absolutely no difference .
The CoA likened parking tickets to their statutory counterparts . But they are not , they are issued under contract law . If Paliament wishes to put these things on the same footing then they should do it , if not then usual contract law applies

And apparently in their view 'usual contract law' is that a charge is only a penalty if extravagant and unconscionable, of which public policy apparently can be a determining factor. I agree completely regarding Parliament, I've said before that they should legislate to properly regulate the industry and clarify the position regarding the level of charges, but where they have not the courts still have to make a judgement.

Personally I feel that the judges just didn't have a huge amount of time for people who make such parking transgressions, whether the contract involved a payment or not. I could very well be wrong though.

salmosalaris

TDA wrote: »

And apparently in their view 'usual contract law' is that a charge is only a penalty if extravagant and unconscionable, of which public policy apparently can be a determining factor. I agree completely regarding Parliament, I've said before that they should legislate to properly regulate the industry and clarify the position regarding the level of charges, but where they have not the courts still have to make a judgement.

Personally I feel that the judges just didn't have a huge amount of time for people who make such parking transgressions, whether the contract involved a payment or not. I could very well be wrong though.

So judges decide on what they feel is right regardless of the law ?
Oh dear , but you are absolutely correct .
The whole thing is a complete mess