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

TDA

salmosalaris wrote: »

So judges decide on what they feel is right regardless of the law ?

Normally not quite as extreme as that, but what they consider justice obviously factors into their decision. They tend not to go so far as to ignore the law, but they may well bend it on occassion!

I personally think the reason they brought up the financial transaction aspect was to emphasise the difference between the cases that had been considered in the argument (Murray v Leisureplay; Makdessi v Cavendish, etc.) and the case that was under appeal, rather than to suggest that the rule would not apply to P&D-related charges.

Guys_Dad

Where I see the crux is actually in paragraph 28 of the judgement

I agree with the judge that some support for the view that charges of this kind are not to be regarded as unenforceable can be found in the terms of section 56 and Schedule 4 of the Protection of Freedoms Act 2012. Paragraph 4 of Schedule 4 gives operators of private car parks a right to recover unpaid parking charges from the registered keepers of vehicles.

“Parking charges”, however described, are defined to include both sums in the nature of fees or charges arising under the terms of a contract and sums in the nature of damages arising as a result of a trespass or other tort, but in the latter case adequate notice must have been given to drivers when using the car park in question (see generally paragraph 2 of the Schedule). These provisions strongly support the conclusion that Parliament considered it to be in the public interest that parking charges of the kind now under consideration should be recoverable, provided that they had been brought clearly to the attention of the motorist at the time he made use of the car park.

The CoA, therefore, don't think the judiciary are making new law on the hoof, but interpreting the "will of parliament". If that was not the will when the legislation was passed, then what was the purpose of section 4? That seems to be their argument that will need to be addressed by Mr Beavis' next barristers.

OrdinaryPerson

Guys_Dad wrote: »

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.

In the case of LCP, their Terms and Conditions says that there is a charge for breaking the contract, but it does not say how much this charge is. In cases like these, I think bargepole's analogy applies. Perhaps it could be modified to says that the hotel says there is a charge for underpayment which of course also includes non payment, but it does not say what this charge is. I think in this case the hotel can only claim the underpayment plus the costs for recovery.

I think the Beavis case is very different from this. The original judgement is based on the concept of "commercially justified", and the £85 is "commercially justified" due to the nature of the contract between PE and the land owner. If PE's charge cannot exceed GPEOL then it cannot make any profit at all from people overstaying, while it has no other source of income, which means its operation will not be commercially viable, which means it won't be able to manage the car park in the long term. So the judge allows it to charge more than GPEOL. BTW, that in itself is not THAT unreasonable. What's unreasonable is the judge allowed PE to charge for so much more than GPEOL.

Coming back to pay & display car parks, escpecially ones where the operator owns the lease, as in the case of LCP. The conventional law of requiring charges to not exceed GPEOL also means that the operator cannot make a profit from people not paying or underpaying. However, there is a BIG difference with PE in that this does not make the operator's business unviable. This is because the operator's normal business is to get an income from normal pay & display payments. It does not have to rely on making a profit from people not paying or underpaying.to survive. So the commerial justification for charging more than GPEOL does not apply.

OrdinaryPerson

I'm going to go off topic here.

The problem with PE's contract with the land owner it is so loaded in favour of the land owner. The land owner doesn't have to worry about managing the car park, AND it is getting money from PE. Of course someone somewhere will have to pay for this, AND pay for PE's profits, and it all falls on the head of the people who overstay the free 2 hours.

The original judge justifies the view that the £85 charge is not extravagant or unconsionable by saying that PE's profit is not extravagant. But this is flawed because he ignored the fact that PE has chosen to sign a contract that is loaded extravagantly in favour of the land owner. It has chosen to bear all the costs of operating the car park AND to pay the car park owner a fee. This is extravagant.

Imagine someones who pays you for looking after your house. That is extravagant.

The fact that its profit is not extravagant is because it is extravagant with the car park owner, not because its charge of £85 is not extravagant. But the original judge made the wrong conclusion that the charge of £85 is not extravagant.

If the car park owner pays PE for managing the car park, then PE's profit will be higher and might well be extravagant.

In the end it is still ripping off the people who overstay the 2 hours, it's just that PE has passed on the some profit from this rip off to the car park owner first, and the judge came a long, saw what's left, ignored what PE had given away, said that it's not extravagant, and concluded that the £85 is not extravagant.

OrdinaryPerson

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?

Your question is not based on correct facts.

If someone doesn't pay for a P&D ticket, say £3, then they should have to pay

£3 for unpaid ticket
£5-10 for DVLA look up fee, cost in sending out NTK
£10-20 estimated cost in recovering the two items above

So the total they should have to pay is about £25, which is worth prusuing. Don't forget that the estimated cost for pursuing this £25 has been rolled into it.

And having to pay £25 is enough deterent for people to buy the £3 ticket.

I don't see any convincing argument to say that it has to be £100 instead of £25 to deter, or it has to be £100 instead of £25 to be worth pursuing. If on average the cost to pursue is £15 then £25 is worth pursuing.

I think the judges have been very sloppy.

Shell2015

OrdinaryPerson wrote: »

Your question is not based on correct facts.

If someone doesn't pay for a P&D ticket, say £3, then they should have to pay

£3 for unpaid ticket
£5-10 for DVLA look up fee, cost in sending out NTK
£10-20 estimated cost in recovering the two items above

So the total they should have to pay is about £25, which is worth prusuing. Don't forget that the estimated cost for pursuing this £25 has been rolled into it.

And having to pay £25 is enough deterent for people to buy the £3 ticket.

I don't see any convincing argument to say that it has to be £100 instead of £25 to deter, or it has to be £100 instead of £25 to be worth pursuing. If on average the cost to pursue is £15 then £25 is worth pursuing.

I think the judges have been very sloppy.

I think it is also quite safe to say that people would be much more likely to pay up without a fuss in this situation.

£20-25 at NTK stage and say £15 for payment upon getting the windscreen PCN would be reasonable considering at that stage the costs are less.

Frankly in most situations unless there had been a significant error in the issue of the PCN a lot of people would pay £15 just to make it go away. I think the PPC's missed a trick there, all the £85-100 charges have done, is push motorists to the point they are pushing back.

Perhaps I am wrong but it seems to me with the government consultation they are heading fast towards their demise much as they did previously as clampers.

TDA

Shell2015 wrote: »

I think it is also quite safe to say that people would be much more likely to pay up without a fuss in this situation.

£20-25 at NTK stage and say £15 for payment upon getting the windscreen PCN would be reasonable considering at that stage the costs are less.

Right so, in other words, it's not a very effective deterrent?

If it was only £25, reduced to £15 I'd quite possibly chance it. I certainly chance it for £70, reduced to £35 for parking on the double yellows by the office occasionally.

Shell2015

TDA wrote: »

Right so, in other words, it's not a very effective deterrent?

If it was only £25, reduced to £15 I'd quite possibly chance it. I certainly chance it for £70, reduced to £35 for parking on the double yellows by the office occasionally.

Not sure how you got that it was not still a deterrent from my post... because I used the word reasonable perhaps?

By reasonable I mean it is in line with GPEOL while still being a punishment/deterrent for overstaying/not paying.

The idea in my mind is to deter people from committing the same mistake more than once without making them never want to use the car park or associated facilities again. Oh and without pushing them so much they push back and manage to start a government consultation into my practices.

Let’s say I park somewhere and in error don't pay, or overstay and I am issued a £15 charge for what should have cost £3. I pay it within 14 days it goes away; I learn my lesson move on.

I don't pay within 14 days the price goes up to £25 they issue an NTK and I have to pay or risk court. Let’s be honest most courts (unless the charge was issued at fault) will see £25 as a reasonable GPEOL and make you pay that plus the costs.

For me personally I feel paying £15 for what should have in reality cost me £1 for parking for 2 hours (£3 would be all day) is still a painful lesson. At the end of the day perhaps this depends on how much spare cash you have, I could not possibly justify £15 for parking ‘occasionally’. Cerainly not £35.

Perhaps TDA you are rich enough like the judges to find £35/85 pocket change.

Again the £15-25 is specific to a situation where you were supposed to pay £3 for 24 hours of parking. The value would have to shift if you are talking about a more costly area to park aka London.


What we were basically talking about is GEPOL based charges, which for most people are a deterrent.

TDA

Shell2015 wrote: »

Not sure how you got that it was not still a deterrent from my post... because I used the word reasonable perhaps?

By reasonable I mean it is in line with GPEOL while still being a punishment/deterrent for overstaying/not paying.

The idea in my mind is to deter people from committing the same mistake more than once without making them never want to use the car park or associated facilities again. Oh and without pushing them so much they push back and manage to start a government consultation into my practices.

Let’s say I park somewhere and in error don't pay, or overstay and I am issued a £15 charge for what should have cost £3. I pay it within 14 days it goes away; I learn my lesson move on.

I don't pay within 14 days the price goes up to £25 they issue an NTK and I have to pay or risk court. Let’s be honest most courts (unless the charge was issued at fault) will see £25 as a reasonable GPEOL and make you pay that plus the costs.

For me personally I feel paying £15 for what should have in reality cost me £1 for parking for 2 hours (£3 would be all day) is still a painful lesson. At the end of the day perhaps this depends on how much spare cash you have, I could not possibly justify £15 for parking ‘occasionally’. Cerainly not £35.

Perhaps TDA you are rich enough like the judges to find £35/85 pocket change.

Again the £15-25 is specific to a situation where you were supposed to pay £3 for 24 hours of parking. The value would have to shift if you are talking about a more costly area to park aka London.


What we were basically talking about is GEPOL based charges, which for most people are a deterrent.

My point was that if people are more than happy to pay £15 it won't have a particularly great deterrent value?

I understand your point about it being a way of preventing someone from making the same mistake again without being particularly excessive in doing so. I think that would probably work very well for those motorists who have just genuinely made a mistake while doing their weekly shop for instance.

Where it probably won't be so effective is for those motorists who are actually abusing the car park for other purposes, as the risk vs reward won't be satisfied.

I used to park in a local car park to commute to London and rather than pay the £10 all day-parking charge it was more cost-effective (though admittedly morally wrong) to not pay and just settle the tickets as and when they came, and that was when the cost of the ticket was £60! If it was only £15 for an infraction (even where all day parking was only £3-5) it would have been even more so.

But perhaps you are right and I am just financially out of touch

Shell2015

TDA wrote: »

My point was that if people are more than happy to pay £15 it won't have a particularly great deterrent value?

I understand your point about it being a way of preventing someone from making the same mistake again without being particularly excessive in doing so. I think that would probably work very well for those motorists who have just genuinely made a mistake while doing their weekly shop for instance.

Where it probably won't be so effective is for those motorists who are actually abusing the car park for other purposes, as the risk vs reward won't be satisfied.

I used to park in a local car park to commute to London and rather than pay the £10 all day-parking charge it was more cost-effective (though admittedly morally wrong) to not pay and just settle the tickets as and when they came, and that was when the cost of the ticket was £60! If it was only £15 for an infraction (even where all day parking was only £3-5) it would have been even more so.

But perhaps you are right and I am just financially out of touch

Not sure I used the term "happy to pay it". A reasonable charge does not have to be something I am happy about, what would make me happy? If they paid me £100 for parking correctly!

Personally I would never be happy about it, I would just be more likely to realise it was not worth the time and expense of fighting it.

(Disclaimer: I suppose at the same time, in fairness we tend to fight a lot of these current cases because they have been issued incorrectly, not just based on their cost. However for arguments sake I will assume we are ignoring that fact for now.)

People are in general moral and we run on a legal system of innocent until proven guilty. Throwing out charges of £100 at everyone because a few bad eggs deserve it does not really work in my opinion.

However I see your point on repeat offenders or people who abuse the system (like you TDA, naughty naughty). So then you need something in place like a rising costs system where for each additional contravention you pay more.

e.g.:
First offence £15 (A bit like a GPEOL based Warning)
Second offence £30
Third offence £45-60
Fourth offence onwards £80

Could even throw in something like the offence tally gets reset after 6 months to allow for potential future honest mistakes?

This punishes those who abuse the system while not upsetting the majority of motorists who make an honest mistake.

A reasonable company would also respond to people in such a way as they would accept mitigating circumstances for a first offence rather than being aggressive.

--- Again the above is assuming the PPC's are running a reasonable and honest system themselves (so yes its a dream world) ---

Sorry this has side tracked the thread a bit.

Back on topic, I would be curious to know how certain parking appeals companies are viewing GPEOL on P&D carparks. Following the CoA judgement of course.