ParkingEye v Beavis at the Supreme Court: What’s Happening This Week

Umkomaas

I don't think the SC has ever had a case before where sole business model of a company depended on a breaches of contract

Please do 'wrong' so I can profit, even though I am supposed to be preventing the 'doing of wrong'.

Making profit means I've failed in my commission, success means I go bust!

Northlakes

I thought the oratory skills of JdV were poor and quite disappointing for a QC of this level but I was encouraged by the Consumers Association QC who spoke with knowledge and conviction.

andy_foster

In front of a bench of lay magistrates or a jury, a slick barrister can work wonders. In front of the seven of the most senior judges in the land, slick presentation has almost no intrinsic value.

Jonathan Kirk QC was involved in the case well before someone had to make a hoax phone call to David Altaras so that the trial at first instance could be adjourned to a date when Jonathan was available. Other than a minor hiccup just after ParkingEye received a copy of the European Court of Justice's judgment in Aziz, they have broadly stuck to the same arguments throughout. Jonathan would have considered the consequences of various different constructions of the offer when HHJ Moloney QC tried to lead him by the nose to arguing that it was the price of the contract at the original trial, if not before.

John de Waal QC has only been involved in the case for a short period of time, and was ambushed with a line of argument which was entirely contrary to the position agreed between the parties.

John was no doubt mindful that he might be being lead into a trap. Moore-Bick LJ also suggested that on proper construction there was no contract for the 2 hours free parking, but went on to suggest that that somehow magically turned the clause for breach into the price of the contract.

There was potentially what some thought was an open goal - no contract with the motorist means that there can be no enforceable specified charge, leaving only damages for trespass which could only be recovered by the landowner. However, if that was the end of the matter, ParkingEye would simply amend their signs to form a contract for parking in an effectively free car park, Barry would get his £85 back and nothing else would have been settled.

How many people picked up on Jonathan trying to argue that it was inappropriate for Barry to rely on UTTCR when if ParkingEye's business model is unfair they could be prosecuted under CPUTR (assuming that any trading standards department was willing to fund such a prosecution out of their own budget)? His presentation was as slick as always, but what matters isn't how he says it, it's what he says.

jkdd77

andy_foster wrote: »

In front of a bench of lay magistrates or a jury, a slick barrister can work wonders. In front of the seven of the most senior judges in the land, slick presentation has almost no intrinsic value.

Jonathan Kirk QC was involved in the case well before someone had to make a hoax phone call to David Altaras so that the trial at first instance could be adjourned to a date when Jonathan was available. Other than a minor hiccup just after ParkingEye received a copy of the European Court of Justice's judgment in Aziz, they have broadly stuck to the same arguments throughout. Jonathan would have considered the consequences of various different constructions of the offer when HHJ Moloney QC tried to lead him by the nose to arguing that it was the price of the contract at the original trial, if not before.

John de Waal QC has only been involved in the case for a short period of time, and was ambushed with a line of argument which was entirely contrary to the position agreed between the parties.

John was no doubt mindful that he might be being lead into a trap. Moore-Bick LJ also suggested that on proper construction there was no contract for the 2 hours free parking, but went on to suggest that that somehow magically turned the clause for breach into the price of the contract.

There was potentially what some thought was an open goal - no contract with the motorist means that there can be no enforceable specified charge, leaving only damages for trespass which could only be recovered by the landowner. However, if that was the end of the matter, ParkingEye would simply amend their signs to form a contract for parking in an effectively free car park, Barry would get his £85 back and nothing else would have been settled.

How many people picked up on Jonathan trying to argue that it was inappropriate for Barry to rely on UTTCR when if ParkingEye's business model is unfair they could be prosecuted under CPUTR (assuming that any trading standards department was willing to fund such a prosecution out of their own budget)? His presentation was as slick as always, but what matters isn't how he says it, it's what he says.

Thanks for this very useful and detailed post.

In relation to your penultimate paragraph, would this really be such a bad thing, given that it is the job of Mr. Beavis's barrister to win the case by any lawful means?

Given the apparent tendency of many district judges to (wrongly) treat the existing CoA ruling as meaning that all PPC invoices are enforceable in all circumstances, it seems to me that any Supreme Court victory for Beavis, even on a technicality, would likely lead to most judges dismissing most PPC claims.

Conversely, a Supreme Court victory for PE would likely lead to most judges upholding most PPC claims, regardless of circumstances and defence presented.

In short, it's surely better in practice for motorists for Beavis to win on a technicality than to lose, and the consequences of losing are so grave for motorists that it is an almighty risk to disregard a potentially winning argument in the hope of winning on a 'better' one instead.

Northlakes

andy_foster wrote: »

How many people picked up on Jonathan trying to argue that it was inappropriate for Barry to rely on UTTCR when if ParkingEye's business model is unfair they could be prosecuted under CPUTR (assuming that any trading standards department was willing to fund such a prosecution out of their own budget)? His presentation was as slick as always, but what matters isn't how he says it, it's what he says.

Was it this part that was being referred to?

“professional diligence” means the standard of special skill and care which a trader may reasonably be expected to exercise towards consumers which is commensurate with either—



(a)

honest market practice in the trader’s field of activity, or

(b)

the general principle of good faith in the trader’s field of activity;
“ship” includes any boat and any other description of vessel used in navigation;
“trader” means any person who in relation to a commercial practice is acting for purposes relating to his business, and anyone acting in the name of or on behalf of a trader;
“transactional decision” means any decision taken by a consumer, whether it is to act or to refrain from acting, concerning—



(a)

whether, how and on what terms to purchase, make payment in whole or in part for, retain or dispose of a product; or

(b)

whether, how and on what terms to exercise a contractual right in relation to a product.
(2) In determining the effect of a commercial practice on the average consumer where the practice reaches or is addressed to a consumer or consumers account shall be taken of the material characteristics of such an average consumer including his being reasonably well informed, reasonably observant and circumspect.

Surely if there is professional diligence the 'offer' to park should be made in the light of these regulations and not rely on an after event prosecution by Trading Standards to enforce.

bazster

Castle wrote: »

The latest figure I have is 975,352 requests for the year ended 31st December 2014. The £14M turnover refers to the year ended 31 August 2013.

You're still going to get nowhere near £85M unless you suppose a preposterously low payment rate.

bazster

andy_foster wrote: »

However, if that was the end of the matter, ParkingEye would simply amend their signs to form a contract for parking in an effectively free car park, Barry would get his £85 back and nothing else would have been settled.

On the contrary I think that would be a fantastic victory for the motorist. We all know that the contractual charge model is absurd, implying as it does that you can park in disabled bays and pretty much anywhere you like really so long as you pay the charge.

Plus it would leave PE and lots of other PPC's open to a vast number of claims from people who've paid previously.

ColliesCarer

andy_foster wrote: »

.....
How many people picked up on Jonathan trying to argue that it was inappropriate for Barry to rely on UTTCR when if ParkingEye's business model is unfair they could be prosecuted under CPUTR (assuming that any trading standards department was willing to fund such a prosecution out of their own budget)? His presentation was as slick as always, but what matters isn't how he says it, it's what he says.

It was towards the end of the discussion on that topic (page 122) that Lord Hodge asked Kirk if he was saying that in relation to the challenge the Judges are facing they should assess it as if the landowner were doing that which Parking Eye do.

The transcript reports Kirk's response (122:17-18) as Yes.Yes. I want to be careful I am not accepting something with which I might find hidden trap."

But on the day I watched I picked up on Kirk's use of the word Gift in his reply. Having checked the recording (26:35 mins or so into Thursdays afternoon session), I'm pretty sure Kirk responded - "Yes. Yes. I want to be careful that I'm not accepting a gift that I might find hidden surprises, hidden trap."

Whatever form of words was used Kirk was obviously smugly pleased to be handed this "gift" by Lord Hodge.

What importance would you think assessing it as if it were the landowner has?

bazster

jkdd77 wrote: »

In short, it's surely better in practice for motorists for Beavis to win on a technicality than to lose, and the consequences of losing are so grave for motorists that it is an almighty risk to disregard a potentially winning argument in the hope of winning on a 'better' one instead.

The absence of any contract would hardly be "a technicality"!

bazster

andy_foster wrote: »

How many people picked up on Jonathan trying to argue that it was inappropriate for Barry to rely on UTTCR when if ParkingEye's business model is unfair they could be prosecuted under CPUTR (assuming that any trading standards department was willing to fund such a prosecution out of their own budget)? His presentation was as slick as always, but what matters isn't how he says it, it's what he says.

The obvious retort to that would be that Parliament acknowledged the inadequacy of prosecution under CPUTR as a remedy for consumer ills by passing the Consumer Protection (Amendment) Regulations 2014, thereby giving consumers the power to sue over CPUTR breaches the authorities fail to prosecute.