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Am I missing something? r.e Beavis case
Azb123
Posts: 14 Forumite
Hi,
I'm new to posting on this forum but have, like most, received a PCN from ParkingEye.
To cut a long story short I have submitted my appeal to POPLA. In spite of this I have just received an email from ParkingEye which contains the evidence that they have sent to POPLA. In one of the segments of this document attached (their evidence) they have included a 'further information' bit which states that my argument that I do not believe that the Parking Charge amount is a pre-estimation of loss is now invalid because of the following:
Please note that HHJ Moloney QC presided over a court hearing (ParkingEye v Barry Beavis and Martin Wardley [2014]) regarding the amount of ParkingEye’s
Parking Charges and found that a Parking Charge of £85 could not be considered an unenforceable penalty. An appeal was subsequently lodged by the First Defendant and the matter was heard by the Court of Appeal on 24 February 2015. The Court of Appeal handed down its Judgment on 24 April 2015, and found in ParkingEye’s favour on all grounds.
Addressing the issue of pre-estimate of loss and commercial justification, Lord Justice Moore-Bick agreed with HHJ Moloney QC’s findings, and opined at paragraph 27 that: “The application in a case of this kind of a rule based on a simple comparison between the amount of the payment and the direct loss suffered by the innocent party is inappropriate.”
In agreement with Moore-Bick LJ, and distinguishing the contract formed between ParkingEye and the motorist from a commercial contract, Sir Timothy Lloyd states at paragraph 47 that, “[…] the principles underlying the doctrine of penalty ought not to strike down a provision of this kind, in relation to a contract such as we are concerned with, merely on the basis that the contractual provision is disincentive, or deterrent, against overstaying”.
In terms of the amount of the Parking Charge, both the first instance and Court of Appeal Judgments, along with the BPA Code of Conduct at paragraph 19.5, support the level of Parking Charge issued by ParkingEye. At paragraph 7.13(i) HHJ Moloney QC considers the charges issued by local authorities, and notes that these charge amounts can be up to £105. Please note that as these are fines, backed by statutory authority, the costs of enforcing these charges are considerably lower than those encountered by a private parking company.
In addition, Moore-Bick LJ states at paragraph 25 that, “although it would be in theory be possible to charge motorists a much more modest amount for overstaying the free period, it would be wholly uneconomic to enforce such charges by taking legal proceedings against them” and he concludes at paragraph 26, as outlined above, that, “it [the charge] was neither improper in its purpose nor manifestly excessive in amount, having regard to the level of charges imposed by local authorities and others for overstaying in public car parks”.
Furthermore, at paragraph 28 of the Judgment, Moore-Bick LJ found that: “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, […] it is difficult to see on what basis it can be said that the charges which are not in themselves grossly unreasonable, are to be treated as unenforceable at common law.”
ParkingEye submits that the Court of Appeal’s Judgment provides much needed clarity to motorists and the Parking Industry, and delivers a binding precedent to support the position that our Parking Charges are fair, reasonable and legally enforceable.
I apologise this is all about long winded. I thought that the Beavis case was still ongoing and that no decision had been succumbed to?
I'm new to posting on this forum but have, like most, received a PCN from ParkingEye.
To cut a long story short I have submitted my appeal to POPLA. In spite of this I have just received an email from ParkingEye which contains the evidence that they have sent to POPLA. In one of the segments of this document attached (their evidence) they have included a 'further information' bit which states that my argument that I do not believe that the Parking Charge amount is a pre-estimation of loss is now invalid because of the following:
Please note that HHJ Moloney QC presided over a court hearing (ParkingEye v Barry Beavis and Martin Wardley [2014]) regarding the amount of ParkingEye’s
Parking Charges and found that a Parking Charge of £85 could not be considered an unenforceable penalty. An appeal was subsequently lodged by the First Defendant and the matter was heard by the Court of Appeal on 24 February 2015. The Court of Appeal handed down its Judgment on 24 April 2015, and found in ParkingEye’s favour on all grounds.
Addressing the issue of pre-estimate of loss and commercial justification, Lord Justice Moore-Bick agreed with HHJ Moloney QC’s findings, and opined at paragraph 27 that: “The application in a case of this kind of a rule based on a simple comparison between the amount of the payment and the direct loss suffered by the innocent party is inappropriate.”
In agreement with Moore-Bick LJ, and distinguishing the contract formed between ParkingEye and the motorist from a commercial contract, Sir Timothy Lloyd states at paragraph 47 that, “[…] the principles underlying the doctrine of penalty ought not to strike down a provision of this kind, in relation to a contract such as we are concerned with, merely on the basis that the contractual provision is disincentive, or deterrent, against overstaying”.
In terms of the amount of the Parking Charge, both the first instance and Court of Appeal Judgments, along with the BPA Code of Conduct at paragraph 19.5, support the level of Parking Charge issued by ParkingEye. At paragraph 7.13(i) HHJ Moloney QC considers the charges issued by local authorities, and notes that these charge amounts can be up to £105. Please note that as these are fines, backed by statutory authority, the costs of enforcing these charges are considerably lower than those encountered by a private parking company.
In addition, Moore-Bick LJ states at paragraph 25 that, “although it would be in theory be possible to charge motorists a much more modest amount for overstaying the free period, it would be wholly uneconomic to enforce such charges by taking legal proceedings against them” and he concludes at paragraph 26, as outlined above, that, “it [the charge] was neither improper in its purpose nor manifestly excessive in amount, having regard to the level of charges imposed by local authorities and others for overstaying in public car parks”.
Furthermore, at paragraph 28 of the Judgment, Moore-Bick LJ found that: “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, […] it is difficult to see on what basis it can be said that the charges which are not in themselves grossly unreasonable, are to be treated as unenforceable at common law.”
ParkingEye submits that the Court of Appeal’s Judgment provides much needed clarity to motorists and the Parking Industry, and delivers a binding precedent to support the position that our Parking Charges are fair, reasonable and legally enforceable.
I apologise this is all about long winded. I thought that the Beavis case was still ongoing and that no decision had been succumbed to?
0
Comments
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Funny that they haven't mentioned that the case has been appealed to the Supreme Court, whose findings are awaited. I wonder why? Is it because they are deliberately trying to hoodwink and frighten people into paying? Surely not!
As regards:
Complete and utter bullocks. http://parking-prankster.blogspot.co.uk/2015/08/norman-baker-letter-confirms-parliament.html“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 recoverable0 -
Who would have thought it? A PPC cherry-picking the bits of judgments they like whilst studiously ignoring the bits they don't. I can't believe such companies (who after all have only one intention it seems - to empty your pockets) would ever stoop so low?
Welcome to the word of the upstanding PPC.My very sincere apologies for those hoping to request off-board assistance but I am now so inundated with requests that in order to do justice to those "already in the system" I am no longer accepting PM's and am unlikely to do so for the foreseeable future (August 2016).
For those seeking more detailed advice and guidance regarding small claims cases arising from private parking issues I recommend that you visit the Private Parking forum on PePiPoo.com0 -
Devil's Advocate time again, they will state that until a Supreme Court rules on this then the Court of Appeal judgement is in play.Je Suis Cecil.0
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And strictly speaking, they are correct, the Appeal Court judgment is the law unless and until the Supreme Court rules otherwise.Devil's Advocate time again, they will state that until a Supreme Court rules on this then the Court of Appeal judgement is in play.
But POPLA, and the majority of County Courts, are now staying cases until the SC judgment is handed down, because they recognise the public importance and significance of the case.
We even had one case last week where it was PE requesting a stay of proceedings until the SC ruling is given, very unusual, not sure why they did that.
I have been providing assistance, including Lay Representation at Court hearings (current score: won 57, lost 14), to defendants in parking cases for over 5 years. I have an LLB (Hons) degree, and have a Graduate Diploma in Civil Litigation from CILEx. However, any advice given on these forums by me is NOT formal legal advice, and I accept no liability for its accuracy.0 -
Basically what I thought it was, a scare tactic and utter bullocks the majority of it, thanks for your replies fellas.
Also is this the norm for people to receive these emails from ParkingEye explaining what they are about to submit to POPLA?0 -
Yes it is.Je Suis Cecil.0
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And strictly speaking, they are correct, the Appeal Court judgment is the law unless and until the Supreme Court rules otherwise.
But POPLA, and the majority of County Courts, are now staying cases until the SC judgment is handed down, because they recognise the public importance and significance of the case.
We even had one case last week where it was PE requesting a stay of proceedings until the SC ruling is given, very unusual, not sure why they did that.
Had one where both parties asked for a stay and were refused. They went to court and the judge stayed it !0 -
in who's car park was thisFrom the Plain Language Commission:
"The BPA has surely become one of the most socially dangerous organisations in the UK"0
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