Parking eye charge notice

Umkomaas

C) Propriety interest

Proprietary - spelling.

Quick 'once over' - you need to build in a good bit about Beavis, and how it doesn't apply in a P&D car park.

Go to the newbies sticky, post #3 and look at the 2 links there to Salmosalaris' suggested inputs to demolish Beavis. Have a read and build into your appeal. Don't let it go without this, as you can be sure PE will be quoting Beavis.

Keirb99

Thanks I'll change that now.

Yes PE mentioned Beavis on the letter I received from them.

Okay I'll do that tomorrow I'll read up on it and strengthen it and post it up once I have done it.

Thankyou once again, for taking the time to read the appeal and helping me out. I'll have a look through post #3 tomorrow during the day and edit it when I get home.

Cheers.

Keirb99

Hello Unkomaas

I see you have said i need to build up the part about Beavis and how it doesn't apply in a P&D car park.. my charge has came from an ANPR car park or is that what you mean?

Coupon-mad

Was it a free car park? P&D is short for Pay and Display.

Keirb99

It is free for up to 2 hours then after that you pay by the hour, I should have paid £3 since i exceeded the 2 hours but wasn't there for longer than 3.

Coupon-mad

Keirb99 wrote: »

It is free for up to 2 hours then after that you pay by the hour, I should have paid £3 since i exceeded the 2 hours but wasn't there for longer than 3.

Interesting...PE rarely operate like that and indeed the Judges in the ParkingEye v Beavis case more or less decided that sort of operation wouldn't work as the charge after the free licence would need to be high enough to be worth suing over (ridiculous!).

Have a look at this POPLA example, has what you need in some respects:

https://forums.moneysavingexpert.com/discussion/comment/70106225#Comment_70106225

HTH

salmosalaris

here is a paragraph that addresses Beavis in a paid car park from a recently submitted POPLA appeal. The others linked were earlier works in progress.



The Claimant has no legitimate interest in enforcing their charge , the charge is disproportionate ,extravagant , unconscionable, a penalty and an unenforceable Unfair contract term and this case can easily be distinguished from Parking Eye v Beavis




The purported contract entered into by the motorist is a simple consumer financial contract. An offer of parking is made in return for payment of a small tariff. The Claimant is seeking to impose a charge for breach of contract. The loss suffered for allegedly failing to make this payment is easily calculable as that unpaid tariff. Anything in excess is clearly a penalty and Unfair contract term .

a. The Claimant may seek to rely on the case of Parking Eye v Beavis as legitimising the charge in this case. The defendant will make the following observations. The Supreme Court adjudged that the charge in Parking Eye v Beavis, although engaging the penalty rule also disengaged it (despite the fact Parking Eye made no loss ), because they had a legitimate interest in enforcing that charge and that the charge was not disproportionate to that interest. The legitimate interest was described in the Supreme Court judgment as :

“97
a. The need to provide parking spaces for their commercial tenants’ prospective customers; -

b. The desirability of that parking being free so as to attract customers;- i

c. The need to ensure a reasonable turnover of that parking so as to increase the potential number of such customers; - i

d. The related need to prevent ‘misuse’ of the parking for purposes unconnected with the tenants’ business, for example by commuters going to work or shoppers going to off-park premises; and
I
e. The desirability of running that parking scheme at no cost, or ideally some profit, to themselves.”-


In this case the vehicle would have been fully entitled to park as it did had payment been made ( if the requirement to pay had been brought to the attention of the motorist). The above justifications are irrelevant in this situation and conspicuously absent.The penalty rule is clearly engaged in this case , but unlike in Parking Eye v Beavis it is not disengaged. The only interest the Claimant has in enforcing the charge is ensuring payment is made. That is not a legitimate interest. The car park is no different to any commercial enterprise .The Claimant cannot argue that a legitimate interest is simply ensuring that payment is made , i.e. simply ensuring the terms of the contract are not breached. If that was the situation any contractual term requiring payment for breach would never need a supporting legitimate interest . In addition the charge demanded for breach is clearly disproportionate to the unpaid parking tariff of a few pounds. This extravagant and unconscionable charge is clearly a penalty following the judgment of the Supreme Court.

This position is reinforced in the earlier judgment from the Court of Appeal in Parking Eye v Beavis . The judgment states :

"43. It is clear that the purpose of the £85 parking charge is to deter those who use the car
park from overstaying beyond the free permitted two hours. So, Mr Hossain
submitted, the case is clear and the parking charge provision is unenforceable.
44. All the previous cases shown to us have concerned contracts of a financial or at least
an economic nature, where the transaction between the contracting parties can be
assessed in monetary terms, as can the effects of a breach of the contract by one party
or the other. Sometimes such measurement is difficult because of inherent
uncertainties, and in those an agreed liquidated damages provision may be upheld for
those reasons. But, however difficult it may be to measure, it is clear that there are
economic and commercial effects on the parties.
45. The contract in the present case is entirely different. There is no economic transaction
between the car park operator and the driver who uses the car park, if he or she stays
no longer than two hours; there is no more than (for that time) a gratuitous licence to
use the land. The operator affords the driver a free facility. That facility is, of course,
of economic value to the driver, as well as of convenience, in assisting the driver to
visit the shops in the shopping centre which the car park serves. It is thus useful to
Judgment Approved by the court for handing down. ParkingEye -v- Beavis
the driver, being close to the shops, and free. It is also useful to the shopkeepers, in
encouraging visitors, and in particular in encouraging a turnover of visitors because of
the two hour limit. A car owner cannot simply come to the car park and park there all
day. To do that would be to clog up the facility and to prevent those arriving later
from using the park for its intended purpose.
46. The terms of use of the car park need, therefore, to provide a disincentive to drivers
which will make them tend to comply with the two hour limit. That is afforded by the
parking charge of £85. It would not be afforded by a system of imposing a rate per
hour according to the time overstayed, unless that rate were also substantial, and well
above what might be regarded as a market rate for the elapsed time, even if the market
rate were in some way adjusted to take account of the benefit to the driver of the first
two hours being free.
47. It seems to me 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 a disincentive, or deterrent,
against overstaying. When the court is considering an ordinary financial or
commercial contract, then it is understandable that the law, which lays down its own
rules as to the compensation due from a contract breaker to the innocent party, should
prohibit terms which require the payment of compensation going far beyond that
which the law allows in the absence of any contract provision governing this outcome.
The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829)
6 Bing. 141 at 148:
“But that a very large sum should become immediately payable, in consequence
of the non-payment of a very small sum, and that the former should not be
considered a penalty, appears to be a contradiction in terms, the case being
precisely that in which courts of equity have always relieved, and against which
courts of law have, in modern times, endeavoured to relieve, by directing juries to
assess the real damages sustained by the breach of the agreement.”



This judgment makes clear that the Court of Appeal would also have considered the charge in this case a clear penalty. The purported contract with the motorist is a simple consumer financial contract where the loss is easily calculable unlike in Parking Eye v Beavis. There is a clear financial interaction between the Claimant and motorist .There is no commercially or socially justifiable deterrent value in the charge as the vehicle would have been fully entitled to park in return for payment of a small parking tariff ( had the requirement to do so clearly been advertised) and the contractual term is clearly the attempt to impose payment of a large sum in consequence of the non payment of a very small sum. Any real loss can only be the small parking tariff and it is only that to which the landowner , not the Claimant, may be entitled. The demanded charge is , without intellectual dishonesty, a clearly unenforceable penalty , an amount that is extravagant and unconscionable and disproportionate when compared to the allegedly unpaid tariff. .

b. With reference to The Consumer Rights Act 2015 Schedule 2 part 1 para 6 ( or UTCCR 1999 SCHEDULE 2 . 1 (e)) the charge is clearly an unenforceable contract term as the Claimant is seeking to impose a charge in compensation that is vastly disproportionate to allegedly unpaid parking tariff .

Keirb99

Thank you for the replies.

Should I still include the Beavis case with it being a different type of car park?

I'll add on to my appeal tonight and tomorrow.

You mentioned the charge would need to be worth suing over, is that in my defence or will that go against me? Do you mean the charge which in my case would have been £3 or the £100 through the post?

Thanks in advance for any replies.

Coupon-mad

Should I still include the Beavis case with it being a different type of car park?

Yes, you really MUST differentiate this car park from the Beavis one, which is the point of salmosalaris' wording. Use a version of it, you may need to tweak details such as the tariff after 2 hours free (that really is unusual for PE!).

You mentioned the charge would need to be worth suing over, is that in my defence or will that go against me? Do you mean the charge which in my case would have been £3 or the £100 through the post?

It works in your favour IMHO if you argue it well, using a version of salmosalaris' wording. Basically the alleged loss is quantifiable at £3 and if PE would have accepted £3 on the day then why does the PCN not even mention that sum just a week or two later and how can they possibly justify such a disproportionate penalty? This is totally different from Beavis where the free licence to park for 2 hours was followed by £85 immediately applying - there was no small, quantifiable tariff offered.

Keirb99

Thanks for the reply.

Ive spent a while researching into the Beavis v ParkingEye case on supremecourt.uk and to what I can make out it doesn't seem the case is in the drivers favour?? Mr Beavis was in a similar situation to the driver where he parked on a 2 hour free stay car park and exceeded the 2 hour free stay. (Now I could be wrong) but.. aren't a lot of the things included in the appeal which happened in court in favour of PE? I've copied and pasted a part from the press summary just to see what you make of it. "Unlike in Cavendish v El Makdessi, the penalty rule is engaged. However, the £85 charge is not a penalty.
Both ParkingEye and the landowners had a legitimate interest in charging overstaying motorists, which
extended beyond the recovery of any loss. The interest of the landowners was the provision and
efficient management of customer parking for the retail outlets. The interest of ParkingEye was in
income from the charge, which met the running costs of a legitimate scheme plus a profit margin [99].
Further, the charge was neither extravagant nor unconscionable, having regard to practice around the
United Kingdom, and taking into account the use of this particular car park and the clear wording of
the notices [100-101].
The result is the same under the 1999 Regulations. Although the charge may fall under the description
of potentially unfair terms at para. 1(e) of Schedule 2, it did not come within the basic test for
unfairness in Regulations 5 and 6(1), as that test has been recently interpreted by the Court of Justice in
Luxembourg [102-106]. Any imbalance in the parties’ rights did not arise ‘contrary to the requirements
of good faith’, because ParkingEye and the owners had a legitimate interest in inducing Mr Beavis not
to overstay in order to efficiently manage the car park for the benefit of the generality of users of the
retail outlets. The charge was no higher than was necessary to achieve that objective. Objectively, the
reasonable motorist would have, and often did, agree to the charge [106-109]".

"Further, the charge was neither extravagant nor unconscionable, having regard to practice around the United Kingdom, and taking into account the use of this particular car park and the clear wording of the notices".. Wouldnt that be in favour of PE?

Any help would be appreciated. Thank you.