UKPC Court claim

salmosalaris

The_Deep wrote: »

No, this is what he stated

(There is) no longer a valid defence to assert that there was no GPEOL, because there doesn't have to be any.

Surely that is worth keeping it in and letting a judge rule against it.

And he is 100% correct so there is no point whatsoever relying on gpeol . And when you say that is not what he said it is , it is another way of saying exactly the same thing . I fear you don't fully understand

The_Deep

it is another way of saying exactly the same thing .


So I am right, it is not what he said.


I am not suggesting that you rely on GPEOL, just that you do not exclude it.

salmosalaris

But gpeol is irrelevant, as confirmed by the Beavis judgment a PPC make no loss . It all hinges on whether there is a legitimate interest in enforcing a charge for breach and whether that charge is proportionate to that interest .
The only scenario where there is loss is in in a paid parking set up , but that doesn't need to be estimated , it's easily calculable .

TDA

The_Deep wrote: »

No, this is what he stated

(There is) no longer a valid defence to assert that there was no GPEOL, because there doesn't have to be any.

Surely that is worth keeping it in and letting a judge rule against it.

But it's a waste of everybody's time to do so. The new test of a penalty is set out at the start of paragraph 32 of the Supreme Court judgment in Beavis:

"The true test is whether the impugned provision is a secondary obligation
which imposes a detriment on the contract-breaker out of all proportion to any
legitimate interest of the innocent party in the enforcement of the primary obligation. "

That is what you need to focus on in a defence. You need to demonstrate that there is no legitimate interest which the charge is a proportionate means of protecting - no easy feat.

I do not know the facts of this case but it is irresponsible to suggest that the courts won't find a legitimate interest in a residential case.

A lot of people here seem to be of the belief that an individual's subjective reasons for parking in breach are a relevant factor. I do not believe they are (I will return to the lease argument which may have more merit further down). A Claimant's task in a penalty case is now fairly simple:

(1) Establish the existence of a legitimate interest
(2) Establish that the charge is proportionate to that legitimate interest.

Let's take a fairly uncomplicated example. We have a residential estate where available parking is limited. There are spaces but they are not allocated. The management company has decided that due to the limited space each household can only park one vehicle on site. The claimant can argue that there is a legitimate interest in requiring the display of a permit to prevent particular households parking multiple vehicles on site to the disadvantage of the other residents as a whole.

Now whether you agree with that or not that does not mean that a judge won't buy entirely into that argument. The crucial part is that it doesn't matter whether in a particular case the defendant wasn't actually parking multiple vehicles on site. The claimant has established the existence of a legitimate interest and that is sufficient. I imagine 99% courts will be minded to accept the £100 BPA maximum charge as being proportionate in parking cases - especially with the comments of endorsement for it in the Beavis judgment.

The case where you are dealing with a lease containing an allocated space is more complicated and the matter will essentially turn on the contents of the lease. Often a lease will contain a catch-all clause stating that the lessee covenants to obey any rules and regulations introduced at the management's discretion from time to time, and this can muddy the waters somewhat.

salmosalaris

TDA wrote: »

But it's a waste of everybody's time to do so. The new test of a penalty is set out at the start of paragraph 32 of the Supreme Court judgment in Beavis:

"The true test is whether the impugned provision is a secondary obligation
which imposes a detriment on the contract-breaker out of all proportion to any
legitimate interest of the innocent party in the enforcement of the primary obligation. "

That is what you need to focus on in a defence. You need to demonstrate that there is no legitimate interest which the charge is a proportionate means of protecting - no easy feat.

Agreed , but some feats may be less challenging than others .

TDA

salmosalaris wrote: »

Agreed , but some feats may be less challenging than others .

Certainly, and of course a residential case will be more easy to deal with than a paradigm case of an overstay in a retail park a la Beavis.

However, in my opinion that doesn't mean it will be simple for reasons outlined in my edited post above.

The_Slithy_Tove

The_Deep wrote: »

GPEOL is dead following Beavis.

Please Explain

See the caveat I put in my post. I think Bargepole summarised it well, too. If there is a legitimate interest in making a charge penal, and all the other Beavis tests are met, e.g. signage, not a Pay & Display car park, then they can charge what would otherwise be a penalty.

BUT if the Beavis arguments don't stand, i.e. can be successfully rebutted, then the PPC is back to having to justify the charge as a GPEOL. So, as you state, keep it in, but say why the charge should be a GPEOL and no more.

salmosalaris

TDA wrote: »

But it's a waste of everybody's time to do so. The new test of a penalty is set out at the start of paragraph 32 of the Supreme Court judgment in Beavis:

"The true test is whether the impugned provision is a secondary obligation
which imposes a detriment on the contract-breaker out of all proportion to any
legitimate interest of the innocent party in the enforcement of the primary obligation. "

That is what you need to focus on in a defence. You need to demonstrate that there is no legitimate interest which the charge is a proportionate means of protecting - no easy feat.

I do not know the facts of this case but it is irresponsible to suggest that the courts won't find a legitimate interest in a residential case.

A lot of people here seem to be of the belief that an individual's subjective reasons for parking in breach are a relevant factor. I do not believe they are (I will return to the lease argument which may have more merit further down). A Claimant's task in a penalty case is now fairly simple:

(1) Establish the existence of a legitimate interest
(2) Establish that the charge is proportionate to that legitimate interest.

Let's take a fairly uncomplicated example. We have a residential estate where available parking is limited. There are spaces but they are not allocated. The management company has decided that due to the limited space each household can only park one vehicle on site. The claimant can argue that there is a legitimate interest in requiring the display of a permit to prevent particular households parking multiple vehicles on site to the disadvantage of the other residents as a whole.

Now whether you agree with that or not that does not mean that a judge won't buy entirely into that argument. The crucial part is that it doesn't matter whether in a particular case the defendant wasn't actually parking multiple vehicles on site. The claimant has established the existence of a legitimate interest and that is sufficient. I imagine 99% courts will be minded to accept the £100 BPA maximum charge as being proportionate in parking cases - especially with the comments of endorsement for it in the Beavis judgment.

The case where you are dealing with a lease containing an allocated space is more complicated and the matter will essentially turn on the contents of the lease. Often a lease will contain a catch-all clause stating that the lessee covenants to obey any rules and regulations introduced at the management's discretion from time to time, and this can muddy the waters somewhat.

What is the legitimate interest in enforcing a charge against a vehicle parking in its allotted space simply for failing to display a permit ? .IMHO there is not . I think you are buying into tbe PPC belief that all frivolous parking charges are enforceable because of Beavis .
Of course there would be an argument for enforcing a charge against an unauthorised vehicle but it simply does not follow that an authorised vehicle would incur a legitimate charge .
( this of course assumes a valid contract with an unauthorised motorist which is moot )

TDA

salmosalaris wrote: »

What is the legitimate interest in enforcing a charge against a vehicle parking in its allotted space simply for failing to display a permit ? .IMHO there is not . I think you are buying into tbe PPC belief that all frivilous parking charges are enforceable because of Beavis .
Of course there would be an argument for enforcing a charge against an unauthorised vehicle but it simply does not follow that an authorised vehicle would incur a legitimate charge .

I beg to differ. The legitimate interest does not have to be specific to the case at hand it just has to exist as a whole! Look at the language that the test in Beavis was couched in. It is entirely objective. There is no subjective element concerned with why the Defendant breached the term (in our example, lets say they forgot to display the permit). Barry Beavis was apparently late to his car because of a problem with a printer at Staples or something along those lines. Was this any way relevant? Not a jot.

If a legitimate interest exists (in my example, ensuring an even distribution of parking between all residents, and the charge is proportionate, then it will not be a penalty.

With regard to parking in allocated spaces the argument is admittedly weaker (even with a covenant in the lease akin to the one I suggested above). However, I have heard of own space cases going against residents (though do not know the rationale behind the judges making those decisions). Perhaps the argument is that the term requiring display of a permit is designed to stop non-residents parking in the allocated bays and in order to be managed effectively it requires that residents comply with their covenant to obey the regulations by displaying the permit. If residents refused to do so, the scheme could not operate effectively. This brings us back to the point that the test is objective and not concerned with whether the particular defendant was actually a resident, only with the existence of a legitimate interest.

I am not saying that I agree with it, just that I can see scope for making the argument. Who knows why judges have ruled against residents in own space cases. Is there any regular who has attended a case in person and heard a judges rationale for awarding judgment to the claimant in such a case?

The_Slithy_Tove wrote: »

See the caveat I put in my post. I think Bargepole summarised it well, too. If there is a legitimate interest in making a charge penal, and all the other Beavis tests are met, e.g. signage, not a Pay & Display car park, then they can charge what would otherwise be a penalty.

BUT if the Beavis arguments don't stand, i.e. can be successfully rebutted, then the PPC is back to having to justify the charge as a GPEOL. So, as you state, keep it in, but say why the charge should be a GPEOL and no more.

I am not sure that second paragraph is strictly correct. GPEOL isn't really a relevant test at all following the judgment. The only test for a penalty is the legitimate interest test. However that is a matter of legal theory. In practice if a breach has caused a party a quantifiable loss then there is of course a legitimate interest in deterring that breach, and if the charge is a GPEOL then it obviously satisfies the second limb of proportionality.

salmosalaris

32......
The innocent party can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance.

How can a charge for failing to display a permit in your own bay where nobody else is entitled to park be anything but penal ?