Incomplete vrn entered

Coupon-mad

How can I argue that it can be regarded as a penalty if I had paid.

I provided conclusive proof that I had paid and they knew full well that I had paid.

Well to rebut the Beavis argument, quote from Beavis. The judgment only related to THAT car park, THAT commercial set up with the landowner and THOSE ‘brief, clear, prominent’ signs which state the charge in large lettering.

And the decision arose because ''the consumer gets the benefit of free parking in that unusually attractively located car park for two hours.’’

Indeed the Supreme Court were at pains to rush out a Tweet within 24 hours of the Beavis Judgment being handed down, making it clear that the judgment was applicable only to the facts of that case:
https://mobile.twitter.com/UKSupremeCourt/status/661846322417397760UK

Here are some handy Beavis case quotes, with paragraph numbers:

LORD NEUBERGER AND LORD SUMPTION: (with whom Lord Carnwath agrees):

14. ''...where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty;''

At #22 the Supreme Court explored Lord Dunedin’s speech in Dunlop: ''as Lord Dunedin himself acknowledged, the essential question was whether the clause impugned was “unconscionable” or “extravagant”. The four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts. But they are not easily applied to more complex cases. To deal with those, it is necessary to consider the rationale of the penalty rule at a more fundamental level. What is it that makes a provision for the consequences of breach “unconscionable”? And by comparison with what is a penalty clause said to be “extravagant”?''

28. ''A damages clause may properly be justified by some other consideration than the desire to recover compensation for a breach. This must depend on whether the {parking firm} has a legitimate interest in performance extending beyond the prospect of pecuniary compensation flowing directly from the breach in question.''

31. ''The real question when a contractual provision is challenged as a penalty is whether it is penal, not whether it is a pre-estimate of loss. These are not natural opposites or mutually exclusive categories. ...The question whether it is enforceable should depend on whether the means by which the contracting party’s conduct is to be influenced are “unconscionable” or (which will usually amount to the same thing) “extravagant” by reference to some norm.''

32. ''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 {parking firm} in the enforcement of the primary obligation. The {parking firm} can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''

Lord Mance at 143: ''The qualification and safeguard is that the agreed sum must not have been extravagant, unconscionable or incommensurate with any possible interest in the maintenance of the system.’’

Lord Mance at 152: ''What is necessary in each case is to consider, first,whether any (and if so what) legitimate business interest is served and protected by the clause, and, second, whether, assuming such an interest to exist, the provision made for the interest is nevertheless in the circumstances extravagant, exorbitant or unconscionable.’’


Lord Hodge at 255: ''I therefore conclude that the correct test for a penalty is whether the sum or remedy stipulated as a consequence of a breach of contract is exorbitant or unconscionable when regard is had to the {parking company’s} interest in the performance of the contract. Where the test is to be applied to a clause fixing the level of damages to be paid on breach, an extravagant disproportion between the stipulated sum and the highest level of damages that could possibly arise from the breach would amount to a penalty and thus be unenforceable.’’


Re the signage In THAT case alone:

Lord Neuberger: ''The charge is prominently displayed in large letters at the entrance to the car park and at frequent intervals within it...the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed.’’

Lord Mance at 123: ''The signs exhibited at the entrance and throughout the car park are large, prominent and legible.''

Lord Hodge at 287: ''...the fact that motorists entering the car park were given ample warning of both the time limit of their licence and the amount of the charge also supports the view that the parking charge was not unconscionable.’’

Lord Toulson at 293: ''On the essential nature of a penalty clause, I would highlight and endorse Lord Hodge’s succinct statement at para 255 that “the correct test for a penalty is whether the sum or remedy stipulated as a consequence of a breach of contract is exorbitant or unconscionable when regard is had to the innocent party’s interest in the performance of the contract”.

Parties and courts should focus on that test, bearing in mind:

a) that it is impossible to lay down abstract rules about what may or may not be “extravagant or unconscionable”, because it depends on the particular facts and circumstances established in the individual case ...and

b) that “exorbitant or unconscionable” are strong words. I agree with Lord Mance (para 152) that the word “unconscionable” in this context means much the same as “extravagant”.

Coupon-mad

Lord Dunedin’s 4 tests:

a. A sum is a penalty if “extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach”.

b. If the breach consists only in not paying a sum of money, a sum stipulated as payable on the breach greater than any that ought to have been paid will be a penalty.

c. There is a presumption (but no more) that it is penalty when “a single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage”.

d. On the other hand, it is “no obstacle to the sum stipulated being a genuine pre-estimate of damage, that the consequences of the breach are such as to make precise pre-estimation almost an impossibility. On the contrary, that is just the situation when it is probable that pre-estimated damage was the true bargain between the parties.

Pjr1525

Coupon mad you must burn a hell of a lot of midnight oil helping other people. I’m so grateful.
Many thanks.

Ibcus

will this be of any use to Pjr?


I have wrote a witness statement outlining our very similar case.


I can send you a pm with a link to download it

Coupon-mad

No problem, I have the above quotes saved anyway. I created the document a week after the Beavis case and it's been very useful to dip into.

Another thing to look at would be what the Court of Appeal (previous stage on Beavis) said about paid car parks being 'completely different' from the complex Beavis case which was about a free retail car park.

I don't have those quotes saved but another regular does, can't recall who!

Pjr1525

Many thanks incus, I shall print that off and take it with me.

Pjr1525

I won 😊. Report to follow.

Le_Kirk

Well done! Looking forward to the report.

Pjr1525

I arrived at the court 45 minutes early and booked in. When my case was called I entered the court room and the judge invited me to sit down and asked how to pronounce my unusual surname, he then said it appears no one else is here, obviously HX or Gladstones had not bothered to turn up. He read out the claim and studied the witness statements and evidence. He asked me had I kept the parking ticket,I gave him the ticket, which he read and returned to me.
He read some more of the exhibits and their witness statement then asked to see the ticket again. He asked was my vrn on the ticket, I pointed it out and he asked was that an actual correct part of my vrn, when I confirmed that it was he then said those magic words ‘I’m dismissing this case’
He said he wasn’t convinced that the signs were clear enough about entering a full vrn, I pointed out the new sticker that had been added to the PDT machine after the event and he said ‘ yes I see it'
He read some more of my exhibits and mentioned the screenshot of HXs website that I’d enclosed in my evidence and said , they say they recognise human error and allow a couple of incorrect digits, yes, I’m dismissing this case.

I asked about costs, he read my schedule and said that costs weren’t usually allowed in small claim courts unless unreasonable behaviour is cited. He asked did I believe the claimant had acted unreasonably, I said that they had pursued me for 11 months even though they knew that I had paid the correct parking fee.
He said the claimant hadn’t came to court and that I had taken the trouble.
The judge studied a large book and said, I can award you travelling expenses and parking fee and also 5 hours of litigation in person. Total £104.24.

I would like to thank all of the people who helped me through this unfair PCN, especially Coupon mad, she’s a bit special. I would also like to thank another poster, ibcus, for their invaluable help, they even sent me a personal witness statement to use in court.

I intend to do another post after I’ve received the cheque from Gladstones. Again, many thanks everyone.

By the way I think I remember reading something from parking prankster where he said if a ppc loses a court case that with costs and solicitors fees it would cost them between £350 and £500 is this correct?

Coupon-mad

Yes this will have cost them a few hundred! This is on top of your costs, which I am very pleased to see were granted on the indemnity basis (for unreasonable conduct) to include 5 hours of your time at the LiP rate:

I asked about costs, he read my schedule and said that costs weren’t usually allowed in small claim courts unless unreasonable behaviour is cited. He asked did I believe the claimant had acted unreasonably, I said that they had pursued me for 11 months even though they knew that I had paid.

He said the claimant hadn’t came to court and that I had taken the trouble. The judge studied a large book and said I can award you travelling expenses and parking fee and also 5 hours of litigation in person. Total £104.24.

Very well done - another one bites the dust! :T

Which court and which Judge?

And can you remind us where to find that screenshot of HX's website where they said something different to what it says now, about keying errors?