Frustration of Contract Yes/No

kenzo55

The gym I use has a free 3-hour time limit car park. Thereafter, £100 charge and as it is VCS this miraculous turns into £160. The car park is managed (sic) via ANPR.

 

Normally, the 3-hours is more than enough but on the 26/09/2019 I passed out. The staff called an ambulance and I was taken to A&E. Where I had tests and treatment before being discharged five hours later.

 

I immediately took a taxi to the car park and retrieved my car.

 

There followed the usual demand letters which for the well known nature of the IAS/IPC cabal I ignored as the outcome is a foregone conclusion of a kangaroo court. In hindsight, this was a mistake. Not because I expect I would receive a fair hearing but the subsequent judges thought I would.

 

Subsequently received Claim to which I posted a defence. The main thrust being            

                - frustration of contract

with ancillary

                - CRA 2015 unfair terms, double-dipping, abuse of process

                - locus standii

                - £160 claimed is a penalty

                - signage

 

At a telephone hearing, I lost the case and judgment for £100 plus £50 court costs. The main turning point was

 

"10.        I am referred to case law, the well-known case of ParkingEye Ltd v Beavis [2015] UKSC 67 that says in effect, well, the fact an incident is unforeseen does not mean that, as Mr  ... puts it, frustrates the contract.  The [inaudible] is that is the law on that issue.  I have no doubt at all that, had Mr ... produced the information to the claimant that he has produced so very eloquently and very well in his witness statement when he had the opportunity to do so, I really do not see that we would be here today."

 

NB the previous points addressed that had I taken the IPC appeal procedure then the benevolent PPC would look favourably and realize the error of their ways. On the balance of probabilities do you think a company that hounds a double amputee veteran will see the light... Me neither.

 

I appealed the judgment for error in law in that:

1. the judge had applied the legal test from Beavis which, as a penalty charge test, was the incorrect test for the impossibility of performance. The performance of the contract became impossible, due to a frustration of contract event, at 12:45. At this time, 1 hour 45 minutes before alleged breach, the contract was automatically discharged. The judge should have tested the facts for the frustration of contract.
2.  CRA 2015 s71 the judge should have considered the small print for fairness. It does not say there will be an additional charge of £60. It just vaguely refers to further charges. Also, £60 on a parking charge of £100 is a 160 percent increase which is disproportionate and falls foul of the Beavis unconscionable or extravagant test.

 

The appeal was refused as there is no real prospect of success, nor any compelling reason why an appeal should proceed.

1. frustration is misconceived in law. The contract was for the provision of a parking space. This was not affected by the unfortunate and unforeseen events  which did not impact the contract but only the Appellant's to perform his part of the contract 
2. the judge was entitled to treat the two charges as distinct and separate which is what she did

 

I decided to request and was granted an oral hearing to appeal on the 6th July for frustration of contract.

 

What am I missing?  

There is a personal contract, a person essential to performance of the contract, with the time of the essence, an unforeseen supervening event that made performance impossible within the stipulated time, a contract without a force majeure clause, no fault of either party. i.e. all the necessary ingredients of frustration and all supported with relevant case law.

And, none of the claimant, the hearing judge, nor the appeal judge have advanced any counterargument as to why these are not valid reasons to support a ruling of frustration. Just a vague 'misconceived in law.' statement

If my paper-based arguments have failed I cannot think of anything new to add. I suffer from a damaged tongue and only have half a working voice box after 2 bouts of oral cancer. So my articulate and glib oral skills are unlikely to persuade on their own. Nor am I as quick-witted as I need to be in gladiatorial debate.

Do I have a strong law case for frustration?  Or am I blinded by what is only a moral cause?

 

 

pustit

Does Beavis only apply if the PPC pays rent to operate on the site ?

D_P_Dance

You would probably got off in Cheshire, see MC1


https://www.cheshireeast.gov.uk/car_parks_and_parking/parking-regulations-enforcement/pcn-mitigating-circumstances.aspx

Snakes_Belly

There was a scenario mentioned in Hansard when the Parking Bill was being discussed. It related to a lady who had overstayed her ticket. The reason that she had overstayed was because she had collapsed and died while she was out so could not return to the car. The parking company went after the estate of the deceased driver. The MP's were horrified by this.

Surely that was frustration of contract and your case is the same other than you are still living.



 

kenzo55

pustit I don't think they have to pay rent but do need a contract from the landowner/lessor. As aside the contract supplied at the hearing was only 2 of 6 pages, didn't include car park map, signed by a non authorised person of a fictitious company. But when I tried to query at hearing the judge quickly shut me down. As the legal rep had no knowledge.

D_P_Dance thanks I'm glad that some public bodies acknowledge that we humans are frail beings and 'accidents' do occur. I'll try to work it into my argument but fear the judge will see it as another reason as to why I should have appealed to the kangaroo court.

Snakes_Belly There does appear to be a discrepancy of the will of parliament and the interpretation of that will by some members of the judiciary.

Johnersh

Since it was physically impossible to move the car at the point at which you were conveyed to hospital and would in any event have been unsafe to drive without medical review, that would seem legitimate.

If you were given a hospital discharge printout you can always send them a copy (or obtain one from the GP). They are emailed and date/time stamped.

You want it discontinued long before a hearing, but if you didn't tell the PPC or get the gym to intercede, you really can't be surprised they've pursued it. 

Umkomaas

Whilst 'Frustration of Contract' might well be a technical/legal point to argue, wouldn't this have been better defended on the back of common sense mitigation, ie, taken to hospital as an emergency, discharged well after the time limit allowance at the car park, physically/humanly impossible to have moved the car from it. 

Johnersh

Quite. Pre-action. 

Half_way

What on earth did you say to the Gym?, this should have been nipped in the bud a long time before court

Was / is this car park owned by the Gym and infested by VCS?

As above frustration of contract shouldn't have been expanded upon significantly

have you read this:

 https://forums.moneysavingexpert.com/discussion/6272230/exposing-the-scams-of-the-ias-the-ipc-and-gladstones-all-run-by-william-hurley-john-davies#latest

Have you communicated the contents of that to the Gym?

are you still a member of that gym?

the key here is is the car park attached to the Gym?

I would be getting onto the Gym and telling them that you expect them to refund all of your costs.

 As a member, the Gym will have a basic duty of care towards its members/visitors/staff etc, and by allowing an un regulated private parking company with no independent appeal system in place ( reference the IAS scam thread) and then not informing their agents that a customer/member was unable to retrieve their vehicle as they became ill whilst on the Gyms premises shows a complete lack of care, and as a result you are demanding that the Gym re-reimburses you for all the associated costs.

Parking companies do what parking companies do, the links between the IPC/IAS William Hurley, and John Davies are all in the public domain, and gathered in the thread i mentioned earlier.

 The fact that establishments that should know better allow these ( for want of a better word) scum onto their land  beggars belief.

 

While there is a lot of fire directed at PPC land, the real fire should be aimed well and truly at the landowners, the corporations ( such as gums/supermarkets etc) and more importantly the individuals within who sign the PPC contract.

 The only exception to go for the entity that signed the PPC contract would be the small one man business - such as independent shop/pub / community centre/group etc

Coupon-mad

I think this was a mistake to appeal that court judgment because the delay in the Beavis case was also out of Barry’s control but no-one bothered to ask him and the Supreme Court wrongly said, dismissively, ‘all he needed was a watch’,

Those out of touch Judges have caused years of misery to the motoring public by that dreadful decision.

You must have spent a fortune on a transcript and application, when all you needed to do was appeal to the PPC and complain to the gym at the time.

I assume this hearing is to decide if you have a case to appeal, not to hear the appeal?

Snakes_Belly

I have seen contracts between the landowner (gym in this case) and Excel/VCS whereby the landowner is allowed so many cancellations per month. There is a contract like this in Turnip's thread.