Frustration of Contract Yes/No

kenzo55

@Johnersh Yes, I provided the information with my witness statement. The facts of the incident were accepted by the court and the claimant. I'm not surprised they pursued it, VCS after all. I was surprised that the court could not/did not see past Beavis. There are many aspects of contract law and the penalty rule overhaul is just one small part. Agree for future readers, in the same position, to attempt to get PCN canceled. I still think it unlikely VCS/IPC will relent but the retailer/landowner is a good option. At my stage, a pre-action discontinuance is not an option.

@Umkomaas At this stage of proceedings, there is only the legal point to argue. IPC members and the court do not do mitigation. What you say about impossibility is true and it is that I am having trouble getting across to the court. 

A contract may be frustrated where there exists a change in circumstances, after the contract was made, which is not the fault of either of the parties, which renders the contract impossible to perform. Where a contract is found to be frustrated, each party is discharged from future obligations under the contract and neither party may sue for breach.

A person essential for performance may, as a result of the supervening event, be unavailable at the time fixed for performance, but become available later. Such temporary unavailability will most obviously frustrate the contract where it is clear from the terms or nature of the contract that it was to be performed only at, or within, the specified time, and that the time of performance was of the essence of the contract. Thus a contract to play in a concert on a particular day is frustrated by the performer’s illness on that day. In Robinson v Davison (1871) L.R. 6 Ex. 269, a pianist who was to give a concert on a specified day was held to have been discharged from the contract by their illness on that day. The court held that as it was not their fault that they were unable to perform, the contract was frustrated. And, in Condor v Barron Knights (1966) 1 WLR 87, the drummer with a pop group was taken ill. Medical opinion was that he would only be fit to work three or four nights a week, whereas the group had engagements for seven nights a week. It was held that his contract of employment was discharged by frustration. The drummer was incapable of performing his contract in the way intended.

In Hirji Mulji v Cheong Yue SS Co Ltd [1926] A.C. 497 at 509; Frustration terminates a contract automatically at the time of the frustrating event. Whatever the consequences of the frustration may be upon the conduct of the parties, its legal effect does not depend on their opinions, or even knowledge, as to the event.

@Half_way I have read IPC/Gladstone scam thread. It was one of the reasons I did not take up the independent (sic) ADR option. I agree that it would have saved me a lot of time to go the landowner route - you don't know what you don't know. I was too naive - I thought no way someone could be taken to A&E and a court could find no mitigation/frustration. 

kenzo55

@Coupon-mad As a pensioner I received financial help, my out-of-pocket expenses ink, paper, binder, transcript less than £30. The true cost is time and emotional stress. I now realize I was 'tilting at windmills', but sometimes you have to stand up for what you think is right.

I'm with you that the Beavis case was an example of how 'group think' goes wrong. Similar class, education, remote from the real world people ruling on situations without empathy for the society most of the country lives. In a land of poverty, food banks, debt a charge of £100 is neither unconscionable nor extravagant beggars belief. And their laughable faith in the BPA.

Its true pre-action should have been my option but you can't get there from here.

Yes, the oral hearing is to decide if I have a case to appeal.

Do you have any guidance on what happens at the oral hearing? I am at a complete loss on how to approach after failing with the written submission with a vague misconceived in law ruling. What was wrong with my reasons or understanding of the frustration of contract?

There is a personal contract, a person essential to the 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.

Unlike the Beavis case personal incapacity is one of the events that can trigger frustration.

D_P_Dance

 I now realize I was 'tilting at windmills', but sometimes you have to stand up for what you think is right.

Indeed, but taking a lance to a windmill is not he most effective way of demolishing tht windmill.  If you perservere, and throw enough money at this you are very like to prevail imo.  It depends really om your attitude to risk.  

kenzo55

Found that out the hard way. The current news cycle is dominated by inquests/reports that show how the establishment(entitled) protects their own eg. Hillsborough, Daniel Morgan, Grenfell.

Money is not an option - I don't have any.

I am convinced that the moral cause aligns with the common law doctrine of frustration. The SMALL problem I have is formulating an argument that is not misconceived. 

D_P_Dance

The SMALL problem I have is formulating an argument that is not misconceived. 

We can certainly help with that.  

Half_way

The landowner/gym complaint route isn't dead yet.
The key question is, is the car park for the gym only or part of a larger retail park?
If is the gym, then I would be looking at telling the gym they have failed in a basic duty of care and as s direct result of allowing an un regulated partying company on the you are out of pocket, as per my previous post

kenzo55

The car park is not only for the gym. The members are able to park in the main car park which is in front of the Reach store. There are other smaller car park zones that I presume belong to other businesses on-site. The car park zones are monitored by ANPR.

When you say the landowner route is not dead, is this still applicable even though VCS has a judgment (that I am trying to get leave to appeal)? 

Half_way

Where is this car park??

 By landowner complaint not dead, i mean that you should be looking to the landowner and/or the gym to refund your costs.

 It is the landowner that allowed an unregulated parking company onto site

It is the Gym that failed in their duty of care towards you

Have you complained at all to the gym about this at any stage?

kenzo55

The car park is at Innovation Park, Edge Lane, Liverpool. No, I haven't complained to the landowner nor gym.

Snakes_Belly

Excel were kicked off a car park in Keighley (see below). There had been issues with parking at a gym that required the car registration number to be input into a terminal.

There was a particular case that related to an incident involving the gym and the lay rep was a poster on this forum (Lamilad). The defendant was a Ms. Ambler. Excel lost and were refused an appeal.

https://www.thetelegraphandargus.co.uk/news/15434669.motorists-in-keighley-glad-to-see-the-back-of-controversial-excel-parking-services-wardens/

https://www.keighleynews.co.uk/news/14878686.keighley-sports-direct-gym-users-furious-after-receiving-parking-tickets/

I really don'y know why these gyms employ companies like Excel because it seems to do a lot of damage to their business.

Excel were the claimant in my hearing and I used some of these newspaper articles in my bundle. Their rep (first hearing) said that she would ask for them to be removed and I said that I would ask for them to stay as they show how this company operates.

Although not really relevant to your case the Ambler case (and subsequent request for an appeal by the Claimant) is an interesting read and an good insight into how this company operates. 

I do think that it is worth complaining to the gym because you do not know how many more people may have been ticketed by Excel. You at least could have a hand in getting them removed from the car park as did the people of Keighley.