Frustration of Contract Yes/No

Coupon-mad

kenzo55 said:

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?  

 @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 agree with that stance.

Are you appealing the added £60 as well?  I am not clear that was added by the first Judge as you said judgment went against you for £100 and £50 court fees? 

If you are, can you send me a pm as I have something some of us prepared earlier that you can add in as a skeleton argument about that.  Please let me know when your hearing is, by pm (you can trust me).

Umkomaas

Please let me know when your hearing is, by pm (you can trust me).

Absolutely trustworthy, CM is the driving force behind this forum. Do as she suggests. 

Fruitcake

If you need any further proof that Coupon-mad can be trusted, have a look at the NEWBIES. She wrote it.