Novel defences

Peeves

If you could explore a novel defence that is overlooked in favour of defences known to work, what would it be?

I think I would like to explore ex turpi causa non oritur actio.

I.e. not profiting from illegal or immoral behaviour.

Before Beavis it could easily be dismissed on the grounds that the claim was for damages which can be side stepped since it is not in the pursuit of profit.

The Beavis judgement considered that part of the scheme involved profit for the parking company. Therefore, if a parking company justifies their charge by Beavis then they are, at least in part, seeking profit and not a remedy for loss.

If a sign used by the parking company requires advertising consent but this was not acquired that is a criminal offence. The next question is whether the fundamental nature of the contract relies on the illegal act. If not the defence can be dismissed again. E.g. a contract signed on stolen paper is valid because the paper could be easily substituted. It's not intrinsic to the nature of the contract.

However, can parking signs be substituted in such a way? In order to form a contract they must be "loud and clear". If this is not possible without a sign so large it requires advertising consent would ex turpi causa hold up?

The other consideration is public policy. This is probably where the defence would fall down because it's the most subjective. That said, the majority of people despise parking companies and the government has taken steps to curtail the industry recently and it's actively working to reform the law. So perhaps a public policy argument could be formulated too.

Further, Beavis gave greater weight to parking companies being bound by the trade body's terms, which include complying with relevant laws. Any company relying on signage for their business would reasonably know about advertising consent. This is another route to introduce the principle without wielding it directly.

What is the best way (googling aside) to find case law when trying to explore an argument like this?

Is there any rule against "trying out" defences. I.e. intentionally restricting your defence when you know other points would be more likely to succeed?

Johnersh

Run any defence you fancy, but this is just nonsense.

Ex turpi is most unlikely to ever be a defence to a parking claim, where the legal system expressly provides a mechanism for ppcs to bring this type of action. It's not against public policy, it is within the contemplation and intention of Parliament. 

Peeves

Unlikely, perhaps. But I'm not aware of it being tested.

Cross v Kirkby [2000] EWCA Civ 426

"In my judgment, where the claimant is behaving unlawfully, or criminally, on the occasion when his cause of action in tort arises, his claim is not liable to be defeated ex turpi causa unless it is also established that the facts which give rise to it are inextricably linked with his criminal conduct. I have deliberately expressed myself in language which goes well beyond questions of causation in the general sense."

If a sign, being just large enough to create contracts, requires advertising consent but does not have it I fail to understand how that is not inextricably linked? 

I'm not sure I understand your point about parliament. I wouldn't have thought their actions could ever be interpreted as encouraging illegality. If they pass a law to allow the recovery of parking charges isn't it implied that those charges are not obtained illegally?

Coupon-mad

http://parking-prankster.blogspot.com/2016/08/parkingeye-discontinue-two-cases.html?m=1

Johnersh

Thanks @Coupon-mad. Interesting, but I am not sure I agree that it would fly in front of a judge (the claim having been withdrawn in that example).

@Peeves my point is simply this. If our legislature go out of their way to create a mechanism for ppcs to pursue motorists (and one which inevitably established with signage) its a big ask to seek to exclude them from recovery on grounds of illegality. That is all.

This is a matter of interpretation, so run the defence that you want to. I have merely disagreed and I may be wrong. 

I think DJs in small claims cases are nothing if not pragmatic. As such, I think you're trying to have your cake and eat it, since you'd complain about signs that are too small but within planning rules too.

One may reasonably argue any minor planning infringement is the lesser of two evils if the other involves motorists being unaware of the applicable charges. 

This is not a panacea when used as a defence. You'll be aware that ex turpi is essentially a public policy doctrine, developed so as to prevent those involved in crime being compensated. Examples include psychotic patients murdering the public after train crashes then seeking to sue the train company for causing them to be in that state. 

Your proposal is rather different in scale of any criminality such that it may be treated differently.  Not least when the government actually wants private pcns to be a thing.

In Patel v Mirza the UKSC prevented a defendant succeeding with an ex turpi defence even when illegality was at the very heart of a contract to undertake insider trading. 

Finally, FWIW, I have yet to see a report on here of a DJ at all interested in a defence that raised inter alia planning consents. 

Umkomaas

Finally, FWIW, I have yet to see a report on here of a DJ at all interested in a defence that raised inter alia planning consents. 

Deep in the forum annals there are a couple of cases where the DJ stated it was an issue for the planning authority to pursue, not their court, considering it irrelevant to the claims in front of them. I recognise that no precedent has been created by these cases. 

Fruitcake

My opinion is that lack of advertising consent for signs should be included in appeals and court claims because it breaches para 12 of the PoFA and is a criminal offence.
I would not hang my hat upon it as the main point of a defence, merely that it shows how unregulated parking companies are unreasonable and flout other rules.

If a judge is wavering, then it may just be enough to tip a judge's decision towards the defendant, but nothing more.

I helped a friend get a landowner cancellation for a PE PCN because they had overstayed the 2 hour limit imposed by the operator even though planning permission was granted for the site provided that a 3 hour limit was allowed.
When I complained to the council, and I did make contact with someone who actually understood the PoFA, they said that their concern was for the fact that advertising consent had (eventually) been obtained for the signs, not what was writ upon them.

If a council won't act on this, I don't think a judge in the Small Claims Court would either.

Peeves

Coupon-mad said:

http://parking-prankster.blogspot.com/2016/08/parkingeye-discontinue-two-cases.html?m=1

Causing discontinuance is a win in my book 😃

@Johnersh thanks for the further explanation. Perhaps it would be more likely to be persuasive if the council has taken action against the PPC and the signs remain unchanged? Although I understand councils shy away from doing so.

The fairness in me says if you can't do something without breaking the law, you shouldn't do it. There are many ways to create private parking contracts without acting criminally. The fact they might cost a little bit more shouldn't be relevant. For example, an automatic barrier that causes a driver to stop next to a smaller sign on entry would do it. Or many more signs within a car park. The maximum size before consent is ~45x45 cm, which isn't tiny, and all it needs to do is point out charges apply and direct a driver to the terms.

The underlying motivation in Patel v Mirza was to restore the parties to their positions before the illegal act occurred otherwise one of the parties would have profited from the crime. I don't think the two scenarios are comparable. If anything it supports the idea a parking company should not profit from its crime. (and maybe you could sue them if you have paid already citing Patel v Mirza 😄).

95Rollers

Fruitcake said:

My opinion is that lack of advertising consent for signs should be included in appeals and court claims because it breaches para 12 of the PoFA and is a criminal offence.
I would not hang my hat upon it as the main point of a defence, merely that it shows how unregulated parking companies are unreasonable and flout other rules.

If a judge is wavering, then it may just be enough to tip a judge's decision towards the defendant, but nothing more.

If a council won't act on this, I don't think a judge in the Small Claims Court would either.

Definitely. Its another iron in the fire!  Its all evidence of unreasonable behaviour and evidence of making up ones own rules and cherry-picking what rules they will abide to both in real law and BPA land! I touched on this in my WS - that no planning permission for signage or ANPR cameras could be found on the council online portal, yet these could found for other carparks in the same city!  I wasn't really expecting much on it (nor needed it, but it didn't hurt to throw it in), it was another iron in the fire to evidence that the parking company were not whiter than white!