Parking Eye v Beavis ( now with appeal judgment)

[Amethyst]

Re: Parking Eye v Beavis

BBC - http://www.bbc.co.uk/news/uk-england-essex-32429649

Barry Beavis, 48, was sent a charge letter for £85 by car park operator ParkingEye after he overstayed a two-hour limit in Chelmsford in April 2013.

ParkingEye argued such charges were "a commercially-justified deterrent".

The Court of Appeal has dismissed the case though he can refer it to the Supreme Court.

Chris Choi @Chrisitv 8m8 minutes ago
"I'll take it to the Supreme Court...Europe" parking campaigner Barry Beavis vows to fight on

Parking Review @ParkingReview 23m23 minutes ago East, England
Barry Beavis' appeal against ParkingEye has been dismissed but he can appeal to the Supreme Court #parkingeye

[Milo]

Re: Parking Eye v Beavis

I think you're the 1st to break the news on the Supreme court. All i can say is TFFT.

M1

I am getting a copy of the full judgment sent over to me (about 10 pages) so will review and post back.

The court was full to the rafters and the following has just been published on Parking Prankster's excellent website:

ParkingEye v Beavis appeal result - HHJ Moloney was wrong but appeal dismissed

The COA have neatly sidestepped the fundamental question of the appeal, which was whether penalties could be commercially justified.


Instead, they have ruled that PE’s charges should not be treated as penalties, and therefore unenforceable, because the level of charge is not ‘extravagant and unconscionable’ which they say is the true test of whether a clause is a penalty. Charges in line with council charges are acceptable.


In the HHJ Moloney hearing ParkingEye told HHJ Moloney their charges were in line with council penalties. However The Prankster has researched this and found this was a lie. In Cambridgeshire the council charges are £50, discounted to £25 if paid within 14 days. This is therefore half the level of the ParkingEye charge. (There are some higher level infringements charged at £70, but an overstay is £50)


They also say that there are social, or public policy, reasons why the charges should be enforced, because if they were not, the spaces in the car park would become unavailable for customers. They also say that PE would suffer a likely loss of contract with the BA Pension Fund if they were unable to perform the contract with them. (The Armageddon scenario).


It is also stated that the contractual arrangements between PE and the landowner are irrelevant for the purposes of this decision, so that blows the ‘fishing licence’ argument out of the water.


They have also said that the signage most likely creates a bare licence rather than a contract, although it was not in their remit to rule on that, but in any event the outcome would have been the same.


The charge may actually be a contractual charge, rather than a charge for breach of contract. Their lordships thought this would make no difference but forgot that contractual charges attract VAT. This would therefore destroy ParkingEye's business model and require them to stump up significant backdated cash and penalties to HMRC.


Mr Hossain has prepared a submission requesting leave to appeal to the Supreme Court, Mr Kirk has made a submission opposing it, and the CA have sent in a statement supporting Mr Hossain’s application.

[Amethyst]

Re: Parking Eye v Beavis

Judgment - PDF - https://docs.google.com/viewerng/vie...ye_23april.pdf ?BAILLI - http://www.bailii.org/ew/cases/EWCA/Civ/2015/402.html

Before the judge the defendants raised a number of arguments, of which only two remain for consideration on the appeal, namely, (a) whether the charge is unenforceable at common law because it is a penalty; and (b) whether it is unfair and therefore unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations 1999 ("the Regulations").

Moore-Bick

Again, I agree with the judge that the term in question did not create a significant imbalance between the parties' rights and obligations in this case, viewed as a whole. I agree that two hours' free parking in or close to a city centre is a valuable right, but even if a motorist overstayed by as much as two hours, an average charge of over £20 an hour would be high. The real question is whether the imposition of a charge of £85 (or £50 for prompt payment) in order to promote a regular turnover of vehicles for the benefit of the community as a whole creates a significant imbalance in the relationship of a kind which renders the term unfair, given that the motorist is made aware of the term when he enters the car park. Here, too, it seems to me that the everyday experience of the use of charges of this kind by local councils to manage the use of a scarce resource tends to show that, provided the charge is not set excessively high, it does not create a significant imbalance in the parties' rights and obligations. It is perhaps not surprising, therefore, that neither side was disposed to argue strongly that the Regulations added significantly to the position at common law.

In the end I am satisfied that in this case the amount payable by the appellant is not extravagant or unconscionable and that the court should therefore not decline to enforce the contract. I would therefore dismiss the appeal.

Sir Timothy Lloyd

In a case such as the present, however, for the law to prohibit a provision such as the overstaying charge, on the basis that it bears no relationship to the loss (if any) suffered by the car park operator would fail to take account of the nature of the contract, with its gratuitous but valuable benefit of two hours' free parking, and of the entirely legitimate reason for limiting that facility to a two hour period.

It is an oddity of the facts that the respondent appears not to make any money out of the contract unless drivers do overstay, so enabling Mr Hossain to argue that, so far from suffering loss by a driver overstaying, the respondent only stands to gain by that breach of contract (though of course if the appellant is right and the parking charge is unenforceable, the operator does not stand to gain anything under any circumstances). The law would allow damages for trespass against the overstayer without regard to what the operator would have done but for the trespass: see for example Swordheath Properties v Tabet [1979] 1 WLR 285. Thus, the actual effect of the trespass on the car park operator's position is not relevant in any event. However, unless the defendant's occupation has been of particular value to him, the compensation would be limited to the market value of the occupation during the period of trespass. That would provide no disincentive against overstaying.

This is not to say that the rules about penalties could have no application to such a case. If the charge were grossly disproportionate, it could fall foul of this principle. It would be extravagant and unconscionable. But, as Moore-Bick LJ says, that is not this case, where the charge is £85 for any period of overstaying, long or short, and is reducible to £50 on prompt payment. The judge held that the charge was not improper in its purpose or manifestly excessive in amount, and this was not challenged on appeal. I agree with Moore-Bick LJ that an intention to deter, by means of a term or terms which seek to impose manifestly excessive obligations in a commercial case, may well show that the provision is extravagant and unconscionable. In a case of the present type, which is not a commercial contract, it seems to me that an intention to deter is not sufficient in itself to invalidate the term. The term must in itself amount to something which is extravagant and unconscionable if it is to be found invalid under the rules about contractual penalties.

Accordingly, like Moore-Bick LJ, I find nothing in the circumstances of this contract which requires or allows the application of the rules about contractual penalties to invalidate the provision under which the judge below held the defendant liable. I do not wish to add anything to what he has said about the regulations.

[Amethyst]

Re: Parking Eye v Beavis

Quite a lot of mention of the signage etc being clear

'' given that the motorist is made aware of the term when he enters the car park.''

''Claimant has displayed about 20 signs at the entrance to the car park and at frequent intervals throughout it.''

''because very clear notice had been given to consumers when they entered the car park.''
and so on.... that isn't always the case as we well know.



''Moreover, although it would in theory be possible to charge motorists a much more modest amount for overstaying the free period, it would be wholly uneconomic to enforce such charges by taking legal proceedings against them. '' diddummms

[Amethyst]

Re: Parking Eye v Beavis

about supreme court - http://www.parkingcowboys.co.uk/2015...supreme-court/ - permission granted could take a couple years IF Barry decides to go for it.

[mystery1]

Re: Parking Eye v Beavis ( now with appeal judgment)

Barry has made the right noises about an appeal. Which may fund it if he wobbles on cost ?

M1

[Amethyst]

Re: Parking Eye v Beavis ( now with appeal judgment)

It would be nice to see them step up to the mark after jumping in at the last minute with this appeal, see if they carry it through.

[Amethyst]

Re: Parking Eye v Beavis ( now with appeal judgment)

Bit of a weird argument - like the bank charges argument - they don't make any money from people who use their accounts properly only those that go overdrawn..... so it's okay to charge more than the 'loss'.... apparently.

[Amethyst]

Re: Parking Eye v Beavis ( now with appeal judgment)

So, effect wise, the only impact is the argument that the cost is disproportionate ( genuine pre-estimate of loss) can be kyboshed by referring to Beavis .... but other issues like unclear signage, that you had actually paid and standard disputes can still be argued.

Does this actually create a binding precedent or is it just persuasive ? This was related to a specific car park in a specific circumstance, but I guess translates across quite simply?

[mystery1]

Re: Parking Eye v Beavis ( now with appeal judgment)

Some judges used the 1st case to make a decision never mind a higher court. It is a narrow issue but how wide it becomes or whether stays will continue pending the SC remains to be seen.

Scottish courts have issues but thankfully they have the balls to deal with crap like that !

M1

[sean5302]

Re: Parking Eye v Beavis ( now with appeal judgment)

A good read and interesting to see the historic cases referred to.
It still remains a hurdle for Parking Eye to show that their charges are conscionable in other car parks. £85 may be reasonable in the Beavis case, but what is reasonable elsewhere?
Is £300 reasonable?
£3,000?
Also reasonably clear that ParkingEye had locus standii with the British Airways Pension Fund to operate the car park management, but not so clear with very many other operators or landowners.
This is going to be a mess that should run on for years.

[Nibbler]

Re: Parking Eye v Beavis ( now with appeal judgment)

[gd47]

Re: Parking Eye v Beavis ( now with appeal judgment)

An interesting article in the Spectator...

The basic premise is that, seeing the CoA have effectively sanctioned these "speculative invoices", then why not send the same to a parking company for dealing with their correspondence?
£85/letter for example (whilst not being a true pre-estimate of loss! ) could certainly prove to be a deterrent!

Imagine if the Beavis ruling could actually be completely turned on to the private parking companies!

Could prove to be interesting times!

[Amethyst]

Re: Parking Eye v Beavis ( now with appeal judgment)

He has bugger all to be sorry about. (though I disagree with what he says about penalties a bit)

Looks like he is seriously considering Supreme Court - he's set up a indiegogo campaign to help fund the appeal. Not sure if his case is the right one to go forwards - it needs a number of cases to be heard together to look at the overall legality - not just one single example in one single carpark with one single company. Too many variables to be sorted for good with one example case.

[mystery1]

Re: Parking Eye v Beavis ( now with appeal judgment)

It may be joined up with Makdessi http://gdknowledge.co.uk/penalty-cla...uare-holdings/

M1