Private parking charges - Supreme Court decision changes the law

[Guest Breadvan72]

SC today, Beavis (no Butthead) and so on.   One commercial case.  One nonsense case between a Ã¢â‚¬Å“Republic of Me†selfish idiot and a private parking company over an 80 quid ticket or whatever. 

https://www.supremecourt.uk/cases/uksc-2015-0116.html

â€ÂWhat makes a contractual provision penal? Lord Dunedin’s tests in Dunlop Pneumatic Tyre Company Ltd. v New Garage and Motor Company Ltd. [1915] AC 79 have too often been treated as a code. The speeches of the rest of the Appellate Committee, particularly Lord Atkinson, are at least as important. The validity of a clause providing for the consequences of a breach of contract depends on whether the innocent party can be said to have a legitimate interest in the enforcement of the clause. There is a legitimate interest in the recovery of a sum constituting a reasonable pre-estimate of damages, but the innocent party may have a legitimate interest in performance which extends beyond the recovery of pecuniary compensation.

 

The law will not generally uphold a contractual remedy where the adverse impact of that remedy significantly exceeds the innocent party’s legitimate interest [18-30]. The concepts of ‘deterrence’ and “genuine pre-estimate of loss†are unhelpful. The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation [32].â€Â

 

 

BV commentary:  This is a fairly substantial rewrite of the law as to penalty.  The Dunlop Tyre decision had become sclerotic, and, as too often happens, had become elevated to the status of Statute.  This decision reboots the law of penalty for the twenty first century.

 

Also, one in the eye for all the tinfoil twats at peepipoo.   Stop being so Republic of Me, you selfish cockheads.  

[fatharris]

In English, please?

 

Sent from my SM-G900F using Tapatalk

[dugong]

They're not allowed to charge disproportionate fines any more.

 

At least that's what I inferred. Help me out here, Gerard.

[Ghosty]

That's what I read too.

[nebuchenezer]

No, The parking appeal was dismissed as it was deemed not to be diproportional. Esentially the parking company had signs everywhere at the shopping centre saying 2 hours maximum, stay for more then a fine of £85 will be applied. 

 

Butthead stayed for 3 hours and got the fine.

 

He contested saying whatever and the court came back saying he has to pay it and that the charge was reasonable as the parking company is managing the traffic flow by stopping commuters and long stayers clogging up the car parks. And the fine is in line with virtually all other like premises over the UK.

[Doctormop]

I took it to mean that Civil parking notices issued by private companies are enforceable despite claiming that you are a Freeman on the land and do not recognize the jurisdiction of the court system

http://www.bbc.co.uk/news/uk-england-essex-34721126

[Skizzer]

TL/DR: You can't overstay by an hour in a shopping centre car park and expect not to pay the clearly advertised fine, just because you can afford lawyers.

 

Sensible.

 

My favourite bit of the judgement is the phrase "an ancient, haphazardly constructed edifice which has not weathered well", which may indeed be true of the law on penalty clauses but is also as good a description of me and my fleet as ever I've heard.

[tooSavvy]

So then.... In stead of 'where were you when 9.11 hit'

 

I can say 'I paid £60 JUST before the cu#nts got twatted'

 

 

Makes me feel so much betta....

 

 

TS

[nebuchenezer]

From the press summary:

 

"Application to ParkingEye v Beavis The court dismisses the appeal by a majority of six to one, and declares that the charge does not contravene the penalty rule, or the Unfair Terms in Consumer Contracts Regulations 1999. Mr Beavis had a contractual licence to park in the car park on the terms of the notice posted at the entrance, including the two hour limit. The £85 was a charge for contravening the terms of the contractual licence. This is a common scheme, subject to indirect regulation by statute and the British Parking Association’s Code of Practice. The charge had two main objects: (i) the management of the efficient use of parking space in the interests of the retail outlets and their users by deterring long-stay or commuter traffic, and (ii) the generation of income in order to run the scheme.

 

However, the £85 charge is not a penalty. Both ParkingEye and the landowners had a legitimate interest in charging overstaying motorists, which extended beyond the recovery of any loss. The interest of the landowners was the provision and efficient management of customer parking for the retail outlets. The interest of ParkingEye was in income from the charge, which met the running costs of a legitimate scheme plus a profit margin. Further, the charge was neither extravagant nor unconscionable, having regard to practice around the United Kingdom, and taking into account the use of this particular car park and the clear wording of the notices.

 

The result is the same under the 1999 Regulations. Although the charge may fall under the description of potentially unfair terms at para. 1(e) of Schedule 2, it did not come within the basic test for unfairness in Regulations 5 and 6(1), as that test has been recently interpreted by the Court of Justice in Luxembourg [102-106]. Any imbalance in the parties’ rights did not arise ‘contrary to the requirements of good faith’, because ParkingEye and the owners had a legitimate interest in inducing Mr Beavis not to overstay in order to efficiently manage the car park for the benefit of the generality of users of the retail outlets. The charge was no higher than was necessary to achieve that objective. Objectively, the reasonable motorist would have, and often did, agree to the charge."

[dugong]

So PPCs are virtuous altruists?

 

Jesus wept.

[nebuchenezer]

There is a world of difference between legal and moral

[Bear]

Is it bad that I understood the OP? Too long reading parliamentary bills for arguing on the internet purposes :/

[dugong]

There is a world of difference between legal and moral

And there's a difference between over staying in a car park in the middle of the day and in the early hours of the morning when you're the only person there.

 

Blah blah blah lawful versus legal, the law knows no difference, gibber gibber gibber.

 

Remind me to file PE's self-congratulatory press release under 'recycle'.

[Bear]

My favourite bit of the judgement is the phrase "an ancient, haphazardly constructed edifice which has not weathered well", which may indeed be true of the law on penalty clauses but is also as good a description of me and my fleet as ever I've heard.

 

Some of the finest phrasing ever has come from the minds of Judges crafting an exceptional put-down.

[Bear]

The solution for those upset by this is to now establish that if there is a legitimate interest in charging motorists, that this is a business model, there should also be a responsibility for that parking to be secure. I suggest lobbying your MP to propose legislation that makes ANY chargeable private parking facility liable for the vehicles parked there, mandatory insurance as part of the licensing process for the firms - without which they should be denied access to DVLA data for pursing claims.

[Louise2cv]

Good.

 

I'm sick of parking whinging.

 

On another forum I was the only person of about 20 not to support a lady (who apparently works in law) who was moaning about over staying in a carpark.

 

She admitted she knew the carpark was 2 hours free, she knew she had overstayed, she knew there were anpr cameras and she knew that the charge for overstaying was £60. She was going to research ways of getting out of it and was disappointed that the outcome of the above case wasn't decided at that time. She went on to explain that she had checked the planning permission for the site and that it had been a condition of the planning agreement that the company offer free parking for a max 2hrs ("but but but...").

 

Everyone else was wishing her luck, I said I thought it was morally wrong to try and contest it given that she knew all of that, and if she really believed the charge was disproportionate maybe she should have declined to enter the contract and parked elsewhere?

 

She didn't respond go my post and instead went on to describe her plans for going back with her step ladders so she could check the lettering on the signage was the regulation size. FFS.

[Guest Breadvan72]

In English, please?

 

Sent from my SM-G900F using Tapatalk

 

 

It is written in very plain and clear English. People only think that they can't understand this stuff.  The trick is just to read it.  

[garbaldy]

Twice.

[LC Torana]

It is written in very plain and clear English. People only think that they can't understand this stuff.  The trick is just to read it.

 

No. It's out-and-out gobblydegook.

[BavarianRetro]

How do they prove that the registered keeper was the person driving or parking?

[martc]

Is it bad that I understood the OP? Too long reading parliamentary bills for arguing on the internet purposes :/

You are Old_Fart AICMFP.

[Guest Breadvan72]

They're not allowed to charge disproportionate fines any more.

 

At least that's what I inferred. Help me out here, Gerard.

 

Right and wrong.  They have NEVER been allowed to charge disproportionate amounts (it's not a fine, only the State can fine you).   They still aren't allowed to do that.  They are allowed to have a business that is based on charging people for parking like cunts.    85 quid is a reasonable amount to charge someone who parks like a cunt.

 

Solution: do not park like a cunt.  Then you pay nothing.  Park like a cunt, pay up.  Simples.

[Guest Breadvan72]

No. It's out-and-out gobblydegook.

 

 

Really, just try reading it.  It's just some words.  

[Conrad D. Conelrad]

It's perfectly clear. For instance, the bolded paragraph

 

 

The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation [32].â€Â

 

describes setting static timing using a bulb and wire.

[Bear]

You are Old_Fart AICMFP.

 

Hells NO. I read it and then accept that other people know more.

[Guest Breadvan72]

How do they prove that the registered keeper was the person driving or parking?

 

 

No need to do this.   If the claimant can show that whomever was driving probably saw the sign and became bound by the contract, then subject to certain hoops the claimant can go against the keeper  (see Schedule 4 to the Protection of Freedoms Act 2012).  The keeper can dump the liability by dobbing in the actual driver, if that is someone else, but does not have to do so. 

 

More generally. you prove stuff with proof.  You bring evidence.  Enough evidence to prove whatever you are trying to prove.  if you cannot prove what you need to prove, then you haven't proven it.  

[Bear]

Verdict: Unproven.

 

(Love that Scottish law took account of "We know you did it, but can't prove it.")

[Matt]

I can usually get my head around legalese but I'm still baffled by that.

 

 

No need to do this.   If the claimant can show that whomever was driving probably saw the sign and became bound by the contract, then subject to certain hoops the claimant can go against the keeper  (see Schedule 4 to the Protection of Freedoms Act 2012).  The keeper can dump the liability by dobbing in the actual driver, if that is someone else, but does not have to do so. 

 

More generally. you prove stuff with proof.  You bring evidence.  Enough evidence to prove whatever you are trying to prove.  if you cannot prove what you need to prove, then you haven't proven it.  

 

So under the right circumstances the registered keeper, who was not driving at the time, can be made to pay the fee even though they entered no contract on the grounds that they don't want to throw someone else under the bus?

[Richard]

Yes, that's been the case in England for a while now.

[dugong]

More generally. you prove stuff with proof.  You bring evidence.  Enough evidence to prove whatever you are trying to prove.  if you cannot prove what you need to prove, then you haven't proven it.

Tell that to the council SOC is dealing with.