BackgroundThis blog post details the second attempt to hear a test case by HHJ Moloney. The claim concerns two defendants who were genuine shoppers and simply overstayed at Riverside Retail Park, Chelmsford.
This case is significant because large numbers of cases around the country are stayed to await the result. It is no secret that the industry would have to have a big rethink on their business practices and charge levels if the claim was dismissed. On the other side of the coin, defendants in similar cases would have to rethink their defences if the claim was upheld.
Following the fiasco of the first hearing, the date of the second hearing was kept tightly under wraps.
Jonathan Kirk QC and Mr Altaras were acting for the claimant, ParkingEye. Mr Foster was acting as lay representative for the two defendants, assisted by Bargepole.
HHJ Moloney opened up by stating that he would be reserving judgment today and that he hoped his ruling would be useful in resolving further disputes in that part of the country. He laid out a schedule of 1 hour to question the claimant witness, Mr Alex Cooke, chief enforcer, and 1/2 hour to question each of the defendants. There would then be the afternoon for the claimant to lay out their case, the defendants to respond, and a final right of reply to ParkingEye.
Mr Kirk asked to able to open with a short statement which the judge allowed and at 10:40 Mr Kirk began, explaining that the £85 charge was for overstays at the car park, that the charges were not penalties because they were reasonable and a genuine pre-estimate of loss. The purpose of the contract is so that parking is not abused and this was a value to the landowner. The claimant's business would be damaged if they could not enforce £85 charges, which could lead to the landowner cancelling their contract. This would lead to ParkingEye losing the revenue of £85 from the parking charges. Therefore the charge was a genuine pre-estimate of loss.
HHJ Moloney asked if the claimant's sole source of income was fines, which was confirmed. He commented that it was an unusual feature of this case that the claimant's business model hinged on overstaying and issuing of charges.
He further stated that one question to be decided was whether the consumer was required to pay a disproportionate sum looking at the contract as a whole, and whether this caused imbalance between the parties.
Witness - Mr Cooke
At 11:00 Mr Altaras called Mr Cooke as a witness. He asked if Mr Cooke had ever visited the site, which he had the day before the last hearing. Mr Cooke stated signs were ample and visible, and that there were around 7 retailers on the site, which was a 10 minute walk from the city centre and 15 minutes from the station. He confirmed there were 2 other sites nearby, not managed by ParkingEye, which charged £70 and £85 for overstays. He stated that Savilles manage the site on behalf of British Airways Pension Fund, but that in his opinion they do not have the authority to cancel parking charges.
HHJ Moloney wondered that just because one set of pirates established a charge without basis, it did not mean that other pirates were justified in also setting the same charge.
He stated that a sample contract, dated 12-September-2008 and submitted by the defendants was no longer in use and that newer contracts used different wordings. However, there were many contracts, all in different stages of changeover so there was no standard wording.
Mr Foster took over questioning. He accepted the signs were there to be seen, but not that they were there as described. He pointed out that the signage stated ParkingEye were 'solely engaged to provide a traffic maximisation scheme' and asked what that was. Mr Cooke stated this was to achieve the best turnover of shoppers for the client. This was done by setting a maximum stay. Mr Cooke stated that the £85 charge was there to provide a deterrent to overstaying.
When asked what ParkingEye's direct loss from an overstay was, he confirmed there was none. If there was no breach of contract, then no payment would arise.
He was invited to explain the part of his witness statement where he said that 3 letters were sent to each defendant, each inviting them to appeal. He confirmed that appeals could only be accepted for the first 28 days, and that the third letter was sent after the 28th day.
Mr Foster asked why the witness statement said defendants were invited to appeal, if in fact they could not appeal.
Mr Cooke explained that although the defendants technically could not appeal on receiving the third letter, ParkingEye do sometimes accept appeals after this date.
He was asked to explain what the words 'Parking is at the sole discretion of the site' meant, but could offer no explanation.
HHJ Moloney asked what would happen if a burger van turned up and 'the site' wanted them kicked off. Mr Cooke stated in that case the site could phone up ParkingEye who would send out a mobile enforcer to move the van.
Witness - first defendant
At 11:20 the first defendant was called. He confirmed he had used the site around 12 times previously, but never since the incident. He had a football injury at the time, which lasted several months, but less than a year which meant he needed longer to shop.
He was asked if no charge should be applied for overstays or if so, what level of charge would be too much. He replied he was not qualified to answer that question.
HHJ Moloney asked if blue badge holders were also limited to 2 hours stay. ParkingEye confirmed this was the case. Blue badge owners did not have more time; they just had a better chance of parking due to the provision of blue badge spaces.
The other defendant was not called as a witness.
Legal Arguments - ParkingEye
At 11:30 Mr Kirk began his legal arguments
He confirmed ParkingEye pay £1,000 a week to the landowner and in return get to keep all parking charge revenue.
He ran through several clauses in the landowner contract, some of which he admitted were confusing, and stated these showed ParkingEye were enforcing parking charges as the principal.
HHJ Moloney queried whether in fact they enforcing as an agent.
Mr Kirk stated there was a contract between ParkingEye and motorist and that the consideration from the motorist was that they would pay £85 for breach of contract if they stayed more than 2 hours.
HHJ Moloney asked whether as ParkingEye were paying British Airways, was this like a rent so that BA have given up their parking rights to ParkingEye?
Mr Altaras pointed out that the definition of long-term disability was more than 1 year and therefore the Equality Act 2010 did not apply to the first defendant.
Mr Kirk stated that the test for a penalty is if the sum demanded is extravagant or unconscionably greater the than the costs.
HHJ Moloney pointed out that 'terrorising' parkers is the whole point of the contract. It is intended to coerce the motorist into staying within the limits.
Mr Kirk disagreed, stating that although it is a deterrent, this is always the case with breach of contract amounts, so this was not the test.
HHJ Moloney replied this seems like a paradox. 'I have to consider the commercial justification. The bigger the fine, the better the deterrent and the better the commercial justification'.
Mr Kirk explained that with consumer law (UTTC 1999) this focused on proportionality.
Mr Kirk drew attention to Robophone v Blank, which although before consumer law, showed that a penalty clause should not be decried.
HHJ Moloney wondered that we would not all be here if the charge was £5 for the third hour.
Mr Kirk drew attention to Murray v Leisureplay which showed the modern test for a penalty was whether it was extravagant compared to actual costs.
He also drew attention to the Cavendish case.
Mr Kirk explained that the UTTC 1999 rules show contracts are unfair if they put the burden of proof on the consumer. Thus the burden of proving a charge was a genuine pre-estimate of loss could not fall on the consumer, but would be the responsibility of the claimant.
HHJ Moloney explained that he would be considering the following in his judgment. Was the charge a penalty? Was the charge enforceable under UTTC 1999?
Mr Kirk asked whether it could be the case that common law provides greater protection than the regulations.
HHJ Moloney stated this was false logic.
HHJ Moloney pointed out that the cases relied on so far regarding commercial justification were all between massive companies where the contract had been individually negotiated with full legal advice for both sides. This would therefore be something of a test case as there were no consumer contract cases on file.
He explained he would consider whether the charge so large compared to normal costs then it would be a penalty. If so, the claim would be struck out.
Mr Kirk drew attention to the First National Bank case, which was the leading case on unfair terms to consumers. There, the terms were unfavorable if there was an imbalance to consumers. Proportionality is the key, along with good standards of commercial morality and sound practices. He pointed out the charges were similar to other car park operators.
HHJ Moloney pointed out that in fairness to the industry they might all agree on the same prices, which did not make them correct. He asked whether £85 was far too much.
Mr Kirk referred to Arthur v Anker, a clamping case. This was in 1992 and the charge in that case of £45 would be £74.60 with inflation in today's prices.
HHJ Moloney pointed out that ANPR has different economics to wheelclamping and does not have men on the ground. He pointed out he had not seen any costings for this 'virtual' enforcement, or their profit model, and that if all car parks charged the same they could all be disproportionate. Also in Arthur v Anker the landowner employed the clamper, whereas in this case ParkingEye were arguing they were the principal.
HHJ Moloney then stated again that no costs had been shown by ParkingEye and the burden of proof was on them. He asked whether he should not strike the case out. He asked whether the sum was high in relation to the costs. He also asked whether the sum was high in relation to the penalty needed. If a penalty of £50 or even £10 would be enough to discourage overstays, then £85 would clearly be too high.
Lunch was then taken at 1.00 for a 2.00 restart.
The afternoon session follows in the next blog post.
The Parking Prankster