Thursday, 24 July 2014

New transcripts, including ParkingEye v Collins-Daniel judgment

Several transcripts are available on the Prankster web site, including District Judge Melville-Shreeve's approved judgment in the case of ParkingEye v Collins-Daniel.

CEL v McCafferty. This is important for cases where the claimant argues the charge is not a penalty, but a contractual charge

UKCPS v Gaskell. Useful for UKCPS cases. Also useful comparison with council penalties; fine for parkingon a clearway is £35. Therefore £100 for the far less heinous fault of parking inconsiderably is ostensibly disproportionate.

Lordsdale Finance v Bank of Zambia. A case often quoted by ParkingEye, but which actually works against them.
“Whether a provision is to be treated as a penalty as a matter of construction to be resolved by asking whether at the time that the contract was entered into the predominant contractual function of the provision was to deter a party from breaking the contract or to compensate the innocent party for breach.  That the contractual function is deterrent rather than compensatory can be deduced by comparing the amount that would be payable on breach with the loss that might be sustained if breach occurred.”

This can be used to show that the purpose of the charge is a deterrent as the amount is not comparable with any loss.

Cutter v Eagle Star. A ruling that the lanes in a car park are highway, but the spaces are not.

CNC v Zhang. A case where commercial justification was not allowed. The Defendant was an individual, but probably not treated as a consumer.
"Mr Westgate has also suggested that the agreement to pay US$40,000 plus costs plus damages for loss of business was not a penalty, because it was no more than an       agreement that in the event of a breach of any of the terms in paragraphs numbered 1, 2 or 3, the US$40,000 would be repayable on the grounds that there had been a total failure of consideration. I cannot read the agreement in this way. It seems to me to be plain that upon its true construction the agreement provides that in the event of any breach of its terms by Mr Zhang, he should pay compensation to include repayment of the US$40,000. The question then becomes whether that provision was a penalty. For the reasons  given by my Lord, I would hold that it was a penalty. The substantial sum of US$40,000 was repayable for any breach, no matter how trivial. It is difficult to see what losses, other than those in relation to loss of business, CMC would itself suffer for any breach of the terms stated in the letter, and the agreement provides for the recovery of those losses in addition to therepayment of the US$40,000." 

ParkingEye v Collins-Daniel. A well reasoned judgment showing that there was no contract, but even if there was, the contract was ambiguous, but even if it was not the charge of £85 was excessive and clearly a penalty.

No comments:

Post a Comment