A0JD1405 ParkingEye v Cargius. (25 November 2014, Wrexham County Court). DDJ Mahy dismissed the claim, The charge of £100 far exceeded the cost of the overstay (£2) and subsequent costs. Commercial justification did not apply because the car park generated substantial revenue and therefore it was not necessary to charge large amounts for transgressions to make management commercially viable.
Mr Cargius has generously made the full judgment available which can be downloaded from The Prankster website as exhibit CS027 from the case law page.
The Prankster recommends that all motorists being charged for overstay in paid car parks reference this case in their defence, and file a copy of the judgment as evidence.
Ironically ParkingEye themselves have also argued in court that PE v Beavis and Wardley is not applicable to paid car parks. This does seem an unusual approach as they base their whole justification on this case.
ParkingEye also regularly fail to mention in their claim that this case is going to the court of appeal in February 2015. Defendants should therefore also take with them HHJ Moloney's right to appeal document, available on the exhibits page.
Other issues
The Prankster also notes that DDJ Mahy has followed HHJ Moloney's decision that ParkingEye are the principal in the case. The Prankster disagrees with her, but she can only rule on the evidence before her. ParkingEye improperly redact contracts when they show them to judges to give the impression they are the principal. ParkingEye have previously threatened to take legal action against the Prankster for exposing the fact they improperly redact contracts. However, The Prankster can confirm that the contracts supplied to both HHJ Moloney and DDJ Mahy were improperly redacted and therefore deceived both judges.
The full story of the case is available here
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Ironically it appears that the withholding of the full contract to give the impression that PE are the principal has blown up in their face here.
ReplyDeleteSince the Judge thought they were already taking parking fees then the loss wasn't required on a commercially justifiable basis.
Had they presented themselves as an agent of the landowner with no income other than parking (penalty) charges, they may have more chance of a win if the judge didn't think them to be charging excessive amounts for their services.
PE are caught between a rock and a hard place. They have to show themselves as principal in order to introduce the Beavis decision, but in a Pay & Display the loss is already quantifiable; as the parking tariff plus some admin cost. Whether that loss is the Landowner or PE it's clearly not £100.
DeleteIs the judgement only a draft as it appears ?
ReplyDeleteDon'y want any contempt charges.
How thick are the people at PE...the blokes MP wrote asking them to withdraw it...they refused.
ReplyDeleteWay to go...make an enemy of an MP who might have the ear of the minister in charge it all...
have you come across
ReplyDeleteThe Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013
Additional payments under a contract
40. (1) Under a contract between a trader and a consumer, no payment is payable in addition to the remuneration agreed for the trader’s main obligation unless, before the consumer became bound by the contract, the trader obtained the consumer’s express consent.
(2) There is no express consent (if there would otherwise be) for the purposes of this paragraph if consent is inferred from the consumer not changing a default option (such as a pre-ticked box on a website).
(3) This regulation does not apply if the trader’s main obligation is to supply services within regulation 6(1)(b), but in any other case it applies even if an additional payment is for such services.
(4) Where a trader receives an additional payment which, under this regulation, is not payable under a contract, the contract is to be treated as providing for the trader to reimburse the payment to the consumer.
express consent is written or verbal most parking cases rely on implide consent