The judgment is here.
The COA have neatly sidestepped the fundamental question of the appeal, which was whether penalties could be commercially justified.
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.
Their lordships thought 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.
Permission to appeal was granted.
Happy Parking
The Parking Prankster
A council charge is a penalty, so a private charge of the same level or more must also be a penalty.
ReplyDeletecouncils don't tend to charge £100 for parking, they charge pence or a few quid and issue a penalty often smaller than PE when ppl overstay, so PE charges aren't in line. Their penalties are more and are obviously penalties, as you stated. Using the chicken and egg circular argument is just simply frustrating, if a business model is unworkable, it is unworkable, it shouldn't allow you to force the law to fit. Because you will lose your contract as it is based on you charging legally unenforceable penalties does not give you a right to charge legally unenforceable penalties, making them legal.
ReplyDeletedoes this mean POPLA arguments about pre-estimate of loss still hold, unless PE are willing to pay back VAT and claim bare licence? In which case would they claim they have a right to charge more or else again the landowner contract would be un-workable?
ReplyDeleteI start thinking after reading this "PE would suffer a likely loss of contract with the BA Pension Fund if they were unable to perform the contract with them. " , since when has any court of law "looked" after a company , in 99.9999% of cases they would have said "tough shit" , renegotiate
ReplyDeletelooks like this goes higher than the courts
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ReplyDeleteAgree, if a company enters into an arrangement that costs them money eyes open then tough indeed.
ReplyDeleteappeal to supreme court now granted , wonder if the judge was unhappy with being told what to do?
ReplyDeleteWhat a mess!
ReplyDeletelets not forget that the UK government lent PE £100,000 towards there setup costs , and upto the sale to capita held 8% shares and profits
ReplyDeleteFull decision here:
ReplyDeletehttp://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2015/402.html
how nice of the mail online to refer to PE as "parking cowboys"
ReplyDeletehttp://www.dailymail.co.uk/news/article-3052063/Victory-parking-cowboys-Appeal-court-throws-chip-shop-owner-s-challenge-unfair-charges-park-private-land.html
Presumably PE have not agreed to waive costs as they did in the CoA for any appeal to the Supreme Court. Will Mr Beavis be risking the appeal given the potential financial implications?
ReplyDeleteWith the CA behind him Mr Beavis has only his own time to worry about, a brave man nonetheless.
ReplyDeleteSo given that this case is now with 100% certainty going to the Supreme Court (which will probably take at least another year) - what exactly has changed since yesterday? The same uncertainty remains, and surely county courts as well as POPLA will have to continue to stay cases pending this appeal to the Supreme Court?
ReplyDeleteHas this actually been confirmed, or has it just been confirmed that leave to appeal has been granted.
DeletePE will quote Beavis and 'forget' to note its being appealed so no change.
ReplyDeleteAye, sounds like business as normal for PE and all the others.
ReplyDeleteAssuming the Court of Appeal have sent a statement supporting leave to go to the Supreme Court they will almost certainly take it. Such supportive statements are as rare as hens' teeth.
ReplyDeleteJudge made law rules....statute rocks :-)
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ReplyDeleteHow PE proved they suffered a loss and needed to cover their expenses for the breach when operating a free carpark is about as crazy proving the earth is flat, but that the justice system for you, These sanctimonious old farts that made this decision must live on a different planet.
ReplyDeleteI have an appeal into POPLA just now. I have been informed of a short delay as a result of the Beavis case, however there is still time for me to submit additional evidence. Should I write to ask for a stay pending the outcome of the Beavis appeal to the Supreme Court ? The problem is that (as of 29 May) the appeal has not been formally submitted, only permission granted. Any views on this delaying tactic ?
ReplyDeleteI received an invoice from Parking Eye and refused to pay, along the lines of Mr Beavis. This went to POPLA in May, but I have not been informed of the outcome. The judgement of the Beavis case has since been reached and made public, and this has been quoted in a threat for legal action from Debt Recovery Plus on PEs behalf. What would be the advised course of action? Just pay up, or go to court?
ReplyDeleteAbout time a group called anonymous got into these firms: Hack the heck out of there web sites and all the technology that they employ - group concerted effort - everybody refuse to acknowledge them - send them out of business.
ReplyDelete