For the record, here is the complete list of ParkingEye cases reported to The Prankster this week.
Case 1. Stayed until the Supreme Court judgment between ParkingEye and Beavis. ParkingEye wrote to the court a week before the hearing requesting a stay, but did not inform the defendant who turned up with their representative. The judge checked the paperwork and found that the court were due to write to the defendant that morning to inform them that the hearing was off. The judge agreed this was ludicrous. The defendant applied for a wasted costs order and the case was stayed.
Case 2. In a case previously stayed until the Court of Appeal judgment, The Prankster supplied last minute advice on submitting a skeleton argument quoting the case of Aziz v Caixa d’Estalvis de Catalunya, Tarragona I Manresa  3 CMLR 5, amongst others, and suggested a further stay was requested. ParkingEye opposed the stay. The judge was annoyed with ParkingEye, pointing out that he was the same judge in charge of the previous hearing, and that he had ordered ParkingEye to wait 21 days after the Court of Appeal hearing in case Mr Beavis appealed. ParkingEye waited 5 days. The case was stayed until February 2016.
Case 3. ParkingEye lost due to problems with their signage.
Case 4. In a case previously stayed until the Court of Appeal judgment, the judge struck out defence arguments on pre-estimate of loss before the rehearing. The Prankster supplied last minute advice on submitting a skeleton argument quoting the case of Aziz v Caixa d’Estalvis de Catalunya, Tarragona I Manresa  3 CMLR 5, amongst others, and suggested bringing this to the attention of the judge to reactivate the arguments and also to ask for a further stay until the Supreme Court hearing. The judge ruled for ParkingEye, but stayed execution until the Supreme Court judgment. If Mr Beavis wins then the claim is struck out; otherwise the motorist has to pay within 21 days.
He also struck out ParkingEye's claim for the motorist to pay the £27 POPLA fee.
Case 5. The Prankster supplied last minute advice on submitting a skeleton argument quoting the case of Aziz v Caixa d’Estalvis de Catalunya, Tarragona I Manresa  3 CMLR 5, amongst others, and suggested a further stay was requested. ParkingEye opposed the stay. The judge stayed the case until the Supreme Court judgment, after which ParkingEye have 14 days to reactiviate the case if they desire.
Case 6. The case was stayed until the Supreme Court judgment, but in any case ParkingEye's solicitor fee of £50 was struck out.
So out of 6 cases reported, ParkingEye have had 4 stayed, lost one and won the last, but only if the Supreme Court judgment goes their way. In two of the cases the amount ParkingEye can claim was reduced. This hardly seems like a 90% win record. It is possible that they do have a 90% win record, but this only illustrates that the other cases must be poorly prepared and that they are not using the correct legal arguments.
The case of Aziz v Caixa d’Estalvis de Catalunya, Tarragona I Manresa  3 CMLR 5, is of vital importance. It is a European Court of Justice case, and therefore takes precedence on all lower courts, which include the Small Claims Track, Court of Appeal and even the Supreme Court. It was quoted in the Supreme Court hearing of ParkingEye v Beavis, but was not mentioned in the Court of Appeal hearing.
It is therefore the highest court on record on these matters. Judges in the Small Claims track must give it precedence over the Court of Appeal judgment; this means that a Small Claims track judge either has to follow its judgment and rule for the motorist, or stay the case to see how the Supreme Court will interpret matters.
The case concerns how matters of imbalance are interpreted in consumer contracts, regulated in this country by the Unfair Terms in Consumer Contract Regulations 1999. Regulation 5 provides the following:
5.—(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.Paragraph 77 of the Aziz ruling states:
in order to assess whether the imbalance arises ‘contrary to the requirement of good faith’, it must be determined whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to the term concerned in individual contract negotiations.It is clear that no motorist would agree to such onerous terms if they were able to negotiate freely and with professional advice. The general rule is that in cases of breach of contract, only the losses cause by the breach can be charge. In ParkingEye v Beavis there was no direct loss, of course, but ParkingEye's average cost per ticket issued is around £18. Looking at it another way, the council charge for an overstay is £50 reduced to £25, so it is clear a charge of £25 is sufficient to deter overstays and this may also be a possible result of negotiation between equal parties.
However, £85 reduced to £50 would not.
The Court of Appeal judgment in the case of ParkingEye v Beavis clearly applies the wrong test for imbalance (para 34 and also para 37, 38). They upheld the original judges reasoning:
The judge […] held that the term did not cause a significant imbalance in the parties' rights and obligations because the charge was no greater than that which a motorist could expect to pay for overstaying in a municipal car park.However, not only was this reasoning out of line with the Aziz case, it was also factually incorrect because the charge for overstaying in a municipal car park in that area is £50 reduced to £25.
The Prankster therefore believes it is imperative that in forthcoming cases, and until the Supreme Court judgment is available, the Judges attention should be drawn to the Aziz judgment, and also to the cost of overstaying in council car parks local to the case in question.
The full Aziz judgment is available online. A printout should be taken to assist the judge.
The Parking Prankster