New POPLA staying cases to consider Beavis.

As well as the approximately 3,800 cases stayed from the old POPLA run by London Councils, the new POPLA is also staying cases.

No mention of how long the POPLA review will take has been made.

The Prankster considers this a sensible move. The Beavis case was won by the parking operator and parking companies have been calling this a landmark case which justifies all parking charges. Of course it does not and the Supreme Court were careful to point this out.

The Supreme Court judgment is binding case law, but that law may be beneficial to operators in some cases, and to motorists in others. For instance, Parking companies often quote the case of Vine v Waltham Forest to assert that a contract can be made by performance. However, that case was won by the motorist.

It is clear from the tweet that the 'clear wording of the notices' was important, but as a tweet is not binding case law it is also useful to clarify this by looking at the actual judgment.

In the Beavis case the penalty charge was present in huge letters in the largest font on the signage and with high contrast black on yellow, and was therefore found to be transparent and obvious to the motorist. There can be no doubt of the £85 charge

The Beavis judgment relies on the signage being obvious and the amount of the penalty being known to the consumer so they could make their decision whether to park and risk a huge penalty. Here are a few of the references to signage from the judgment:

Para 100: “The charge is prominently displayed in large letters at the entrance to the car park and at frequent intervals within it” and “They must regard the risk of having to pay £85 for overstaying as an acceptable price for the convenience of parking there.”

Para 108: “But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85”

Para 199: “What matters is that a charge of the order of £85 (reducible on prompt payment) is an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.”

Para 205: “The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.”

Para 287: In so far as the criterion of unconscionableness allows the court to address considerations other than the size of the penalty in relation to the protected interest, the fact that motorists entering the car park were given ample warning of both the time limit of their licence and the amount of the charge also supports the view that the parking charge was not unconscionable

Case law from Beavis would therefore lead to the conclusion that a vital ingredient is that the signage be ample, the charge clear.

Take for example this sign from Excel Parking from the Peel Centre, one of the most complained about car parks in the country.

The sign is a mass of confusing and contradictory words. The charge, in case you did not spot it, is £100 hidden in the small print at the bottom of the sign. Additionally, large parts of the sign are in blue on yellow, a combination warned against by the British Parking Association code of practice as hard to read.

Binding case law from the Beavis case would therefore appear to support the assertion that the charge of £100 in the Peel Centre would be a penalty and therefore not enforceable.

Similarly, in the ParkingEye case it can be seen that the car park was a customer only car park from which you may initially conclude that if you park there, but are not a customer, then you need to pay the charge of £85. However, look a little closer at the wording of the sign. A Judge in the Beavis judgment, at para 193,  observed that - “The only comment that one might make, is that, although the signs made clear that it was a “Customer only car park”, the Parking Charge of £85 did not apply to this limitation”.  So, even in the Beavis car park if they sue anyone for £85 for parking whilst not being a customer ParkingEye is on a loser. It appears that far from being a deterrent to commuters staying all day, what ParkingEye have created is a car park where they can only gouge genuine customers.

POPLA will therefore need time to consider this and other issues and The Prankster will keep an eye on developments.

Happy Parking

The Parking Prankster