ParkingEye lost for the 3rd time against Bargepole in High Wycombe, according to this post on moneysavingexpert.
However, it looks like the courts are now in two minds about the lack of standing to bring claims, with Judge Jones reversing her earlier decision after taking regard to VCS v HMRC.
In that case, VCS were the principal, issued permits to park, did not account to charges to the landowner and had the sole right to cancel charges.
In the current case, ParkingEye were agents of the landowner, did not issue permits, collected charges on behalf of the landowner and may have had to cancel charges depending on clauses in the user manual.
However, Judge Jones ruled that in this particular case, there were insufficient grounds of difference.
The Prankster thinks that this particular argument is not fully played out yet, and awaits to hear what HHJ Moloneys says on the matter.
The case then moved on to the issue of whether there was a contract between ParkingEye and motorist. For a contract to exist, there must be consideration from both sides. As this was a free car park, there was no consideration required from the motorist.
Judge Jones ruled that a contract did not exist, and therefore ParkingEye could not sue for breach of contract.
The LPC Lawyer tried to argue the £100 was a contractual charge, not damages for breach. However, Bargepole referred the court to several paragraphs in the Reply to Defence and Jonathan Langham's witness statement.
Bargepole explained how the Judge clarified the situation.
"If you give me your coffee mug as a gift, and it then cracked five minutes later, I couldn’t sue you."
Claim dismissed. £50 awarded to the defendant for loss of earnings.
Happy Parking
The Parking Prankster
VERY GOOD
ReplyDeleteWhen a motorist receives a Parking Charge Notice(PCN) from ParkingEye Ltd(PE) he/she receives two photographs showing the motorist's car. Each picture has a time and date stamp. The first time stamp shows the precise time when PE believes the contract between PE and the motorist was formed (i.e.concluded).The time stamp is very precise being recorded to the nearest second. The motorist will not have been aware of either time stamp, before the PCN arrives through the post. i.e. Before the arrival of the PCN the time stamps will not have been drawn to the attention of the motorist.
The following process is used by PE to obtain the pictures with the time stamps. The motorist enters the car park and proceeds to a parking space. During this journey, at some point in time, a photograph is taken by an Automatic Number Plate Recognition (ANPR) camera and a time stamp appended..The motorist will certainly be unaware of the exact time this photgraph occurs, even though the Time Stamp is recorded to the nearest second. Indeed the motorist may not even see the ANPR camera, or may not be aware such devices are being used. Certainly the time of the time stamp is not, in anyway, drawn to the attention of the motorist when the supposed contract is formed.
Neither does the motorist have access to the clock that is counting down the time of the stay in the car park, so it can be checked to see if an overstay is likely to occur.
Attention is drawn to the following extracts
1999 No. 2083
CONSUMER PROTECTION
The Unfair Terms in Consumer Contracts Regulations 1999
SCHEDULE 2 Regulation 5(5)
INDICATIVE AND NON-EXHAUSTIVE LIST OF TERMS WHICH MAY BE
REGARDED AS UNFAIR
(i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract;
Based on the UTCCR shown, it is clear that when a process, as described above is used by a private parking company, no contract can have been formed between the parking company and the consumer; since the parking company has sought to “irrevocably bind the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract” i.e. the time the contract starts.
There are many time based contracts e.g House Insurance, Motor Insurance none of these would be valid, without the start end end dates and times, being brought to the attention of the consumer. A timed parking contract is no different.
Agreed. If it's not a penalty, they are claiming absolute liability, which is insane. Any contract is an invitation to treat and you can just bill somone assuming that the offer has been accepted by being there (absolute liabilty). You have to prove that the driver knew that they had accepted the contract offer and the offer was being offered to begin with.
DeleteSuperb BP just superb
ReplyDeleteAnother day another loss i court for PE,
Rachel if you are reading this ask not for whom the bell tolls it tolls for thee.
Regards
RR
About time their web site was updated. Sept 2013 seems so long ago....
DeleteIf the Cambridge result goes their way, no doubt there will be a web update that afternoon. If it doesn't, we will have to wait for the appeal.
Delete