Arguments to use if ParkingEye try and use HHJ Moloney's judgment in your case (2/3) Appeal

ParkingEye are quoting the HHJ Moloney judgment in every claim they now make. However, HHJ Moloney realised that his judgment was breaking new ground and may well be overturned. He therefore gave permission to appeal, and Mr Beavis has now filed appeal papers

If you are in this situation with ParkingEye, it is therefore worth filing HHJ Moloney's permission to appeal document with your case, to make your judge fully aware of the situation.

Here is a copy of his leave to appeal.

 

The Prankster has made this available on his website where it can be downloaded as exhibits 39 or 40 (an OCR version which may contain errors)

I allowed permission on the main issue, which is whether a charge of £85 for as little as half an hour's overstay in a car park is an unenforceable penalty clause.
I decided that, although it has the principal characteristic of a penalty, namely an intention to deter breach rather than simply compensate for loss occasioned by breach, nevertheless it was enforceable because it was commercially justifiable and not disproportionate or oppressive. There are no clear decisions of the higher courts on this point in this or a similar context, but recent Court of Appeal decisions in commercial cases indicate varying approaches.
There is a real prospect that a higher court might conclude that this was an unenforceable penalty and/or unfair contract term. I refused permission on the other issues which only raise standard contract points. But this appeal I have leapfrogged to the CA.

Please indicate which of the following criteria apply:
x There appear to be conflicting authorities.
x There is a point of general principle and importance in the development of the substantive law.

1. At a practical level, there are numerous such cases pending in small claims courts, where litigants in person are taking these legal points (which they find on the internet) and busy DJs are asking for clear authoritative guidance so defences can be struck out and court time used efficiently.
2. Normally an appeal from me in a multi track trial would go to the CA not the High Ct. This case was nominally a small claim but was conducted like a multi track with leading counsel.
3. A High Ct Judge would be confronted with the same absence of clear CA authority as me and the case would probably end up in the CA anyway but after considerable delay

The Prankster therefore recommends that in your case you refer both to this, and also to paragraph 1.2 of the judgment.

On the grounds of standing to bring the case, it is apparent that most car parks ParkingEye operate have a different landowner contract, and so the judgment does not apply. The Prankster has already blogged about this.

On the grounds that the charge is a penalty, it is clear that 'there is a real prospect that a higher court might conclude that this was an unenforceable penalty and/or unfair contract term' and that 'There appear to be conflicting authorities'

You could therefore ask for a preliminary hearing to be heard on all grounds apart from the level of charges, and if the case is not decided by that time for it to be adjourned to await the result of the court of appeal hearing.

Costs

In the event that your judge decides to agree with HHJ Moloney's reasoning before the court of appeal verdict, it is well worth pointing out that HHJ Moloney did not award the solicitor filing costs for Rachel Ledson of £50, but only awarded the parking charge of £85, the court filing fee, and the court hearing fee, totalling £135.

You should therefore also ask that the same reasoning be applied in your case, and Rachel Ledson's charge of £50 be removed from the costs.

Rachel Ledson is an employee of ParkingEye, and so her charge has already been accounted for in the parking charge, so this would be double charging. Moreover,  as she files up to 2,000 claims a week, she can only spend a minute or so filing each case and so this charge cannot be justified/

Prankster Analysis

In general (not just parking cases) the Ministry of Justice make most of their money from claims which are filed and then the defendant is scared into paying by the threat of court action. They lose money if a case goes to a hearing; a judge's time is far more expensive than the £25 hearing fee.

Parking cases are throwing a spanner into the works, because large numbers are being defended, there is little binding case law, and there are often many detailed points of law to argue; so cases take up a lot of time.

This is presumably what is behind HHJ Moloney's statement:

At a practical level, there are numerous such cases pending in small claims courts, where litigants in person are taking these legal points (which they find on the internet) and busy DJs are asking for clear authoritative guidance so defences can be struck out and court time used efficiently. 

In retrospect, he may have reworded it a little more judiciously, such as 'defences or claims struck out'.

However, the point is there that courts need to bear in mind the overriding objectives of the practice directions, which are available at this link;

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part01#1.1

They state (The Prankster's highlights)

(2) Dealing with a case justly and at proportionate cost includes, so far as is practicable –
(a) ensuring that the parties are on an equal footing;
(b) saving expense;
(c) dealing with the case in ways which are proportionate –
(i) to the amount of money involved;
(ii) to the importance of the case;
(iii) to the complexity of the issues; and
(iv) to the financial position of each party;
(d) ensuring that it is dealt with expeditiously and fairly;
(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; and
(f) enforcing compliance with rules, practice directions and orders.

With large numbers of claims for £70 - £100 taking large amounts of court time it is clear these overriding objectives are not being met.

It is therefore also worth bring the courts attention to the fact there is a perfectly reasonable and well established way to resolve these disputes without involving further court time, and this is to refer it in the first instance to the industry standard ADR, which in the case of ParkingEye is to appeal to them and then use POPLA if the dispute is still in issue.

It is worth pointing out to the court that there are no obstacles to using POPLA, apart from self imposed ones raised by the parking companies and which have no validity. You can also point out to the court that all claims which have been referred to POPLA have been accepted by POPLA with no issues, and have been resolved there without needing to return to court and without wasting further court time.

The Prankster maintains a dedicated web page listing the cases which have been referred to POPLA.

Happy Parking

The Parking Prankster