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Tuesday 24 February 2015

ParkingEye v Beavis- Court of Appeal



The courtroom was full to overflowing for the hearing, with representatives from Parking Companies such as Park Direct and Euro Car parks; debt recovery companies such as Debt Recovery Plus, ATAs such as the Independent Parking Committee, and of course representatives from motoring organisations such as the BMPA, NMAG, NoToMob, pepipoo and MSE.

Adding to this were the legal teams. Barry Beavis was represented by Sa'ad Hossain QC and members of his chambers, ably assisted by Davis Carrod and Andy Foster. ParkingEye had Jonathan Kirk QC to represent them, with David Altaras and Rachel Ledson sitting behind to open folders and find the right pages. Alex Cooke and other employees of ParkingEye were also present. The Consumer Association had three representatives.

The three judges kicked off proceedings at 11, Lord Justice Moore-Bick took the centre seat with Lord Justice Patten on the left and Sir Timothy Lloyd on the right.

Mr Hossain was all over the legal arguments but struggled with the fundamentals of how parking actually works. Lord Justice Moore-Bick expressed the opinion that the problem could be solved simply be reinterpreting the signage so that the amount was a contractual charge rather than for breach of contract. This of course would have been a disaster for ParkingEye, leading to a huge backdateable VAT bill and a disaster for landowners, with a huge backdateable rates bill, but these points were not raised. However, Mr Hossain responded by saying he disagreed, because the disparity between the first two hours (free) and anything after that (£85) would tend to indicate it was a disguised penalty. [Prankster note; this has already been established in the CEL v McCafferty appeal]


Lord Justice Moore-Bick expressed the opinion that it would be chaos if ParkingEye were not able to enforce parking regulations, but nobody took the opportunity to point out that many other parking companies, with enforceable charges in the region of £20-£30, could have successfully managed that car park as they do many others all around the country.

Lord Justice Moore-Bick also fancied that he might like to reinterpret ParkingEye's contract with the landowner so that they were agent and not principal, but the contract was written in illegibly small blue on white writing, and could not be read.

Lord Justice Moore-Bick also fancied their might not be a contract with the motorist at all, but a licence to park. This was Andy Foster's argument in the previous hearing, but was dismissed by HHJ Moloney.

Lord Justice Moore-Bick expressed the opinion that it was in the interests of the landowner and retailers that a 2 hour limit be observed. No one took the trouble to point out that is was not proven that the landowner  was happy with the arrangement. Many other landowners, such as Somerfield, B&Q and Northumbria Health Trust have kicked out ParkingEye because of their aggressive ticketing policies. Other landowners may want to kick out ParkingEye but are too scared because of the penalty clauses in their contract, such as the one ParkingEye enforced on Somerfield. Retailers at Riverside retail park are apparently unhappy with ParkingEye because ParkingEye decreased the parking time from 3 hours to 2 hours so they could keep up their enforcement revenue, and the retailers have not reported seeing any benefit from this cut in time.

Lord Justice Moore-Bick expressed the opinion that if ParkingEye were not allowed to manage the car park then disabled motorists would be seriously disadvantaged by able-bodied motorists pinching their spot. At this point The Prankster could take no more and scribbled stuff on his pad ready to make a paper aeroplane and throw it at Mr Hossain. Luckily Mr Carrod beat him to it, and as he was sat considerably closer was able to pass it to Mr Hossain, who was then able to inform the court that ParkingEye did not stop motorists abusing disabled spots. They were purely involved in traffic management which was dome by cameras at the entrance and exit, and which did not monitor disabled spots.

There then followed a long and detailed trail through the authorities on penalties. Sir Timothy Lloyd looked to be asleep, but of course this could not be correct as The Prankster was a long way back and Sir Timothy must just have been concentrating with his eyes closed.

At the lunch break The Prankster was worried that Mr Hossain has lost the judges and that they were more concerned with parking becoming unenforceable that the legal arguments. This could have been easily addressed in The Prankster's opinion.

After lunch Patrick Troy of the BPA rocked up. The courtroom was full so first he tried to sit in ParkingEye's seats, but was politely moved on as he was not involved with the case. The only other seat was by Will Hurley from the IPC, so with an uneasy look Mr Troy settled in beside his arch rival.

Mr Kirk did not appear to fare much better than Mr Hossain once the afternoon session started. The judges were not always convinced by Mr Kirk's interpretation of the key references. Crucially, they could not understand where ParkingEye's losses were. If the landowner managed the car park, the losses would be obvious. Similarly, if ParkingEye restructured the contract so that there were penalties to them for overstays, that would also work. But with the current contract (which had been reprinted on A4 at lunch time) no loss to ParkingEye could be identified.

In fact, ParkingEye profited from overstays. The only loss Mr Kirk could identify was if ParkingEye got sacked. Thus, ParkingEye's charge of £85 was valid because if they could not enforce it, they would get sacked and lose the right to charge £85. Thus their potential loss was £85. [Prankster note: the trouble with this circular argument is that £85 can be replaced by £x, where £x is any number, and the logic would still hold. The lowest £x The Prankster knows of where parking enforcement still works is £20]

The Judges did not seem too impressed by this argument and asked if there was any evidence at all that the landowner would cancel the contract.

At this point Mr Kirk accidentally called the charges penalties, which led to laughter all round and murmurs of 'own goal', and he then struggled to find any justification at all.

The judges eventually called a halt to proceedings without the Consumer Association being required to talk at all. Judgment was promised at an unspecified time in the future.

Prankster Note

There was no real indication what the judges would decide, and The Prankster thought it could go either way. The defendant's team failed to address the issue that parking would descend into chaos, while the claimant's team failed to establish any loss had occurred.

It is possible that whatever the judgment is, it will not clear up the situation. Several options were mentioned during the hearing which could allow ParkingEye to change their business model in the future. On the other hand, the judgment may only turn out to be applicable to the very few free car parks where ParkingEye pay £1,000 a week to the landowner.

Happy Parking

The Parking Prankster

34 comments:

  1. From your notes above, the defence appeared ill prepared, strange that since they had over three months to prepare for such a high profile case.
    Had Mr Hossain been called up to represent the defendant at the last minute? or had he been found out like a naughty school boy not doing his home work?

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    1. Mr Hossain was tip top on the legal arguments, which after all should be what the case is decided on.

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    2. from what you have written it appears he was lacking knowledge is this subject.!
      "At this point The Prankster could take no more and scribbled stuff on his pad ready to make a paper aeroplane and throw it at Mr Hossain."
      I was merely stating from your comments that Mr Hossain imo hadn't done his homework regarding the issue at hand.

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    3. Not sure what case you were watching, but I thought the legal arguments from both sides were pretty poor.

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    4. Ah well, perhaps I have not watched enough cases to know what a good argument is like. Somehow it does not come across as smooth as Garrow's Law in real life.

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    5. Mr Hossain focused his argument (at length) on the argument that, for commercial justification to be found, the predominant purpose to the clause must not be to deter, but could give no response when asked by Brick-Moore LJ how the predominant purpose of the clause could be to deter when, as he himself had stated, it is the sole income for PE and they have no desire to deter breach.

      Mr Kirk on the other hand couldn't provide a loss. Personally I was surprised he didn't at least trot out the £20 figure and attempt to argue that the amount of £85 was neither extravagant nor unconscionable in comparison, given his argument that extravagance and unconscionability should be the test applied.

      Personally I thought the judges preferred the straight up contractual model, and indeed Mr Hossain even said he would have no argument against the £85 charge if PE were not operating a breach model - though as you note this brings things into the realms of VAT etc.

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    6. It should be decided on the legal arguments, but your mention of the NoToMob reminds me that their Lordships quite openly decided the Westminster motorcycle parking charge appeal not on what the law actually said, but on what Westminster "should" be allowed to do. There may even have been a sotto voce chant of 'bonum communae communitatis'.

      I'm getting a bit of a twitch recalling that, and the propensity for their Lordships to take a 'bigger picture' view of motoring cases rather than sticking to the facts and statutes at hand.

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  2. I was hoping for something a little more clear cut. However, it appears that both sides fouled up to the same degree. Somehow, I don't think the end judgement will be the 'game changer' that most of us are hoping for.

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  3. I can't say I've been impressed with many of the so-called legal professionals (from both sides of the arguments and even some 'in the middle', so to speak, that get involved in private parking cases.

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  4. Sounds like a "Nil Nil" draw, to be decided by "Penalties"!

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  5. Sounds like a bit of an anticlimax, legal team sounds lax, judges don't seem to understand the issue at hand

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  6. Thanks for the report. I took a case to the Court of Appeal years ago and similarly came away thinking the issues had not been put across or understood sufficiently. A Judge also appeared to be nodding off. We left with mixed emotions and a despondent expectation. On later receiving the Judgement it was apparent the Judges actually took in and realized far more than we (or at least, I) had thought. We won. Thanks too to Barry for taking this through.

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  7. Parking eye pay. up to a £1000 a week to manage the sites? did I read that right? maybe we should pressure the landowners.

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    1. Keep up at the back there ;-)

      This was outed at the Moloney hearing where Jonathan Kirk accidentally read out the bit of the contract which was redacted for everyone else. The landowner is British Airways Pension fund, but I doubt they will care.

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  8. Surely the point here is not what PE may have do in the future but whether Mr Beavis at that time was given an unenforceable penalty.

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    1. The judges will of course be mindful that ParkingEye will have shelled out north of £100k so far to recover £85 so will no doubt want to give them a pointer on how to be a little more cost effective in future.

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  9. Problem with high flyer barristers is that they have a team who prepare the case for them.
    This is a case which doesn't resonate with any particular problems being one of "simple parking charges" so will undoubtedly not have been given very much consideration alongside the other things they were working on.

    David Carrod, Andy Foster et all who have sat through many hours each week arguing our ends on PPP are much better prepared for this. I doubt if any of the salient points would have been overlooked.

    As said earlier though, the judges shouldn't be swayed by anything other than the already established law, upheld by prior case law, otherwise they hold themselves to ridicule among their own profession.

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  10. But if the promise to leave is worthless to PE how can there be a valid contract with PE ? That was what HHJ Moloney considered to be the consideration from Mr Beavis when the contract was formed

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  11. I wonder if the actual sign wording was brought out which says that ParkingEye are engaged to provide a traffic maximisation scheme on behalf of the landowner. It matters not what the PE/Landowner contract says, if PE isn't the landowner then they suffer no landowner losses.

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  12. The signage did not have the wording "0n behalf of the landowner" .

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  13. The signs on 7th June 2014 said "Parking is at the absolute discretion of the landowner". Looks like they had been changed since the original court case.

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  14. We all forget who first formed parking eye ,it was powerful people next to the government, it was sold to capita, who is governments big brother,tv license, council tax, congestion charge, (conflict of interest here) capita has good connections, they won't lose .

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  16. I would like to know what miss ledson looks like, she sends out thousands of letters to motorists a week, she must suffer from writers cramp

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  17. I wonder which accountancy firm did the due diligence on PE when they were taken over by Capita?

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  18. Hi, I'm actually in a similar status representing myself, and I feel it's it's going to become a high court dilemma too, I feel in my case the DJ has acted more towards a commercial interest ,,I put defendant to unlawful removal of my vehicle, however when cross examination of defence was in order, judge refused to let me ask about the removal process, I didn't ask anymore questions after that ,as that defeat the argument of bringing claim to court,being naive I didn't question it.I am now in the process of appealing at appeal court as there is a technical error the court is not accepting, I would like more information on NEWLYN PLC about cases where they have being proven to act beyond the law so that I may build up more evidence to use in my case when it does get listed again,, alternatively someone who'll take the claim on , on the basis of evidence in hand n benefit the costs that can be accumulated front the defendants... Iin full time employment so it's forever slow process,,, please help, this is not about my car now this has become a matter of principle to prove theft under the pretence of falsing n fabricating to achieve permission from their client to remove the car. The court seem to have moved motion to prove ownership, which I'm seeing as a distraction because vehicle was on my insurance nearly six months earlier.HELP

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  19. Thanks in advance for reading

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  20. The reason why I feel it's a commercial issue because I also asked for an order to stop defendant removing vehicles without a live check from dvla , they rely on HPI but yet on the day the hpi check was done dvla had notification of change of keeper 2weeks earlier. It costs a lot subscribe to live data , defence using this means shouldn't be allowed not upto date

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  21. The worrying aspect of this case is that if their lordships find in favour of PE it opens the floodgates to further abuse.
    Consider this post on PPP. http://forums.pepipoo.com/index.php?showtopic=97341&view=findpost&p=1054802

    I took the picture at a service station on the M! and added the extra wording but the same scenario is set by it.

    The seating is for customers of Costa Coffee but it could easily become an extra income stream by way of a penalty for non Costa customers.
    After all, the terms were clear, the free seating time is known in advance and the Contractual Charge for violation of the agreement is also known.

    Their lordships could really make life unbearable if they go the wrong route on this one.

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  22. Did the defence win the case as I have the same issue now ParkingEye charging me £100 for overstaying in a supermarket car park by 49 mins and thats is excessive and the outcome was not really clear from what I just read

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  23. Did the defence win the case as I have the same issue now ParkingEye charging me £100 for overstaying in a supermarket car park by 49 mins and thats is excessive and the outcome was not really clear from what I just read

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    1. The defence lost. Your best bet is to get the supermarket to cancel. Failing that, I would recommend using a different supermarket and letting them know how much they have now lost per year.

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  24. You should all read Bigot -Johnson's spoof law cases which are cited Bigot-Johnson v Parkeye eye . THey are instructive yet funny.

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