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a bailiff has, and also what they cannot do when collecting debts and repossessing goods etc.
all ppc tickets are unenforceable invoices. thats all they are invoices you do not have to pay them.there is no such thing as a penalty in a contract.thats the law. the only cases they win (if any) is undefended cases.(fact)any ppc that won a defended case would put it up here for all to see asap to spook everyone else onto paying up FACT. hi ya steve need any more pies
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all ppc tickets are unenforceable invoices. thats all they are invoices you do not have to pay them.there is no such thing as a penalty in a contract.thats the law.
In the case of Dunlop Pneumatic Tyre Co. Ltd. v New Garage & Motor Co. Ltd. [1915] A.C. 79 at 86., it was noted that a clause is penal if it provides for “a payment of money stipulated as in terrorem of the offending party”, (i.e. a payment of a sum of money intended to frighten or intimidate the offending party).
A clause that is found to be penal (i.e. a penalty clause) is generally invalid, and it is an unusual feature of the law of contract that the court will strike down penalty clauses, whilst (usually) permitting other clauses which have been freely agreed between the parties even if those clause are unduly harsh.
The Law Relating to Penalty Clauses
In the case of Commissioner of Public Works v Hills [1906] AC 368, Lord Dunedin formulated the test for Penalty clauses as follows;-
"The general principle to be deduced …is …that the criterion of whether a sum -- be it called penalty or damages -- is truly liquidated damages, and as such not to be interfered with by the Court, or is truly a penalty which covers the damage if proved, but does not assess it, is to be found in whether the sum stipulated for can or can not be regarded as a 'genuine pre-estimate’ of the creditor's probable or possible interest in the due performance of the principal obligation”
In the above noted case of Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company Limited, Lord Dunedin set out a series of propositions in respect of Penalty clauses, which have often been cited and relied upon for the last 90 years. These propositions being:-
1. Even though the parties may use the word ‘penalty’ or ‘liquidated damages’ in respect of a clause, it is for the Court to find out whether the payment stipulated is in truth penalty or liquidated damages.
2. The essence of a penalty is a payment of money stipulated as in terrorem of the offending party.
3. The essence of liquidated damages is a genuine covenanted pre-estimate of damage.
4. The question whether a sum stipulated is a penalty or liquidated damages is a question of construction to be decided upon the terms and inherent circumstances of each particular contract, judged as at the time of making the contract, not as at the time of the breach.
5. To assist this task of construction various tests have been suggested, which if applicable to the case under consideration, may prove helpful, or even inclusive. Such tests being:-
(a) It will be held to be a penalty if the sum stipulated is extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach.
(b) There is a presumption (but no more) that it is a penalty when, 'A single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage.'
(c) It is no obstacle to the sum stipulated being a genuine pre-estimate of damage, that the consequences of the breach are such as to make precise pre-estimation almost an impossibility. On the contrary, that is just the situation when it is probable that pre-estimate damage was the true bargain between the parties.
Thus, in the case of Campbell Discount Co Ltd v Bridge [1962] AC 600, the House of Lords struck down as a penalty a clause in a hire purchase agreement requiring the hirer to pay compensation for premature termination. The objectionable feature of this clause was that it provided a sliding scale which operated in the wrong direction. The less the depreciation of the vehicle, the greater was the compensation payable.
Whilst, in Philips v The Attorney General of Hong Kong [1993] 61 BLR 41. The Privy Council upheld the decision of the Hong Kong Court of Appeal that the liquidated and ascertained damages clause in a construction contract was valid and enforceable. It was held that the fact that in certain circumstances a party to a contract might derive a benefit in excess of his loss does not ... outweigh the very definite practical advantages of the present rule upholding a genuine estimate, formed at the time the contract was made of the probable loss.
The background to the recent case of Alfred McAlpine Capital Projects Limited v Tilebox Limited, was that on 27 April 2001, Tilebox and McAlpine entered into a written building contract. Clause 24 of the contract conditions provided that McAlpine should pay liquidated and ascertained damages for delay at the rate at the rate of £45,000 per week or part thereof. The Contract Completion Date was 14 August 2002, but building works were not completed by that date, and the works were not expected to be complete until June 2005 (i.e. some 2½ years late).
Against this background, McAlpine became concerned about its potential liability (of something approaching £6 Million) to liquidated and ascertained damages under clause 24 of the contract conditions. McAlpine took legal advice and, having done so, formed the view that the rate of liquidated and ascertained damages specified in the building contract was excessive, and was a penalty clause and was therefore invalid. Tilebox denied that clause 24.2 was a penalty clause.
The parties referred this matter to court, and in the court case Mr Justice Jackson, considered the authorities and made the following general observation:-
1. There seem to be two strands in the authorities. In some cases judges consider whether there is an unconscionable or extravagant disproportion between the damages stipulated in the contract and the true amount of damages likely to be suffered. In other cases the courts consider whether the level of damages stipulated was reasonable. Mr Justice Jackson came to the view that a pre-estimate of damages does not have to be right in order to be reasonable. There must be a substantial discrepancy between the level of damages stipulated in the contract and the level of damages which is likely to be suffered before it can be said that the agreed pre-estimate is unreasonable.
2. Although many authorities use or echo the phrase "genuine pre-estimate", the test does not turn upon the genuineness or honesty of the party or parties who made the pre-estimate. The test is primarily an objective one, even though the court has some regard to the thought processes of the parties at the time of contracting.
3. Because the rule about penalties is an anomaly within the law of contract, the courts are predisposed, where possible, to uphold contractual terms which fix the level of damages for breach. This predisposition is even stronger in the case of commercial contracts freely entered into between parties of comparable bargaining power.
4. Looking at the bundle of authorities provided in this case, Mr Justice Jackson noted only four cases where the relevant clause has been struck down as a penalty.
Based upon the above, and the circumstances of this case, Mr Justice Jackson formed the view that the liquidated damages clause in question was not a penalty clause, and therefore would be enforced.
Conclusion
The courts are normally pre-disposed where possible to uphold contractual terms that have been freely agreed between the parties. Thus, other than in the most exceptional of cases, the courts are unlikely to find a liquidated damages clause to be a penalty clause. Consequently, other than in the most blatant of cases, it would be foolish to rely on overturning a liquidated damages clause on the basis that it was indeed a penalty clause, after the contract has been entered into
Conclusion
The courts are normally pre-disposed where possible to uphold contractual terms that have been freely agreed between the parties. Thus, other than in the most exceptional of cases, the courts are unlikely to find a liquidated damages clause to be a penalty clause. Consequently, other than in the most blatant of cases, it would be foolish to rely on overturning a liquidated damages clause on the basis that it was indeed a penalty clause, after the contract has been entered into
This may be true but there is also a difference between commercial contracts and consumer contracts.
In the latter, liquidated damages are only likely to be upheld if they are a genuine pre-contract estimate of reasonably forseeable losses and quite likely to have had liability existing in the absence of the contract.
i agree totally different,they will have been agreed contracts between both partys and both will prob have a signed copy each there for forming a legal contract
the more that hear it and read it the better though.
Contract law much more complex than people think - but Excel case and properly defended private parking cases all seem to go one way. against the the people who issue these 'tickets'.
and even commercial contracts (i.e real ones) can be vitiated..
the more that hear it and read it the better though.
Contract law much more complex than people think - but Excel case and properly defended private parking cases all seem to go one way. against the the people who issue these 'tickets'.
and even commercial contracts (i.e real ones) can be vitiated..
A commercial contract is no more "real" than a contract I form when I buy my daily newspaper.
all ppc tickets are unenforceable invoices. thats all they are invoices you do not have to pay them.there is no such thing as a penalty in a contract.thats the law. the only cases they win (if any) is undefended cases.(fact)any ppc that won a defended case would put it up here for all to see asap to spook everyone else onto paying up FACT. hi ya steve need any more pies
About 3months ago I received a ticket, I read this site and others with great interest and have received letters and various ones from Daniels Silverman and have yet to respond.
The parking company involved does seem to have listed cases on their website that makes me think that some tickets are valid, I am not sure how genuine the post is or is not Combined Parking Solutions - Legal Issues
Combined Parking Solutions harp on about having won lots of cases. I'm sure, like other PPCs, they've won a few on default where the defendant hasn't turned up.
They purport to have transcripts of 2 cases, however the link to the first one [Harrogate county court] does not work, leaving 1 case left. In this case, the defence was based upon reading the signs, there was no law whatsoever in the defence. It has told us precisely nothing. You can be sure that any defence from here would be much more difficult to counter.
Incidently, Combined Parking Solutions state on their website that:
CPS are one of the few companies that rigoursly pursue unpaid parking charges via the courts and all cases are dealt with by our team of in-house legal experts without using third parties - thereby ensuring a consistent enforcement policy.
The fact that you are receiving letters from Daniels Silverman gives the lie to that statement. How many other falsehoods are contained within their website?
Barnsley Boy writes wise words.
The Combined Parking Solutions site (wonder why they chose the letters CPS..) is full of perfectly INvalid statements about the law - and a severe and obvious lack of logic. For example:-
"The law states a keeper should know at all times who is driving a vehicle and to ensure they are insured, if a keeper allows a vehicle to be driven without insurance they are guilty of a criminal offence - By stating many people have access to a vehicle a defendant is admitting they did not know who was driving the vehicle at a specific date/time and therefore cannot be certain the vehicle was insured."
what tripe IMV. from reading that page and knowing the reality of the situation it looks like a begging letter telling people to pay as its 'easier for them' At last a caring PPC perhaps ? yeah right. If anyone knows of a properly defended case being won by the PPC let us know. the transcript there for sure shows an non-properly defended case.
the whole tenure of their 'legal issues' page reads to me as a msg that says 'ignore the forums, please pay me'. Whoever runs that company must have been or is losing revenue because of such activity to have written what they have - and without even spell checking it. Their in house 'legal team' ( I notice they don't claim to have any in-house solicitors) would strike me as being remiss.
is it any wonder that they have not quoted this case ? Judge quashes £300 parking fine...because it set out to ‘frighten and intimidate’ driver | the Daily Mail
poor show all round from CPS in my view - their text is very transparent to anyone who looked at the reality of the law.
Combined Parking Solutions harp on about having won lots of cases. I'm sure, like other PPCs, they've won a few on default where the defendant hasn't turned up.
They purport to have transcripts of 2 cases, however the link to the first one [Harrogate county court] does not work, leaving 1 case left. In this case, the defence was based upon reading the signs, there was no law whatsoever in the defence. It has told us precisely nothing. You can be sure that any defence from here would be much more difficult to counter.
Incidently, Combined Parking Solutions state on their website that:
CPS are one of the few companies that rigoursly pursue unpaid parking charges via the courts and all cases are dealt with by our team of in-house legal experts without using third parties - thereby ensuring a consistent enforcement policy.
The fact that you are receiving letters from Daniels Silverman gives the lie to that statement. How many other falsehoods are contained within their website?
I must admit that I am also confused by Daniels Silverman as looking at the website they are debt collectors and not solicitors.
The cases on the website seem to be defended cases as opposed to cases by default and they seem to have added 2 new ones since I wrote last night, anyway I have today called Daniels Silverman who do not know much about my debt and they are going to confer with their clients and send me everything via the post so I can review.
there is a difference between defended and properly defended.
why on earth contact Silverrman's apart from to deny the debt and to refer them back to their client. debt collectors are powerless. and they know it.
I am sure there is a difference between defended and properly defended but reading the De Brunner one it appears the judge considered it to be a penalty and found it not to be. It would be useful to see the full case as these appear to be the judgements only.
I am no lawyer and have never been in a court room, a good defence can be submitted on paper but they obviously have experience of the court system and on the day I am sure its all down to presentation and being able to argue from a legal viewpoint.
In relation to Daniels Silverman, I contacted them to ask for more information and they did not have much apart from my registration number, date the ticket was issued and the location.
I was going to state the charge is in dispute but I have not disputed it and it would just go around in circles, I will await the postman and decide then on how to play it.
private parking tickets
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Re: private parking tickets
Originally Posted by neil24103
