Barry Beavis loses Appeal to the Supreme Court - What next ?

[citizenB]

thread tidy

 

This result is unfortunate but expected. Mr Beavis unfortunately lost at every stage of the appeals process - in the High Court, on appeal in the Court of Appeal and now on appeal to the Supreme Court.

 

The Supreme Court very clearly upheld a £85 charge as being appropriate in this specific case, which concerned overstaying in a supermarket car park. I think it is, however, still possible to argue in court that a similar charge might be inappropriate and unnecessarily punitive in other scenarios, such as a station car park or a residential estate.

 

The key passage of the judgment is as follows:

 

In our opinion, while the penalty rule is plainly engaged, the £85 charge is

not a penalty. The reason is that although ParkingEye was not liable to suffer loss

as a result of overstaying motorists, it had a legitimate interest in charging them

which extended beyond the recovery of any loss. The scheme in operation here (and

in many similar car parks) is that the landowner authorises ParkingEye to control

access to the car park and to impose the agreed charges, with a view to managing

the car park in the interests of the retail outlets, their customers and the public at

large. That is an interest of the landowners because (i) they receive a fee from

ParkingEye for the right to operate the scheme, and (ii) they lease sites on the retail

park to various retailers, for whom the availability of customer parking was a

valuable facility. It is an interest of ParkingEye, because it sells its services as the

managers of such schemes and meets the costs of doing so from charges for breach

of the terms (and if the scheme was run directly by the landowners, the analysis

would be no different). As we have pointed out, deterrence is not penal if there is a

legitimate interest in influencing the conduct of the contracting party which is not

satisfied by the mere right to recover damages for breach of contract.

 

None of this means that ParkingEye could charge overstayers whatever it

liked. It could not charge a sum which would be out of all proportion to its interest

or that of the landowner for whom it is providing the service. But there is no reason

to suppose that £85 is out of all proportion to its interests. The trial judge, Judge

Moloney QC, found that the £85 charge was neither extravagant nor unconscionable

having regard to the level of charges imposed by local authorities for overstaying in

car parks on public land. The Court of Appeal agreed and so do we. It is higher than

the penalty that a motorist would have had to pay for overstaying in an on-street

parking space or a local authority car park. But a local authority would not

necessarily allow two hours of free parking, and in any event the difference is not

substantial. The charge is less than the maximum above which members of the BPA

must justify their charges under their code of practice. The charge is prominently

displayed in large letters at the entrance to the car park and at frequent intervals

within it. The mere fact that many motorists regularly use the car park knowing of

the charge is some evidence of its reasonableness

 

Most of that judgment relates to a more complicated commercial case which was heard at the same time. Only part of it relates to the Beavis case. Both cases were heard together because both raised the same principle.

[Surfer01]

With this ruling where does that leave a BB holder when they visit a hospital and there are signs up stating that BB have to also pay for parking although the BB has a letter from the hospital asking them to attend an appointment? What would happen if the BB refused to pay and then cha;llenged the invoice as it is not a ticket? Same applies to parking in a retail park where the parking is limited to 1 or 2 hours? After all I doubt if any BB holder wanted their disability. I certainly did not.

[Border Riever]

There seem to me (I'm not a Lawyer, Paralegal or parasite) to be some conflicts in terminology - not just in this and above threads, but generally in reference to the relationship between the motorist, retail car park land-owner, retail STORE & car park owners, and lastly- the car park "management" company.

 

I have read in various places ambiguous references to "The client" - Is this the land-owner, the PPC or the motorist - or even the retail unit having leased or purchased premises on the retail park which has employed the PPC to manage the car park for the benefit of the motorist (in which case we are arguably the "client")? This is a fundamental question, because if the PPC is EMPLOYED to fulfil a task, i.e. manage the car park for the benefit of the retail unit(s) does that make the PPC a CONTRACTOR?

 

In this case, is it surely correct that a penalty should apply to the performance level of said contractor, based upon its success rate. This would be best indicated by the level of compliance as indicated by the number of tickets needing to be issued! This would of course be different to how parking rules are enforced on Council-owned "off-road" car parks.

 

Consider, also another term used - certainly by Co-operative Food - to describe the relationship as landowner (CO-op) and the PPC (in this case, CEL) as "Concessions". As I understand it, a "Concession" is an arrangement where a business is permitted to operate on a landowner's premises - a bit like the car-wash operators and ice-cream vans seen on large retail parks, and other such businesses on Motorway Services and supermarket car parks ....... all for a financial contribution to the land-owner!

 

Barry rightly points out other points of concern, like "The new law is dangerous, as it opens the door to unscrupulous operators and rogue traders in other industries to charge 'penalties' for ..... exceeded download limit ..... late collecting your child from Nursery, or missed doctors appointment.

 

It's really scary." Very scary indeed and consumer groups like CAG, MSE, Pepipoo et al will surely be pressing for safeguards, not just on PPC matters but ALL performance-related issues.

 

This is a big job for Trading Standards, surely?

Edited November 5, 2015 by Andyorch
Spelling correction/paragraphs

[Border Riever]

With this ruling where does that leave a BB holder when they visit a hospital and there are signs up stating that BB have to also pay for parking although the BB has a letter from the hospital asking them to attend an appointment? What would happen if the BB refused to pay and then cha;llenged the invoice as it is not a ticket? Same applies to parking in a retail park where the parking is limited to 1 or 2 hours? After all I doubt if any BB holder wanted their disability. I certainly did not.

 

Or any patient, not just a disabled person.

Of equal interest, does this mean that if we find an item purchases from our local supermarket is not fit for purpose, that we can seek a penalty payment from the seller? If the answer is "no", is there not an imbalance to be redressed here? If the patient is delayed, can a penalty then be imposed upon the hospital?

This could result in a ridiculous spiralling version of the "crash for cash" ilk.

[Beesnees]

I also note that they have fired a warning shot at the politicians with regard to the EU legislation and are basically warning the legislators not to interfere with their decision.

 

Funny.........I thought it was the politicians who were behind this perverse decision. Doesn't the PE CEO have direct access to the 'levers of power'? Corporate America runs the US govt., and unfortunately we're not that far behind. Where's JC when you need him? No, not the Messiah - Jeremy Corbyn. Oh yeah, he only just got elected leader of the opposition. OK, but may I respectfully suggest that our only remaining chance of restoring sanity to a corrupt judiciary is to put him in No.10 come next election, then lobby him like mad to reinstate contract law as it stood pre corrupting influence of Big Business. And if the 'other place' throws it out, abolish them too while you're at it. Then, and only then, will you get a govt. that actually represents the people - just for a change.

[GuidoT]

What with this, Durkin and the OFT v Banks, the Supreme Court are not very pro consumer are they?

[Old Cogger]

What with this, Durkin and the OFT v Banks, the Supreme Court are not very pro consumer are they?

 

 

Not Fit For Purpose comes to mind, they are traitors to the Monarchy's subjects if they insist on making the ordinary person so called subject, not by consent either!

 

they are making a mockery of so called Justice.

[unclebulgaria67]

Not Fit For Purpose comes to mind, they are traitors to the Monarchy's subjects if they insist on making the ordinary person so called subject, not by consent either!

 

they are making a mockery of so called Justice.

 

Which is why you need the European Court of Human Rights to look at abuses of power over individual rights of citizens. Whilst the private parking issue might not be something they would look at, tbe current government want to make the UK Supreme Court the decider on most issues, making it difficult to ever use the ECHR.

[citizenB]

Just out of interest, how is parking dealt with in other European Countries ?

[Beesnees]

...the private parking issue might not be something the [ECHR] would look at...

 

As I understand it, the ECHR's jurisdiction only extends to matters that have Europe-wide implications. They are not interested in regional/parochial issues. Now if PPCs are also a problem on the continent, then that could provide an avenue to an appeal, but who's gonna finance that? And bearing in mind that the EC has already sold out over TTIP, I don't hold out that much hope that we would fare any better there either. Iceland anyone? At least they still know what to do with their crooks.

[steampowered]

I have read in various places ambiguous references to "The client" - Is this the land-owner, the PPC or the motorist - or even the retail unit having leased or purchased premises on the retail park which has employed the PPC to manage the car park for the benefit of the motorist (in which case we are arguably the "client")? This is a fundamental question, because if the PPC is EMPLOYED to fulfil a task, i.e. manage the car park for the benefit of the retail unit(s) does that make the PPC a CONTRACTOR?

 

There are two possible scenarios here. If the PPC is acting on behalf of the land owner or lease holder, the PPC would need to provide evidence of its authority to act. The land owner would be the proper claimant to court proceedings.

 

If the PPC is acting independently, people on parking forums used to make the argue that the PPC has not suffered any loss. Therefore, the charge must be penal because any loss would be suffered by the land owner rather than the PPC. The Supreme Court pretty conclusively dismissed that argument - the court was very clear that both the land owner and the PPC have a legitimate interest in ensuring proper use of the car park, and therefore the PPC is able to claim by itself.

 

That is why the hospital or retailer would not necessarily have authority to require cancellation of a ticket. I imagine that companies like Parking Eye will enter into long term contracts with the land owner under which the PPC agrees to install parking technology and manage the car park in return for the right to charge motorists. Since Parking Eye are able to operate independently, the hospital/retailer does not have the right to cancel charges, indeed it will probably be in breach of its contract with Parking Eye if it tries. That is why it is so important to complain to retailers to let them know the damage that employing Parking Eye is doing to their business, so that they do not renew Parking Eye's contract.

 

It's really scary." Very scary indeed and consumer groups like CAGicon, MSE, Pepipoo et al will surely be pressing for safeguards, not just on PPC matters but ALL performance-related issues.

What I'll be pushing for is an amendment to the Protection of Freedoms Act to set out a tariff of maximum charges to get a grip on these cowboys. Perhaps a £10 charge for a short overstay, or a £30 charge for a longer overstay, would be fair.

[steampowered]

With this ruling where does that leave a BB holder when they visit a hospital and there are signs up stating that BB have to also pay for parking although the BB has a letter from the hospital asking them to attend an appointment? What would happen if the BB refused to pay and then cha;llenged the invoice as it is not a ticket? Same applies to parking in a retail park where the parking is limited to 1 or 2 hours? After all I doubt if any BB holder wanted their disability. I certainly did not.

 

I think it is still possible to challenge these tickets in a hospital parking situation on the grounds that they are penal.

 

The decision in Parking Eye v Beavis rests almost entirely on the court's view that the £85 charge was a legitimate and proportionate way of ensuring that the car park is available for other customers. The court also stated that they thought it was appropriate for the risk of overstaying to rest on shoppers, as that is a matter within their control. The court also seemed to mention that motorists had the option of parking elsewhere if they don't like it.

 

These arguments do not apply in the case of a hospital. You don't have a choice about whether or not to go to hospital. There is much less commercial benefit to stopping people from overstaying. Overstaying is also much less in your control - it is not the patient's fault if he is very ill or if his hospital appointment is late.

 

These arguments are not guaranteed to work, but I would like to see them tested in court.

[citizenB]

 

The decision in parking eye v Beavis rests almost entirely on the court's view that the £85 charge was a legitimate and proportionate way of ensuring that the car park is available for other customers.

 

I don't quite understand this.

 

The parking was for 2 hours free and Beavis overstayed this by 56 minutes. However, there couldn't have been any "loss of revenue" because if beavis had not overstayed, then anyone taking his place in the parking spot would also have had 2 hours free.. or have I lost the plot ?

 

The only way these companies can make a profit is, if someone DOES overstay the free time !

[steampowered]

I don't quite understand this.

 

The parking was for 2 hours free and Beavis overstayed this by 56 minutes. However, there couldn't have been any "loss of revenue" because if beavis had not overstayed, then anyone taking his place in the parking spot would also have had 2 hours free.. or have I lost the plot ?

 

The only way these companies can make a profit is, if someone DOES overstay the free time !

 

This is what the Supreme Court said about this, in their own words:

 

In our opinion, while the penalty rule is plainly engaged, the £85 charge is not a penalty. The reason is that although ParkingEye was not liable to suffer loss as a result of overstaying motorists, it had a legitimate interest in charging them which extended beyond the recovery of any loss. The scheme in operation here (and in many similar car parks) is that the landowner authorises ParkingEye to control access to the car park and to impose the agreed charges, with a view to managing the car park in the interests of the retail outlets, their customers and the public at large. That is an interest of the landowners because (i) they receive a fee from ParkingEye for the right to operate the scheme, and (ii) they lease sites on the retail park to various retailers, for whom the availability of customer parking was a valuable facility. It is an interest of ParkingEye, because it sells its services as the managers of such schemes and meets the costs of doing so from charges for breach of the terms (and if the scheme was run directly by the landowners, the analysis would be no different). As we have pointed out, deterrence is not penal if there is a legitimate interest in influencing the conduct of the contracting party which is not satisfied by the mere right to recover damages for breach of contract. Mr Butcher QC, who appeared for the Consumers’ Association (interveners), submitted that because ParkingEye was the contracting party its interest was the only one which could count. For the reason which we have given, ParkingEye had a sufficient interest even if that submission be correct. But in our opinion it is not correct. The penal character of this scheme cannot depend on whether the landowner operates it himself or employs a contractor like ParkingEye to operate it. The motorist would not know or care what if any interest the operator has in the land, or what relationship it has with the landowner if it has no interest. This conclusion is reinforced when one bears in mind that the question whether a contractual provision is a penalty turns on the construction of the contract, which cannot normally turn on facts not recorded in the contract unless they are known, or could reasonably be known, to both parties.

[mikeymack2002]

What would happen if the landowners now installed pay and display carpark instead of a free carpark?

 

Not only could they get paid for the time that was free they can still charge for being late! Win win for the PPC /Landowners

[caro]

What would happen if the landowners now installed pay and display carpark instead of a free carpark?

 

Not only could they get paid for the time that was free they can still charge for being late! Win win for the PPC /Landowners

 

A sainsburys near me has a pay and display car park which adjoins a council one. There is a second part to the ticket and if you show it when you shop you get the parking refunded.

[Peterbard]

Despite the understandable anxiety which this judgement has produced , in fact I think that in practice this would not b e a problem in a lot of the cases sited. Take wifi charges in hotels

 

The hotel would have to contract out to a firm who would individually addressed the issue of wifi usage. If it addressed the problem itself it would have to initiate an individual collection procedure with a separate agreement set aside from any other.

 

In practice the hotel would just include a clause in their hire contract, a breach of this clause would just be considered a contractual breach and result in a proportionate damages claim. Because it would not constitute as charge which helped fund what was the core usage of the agreement.

[f16]

What would happen if the landowners now installed pay and display carpark instead of a free carpark?

 

Not only could they get paid for the time that was free they can still charge for being late! Win win for the PPC /Landowners

 

They can't do that.

They would have to apply to the council first and ask for changes from the original planing aplication

[ericsbrother]

to answer the point about BB holders- tough you are in the same boat as the terms of the contract do not make allowances and dont have to. when you go shopping take a lawyer with you to read the signage rather than your blue badge as the latter is now worthless in most cases..

[Surfer01]

I think it is still possible to challenge these tickets in a hospital parking situation on the grounds that they are penal.

 

The decision in Parking Eye v Beavis rests almost entirely on the court's view that the £85 charge was a legitimate and proportionate way of ensuring that the car park is available for other customers. The court also stated that they thought it was appropriate for the risk of overstaying to rest on shoppers, as that is a matter within their control. The court also seemed to mention that motorists had the option of parking elsewhere if they don't like it.

 

These arguments do not apply in the case of a hospital. You don't have a choice about whether or not to go to hospital. There is much less commercial benefit to stopping people from overstaying. Overstaying is also much less in your control - it is not the patient's fault if he is very ill or if his hospital appointment is late.

 

These arguments are not guaranteed to work, but I would like to see them tested in court.

 

Unfortunately we have to attend the hospital on a regular basis due to my illness and we have no choice except to park in the hospital grounds as all the roads around have restricted parking and anyway it is unlikely that I would be able to walk that distance. In addition, my wife who is my carer needs to be with me and therefore cannot drop me off and come back later. On numerous occasions I have had an appointment for a specific time, but have waited wll past an hour before I have been seen. Once you get into see the specialist, then you may be asked to go for x-rays, blood tests etc and no chance of feeding the meter again. IMHO why are we in England being penalised for hospital parking when in Scotland and Wales it is free. I thought that we were in the UK?

[steampowered]

Unfortunately we have to attend the hospital on a regular basis due to my illness and we have no choice except to park in the hospital grounds as all the roads around have restricted parking and anyway it is unlikely that I would be able to walk that distance. In addition, my wife who is my carer needs to be with me and therefore cannot drop me off and come back later. On numerous occasions I have had an appointment for a specific time, but have waited wll past an hour before I have been seen. Once you get into see the specialist, then you may be asked to go for x-rays, blood tests etc and no chance of feeding the meter again. IMHO why are we in England being penalised for hospital parking when in Scotland and Wales it is free. I thought that we were in the UK?

I agree, it is totally outrageous that you can be charged because you have to go to hospital. Please write to your MP to make sure they are aware of the situation.

[silverfox1961]

All hospitals (who charge) should be 'pay on exit' as they are at the two hospitals I visit. This avoids the need to feed a meter however, there should be a facility at hospitals that use Pay and Display to be able to pay for the missing time.

 

PALS should have details for this.

[SabreSheep]

What would happen if the landowners now installed pay and display carpark instead of a free carpark?

 

Not only could they get paid for the time that was free they can still charge for being late! Win win for the PPC /Landowners

 

Except a lot of retail space has free parking attached to the planning applications

[Surfer01]

All hospitals (who charge) should be 'pay on exit' as they are at the two hospitals I visit. This avoids the need to feed a meter however, there should be a facility at hospitals that use Pay and Display to be able to pay for the missing time.

 

PALS should have details for this.

 

So several hours later you are hit with a bill for a tenner or more? I went to hospital about two years ago and while there it was decided that I needed an emergency operation and had to stay in over night. Luckily I had my wife with me who was able to take the car home several hours later. Is it fair that we should have been charged for several hours parking as I had not deliberately become ill?

 

Would I be correct in thinking that now one can demand to see the contract between the hospital and the PPC so you can build a defence against any charge that may be levied on you by the PPC?

[ericsbrother]

Hospital car parking charges were first introduced at Kettering General Hospital and the excuse for having them was to discourage workers in the towm parking there and walking to work . Well, at the time there was ample free parking in the town and the hospital the best part of a mile away from anywhere else. However, being british no-one stoned the offices of the parking co down or vandalised the car park with burning tyres so it then crept into other hospitals and then universities and finally you now have this determination based on the fact that we ignored the creeping change in the law by accepting somene's signage and "fines" as being acceptable so now they have become law.

Look at a piece of early law, Rylands v Fletcher, which became the basis of a lot of early H&S legislation. H&S law has been improved much by a vast amount of statute law but the original civil case has been repeatedly undermined by judges making decisions so now the protection it offered has been removed completely. The same applies here and the court has effectively said they dont accept the right of parliament to challenge their decision as they say that both EU law and the PUTTR, whcih comes from an EU directive dont count (which is not the same as not applicable or relevent) as long as the unfair bit is in the main contract, hence my comments about used car dealers and sold as seen etc.

I can imagine that in the future we will se adverts at the side of the road saying "buy Smiths cakes now" and then underneath that a camera that catches the details of those who view the advert and then sue them if they dont buy the cakes having read this unilateral contract. The technology already exists to harvest the data and the law doesnt prevent Smiths bakeries from using that data as long as they sign a form and pay £100 to the ICO and this decision makes it allowable to do so. You cant argue as the image of you staring at the billboard will be sent to your house with the demand and the wording of the and was clear enough, it didnt say would you like to buy some cake at some point in the future so they will claim £85 as you didnt spend £1 on their cake (they have your clubcard and debit card data so they know you didnt).