Parking Eye lose case - have to pay parking!
Discussion
covboy said:
JustinP1 said:
This is the issue which IMHO 95% op people don't get.
What's going to happen with Parking Eye?
Well if I were them, I'd restructure the contractual side whereby my contract with the landowner was shored up by the new structure, new signage also, one which would stand up to legal scrutiny. Then, I could show a bone fide loss on behalf of the landowner.
Would Parking Eye go bust? No, because the people who have defaulted previously, will continue to default.
Remember my point at the top of the thread about being baffled that Parking Eye don't know of the "You had one job..." meme and just do that one job properly?
Well I think that goes both ways.
The public need to understand that using someone's land to leave your car is not a God-given right. You either pay for it, or you don't but either way - you have to park in the way that they contractually require you to.
If the parker understands that "You had one job..." also applies to them, and to get free parking they need to:
a) Read a sign immediately after parking
b) Park within the white lines
c) Come back within X hours
Then they have no reason whatsoever not to. And if they fail that test, then they have made themselves a victim.
Agree to a certain extent, but firstly Parking Companies should What's going to happen with Parking Eye?
Well if I were them, I'd restructure the contractual side whereby my contract with the landowner was shored up by the new structure, new signage also, one which would stand up to legal scrutiny. Then, I could show a bone fide loss on behalf of the landowner.
Would Parking Eye go bust? No, because the people who have defaulted previously, will continue to default.
Remember my point at the top of the thread about being baffled that Parking Eye don't know of the "You had one job..." meme and just do that one job properly?
Well I think that goes both ways.
The public need to understand that using someone's land to leave your car is not a God-given right. You either pay for it, or you don't but either way - you have to park in the way that they contractually require you to.
If the parker understands that "You had one job..." also applies to them, and to get free parking they need to:
a) Read a sign immediately after parking
b) Park within the white lines
c) Come back within X hours
Then they have no reason whatsoever not to. And if they fail that test, then they have made themselves a victim.
a) Provide easily accessible signs showing terms and conditions in plain English.
b) Provide properly marked and allocated parking bays
c) Be prepared to make allowances Not X hours and 30 seconds and you’re done
With a clear sign and clear markings, should a parker not be bothered to read the contract they are accepting, nor position their car between two white lines then they have shot themselves in the foot.
With c) however, I don't see the difference between offering 3 1/2 hours of free parking and 30 mins allowance, then enforcing, or 4 hours and enforcing straight away.
The only thing is that the latter is totally unambiguous. If the knowledge that you will be charged £50 if you stay a second more than 4 hours is not enough, I don't know what that is.
I think it is just a case of educating parkers. The concept is already out there with credit cards - free service, but a day late paying the bill you then pay interest on the lot. Even something as new as Facebook people have realised for the free service that you do accept your details will be harvested and sold.
The problem is that so many people are so blissfully unaware to take responsibilities for their actions and know what a 'contract' is.
Ironically, the anti-Parking Eye website, although their motivations may be for the best reasons, they are actually promoting the generalisation that such contracts are not enforceable, which will perpetuate the real issue not solve it.
10 Pence Short said:
So Parking Prankster decries what they see as Parking Eye profiting from 'harmless' parking. And illustrates that by selling a book, profiting from people who're 'victims' of parking eye.
You couldn't make it up.
Hmm. Yeah - they're so obviously alike! PP sells a book for a price he decides. PE charge a penalty which is supposed to only cover their costs incurred due to the breach of contract, yet can be halved for early payment!? You couldn't make it up.
10 Pence Short said:
My preference to shore up the situation would be for a statutory addition to the Protection of Freedoms Act. This addition would make provision for private parking penalties, so PPCs no longer have to rely on contractual relationships to enforce them. It would also appoint an industry regulator to set the processes and amounts charged by all PPCs. It would make being a PPC a regulated activity.
This way, PPCs would be able to operate in a consistent way throughout the industry and people parking would know what to expect. Operating in a way inconsistent with the regulations would become an offence. Land owners would have statutory protection from abuse of their facilities.
If I had an opinion on a fair charging structure, I think £75 with a reduction to £50 for payment within 14 days of notification would be reasonable.
If this involved removing the BPA and POPLA from their current positions in the private parking enforcement structures, that might be a reasonable start.This way, PPCs would be able to operate in a consistent way throughout the industry and people parking would know what to expect. Operating in a way inconsistent with the regulations would become an offence. Land owners would have statutory protection from abuse of their facilities.
If I had an opinion on a fair charging structure, I think £75 with a reduction to £50 for payment within 14 days of notification would be reasonable.
In my opinion, if private parking were to be enforced according to the same rules, regulations and appeal bodies as council parking, then I'd be much happier. There's far more transparency in council enforcement, for a start.
The weeding out of private parking companies like Proserve needs to happen for the industry to start gaining any respect from the public. They've recently been barred from access to DVLA data (for both using data for purposes other than that agreed with DVLA and ignoring requests by the DVLA for information about their business practices) yet were recently shortlisted for Parking Team of the Year by the BPA!
JustinP1 said:
rscott said:
Proserve... were recently shortlisted for Parking Team of the Year by the BPA!
I am genuinely interested what the criteria for being shortlisted and winning Parking Team of the Year is. 
PurpleMoonlight said:
Muncher said:
I really can't see that.
The way the interpretation of the law appears to be evolving is that if parking is free, then there can be no loss for overstaying welcome so any charge imposed is a penalty. There is only one remedy for that, which is paid parking for all.0 - 4 hours: no charge
over 4 hours: £85
That would be a simple parking charge, not a penalty. It would be unambiguous.
Zod said:
That would be a simple parking charge, not a penalty. It would be unambiguous.
Some do, but I think the issue is the VAT. For some reason PPCs don't want to charge for a vatable service, instead preferring damages (which of course don't attract VAT). There would also be the issue of people who park outwith the rules, who might be doing so from the first moment, such as those who wrongly park in reserved or disabled spaces or obstructing something. It would be nonsense to have to leave it 4 hours or whatever before claiming your consideration for the parking service.Bingo - VAT is the issue. If it's a parking charge they can kiss goodbye to 20% of their turnover, which may be £10m a year, quite possibly more than their overall profit.
Of course, if they put the price of parking up to include VAT, then this makes it all the more like a deterrent rather than a service, and as such would be not lawful.
Their best chance would actually be to shore-up their contracts, however I am still not convinced that it is possible for them to work within the framework of case law to get something water tight.
Of course, if they put the price of parking up to include VAT, then this makes it all the more like a deterrent rather than a service, and as such would be not lawful.
Their best chance would actually be to shore-up their contracts, however I am still not convinced that it is possible for them to work within the framework of case law to get something water tight.
JustinP1 said:
Of course, if they put the price of parking up to include VAT, then this makes it all the more like a deterrent rather than a service, and as such would be not lawful.
If they were charging for providing the parking service, it would attract vat, but it would also negate the need to sue for liquidated damages, as the loss would simply be the contractually agreed consideration for parking. The penalty argument would therefore be moot.10 Pence Short said:
JustinP1 said:
Of course, if they put the price of parking up to include VAT, then this makes it all the more like a deterrent rather than a service, and as such would be not lawful.
If they were charging for providing the parking service, it would attract vat, but it would also negate the need to sue for liquidated damages, as the loss would simply be the contractually agreed consideration for parking. The penalty argument would therefore be moot.That'd be the new battleground for the anti-parking brigade.
hoohoo said:
If we're into the 'couldn't make it up' category, apparently last Friday's court hearing was in that league too, when a high profile parking case being heard by a high court judge (HHJ Moloney) was sabotaged by some idiot phoning the Claimant's barrister and pretending to be their witness.
http://parking-prankster.blogspot.co.uk/2014/03/co...
latest news: unnamed 42 year old arrested on suspicion of making the callhttp://parking-prankster.blogspot.co.uk/2014/03/co...
http://parking-prankster.blogspot.co.uk/2014/03/42...
page 3 for confirmation:
http://forums.moneysavingexpert.com/showthread.php...
There have been several similar cases in Scotland on this matter. Although in Scotland clamping is illegal unless authorised by the Police or DVLA (courts don’t like 3rd party enforcers up here yet), the general findings have been that the landowner and/or 3rd party enforcer must display ALL terms and conditions clearly and in intelligible language before you enter their premises, if the Parking Eye signs are only shown inside the car park then they have breached this condition (technically you’ve entered into the agreement by entering the car park without knowing the terms to the contract). My dad received one of these letters which displayed the DVLA logo, court logos and a police badge at the bottom, all in an attempt to make them seem to have more power than they do. We sent a complaint to Trading Standards with the above points and never received any further letters from them.
JustinP1 said:
The counterargument to that would be if you consider a sign saying "Four hours parking = Free Four hours and one minute =£70" that for all intents and purposes this is a penalty clause as it is clearly and obviously meant to deter behaviour, that is staying more than 4 hours. That's one of the fundamental tests of a penalty clause.
If the money due is payment for services rather than liquidated damages for breach of contract, I don't believe there's any issue of penalty to be decided. It's a contractually determined price (consideration) agreed and due in the traditional way.Edited by 10 Pence Short on Tuesday 18th March 06:01
10 Pence Short said:
If the money due is payment for services rather than liquidated damages for breach of contract, I don't believe there's any issue of penalty to be decided. It's a contractually determined price (consideration) agreed and due in the traditional way.
Some judges thought differently. A £150 contractual charge was ruled to be a disguised penalty both in the original hearing and on appeal.Edited by 10 Pence Short on Tuesday 18th March 06:01
Civil Enforcement Ltd v McCafferty (3YK50188, Luton County Court, 21/02/2014), where Mr Recorder Gibson QC dismissed the appeal, and upheld the previous ruling of Deputy District Judge Wharton at Watford County Court, that the Claimant’s parking charge was a penalty, and therefore not recoverable.
hoohoo said:
Some judges thought differently. A £150 contractual charge was ruled to be a disguised penalty both in the original hearing and on appeal.
Without looking at the detail if the contract and argument in that case, it's impossible to say what the court had to consider. In general terms a court should not interfere with the pricing agree in a contact. Its perfectly possible the judge on the day erred, but in the main it will depend on the specific facts of this case.Edited by 10 Pence Short on Tuesday 18th March 07:42
10 Pence Short said:
hoohoo said:
Some judges thought differently. A £150 contractual charge was ruled to be a disguised penalty both in the original hearing and on appeal.
Without looking at the detail if the contract and argument in that case, it's impossible to say what the court had to consider. In general terms a court should not interfere with the pricing agree in a contact. Its perfectly possible the judge on the day erred, but in the main it will depend on the specific facts of this case.Edited by 10 Pence Short on Tuesday 18th March 07:42
Having had a quick snoot at the case listed above, it *looks* as if the PPC were trying to dress up a penalty clause by describing it as consideration. In basic terms, the Judge rejected that it was consideration at all. Roughly speaking it was;
- £5 per day if you pay by phone as you park
- £125 per day if you don't pay by phone within x minutes of parking (written in smaller writing than the above)
This reads more like, it's £5, but if you don't pay by phone we'll consider it a breach and the liquidated damages clause will kick in.
What we don't know, without reading the judgement, is what would have happened if both payment methods were given equal prominence on the signage, or where on the sliding scale the non-phone payment would need to be to be considered a contractual charge rather than a breach clause.
If the signage had read, for example, "2 hours free, stays more than 2 hours £75", there would be no such argument, as it would be clearly consideration for parking and the court would not interfere in the pricing of the service.
The problem with the case above was not the amount per se, but the construction of the contract, giving effect that the true consideration was £5 and the higher amount was a clause for breach (failing to pay by phone).
- £5 per day if you pay by phone as you park
- £125 per day if you don't pay by phone within x minutes of parking (written in smaller writing than the above)
This reads more like, it's £5, but if you don't pay by phone we'll consider it a breach and the liquidated damages clause will kick in.
What we don't know, without reading the judgement, is what would have happened if both payment methods were given equal prominence on the signage, or where on the sliding scale the non-phone payment would need to be to be considered a contractual charge rather than a breach clause.
If the signage had read, for example, "2 hours free, stays more than 2 hours £75", there would be no such argument, as it would be clearly consideration for parking and the court would not interfere in the pricing of the service.
The problem with the case above was not the amount per se, but the construction of the contract, giving effect that the true consideration was £5 and the higher amount was a clause for breach (failing to pay by phone).
rscott said:
Surely you mean it's perfectly possible that two separate judges on two different occasions erred?
If something reaches the supreme court (which it often does), it's possible that 3 magistrates, a judge with two magistrates and 3 appeal court judges have erred. If it reaches Europe, it's possible a number of law lords in the supreme court have also erred.One of the dangers of hearing litigants in person is that judges go the wrong side of defending the underdog and take into account things to which they're not entitled. Emotion can be very persuasive.
10 Pence Short said:
Having had a quick snoot at the case listed above, it *looks* as if the PPC were trying to dress up a penalty clause by describing it as consideration. In basic terms, the Judge rejected that it was consideration at all. Roughly speaking it was;
- £5 per day if you pay by phone as you park
- £125 per day if you don't pay by phone within x minutes of parking (written in smaller writing than the above)
This reads more like, it's £5, but if you don't pay by phone we'll consider it a breach and the liquidated damages clause will kick in.
What we don't know, without reading the judgement, is what would have happened if both payment methods were given equal prominence on the signage, or where on the sliding scale the non-phone payment would need to be to be considered a contractual charge rather than a breach clause.
If the signage had read, for example, "2 hours free, stays more than 2 hours £75", there would be no such argument, as it would be clearly consideration for parking and the court would not interfere in the pricing of the service.
The problem with the case above was not the amount per se, but the construction of the contract, giving effect that the true consideration was £5 and the higher amount was a clause for breach (failing to pay by phone).
Another interpretation of the above on 'Two hours free, more than two hours £75' is that the true consideration is not monetary, and the £75 charge for services is so far away from the other charge and so far away from a normal parking charge that it is to deter parking more than two hours and as such a penalty clause.- £5 per day if you pay by phone as you park
- £125 per day if you don't pay by phone within x minutes of parking (written in smaller writing than the above)
This reads more like, it's £5, but if you don't pay by phone we'll consider it a breach and the liquidated damages clause will kick in.
What we don't know, without reading the judgement, is what would have happened if both payment methods were given equal prominence on the signage, or where on the sliding scale the non-phone payment would need to be to be considered a contractual charge rather than a breach clause.
If the signage had read, for example, "2 hours free, stays more than 2 hours £75", there would be no such argument, as it would be clearly consideration for parking and the court would not interfere in the pricing of the service.
The problem with the case above was not the amount per se, but the construction of the contract, giving effect that the true consideration was £5 and the higher amount was a clause for breach (failing to pay by phone).
As I mentioned, it's not clear cut, and would depend on the facts of the case and the judge on the day, but that would be the new battleground.
Gassing Station | Speed, Plod & the Law | Top of Page | What's New | My Stuff