ParkingEye v Beavis judgment tomorrow (Wednesday)
Discussion
"Sometime after 9.45" apparently. I predict that it's going to go in ParkingEye's favour, because, you know, overstaying by a couple of minutes or parking slightly outside the line at the end of a row of cars so results in a loss of £85, and that's why "operators" stay out of sight and let the driver commit the "contravention" so that they can issue a "ticket". Companies are always telling their employees to stay out of sight and say nothing (or reassure them that they can do what they're doing) while someone causes them a loss.
It's much more efficient to stand by and let someone cause you a loss, then try to recover the loss from them later, than it is to, say, stop them causing you the loss in the first place. Otherwise, for example, petrol stations would have number plate readers which prevented petrol being dispensed to vehicles with dodgy histories. But they don't. They definitely don't.
So, what will the result be? The PH Union of Car-Haters ("PHUCH") are optimistic and have the champagne on ice, but will they be drinking their own tears instead?
It's much more efficient to stand by and let someone cause you a loss, then try to recover the loss from them later, than it is to, say, stop them causing you the loss in the first place. Otherwise, for example, petrol stations would have number plate readers which prevented petrol being dispensed to vehicles with dodgy histories. But they don't. They definitely don't.
So, what will the result be? The PH Union of Car-Haters ("PHUCH") are optimistic and have the champagne on ice, but will they be drinking their own tears instead?
Whilst I might have sympathy for those that overstay by a minute or two etc the reality is that we only need to look at the threads on here complaining about people parking in their car park or parking space etc to realise that there is a problem.
If people didn't park in private car parks, on private land etc then there wouldn't be the problem that needs resolving. I know when I was involved in property management a significant amount of my time was spent dealing with parking complaints and I know my current colleagues in management find the same thing.
If people didn't park in private car parks, on private land etc then there wouldn't be the problem that needs resolving. I know when I was involved in property management a significant amount of my time was spent dealing with parking complaints and I know my current colleagues in management find the same thing.
Breadvan72 said:
Pistorius, in the kharzi, with the pistol. Oops! Wrong case.
Completely off-topic but that's the first time I've seen the word 'khazi' written down! Wouldn't have known how to spell it if asked...every day is a learning day and at least it wasn't the usual Latin, copy, paste into Google search bar, read, make sense of given the context, that I usually have to do with your posts 
hondafanatic said:
Completely off-topic but that's the first time I've seen the word 'khazi' written down! Wouldn't have known how to spell it if asked...every day is a learning day and at least it wasn't the usual Latin, copy, paste into Google search bar, read, make sense of given the context, that I usually have to do with your posts
A lot of people call it "The Gary" some geeks refer to it as "Drop Box" anyway he got of light with that sentence.
The word is a transliteration of some Raj speak, and might be spelled khasi, or in many other ways. You will recall Kenneth Williams as the Khasi of Kalabar, in Carry On Up The Khyber, probably the greatest film ever made.
"Where's the Memsahib?"
"The Khasi has taken her up t' Jacksie."
And so on.
"Where's the Memsahib?"
"The Khasi has taken her up t' Jacksie."
And so on.
I don't have much of a dog in the fight, but am mildly in favour of sticking one to the selfish Republic of Me idiots that cluster around places like peepipoo. May the Lord (or the Flying Spaghetti Monster, PBUHNA) save us from those with a sense of their own entitlement. It seems that some people get entitlement along with a driving licence - see PH speeding and parking threads, passim.
The amounts charged by PE etc are, however, excessive. The sensible thing would be to legislate to allow private landowners to impose a form of civil fine, limited by statute or regulation, rather than faffing about with contractual arguments. Statutory appeal system, no more privatised tribunals of Mickey Mouse character. Chance that this will happen? Probably not much.
The amounts charged by PE etc are, however, excessive. The sensible thing would be to legislate to allow private landowners to impose a form of civil fine, limited by statute or regulation, rather than faffing about with contractual arguments. Statutory appeal system, no more privatised tribunals of Mickey Mouse character. Chance that this will happen? Probably not much.
Edited by anonymous-user on Wednesday 4th November 09:28
Weighing up the likely outcomes here, personally I find it highly unlikely that the court will take the unusual step of invalidating a contract that two parties freely enter into.
Thus, if there is a group waiting for this to happen, I fear that they will be disappointed.
What the judgment may do is clarify some of the grey areas. The long and the short is that companies need to be able to contract with people, and private land needs to be protected. That won't change.
I would suggest, if anything, the judgment will make it easier for parking companies that it was previously, as there will be a case law they can rely upon to change their practices in accordance with.
Thus, if there is a group waiting for this to happen, I fear that they will be disappointed.
What the judgment may do is clarify some of the grey areas. The long and the short is that companies need to be able to contract with people, and private land needs to be protected. That won't change.
I would suggest, if anything, the judgment will make it easier for parking companies that it was previously, as there will be a case law they can rely upon to change their practices in accordance with.
I turned on the Supreme Court live at just the right time - a minute before Sumption started to read out the judgment. It was a unanimous decision. I wonder how long it will take before the written judgment is up?
ETA: not unanimous in Beavis, 6:1. I must have thought his comment on Makdessi applied to both.
ETA: not unanimous in Beavis, 6:1. I must have thought his comment on Makdessi applied to both.
Edited by Jobbo on Wednesday 4th November 10:08
\From the Press Summary:
What makes a contractual provision penal? Lord Dunedin’s tests in Dunlop Pneumatic Tyre Company Ltd.
v New Garage and Motor Company Ltd. [1915] AC 79 have too often been treated as a code. The speeches
of the rest of the Appellate Committee, particularly Lord Atkinson, are at least as important. The
validity of a clause providing for the consequences of a breach of contract depends on whether the
innocent party can be said to have a legitimate interest in the enforcement of the clause. There is a
legitimate interest in the recovery of a sum constituting a reasonable pre-estimate of damages, but the
innocent party may have a legitimate interest in performance which extends beyond the recovery of
pecuniary compensation. The law will not generally uphold a contractual remedy where the adverse
impact of that remedy significantly exceeds the innocent party’s legitimate interest [18-30].
The concepts of ‘deterrence’ and “genuine pre-estimate of loss” are unhelpful. The true test is
whether the impugned provision is a secondary obligation which imposes a detriment on the
contract-breaker out of all proportion to any legitimate interest of the innocent party in the
enforcement of the primary obligation [32].
What makes a contractual provision penal? Lord Dunedin’s tests in Dunlop Pneumatic Tyre Company Ltd.
v New Garage and Motor Company Ltd. [1915] AC 79 have too often been treated as a code. The speeches
of the rest of the Appellate Committee, particularly Lord Atkinson, are at least as important. The
validity of a clause providing for the consequences of a breach of contract depends on whether the
innocent party can be said to have a legitimate interest in the enforcement of the clause. There is a
legitimate interest in the recovery of a sum constituting a reasonable pre-estimate of damages, but the
innocent party may have a legitimate interest in performance which extends beyond the recovery of
pecuniary compensation. The law will not generally uphold a contractual remedy where the adverse
impact of that remedy significantly exceeds the innocent party’s legitimate interest [18-30].
The concepts of ‘deterrence’ and “genuine pre-estimate of loss” are unhelpful. The true test is
whether the impugned provision is a secondary obligation which imposes a detriment on the
contract-breaker out of all proportion to any legitimate interest of the innocent party in the
enforcement of the primary obligation [32].
This is a fairly substantial rewrite of the law as to penalty. The Dunlop Tyre decision had become sclerotic, and, as too often happens, had become elevated to the status of Statute. This decision reboots the law of penalty for the twenty first century.
Edited by anonymous-user on Wednesday 4th November 10:19
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