Discussion
Read today that they lost a court case against a motorist who drove around a car park in newquay, but didnt actually park as there was no spaces, after half an hour they drove off, then a few weeks later they received an invoice which the drive decided he didnt want to pay..... why would they think they would do?
Sorry if repost but didnt see it anywhere.
Sorry if repost but didnt see it anywhere.
The infamous Fistral Beach car park. Well known to any regular visitors to Newquay.
http://parking-prankster.blogspot.co.uk/2014/03/wa...
http://parking-prankster.blogspot.co.uk/2014/03/wa...
To be fair, 30 minutes is a long time to drive around a car park looking for a space. Normally you would have given up and left, or someone else would have left releasing a space.
The significant finding is that CCTV of a vehicle entering and later leaving a car park is not evidence that it has parked. Surely then, this is not a valid method of monitoring a paid car park at all? Nobody need pay if only the entrances are monitored, continual footage of the car being parked is required, the occasional general sweep by a camera would also be insufficient. PE must be worried.
The significant finding is that CCTV of a vehicle entering and later leaving a car park is not evidence that it has parked. Surely then, this is not a valid method of monitoring a paid car park at all? Nobody need pay if only the entrances are monitored, continual footage of the car being parked is required, the occasional general sweep by a camera would also be insufficient. PE must be worried.
speedking31 said:
To be fair, 30 minutes is a long time to drive around a car park looking for a space. Normally you would have given up and left, or someone else would have left releasing a space.
The significant finding is that CCTV of a vehicle entering and later leaving a car park is not evidence that it has parked. Surely then, this is not a valid method of monitoring a paid car park at all? Nobody need pay if only the entrances are monitored, continual footage of the car being parked is required, the occasional general sweep by a camera would also be insufficient. PE must be worried.
Yes, all they would have to do is come to court and lie to the Judge and convince him that they simply drove around the car park for four hours. The significant finding is that CCTV of a vehicle entering and later leaving a car park is not evidence that it has parked. Surely then, this is not a valid method of monitoring a paid car park at all? Nobody need pay if only the entrances are monitored, continual footage of the car being parked is required, the occasional general sweep by a camera would also be insufficient. PE must be worried.
I can see the issues in that.
JustinP1 said:
speedking31 said:
To be fair, 30 minutes is a long time to drive around a car park looking for a space. Normally you would have given up and left, or someone else would have left releasing a space.
The significant finding is that CCTV of a vehicle entering and later leaving a car park is not evidence that it has parked. Surely then, this is not a valid method of monitoring a paid car park at all? Nobody need pay if only the entrances are monitored, continual footage of the car being parked is required, the occasional general sweep by a camera would also be insufficient. PE must be worried.
Yes, all they would have to do is come to court and lie to the Judge and convince him that they simply drove around the car park for four hours. The significant finding is that CCTV of a vehicle entering and later leaving a car park is not evidence that it has parked. Surely then, this is not a valid method of monitoring a paid car park at all? Nobody need pay if only the entrances are monitored, continual footage of the car being parked is required, the occasional general sweep by a camera would also be insufficient. PE must be worried.
I can see the issues in that.
Drivers who have returned to the supermarket to make further purchases or use the recycling facilities located there have received tickets because the system only recognised the first entry and last exit.
Mill Wheel said:
In Windermere there is a supermarket car park with a 2 hour limit on it's free car park.
Drivers who have returned to the supermarket to make further purchases or use the recycling facilities located there have received tickets because the system only recognised the first entry and last exit.
Highly unlikely scenario but who wouldn't use that to attempt to undermine the fine.Drivers who have returned to the supermarket to make further purchases or use the recycling facilities located there have received tickets because the system only recognised the first entry and last exit.
CharlieBangBang said:
Mill Wheel said:
In Windermere there is a supermarket car park with a 2 hour limit on it's free car park.
Drivers who have returned to the supermarket to make further purchases or use the recycling facilities located there have received tickets because the system only recognised the first entry and last exit.
Highly unlikely scenario but who wouldn't use that to attempt to undermine the fine.Drivers who have returned to the supermarket to make further purchases or use the recycling facilities located there have received tickets because the system only recognised the first entry and last exit.
The format is that the Particulars of Claim will outline their case. If you want to dispute that, it is up to you to put forward your case formally in a Defence, and then back that up with a witness statement.
On both occasions you have to sign a declaration of truth.
littleguy said:
they wouldn't need to lie, they would simply ask for evidence that they parked there.
So what do they reply then without lying when asked in cross-examination "What did you do between the time you were recorded as entering the car park and the time you left?" The burden of proof is only balance of probabilities i.e. 51% or better. It is a reasonable inference that someone does not enter a car park, drive around for two hours and then leave. Far more likely is that they parked.
Don't get me wrong - I dislike Parking Eye as much as the next man. I can't help but think that your suggested approach is a touch flawed though.....
CharlieBangBang said:
Mill Wheel said:
In Windermere there is a supermarket car park with a 2 hour limit on it's free car park.
Drivers who have returned to the supermarket to make further purchases or use the recycling facilities located there have received tickets because the system only recognised the first entry and last exit.
Highly unlikely scenario but who wouldn't use that to attempt to undermine the fine.Drivers who have returned to the supermarket to make further purchases or use the recycling facilities located there have received tickets because the system only recognised the first entry and last exit.
If the ANPR camera fails to detect the first time someone leaves (as it can't read the plate for any reason), then if they system is setup incorrectly it will record the second exit alongside the first entry.
R32 said:
CharlieBangBang said:
Mill Wheel said:
In Windermere there is a supermarket car park with a 2 hour limit on it's free car park.
Drivers who have returned to the supermarket to make further purchases or use the recycling facilities located there have received tickets because the system only recognised the first entry and last exit.
Highly unlikely scenario but who wouldn't use that to attempt to undermine the fine.Drivers who have returned to the supermarket to make further purchases or use the recycling facilities located there have received tickets because the system only recognised the first entry and last exit.
If the ANPR camera fails to detect the first time someone leaves (as it can't read the plate for any reason), then if they system is setup incorrectly it will record the second exit alongside the first entry.
R32 said:
CharlieBangBang said:
Mill Wheel said:
In Windermere there is a supermarket car park with a 2 hour limit on it's free car park.
Drivers who have returned to the supermarket to make further purchases or use the recycling facilities located there have received tickets because the system only recognised the first entry and last exit.
Highly unlikely scenario but who wouldn't use that to attempt to undermine the fine.Drivers who have returned to the supermarket to make further purchases or use the recycling facilities located there have received tickets because the system only recognised the first entry and last exit.
If the ANPR camera fails to detect the first time someone leaves (as it can't read the plate for any reason), then if they system is setup incorrectly it will record the second exit alongside the first entry.
), leading to letters being sent out stating only the time of first entry and final exit and claiming an overstay 
.I don't believe liquidated damages arguments are well fought by the lawyers for the PPCs in the examples I've seen on sites such as Parking Prankster (although it is of course likely the cases we see detail of on there are the ones which suit the purpose of the site). This is not a surprise, as the fees recoverable are minimal and the subject matter hardly likely to result in excitement on behalf of a lawyer or decent preparation time.
Liquidated damages ('LD') clauses are by their nature vague, as they are designed to avoid calculating precise damages in the event of breach. They give certainty to both parties. There is no requirement that LDs are strictly accurate for every occasion. In practical terms, if you were facing a PPC claiming LDs, they would not be obliged to itemise their losses related specifically to your breach. What they would need to convince the court, is that the charge at least represented the greatest possible loss such a breach could engender. This would be the 'genuine pre-estimate of loss'.
It would not matter if your particular breach had only cost them 50p, if they could show the genuine pre-estimate could lead to £80.
LDs are also suited to occasions when the harm caused by breach cannot easily be quantified at all.
Dunlop is the best known authority, often cited by people defending against PPCs. In that case, Dunlop claimed £5 for each tyre sold under the list price. This figure represented the damage done to Dunlop in their ability to work successfully with their dealer network and control pricing. It was not based on any specific sum of parts. They could not write on paper how £5 was a particular and relevant sum to each tyre sold under price.
In private parking, the damage done by each breach of the parking conditions, is that the use of the land is being compromised. If the car parking spaces are allowed to be abused, eventually people will use it less and less, and with it the shops or services it serves. The car park will cease to be the amenity it is designed to be. The land owner and his tenants will lose the financial gain required from their land ownership and businesses. This would lead to a significant loss, albeit one very difficult to quantify.
How do you know how much each individual breach would contribute to the loss of amenity and resultant financial losses? It's impossible to calculate, in the same way the damages caused by selling tyres under the list price.
A car park has potential to contract with many thousands of individuals every single week. The damage caused by each one of these breaching the terms of parking would be both great and swift. If new customers could no longer use the amenity or at least use it to their satisfaction they would go elsewhere.
I would suggest a figure of £80 is a reasonable and genuine attempt to pre-estimate the damage breaches to the parking conditions will cause, if you take into account the frequency and volume of people parking in the car park and the losses that would be suffered by the business beneficiaries of it.
In my opinion, this only applies in cases where the breach would by parking in such a way as to cause an obstruction, park in the wrong kind of bay or overstay the maximum amount of time permissible (whether free or paid parking). In the case where you buy a ticket and overstay, but remain within the permitted time allowed, the only loss I can see being claimed is the face value of the ticket you should have bought and a small amount to cover the administration involved in dealing with the breach. The PPC could not claim the LDs represented the wider harm by your overstay at £80, yet claim that harm would not have occured had bought an additional 50p worth of parking time.
Liquidated damages ('LD') clauses are by their nature vague, as they are designed to avoid calculating precise damages in the event of breach. They give certainty to both parties. There is no requirement that LDs are strictly accurate for every occasion. In practical terms, if you were facing a PPC claiming LDs, they would not be obliged to itemise their losses related specifically to your breach. What they would need to convince the court, is that the charge at least represented the greatest possible loss such a breach could engender. This would be the 'genuine pre-estimate of loss'.
It would not matter if your particular breach had only cost them 50p, if they could show the genuine pre-estimate could lead to £80.
LDs are also suited to occasions when the harm caused by breach cannot easily be quantified at all.
Dunlop is the best known authority, often cited by people defending against PPCs. In that case, Dunlop claimed £5 for each tyre sold under the list price. This figure represented the damage done to Dunlop in their ability to work successfully with their dealer network and control pricing. It was not based on any specific sum of parts. They could not write on paper how £5 was a particular and relevant sum to each tyre sold under price.
In private parking, the damage done by each breach of the parking conditions, is that the use of the land is being compromised. If the car parking spaces are allowed to be abused, eventually people will use it less and less, and with it the shops or services it serves. The car park will cease to be the amenity it is designed to be. The land owner and his tenants will lose the financial gain required from their land ownership and businesses. This would lead to a significant loss, albeit one very difficult to quantify.
How do you know how much each individual breach would contribute to the loss of amenity and resultant financial losses? It's impossible to calculate, in the same way the damages caused by selling tyres under the list price.
A car park has potential to contract with many thousands of individuals every single week. The damage caused by each one of these breaching the terms of parking would be both great and swift. If new customers could no longer use the amenity or at least use it to their satisfaction they would go elsewhere.
I would suggest a figure of £80 is a reasonable and genuine attempt to pre-estimate the damage breaches to the parking conditions will cause, if you take into account the frequency and volume of people parking in the car park and the losses that would be suffered by the business beneficiaries of it.
In my opinion, this only applies in cases where the breach would by parking in such a way as to cause an obstruction, park in the wrong kind of bay or overstay the maximum amount of time permissible (whether free or paid parking). In the case where you buy a ticket and overstay, but remain within the permitted time allowed, the only loss I can see being claimed is the face value of the ticket you should have bought and a small amount to cover the administration involved in dealing with the breach. The PPC could not claim the LDs represented the wider harm by your overstay at £80, yet claim that harm would not have occured had bought an additional 50p worth of parking time.
I think you've outlined the background to the uninitiated perfectly there 10Pence.
It's worth a read.
What you've mentioned there also corresponds with modern case law, even in the last few years with regards to liquidated damages clauses.
I also agree that PE have done themselves no favours with how they argue their side in court. They also have a short-term and long-term problem where IMHO they will never want tested in a court that matters.
The short term issue is one of the liquidated damages clause. The contract is between PE and the parker. If the parker overstays PE have only lost out on the potential cost of parking. It's the landowner who has face the potential damage that an £80 LD clause could potentially support.
Unless PE and the landowner change their contracts, and PE change their signage to the parking contract being between the landowner and the parker with PE acting as an agent to the landowner, the liquidated damages clause will become unstuck.
The long term issue is that even if they made this change, whilst legitimate liquidated damages clauses are enshrined in contract law, the definition of unenforceable penalty clauses are also enshrined in law too. That is, in short, if the charge is designed to deter behaviour then it can be seen as such.
The reason that PE don't take one of these lost cases to a higher court I believe is because of this. I think it would be a battle of the two parties contractual positions. It could come down to the penalty clause issue being paramount, or on balance of the positions, a judgment could be made for say £20, not the £80 PE ask for.
That would mean PE would over night have a 75% drop in turnover. Parking Prankster might even get his 10 second junket on national TV, but failing that, it will be surely be all over every forum and interested website, which will instantly be Googleable by anyone who gets a PE letter.
So, IMHO they will never let that happen. They will merely fudge on, and send a non-lawyer to court cases once a week to show that they fight them and sometimes win.
It's worth a read.
What you've mentioned there also corresponds with modern case law, even in the last few years with regards to liquidated damages clauses.
I also agree that PE have done themselves no favours with how they argue their side in court. They also have a short-term and long-term problem where IMHO they will never want tested in a court that matters.
The short term issue is one of the liquidated damages clause. The contract is between PE and the parker. If the parker overstays PE have only lost out on the potential cost of parking. It's the landowner who has face the potential damage that an £80 LD clause could potentially support.
Unless PE and the landowner change their contracts, and PE change their signage to the parking contract being between the landowner and the parker with PE acting as an agent to the landowner, the liquidated damages clause will become unstuck.
The long term issue is that even if they made this change, whilst legitimate liquidated damages clauses are enshrined in contract law, the definition of unenforceable penalty clauses are also enshrined in law too. That is, in short, if the charge is designed to deter behaviour then it can be seen as such.
The reason that PE don't take one of these lost cases to a higher court I believe is because of this. I think it would be a battle of the two parties contractual positions. It could come down to the penalty clause issue being paramount, or on balance of the positions, a judgment could be made for say £20, not the £80 PE ask for.
That would mean PE would over night have a 75% drop in turnover. Parking Prankster might even get his 10 second junket on national TV, but failing that, it will be surely be all over every forum and interested website, which will instantly be Googleable by anyone who gets a PE letter.
So, IMHO they will never let that happen. They will merely fudge on, and send a non-lawyer to court cases once a week to show that they fight them and sometimes win.
I would imagine the business plan for PE is now to alter their contractual arrangements with land owners.
This will take time and require cooperation with those land owners.
Contrary to others, I don't believe Capita are likely to have spent many millions of pounds buying a white elephant. Their advisors in the City will be all too aware of the position regards contract.
Watch this space- once PE or another gets into a sufficiently confident position, this will be tested in the higher courts.
For s
ts and giggles it's almost tempting to get a parking ticket myself...
This will take time and require cooperation with those land owners.
Contrary to others, I don't believe Capita are likely to have spent many millions of pounds buying a white elephant. Their advisors in the City will be all too aware of the position regards contract.
Watch this space- once PE or another gets into a sufficiently confident position, this will be tested in the higher courts.
For s
ts and giggles it's almost tempting to get a parking ticket myself...!)PS
You have suggested that the £80 might be a reasonable estimate of loss to the retail park owners.
But the car driver does not have a contract with the retail park owner. The purported contract is with Parking Eye.
Parking Eye don't own the shops - so they don't suffer the estimated £80 loss.
If parking could show that their contract with the owners of the land contained LD clause that provide that Parking Eye must pay to the land owner £80 every time a car outstays the free parking period, I could see how parking ey might be able to substantiate the loss.
But for the car owner/driver, it is immaterial what loss the landowner might suffer as they have no contractual obligation to them.
You have suggested that the £80 might be a reasonable estimate of loss to the retail park owners.
But the car driver does not have a contract with the retail park owner. The purported contract is with Parking Eye.
Parking Eye don't own the shops - so they don't suffer the estimated £80 loss.
If parking could show that their contract with the owners of the land contained LD clause that provide that Parking Eye must pay to the land owner £80 every time a car outstays the free parking period, I could see how parking ey might be able to substantiate the loss.
But for the car owner/driver, it is immaterial what loss the landowner might suffer as they have no contractual obligation to them.
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