Does Beavis apply to pre Nov '15 tickets?

[Openlaw15]

Removed as duplicated below.

[Openlaw15]

Re: 70 Page PROSECUTION STATEMENT - Parking Eye!!!

Hello all,

I believe it is now the time to call in the experts :wub:

I was informed by a staff member that I could use the car park whilst I checked out the gym facilities. I returned a week later to get the finer details on becoming a member, but it was too expensive so i chose not to join.

I then received PCN letters from Parking Eye asking for payments. I ignored the letters and then I got a County Court Claim letter. I proceeded by acknowledging and then sending my defence statement. My main point was that the manager of the gym understood my situation and requested (via email) for the tickets to be cancelled.

They have now responded with a 70 PAGE document annihilating by defence points!

Now I am actually scared that I will have to pay for something which was not my fault...can anybody help me?

I have tried to upload the prosecution statement but its a 46MB document so its been declined. I have uploaded the defence statement and manager email...if that helps...

Pleaseeeee....

Penny, I have posted this again as it's been amended with better case authorities and in general, better structure. It is probably a good draft in parts too for you to use, actually. I put the part in about consideration et al for the benefit of many legal beagles who are unlikely to have studied contract law never mind at such a high level as I have. I also think it's a good idea to say that Parking v Beavis is not relevant anyway as Beavis only became law at the Court of Appeal in 2015 and Supreme Court, 2015 (ie few months later).

I'll summarise nevertheless.

1) Contract for parking must at least be via a ticket, as was the case in Beavis at Court of Appeal and Supreme Court. In your situation there is no contractual document for parking your car so there is no contract on your facts. As in Thornton (1971), and Chapelton (1940), there has to be at least a ticket for a contract and the gym never operated a ticket dispensary system.

2) Any penalties must be incorporated even if there were a contract (as explained below) for car park: Thornton (1970). In your case the terms are not incorporated as sign 1 and sign 2 must be present at the same time: Thornton.

3) As a contingency, representation by the manager: Estoppel defence is available to stop a cause of action (the court case against you) where the promisor (the manager) goes back on his word. Your facts: manager/ promisor makes a promise that the penalty/ charge would be revoked; and or you had permission to park in the gym by the company's manager, who at the time was employed to make managerial decisions which inter alia (amongst other things) included cancelling penalties or charges and or permitting parking for potential gym members.

In detail:

Notwithstanding offer and acceptance a contract requires consideration and legal intention. Consideration is defined at common law as a benefit and a detriment simultaneously to each contractor. The main question is whether there was a contract between Parking Eye and Penny although the evidence suggest the contrary (see below). In any event for Parking Eye to rely on any terms of the contract where they are separate these must pass the incorporation test at common law. It is Penny's view that there was never a contract and no incorporation based on the reasoning below. In any event Penny will alternatively rely on an estoppel defence (see below) were Parking Eye to unreasonably pursue the matter. The agent for the gym is likely Parking Eye and the principal is likely the gym (company). So I assume any contractor would be via Parking Eye acting as agent for the gym (company).

Offer and Acceptance (agreement)

For a contract it requires at least an agreement, ie an offer and acceptance. For a car park situation an offer and acceptance must at least be via the terms of a document such as a parking ticket: Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163 (CA); Chapelton v Barry Urban District Council [1940] 1 KB 532 (CA). Penny's substantive defence is there was no contract, in that no offer was made by Parking Eye and no acceptance by Penny as there was simply no document or no ticket, which is essential for these type of car park scenarios: Thornton; Chapelton. Alternatively, I noted with interest in your claimant statement that you (Parking Eye) considered that Shoe Lane Parking v Thornton was not relevant. It does seem to me that you do not understand the relevant law (see below).

Incorporation

Notwithstanding contract/ or document: Thornton; Chapelton, any other terms the claimant seeks to rely on must be incorporated into it (the contract or document) via an incorporation test at common law. Incorporation situations usually apply to verbal contracts or where the contract is in parts. First of all, the offeree (person accepting the contract) must be put on reasonable notice for any terms/ clause to be incorporated by the offeror (person making the offer): Parker v South Eastern Railway (1877) 2 CPD 416 (CA). In addition to this, the terms and conditions for incorporation must be prominent at the time of the contract (or document): op cit Thornton v Shoe Lane Parking Ltd. However, the very relevant authority for the incorporation test is Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163 (CA), a parking case authority. In Thornton, the contract was held by judge Denning to be complete when the person had taken a ticket from the machine on entering the car park, meaning the terms and conditions were not considered incorporated as they were only observable in the actual car park albeit at that point it was too late for them to be incorporated.

In Penny's case sign 1 states "This Car Park is Private Property" and "see signage in car park for terms and conditions" (page 4): pp. 64-71 of your extract, which she will rely on as her material evidence. The terms at sign 2 - terms and conditions (same extract) were therefore simply too late for Penny to be put on reasonable notice: Parker (CA, 1877), for these terms to be incorporated into the contract. In any event the terms must be observable at the same time as the contract too for Penny: Thornton, whereas they were clearly not. In any event the writing on sign 2 is simply either too obscure or too tiny for Penny to have either read or understand its implications: Thornton.

However, whilst it may not be contract law practice per se for signs to be sufficiently clear by illumination in the dark the British Parking Association guidelines recommend such practice. The facts in Penny's case were that it was dark and the gym operates its business in the dark to attract clientele so it is only equitable if the gym were to operate a lighting system if it desires to offer on site parking; it is of course an obvious health and safety issue too.

Consideration

For a contract, consideration would be Penny's parking.... the consideration for Parking Eye is the charge/ penalty for not being a Gym member. So, here objectively any way, there is a detriment and a benefit. Consideration can be money or as insignificant as a chocolate wrapper at common law. So it's very likely Penny's parking will be viewed as the consideration. In Beavis, the person was entitled to free parking for two hours. In Penny's case there was not free parking period (grace). So the contract if there were one would begin when she parked her car ie violating the gym's car park rules. It is assumed that Parking Eye has contract with the gym to ensure no person flouts its rules.

Legal intention

It's unlikely that legal intention on Penny's part is a defence as the law is objective so would consider these events as though the parties intended a legal intention. Legal intention means you would have a remedy against the other parties if something went wrong, ie if Penny's car were damaged she would possibly have a claim in contract, or in tort as a visitor or trespasser possibly.

Estoppel

First alternative: no contact scenario

It's my understanding that an estoppel does not require a contract to enforce this legal defence. I produce the following statement with this assumption. Estoppel based on the promisor to stop cause of action (ie court case against Penny). Representation: manager/ promisor's verbal expressed to Penny his permission to either park at the gym or cancelled the sanction/ charge as she intended to be a gym member.

2nd alternative: presumes contract scenario

If there were a contract it's possible to view the conversation with the manager as an additional term of the contract or variation of the contract's term. Variation of a contract normally requires additional consideration so this could be a problem for Penny. However the additional terms of the contract is the manager's representation: verbally expressed to Penny his permission to either park at the gym or cancelled the sanction/ charge as she intended to be a gym member. However, assuming there is a contract albeit this is subject to the complex test of incorporation of terms (as above), Penny nevertheless benefits from an estoppel defence which is a legal remedy to estopp a cause of action (claim by Parking Eye).

[Kati]

Re: 70 Page PROSECUTION STATEMENT - Parking Eye!!!

Ooh excellent website :goodjob:

So what you are saying is the quick bulleted way is not going to be acceptable?

and my final question is: Will the judge not be annoyed at getting a document with loads of case judgements in it?

Last thing i want to do is start off on the wrong foot with the judge....

[MENTION=5354]mystery1[/MENTION]'s been helping with parking appeals and cases like this for years ... he knows the Beavis judgement inside out and his advice is invaluable here on LB :nod:

If you stick to his advice then IMO you can't go wrong xx

[Openlaw15]

Re: 70 Page PROSECUTION STATEMENT - Parking Eye!!!

Wow... Open Law I am speechless! :_melt__by_darkmoon3
I thank you unreservedly for such a detailed post :wub:

Just as a side question to all...my directions state: Each party must deliver to the other party and court copies of all documents on which that party intends to rely at the hearing.

Im thinking of creating a word document saying i will be relying on the following court cases:

a) http://www.lawgazette.co.uk/law/righ...99.fullarticle
b) UKPC v Mr M Case Case B6QZ4H3R
c) Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163 (CA)
d) Energy Venture Partners Ltd v Malabu Oil and Gas 2013
etc etc...

Or Do i need to copy and paste the full case files onto a word document and then post it to both parties? (If it is this latter option then does anyone know a good website where I can get these cases?) xxx

Penny, if you send Parking Eye an email of the incorporation tests (before you even get to court), they will know they haven't got a leg to stand on. Their lawyers know all about incorporation and Parking Eye are likely to know about it too, but hoping you don't. It's still not too late to settle.

[Openlaw15]

Re: 70 Page PROSECUTION STATEMENT - Parking Eye!!!

@mystery1's been helping with parking appeals and cases like this for years ... he knows the Beavis judgement inside out and his advice is invaluable here on LB :nod:

If you stick to his advice then IMO you can't go wrong xx

Beavis is only relevant past 2015 but up to 2015 Parking Eye v Beavis is simply not an authority. The relevant authorities are the ones I cited.

[Kati]

Re: 70 Page PROSECUTION STATEMENT - Parking Eye!!!

Beavis is only relevant past 2015 but up to 2015 Parking Eye v Beavis is simply not an authority. The relevant authorities are the ones I cited.

The claimant has included Beavis in their statement ... it is still relevant at least in that the court case was initiated after the judgement.

[Openlaw15]

Re: 70 Page PROSECUTION STATEMENT - Parking Eye!!!

The claimant has included Beavis in their statement ... it is still relevant at least in that the court case was initiated after the judgement.

Yes the claimant has but common law is not retro active (ie you cannot back date), it's only applicable for future cases. The Supreme Court judgement was published 4 November 2015. Penny used the gym car park, once Oct 7 for 1 hour and Oct 15, for 1 and half hours. So for a contract if it occurred with Parking Eye, to use it as a legal authority it had to be 4 November 2015 or afterwards, when Supreme Court made the precedential common law for parking. Regardless Penny did not have a ticket but Beavis did. There was no ticket dispenser in Penny's case but there was in Beavis, so Penny's case is distinguishable so the UKSC judgement cannot apply. For binding precedent to operate the facts must be the same.

[des8]

Re: 70 Page PROSECUTION STATEMENT - Parking Eye!!!

Penny did not have a ticket but Beavis did. There was no ticket dispenser in Penny's case but there was in Beavis,

Really?
Where did you find this hitherto hidden information?

Its a free for 2 hours car park in Chelmsford.. no tickets issued until it comes through the post!

[Amethyst]

Re: 70 Page PROSECUTION STATEMENT - Parking Eye!!!

OpenLaw.
This is just wrong

. I also think it's a good idea to say that Parking v Beavis is not relevant anyway as Beavis only became law at the Court of Appeal in 2015 and Supreme Court, 2015 (ie few months later).

Think about bank charges, OFT v Abbey.

Charges incurred pre supreme court judgment cannot be reclaimed on the grounds given in the OFT v Abbey case because of the OFT v Abbey Judgment ( so penalties are out and the charge is a core service (cough!)) .... and with your comment on Beavis not applying to tickets received pre Beavis it seems that you are saying we're all wrong and the charges incurred before OFT v Abbey are reclaimable on those grounds because the Judgment was after the charges?

( and Beavis's ticket was pre-2015 anyway )

Just have a think about it.

Penny - Beavis applies.

( there may be different grounds with which Parking tickets are fought on now but the grounds in Beavis are not arguable )

( and and as Des said, Beavis had no ticket - it was a free for 2 hours car park )

[des8]

Re: 70 Page PROSECUTION STATEMENT - Parking Eye!!!

Also that waffle about incorporation is just that in this case.
PE use 2 signs: one at the entrance in large letters warning that it is for Patrons only and T&Cs are on other signs.
The second sign contains all the information and does not need to be posted next to the entrance signs.

Mystery1 is, IMO, more on the ball with the argument that as the Car Park was clearly marked for members only, and you weren't a member, there could be no contract.
As PE always claim breach of contract, and not trespass, their claim should be heading for a fail.

[EXC]

Re: 70 Page PROSECUTION STATEMENT - Parking Eye!!!

I also think it's a good idea to say that Parking v Beavis is not relevant anyway as Beavis only became law at the Court of Appeal in 2015 and Supreme Court, 2015 (ie few months later).

Just trying to get my head round this.

CoP/SC judgments don't introduce or change laws. They just establish and give guidance to how existing laws should be given effect to ie how they apply.

In any event Penny's case would be heard after Beavis wouldn't it? Unless I'm missing something.

common law is not retro active (ie you cannot back date), it's only applicable for future cases. The Supreme Court judgement was published 4 November 2015. Penny used the gym car park, once Oct 7 for 1 hour and Oct 15, for 1 and half hours. So for a contract if it occurred with Parking Eye, to use it as a legal authority it had to be 4 November 2015 or afterwards, when Supreme Court made the precedential common law for parking

Like the bank charges example Amethyst gave, there were 80,000 odd cases stayed pending the outcome of the test case. All those cases involved contract disputes that occurred before the test case (obviously) but were subsequently bound by it.

[Openlaw15]

Re: 70 Page PROSECUTION STATEMENT - Parking Eye!!!

Just trying to get my head round this.

CoP/SC judgments don't introduce or change laws. They just establish and give guidance to how existing laws should be given effect to ie how they apply.

In any event Penny's case would be heard after Beavis wouldn't it? Unless I'm missing something.



Like the bank charges example Amethyst gave, there were 80,000 odd cases stayed pending the outcome of the test case. All those cases involved contract disputes that occurred before the test case (obviously) but were subsequently bound by it.

80, 000 cases is rather different than the two cases including Parking Eye (the appellant on a point of law), the Supreme Court were dealing with. I think the bank charges is a consumer matter and a rather rare exception to the binding precedent rule owing to the implications on the economy. Law is king almost certainly but the economy is a practical significance.

The Supreme Court published its decision in Parking Eye (appellant) v Beavis, Nov 4 2015. Penny's contract, if there were one, or were Parking Eye seek to rely on it, was established October 15 2015 at the earliest. Any law up to 3 Nov 2015 in this area would be binding precedents/ authorities. So UKSC in Parking Eye cannot apply as a contract case law authority in law until Nov 4 2015 or future cases. It's the same whether it's civil such as precedent dyslexia case for an educational psychologist (Phelps) that was challenged on points of law right up to 2001 at the House of Lords (equivalent to Supreme Court), or criminal law on a point of law from the Magistrate's Court to the Crown Court, to the Court of Appeal, to the Supreme Court level. It's the same with DWP after the first and second tier tribunals, an appeal on point of law only to the Court of Appeal. A fair country need this type of hierarchy to ensure the rule of law is king.

On a commercial note which is entirely different than a point of law under the law interpretation, if the law is insecure and susceptible to challenge a law giving advice will post-pone it for his client. However, this is commercial context and not the legal context.

In general

A County Court is not a binding authority can give a decision on the facts or point of law. Appeals can be made on a point of law to the Appellant courts. The High Court (unless HC is court of first instance), Court of Appeal, the Supreme Courts are appellant courts. Where the Court of Appeal goes against Parking Eye this is law until a higher authority turns that decision over by its interpretation of the law (statutory interpretation right). If this were not the case then the High Court, Court of Appeal's decision would mean nothing in the UK's unwritten constitution. If the High Court gives a decision it's simply binding on a point of law until the respondent appeals on a point of law to the higher authority, ie the Court of Appeal. A precedent on a point of law means entirely that in that it is simply an authority in the English legal system, or in other common law systems around the world. Binding precedent and statutory interpretation mean the appellant court's could interpret the law differently than previous appellant courts in the UK's unwritten constitution. There has to be a hierarchy as the Supreme Court is a constitutional court so at times will generally have a different view of the law than say the High Court or Court of Appeal, just like all appellant Supreme Courts whether in the USA, Israel, Canada, or Australia et al.

[des8]

Re: 70 Page PROSECUTION STATEMENT - Parking Eye!!!

I got to third line and stopped reading.
Anone who knows about this case knows Beavis was the appellant.
If you can't get basic facts right, why should we read further?

And several parking cases were stayed until Beavis had finally wound its way through the court system, and the outcome then applied at those trials although the events occurred prior to the final judgement.

[Amethyst]

Re: 70 Page PROSECUTION STATEMENT - Parking Eye!!!

Not sure this is helping the OP, so I'll move the 'does Beavis apply to parking tickets received pre Nov 15' discussions to a new thread.

[EXC]

Re: 70 Page PROSECUTION STATEMENT - Parking Eye!!!

80, 000 cases is rather different than the two cases including Parking Eye (the appellant on a point of law), the Supreme Court were dealing with. I think the bank charges is a consumer matter and a rather rare exception to the binding precedent rule owing to the implications on the economy. Law is king almost certainly but the economy is a practical significance.

That might be what you think but as far as I'm concerned there is no evidence that the implications to the economy was a consideration in the decision to bring the test case and I seriously doubt it could have been allowed to be.