*WON* 70 Page PROSECUTION STATEMENT - Parking Eye!!! - won

[CLL1]

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

Rules of the UK Constitution: 1) Parliament creates statute; 2) judges function includes binding precedent and statutory interpretation. 3) Law cannot be retro-active or retrospective, as even Parliament would not 'normally' make law retrospective. 4) The High Court is a first instance and Appellant Court; the Court of Appeal is an appellant court; the Supreme Court is an appellant court. So where the High Court but especially the Court of Appeal make a binding ratio this is the law of the land. Unless the loser appeals (the appellant) and wins the law is then over-turned. So where the Court of Appeal makes a binding ratio (legally binding part of the decision) in terms of Parking Eye therein at that point it is legally binding, ie the law of the land until the law is changed.

The other point is that higher courts such as High Court, Court of Appeal must simply have their own autonomy in terms of interpreting points of law within the UK's unwritten constitution. More to the point the UK Supreme Court cannot make a ratio decidendi (biding principle) that is retroactive or retrospective as that could go against the grain of the democratic institution that is law in free and democratic countries, ergo the rule of law is king and must be fair. So my overall reasoned view is the Parking Eye is authorative from 2015 and not before.

In terms of commercial reality a lawyer will not look at a case as law if it's likely to be challenged by higher court but this is a practical consideration owing to costs v benefits analysis, it's not a matter of interpreting the current law as it stands; it's matter of looking at law practically and commercially.

Quite simply, the law can be retrospective.

See, for example, ss31&32 Deregulation Act 2015. Section 32 of the DA 2015 inserts a new section 215A into the HA 2004 dealing with the issue of deposits received before 6 April 2007 (i.e. has retrospective effect).

This happens more than you'd think.

[Kati]

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

I'll tag [MENTION=5354]mystery1[/MENTION] to see if he's got any additional advice too xx

[Penny1]

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

[MENTION=5354]mystery1[/MENTION]

[R0b]

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

@mystery1

Without looking into the details Penny, you will be better off printing the originals than putting it all onto word document. So any articles and case law will need to be printed off as you may need to show them to the judge and highlight the specific points to make.

If the quoted case law is lengthy you could get away with the first page that contains the citation and then the relevant page you wish to rely on.


Having a quick skim it would seem the Virulite case would be quite appropriate to you and using the following quotes from the case;

"I incline to the view that there can be an oral variation in such circumstances, notwithstanding a clause requiring written modifications, where the evidence on the balance of probabilities establishes such a variation was indeed concluded."

"the court should give all relevant evidence its due weight when asked to find on the balance of probabilities that there has been a subsequent variation which has legal effect even though it does not comply with the formalities stipulated by the original contract. The terms of the original contract will always be material to that exercise; the circumstances in which those terms were negotiated and agreed may also be."

I would suggest using the Virulite case as your primary argument with the quotes above, I don't necessarily think you need the other case law as the Virulite case is High Court authority so the County Court should really follow it.

If they argue however that there is no valid consideration then you could then apply the following case as a counter argument but only raise it if they raise the issue of consideration, you don't want to reference authorities that are not to your advantage. The case is MWB Business Exchange Centres Ltd v Rock Advertising Ltd - http://www.bailii.org/ew/cases/EWCA/Civ/2016/553.html

You could argue that the manager had ostensible authority to vary the contract at the site (being the manager) in which there was some benefit to him as you were interested in joining the gym. The consideration does not need to be adequate but sufficient and perhaps if you handed over any details or information to the gym that could be regarded as sufficiently adequate consideration. So if you did this then that would be enough reason to rely on the fact that consideration has been exchanged albeit small. A simple example of this is in Chappell v Nestle Co Ltd 1960 - It was held that 3 chocolate wrappers amounted to consideration, does not need to be of any monetary value but some form of detriment.

The other points will be within M1's realm

[Openlaw15]

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

Without looking into the details Penny, you will be better off printing the originals than putting it all onto word document. So any articles and case law will need to be printed off as you may need to show them to the judge and highlight the specific points to make.

If the quoted case law is lengthy you could get away with the first page that contains the citation and then the relevant page you wish to rely on.


Regarding those cases I referenced about anti oral variation clauses, you might want to use the following case as the starting point which the Court of Appeal approved only a couple of weeks ago stating that despite a non-variation clause in the agreement, there can however be a variation made orally which approved the comments made by the judges in Globe Motors Inc.

MWB Business Exchange Centres Ltd v Rock Advertising Ltd - http://www.bailii.org/ew/cases/EWCA/Civ/2016/553.html

You could argue that the manager had ostensible authority to vary the contract at the site (being the manager) in which there was some benefit to him as you were interested in joining the gym. The consideration does not need to be adequate but sufficient and perhaps if you handed over any details or information to the gym that could be regarded as sufficiently adequate consideration. So if you did this then that would be enough reason to rely on the fact that consideration has been exchanged albeit small. A simple example of this is in Chappell v Nestle Co Ltd 1960 - It was held that 3 chocolate wrappers amounted to consideration, does not need to be of any monetary value but some form of detriment.

However, having a quick skim it would seem the Virulite case would be quite appropriate to you and using the following quotes from the case;

"I incline to the view that there can be an oral variation in such circumstances, notwithstanding a clause requiring written modifications, where the evidence on the balance of probabilities establishes such a variation was indeed concluded."

"the court should give all relevant evidence its due weight when asked to find on the balance of probabilities that there has been a subsequent variation which has legal effect even though it does not comply with the formalities stipulated by the original contract. The terms of the original contract will always be material to that exercise; the circumstances in which those terms were negotiated and agreed may also be."

the MWB Business Exchange Centre is just confirmation that variation by oral agreement can happen so you can have that as back up.

The other points will be within M1's realm

variation requires separate consideration i believe. Besides i thought M1 was saying that Penny should say there was no agreement (ie offer an acceptance). The offer, acceptance, consideration, is based on the signage in the Supreme Court case. Normally, contract in writing is obvious, ie the consideration terms are in the offer and acceptance.

[R0b]

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

The consideration for parking will be the requirement of being a member e.g. paying per month

The separate consideration to vary outside of that term could be anything and as said the giving of personal details could be considered consideration.

The primary argument yes is no agreement, the alternative argument is that if there was an agreement, the agreement was varied to allow parking without charge.

[Penny1]

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

Thank you Rob, that was very helpful. I will do exactly that.
Will post up the adjusted version later.
Going to Spain for a week, so please nobody think that I have stopped caring about this case...will come back and read all the posts in a weeks time. Love you all xxx

[Openlaw15]

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

The consideration for parking will be the requirement of being a member e.g. paying per month

The separate consideration to vary outside of that term could be anything and as said the giving of personal details could be considered consideration.

The primary argument yes is no agreement, the alternative argument is that if there was an agreement, the agreement was varied to allow parking without charge.

If there is an agreement, the estoppel defence is better, in my view, as their lawyer will just argue variation of terms requires extra consideration. Consideration also is very subjective - it can be pretty much anything that has both a detriment and benefit. If you start mentioning the likes Nestle case (chocolate wrapper) it's going into murky waters and the opponent lawyer will just twist it to benefit them.

[mystery1]

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

The parking eye case

A contract was entered as the signs constitute an offer and parking is acceptance and that the promise to park within the terms is a binding promise which is acceptable as consideration.

The signs were clear legible and plentiful.

The driver broke the terms and the penalty is justified a la Beavis.

As agent they can bring a claim in their own name.

The car park is for Gym members only. The defendant was not a member.

They won't cancel the charge because the defendant didn't communicate prior to court proceedings.




What does Beavis say on these matters.

Appeal court

It was common ground before us that a motorist making use of the car park enters into acontract with ParkingEye under which he agrees to leave the car park within a period of twohours. Failure to do so constitutes a breach of contract in respect of which he agrees to aparking charge of £85.


Supreme court

ParkingEye concedes that the £85 is payable upon a breach of contract, and
that it is not a pre-estimate of damages. As it was not the owner of the car park,
ParkingEye could not recover damages, unless it was in possession, in which case it
may be able to recover a small amount of damages for trespass. This is because it
lost nothing by the unauthorised use resulting from Mr Beavis overstaying.


But it may fairly be said that in the absence of agreement
on the charge, Mr Beavis would not have been liable to ParkingEye. He would have
been liable to the landowner in tort for trespass, but that liability would have been
limited to the occupation value of the parking space.


But although the terms, like all standard contracts, were presented to
motorists on a take it or leave it basis, they could not have been briefer, simpler or
more prominently proclaimed. If you park here and stay more than two hours, you
will pay £85. Motorists could hardly avoid reading the notice and were under no
pressure to accept its terms.



The signs exhibited at the entrance and throughout the car park are large,
prominent and legible.




Application of the penalty doctrine - ParkingEye Limited v Beavis
188. There is common ground between all before the court that the relationship
between ParkingEye and Mr Beavis was a contractual relationship, whereby Mr
Beavis undertook not to park for more two hours and, upon any breach of that
obligation, incurred a liability of £85, reducible, in this case, to £50 if he had paid
within 14 days of ParkingEye’s demand.
189. The Court of Appeal raised a question about this analysis, which the Supreme
Court also took up. But I am satisfied that it is correct in law. The terms of the signs
which Mr Beavis must be taken to have accepted by conduct in entering and parking
in the car park are to that effect. Mr Beavis thereby expressly agreed to stay for two
hours maximum, and to comply with the other parking restrictions, such as parking
within a marked bay and not using a blue badge holder’s bay, and to pay the
stipulated sum if he failed so to comply.
190. It may be suggested that Mr Beavis thereby promised nothing which can in
law constitute valuable consideration. He was being given a licence, on conditions,
and he would have been a trespasser if he overstayed or failed to comply with its
other conditions. But ParkingEye was not in possession of the car park, or capable
of bringing proceedings in trespass. It had a mere right to control parking at the site


- the right to permit or refuse others to park there on such conditions as it might
stipulate. By promising ParkingEye not to overstay and to comply with its other
conditions, Mr Beavis gave ParkingEye a right, which it would not otherwise have
had, to enforce such conditions against him in contract. Even if no Parking Charge
had been stipulated, enforcement would still have been possible in law, even if a
claim for damages or for an injunction might not in practice have been likely. With
the stipulated Parking Charge, the nature of the intended contract is even clearer,
although the question arises whether the Parking Charge is an unenforceable
penalty. The quid pro quo provided by ParkingEye in return for Mr Beavis’s promise
was the grant of permission to park for up to two hours in its discretion free of
charge, on conditions. Each party thus gave the other valuable consideration.











So is there a contract ?

Any contract would be formed on the offer contained in signs 1 and 2 if there was consideration and acceptance.

Both signs 1 and 2 state for fitness first members only. As you are not and never were a fitness first member then the sign offers you nothing. No offer so no contract. Exactly as http://parking-prankster.blogspot.co...-court-no.html


Even if that significant hurdle is overcome then your evidence shows that, in the dark (as it was) the signs are not easily seen or bound to be seen by an average person so again no contract.

Then you'd argue that Mr Coe had a right as principal under the contract, on which they redacted the cancellations clause, to cancel tickets which he did. No cause of action as the principal said no.


That's my take on what you've posted.

M1

The cancellation point - The contract i posted was from another site. The contract supplied by parking eye to you has the cancellation clause which is blacked out (redacted). What the contract i posted is for, is to show what it PROBABLY says if they are unwilling to share the redacted one. This would then show that the matter should have been stopped dead as soon as the gym said cancel.

As for the right of audience, the point is correct but LPC do have some who do have the right of audience but even so, success on this point is few and far between.


Post 6 contains the signs in the 66-71 document. Consideration is one thing but the offer has to come 1st. Contract law 101, Offer, consideration then acceptance. What offer does the sign make to a non member ? Answer - none.

M1

[Openlaw15]

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

The cancellation point - The contract i posted was from another site. The contract supplied by parking eye to you has the cancellation clause which is blacked out (redacted). What the contract i posted is for, is to show what it PROBABLY says if they are unwilling to share the redacted one. This would then show that the matter should have been stopped dead as soon as the gym said cancel.

As for the right of audience, the point is correct but LPC do have some who do have the right of audience but even so, success on this point is few and far between.


Post 6 contains the signs in the 66-71 document. Consideration is one thing but the offer has to come 1st. Contract law 101, Offer, consideration then acceptance. What offer does the sign make to a non member ? Answer - none.

M1

In general the consideration is part of the offeror's (person make offer) and offeree's (person accepts) terms. Offer and acceptance terms usually incorporate the consideration terms. Beavis case: offer and acceptance based on signage. Consideration for Parking Eye in Beavis' case, penalties for contravention of 2 hours parking, based on signage. Consideration for Beavis - free car park for 2 hours, probably based on signage. Penny's case consideration, for Parking Eye penalties for not becoming a gym member, probably based on signage. Consideration for Penny is free use of car park if becomes a gym member, probably based on signage. I think there is consideration here on the facts in a strict court's view anyway. It's not certain whether there is an offer or acceptance on the signage in Penny's case, in my view, based on Beavis mainly because the material signs are not at the entrance although in Beavis they were. Assuming there is a contract, the best defence Penny has in my view is to argue there is a estoppel defence based on its doctrine: Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130. For instance, in Penny's case the Promisor (the manager) make a promise to promisee (Penny), causing her (Penny/ promisee) to act on it: High Trees [1947]. There are several cases estoppel cases which derive from High Trees, developing the doctrine to 'detrimental reliance', in which Penny did as she taken the manager at his word albeit to deleterious (harmful) effect were he/ the gym/ party to go back on their word: High Trees subsequent cases.

[mystery1]

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

If there is/was an offer then there is clear acceptance by conduct.

There isn't/wasn't an offer.

M1

[Openlaw15]

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

If there is/was an offer then there is clear acceptance by conduct.

There isn't/wasn't an offer.

M1

An offer can be via an advertisement: Partridge v Crittenden [1968] 1 WLR 1204 (QB) or an invitation to treat, ie to anyone who wants to park, ie the whole world: Carlill v Carbolic Smoke Ball Company [1893] 1 QB 256. Signage is therefore an advertisement, it's not an invitation to treat as its purposely aimed at gym members and not the whole world, ie non gym members: Carbolic, [1893]. An offer does not have to be reasonable, ie free parking if the person becomes a gym member (ie excludes non gym members), so is still potentially an offer legally even if it were unreasonable (ie excludes everyone else besides gym members): Carbolic [1893]. Providing the terms of an offer are clear it's an offer nonetheless. As it was said in Beavis, which confirms the largely 200 year old contract common law, the person parking does not need to park there but if it were to do so it must do so on the proviso of its terms, which were prominent enough to see at the entrance to the car park and confirmations inside the car park. So therefore in Penny's case the court is likely to view the advertisement on the signage as acceptance: Partridge, even if the terms by the offeree were unreasonable, ie excludes non gym members: Carbolic [1893].

[mystery1]

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

The supreme court in Beavis, as i've posted at least twice now, is clearly of the opinion that if there is no contract then it's a trespass scenario.

As for Carbolic, the signage is clear not vague, if you are not a Gym member you are not welcome.

M1

[Openlaw15]

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

The supreme court in Beavis, as i've posted at least twice now, is clearly of the opinion that if there is no contract then it's a trespass scenario.

As for Carbolic, the signage is clear not vague, if you are not a Gym member you are not welcome.

M1

Contract:

Parking Eye has made its terms clear at the entrance to and inside the car park. Is it an invitation for Penny or an Offer by the gym? It is, in a strict court's view, likely an invitation to treat to Penny and all sundry to park at the gym as at this point there is no legal obligation by Penny or Parking eye or the whole world to enforce a contract against Parking Eye or Penny or each other. At the point Penny parks her car she has accepted what was previously an invitation to treat: Carbolic, that then turned into a binding offer for which Penny accepted by parking: Partridge/ Beavis.

I can't see the no consideration argument that Rob suggested or the no offer that M1 suggested being successful. Parking Eye's lawyers will just use counter arguments each time Penny introduces a defence. However, if there were a contract (ie agreement, consideration etc), she will benefit an estoppel defence.

Tort:

Trespass is separate from contract as it is entirely a different type of law all together, it could be Tort or criminal.

[mystery1]

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

Is it an invitation for Penny or an Offer by the gym?

Neither. It's an offer to Gym members by Parking eye.

M1