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

[Openlaw15]

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

There's a difference between gym members only and gym members only including prospective gym members. You can't infer something that isn't there already, and as you will know whethe rPenny is liable will rest on the wording. If the wording says for gym members only, that would exclude any non-gym member, unless permission was given otherwise.

So you can't say it was an invitation to treat otherwise there would be no need to put wording regarding use by gym members only on the signage. Your analogy with the retail car parking can be distinguished because when you park there, it is based on an invitation to enter the shop and purchase, you are not obliged to do so. The signage I have seen at retail car parks is something along the lines of those who use the shop - that is deliberately wide and would therefore include people who enter the shop and purchase something as well as those who enter but in fatc do not end up buying anything.

Whereas at this particular gym, in order to become a member you have to satisfy the conditon of signing up to the gym facilities and the car park is for restricted users, namely those being a member of the gym. If you are not signed up then you are not a member, regardless of whether or not you may be a prospective member - the sign states members only, and therefore the definition of gym member is narrowed to those who are signed up to the gym's facilities.

Is there a contract between Penny and the gym?

Fine, then Penny could use the distinguishing feature in her own case, as penny's is not a retail car park, but the broad point of law of parking on private property other than large retail car parks still needs to be resolved. The main question is not what inferences you make Rob but in fact whether Parking Eye has done all it should by law to enable it to enforce its penalties. It's first a point of law question therefore, and then a point of fact ie the facts applied to the law. On the point of facts here, Penny endeavoured to become a gym member but did not do so; there is no contract between the gym and Penny, and or Parking Eye as a third party.

Is there a contract between Penny and Parking Eye independently?

I think the law and most important question is whether said terms are sufficient enough to put a reasonable person on alert that there will be contract through signage and consequent penalties.

The narrow principle ratio of law based on Beavis is that signage from a retail park creates a contract. On a point of law, what is an offer? An offer in a point of law is when an offeror makes its terms that a reasonable person understands to be legally binding. An offer could be have terms which make reference to exclusive persons, such as a 'gym members' or 'gym members only.' An offer is required to be exclusive as it cannot apply to the whole world, as it were. What's the real difference between 'gym members' and 'gym members only?' If the terms were 'gym members only,' would this really be any different to 'gym members.' Well, the first term refers to gym members and the second term refers to gym members. The inference is that gym members have permission to use the gym's facilities. Now, if the signage states 'gym members' or 'gym members only' may use the external car park, it is clearly an exclusive offer for gym members to use the car park.

On balance however, I don't think the terms technicalities or definitions of 'gym member' or 'gym member only' through Parking Eye's signage really comes into it. If this were the case it would be based on similar principles/ practices used by judge Dennings, ie the contra proferentum (against the offeror) rule were the terms are used against Parking Eye. In Penny's case the contra proferentum would be used strictly against Parking Eye, ie if not a gym member, there's no contract.

However, the broad principle/ ratio in Beavis nevertheless was to permit companies such as Parking Eye to make contracts for parking from signage to free up parking spaces on private property. We all know that Beavis over-turned nearly 200 years of relevant common law. Looking it another way, how else could either the gym deal effectively with the parking problem and or Parking Eye protect the gym without making contracts with penalties through signage. In my view, if Parking Eye were to lose this case it would mean that even where trespassers park on private land, ie the gym that there would be no consequence for the trespassers (ie like the of Penny) and therefore lost business and affects to the business economy. So, in this unique and no doubt developing area of contract (through signage) law, especially in Penny's case my opinion is to defend as though it were a contract so as to use an estoppel defence. I do not think the contra proferentum rule will work in this modern area of substantive law. If Penny doesn't accept a contract and the benefit of an estoppel defence, it's simply in Parking Eye's interest to appeal any decision that a judge makes against it as the loss of business would be tremendous, as well said reasoning.

As for the invitation to treat point, in Carbolic I believe the terms looked like an offer even though it was held by the judge to be an invitation to treat. So, it's the intent behind the terms is relevant too and not just the terms alone.

[mystery1]

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

A question i have asked on numerous occasions which you seem to ignore is, What is offered to non members by the signs ?

M1

[Openlaw15]

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

A question i have asked on numerous occasions which you seem to ignore is, What is offered to non members by the signs ?

M1

I believe I have answered this already. There is effectively something like an invitation to treat which is not strictly an offer but applies to all interested parties. However, the binding part is more unilateral ie when Penny parks it's a unilateral offer and acceptance to her only.

[mystery1]

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

I believe I have answered this already. There is effectively something like an invitation to treat which is not strictly an offer but applies to all interested parties. However, the binding part is more unilateral ie when Penny parks it's a unilateral offer and acceptance to her only.

You haven't. The signs can't make an offer depending on the actions of someone, they can make a contract based on those actions but not an offer. It's an offer or it's not.

Is she offered a right to park, by the sign ? Which term from the sign allows this ?

M1

[Openlaw15]

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

You haven't. The signs can't make an offer depending on the actions of someone, they can make a contract based on those actions but not an offer. It's an offer or it's not.

Is she offered a right to park, by the sign ? Which term from the sign allows this ?

M1

There is effectively an invitation to treat for everyone who enters the car park. So, potentially any person/ would be parker could be the invitee at the first age, who becomes the offeree (person accepting offer) at the second stage. At the invitee stage, there are no binding agreements (ie no offer and acceptance), but at the actual parking stage there is offer and acceptance (agreement) based on the signage terms, in Parking Eye's view anyway. This appears to be the reasoning behind the Beavis ratio too, albeit more alluded than express. I think you're viewing agreement too simplistically, ie you presume an offer needs to be the whole world but in some cases, ie unilateral contracts it can be based on performance: Carbolic et al, ie parking as seems to be the case in Beavis. I have therefore answered your question.

The ratio is based on Beavis but as I said several times, the slim defence that Penny could argue is that there wasn't sufficient signage to enter into a contract. Beavis has not altered Shoe Lane Parking as far as am aware, rather it runs parallel to it. In Jenny's case, the signage terms were not present at the same time, ie one was on the outside of the car park and the other/s were inside the car park. So this may not have satisfied Beavis and certainly wouldn't have satisfied the Shoe Lane ratio, ie narrow principle/ ratio is that it applies to barrier type car-parks, but there is also a broad ratio/ principle in Shoe Lane in that the contract/ its terms must have been present before the would be offeree accepted the offeror's terms (ie agreement).

So, in summary, the 'offer' needs to be exclusive at some point but need not be when entering the car park. It's only when Penny parked that there potentially would have been a contract based on the ratio of Beavis anyway, albeit there must have been sufficient signage (part of the judgement from the Court of Appeal).

[R0b]

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

So looking at it another way, if Penny for example parked in a parking space on land where the sign had stated "Private land, 1 hour max stay for patients of GP Surgery" and Penny was not a patient of the GP Surgery, I gather from what you are saying about Thornton v Shoe and Beavis, there would be an offer to enter into a contract with Penny and then that contract would be binding if she decided to park there even though she was not a patient of the GP Surgery - how does that work out? It would simply be trespassing because Penny is not in the list of people who have permission to park there.

In order for there to be a contract the court needs to look at the true construction and meaning of the sign. The court will look at it from an objective view and not the intentions of the parties, that is to say, if a reasonable person saw the sign, what do they think it would mean? Would it mean parking for gym members only, or parking for both members and non-members of the gym?

Penny could also argue that the courts should construe the meaning of the sign strictly and in the words of Lord Hoffman (Mannai Investment v Eagle Star Life Assurance):

But what does it mean to say that a document must be ‘strictly’ construed, as opposed to the normal process of ascertaining the intentions of the author?The expression does not explain itself. If it operates merely by way of intensification, so that the intention must be clear, unambiguous, incapable of misleading, then I think that the notice in this case satisfied the test at that level.

If the sign is clearly written to say that parking is for gym members only, I cannot fail to see how there can be a contract or how the court should adopt an alternative interpretation of the sign.

Gym members only is as clear as it can ever be, there is no uncertainty or ambiguity in that wording.

[Openlaw15]

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

So looking at it another way, if Penny for example parked in a parking space on land where the sign had stated "Private land, 1 hour max stay for patients of GP Surgery" and Penny was not a patient of the GP Surgery, I gather from what you are saying about Thornton v Shoe and Beavis, there would be an offer to enter into a contract with Penny and then that contract would be binding if she decided to park there even though she was not a patient of the GP Surgery - how does that work out? It would simply be trespassing because Penny is not in the list of people who have permission to park there.

In order for there to be a contract the court needs to look at the true construction and meaning of the sign. The court will look at it from an objective view and not the intentions of the parties, that is to say, if a reasonable person saw the sign, what do they think it would mean? Would it mean parking for gym members only, or parking for both members and non-members of the gym?

Penny could also argue that the courts should construe the meaning of the sign strictly and in the words of Lord Hoffman (Mannai Investment v Eagle Star Life Assurance):



If the sign is clearly written to say that parking is for gym members only, I cannot fail to see how there can be a contract or how the court should adopt an alternative interpretation of the sign.

Gym members only is as clear as it can ever be, there is no uncertainty or ambiguity in that wording.

The courts could view it as the contra proferentum rule as you use in your analogy, ie twists the terms against the offeror, but for reasons of public interest - ie there needs to be a deterrent for trespassers, and in Penny's case to benefit the gym and control its limited parking spaces. Life Assurance is rather different I haven't read the case but it alludes the insurer is trying to wriggle out of its liability. Beavis has over-turned nearly 200 years of common law so it is a massive precedent and a new developing area of law. So arguing there is no offer as M1 suggests is not taking into account the public interest for parking or need to control parking, for that reason I do not believe it is merit-worthy/ substantive argument. Penny needs to not raise points of law which are so controversial they could go either way - in my view she need to keep the waters clear and let others play in the murky waters.

[Openlaw15]

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

So looking at it another way, if Penny for example parked in a parking space on land where the sign had stated "Private land, 1 hour max stay for patients of GP Surgery" and Penny was not a patient of the GP Surgery, I gather from what you are saying about Thornton v Shoe and Beavis, there would be an offer to enter into a contract with Penny and then that contract would be binding if she decided to park there even though she was not a patient of the GP Surgery - how does that work out? It would simply be trespassing because Penny is not in the list of people who have permission to park there.

In order for there to be a contract the court needs to look at the true construction and meaning of the sign. The court will look at it from an objective view and not the intentions of the parties, that is to say, if a reasonable person saw the sign, what do they think it would mean? Would it mean parking for gym members only, or parking for both members and non-members of the gym?

Penny could also argue that the courts should construe the meaning of the sign strictly and in the words of Lord Hoffman (Mannai Investment v Eagle Star Life Assurance):



If the sign is clearly written to say that parking is for gym members only, I cannot fail to see how there can be a contract or how the court should adopt an alternative interpretation of the sign.

Gym members only is as clear as it can ever be, there is no uncertainty or ambiguity in that wording.

Rob, if you're going to use an analogy, it has to be similar to Penny's case, ie not a barrier type car park, and no 'max 1 hour stay' etc. A closer analogy to Penny's situation would be a small plot of land with limited parking space. Ok, a snooker hall may need space for its visiting professional player VIPs to practice, as well as snooker members 1 large sign at the entrance with the terms: 'This car park is for VIPs, and snooker members,' and the same signage makes clear the parker will be entering into a contract and penalties for violation. This would satisfy both Beavis and Shoe Lane.

[R0b]

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

It doesn't matter about the case law itself you will know that all facts differ from each other. The case concerned is irrelevant but the statement by Hoffman concerned the interpretation and meaning, which is what we have here. I would be highly amazed if the court thought that the words "Gym Members only" is contra proferentum. I see no ambiguity in that at all. The question is are you a member of the gym i.e. do you pay any monies to the gym to use its facitilities or services? If the answer is no you are therefore not a member, there is no contract and you are in fact trespassing, which is up to the gym to take action.

Your argument is effectively making the law of trespass redundant, because no matter what sign people put up to deter them from coming onto the land, it doesn't matter because it will always be a contract and not trespass no matter how clear you make the wording on the signs.

public interest for parking or need to control parking

Finally, you agree that the parking is for Gym members only and not the whole world and so Penny is trespassing, there's no public interest.

Beavis has amended the law on penalties, it did not amend the laws on the interpretation of a contract and the cannons of construction - that is your downfall here.

[Openlaw15]

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

It doesn't matter about the case law itself you will know that all facts differ from each other. The case concerned is irrelevant but the statement by Hoffman concerned the interpretation and meaning, which is what we have here. I would be highly amazed if the court thought that the words "Gym Members only" is contra proferentum. I see no ambiguity in that at all. The question is are you a member of the gym i.e. do you pay any monies to the gym to use its facitilities or services? If the answer is no you are therefore not a member, there is no contract and you are in fact trespassing, which is up to the gym to take action."

No, Rob, contra proferentum is the term used against the offeror - so against Parking Eye.

"Your argument is effectively making the law of trespass redundant, because no matter what sign people put up to deter them from coming onto the land, it doesn't matter because it will always be a contract and not trespass no matter how clear you make the wording on the signs."

Trespass is tort or criminal remedy, it has nothing to do with contract law. My point is if there were not to be agreement (ie offer and acceptance) in Penny's case it would been there is no contractual remedy against trespassers, ie there would be nothing to stop them parking and abusing the parking.

Finally, you agree that the parking is for Gym members only and not the whole world and so Penny is trespassing, there's no public interest.

No, am saying that at the first stage it was for all potential parkers: ie the whole world: Carbolic et al., and at the second stage it was an exclusive offer to Penny as it would have been for any other parker who parked there, who accepted the offeror's terms automatically.

Beavis has amended the law on penalties, it did not amend the laws on the interpretation of a contract and the cannons of construction - that is your downfall here.

Rob, a precedent is only as good as its ratio and the ratio applies to the immediate facts without which there would be no ratio. So, when a precedent is used it means the facts have to be similar or the lawyer/ judge rightfully argues it's distinguishable by X, Y, Z etc. Beavis in fact is either a further development to the contract law of parking and or runs parallel to Shoe Lane. Therefore Shoe Lane is still good law in certain circumstances. In my view, Beavis provides a narrow ratio for security firms (ie Parking Eye) to secure land against trespassers by: 1) a contract with clear terms (ie agreement terms: offer, acceptance) through signage; 2) financial penalties for breach of limited stay car parks; 3) applicable for non-barrier car parks (distinguished to Shoe Lane, ie a barrier). In my view, Beavis also provides a broad a principle/ ratio in that private land owners can force a contract against trespasses (ie persons who have no permission to park there) through signage, and security companies including Parking Eye (providing car park services) can enjoy the same benefits as third parties to the contract.

[Openlaw15]

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

It doesn't matter about the case law itself you will know that all facts differ from each other. The case concerned is irrelevant but the statement by Hoffman concerned the interpretation and meaning, which is what we have here. I would be highly amazed if the court thought that the words "Gym Members only" is contra proferentum. I see no ambiguity in that at all. The question is are you a member of the gym i.e. do you pay any monies to the gym to use its facitilities or services? If the answer is no you are therefore not a member, there is no contract and you are in fact trespassing, which is up to the gym to take action.

I have quoted the ratio from the case you cited. I think you misinterpreted the ratio. The effect of the ratio for leasing terms is the reasonable person standard, ie the objective standard. The other ratio is for commercial background, ie 'extrinsic.'

"The question is not whether 12 January can mean 13 January: it self-evidently cannot. The real question is a different one: does the notice construed against its contextual setting unambiguously inform a reasonable recipient how and when the notice is to operate under the right reserved?’ and ‘The question is not how the landlord understood the notices. The construction of the notices must be approached objectively. The issue is how a reasonable recipient would have understood the notices. And in considering this question the notices must be construed taking into account the relevant objective contextual scene:" House of Lord in Mannai Investment Co Ltd v Eagle Star Assurance [1997] UKHL 19

Even applying this case to Penny's for interpretation of terms it's essentially saying, that someone in Penny's shoes might take Parking Eye's signage terms to mean what they intended rather than what they stated, 'Fitness First Members Only to mean not limited to Fitness First Members. The fact that the wrong terms may have been used does not alter that: House of Lords in Mannai Investment Co.

[R0b]

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

I am not misinterpreting what Hoffman has said at all, for reasons I won't go into and to keep this thread on point.

"Fitness First Members Only" or "1 hour max stay for patients of GP Surgery" are both restricted for a specific class of people. An average ordinary person could not think that it meant anything else but those who are a member of the gym or patients who attend the GP surgery.

If "Fitness First Members Only" was meant to include those who are not just members then the contra proferentum rule applies and your argument is also defeated, so your arguments still fail either way.

[Openlaw15]

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

It doesn't matter about the case law itself you will know that all facts differ from each other. The case concerned is irrelevant but the statement by Hoffman concerned the interpretation and meaning, which is what we have here. I would be highly amazed if the court thought that the words "Gym Members only" is contra proferentum. I see no ambiguity in that at all. The question is are you a member of the gym i.e. do you pay any monies to the gym to use its facitilities or services? If the answer is no you are therefore not a member, there is no contract and you are in fact trespassing, which is up to the gym to take action.

Your argument is effectively making the law of trespass redundant, because no matter what sign people put up to deter them from coming onto the land, it doesn't matter because it will always be a contract and not trespass no matter how clear you make the wording on the signs.



Finally, you agree that the parking is for Gym members only and not the whole world and so Penny is trespassing, there's no public interest.

Beavis has amended the law on penalties, it did not amend the laws on the interpretation of a contract and the cannons of construction - that is your downfall here.

if you're going to argue there is no agreement (ie no offer or acceptance), argue the offeror's terms are not sufficient for Penny to have accepted the terms. It is otherwise absurd in my view to argue there was no contract because nothing was offered. In Penny's case the signage from the first sign states that the main terms are in the car park. In Beavis, I say this yet again, well Beavis never argued that the signage was not sufficient when entering the car park, rather it was accepted they were sufficient in that they were large, prominent, and about 20, and allusions that there were confirmations in the car park itself. I think say Penny saying there was no offer for no offer's sake is rather imprudent.

The alternative is that a contract does exist and Penny uses an estoppel defence. If there is an estoppel defence, no action can be taken against Penny by Parking Eye. She has evidence for a promissory estoppel through the manager's statement. The case you cited above also answered a question on an estoppel.

[Openlaw15]

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

I am not misinterpreting what Hoffman has said at all, for reasons I won't go into and to keep this thread on point.

"Fitness First Members Only" or "1 hour max stay for patients of GP Surgery" are both restricted for a specific class of people. An average ordinary person could not think that it meant anything else but those who are a member of the gym or patients who attend the GP surgery.

If "Fitness First Members Only" was meant to include those who are not just members then the contra proferentum rule applies and your argument is also defeated, so your arguments still fail either way.

I quoted the relevant ratio verbatim. It is an objective test..in clearly states that. You cannot deny something that is clearly obvious when it is in black and white. The contra proferentum rule is what you're effectively citing in said case in that the terms are used against Parking Eye. I am not saying that was my argument, this rule was your argument. The average ordinary person knows that if they park there then they're subject to a £100 penalty. There is also a commercial arrangement too in that Parking Eye has a contract with the gym so extrinsic background will be taken into account. It is not as simplistic as you think it is Rob. Parking Eye will appeal if the decision goes against them as they have a lot to lose.

[mystery1]

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

In Beavis it was said that the £85, as it was in that case, was not an offer to park. If, as you argue, Penny was allowed to park then why did she get a ticket ? If the offer is open to everyone then there would be no ticket to issue. The ticket was issued for no permit/authorisation.

M1