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

[Penny1]

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

Hello Openlaw15,
1) Yes i was intending to become a member but they quoted me a price of £60/month plus extra for a personal trainer, which i couldn't afford so i did not become a member. Are you saying this could be a defence point?
2) I am definitely going use the 'incorporation' thing in court. Thank you for that piece of gold dust.
3) I'm just going to agree with you on this point because I am a lay woman in this aspect.
4) I can't prove this point unless GCHQ allow me to access their recording of that conversation lol. But on a more serious note I have 3 emails from the manager stating that he wants parking eye to drop charges. Is that not enough?

Hello, Penny

You were intending to be a member of the gym is this correct? 1) The signage does not say current member - just member - so in theory you could be a member in the immediate future. 2) a contract needs to be incorporated (ie legal tests based on contract case law) where there are separate parts to it. if the writing it too tiny to see it's not incorporated. From your pdf extracts they appear to separate parts. 3) The claimant states Shoe Lane Parking (case authority) is not relevant, but the claimant doesn't say why. So they attempt to distinguish you facts with the Shoe Lane but do not provide any detail at all. Citing a case without using it's legal principle or distinguishing it (ie saying it's not relevant), without a reasoned argument is a pointless use of case law. 4) you may have an estoppel defence if you can prove that the gym's reception/ owner said you could park temporarily. An estoppel means you can stop any court action against you, as once the third party makes a promise they cannot then go back on their word.

[Penny1]

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

no need to panic :_tighthug__by_darkm you'll get all the help you need here on LB xx

Thanks Kati...your kind words feel strangely very comforting xxx :_tighthug__by_darkm

[mystery1]

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

I'll be looking soon as i'm no off for 3 days.

1. No jail time.

2. Costs are generally limited on the small claims track and parkingeye use a firm who take a fixed fee so you are not on the hook for extras really. Most you should be liable for is that on the claim form.

M1

[Kati]

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

Thanks Kati...your kind words feel strangely very comforting xxx :_tighthug__by_darkm

M1s great for appeals ... you're in good hands :nod: xx

[Penny1]

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

Hiya, I got a couple of legal questions which the experts on here might be able to answer;

1) The contract with Parking eye was signed in 2013 by 'X'. If 'X' is no longer working for fitness first then is the contract still valid?

2) The supreme court ruling for Beavis case occured in November 2015, but the incidents in question occured in October. So can parking eye still use a ruling given after the incident has occured?

Thanks all xXx

[R0b]

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

1. Yes the contract is still valid, unless the gym declares that the person did not have authority and that is a matter between ParkingEye and the gym. Contracts will terminate in accordance with those terms of the contract not when the person who signed it leaves the business.

2. If the court claim was issued before Beavis then you could argue that the decision of Beavis cannot apply retrospectively but if the court claim was issued after Beavis then they can rely upon it.

[mystery1]

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

Beavis was an interpretation so not new and would cover previous to the actual ruling. Beavis only applies if there is a contract between PE and the driver. In Beavis a contract was admitted to be in existence. In this case, that appears not to be the case as only certain people are allowed to park. Anyone could park in a free car park but that is not the case here.

I'll be getting on to the nuts and bolts of my backlog soon.

M1

[Openlaw15]

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

Beavis was an interpretation so not new and would cover previous to the actual ruling. Beavis only applies if there is a contract between PE and the driver. In Beavis a contract was admitted to be in existence. In this case, that appears not to be the case as only certain people are allowed to park. Anyone could park in a free car park but that is not the case here.

I'll be getting on to the nuts and bolts of my backlog soon.

M1

Actually, in Parking Eye (PE), the Court of Appeal over-turned the County Court's decision that favoured PE's claim, but the Supreme Court clarified that the CC was right. So, technically it's a grey area as the Court of Appeal which is a binding authority (stare decisis 'to stand by things decided', ie a binding precedent) went against PE as it helpfully states in Parking Eye v Penny (ie in Op's pdf, ie their own claim (i believe). So, as Rob alludes, until the Supreme Court finalised the law in this area whatever was before in my view was the presiding law, ie the ratio decidendi (legal principle)for PE was that it could not claim a contract until the 2015 UKSC authority.

In any event, the facts in Parking Eye entailed a grace period of up to 2 hours (it may have been 3) then I believe a charge of £85 for anything over that. What was the grace period in Penny's situation?

[Kati]

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

Actually, in Parking Eye (PE), the Court of Appeal over-turned the County Court's decision that favoured PE's claim, but the Supreme Court clarified that the CC was right. So, technically it's a grey area as the Court of Appeal which is a binding authority (stare decisis 'to stand by things decided', ie a binding precedent) went against PE as it helpfully states in Parking Eye v Penny (ie in Op's pdf, ie their own claim (i believe). So, as Rob alludes, until the Supreme Court finalised the law in this area whatever was before in my view was the presiding law, ie the ratio decidendi (legal principle)for PE was that it could not claim a contract until the 2015 UKSC authority.

In any event, the facts in Parking Eye entailed a grace period of up to 2 hours (it may have been 3) then I believe a charge of £85 for anything over that. What was the grace period in Penny's situation?

Beavis judgement:

[R0b]

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

I'll wait to see what M1 says first but there could be an argument for different circumstances as suggested and so Beavis might not actually apply here and could be distinguished.

[Openlaw15]

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

Hello Openlaw15,
1) Yes i was intending to become a member but they quoted me a price of £60/month plus extra for a personal trainer, which i couldn't afford so i did not become a member. Are you saying this could be a defence point?
2) I am definitely going use the 'incorporation' thing in court. Thank you for that piece of gold dust.
3) I'm just going to agree with you on this point because I am a lay woman in this aspect.
4) I can't prove this point unless GCHQ allow me to access their recording of that conversation lol. But on a more serious note I have 3 emails from the manager stating that he wants parking eye to drop charges. Is that not enough?

On your facts Penny you will benefit an estoppel defence as afore-mentioned. Its reasoning owes to these key terms: use Gym on the basis that the manager provided you with express permission (oral) to use it as an exception owing to the fact you were genuinely contemplating being a gym member, not withstanding ironing out the finer details (terms), ie the personal instructor contract term. Emails from the Gym's manager will be useful as point of evidence to prove this actually did happen, under Civil Procedure Rules (CPR). The manager was trying to cancel the sanction, this proves there it would be onerous if any action were to be taken against you. The manager is employed to manage the owner's business so he (the manager) is the key authority to make key decisions, ie permit sanctions or cancel sanctions. You can request a disclosure of the GYM's recordings as they're material to your defence.

It is possible also to argue that the separate pieces of the contract must be incorporated (ie to form the contract), as afore-stated.

The following is trivial so i'll leave it to until last. In law it's about playing with words to raise doubts. So, because the signage does not state 'active gym member' you could technically argue as a part defence that you would have been a member at some point in the near future albeit you were ironing out some details.

[emanresu]

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

On your facts Penny you will benefit an estoppel defence as afore-mentioned.

Just a heads-up on the estoppel defence.

Even though Beavis says these contracts are secondary/collateral, ParkingEye is now beginning to argue (successfully) that they are the principal and these are core terms. In other words, they are persuading DJ's that no-one even the manager, can vary the contractual terms. So suggest that is you want to use estoppel that the wording is along the lines that

...even if ParkingEye argue they are the principal, a reasonable person would believe that an offer by the gym manager to be allowed to park would hold good. In the alternative, the contract should be declared void for misrepresentation.

[mystery1]

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

Of course the cancellation section which is pretty important is blacked out, fancy that.

http://nebula.wsimg.com/c85b3d2cda77...&alloworigin=1

If they don't wish to show it then on the balance of probability it's probably the same as that one which means they have further issues.

I keep getting interrupted by the simpler questions and sport but i will be getting through the 5 tabs i have open to deal with, eventually.

M1

[R0b]

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

Just a heads-up on the estoppel defence.

Even though Beavis says these contracts are secondary/collateral, ParkingEye is now beginning to argue (successfully) that they are the principal and these are core terms. In other words, they are persuading DJ's that no-one even the manager, can vary the contractual terms. So suggest that is you want to use estoppel that the wording is along the lines that

...even if ParkingEye argue they are the principal, a reasonable person would believe that an offer by the gym manager to be allowed to park would hold good. In the alternative, the contract should be declared void for misrepresentation.

Well, the Court of Appeal has suggested (obiter) that, an anti-oral variation clause would not prevent variation of a contract orally or conduct - Globe Motors v TRW Lucas 2016

I believe the High Court case of Energy Venture Partners Ltd v Malabu Oil and Gas 2013 held that an implied oral agreement which was entered into after the written agreement was effective, despite the entire agreement clause stipulating that no amendments shall be effective unless in writing.

This stance was also applied in Virulite LLC v Virulite Distribution 2014.

I think the question of variation by oral agreement is that it would be fact specific. The defence could raise this issue in so far as that it had been varied when asked the question of ability to park without charge and being told yes. Therefore the argument that variation did take place by the manager of the gym, holding sufficient authority to do so. The estoppel argument should be secondary to the oral variation.

[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