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

[Openlaw15]

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.

[des8]

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

I'm pleased you put that word "normally" in as it is not unknown for laws to be enacted that have retrosective force (latin term ex post facto!)
As soon as I read your post I thought of the Finance Act of 2008 and then looked further and found Pakistan Act 1990: War Crimes act 1991

[Penny1]

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

Hello all, I know its been a few days since i was last on here...but i thank you all for your responses...now im thinking I might actually win this!

To Mystery1: I don't understand this 'no offer' business. For a contract to be valid there has to be an offer? Are you saying that because i was not a member the sign is not relevant to me?

Sorry if it sounds like a dumb question..but i am a proper lay person in all this legal jargon xxx

[Openlaw15]

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

I'm pleased you put that word "normally" in as it is not unknown for laws to be enacted that have retrosective force (latin term ex post facto!)
As soon as I read your post I thought of the Finance Act of 2008 and then looked further and found Pakistan Act 1990: War Crimes act 1991

Parliament has made the law retroactive on some occasions, also stopping a Burmese oil company making claims against the UK Government (Brit soldiers destroyed oil installations to stop its Japanese enemy taking possession), via War Damages Act 1965. So in light of these exceptions to the rule of law, I said emphasised normally purposely.

[mystery1]

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

Hello all, I know its been a few days since i was last on here...but i thank you all for your responses...now im thinking I might actually win this!

To Mystery1: I don't understand this 'no offer' business. For a contract to be valid there has to be an offer? Are you saying that because i was not a member the sign is not relevant to me?

Sorry if it sounds like a dumb question..but i am a proper lay person in all this legal jargon xxx

Yes, pretty much spot on.

The charge is supposedly a contractual term, if there is no contract the term is worthless.

http://www.out-law.com/page-396 Try that.

Essentially they never allowed you to park, only members could park. In such circumstances you are a trespasser. Damages for trespass where no damage is caused are minimal so they try to dress it up as a contract. They never offered you a right to park, no contract could exist as you cannot agree to do something which isn't allowed.

M1

[Penny1]

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

Thanks for clarifying mystery...it makes sense now

Okay to to summarise my defence points:

1. No contract formed - Was trespassing.
2. Manager, as principal, had the right to cancel.
3. No contract can be formed due to poor lighting.
4. T&Cs on sign 2 is too small for an average person to make out. Therefore contract not incorporated.
5. I was given express (oral) permission to park there (can't be proved either way though - so shall i use this?)
6. Sign does not say 'Active/Current' gym members parking only - i was planning to become a member so justified.

I believe that covers everything? Anything someone wants to add or ive missed off or change? xxx

[Amethyst]

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

Re-post it for discussion on it's own thread. But here is not the place to discuss it.

[mystery1]

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

5. would be a different kind of contract entirely based on the offer of the GYM to park rather than any offer on a sign by another company. The offer by the GYM leads you to believe parking is acceptable and means you are not looking for additional terms after that oral contract is done.

6. Don't try and make a contract. Their case says the sign makes a contract. The sign says members only so doesn't apply to you as a non member.

M1

[Penny1]

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

5. I will mention as you say.
6. Deleted.

I can't thank you enough M1. I could kiss you right now! And to all the rest of you lovely people...:hug:

Now that i have my arguments sorted...its all tedious paperwork

It states in the letter that i must deliver to the other party and the court copies of all documents 14 days before hearing.

1)I will be using the defence statement and pics (which i believe i sent already). Do i need to send again?
2)How do I send phone recordings? (nobody answered whether i could use these btw. Mr Coe was unaware call was being recorded, but can i still use?)
3)Plus there will be a few court cases i will be quoting to back up my points...do i need to print these out and distribute aswell?

Cheers guys x

[mystery1]

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

1) Not again, no but you need to send to both them and the court.
2) On CD or usb i'd say. Best ask your court. It's up to the court if you can use them but i see no reason why not.

3) I would.

M1

[Openlaw15]

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

Hello,

To Mystery 1: The Coe gentleman said on the phone, originally, that he would be my witness if it gets to court but (mysteriously) he has now backed away and says its between me and Parking Eye now.


I do have a recording of him stating that he will be a witness...but someone has told me that because he was unaware the conversation was being recorded then I am not able to use it in court...is this correct?

To Rob: Hopefully you are right and the judge is mega annoyed with them and gives me an easy ride...never been to court before...I wonder if I can claim for costs due to all the time and headache ive spent doing all this!

You could still call Mr Coe as your witness whether he wants to come or not, as he is the material witness. If you use the emails alone it'll be admissible (permitted) under the hearsay rules.

[Openlaw15]

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

5. I will mention as you say.
6. Deleted.

I can't thank you enough M1. I could kiss you right now! And to all the rest of you lovely people...:hug:

Now that i have my arguments sorted...its all tedious paperwork

It states in the letter that i must deliver to the other party and the court copies of all documents 14 days before hearing.

1)I will be using the defence statement and pics (which i believe i sent already). Do i need to send again?
2)How do I send phone recordings? (nobody answered whether i could use these btw. Mr Coe was unaware call was being recorded, but can i still use?)
3)Plus there will be a few court cases i will be quoting to back up my points...do i need to print these out and distribute aswell?

Cheers guys x

I believe you'll need to ask the court to permit the phone records as the company (the gym) is trying to distance itself from the matter between Parking Eye and your self. It's likely that the company (the gym)/ Parking Eye will argue that the phone records should not be admissible owing to the right to privacy, ie human righto privacy. However, your use of them is material to your defence.

[Openlaw15]

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

These are the material facts of Beavis. Supreme Court 2015 at paragraph 119. "In the second case, the appellant, Mr Beavis, was the owner and driver of a vehicle which he parked in a retail shopping car park adjacent to Chelmsford railway station. The owner of the retail site and car park, British Airways Pension Fund (“BAPF”), had engaged ParkingEye Ltd, the respondent, to provide “a traffic space maximisation scheme”. The scheme involved the erection at the entrance to and throughout the car part of prominent notices, including the injunctions “2 hour max stay” and “Parking limited to 2 hours”, coupled with the further notice “Failure to comply … will result in a Parking Charge of £85”. Underneath, it also stated: “By parking within the car park, motorists agree to comply with the car park regulations”. Mr Beavis left his car parked for 56 minutes over a permitted two-hour period. He maintains that the £85 charge demanded of him by ParkingEye (reducible to £50 if he had paid within 14 days) is an unenforceable penalty. Further or alternatively, he maintains that it is unfair and invalid within the meaning of the Unfair Terms in Consumer Contracts Regulations 1999."

[Openlaw15]

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

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 contract in Penny's case is nothing to do with gym membership per se but whether the term 'gym membership' is part of Parking Eye's contract with her. The further point is whether the terms and conditions are incorporated as though it were a contract. The company only has to do what the law says and no more. The company cannot legislate for the weather or whether it's light or dark. Objectively, the court would expect a person to visit in the day where it is light, where its signs are clear and legible. The law is not soft it is very strict where contract is concerned.

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.

So, as the agent for the gym Parking Eye is not the principal but likely is agent for the principal. It's unlikely that legal intention on Penny's part is a defence as the law is objective so would consider this 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 trespasser possibly.

Penny's substantive defence is there was no contract; as 1) for a car park situation it at least must be via a document such as a parking ticket: Chapelton v Barry Urban District Council [1940] 1 KB 532 (CA); and any other terms the claimant seeks to rely on must be incorporated, ie the terms and conditions must be prominent at the time she parks although not in the dark but prominent to someone with good eyesight or corrected with glasses etc in the day time or light conditions. So there is no defence for it being dark as Mystery1 suggests. For incorporation, ie where there is no written or oral contract the courts do an incorporation test. There are several cases for incorporation. First of all you must be put on reasonable notice for term/ clause to be incorporated: Parker v South Eastern Railway (1877) 2 CPD 416 (CA). However, a very relevant authority for you is Shoe Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163 (CA), a parking case authority for an incorporation test. In Thornton, the contract was complete when the person had taken a ticket from the machine on entering the car park; and the terms and conditions were not considered incorporated as they were only observable in the actual car park, as then it was too late. In your case Penny 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 is your evidence. The terms at sign 2 - terms and conditions (same extract) are too late for you to be put on reasonable notice: Parker (CA, 1877) for these to be incorporated into the contract as the terms must be observable at the same time: Thornton. In any event the writing is too tiny: Thornton It looks tiny from the pdf extract anyway.

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 gum 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).

[Penny1]

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

Basically what you are saying is remove poor lighting reason and beef up the incorporation point? x