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Re: F1rst Parking Appeal Rejected - University Parking
Thanks so much for your time M1. I have edited it to remove everything related to ANRP, I think I have managed it. My only concerns are that the signs (in the picture provided by the f1rst) are black and white not yellow, so the paragraph about the right colour might work in their favour? Maybe I am wrong, but I mentioned that the signs were grey and white (but feeling like that might imply that I saw them) and I also mentioned that they are unlit. Shall I mention that the signs are like 3 foot tall and can be easily blocked by parked cars? And should I attach the images I provided?
Is the parking charge a penalty even if it says notice?
I, as registered keeper, wish to appeal as follows.
1. The charge is a penalty
2. Unfair charges
3. Locus Standi
4. Signage
5. Keeper liability
1. Penalty charge
The operator has not submitted the charge to be a genuine pre estimate of loss. The charge being a penalty is unenforceable. £75 is clearly not a genuine pre estimate of loss.
The source of the doctrine of penalties lies in public policy. The need to protect
contracting parties against ‘extravagant and unconscionable’ behaviour is obvious, all
the more so in consumer cases. The doctrine must be rigorously and universally
applied to protect the consumer.
In El Makdessi v Cavendish Square Holdings BV [2013] EWCA Civ 1539
Christopher Clarke LJ, with whom Tomlinson and Patten LJJ agreed, explained that
the underlying rationale of the doctrine of penalties is that the court will grant relief
against the enforcement of provisions for payment (or the loss of rights or the
compulsory transfer of property at nil or an undervalue) in the event of breach, where
the amount to be paid or lost is out of all proportion to the loss attributable to the
breach. If that is so, the provisions are likely to be regarded as penal because their
function is to act as a deterrent.
In Lordsvale Finance Plc v Bank of Zambia [1996] 3 WLR 688 Colman J held that
there was no reason in principle why a contractual provision, the effect of which was
to increase the consideration payable under an executory contract upon the happening
of a default, should be struck down as a penalty if the increase could in the
circumstances be explained as commercially justifiable, provided always that its
dominant purpose was not to deter the other party from breach The ‘predominant function test’ is sound and does not require abolition or amendment.
The judgment of the Court of Appeal in this Beavis ignores and offends against the
compensatory principle. The Lords Justices were wrong to accept
the Respondent’s submission that some clauses which require payment on breach of a
sum which cannot be justified as liquidated damages in accordance with established
principles should nonetheless be enforceable because they are not ‘extravagant or
unconscionable’ and are justifiable in other terms
The mistake was to divorce the ‘extravagant and unconscionable’ test from its proper
roots. It is not in fact a stand-alone test. It is anchored in Lord Dunedin’s principle (a)
– that a clause will be held to be a penalty if the sum stipulated for is extravagant and
unconscionable in amount in comparison with the greatest loss that could conceivably
be proved to have followed from the breach.
The correct approach is to start by looking at what loss flows from the breach and
then consider whether the payment demanded is extravagant and unconscionable.
£75 (or £45 for early payment) is extravagant and unconscionable when compared to
the greatest loss that could conceivably flow from breach. Looked at another way,
why not £150 or even £500?
The concept of ‘commercial justification’ cannot be left to float free of the
compensatory principle any more than the phrase ‘extravagant and unconscionable’
can. The function of the concept of ‘commercial justification’ is not to justify the
imposition of a charge that is otherwise penal but to rather to enable the conclusion
in Dunlop Pneumatic Tyre Co. v New Garage and Motor Co. Ltd [1915] AC 67,
that that deterrence of breach was not the dominant purpose of the term. See Clarke
LJ’s examples of cases which exemplify commercial justification in Makdessi. In Beavis, it being accepted by the Court of Appeal that the dominant purpose of the Parking Charge is as a deterrent, there is no room for the concept of commercial justification.
Furthermore, if commercial justification is to have any place at all in the penalty
clause arena then relevant only to commercial contracts freely negotiated between
‘sophisticated parties’.
I note that the Appellant in the Cavendish appeal, supreme court, submit that there is no rationale
for the doctrine of penalties in what they define as ‘the Commercial Case’ but accept
that policy considerations may justify its application in a consumer context.
The Court of Appeal appears to have considered that there was some kind of what
might be termed ‘social justification’ for the clause, yet did not begin to formulate a
test for the circumstances in which a deterrent payment might be carved out as an
exception to the general law on penalties.
An analogy was made with the charges made by local authorities. This is not apt.
Local authorities do not impose “charges of this kind” under contracts. They impose
non-negotiable penalties in accordance with their statutory duty, the size of the
penalties being prescribed by statutory instrument.
In any event social justification is not a relevant consideration.
This is a matter for the legislature. Should Parliament perceive a need (presumably
with the benefit of extensive inquiry, expert, industry and consumer opinion) to
permit private sector traffic management companies to charge deterrent penalties on
social policy grounds then it will enact suitable legislation, as it has done to regulate
local authorities’ charges for parking contraventions.
Part of that inquiry may encompass:
a. a consideration of the level of permissible charges taking into account, for
example, the national average weekly wage, which, including bonuses
payment before taxes and other deductions for gross pay in March 2014 was
£474 15;
b. consideration of the effect on traffic flow if this type of management system
was not operated;
c. whether there are viable alternative parking management systems and what
they are;
d. whether or not Parking companies would be likely to lose
their contract if the current mode of operation were to change
e. consideration of levels of Local Authority charges. For example, outside of
Greater London, Local Authority charges are capped at £50 or £25 for
prompt payment;
f. whether Parking companies manipulate the period of free
stay to maximise revenue by breach;
g. the social justification, if any, for one level of charge irrespective of the
length of overstay as opposed to an escalator clause.
As Sir Timothy Lloyd acknowledged in the Court of Appeal, Beavis, the law would allow
damages for trespass against an ‘overstayer’ such as Mr Beavis without regard to
what the operator would have done but for the trespass.
ParkingEye had no interest in the land, did not act as agent of the landowner, and at
trial disavowed a claim in damages for trespass. Nevertheless, the comparison with the
position between a landowner and a trespasser is apt.
Swordheath Properties v Tabet [1979] 1 WLR 285 was cited in support of this
proposition. In that case the Court of Appeal held that where a plaintiff had
established that a defendant had occupied residential premises as a trespasser then he
was entitled to damages for trespass calculated by reference to the ordinary letting
value of the premises, without the need to adduce evidence that he could or would
have let the premises to someone else had the defendant not been in occupation.
The principle is unexceptional. In Swordheath Properties the 2nd to 5th defendants
sued for damages had been let into occupation by the tenant, the 1st defendant, and
remained there after the fixed term expired. They never had permission to be there. In
Ministry of Defence v Ashman (1993) 25 H.L.R. 513 the defendant was a former
tenant who remained in occupation without her landlord’s consent. The issue was
whether damages should be assessed by reference to the market rent of the premises
or the subsidised rent paid by the 2nd defendant, a serviceman who had moved out, his
wife the 1st defendant having remained in occupation. The Court of Appeal held that
the correct measure of damages was the former. Hoffmann LJ described this as a
restitutionary claim 18 and valued the benefit she had received by reference to the open
market letting value of the premises.
In Stadium Capital Holdings (No.2) Ltd v St Marylebone Property Co Plc [2011]
EWHC 2856 (Ch.) the defendant erected an advertising hoarding on the flank wall of
a property it owned. The hoarding trespassed onto the claimant’s airspace. Vos J held
that the appropriate measure of damages was the price which willing and reasonable
persons in the position of the landowner would have negotiated as the reasonable
price payable for the relevant right of user, the sum of money which might reasonably
have been demanded as a quid pro quo for permitting the trespass 19 .
28. Having made the analogy, the Court of Appeal declined to follow the reasoning that
underpins the decision in Swordheath. They were wrong to do so. The explanation
given -- that if damages were limited to the market value of occupation during the
period of trespass it would provide no disincentive against overstaying 20 – is not a
proper reason for ignoring the principle.
2. Unfair charges
The Unfair Terms in Consumer Contracts Regulations 1999 25 (“the Regulations”)
apply to unfair terms in contracts concluded between a seller or supplier and a
consumer. For the purposes of reg. 3(1), the operator is supplier and the driver is a
consumer. By reg. 8(1), an unfair term in a contract concluded with a consumer by a
seller or supplier shall not be binding on the consumer.
The basis test of unfairness of a term set out at reg. 5(1) is that:
“A contractual term which has not been individually negotiated shall be
regarded as unfair if, contrary to the requirement of good faith, it causes a
significant imbalance in the parties’ rights and obligations under the contract,
to the detriment of the consumer”.
The Regulations implement Council Directive 93/13/EEC of 5 April 1993. The
sixteenth preamble emphasises that in making an assessment of good faith,
particular regard shall be had to the strength of the bargaining position of the parties.
“Whereas the assessment, according to the general criteria chosen, of the unfair character of terms, in particular in sale or supply activities of a public nature providing collective services which take account of solidarity among users, must be supplemented by a means of making an overall evaluation of the different interests involved; whereas this constitutes the requirements of good faith; whereas, in making an assessment of good faith, particular regard shall be had to the strength of the bargaining positions of the parties, whether the Schedule 2 to the Regulations (‘the grey list’) sets out the indicative and non-exhaustive list of terms which may be regarded as unfair. Paragraph 1 of Schedule 2 lists example terms, including the following which is relevant: a term “(e) requiring any consumer who fails to fulfil his obligation to pay a
disproportionately high sum in compensation;”
The Parking Charge of £75 which may be demanded of a motorist who
overstays by even one minute (or less) is disproportionately high. The motorist
carries the risk that if he overstays by even one minute a charge of £75 - which bears
no relation to the period of overstaying, the benefit he obtains, or the loss the
operator suffers - will be demanded of him. Concepts of ‘commercial justification’ or ‘social justification’ play no part in the test for unfairness under the Regulations.
In Director General of Fair Trading v First National Bank [2002] 1 AC 481 Lord
Bingham explained at para. [17] that a term falling within the scope of the
Regulations is unfair if it causes a significant imbalance in the parties’ rights and
obligations under the contract to the detriment of the consumer in a manner or to an
extent which is contrary to the requirement of good faith. He went on to say:
“The requirement of significant imbalance is met if a term is so weighted in
favour of the supplier as to tilt the parties’ rights and obligations under the
contract significantly in his favour. This may be by the granting to the supplier
of a beneficial option or discretion or power, or by imposing on the consumer
of a disadvantageous burden or risk or duty. ...
The requirement of good faith in this context is one of fair and open dealing.
Openness requires that the terms should be expressed fully, clearly and
legibly, containing no concealed pitfalls or traps. Appropriate prominence
should be given to terms which might operate disadvantageously to the
consumer had an inducement to agree to the term and whether the goods or services were sold or supplied to the special order of the consumer; whereas the requirement of good faith may be satisfied by the seller or supplier where he deals fairly and equitably with the other party whose legitimate interests he has to take into account;” customer. Fair dealing requires that a supplier should not, whether deliberately or unconsciously, take advantage of the consumer’s necessity,
indigence, lack of experience, unfamiliarity with the subject matter of the contract, weak bargaining position or any other factor listed in or analogous to those listed in Schedule 2 to the Regulations. Good faith in this context is not an artificial or technical concept; nor, since Lord Mansfield was its champion, is it a concept wholly unfamiliar to British lawyers. It looks to good
standards of commercial morality and practice.”
At para. [54] Lord Millett discussed the ‘good faith’ test in the following terms:
“There can be no one single test of this. It is obviously useful to assess the
impact of an impugned term on the parties’ rights and obligations by
comparing the effect of the contract with the term and the effect it would have
without it. But the inquiry cannot stop there. It may also be necessary to
consider the effect of the inclusion of the term on the substance or core of the
transaction; whether if it were drawn to his attention the consumer would be
likely to be surprised by it; whether the term is a standard term, not merely in
similar non-negotiable consumer contracts, but in commercial contracts freely
negotiated between parties acting on level terms and at arms’ length; and
whether, in such cases, the party adversely affected by the inclusion of the
term or his lawyer might reasonably be expected to object to its inclusion and
press for its deletion. The list is not necessarily exhaustive; other approaches
may sometimes be more appropriate.
In Aziz v Caixa d’Estalvis de Catalunya, Tarragona I Manresa [2013] 3 C.M.L.R. 5 a
Spanish resident entered into a loan agreement with the bank which provided for an
10annual default interest of 18.75%. Under the agreement the bank was entitled to call in
the totality of the loan in the event of default and (cl. 15) bring enforcement
proceedings. Such proceedings were brought against Mr Aziz and his property was
repossessed. He applied to the Court of Justice for a declaration annulling cl. 15 on the
ground of unfairness. Spanish domestic law did not permit Sr. Aziz to challenge
mortgage enforcement proceedings based on the unfairness of a clause in a contract
between a consumer and a seller and supplier. The Court of Justice was asked to
determine whether the national legislation was compatible with the Directive 93/13
and clarify the concept of “unfair term” in the light of art 3(1) and (3) of the Directive
and Annex.
The ECJ noted:
(1) That the system of protection introduced by the Directive was based on the idea
that the consumer was in a weak position vis a vis the seller or supplier as regards
both his bargaining power and his level of knowledge.
(2) That the Directive defines in a general way the factors that render unfair a
contractual term that has not been individually negotiated and that the annex [the
Schedule] contains only an indicative and non-exhaustive list of terms which may
be regarded as unfair.
The critical part of the judgment is para. [69]:
“With regard to the question of the circumstances in which such an imbalance
arises ‘contrary to the requirement of good faith’, having regard to the
sixteenth recital in the preamble to the Directive the national court must
assess for those purposes whether the seller or supplier, dealing fairly and
equitably with the consumer, could reasonably assume that the consumer
would have agreed to such a term in individual contract negotiations.”
The Order made was:
in order to assess whether the imbalance arises ‘contrary to the requirement
of good faith’ it must be determined whether the seller of supplier, dealing
fairly and equitably with the consumer, could reasonably assume that the
consumer would have agreed to the term concerned in individual contract
negotiations”
Interpreted in this way, a significant imbalance contrary to the requirement of good
faith plainly arises. The operator, dealing fairly, could not reasonably assume that a
consumer would have agreed to a parking charge of £75 (or £45) in individual contract negotiations.
The term is unfair in the following respects:
(1) The Parking Charge of £75, even when reduced to £45 for prompt payment, is
disproportionately high. It is set this high because the operator relies on the charge
to fund the payment that it makes to the landowner, all of its overheads, and to make a
profit.
(2) The fact that the Charge is imposed if the motorist overstays even by one minute
(or less) imposes a disadvantageous burden on the consumer.
(3) The consumer is not in a weak bargaining position. He has no bargaining position.
position, which is that the operator’s business model depends upon a certain
percentage of motorists’ overstaying, they would be more alert to the risk of
overstaying.
(4) The operator, dealing fairly, could not reasonably have assumed that the consumer
would have agreed to the term in individual contract negotiations.
3. Locus Standi
The operator does not own nor have any interest or assignment of title of the land in question. As such, I do not believe that the operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract. Accordingly, I require sight of a full copy of the actual contemporaneous, signed and dated site agreement/contract with the landowner (and not just a signed slip of paper saying that it exists). Some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory has ever seen the relevant contract, or, indeed is even an employee of the landowner. Nor would a witness statement show whether there is a payment made from either party within the agreement/contract which would affect any 'loss' calculations. Nor would it show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow the operator to pursue these charges in their own name as creditor in the Courts, and to grant them the standing/assignment of title to make contracts with drivers. In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid. So I require the unredacted contract for all these stated reasons as I contend the Operator's authority is limited to that of a mere parking agent. I believe it is merely a standard business agreement between the operator and their client, which is true of any such business model. This cannot impact upon, nor create a contract with, any driver, as was found in case no. 3JD00517 ParkingEye v Clarke 19th December 2013 I refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS) v HMRC ( EWCA Civ 186 [2013]): The principal issue in this case was to determine the actual nature of Private Parking Charges. It was stated that, "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be." The ruling of the Court stated, "I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services." In other words, they are not, as the Operator asserts, a contractual term. If they were a contractual term, the Operator would have to provide a VAT invoice, to provide a means of payment at the point of supply, and to account to HMRC for the VAT element of the charge. The Appellant asserts that these requirements have not been met. It must therefore be concluded that the Operator's charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated losses, as set out above.
4. Signage
The signs do not meet the minimum requirements in part 18 of the BPA code of practice. They were not clear and intelligible as required. The BPA Code of Practice states under appendix B, entrance signage: “The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.” For a contract to be formed, one of the many considerations is that there must be adequate signage on entering the car park and throughout the car park. I contend that there is not. When with reference to the BCP Code of Practice, it actually states: "There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background. Combinations such as blue on yellow are not easy to read and may cause problems for drivers with impaired colour vision". The signs are grey and white with text that is difficult to read, and signs were not lit and therefore not visible to drivers in the evening and morning.
There were no signs or road markings to indicate that the area was private property or in any way restricted.
5. Keeper Liability
The protection of freedoms act 2012 schedule 4 allows the opportunity for parking companies liable for the actions of the driver but only if full compliance is achieved. In the case of an ANPR situation compliance with section 9 is required. In the case of a notice to driver being issued under para 7 then a notice to keeper under para 8 is required. No notice to keeper was received.
For all , or any, of these reasons the appeal should be allowed.
Thanks!
Originally posted by mystery1
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Edit to suit then
M1
Edit to suit then
M1
Is the parking charge a penalty even if it says notice?
I, as registered keeper, wish to appeal as follows.
1. The charge is a penalty
2. Unfair charges
3. Locus Standi
4. Signage
5. Keeper liability
1. Penalty charge
The operator has not submitted the charge to be a genuine pre estimate of loss. The charge being a penalty is unenforceable. £75 is clearly not a genuine pre estimate of loss.
The source of the doctrine of penalties lies in public policy. The need to protect
contracting parties against ‘extravagant and unconscionable’ behaviour is obvious, all
the more so in consumer cases. The doctrine must be rigorously and universally
applied to protect the consumer.
In El Makdessi v Cavendish Square Holdings BV [2013] EWCA Civ 1539
Christopher Clarke LJ, with whom Tomlinson and Patten LJJ agreed, explained that
the underlying rationale of the doctrine of penalties is that the court will grant relief
against the enforcement of provisions for payment (or the loss of rights or the
compulsory transfer of property at nil or an undervalue) in the event of breach, where
the amount to be paid or lost is out of all proportion to the loss attributable to the
breach. If that is so, the provisions are likely to be regarded as penal because their
function is to act as a deterrent.
In Lordsvale Finance Plc v Bank of Zambia [1996] 3 WLR 688 Colman J held that
there was no reason in principle why a contractual provision, the effect of which was
to increase the consideration payable under an executory contract upon the happening
of a default, should be struck down as a penalty if the increase could in the
circumstances be explained as commercially justifiable, provided always that its
dominant purpose was not to deter the other party from breach The ‘predominant function test’ is sound and does not require abolition or amendment.
The judgment of the Court of Appeal in this Beavis ignores and offends against the
compensatory principle. The Lords Justices were wrong to accept
the Respondent’s submission that some clauses which require payment on breach of a
sum which cannot be justified as liquidated damages in accordance with established
principles should nonetheless be enforceable because they are not ‘extravagant or
unconscionable’ and are justifiable in other terms
The mistake was to divorce the ‘extravagant and unconscionable’ test from its proper
roots. It is not in fact a stand-alone test. It is anchored in Lord Dunedin’s principle (a)
– that a clause will be held to be a penalty if the sum stipulated for is extravagant and
unconscionable in amount in comparison with the greatest loss that could conceivably
be proved to have followed from the breach.
The correct approach is to start by looking at what loss flows from the breach and
then consider whether the payment demanded is extravagant and unconscionable.
£75 (or £45 for early payment) is extravagant and unconscionable when compared to
the greatest loss that could conceivably flow from breach. Looked at another way,
why not £150 or even £500?
The concept of ‘commercial justification’ cannot be left to float free of the
compensatory principle any more than the phrase ‘extravagant and unconscionable’
can. The function of the concept of ‘commercial justification’ is not to justify the
imposition of a charge that is otherwise penal but to rather to enable the conclusion
in Dunlop Pneumatic Tyre Co. v New Garage and Motor Co. Ltd [1915] AC 67,
that that deterrence of breach was not the dominant purpose of the term. See Clarke
LJ’s examples of cases which exemplify commercial justification in Makdessi. In Beavis, it being accepted by the Court of Appeal that the dominant purpose of the Parking Charge is as a deterrent, there is no room for the concept of commercial justification.
Furthermore, if commercial justification is to have any place at all in the penalty
clause arena then relevant only to commercial contracts freely negotiated between
‘sophisticated parties’.
I note that the Appellant in the Cavendish appeal, supreme court, submit that there is no rationale
for the doctrine of penalties in what they define as ‘the Commercial Case’ but accept
that policy considerations may justify its application in a consumer context.
The Court of Appeal appears to have considered that there was some kind of what
might be termed ‘social justification’ for the clause, yet did not begin to formulate a
test for the circumstances in which a deterrent payment might be carved out as an
exception to the general law on penalties.
An analogy was made with the charges made by local authorities. This is not apt.
Local authorities do not impose “charges of this kind” under contracts. They impose
non-negotiable penalties in accordance with their statutory duty, the size of the
penalties being prescribed by statutory instrument.
In any event social justification is not a relevant consideration.
This is a matter for the legislature. Should Parliament perceive a need (presumably
with the benefit of extensive inquiry, expert, industry and consumer opinion) to
permit private sector traffic management companies to charge deterrent penalties on
social policy grounds then it will enact suitable legislation, as it has done to regulate
local authorities’ charges for parking contraventions.
Part of that inquiry may encompass:
a. a consideration of the level of permissible charges taking into account, for
example, the national average weekly wage, which, including bonuses
payment before taxes and other deductions for gross pay in March 2014 was
£474 15;
b. consideration of the effect on traffic flow if this type of management system
was not operated;
c. whether there are viable alternative parking management systems and what
they are;
d. whether or not Parking companies would be likely to lose
their contract if the current mode of operation were to change
e. consideration of levels of Local Authority charges. For example, outside of
Greater London, Local Authority charges are capped at £50 or £25 for
prompt payment;
f. whether Parking companies manipulate the period of free
stay to maximise revenue by breach;
g. the social justification, if any, for one level of charge irrespective of the
length of overstay as opposed to an escalator clause.
As Sir Timothy Lloyd acknowledged in the Court of Appeal, Beavis, the law would allow
damages for trespass against an ‘overstayer’ such as Mr Beavis without regard to
what the operator would have done but for the trespass.
ParkingEye had no interest in the land, did not act as agent of the landowner, and at
trial disavowed a claim in damages for trespass. Nevertheless, the comparison with the
position between a landowner and a trespasser is apt.
Swordheath Properties v Tabet [1979] 1 WLR 285 was cited in support of this
proposition. In that case the Court of Appeal held that where a plaintiff had
established that a defendant had occupied residential premises as a trespasser then he
was entitled to damages for trespass calculated by reference to the ordinary letting
value of the premises, without the need to adduce evidence that he could or would
have let the premises to someone else had the defendant not been in occupation.
The principle is unexceptional. In Swordheath Properties the 2nd to 5th defendants
sued for damages had been let into occupation by the tenant, the 1st defendant, and
remained there after the fixed term expired. They never had permission to be there. In
Ministry of Defence v Ashman (1993) 25 H.L.R. 513 the defendant was a former
tenant who remained in occupation without her landlord’s consent. The issue was
whether damages should be assessed by reference to the market rent of the premises
or the subsidised rent paid by the 2nd defendant, a serviceman who had moved out, his
wife the 1st defendant having remained in occupation. The Court of Appeal held that
the correct measure of damages was the former. Hoffmann LJ described this as a
restitutionary claim 18 and valued the benefit she had received by reference to the open
market letting value of the premises.
In Stadium Capital Holdings (No.2) Ltd v St Marylebone Property Co Plc [2011]
EWHC 2856 (Ch.) the defendant erected an advertising hoarding on the flank wall of
a property it owned. The hoarding trespassed onto the claimant’s airspace. Vos J held
that the appropriate measure of damages was the price which willing and reasonable
persons in the position of the landowner would have negotiated as the reasonable
price payable for the relevant right of user, the sum of money which might reasonably
have been demanded as a quid pro quo for permitting the trespass 19 .
28. Having made the analogy, the Court of Appeal declined to follow the reasoning that
underpins the decision in Swordheath. They were wrong to do so. The explanation
given -- that if damages were limited to the market value of occupation during the
period of trespass it would provide no disincentive against overstaying 20 – is not a
proper reason for ignoring the principle.
2. Unfair charges
The Unfair Terms in Consumer Contracts Regulations 1999 25 (“the Regulations”)
apply to unfair terms in contracts concluded between a seller or supplier and a
consumer. For the purposes of reg. 3(1), the operator is supplier and the driver is a
consumer. By reg. 8(1), an unfair term in a contract concluded with a consumer by a
seller or supplier shall not be binding on the consumer.
The basis test of unfairness of a term set out at reg. 5(1) is that:
“A contractual term which has not been individually negotiated shall be
regarded as unfair if, contrary to the requirement of good faith, it causes a
significant imbalance in the parties’ rights and obligations under the contract,
to the detriment of the consumer”.
The Regulations implement Council Directive 93/13/EEC of 5 April 1993. The
sixteenth preamble emphasises that in making an assessment of good faith,
particular regard shall be had to the strength of the bargaining position of the parties.
“Whereas the assessment, according to the general criteria chosen, of the unfair character of terms, in particular in sale or supply activities of a public nature providing collective services which take account of solidarity among users, must be supplemented by a means of making an overall evaluation of the different interests involved; whereas this constitutes the requirements of good faith; whereas, in making an assessment of good faith, particular regard shall be had to the strength of the bargaining positions of the parties, whether the Schedule 2 to the Regulations (‘the grey list’) sets out the indicative and non-exhaustive list of terms which may be regarded as unfair. Paragraph 1 of Schedule 2 lists example terms, including the following which is relevant: a term “(e) requiring any consumer who fails to fulfil his obligation to pay a
disproportionately high sum in compensation;”
The Parking Charge of £75 which may be demanded of a motorist who
overstays by even one minute (or less) is disproportionately high. The motorist
carries the risk that if he overstays by even one minute a charge of £75 - which bears
no relation to the period of overstaying, the benefit he obtains, or the loss the
operator suffers - will be demanded of him. Concepts of ‘commercial justification’ or ‘social justification’ play no part in the test for unfairness under the Regulations.
In Director General of Fair Trading v First National Bank [2002] 1 AC 481 Lord
Bingham explained at para. [17] that a term falling within the scope of the
Regulations is unfair if it causes a significant imbalance in the parties’ rights and
obligations under the contract to the detriment of the consumer in a manner or to an
extent which is contrary to the requirement of good faith. He went on to say:
“The requirement of significant imbalance is met if a term is so weighted in
favour of the supplier as to tilt the parties’ rights and obligations under the
contract significantly in his favour. This may be by the granting to the supplier
of a beneficial option or discretion or power, or by imposing on the consumer
of a disadvantageous burden or risk or duty. ...
The requirement of good faith in this context is one of fair and open dealing.
Openness requires that the terms should be expressed fully, clearly and
legibly, containing no concealed pitfalls or traps. Appropriate prominence
should be given to terms which might operate disadvantageously to the
consumer had an inducement to agree to the term and whether the goods or services were sold or supplied to the special order of the consumer; whereas the requirement of good faith may be satisfied by the seller or supplier where he deals fairly and equitably with the other party whose legitimate interests he has to take into account;” customer. Fair dealing requires that a supplier should not, whether deliberately or unconsciously, take advantage of the consumer’s necessity,
indigence, lack of experience, unfamiliarity with the subject matter of the contract, weak bargaining position or any other factor listed in or analogous to those listed in Schedule 2 to the Regulations. Good faith in this context is not an artificial or technical concept; nor, since Lord Mansfield was its champion, is it a concept wholly unfamiliar to British lawyers. It looks to good
standards of commercial morality and practice.”
At para. [54] Lord Millett discussed the ‘good faith’ test in the following terms:
“There can be no one single test of this. It is obviously useful to assess the
impact of an impugned term on the parties’ rights and obligations by
comparing the effect of the contract with the term and the effect it would have
without it. But the inquiry cannot stop there. It may also be necessary to
consider the effect of the inclusion of the term on the substance or core of the
transaction; whether if it were drawn to his attention the consumer would be
likely to be surprised by it; whether the term is a standard term, not merely in
similar non-negotiable consumer contracts, but in commercial contracts freely
negotiated between parties acting on level terms and at arms’ length; and
whether, in such cases, the party adversely affected by the inclusion of the
term or his lawyer might reasonably be expected to object to its inclusion and
press for its deletion. The list is not necessarily exhaustive; other approaches
may sometimes be more appropriate.
In Aziz v Caixa d’Estalvis de Catalunya, Tarragona I Manresa [2013] 3 C.M.L.R. 5 a
Spanish resident entered into a loan agreement with the bank which provided for an
10annual default interest of 18.75%. Under the agreement the bank was entitled to call in
the totality of the loan in the event of default and (cl. 15) bring enforcement
proceedings. Such proceedings were brought against Mr Aziz and his property was
repossessed. He applied to the Court of Justice for a declaration annulling cl. 15 on the
ground of unfairness. Spanish domestic law did not permit Sr. Aziz to challenge
mortgage enforcement proceedings based on the unfairness of a clause in a contract
between a consumer and a seller and supplier. The Court of Justice was asked to
determine whether the national legislation was compatible with the Directive 93/13
and clarify the concept of “unfair term” in the light of art 3(1) and (3) of the Directive
and Annex.
The ECJ noted:
(1) That the system of protection introduced by the Directive was based on the idea
that the consumer was in a weak position vis a vis the seller or supplier as regards
both his bargaining power and his level of knowledge.
(2) That the Directive defines in a general way the factors that render unfair a
contractual term that has not been individually negotiated and that the annex [the
Schedule] contains only an indicative and non-exhaustive list of terms which may
be regarded as unfair.
The critical part of the judgment is para. [69]:
“With regard to the question of the circumstances in which such an imbalance
arises ‘contrary to the requirement of good faith’, having regard to the
sixteenth recital in the preamble to the Directive the national court must
assess for those purposes whether the seller or supplier, dealing fairly and
equitably with the consumer, could reasonably assume that the consumer
would have agreed to such a term in individual contract negotiations.”
The Order made was:
in order to assess whether the imbalance arises ‘contrary to the requirement
of good faith’ it must be determined whether the seller of supplier, dealing
fairly and equitably with the consumer, could reasonably assume that the
consumer would have agreed to the term concerned in individual contract
negotiations”
Interpreted in this way, a significant imbalance contrary to the requirement of good
faith plainly arises. The operator, dealing fairly, could not reasonably assume that a
consumer would have agreed to a parking charge of £75 (or £45) in individual contract negotiations.
The term is unfair in the following respects:
(1) The Parking Charge of £75, even when reduced to £45 for prompt payment, is
disproportionately high. It is set this high because the operator relies on the charge
to fund the payment that it makes to the landowner, all of its overheads, and to make a
profit.
(2) The fact that the Charge is imposed if the motorist overstays even by one minute
(or less) imposes a disadvantageous burden on the consumer.
(3) The consumer is not in a weak bargaining position. He has no bargaining position.
position, which is that the operator’s business model depends upon a certain
percentage of motorists’ overstaying, they would be more alert to the risk of
overstaying.
(4) The operator, dealing fairly, could not reasonably have assumed that the consumer
would have agreed to the term in individual contract negotiations.
3. Locus Standi
The operator does not own nor have any interest or assignment of title of the land in question. As such, I do not believe that the operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract. Accordingly, I require sight of a full copy of the actual contemporaneous, signed and dated site agreement/contract with the landowner (and not just a signed slip of paper saying that it exists). Some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory has ever seen the relevant contract, or, indeed is even an employee of the landowner. Nor would a witness statement show whether there is a payment made from either party within the agreement/contract which would affect any 'loss' calculations. Nor would it show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow the operator to pursue these charges in their own name as creditor in the Courts, and to grant them the standing/assignment of title to make contracts with drivers. In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid. So I require the unredacted contract for all these stated reasons as I contend the Operator's authority is limited to that of a mere parking agent. I believe it is merely a standard business agreement between the operator and their client, which is true of any such business model. This cannot impact upon, nor create a contract with, any driver, as was found in case no. 3JD00517 ParkingEye v Clarke 19th December 2013 I refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS) v HMRC ( EWCA Civ 186 [2013]): The principal issue in this case was to determine the actual nature of Private Parking Charges. It was stated that, "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be." The ruling of the Court stated, "I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services." In other words, they are not, as the Operator asserts, a contractual term. If they were a contractual term, the Operator would have to provide a VAT invoice, to provide a means of payment at the point of supply, and to account to HMRC for the VAT element of the charge. The Appellant asserts that these requirements have not been met. It must therefore be concluded that the Operator's charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated losses, as set out above.
4. Signage
The signs do not meet the minimum requirements in part 18 of the BPA code of practice. They were not clear and intelligible as required. The BPA Code of Practice states under appendix B, entrance signage: “The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.” For a contract to be formed, one of the many considerations is that there must be adequate signage on entering the car park and throughout the car park. I contend that there is not. When with reference to the BCP Code of Practice, it actually states: "There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background. Combinations such as blue on yellow are not easy to read and may cause problems for drivers with impaired colour vision". The signs are grey and white with text that is difficult to read, and signs were not lit and therefore not visible to drivers in the evening and morning.
There were no signs or road markings to indicate that the area was private property or in any way restricted.
5. Keeper Liability
The protection of freedoms act 2012 schedule 4 allows the opportunity for parking companies liable for the actions of the driver but only if full compliance is achieved. In the case of an ANPR situation compliance with section 9 is required. In the case of a notice to driver being issued under para 7 then a notice to keeper under para 8 is required. No notice to keeper was received.
For all , or any, of these reasons the appeal should be allowed.
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