Motorist calls for regulation in private parking industry

[Legal Beagles]

* Ahead of his Supreme Court hearing against a private parking firm, motorist Barry Beavis is calling for Ministers to regulate the private parking industry and is offering to help the Government regulate the parking industry for all motorists. On Tuesday 21st*July, Barry Beavis will take his case to the Supreme Court to appeal against a parking charge for overstaying at a car park in the Riverside Retail Park in Chelmsford in 2013. Mr Beavis, a chip shop owner, left his car for 56 minutes longer than the two hour wait time and was issued with an £85 parking charge. He believes the charge should be ruled unlawful and unfair as it is unreasonable and excessive.

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[Amethyst]

Re: Motorist calls for regulation in private parking industry

https://www.supremecourt.uk/live/court-01.html

21 to 23 July 2015 | 10:30

Cavendish Square Holding BV (Appellant) v Talal El Makdessi (Respondent)

ParkingEye Limited (Respondent) v Beavis (Appellant)

[Amethyst]

Re: Motorist calls for regulation in private parking industry

1st up Cavendish Square Holding v Makdessi .... court of appealed erred in concluding two clauses in contract were penal. 1st groudn submitting logical conclusion that doctrine of penalties should be overruled. Dunlop has no place in today's world. Application is unclear and anomalous. It applies to commercial contracts negotiated at arms length. Suggesting doctrine of penalties in Dunlop should not be applied to commercial contracts.

Parking Eye joined to proceedings which is a consumer type case, gives opportunity to relook at doctrine of penalties in both commercial and consumer contracts.

Second ground appeal - 5.1 payment of consideration for share in event of breach - 5.6 option to require transfer of all remaining shares in breach.

represent reasonable pre-estimates of loss ? - argue they are not about compensation. Neither of the clauses is about compensation for loss, 5.1 is adjusting for price, 5.6 payment of price for shares under an option.

Sumption: Would you agree that they result in a payment that exceeds any financial consequence ?

If not a penalty could they represent a forfeiture ? doctrine of relief from forfeiture would apply.... but the other side chose not to argue it....

discussions on ''zillions'' ''megabucks'' with regards the amounts ....

(I'll update anything that's particularly interesting from here on in - they are basically going to spend a while slagging off Dunlop now - wiki overview of Dunlop

[Amethyst]

Re: Motorist calls for regulation in private parking industry

Fun fact.. Appellant's contract in Dunlop v New Garage was with A. Pellant Ltd.

LORD PARMOOR. My Lords, on April 7, 1911, Messrs. A. Pellant, Limited (acting as agents for the appellants), entered into a price maintenance agreement with the respondents. The question to determine is the construction of this agreement.

[Amethyst]

Re: Motorist calls for regulation in private parking industry

Now we're on to Dunlop

3 key features;

1: didn't involve any detailed analysis of the doctrine of penalties - didn't extinguish between law and equity

2: the judges were not in agreement as to the right approach

3: trumped propositions ref commercial considerations....??????

( a ) It will be held to be 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.

Current arguments direct reference to;

Issue

1. Whether the rule against penalties applies to commercial contracts between sophisticated parties.
2. If the rule does apply to such contracts, whether clauses 5.1 and 5.6 are within the scope of the rule.
3. If the clauses are within the scope of the rule against penalties, whether the Court of Appeal was wrong to conclude that they were penal and therefore unenforceable.

Facts

Under an agreement, to which Cavendish is now the counterparty, Mr Makdessi agreed to sell a controlling stake in what became the largest advertising group in the Middle East. Mr Makdessi conceded that, if enforceable, he breached restrictive covenants contained in the agreement by reason of his ongoing, unpaid involvement in the affairs of a company called Carat. As a result, under clause 5.1, Mr Makdessi would forfeit the final two instalments of deferred consideration payable by Cavendish for his shares. Under clause 5.6, Mr Makdessi would be required to transfer all his remaining shares to Cavendish at a price which excluded any value referable to goodwill. Mr Makdessi claims that clauses 5.1 and 5.6 are unenforceable penalty clauses. The Court of Appeal, overturning the trial judge's conclusions, agreed with Mr Makdessi.
Judgment appealed

[2013] EWCA Civ 1539
[2012] EWCA 3582 Comm

[Amethyst]

Re: Motorist calls for regulation in private parking industry

This is really quite interesting ( which possibly means that I'm not) - discussing core terms, the law commission report on UTCA and UTCCR, penalties, the OFT v Abbey Judgment, Dunlop and so on.... like listening to the history of Beagles

The Lords do have concerns overturning the whole doctrine of penalties for the 'small' people.

Annoyingly I have to go out for a few hours and I think the Beavis Parking Eye case may be after lunch. Any idea how you record on the SCJ stream ?

[Amethyst]

Re: Motorist calls for regulation in private parking industry

Adjourned till 2pm xx

[Nibbler]

Re: Motorist calls for regulation in private parking industry

Annoyingly I have to go out for a few hours and I think the Beavis Parking Eye case may be after lunch. Any idea how you record on the SCJ stream ?

Said OTR that Beavis won't be until Thursday, but not sure if (a) accurate or (b) that is discussion/presentation of the case, or just when in the process Barry himself is due to be there.

From other cases it seems that morning and afternoon sessions are available to view separately sometime afterwards.

[Amethyst]

Re: Motorist calls for regulation in private parking industry

Cool, they are still on Dunlop at the moment. I think most people are just interested in the subject of private parking charges tbh, so probably not that interested in the Cavendish v Makdessi arguments - but if you are interested in penalty charges overall it is very good listening.


Cadogan Petroleum Holdings Ltd v Global Process Systems LLC [2013] 2 Lloyd’s Rep 26 


Cavendish Square Holdings BV v Makdessi [2013] 1 All ER (Comm) 787


Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] 1 AC 79


Henning Berg v Blackburn Rovers Football Club & Athletic Plc [2013] IRLR 537


Jobson v Jobson [1989] 1 WLR 1026


Murray v Leisureplay plc [2005] IRLR 946

[Amethyst]

Re: Motorist calls for regulation in private parking industry

Seems Beavis QC might be up after lunch today... possibly ... possibly not.... lol. (Though Barry has said he is attending tmw so might not be up till then - could get started today on arguments tho)

[Nibbler]

Re: Motorist calls for regulation in private parking industry

I probably haven't seen enough, but from the snippets I've looked in on it's seemed to me as if the dark side of the force is presently stronger and getting a better reception. :/

[Amethyst]

Re: Motorist calls for regulation in private parking industry

I thought the same Nibs, not sure if that's because Joanna Smith QC's sound quality was better though.... there were a few rumblings amongst the lords mid afternoon about a misleading bit of a judgment partially presented.... but otherwise they do seem to be more amenable to her. However a few cases I've watched live and via SCJ TV I've thought the judges were going one way and they didn't.... you just never can tell.

I'm not really sure how Beavis fits in... commercial justification, yes and penalties basic legal principles .. yes but it is a business to consumer non negotiated contract vs a negotiated commercial contract - the same judgment can't fit both unless they are, as it felt yesterday, just arguing to overturn Dunlop and the entire doctrine of penalties.

Can they give two judgments ? ie. can they rule the contract is fair in Cavendish and unfair in Beavis when both are said to be on the same principle ??????? Confused a bit I think.

[mystery1]

Re: Motorist calls for regulation in private parking industry

I thought the same Nibs, not sure if that's because Joanna Smith QC's sound quality was better though.... there were a few rumblings amongst the lords mid afternoon about a misleading bit of a judgment partially presented.... but otherwise they do seem to be more amenable to her. However a few cases I've watched live and via SCJ TV I've thought the judges were going one way and they didn't.... you just never can tell.

I'm not really sure how Beavis fits in... commercial justification, yes and penalties basic legal principles .. yes but it is a business to consumer non negotiated contract vs a negotiated commercial contract - the same judgment can't fit both unless they are, as it felt yesterday, just arguing to overturn Dunlop and the entire doctrine of penalties.

Can they give two judgments ? ie. can they rule the contract is fair in Cavendish and unfair in Beavis when both are said to be on the same principle ??????? Confused a bit I think.

Yes they can. Consumers, in law, are generally protected from predatory practices because many are easily misled or confused and generally able to be taken advantage of where as businesses are considered equal in that both are usually legally represented or having sought legal opinion.

CCA, Cuptr etc

M1

[Amethyst]

Re: Motorist calls for regulation in private parking industry

Yes that was bought up a few times, by the Lords mainly. The principles ( commerical neg vs consumer non neg) seem to differ so vastly I can't see how they fit together to be joined in this hearing.

[mystery1]

Re: Motorist calls for regulation in private parking industry

It really depends on any ruling on a penalty. If they rule strongly on the side that it's a penalty and thus unenforceable in a commercial situation (ie commercial justification is a steaming pile) then the distinction between the 2 cases is little. However if the ruling in Makdessi is that it's justified then the consumer (Beavis) can then utilise consumer protection arguments.

Lots of similar arguments and a few supplementary ones for Beavis in my opinion.

M1