Court of Appeal judgment in ParkingEye Limited -v- Beavis, POPLA - Statement by the Lead Adjudicator.

[Beesnees]

If it was a PPC, why did you pay anything at all? Did you not know that you were being 'problemized'?

[mch1991]

I find it interesting how everybody is going mad about the Beavis case in the court of appeal. After reading both the original county court case and the court of appeal judgment, surely the arguments from Beavis can only be used by companies who have met the same level of contractual relationship with the principal land owner as ParkingEye did (I.e. The making of payments to the BA Pension Fund to enforce parking regulations on their property, free car park, and a "fishing license" so to say to operate).

 

Surely these principles can not be relied upon in court in a situation by were the parking company is merely an agent for the principal, operating on a basis by were a percentage of the tickets are paid to the landowner, or by were the parking company is given the whole ticket amount and doesn't charge the landowner for their services.

 

Also, in a pay and display car park, failure to adhere to the terms and conditions merely represents a breach of contract (as opposed an acceptance to pay a sum of money to park for as long as you want), in which only the losses incurred can be reclaimed.

 

Furthermore, in a pay and display car park you have only caused a loss which is equivalent to the overstay time (paid for 2 hours parking, but stayed for 3 hours, you'd only owe the one hour of parking).

 

Surely under Beavis vs Parking Eye Ltd, it makes it acceptable to invoice let's say a debt collection agency when engaging in correspondence over an alleged debt in which you deny is owed, and you send the debt collection agency a letter with a fee schedule for both reading, writing correspondence and sending correspondence back (let's say a charge for your time and services), and they continue to engage in correspondence thus acceptance of your terms, meaning you can legally invoice them for your time.

[Beesnees]

by were

???

 

Do you mean 'whereby' by any chance?

[nigel_bytes]

From the http://parking-prankster.blogspot.co.uk/

Sunday, 3 May 2015

 

ParkingEye case stayed until Supreme Court decides on Beavis

 

 

At least one case has already been stayed until the Supreme Court has had a chance to decide on the Beavis case.

 

29 April 2015 Kingston upon Thames. ParkingEye v Mr B A7FC835N

 

Before the case, ParkingEye's representative from LPC Law asked the clerk to point out Mr B. He approached the defendant and said that ParkingEye v Beavis has gone in ParkingEye's favour. Mr B replied that he would ask for an adjournment until the Supreme Court ruling. The LPC Law representative laughed and said that was not going to happen as the court would not want to prolong the case. Mr B replied 'See you in court.'

 

As it happened the judge agreed with Mr B and the case is now stayed. The LPC Law representative was not pleased, but on the other hand he still trousered an estimated £200-£300 so that's not bad money for a few minutes work.

 

ParkingEye are known to be writing to the courts to get the stay lifted on all cases which were held over until the Beavis result. The Prankster suggests all defendants write back to the court, opposing the lifting of the stay, quoting the above case and asking for the stay to remain until the Supreme Court hearing has been held.

 

The Prankster does wonder at the sensibleness of ParkingEye's strategy. If they do succeed in getting the stay lifted only for it to be reapplied at a hearing, their eventual LPC Law costs for 3 hearings will be around £900. As the parking charge is a maximum of £100, they will out of pocket by £800 even if they finally win the case.

 

Currently the largest number of hearings a case has taken (that the Prankster is aware of) is 3, which means ParkingEye will be down by £1100 if they choose to go to a fourth hearing and win, or £1400 if it gets stayed again and goes to a fifth hearing.

[Mike_hawk]

ISPA don't appear to believe its quite as clear cut as Parkinglie would lead us to understand either...........

[f16]

Bollards that disappear into the ground and barriers require staff on site in case something goes wrong. ..................

That costs money !!!!!!!!!!!!

 

Anpr costs hardly anything

[Ell-enn]

A colleague who has appealed a POPLA decision has received a letter stating their appeal has been passed to an adjudicator and they will give a response after 11 June - are they expecting something to happen on 11 June I wonder ???

 

Short story is PE issued invoice back in July last year, colleague sent appeal letter - heard nothing. PE then send letter before court action in February this year - responded asking why POPLA code had not been provided back in July last year. PE claimed to have sent POPLA code in February this year (only 6 months after original appeal letter). Wrote to POLA with whole history and they replied dismissing the appeal as it was more than 28 days after rejection of appeal. Wrote back to POPLA stating the obvious more strongly i.e. 6 months passed before PE even tried to collect the money again. Now received this letter from POPLA saying passed to adjudicator etc, etc.

[Surfer01]

I can't see the courts being very pleased if every one contests a parking invoice. After all how much would it cost the PPC or yourself even if the decision goes against you? I am talking magistrates court and not supreme court etc.

[DragonFly1967]

The legal costs alone (seeing as County Court is cost limited) would bankrupt the PPC's within weeks if every single ticket was taken to court.

 

The likes of ParkingLie are limited to £50 'legal' costs on the Small Claims track, but I'd put money on it that a solicitor that turns up in court charges them a good deal more than that. Probably in the region of £200 per case, win or lose.

[Deadwood]

It's a strange business model that relies on issuing thousands of Court Summons for relatively small sums to yield an income. Where contested and won the judgement costs them money. Stranger still that the PPC's are relying on inertia "selling", many people are unable or unwilling to defend the claims.

 

Perhaps we should have Parking Eye et all declared Vexatious Litigants?

[DragonFly1967]

It's a strange business model that relies on issuing thousands of Court Summons for relatively small sums to yield an income. Where contested and won the judgement costs them money. Stranger still that the PPC's are relying on inertia "selling", many people are unable or unwilling to defend the claims.

 

Perhaps we should have Parking Eye et all declared Vexatious Litigants?

 

It's those that don't fight that fund the business. Whether that's be appealing via the PPC and POPLA (or IAS ) or those that don't bother to defend in court. Whilst the latter will cost the PPC money, it gives them a "win" that they can then shout from the rooftops (or on their website).

 

A properly worded POPLA appeal will beat a PPC 95% of the time, as will a properly worded and well researched defence in court. Of course, there are exceptions to the rule, but usually only when the PPC manage to blindside and pull the wool. And if you're in court and ready for their dirty & devious tricks, that alone can get a case thrown out.

[Mike_hawk]

A colleague who has appealed a POPLA decision has received a letter stating their appeal has been passed to an adjudicator and they will give a response after 11 June - are they expecting something to happen on 11 June I wonder ???

 

Short story is PE issued invoice back in July last year, colleague sent appeal letter - heard nothing. PE then send letter before court action in February this year - responded asking why POPLA code had not been provided back in July last year. PE claimed to have sent POPLA code in February this year (only 6 months after original appeal letter). Wrote to POLA with whole history and they replied dismissing the appeal as it was more than 28 days after rejection of appeal. Wrote back to POPLA stating the obvious more strongly i.e. 6 months passed before PE even tried to collect the money again. Now received this letter from POPLA saying passed to adjudicator etc, etc.

 

The lead adjudicator is awaiting the outcome of June's ISPA board meeting [he's attending] as are the usual suspects at the BPA, PATAS and the DVLA

 

I'm struggling to understand why that should delay a decision on issuing an out of time POPLA code but it seems to be sitting on the fence with a large proportion of appeals at the mo.

 

I would guess it's [iSPA et al] going to argue for some sort of middle ground for future appeals and the application of the Beavis case. To be frank, I would imagine there are a few land owners in possession who are now wondering how they eject trespassers. There's either a contractual remedy [pay the charge] or a remedy in tort [trespass] the 2 can't co exist under the PPC's current business model or the effect of trespass would apply at the moment the contract were breached...... it becomes a bit of a circular [chicken and egg] argument.

[coxyboi]

I feel little lost with this,

surely the land owner must be responsible? to any rent, sub rent, fines, carried out on there premises

parking charges were to compensate people for any losses caused,

councils charge fines as punishment so how can this be used as a reference of cost?

if the parking wouldn't result in any losses how can they justify any charge?

any charge should be reflective and invoice-able.?

 

any demand for monies should clearly list why and what for, ie beach or law act, breach of contract

as well as who you owe the money too - who they represent

as you may have privet agreement with the land owner?

 

how the figger has come to be, and shouldn't include court fees in advance

 

other concerns I have is if you can see the signs at all. how can you see them before you already parked, what are terms of opt out?

if you attend a car park for 5 min then leave return few hrs later and leave again how would that stand,

so could I charge the mail gas man or any one every time they come on my property if I put sign up,

what if im cant read, or unfit to make legal contracts,

 

i dont condone offencive parking in any way but few times i been courght out buy there terms or limmits not realising ie went to shops then when they closed bought some food off the same sight the car park empty so, thought id eat it in my car

this put me over the free time,

 

 

the fact is the charges are to fund and expand the proffit of the companys as a bussiness and not directly related to the land or companys on it

,

[ericsbrother]

PE asked for a stay on all appeals involving them as it is obvious they would lose all of the ones where GPEOL was used as an argument. I also think that the appeal court judges misdirected themselves but you see some stranger decisions than that and these then stay with us for possibly centuries. As PE have "won" they will now argue that all appeals based on GPEOL should fail (as they wont want to be waiting around for a couple of years to hear the outcome of the seusequent appeal) and that will be put to the committee an that date.

Anyone cought up in htis will be denied justice as the findings should be based on the law as it stood at the time of the alleged breach and not under a retrospective decision made using the new law.

[DragonFly1967]

the findings should be based on the law as it stood at the time of the alleged breach and not under a retrospective decision made using the new law.

 

Which I'd say should be included in any future appeals to POPLA and if necessary, the court. That is how the justice system works after all

[ericsbrother]

Yes, but many years ago the Tories put into place retrospective legislation for selling off the TSB and banning self-loading rifles so the precedent is there. Against the Bill of Rights, which allows parliament to make laws but hey, that doesnt matter now we all live in a civilised world.

[silverfox1961]

Looking around the web yesterday, I came upon this piece. Quite interesting read.

 

http://www.lexology.com/library/detail.aspx?g=29402754-aa84-41dc-8c13-37aa7539a8ee

[Mike_hawk]

Looking around the web yesterday, I came upon this piece. Quite interesting read.

 

http://www.lexology.com/library/detail.aspx?g=29402754-aa84-41dc-8c13-37aa7539a8ee

 

It does appear an oddity, you should try asking any party in possession of land how it now intends to apply for injunctive relief for trespass and its effect on double recovery where it has contracted to a PPC.........

[Mike_hawk]

Here's Aldi's response........ confusion reigns

 

Oh and, I don't actually have a ticket from it so I'd have to assume its a template response prepared by the operator

 

-----Original Message-----

From: XXXXXXXXXXX@aldi.co.uk

To: XXXXXXXXXXXXXX

Sent: XXXXXXXXXXX

Subject: Reference XXXXXX

 

Dear Mr XXXXXXXXXXX

 

Thank-you for your email dated xxxxxxx.

 

As a motorist making use of the car park at our XXXXXXXXX store, you entered into a contract with Parking Eye pursuant to which you agreed to leave the car-park within a period of 1 ½ hours. Your failure to do so constitutes a breach of contract in respect of which you agreed to pay a charge of £70 which as you have previously noted is reduced for prompt payment. The contractual agreement was coupled with a temporary licence to use the car park which includes an obligation to leave the car park within 1 ½ hours. By remaining on the car park beyond the stipulated period terminates the temporary licence and thereby constitutes an act of trespass.

 

I hope that this response is of assistance to you in understanding and clarifying your obligations as a motorist when accepting the 90 minutes free parking that is offered to customers using our xxxxxxxxxxxx store.

 

Please note that any further queries that you have in respect of this matter should be addressed to Parking Eye directly who will be able to assist you.

Yours sincerely

 

Jan Becher

Customer Service Supervisor

------------------------------------------------------------------------------------------------------------------

ALDI Stores Limited is a limited company registered in England and Wales with registration number 02321869 whose registered office is at Holly Lane, Atherstone, Warwickshire, CV9 2SQ.

This message is intended solely for the addressee and may contain confidential information. If you have received this email in error please delete it immediately and let us know by contacting the sender, do not use, copy or disclose the information contained in this message or in any attachment. For information about how we process data and monitor communications please see our Privacy Policy at http://www.aldi.co.uk

-------------------------------

[BazzaS]

That does seem confused.

In only one letter they have claimed it is:

a) a contract, which has then been breached

b) a temporary licence (with conditions), which then gets terminated and

c) trespass.

Which is the cause of action they intend to reply on / have PE reply on?.

 

The CoA (in Beavis) referred to the licence issue, but not trespass. Are Aldi claiming PE has locus standii for an action in trespass?. I suspect Aldi might, but not PE, unless PE are the land owners ....

 

 

Here's Aldi's response........ confusion reigns

 

Oh and, I don't actually have a ticket from it so I'd have to assume its a template response prepared by the operator

 

-----Original Message-----

From: XXXXXXXXXXX@aldi.co.uk

To: XXXXXXXXXXXXXX

Sent: XXXXXXXXXXX

Subject: Reference XXXXXX

 

Dear Mr XXXXXXXXXXX

 

Thank-you for your email dated xxxxxxx.

 

As a motorist making use of the car park at our XXXXXXXXX store, you entered into a contract with Parking Eye pursuant to which you agreed to leave the car-park within a period of 1 ½ hours. Your failure to do so constitutes a breach of contract in respect of which you agreed to pay a charge of £70 which as you have previously noted is reduced for prompt payment. The contractual agreement was coupled with a temporary licence to use the car park which includes an obligation to leave the car park within 1 ½ hours. By remaining on the car park beyond the stipulated period terminates the temporary licence and thereby constitutes an act of trespass.

 

I hope that this response is of assistance to you in understanding and clarifying your obligations as a motorist when accepting the 90 minutes free parking that is offered to customers using our xxxxxxxxxxxx store.

 

Please note that any further queries that you have in respect of this matter should be addressed to Parking Eye directly who will be able to assist you.

Yours sincerely

 

Jan Becher

Customer Service Supervisor

 

-------------------------------

[DragonFly1967]

According to the papers I've seen, Aldi aren't saying that their chosen PPC have the right (under contract) to do anything except issue parking tickets.

 

It's not what they have said, it's what they aren't saying that's important

[Mike_hawk]

That does seem confused.

In only one letter they have claimed it is:

a) a contract, which has then been breached

b) a temporary licence (with conditions), which then gets terminated and

c) trespass.

Which is the cause of action they intend to reply on / have PE reply on?.

 

The CoA (in Beavis) referred to the licence issue, but not trespass. Are Aldi claiming PE has locus standii for an action in trespass?. I suspect Aldi might, but not PE, unless PE are the land owners ....

 

........ and this is why [in my mind] the land owner may have dropped a b*****k

 

Double recovery is expressly denied within POFA, either the contractual remedy is available to the agent or whoever is in possession of the land claims in tort, Aldi seem to believe that the 2 can happily co-exist at the same moment in time.

[ericsbrother]

so the contract is for 90 mins and then it is trespass. So why does the parking contractor get a penny fro breach of contract when the contract ended the moment you overstayed?

As usual the supermarkets dont know what they have signed up to and dont give a stuff because it isnt csting them a penny (so they think)

In this current cost cutting war between supermarkets it could be a good move for on eof the big players to advertise that they have done away with shopper charges for being there by invitation.

Another move would be for the customer to scan their loyalty card and then this can be linked to the supermarket car park barrier. No shopping that day, pay to get out! However, they all want to be seen as the good guys who have nothing to do with the nasty car parking companies when they have everything to do with them.

[Mike_hawk]

The PPC could sue in tort if it were in possession, seems unlikely that it [Aldi in this instance] would contract to lease the facility.

 

What happens if a consumer chooses to accept the terms of overstaying? Does a big hole open up and swallow the car or can it be left on the land ad infinitum for a single charge with no interference from the party in possession?

 

This touches on Beavis as I don't believe the comparator used reflected the true intent or effect of the charge.

[Mike_hawk]

I think I've upset Aldi........... it declined to respond

 

Have pointed out that it invites customers to make use of its parking facilities and it seems reasonable those customers should be able to understand the terms attached....... doesn't seem to care