"Harold Davis" wrote in message
...
"Norman Wells" wrote in
:
"Harold Davis" wrote in
message ...
Fredxxx wrote in :
I think Norman must own a few car parks.
The last sign I saw said in large print "Conditions of parking". I
didn't read the rest as they were up high and I literally couldn't
read it. I was quickly scanning the notice for a duration and charge
and couldn't see any hint of either. I suspect Norm would still say
I agreed to the unreadable contract.
FWIW, the signs in the carpark outside a branch of Staples I recently
visited describe what is obviously a penalty charge. They say
something along the lines of "you agree that if you breach any of
these rules you will pay us £100". That is a penalty. There are no
two ways about it.
So what? Penalty clauses in contracts are perfectly legal, and
enforceable.
No they're not. You're wrong about that.
Liquidated damages clauses may, however, be enforceable, provided the
payment stipulated is not "extravagant and unconscionable".
And of course sometimes there is a grey area, and something that looks like
a penalty may be held to be a liquidated damages clause.
The first thing the court has to decide in such cases is whether the
stipulated payment is a penalty, in the sense that excludes its being a
payment for liquidated damages.
If it is, it's unenforceable, and that's the end of the case.
If it's a liquidated damages clause, it may be enforceable.
Nope, since at least the Beavis decisions, you're well behind the times:
"The Judge at Cambridge County Court held that the charge had the characteristics of
a penalty in the sense in which that expression is conventionally used, but one that
was commercially justifiable because it was neither improper in its purpose nor
manifestly excessive in its amount."
As regards the Court of Appeal:
"The Judge did not consider the clause to be an unenforceable penalty and stated
that the modern approach to deciding whether any particular clause is unenforceable
as a penalty requires an examination of its role from a number of different
perspectives, including proportionality to actual loss, deterrence and commercial
justification. In his view, although the principal object of the charge was to deter
overstaying, it was neither improper in its purpose nor manifestly excessive in
amount, having regard to the level of charges imposed by local authorities and
others for overstaying in public car parks. It was in his view commercially
justifiable, both from the point of view of the Pension Fund as the landowner and
Parking Eye and from the point of view of motorists at large."
http://www.trethowans.com/site/libra...parking-charge
Then the issue is whether the payment would be extravagant or
unconscionable. "Unconscionable" is of course an equity term.
Again, you're out of date.
"The Judge held that the term imposing the parking charge in this case was not
unfair within the meaning of the Regulations, because the size of the charge was
similar to those levied by local authorities and because very clear notice had been
given to consumers when they entered the car park."
And in a carpark outside a nearby hotel, the title of the text on the
signs is "WARNING". It seems reasonable for drivers to assume that
the document is not a contract, but - well, a warning, perhaps to do
with thieves or something. A contract isn't a warning. A contract is
an agreement between two parties.
Breach of the parking conditions is breach of the contract you have
agreed to enter into by parking there. It's a warning not to break
the rules, otherwise there will be a legally enforceable extra charge.
If the clause is just "in terrorem", to scare a party into meeting their
obligations, it's not enforceable.
You've posted a large number of articles to this thread, and you still
don't get one of the most basic points.
Have a look up about "extravagant and unconscionable".
Here's the Appeal Court judgment in the Beavis case:
http://www.bailii.org/ew/cases/EWCA/Civ/2015/402.html
If Mr Beavis had left, either the space would have remained empty or it
would have been taken by another driver for free. In either case, there
would have been no loss to the car park management company (Parking Eye) in
respect of payments received from drivers.
However, if too many cars remained parked there for a long time, the owner
of the car park (the British Airways Pension Fund) might get narky and up
Parking Eye's rent or give the management contract to someone else. Why
might they? Presumably the idea is that that would be because Lidl can
afford to pay the pension fund a higher rent the smaller the number of cars
that stay in their carpark for a long time; therefore more dosh for the
pension fund. (I'm guessing, because I don't know that the pension fund was
the landlord for the Lidl store as well as for the carpark.) Yes, this is
quite tenuous, which presumably is one of the reasons the Supreme Court
granted leave to appeal.
None of that helps you in the slightest. Tthe Court of Appeal agreed unanimously
with the County Court that Beavis didn't have a leg to stand on.
Do you get it, Norman? It's not just a matter of foot-stamping and saying
that landowners can lay down the rules so long as they stick up a notice.
Pretty much it is, actually. That's why they've won at every stage without a murmur
of dissent.
Car park management of this kind has a strong whiff of the protection
racket about it.
Don't be absurd.