The Beavis Vs ParkingEye ruling had a significant impact on the strategy for fighting private parking tickets. Previously, one could argue the amount of charge was disproportionate to the loss caused by the parking breach, and so the ticket was not enforceable. Unfortunately in the Beavis case, the Supreme Court found that whilst it did not represent a loss to ParkingEye, the amount was not extravagent or unconscionable, and so could be enforced. Following this ruling, the strategy for fighting in the post-Beavis world needs to be changed.
In common law, as used in the UK, law is developed by courts and judges over time. Decisions usually rely on precedents from persuasive historical cases. Where a case covers new ground, case law may be created which later cases will rely on; as has happened in the Beavis case. In a common law system both claimants and defendants cite the precedent cases explaining why they do or do not apply to support their argument.
Post-Beavis, it will be likely used by parking companies as a precedent to support their claim, either in an appeal response, or when making a court claim. As a defendent one would have to show how Beavis does not apply.
Differentiating from Beavis
The following are a not-exhaustive list of arguments that could differentiate a case from Beavis. Clearly these may or may not be applicable to the case in question.
Keeper liability not established – The Protection of Freedoms Act 2012 brought about the concept of keeper liability – i.e. even if the keeper of the vehicle wasn’t driving at the time, they can be held liable for the parking charge if certain conditions are met. The conditions for establishing liability include details of what correspondence should contain, when they should be sent, and what processes must be followed. If these are not demonstrably met, then keeper liability cannot be established.
Inadequate signage – Parking contracts are communicated via signage. The question is whether the signage is considered adequate to establish a contract. Both industry codes of practice (BPA, IPC) describe rules for signage which they should be compared against – although not meeting the code of practice does not necessarily invalidate a claim. Examples here could be where signage was not lit at night, or where there was no signage anywhere near where the car was parked or route into the car park. Clearly evidence would be needed to support this claim.
No breach of contract – In this case one could argue that there was in fact no breach. This could either be based on clear demonstrable facts (e.g. it was two visits to the car park, not one long visit). Another example might be based on a literal interpretation of the contract (the sign) which sometimes do not say what the parking company meant.
Frustration of contract – This is where there is an event outside the control of the defendant which could not be reasonably foreseen. This could be, for example, where the car broke down, or where the driver was taken ill, and as a result they could not exit the car park within the limit.
Permission was granted – In the case where a car was parked in a permit car park with permission of the principal (e.g. the landowner) then it could be argued that this overrides the contract with the parking company. An example of this might be where as a leaseholder your deeds give you rights over your parking space, so you have a right to peaceful enjoyment of that space irrespective of any latter arrangement with a parking company.
No authority – Parking companies typically don’t own the land they operate on. As such, they can only contract with motorists to park on the land if they have the right to offer it. If they do not, then the contract with the driver can’t be enforced. Examples here are in the leasehold parking space example – if the leaseholder leases the space, then the management company does not have rights over it to contract in a parking company. Other examples are where the contract between the parking company and the landowner are out of date, or that the wrong parties are named.
Pay car parks – In the case of ParkingEye Vs Cargius it was held that the Beavis case did not apply since parking was paid for rather than free for a limited period. The judge distinguishes it by reasoning that in Beavis the charge was justifable as it was their only income, whereas in a paid car park, only the hourly charge is being lost by overstaying (e.g. £2); anything above that is clearly a penalty.
No legitimate interest in enforcing a charge – One of the key points from the Beavis case was that the charge was necessary to deter overstaying; if they did not issue penalties then the car park would be unfairly used. The flip side of this is that if there were no legitimate interest, then the charge would be an unenforceable penalty…
The following are examples of charges that are arguably therefore penalties:
- Parking in a space you own but forgetting to display your permit
- Entering an incorrect VRN into a terminal
- Underpaying in a car park where by paying the vehicle is fully entitled to be there
- Parking outside a bay when no other cars are stopped from parking
It is recommended that when writing an appeal or a defence, advice is sought to confirm the arguments are valid. The online forums are a great source of assistance.