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what's the "consideration" in free private parking?
Sheffield Dave
post Sat, 5 Jan 2019 - 22:19
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What consideration is the driver deemed to have given in return for the offer of free parking by a PPC? I presume there must be one - or Beavis would have easily won - but it's not obvious to me what it is.

This is an "idle curiosity" post unrelated to any specific thread.
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post Sat, 5 Jan 2019 - 22:19
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southpaw82
post Sat, 5 Jan 2019 - 22:29
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The promise to follow the parking rules or pay the parking charge, I would imagine.


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Redivi
post Sat, 5 Jan 2019 - 23:39
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Wasn't it the promise to leave at the end of the permitted period ?
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southpaw82
post Sun, 6 Jan 2019 - 00:14
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QUOTE (Redivi @ Sat, 5 Jan 2019 - 23:39) *
Wasn't it the promise to leave at the end of the permitted period ?

Isn’t that one of the parking rules?


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nigelbb
post Sun, 6 Jan 2019 - 04:36
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In most circumstances the PPC is not offering parking as it is the supermarket or hotel or other land occupier who offers free parking.


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British Parking Association Ltd Code of Practice(Appendix C contains Schedule 4 of POFA 2012 ) & can be found here http://www.britishparking.co.uk/Code-of-Pr...ance-monitoring
DfT Guidance on Section 56 and Schedule 4 of POFA 2012 https://www.gov.uk/government/uploads/syste...ing-charges.pdf
Damning OFT advice on levels of parking charges that was ignored by the BPA Ltd Reference Request Number: IAT/FOIA/135010 – 12 October 2012
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andy_foster
post Sun, 6 Jan 2019 - 09:05
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At the small claims trial, it was argued that there was no consideration from the driver, or from the claimant.

IIRC HHJ Maloney decided that the consideration from the driver was the promise to leave at the end of the period of free parking - apparently the rule which states that an existing obligation cannot constitute good consideration no longer applies.

At appeal, it was agreed between the parties that we found only deal with the substantive penalty/unfair terms point as the lack of consideration (from the driver) point could easily be resolved by incorporating a 'peppercorn' charge in the 'offer'.


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emanresu
post Sun, 6 Jan 2019 - 09:17
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From the transcript of Day 3 as argued by the Beavis side itself.

QUOTE
MR DE WAAL: My Lord, we would say the promise to leave is adequate consideration.


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Where there is a claim - there is a counterclaim.
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Subject Access Requests to the DVLA?Find out who accessed your data and when. Try SubjectAccess.Requests@dvla.gsi.gov.uk. [Apologies if it does not work]
Double Dip / ANPR FaultsThe BPA Report on ANPR Double Dips is here. Ideal case for a counterclaim (see above).
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andy_foster
post Sun, 6 Jan 2019 - 12:13
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The contract/consideration point was not appealed. However, the Supreme Court was of the opinion that if it was not addressed then we would be back there 5 minutes later with another appeal.
AIUI, the Supreme Court's comments regarding consideration are obiter.


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nigelbb
post Mon, 7 Jan 2019 - 02:55
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This bending of contract law is necessary to maintain the fiction that motorists enter into a contract for free parking & thus confirm that PPCs are able to “fine” motorists to enforce their rules.


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British Parking Association Ltd Code of Practice(Appendix C contains Schedule 4 of POFA 2012 ) & can be found here http://www.britishparking.co.uk/Code-of-Pr...ance-monitoring
DfT Guidance on Section 56 and Schedule 4 of POFA 2012 https://www.gov.uk/government/uploads/syste...ing-charges.pdf
Damning OFT advice on levels of parking charges that was ignored by the BPA Ltd Reference Request Number: IAT/FOIA/135010 – 12 October 2012
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cp8759
post Mon, 7 Jan 2019 - 13:03
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QUOTE (nigelbb @ Mon, 7 Jan 2019 - 02:55) *
This bending of contract law is necessary to maintain the fiction that motorists enter into a contract for free parking & thus confirm that PPCs are able to “fine” motorists to enforce their rules.

On the flip side you could say that absent such bending on contract law, there would be no free parking as commuters would park in such places all day knowing that nothing can be done about it, which would result in such free spaces ceasing to be free.


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I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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nigelbb
post Mon, 7 Jan 2019 - 14:47
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QUOTE (cp8759 @ Mon, 7 Jan 2019 - 14:03) *
QUOTE (nigelbb @ Mon, 7 Jan 2019 - 02:55) *
This bending of contract law is necessary to maintain the fiction that motorists enter into a contract for free parking & thus confirm that PPCs are able to “fine” motorists to enforce their rules.

On the flip side you could say that absent such bending on contract law, there would be no free parking as commuters would park in such places all day knowing that nothing can be done about it, which would result in such free spaces ceasing to be free.

As Andy noted above it's simple enough to have a peppercorn amount as consideration then there is no need to contort contract law.

Most free parking at retail premises could be managed with a ticket system with entry & exit barriers. Insert a coin & take a ticket on entry (T&Cs printed on the back). Genuine customers get given an exit token at the checkout. Those without a token have to pay the published parking fee to exit. A system of entry & exit barriers would not be as cheap as a PPC providing a "free" service but it would be unequivocally lawful & fair & should just be regarded as part of the price of doing business.

This post has been edited by nigelbb: Mon, 7 Jan 2019 - 14:48


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British Parking Association Ltd Code of Practice(Appendix C contains Schedule 4 of POFA 2012 ) & can be found here http://www.britishparking.co.uk/Code-of-Pr...ance-monitoring
DfT Guidance on Section 56 and Schedule 4 of POFA 2012 https://www.gov.uk/government/uploads/syste...ing-charges.pdf
Damning OFT advice on levels of parking charges that was ignored by the BPA Ltd Reference Request Number: IAT/FOIA/135010 – 12 October 2012
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andy_foster
post Mon, 7 Jan 2019 - 14:47
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QUOTE (cp8759 @ Mon, 7 Jan 2019 - 13:03) *
On the flip side you could say that absent such bending on contract law, there would be no free parking as commuters would park in such places all day knowing that nothing can be done about it, which would result in such free spaces ceasing to be free.


They would be trespassing and could be sued by the legal occupier.


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Churchmouse
post Mon, 7 Jan 2019 - 15:28
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QUOTE (cp8759 @ Mon, 7 Jan 2019 - 13:03) *
QUOTE (nigelbb @ Mon, 7 Jan 2019 - 02:55) *
This bending of contract law is necessary to maintain the fiction that motorists enter into a contract for free parking & thus confirm that PPCs are able to “fine” motorists to enforce their rules.

On the flip side you could say that absent such bending on contract law, there would be no free parking as commuters would park in such places all day knowing that nothing can be done about it, which would result in such free spaces ceasing to be free.

Like in Scotland, where POFA does not apply. I hear they've had to resort to using ponies just to get around...

--Churchmouse
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cp8759
post Mon, 7 Jan 2019 - 17:06
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QUOTE (andy_foster @ Mon, 7 Jan 2019 - 14:47) *
QUOTE (cp8759 @ Mon, 7 Jan 2019 - 13:03) *
On the flip side you could say that absent such bending on contract law, there would be no free parking as commuters would park in such places all day knowing that nothing can be done about it, which would result in such free spaces ceasing to be free.


They would be trespassing and could be sued by the legal occupier.

I suppose if it were a shopping mall or similar and the occupier could prove a fall in footfall / income, the owner could sue for the loss of income. If all the parking spaces are taken by commuters, that may well work. But if it's the odd person now and then, proving a loss might be difficult. It would also be uneconomic to sue a large number of commuters for relatively small sums, knowing that many may well not pay and it's not going to be cost effective to send bailiffs to the addresses of dozens if not hundreds of defendants.

So yes, in theory you just sue the trespasser and the court awards you your losses. In practice this isn't a viable remedy.


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I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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andy_foster
post Mon, 7 Jan 2019 - 17:33
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The point is that somewhat limited remedy under trespass has been considered adequate for centuries. If it is now inadequate, the solution in a democratic society is for Parliament to introduce adequate measures, with appropriate checks and balances.


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Andy

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cp8759
post Mon, 7 Jan 2019 - 17:39
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QUOTE (andy_foster @ Mon, 7 Jan 2019 - 17:33) *
The point is that somewhat limited remedy under trespass has been considered adequate for centuries. If it is now inadequate, the solution in a democratic society is for Parliament to introduce adequate measures, with appropriate checks and balances.

Isn't keeper liability under POFA exactly that? Parliament must have considered that it would have applied to such "free" parking spaces and decided that this was an adequate remedy for land owners / occupiers.

This post has been edited by cp8759: Mon, 7 Jan 2019 - 17:40


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I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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andy_foster
post Mon, 7 Jan 2019 - 18:02
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Keeper liability only confers upon the keeper debts which are owed by the driver. The guidance notes and the BPA CoP both stated that such charges were limited to a genuine pre-estimate of loss.


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Andy

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cp8759
post Mon, 7 Jan 2019 - 18:18
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QUOTE (andy_foster @ Mon, 7 Jan 2019 - 18:02) *
Keeper liability only confers upon the keeper debts which are owed by the driver. The guidance notes and the BPA CoP both stated that such charges were limited to a genuine pre-estimate of loss.

And in the event of a free parking space, what would the loss be?


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I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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andy_foster
post Mon, 7 Jan 2019 - 18:23
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On the face of it, nothing, but if the free parking space was to enable footfall, an estimate of the loss of profit due to loss of footfall - if there was likely to be a loss of footfall.

N.B. pre-estimate of loss would apply to liquidated damages under contract law. For trespass, the sum would presumably be whatever the court would determine.


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Andy

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cp8759
post Mon, 7 Jan 2019 - 18:55
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QUOTE (andy_foster @ Mon, 7 Jan 2019 - 18:23) *
On the face of it, nothing, but if the free parking space was to enable footfall, an estimate of the loss of profit due to loss of footfall - if there was likely to be a loss of footfall.

While engaging in the theoretical legalities of this scenario is interesting, you cannot seriously be suggesting that, in practice, this is a viable course of action?

QUOTE (andy_foster @ Mon, 7 Jan 2019 - 18:23) *
N.B. pre-estimate of loss would apply to liquidated damages under contract law. For trespass, the sum would presumably be whatever the court would determine.

Presumably you'd still make a claim for a given amount even if the cause of action arose under trespass, no?


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I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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