Do you reside in Halton and you have all three letters off Highview? The PCN itself, the reminder and the third letter wanting £115 which threatens your credit rating if they need to refer to their solicitor. Deana at Halton Trading Standards / Consumer Protection wants to see these 3 letters. Please message if you have them.

Robert Hough has been a Director of Peel Holdings since 1986 and was its Deputy Chairman from 1989 to 2009 and is now a non-executive Director of Peel Holdings.
Peel owns JLA. 

Mr Hough graduated with first class honours in law from Bristol University and was admitted as a solicitor in 1970. 

Peel's reason for living is real estate, property management, property development etc so you would consider that as it needs to understand the planning processes it has within its 5000 odd very qualified employees many who are well versed in planning law. A Solicitor should have some understanding of this area of the law...or know someone who does! 

Robert Hough, formerly chairman of the North West Development Agency, was chair of the Liverpool City Region Local Enterprise Partnership (maybe he still is) and once sat on Liverpool Mayor, Joe Anderson's 'inner' Mayoral Development Corporation board which has been described as "the effective decision making structure to develop the Liverpool agenda". 

A n independent report from ExUrbe in 2013 noted that "Peel has a presence in every organisation and on every board of note across the city of Liverpool", adding "The power and influence of the conglomerate across the North West generally - and in the Liverpool City Region in particular – has grown remarkably (and disproportionately) over the past few years. It now plays a quasi-political role in the sub-region, so entrenched has its role become in local governance". Odd then perhaps that there may be a failure of governance at JLA 

Funny that illegal signage has been on display at JLA since 2012 and no one at Liverpool City Council has done anything about it. Is the fact that Peel was represented on the City Mayor's development corporation board of relevance or purely coincidental? What excuse can Peel have for its lack of planning law knowledge? What excuse can Liverpool City Planners have especially if they are involved in regular planning meetings with Peel representatives over the development of the City? 

I see that on the JLA website it states "Councillor Warren Bradley, Leader of Liverpool Council and Deputy Chairman of Liverpool Culture Company, said: ”The refurbishment of the airport information desk is a vital part of a city-wide operation to provide a first-class welcome worthy of a premier European city. The airport is a key gateway and it is great to see it has an information desk which we are proud to operate. " Didn't he see the sign at the Airport then? 

Funny old world 

Bob

4. There is good reason for contractually enforcing a simple fixed payment
parking charge that has the dual function of deterring overstaying at a city
centre car park, and funding the management of free car parking for
consumers.

5. There is a public interest in car parking space on private land being provided
and properly managed. Consumers benefit from free car parking in busy city
centre areas while they shop. Spaces are more readily available to shoppers
because car parks are not congested by other motorists’ misuse. Parking
bays can be effectively reserved for disabled consumers that genuinely need
to park their cars close to the shops they are visiting.

6. The effective management of car parking space is also important to the
commercial interests of landowners and the retail businesses that the car
park serves. It is in their commercial interest that there is a reasonable
turnover of potential customers. A car park that is full of cars driven by
commuters, or other long stay motorists, may result in their customers being
unable to find a space and so shopping elsewhere.

7. The amount charged for overstaying should not be set “much higher than is
necessary to achieve” the objective of deterring breach. 2 Setting a
reasonable amount will depend upon all of the relevant circumstances.
There will inevitably be a tipping point after which it can be said that the
charge exceeds what is reasonably necessary to deter breach. However, the
level of the charge in this case was broadly comparable with those that
Parliament considers reasonable to deter motorists from parking badly or
overstaying.3 The Courts below were correct to conclude that a charge set at
a similar level was reasonably necessary to deter the same conduct in a
private city centre car park.

8 If parking charges were capped at the market hourly rate for parking in the
area, they would simply not deter. In a city centre car park near a commuter
railway station, charging the market rate would in fact encourage overstaying.
The commercial interests of the landowners and retailers in having a
reasonable turnover of customers would be frustrated.

Consumers are now well protected in this area. In enacting the Protection of
Freedoms Act 2012 Parliament encouraged civil car parking enforcement,
but balanced that by creating a regulatory framework that protects
consumers. There are statutory obligations in relation to parking charge
notices and consumer information. Operators are required to be accredited
members of a Government approved trade association. They must observe
codes of conduct on charge levels, discounts, procedure, signage and the
appropriate pursuit of charges. The operators are required to fund an
independent appeals service that is free for all affected motorists to use.

11 (d) If the word ‘deter’ carries its ordinary meaning of discourage ordissuade, it is likely that the term that was upheld in Dunlop wasdesigned predominantly to deter breach. The clause applied thesame fixed amount for tampering with trademarks, selling tosuspended agents and exhibiting or exporting tyres without consent.Dunlop intended to deter, discourage or dissuade these practices. Itis very difficult to see how the clause could, in any meaningful sense,be regarded as attempt to quantify recoverable damages inunforeseeable circumstances. Indeed, the House of Lords upheldthe term because losses were virtually unquantifiable.

12 The trial judge found factually that the term was expressed fully, clearly,
legibly, openly and given appropriate prominence. No advantage was taken
of any weakness in the consumer’s position. This was a simple and familiar
provision. Notices had been given in accordance with the legislation. In
balancing rights and obligations, the consumer received the relatively
valuable privilege of two hours free parking in the city centre.

13 In Aziz v Caixa d’Estalvis de Catalunya13 the CJEU adopted the reasoning
of the Advocate General that a term that was “intended to encourage
observance of the agreement” should be regarded as fair if it was not much
higher than was necessary to achieve that aim. It is submitted that the
scheme of the 2012 Act envisages that private parking charges will operate
as a deterrent. The £85 sum is proportionate to the aim to be achieved.

5.3 . It does not create any new form of liability for parking charges or provide a route
to claim parking charges which were not lawfully due in the first place

3.4 Before the Protection of Freedoms Act a private landholder could only
seek liability against a vehicle driver to recover unpaid parking charges,
and therefore needed to be able to identify who was the driver of the
vehicle that incurred the parking charge. A landholder could make a
request to DVLA for details of the registered keeper but there was no
requirement for the registered keeper either to say who was driving the
vehicle or to accept liability him or herself. This allowed both the vehicle
driver and the registered keeper to avoid liability and meant that
landholders, on certain occasions, found it difficult to manage parking by
ticketing alone.

 3.5 Schedule 4 of the Protection of Freedoms Act addresses this situation. It allows, providing certain conditions are met, the landholder to pursue the registered keeper of a vehicle for unpaid parking charges if the registered keeper refuses or is unable to identify the driver at the time the parking charge was incurred. This is often referred to as “keeper liability”.

16 Charges for breaking a parking contract must be reasonable and a genuine preestimate of loss. This means charges must compensate the landholder only for
the loss they are likely to suffer because the parking contract has been broken.
For example, to cover the unpaid charges and the administrative costs
associated with issuing the ticket to recover the charges. Charges may not be
set at higher levels than necessary to recover business losses and the intention
should not be to penalise the driver.

15 The procedures introduced by the 2012 Act broadly mirror those followed by
local authority enforcement of parking tickets. Schedule 4 of the 2012 Act
prescribes the procedural conditions that must be satisfied in order to claim
parking charges from the registered keeper of a motor vehicle. Those
conditions include requirements for the content of tickets and notices,
including appropriate time periods, discounts for early payment and the
availability of an internal and independent appeals process.

16 Private car parking operators such as the Respondent can only function by accessing information held by the Driver and Vehicle Licensing Agency (‘DVLA’). It is Government policy that the DVLA should only disclose information18 that may lead to the identification of the registered keeper to a member of an Accredited Trade Association (‘ATA’).

18 The British Parking Association (‘BPA’) is an industry membership body
established in 1968 that is approved by the DVLA. It runs an accredited
Approved Operator Scheme (‘AOS’), which includes standards for signage,
ticket or notice wording, charge levels and the conduct of enforcement.22
The procedures adopted by the Respondent for the enforcement of this
parking charge conform with the AOS code of practice.

19 The regulatory scheme under the 2012 Act also requires the private parking
industry to fund an independent appeals service that is free for a consumer
to use. The Parking on Private Land Appeals (‘POPLA’) is an “independent
adjudication or arbitration” arrangement 23 that is similar to the parking
appeals system operated by local authorities. It was established on 1st
October 2012 by the BPA at the request of the Government and is wholly
funded by the private parking industry.

21 The Court of Appeal found that the provisions in the 2012 Act:
“strongly support the conclusion that Parliament considered it to be in
the public interest that parking charges of the kind now under
consideration should be recoverable, provided that they had been
brought clearly to the attention of the motorist at the time he made use
of the car park.” 

22 The trial judge found that this framework supported a policy of enforcing
tickets of this kind. He stated that the 2012 Act:
“set out to regulate abuses by privately-run car parks. In particular, it
prohibited clamping and its associated charges. But so far as enforcing
payment of private parking charges was concerned, it positively
encouraged it by conferring on the private operators similar rights and
powers in respect of registered keepers to those previously enjoyed by
the local authorities. It laid down detailed provisions in that respect; but
although charges similar to those in issue here were common before
the Act was passed, it made no attempt to prohibit or regulate them, as
it well could have done, if this was thought to constitute an abuse like
clamping.”

Contracts should not be let on any basis that incentivises additional charges, eg ‘income from parking charge notices only’.

32 The Appellant and the Intervener both pose the question of where the
line might be drawn if the touchstone of a penalty is no longer whether the
sum payable constitutes a genuine pre-estimate of loss. The Respondent’s
answer is this: where a contractual term has a legitimate purpose in
deterring breach, the sum payable should be proportionate41 to what is
required to achieve that purpose. This approach also has the advantage that,
in certain circumstances it may be that no sum over and above likely
contractual damages would be proportionate. 

34 Those cases are analogous to the present case. The damage sustained by
the Respondent in the case of a single motorist, such as the Appellant,
overstaying the permitted 2 hours free parking would be difficult to quantify,
as at the time of the making of the contract. However, if the Respondent
continuously failed to limit free parking to 2 hours, its contract with the
landowner is likely to be terminated on the grounds that it had committed a
material breach of the contract of service. Obviously, it would not occur on
the first occasion. But eventually, when the landowner was faced with a
permanently full car park, it (the landowner) would be likely to terminate the
contract.

38(c) Without the charge there is likely to be congestion in the car park.

38(d) Such charges are commonplace and this particular charge was not
exorbitant.

39 Deterrent parking charges have been encouraged by Parliament within the
scheme of the 2012 Act as being an acceptable alternative deterrent to
clamping. Recital 13 to the Directive is therefore likely to be relevant. It
provides that “statutory or regulatory provisions of the Member States which directly or indirectly determine the terms of consumer contracts are
presumed not to contain unfair terms…”

40 It is submitted that the 2012 Act is a statutory provision falling within recital
13. The Respondent levied the charges in good faith in light of the provisions
of the 2012 Act such that the contract term imposing the charges should be
presumed to be fair.

41 Both the Appellant and the Intervener rely upon the Respondent’s business
model as showing bad faith because it is argued that the Respondent may
profit from a motorist’s unintended overstay. The trial judge carefully
considered the way that the Respondent operated the car park. There is no
suggestion that it was operated unfairly, deceptively, oppressively or in bad
faith. This is not a case where consumers were being cheated by bad
practice.

42 The Court of Appeal held that the Respondent’s business model was notrelevant.46 In our submission that was the correct conclusion when there wasthe manifest absence of bad practice or faith. If the business model changedso that the Respondent passed to the landowner the parking charges andreceived a fee for its management of the car park, there would be nodifference to the motorist as regards the payment of the parking charge.

44 The important practical benefits to the consumer include:
(a) two hours free parking in the town centre;
(b) close proximity to the stores he wishes to visit;
(c) avoiding the inconvenience of having to drive round the town centre
looking for a parking meter or another car park; and
(d) because of the Respondent’s car park management regime, a
greater probability that he will immediately find a vacant parking
space in that car park

46 Those words assist the Respondent. In providing car parking facilities, the
Respondent is supplying a service “of a public nature”. A court considering
the term ought to take account not just of the interests of the Appellant and
Respondent, but also of the collective interest of all potential users. The
reality is that the absence of this term would be to the detriment of shoppers,
retailers, the landowner and the Respondent since it is more likely that there would be a lack of parking spaces because of overstaying or of nonshoppers
using the car park.

50 The Court in Aziz suggested that the relevant assessment should be
“whether the seller or supplier, dealing fairly and equitably with the consumer,
could reasonably assume that the consumer would have agreed to such a term in the individual contract negotiations.” It was the Appellant’s evidence
that he had used the car park on previous occasions. In all the
circumstances the Respondent could reasonably have assumed that the
Appellant would have agreed to the £85 overstaying charge in individual
contract negotiations.

53 That reasoning was accepted by the CJEU, which stated that the relevant
question is whether the term is appropriate for securing the attainment of its
objectives and does “not go beyond what is necessary to achieve them

54 Parliament has provided within national law57 that parking charges may
constitute a legitimate deterrent. In considering the fairness of the term, the
question should be whether the sum of £85 (reducing to £50 for early
payment) “is higher than is necessary” to prevent overstaying.

57 An £85 charge is enough to ensure that the majority of motorists are careful
to leave within the allotted two hours’ period and is also within the range of
equivalent parking fines levied by local authorities.

21. The Upper Tribunal's reasoning on this part of the case was that since VCS did not have the right under its contract with the car park owner to grant a licence to park, it could not have contracted with the motorist to grant such a right. In my judgment there is a serious flaw in this reasoning.

22. The flaw in the reasoning is that it confuses the making of a contract with the power to perform it. There is no legal impediment to my contracting to sell you Buckingham Palace. If (inevitably) I fail to honour my contract then I can be sued for damages

Charges for breaking a parking contract must be reasonable and a genuine preestimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver.

19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that
you suffer. We would not expect this amount to be more than £100. If the charge is more than this, operators must be able to justify the amount in advance.

The amount charged represents an average loss to Rheidol Retail Park

This is to bring to your notice a very unpleasant experience I had at change gate car park situated opposite the Edinburgh woolen mills store in Howarth, West yorkshire on 21 July 2015.

I am a visitor from Canada on trip to the Yorkshire Dales with my wife.

We entered the above mentioned car park to shop at the store across the street on 21 July 2015. I had to make a phone call so my wife went ahead and I stayed back in the car to make my phone call. I finished my call in 4 minutes and came out to buy a ticket from the pay machine. A man in a high visibility jacket was standing next to the car and told me that he is giving me a parking charge of 100 pounds as I did not have a pay and display ticket!I was shocked to hear that and explained the situation to him.He was not ready to listen and continued writing on his pad and taking a photo of my car!

He handed me the notice and said that if I paid the charge straight away to him it would be reduced from the 100 pounds to 60 pounds. I explained to him that this is unfair and outrageous but he kept on saying that I should pay the 60 pounds and then write to yourself for a refund.  Otherwise the car rental company (my car is a rental) will get the notice and I will have to pay the entire amount.I proceeded to buy a parking ticket from the machine and joined my wife in the store.Me and my wife were very upset by these events and decided to pay upfront as we were quite shaken by this episode.

In fact our nice vacation time in England has been left with an unpleasant memory.I think this is unfair and I would have not written to you if there was any legitimate ground for issuing me a charge.

I am afraid this kind of practice will leave a bad taste for England internationally especially tourists.I have scanned all the paperwork and attached it to this mail.I would appreciate if you can refund my money to the address below:

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

there is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver

it is certainly a basic principle of a fair appeals service that each party is given the opportunity to see the other party’s case and to comment upon it.

Many thousands of drivers who have been subject to a parking charge of 100 times or more the normal hourly rate will be displeased to read that a plucky appeal against a massive 'charge' for overstaying in a free car park has failed.
The motorist who brought the case was charged £85 for overstaying in a car park and brought a small claims court action against the company that levied the charge.
The motorist's claim was based on the argument that the charge was so disproportionate as to be properly regarded as a penalty. Penalty clauses are not enforceable in British law.
However, the Court of Appeal ruled that the charge had been set at a level to deter overstaying and it was not 'grossly disproportionate'. These factors meant it could not be regarded as a penalty.
This decision will come as a disappointment to the thousands of motorists who have been subject to charges on this sort of scale – often as a result of short overstays or ignorance that parking charges were payable.
Unless the case is successfully appealed to the Supreme Court (which seems unlikely), the likelihood that such a charge can be successfully resisted is clearly diminished.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

Page 101 to 131  

Submissions by MR KIRK

MR KIRK: My Lord, can I start by, forgive me, dealing with the structural questions which is whether this is effectively a contractual term or a matter of breach. I would prefer to deal with that in writing.
LORD NEUBERGER: Very well.

MR KIRK: And deal with the other questions that arise as a consequence, but I accept that, if it is rightly construed as a term of the contract, that the penalties doctrine has no application and it is likely, subject to the question of intelligibility to fall outside the exception for the adequacy of price in relation to the regulations. Can I start with our position in relation to the doctrine of penalties. We don't ask the court to overrule the penalties doctrine and we obviously approach it on the basis of the more flexible approach reflected in the Court of Appeal's judgment. And in relation to that, it is important to consider the two words "Extravagant" and "Unconscionable" words that are perhaps not in modern usage. It has been expressed that this is not really the language of 21st century English. The question, the first question to address is how were they used in the main case that we have considered from which they came? So, that is Clydebank. If I could ask your Lordships to turn in the main authorities bundle, A, to divider 5, which is the Clydebank case, 851.
LORD NEUBERGER: You will appreciate that we have looked at this more than once in the past few days.
MR KIRK: I appreciate and the purpose is not really to deal with any detail, it is simply to provide the platform upon which I am going to give --
LORD NEUBERGER: Unconscionable and extravagant, 851, yes.
MR KIRK: At 851 we are dealing with the Lord Chancellor's speech. He uses "Unconscionable and extravagant" in the middle paragraph, "Extravagant or unconscionable" in the next paragraph, "Unconscionable or not" in the paragraph after that. And it is clear, if we turn forward to page 858, in the speech of Lord Davey and I will read this passage: "But of course the question whether it is exorbitant or unconscionable is to be considered with reference to the point of time at which the stipulation is made between the parties. That is to say you are to consider whether it is extravagant, exorbitant or unconscionable." I think at some point he goes on to say it doesn't matter which word.
LORD CARNWATH: The following words: "Whatever word you would like to select."
MR KIRK: I am obliged. The question arises, whether you are going to assess whether a term meets a particular test. What does that test really mean? The word extravagant in ordinary English usage, we say, means something akin to far more than is necessary. The word exorbitant, manifestly or grossly excessive mean effectively the same thing. That much is not so difficult to determine from the case law. The question really is what is meant by unconscionable? Not a modern word. How do we address the meaning of unconscionable in the 21st century? So, I would ask that your Lordships turn back to the First National Bank case and to the very famous test of Lord Bingham. Which is found at 7127 in bundle H. It is only where Lord Bingham looks back at good faith, and it is the passage in within the highlighted text that reads: "Good faith in this context is not an artificial or technical concept, nor since Lord Mansfield was its champion is it a concept wholly unfamiliar to British lawyers. It looks to good standards of commercial mortality and practice." We say that, effectively, that is what is meant here. We say that if you combine extravagant and unconscionable, you are really looking at one concept. That is effectively this question: was the amount so large that you would not be acting in good faith to make somebody pay it? In relation to that question, the test is really one which you have to consider all of the relevant circumstances. There are two approaches that have developed or there is one approach that has developed since the Dunlop case. The rigid mechanical approach as it was referred to by Professor Baron and that approach seemed to have, seemed to predominant to sues that word again, up until the commercial justification cases. Our submission is that in relation to the origin of the doctrine, you need to look at when the amount is extravagant and unconscionable and in relation to that to consider all of the relevant circumstances, not simply the question of whether the stipulated amount is greater than the recoverable loss in any particular.

The value question here, the battle ground here, in relation to this particular contract is whether, when you have a situation where there is no recoverable loss, there can ever be, the stipulated amount that is not a penalty. So, the question that arises at the forefront of all of this is whether there can ever be a situation where other interests, non-financial interests, or whether financial interests that are indirect, are sufficient to allow the clause to stand. 

MR KIRK: There are four potential interests here: the first is the company, the respondent's companies' interest in keeping their contract.

LORD NEUBERGER: Yes.
MR KIRK: The second is their reputation, if they allow people to abuse the car park, et cetera.

LORD NEUBERGER: Yes.
MR KIRK: Then there are two which are more remote. There is the potential landowner's interest, despite the fact that we accept that he is not privy to the contract between the parking company and the consumer.

And the fourth, which is, I suppose, the most remote is the overarching interest of people who use the car park, who are obviously third parties, the public, the public interest. 

The question that arises in this case is whether those interests are justification for the imposition of a stipulated amount that is not extravagant or unconscionable.

LORD NEUBERGER: Is that a convenient moment?
MR KIRK: It is my Lord.
LORD NEUBERGER: Thank you very much. We will resume again at 2.00 pm. The court is now adjourned.

MR KIRK: My Lords, can I start now by looking at one of the factors that we say is important under both your consideration of the penalties doctrine and also in relation to unfair terms, that is the policy behind the legislation. It has been a matter of discussion earlier. I am now looking back at the Protection of Freedoms Act which is in consumer authorities bundle J, divider 4, and 7309 in the electronic bundle.
LORD NEUBERGER: What page, I beg your pardon?
MR KIRK: 7309.
LORD NEUBERGER: Thank you very much. I have it, yes.

MR KIRK: And we can see that chapter 2, "Vehicles left on land", is the second chapter in part 3, which is entitled protection of property from disproportionate enforcement action. If I ask them that we turn to the criminal offence, which is at 7315, section 54.
LORD NEUBERGER: Yes?
MR KIRK: It is not only made an offence to immobilise or clamp a motor vehicle, but it is made an offence to remove or restrict the movement of such a vehicle by any means. So effectively, a private landowner cannot clamp, cannot tow, cannot move a motor vehicle.
LORD NEUBERGER: Yes, we have the point.
MR KIRK: There is an exception for barrier car parks in section 54.3, but that is not the point I need to make at this stage.
LORD NEUBERGER: Yes.
MR KIRK: If we turn over the page to sections 55 and 56.
LORD NEUBERGER: Yes.
MR KIRK: They are described as alternative remedies in relation to vehicles left on land. Section 55 provides an extension of what were police and local authority powers to remove vehicles from public land and it extends that right over private land. So, effectively the police and/or local authority and several other public bodies have a residual right to remove vehicles that are dangerously parked.
LORD NEUBERGER: Yes.
MR KIRK: The point we make is this, and it is a very simple one, whether you frame the parking charge in contractual terms, whether it is framed in breach of contract, whether it is framed in trespass, if you are only entitled to charge the market rate for car parking, then that will simply not deter.

And so, you can glean from that, we say, the policy behind this was to replace a system of self-help with a system of charging for parking in a way that is unauthorised.
LORD MANCE: Why do you assume that this scheme is intended to promote deterrent schemes of parking?

MR KIRK: Because, my Lord, if you were limited to charging the rate that, for example, the multistory nearby charge, so a rate that you might expect to pay in a city centre, and that was the limit, you could do no more, then everybody's private land would be the subject of, effectively, a right to park where you could park and simply pay a small market rate for doing so.

That cannot have been the policy behind this legislation. If it was the policy then it would have been very easy for Parliament to stipulate that.

So, we say that whatever the mechanism, that policy is a factor that ought to be considered when one considers all of the circumstances under both penalties and under the regulations. Can I turn to the regulations now. I want to make my submissions by reference structurally to seven questions that arise. They arise both under the regulations and under the penalties doctrine. I want to compare and contrast those seven points. I should say that the 1999 regulations have or are soon to be replaced by the provisions in the Consumer Rights Act, although they are not yet in force and the wording has changed very slightly, particularly in relation to the definition of core terms. But I am going to come to that in due course. I am going to work, in fact, rather than taking the domestic implementation provisions, from the directive if that assists. That directive can be found in the same divider at 7301.
LORD NEUBERGER: Thank you. Yes.
MR KIRK: My Lords, I do not have time to go through the background to the directive, but I will simply say that it is a minimal harmonisation directive. So, it is no part of my submission that the consumer protection afforded by penalties may not exceed the protections afforded in the directive. The first question that I had, that I raise rhetorically, is what factors are to be considered and when are they to be considered? And that is set out in article 4.1. I will read the relevant part: "Without prejudice to article 7, the unfairness of a contractual term shall be assessed taking into account the nature of the goods or services, under which the contract was concluded and by referring at the time of conclusion of the contract to all of the circumstances attending the conclusion of the contract and to all the other terms of the contract or of another contract on which it is dependent." We can see, there, an all embracing test of all the circumstances. We say that that is very, very similar to the approach in the extemporary judgment of the Lord Chancellor in Clydebank. There is no reason within this test to confine ourselves to looking in isolation at the term without reference to all of the existing circumstances. Whether there be other terms that are interdependent, whether there be other contracts that are dependent. There is no good reason, we say, why the same should not apply in relation the penalties doctrine. The time at which it is to be considered under both is at the time that the contract is concluded. And it would seem to us, or in our submission rather, that that is the appropriate test under both. Now, we have been referred, during the course of the hearing, to a variety of other suggested tests. I do not have time to go through each of them, but it would seem clear that at least from the oppression test, as it is applied in Canada, that you would consider all of the circumstances at the point at which you come to enforce the contract and so there is a relevant distinction there that may be important. The second factor that, or factor of comparison, is: do you consider the imbalance in the relationship between the parties? Under unfair terms, yes, you do. But it is not simply a question of a trader being a more significant entity than an individual. It cannot be, otherwise all such relationships would be imbalanced. It is a question, we say, of whether unfair advantage has been taken of that relationship. This question of whether imbalance can be considered under the penalties doctrine was, I think, considered in submissions in relation on behalf of Cavendish. Could I take the court to bundle A --
LORD CARNWATH: Article 3 is not dealing with imbalance between the parties, it is dealing with imbalance between the terms, as my Lord, Lord Sumption, pointed out earlier on.

LORD SUMPTION: The imbalance has to be caused by the terms once they have been agreed. I mean, it may not make a great deal of difference, because if the obligation to pay the £85 is simply the result of a free choice, made by the motorists, his options are not being constricted by the circumstances or the conduct of the landowner, or ParkingEye, then it is hard to regard it as arising from any imbalance.
MR KIRK: I suppose that is the same or a different way of saying that you consider the terms, you consider the relationship when you consider the terms. So, I suppose I am not really saying anything that is different. What I hoped to do was to show the difference in approach between imperial tobacco and Lord Radcliffe's approach in Bridge, so if I can take your Lordships to bundle A, this is divider 3. Page 819.
LORD TOULSON: Which bundle?
LORD NEUBERGER: A.
LORD TOULSON: A, I am sorry.
MR KIRK: Campbell Discount v Bridge, which is a hire purchase arrangement. I think the facts have been dealt with, but the contract as a whole would now fall foul of the Consumer Credit Act, but Lord Radcliffe said, and this is at the end of his judgment: "I do not speculate as to what principles they would have thought applicable to a hire purchase contract in which the hirer, I dare say willingly enough, transacts only with the dealer who is not the agent of the owner and if he signs up at all, signs up to an elaborate fixed menu of stipulations and conditions, which he probably does not bother himself to read and very likely does not or cannot understand." Our submission is that what that shows is that as a factor in considering the doctrine of penalties, the courts were willing to consider the relationship between the parties. The third point of comparison is a question of whether you consider good faith unconscionability.
LORD MANCE: Has anybody ever done a study as to how many of these £85 penalty charges arise from very limited overstays? I mean, I don't know what supermarkets or shops there are here, but if you get caught in a supermarket queue, and you are two minutes over the two hours, you presumably get the parking charge and I imagine you feel quite upset. It is not just the relationship between parking ParkingEye and the consumer, it is all the relationships involved in going to a retail park like this, isn't it?

This happened to me. Went over by 4 minutes, went on holiday and by time I got back was over £100. Had used that car park 4 times over 3 months, never seen anything stating what the 'penalties' are. Never been back to that car park or the shops around it. Stockton-on-Tees needs the business but tough, taken my custom elsewhere.

MR KIRK: The nature of the shops was considered during the course of the trial.
LORD MANCE: Yes.

MR KIRK: These are not supermarkets, these are shops -- there is a shoe shop, a Mothercare, there are shops where you would probably not expect to spend a great deal of time there.

A lot of points have been taken during the course of this hearing that were not factually addressed during the course of the earlier hearings and, in particular, at trial. If that question of one minute, two minutes overstaying had been raised then I would have taken the court to a point that arises -- I will just pass up the British Parking Association code, which is the additional document, it is page 10. There are, as a requirement -- I think it is putting it too high to say a regulatory requirement -- but a requirement of the membership of the approved organisation, the government approved organisation you must have, allow, a reasonable time for people to come in and out. So, nobody is charged, if the system is applied correctly, for staying less than two hours.

LORD TOULSON: You mentioned evidence. What evidence was there before the court? We don't have it, do we?
MR KIRK: There was evidence from ParkingEye, a witness statement from ParkingEye, which set out the manner in which this operated.
LORD TOULSON: Right.
MR KIRK: There was evidence from Mr Beavis, the defendant, which concerned a global approach to parking.
LORD TOULSON: Did the evidence from ParkingEye explain the rationale of the calculation which would have led to the £85?
MR KIRK: No.

LORD TOULSON: No. Right.
LORD SUMPTION: Was the operating scheme, that we have just been referred to, before the court?
MR KIRK: Yes, it was put before the court and in particular reliance was placed on it by the appellant.
LORD MANCE: What does it have to do with the contract? It is not referred to, is it? It is not a contractual document.
MR KIRK: No, it is not a contractual document.
LORD MANCE: Is it referred to? I don't think it is referred to.
MR KIRK: There is a sign which shows --
LORD MANCE: BPA?
MR KIRK: Yes, BPA.
LORD MANCE: But as far as the contract is concerned, it is the document we have, and clause 13, which may or may not be easy to apply to this contract, isn't contractual.
LORD SUMPTION: It is only evidence of what might happen in practice, not what must have happened.
MR KIRK: The issue of short staying was not raised.
LORD MANCE: I was not actually addressing short staying, I was addressing short overstay. And what is a reasonable period? We don't know.
MR KIRK: There was no evidence about that. I do know but I am going to resist that temptation. I should add, though, that we have made submissions about how this area of industry is regulated and I am not going to repeat those submissions. But, this code which effectively binds these operators, because if they don't sign up to it they cannot have access to the information that allows them to run their business, the identities of motorists, is a code that is arrived at if your Lordships look at the foreword on the second page, it is the last paragraph.

19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer. We would not expect this amount to be more than £100. If the charge is more than this, operators must be able to justify the amount in advance.

It is this: "I would like to thank those that contributed to this updated code. In particular the members of the advisory panel which include representatives of from both the operators and consumer and motoring organisations including the AA, Citizen's Advice Bureau, Consumer Focus, the RAC Foundation and Disabled Motoring UK."

So, it is a document that is designed in some ways to balance the interests of both consumers and motorists.

One of the parking terms that we have not considered in any detail was the parking term in relation to disabled bays. That is a requirement under this code, which I should just flag up before I leave it, which is at page 10.16, "Disabled motorists". It refers in general terms to obligations under the Equalities Act.

4. The signage at the location is clear with many signs along the route. The Driver would have had to have passed numerous signs before reaching the location where they choose to stop.
The contractual offer is that driver's are not permitted to stop, but if they choose to then they agree to pay the Parking Charge.
The contract is offered in the signage, by stopping the Driver accepted those terms and the consideration is the binding promise to pay the Parking Charge.

The Driver would have had to have passed numerous signs before reaching the location where they choose to stop.

Description:An opportunity for the right candidate to be part of a successful Parking Enforcement company based in Uxbridge.
Park Direct UK have more than 20 years combined experience in the parking management business and are dedicated to providing their clients with reliable and effective parking solutions. We currently have over 700 sites across the UK.The role is an excellent opportunity for anyone looking for that first step in their legal career and would be joining a hard working but enjoyable office environment.
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Work will involve: - Initiating court proceedings - case handling - Answering appeals - helping to prepare case documents - dealing with POPLA appeals - legal research - attending court when required - general office administration
Requirements: - Knowledge of Contract Law- Willingness to learn - Attention to detail - Ability to use own initiative and work in a team - Excellent English, communication and written skills - Good attitude and strong work ethic
This role will suit an Law graduate. Knowledge of the British Parking Associations Code Of Practise - Knowledge of the Protection of Freedoms Act 2012 would be beneficial.
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• law graduate, contract law, english law, : 1 year