4 November 2015 – In ParkingEye Ltd v Beavis [2015] UKSC 67 the Supreme Court of the UK decided that where a driver parked on a car park for over the maximum 2 hour time-limit despite notices warning that failure to comply with the time-limit would result in an £85 penalty charge the driver was liable to pay.  The driver had argued that the charge amounted an unenforceable penalty at common law because it went beyond a reasonable pre-estimate of the loss resulting from the wrongdoing.  The Supreme Court said that the true test was whether the charge was a secondary obligation (to pay the £85 penalty charge) which imposed a detriment on the wrongdoer out of proportion to any legitimate interest the innocent other party had in enforcing the primary obligation (not to park for more than 2 hours).     The approach was considered to be the same under the Unfair Terms in Consumer Contracts Regulations 1999.  ParkingEye’s legitimate aim was to manage the car park efficiently for the benefit of its retail shopping users in general and the charge was no higher than necessary to achieve that aim – the reasonable car parker would have, and often did, agree to such charge.  It was not extravagant or unconscionable.   Out of the 7 Law Lords one (Lord Toulson) disagreed – he considered that the charge infringed the 1999 Regulations because it was not an obligation ParkingEye could show that a reasonable consumer would have agree to in one-to-one negotiations on level terms.

Charles Machin

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