Solicitor: "Good morning sir. What can I do for you today"
Parking Eye employee: "I would like to sue Pat Pending for overstaying in a private car park"
S: "Ok. Just a couple of questions. Have you got proof that he was the person who entered into the contract with you per the signs in the car park? Has he admitted anything in writing or can you identify him by photographs taken at the Time?"
PEe: "Well no, but he is the owner of the vehicle. Problem is the bastard is ignoring all our letters, so he hasn't yet dropped himself in the sh*t."
S: "I have to say you are not off to a good start, because unless you can prove it was definitely him, you would be wasting your money trying to sue him. Putting that aside for one moment, let us assume that you can prove it was Pat Pending who was the driver at the time, what is your loss?"
PEe: "What do you mean, loss?"
S: "I mean that in civil law, if you want to sue someone for recovery of monies or property, you have to show a loss. This “loss” then forms part of your claim for damages and loss. For example, if you had entered into a contract to do some plumbing work for a customer, and you had completed that work, you would render your client an invoice. If your client then refused to pay that invoice you would then be able to sue him for breach of contract in the amount of the invoice. That would be classed as a loss, and that would form the basis of your claim. So I repeat, what is your loss?”
PEe: “Well for a start there's the £80 charge that we told him he would have to pay if he overstayed. It says it on all the signs in the car park. Our parking tickets are the equivalent of that plumber's invoice you were talking about earlier.”
S: “But that may not be classed as a loss. It may be construed as a penalty clause in a contract, and in several cases the courts have already found penalty clauses in contracts like the one you entered into with Pat Pending, are unlawful at Common Law, and consequently illegal and void. However, the rest of the contract is still binding. So if it got as far as the court the judge would want to know how you came to lose £80. If you couldn't prove a loss of £80 he would declare it as a penalty clause that is unenforceable. In order to determine whether it was a penalty clause the judge would assess whether you made a genuine attempt to estimate your potential loss. Did you attempt to estimate your loss?”
PEe: “How would I go about that then?”
S: “Sigh! How much did it cost Pat Pending to park in the car park?”
PEe: “It's £1 an hour."
S: “How long did Mr Pending overstay?
PEe: “30 minutes”
S: “So your loss is £1”
PEe: “Yes”
S: “What about the other £79?”
PEe: “That's part of the contract Pat Pending entered into with us”
S: “But the judge will deem it a penalty clause in a contract and therefore he will declare it unlawful and unenforceable. However all is not lost.”
PEe: “Really? You mean I can still sue 'im?”
S: “Yes. Let me tell you what I can do for you. I will send Mr Pending a formal letter called a letter of claim. Some people call it a letter before action. In it I will demand that he pays your losses in full.”
PEe: “I like the sound of that. How much will it cost me?”
S: “My hourly rate is £250 plus VAT and I think I could probably knock you something out in about half an hour, so for the first letter it will cost you £125 plus VAT. Of course you will probably never be able to get the cost of this back from Mr Pending, because this is a matter for the small claims court, where costs are rarely awarded.
PEe: “So to get £80 I have to pay you £125 plus VAT?”
S: “Who said I was going to demand £80 from Mr Pending? You just told me your loss was £1! Now do you want me to write the letter demanding he pay you your £1 or not?”
PEe: “Not”
S: “Then please leave my office and stop wasting your money.”
PEe: “What do you mean wasting my money?”
S: “I told you when you phoned earlier that I would be charging you for this, and you agreed to pay me my hourly rate. We have been here for fifteen minutes and my invoice for £62.50 plus VAT will be winging it's way to you shortly. And I can assure you I
CAN prove that as a loss in a court of law. Good day to you sir.”
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And that ladies and gentlemen, is why no private parking company will ever take anyone to court.
The defence rests.
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Edit/update. This piece is now out of date following the introduction of The Protection of Freedoms Act 2012 on 1st October 2012. For a more up to date version go to: http://nutsville.com/2013/05/04/parking-weasel-ltds-chairman-goes-to-see-his-solicitor/