Barry Beavis’ honourable Supreme Court defeat today will impact university syllabuses
A fish & chip shop owner from Chelmsford who refused to pay his rip-off parking fine was this morning defeated in the highest court in the land.
But Barry Beavis has changed contract law and created an opportunity for on-the-ball law students to earn extra marks with a reference to his case.
Beavis, 48, made his momentous journey through the appeal courts after he ignored an £85 penalty ticket given to him in 2013 by London-based parking company, and his opponent in the case, ParkingEye Ltd.
Beavis, who owns the Happy Haddock in Billericay, Essex, was, until this morning, feeling sure that the odds were in his favour. He said:
I am confident that the Supreme Court will overturn the decision of the Court of Appeal as this parking charge is totally unfair and should be thrown out.
The momentum behind Beavis’ venture was to ensure that other drivers were protected from excessive fines. Speaking before the ruling was laid down, he explained:
I had to research private parking companies to put together my defence in Cambridge [County Court]. What I found made me so incredibly angry. I read experiences of people who had felt intimidated by letters asking them to pay the ‘fines’. This egged me on even more to fight my case on behalf of everyone who has been affected.
Afterwards, disappointed, he tweeted:
The law has been changed for the benefit of corporate profit and to the detriment of the consumer.
— Barry Beavis (@BarryBeavis) November 4, 2015
But Beavis’ tenacity has certainly captured the hearts of the public. When his appeal was dismissed by the Court of Appeal in April this year, Beavis was able to raise £6,000 through online donations in just 24 hours to help with legal costs.
It is uncommon for a case of such mundane facts to reach the Supreme Court. But according to solicitor Henry Hickman of Harcus Sinclaur — who represented Beavis on a pro bono basis alongside Hardwicke barrister John de Waal QC — this does not detract from the case’s importance. He commented:
Motorists are currently being charged millions of pounds per year in parking penalties by private parking companies and this Supreme Court ruling will affect millions of motorists up and down the country… Seven of the most senior judges in England and Wales will be considering the implications of a private parking company ordering a motorist to pay £85 for overstaying by 56 minutes.
Beavis — who was also assisted in his challenge by consumer group Which? — was hit with the ticket in April 2013 when he exceeded the maximum stay in Riverside Retail Park, Chelmsford, by 56 minutes. There were signs around the car park stating that the maximum stay was two hours, and if any driver did not comply then they would be charged £85 — reduced to £50 if paid within 14 days.
After refusing to cough up, ParkingEye took Beavis to the County Court to recover the money owed. Losing at every stage of the appeal process, Beavis fought his case to the Supreme Court, where the matter was heard in late July before Lord Neuberger, Lord Mance, Lord Clarke, Lord Sumption, Lord Carnwath, Lord Toulson and Lord Hodge.
One of the key issues in the case — which was heard alongside big-money contract case Cavendish v El Makdessi — was whether the £85 charge was unfair. This had to be considered under the Unfair Terms in Consumer Contracts Regulations (UTCCR) 1999, which features on contract law syllabuses.
Beavis’ brief, de Waal QC, argued that the charge was unfair because consumer rights law says that a contract term is unfair when the consumer — in this case Beavis — must pay a disproportionately high sum of compensation if the contract is breached.
Despite the appellant’s efforts, the justices found in favour of the parking company over the motorist, with only Lord Toulson dissenting. It was decided that, when taking into consideration the location of the car park and the clearly displayed notices, the £85 charge was “neither extravagant nor unconscionable”.
Lord Neuberger, Supreme Court president, said:
The question is not whether Mr Beavis himself would in fact have agreed to the term imposing the £85 charge in a negotiation, but whether a reasonable motorist in his position would have done so. In our view a reasonable motorist would have agreed. In the first place, motorists generally and Mr Beavis in particular did accept it.
By endorsing a “reasonable motorist test”, Lord Neuberger appears to strike through the protections contained in UTCCR 1999, and its successor the Consumer Rights Act 2015, which protect consumers from unfair terms. The judicial message is clear: a contract is a contract, and once a contract has been entered into, a party cannot retrospectively argue that it was unfair.
In a blog written by Waal this morning, the QC describes the decision as of “immense significance for commercial lawyers and their clients, in doing so explained and updated the law on penalties for the 21st century.”
He added that the decision had left some confusion, writing:
Looking at the position overall, it seems to us that in deciding to abandon the admittedly over-rigid categorisation of penalty clauses in Dunlop the Supreme Court has, in the course of explaining and updating the law in this fascinating decision, created some uncertainty in the commercial world.
While Supreme Court judgments are binding case law, it remains unclear whether this morning’s revelations will overshadow these statutory consumer rights.
This judgment is set to shake up student’s contract law syllabuses, but barrister and Bristol University legal academic Nicholas Pointon doesn’t think this morning’s ruling will make harder what is already a difficult undergraduate module. Speaking about the judgment, he said:
I expect it will become part of a typical undergraduate contract law syllabus, most likely in relation to comments on the application of the UTCCR 1999, but I don’t see that it will make such a syllabus more difficult. If anything, it is likely to assist students’ understanding of the regulations by seeing them applied in an everyday context (parking charges) rather than something more esoteric or technical.
Having exhausted all appeal routes, Beavis is now planning to take up the issue with government ministers.