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She fought Scots law, and the law won.

News reaches us from Dundee, of a lady, Carly Mackie, who thought that she could have her cake and eat it, by parking on another’s land and ignoring the notices demanding the payment due in exchange. Having ignored around 200 such notices, she was taken to the Sheriff court and the Pursuer (Plaintiff/Claimant) won a tidy £24,500 (c. USD 30,400).

Well Carly, it’s your party and you can cry if you want to, but the Sheriff would be unmoved.

Sheriff George Way ruled: ‘[Miss Mackie] has, in my judgment, entirely misdirected herself on both the law and the contractual chain in this case.’
He added that the company had a valid contract and residents in the area had a ‘legitimate interest arising from their title to the land to protect their property and amenity’. The sheriff continued: ‘Parking is not only an amenity but a valuable commodity in modern life.’

Well, he might have said: “The Defender was a trespasser, the Pursuer offered to let her park there if she agreed a fee, she did so, and so the fee is due.“.

However, a Conservative MSP has, we are told, chipped in:

Tory MSP Murdo Fraser has highlighted the distress caused by ‘bully-boy’ tactics, including the threat of court action, increased fines and damage to an individual’s credit rating.

The bully-boy? This was a woman parking on other’s land. Court action is there as the lawful way to prove a claim, and the credit rating? Who (sensibly) would lend money to Miss Mackie now? She clearly seems to think that debts are optional.

The Daily Mail has its own view.

The Dundee case is thought to be the first in Scotland involving a private parking firm and a member of the public – and lawyers say it could open the floodgates in a sector that is notoriously poorly regulated.

Yes, what regulations are there to stop people trespassing? What regulations are there to stop people from breaking contracts, such as an agreement by conduct to pay a fee for parking on land without prior permission? Do tell. Or perhaps let us stick with this private system of offer and acceptance.

It’s nice to know that out there, some judges sit, like spiders, waiting for a buzzing fly to land in their web. Can we have a bit more of this please, it might help to rebuild faith in the law?

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28 comments to She fought Scots law, and the law won.

  • bobby b

    I read the article, and I’m confused: Who owns the parking space she was using?

  • Ian

    It’s all very well, and I applaud the judge’s decision; however I suspect the claimant will be receiving notice of the defendant’s bankruptcy in short order. And what can one do, when assets are transferred immediately prior to bankruptcy? Not very much.

    Victory…?

  • Laird

    Ian, under US law, and I presume under British law as well, transferring assets “immediately prior to bankruptcy” is a fraud on creditors, and the transaction can be unwound. A competent bankruptcy trustee will be looking zealously for just such fraudulent transfers.

  • Mr Ed

    bobby b

    It is the Daily Mail, and drilling to the facts is unlikely to be a priority. However, the sort of arrangements that are common here are that a home owner might lease or rent a parking space near their property off of a developer, and the developer may ‘farm out’ the management and control of the parking space to a contractor who enforces the parking by contracting with the parkers. The lady concerned could have bought a licence to park for £40, but elected not to, so really she only has a net loss of £24,320 or so if she saved that over 2 years.

    Ian,

    Laird is on the money, albeit Scots law is a distinct legal system from England and Wales, albeit in matters like bankruptcy and commercial law, there is a substantial degree of commonality, and IIRC there is a 2-year period in which transactions can be voided if not done for value, e.g. selling a newish car for £5k when it is worth £15k would be potentially void. If she is bankrupted, she would have at least 2 years when she could not own real property or have a bank account, and whilst she may be a woman of straw, she might end up losing the car that she used to get herself into this fine mess.

    And of course, she has her own tiny spot on the internet for future generations to admire.

  • Paul Marks

    Mr Ed is correct – there is a horrible missing the point here, a missing of basic principles that is common today (including among some “Conservatives”).

    As Bobby points out there are only two valid questions.

    “Who owns this land?”

    And.

    “Did they give this lady permission to park there for free?”

    Instead of clear answers to these questions the Daily Mail gives us rubbish about “bully boys”, “credit rating” and on and on.

  • Lee Moore

    I’m a wee bit puzzled about the sums.

    Apparently she could have bought a parking slot for £40 a month. She’s clocked up over £20,000 in charges / fines / penalties / whatever. If that’s just the monthly charges she owes that adds up to forty years of parking. This seems unlikely. Maybe they have calculated the sum on a daily rate. Perhaps the daily rate is way bigger than the monthly rate – say £5 a day. Even so, we’ve then got over 4,000 days. That’s over ten years. Really ?

    The story says she’s ignored “over 200” notices – which looks more like it. 200 sounds about right if she gets done two or three times a week. But then that’s £100 a pop. Which looks awfully like a penalty not a contractual charge for services.

    I bow to no man in my ignorance of contract law, but as a mere businessman I dread to think how many times lawyers have told me, when they draw up contracts, “NO YOU CANNOT HAVE THAT. IT’S A PENALTY CLAUSE, AND IT’S UNENFORCEABLE”

    So how can they arrive at twenty grand without penalties ? And if they’re penalties, how are they enforceable ? Please explain M’learned Mc’friend.

  • One of the sad side-effects of the natz is that the party opposing them (Scots Tories are the most effective these days) is rendered even less amenable than its English cousins to anything resembling voter-imposed discipline. “Tory MSP Murdo Fraser” sounds like the kind of ultra-wet Scots Tory who should be encouraged to offer his services to a more appropriate party (at first glance, that is – I know nothing of him but the OP’s quote). However when it comes to voting, the choice natz v. not-natz dominates more important considerations than this. (Things may be changing, but slowly as yet.)

  • Jim

    @Lee Moore: there a lot of stuff on recent rulings on penalty clauses in contracts here:

    http://www.penningtons.co.uk/news-publications/latest-news/penalty-clauses-in-contracts-changing-the-rules-of-the-game/

    It also mentions the Parking Eye case, which was exactly such a case where someone ignored a parking charge notice. and was ultimately found by the Supreme Court to be liable for the penalty as demanded by the parking firm.

  • Lee Moore

    Thanks for that, Jim. Having cantered through it briefly, I think Ms Mackie had excellent reasons for not understanding the law prior to the Supreme Court judgement you reference. And excellent reasons for not understanding the law after it.

    God I hate lawyers.

  • bobby b

    Thanks, Mr. Ed. Makes sense to me now.

    Lee Moore
    April 5, 2017 at 7:24 am

    I’m a wee bit puzzled about the sums.

    Let me take a crack at this.

    If you purchase an advance parking permit, you pay £40 per month – slightly more than £1 per day.

    If you do not purchase the permit but instead simply park there, the contractual rate as set out by the sign is £100 per day.

    The £100 daily rate isn’t a penalty because without purchasing the permit, you never enter into the contract that contains the £40/month charge. You simply incur the £100/day charge that is set out in the contractual terms on the sign. By parking there under the sign that lists the terms of parking, one accepts those terms and enters into that contract.

    Ouch. Seems straightforward, though, and I’m left wondering why the parking companies seem to have failed to enforce those terms before this case arose.

  • The link in Jim (April 5, 2017 at 10:27 am) is interesting. Unlike Lee I find the explanation reasonably clear (or think I do 🙂 ).

    The content could be worse. The ability to invalidate ‘in terrorem’ penalties is three centuries old, not a recent invention of judicial activism. I approve that “What is clear is the Supreme Court’s continued determination to protect the sanctity of contracts and minimise judicial interference in freely negotiated agreements after the event.” I am also glad that “their Lordships made their views on the overzealous application of these tests [i.e. judicial review of contractual penalties] known in no uncertain terms.”

    This of course still leaves many loopholes in which modern judicial activists can frolic. An insolent activist judge could use phrases like “comparable bargaining power” to drive a coach and horses through the overt intent of “In a negotiated contract between properly advised parties of comparable bargaining power, the strong initial presumption must be that the parties themselves are the best judges of what is legitimate in a provision dealing with the consequences of a breach.” But if the court’s attitude is truly as reported, it will prompt some restraint in judges, so give some confidence in contracting parties.

    At first glance, I found it concerning that: “their Lordships undertook a comprehensive structural survey of the legal history: the first in the Supreme Court or House of Lords for a century.” Perhaps once a century is not enough – doing a proper survey of treaty law history might have saved their Lordships from misruling on article 50. Of course, maybe it just meant the first in this area, rather than the first in any area. 🙂 (Anyone who knows more may correct me.)

  • NickM

    Parking is a nightmare on my street. One of my neighbours has a buggered Ford Focus stuck in another neighbours space. Previously he had a stuffed Landy there. Well out of order.

  • Laird

    Lee Moore is “puzzled by the sums”, but the article makes clear that the actual fees were £18,500 over 16 months. The additional £6,000 would thus appear to be some combination of late fees, court costs, and perhaps attorneys’ fees, and doesn’t seem unreasonable. As to the £18,500 itself, that works out to £1156 per month or, assuming that she parked there (and received a citation) for an average of 30 days per month, <£39 per day. That's expensive parking, to be sure, but the firm says that terms were posted so she implicitly agreed to them. £24,500 is indeed a very large sum, but I would submit that until a rather large amount is involved it makes sense that a firm would not pursue legal action to collect; the costs would be entirely out of proportion to the benefit. I suspect that she was sued precisely because the amount due had grown large enough that collection effort had become economically justifiable.

    What I find most troubling about this whole episode is the fact that she doesn't dispute that the firm had the right to charge those fees, merely that she thought they were unenforceable. That’s a pretty cynical view toward life: I can steal what I like because you can’t stop me. What sort of moral compass does such a creature possess? I suspect it’s directly related to being raised in a socialist society, where you’re taught to think that if you need (or even merely want) something it’s your “right” to take it from someone else. What an ugly culture.

    Also, with regard to penalty clauses, it might help to keep in mind that there is an important distinction between a penalty clause and liquidated damages, and the line between the two isn’t always clear. Liquidated damages is the parties’ good-faith attempt to quantify, before the fact, the likely economic harm which would result from a breach, and is enforceable. To constitute a “penalty clause” the amount must be wholly disproportionate to the harm done. That’s a judgment call. In counselling you away from them your attorneys might simply be being cautious, perhaps overly so. If you believe that the provision in question (not necessarily money, by the way) bears a reasonable relationship to the harm, and isn’t intended merely to punish, you can (and should) overrule them. You’re the client, and must make the final decision.

  • Shlomo Maistre

    Mildly surprised to see Samizdatista praising contract by conduct (basically the main type of implied contract as I understand it). I’m not saying I should expect Samizdatistas to be opposed to such contracts but my understanding is that contract by conduct is an implied contract that is reserved for specific situations. My understanding and I could be wrong – is that:

    Under UCC in the USA it applies when a transaction between two vendors occurs and even if the delivery of product is unsatisfactory the entity that receives the product is consdierered to have accepted it even if it objectively does not accord with the agreement if said entity makes use of it.

    Also, the main example is of course when someone enters a store. But this latter situation is extremely common and is generally known by both experts and the public that if you take something you need to pay for it. Is this true for this case?

    For years, lawyers have quietly indicated that clients should simply ignore the penalties these firms impose, arguing no one in Scotland had ever been taken to court for refusing to pay up.

    I think that the woman in question should pay what she owes and I agree with the court. But perhaps lawyers should be held accountable for misleading this individual and/or other persons from the public?

  • Eric

    Well Carly, it’s your party and you can cry if you want to, but the Sheriff would be unmoved.

    The Sheriff is a kind of judge? Where I live a sheriff is just a policeman who works for the county.

  • Ferox

    Why stop at £100 per day? Why not £10,000 per day?

    Or would one be enforceable and the other not?

  • Nicholas (Unlicenced Joker) Gray

    I think the Sheriff is the one putting the fines on her car, and the judge is a separate entity. We don’t yet live in the days of Judge Dredd, and quick justice on the spot.

  • bobby b

    “Or would one be enforceable and the other not?”

    I wondered the same thing.

    They would both have to be equally enforceable unless there was a reasonableness test involved in the analysis. In this case, I don’t see that the court discussed reasonableness of the charge at all. They treated the amount of the charge – the £100 per day – as implicitly reasonable, I guess.

    But, lazy as that might be on the court’s part, they reached the correct result. £100 per day is a reasonable charge when someone without a permit parks there.

    Say the condominium association hired Vehicle Control Services to administer 100 parking spaces. Say 50 spaces were to be reserved for residents, and 50 spaces were to be rented out to the public on a monthly permit basis, with the condo association and VCS splitting the revenue.

    If all 50 permits were purchased every month – meaning, if parking spaces were in high demand and VCS could sell all 50 permits they offered every month – then one single person who parked in the lot without a permit could be a very disruptive force.

    When you buy a monthly parking permit, or if you own a unit in this complex, you expect that a space will be available for you every day. If the lot is completely rented, and one trespasser parks there, one permitted parker will be displaced, and presumably displeased.

    If the displeased person is a permit buyer, they may well look elsewhere for their parking starting next month. This will generate a £40 loss of revenue each following month. A £100 charge for that trespasser for causing this disruption seems reasonable.

    If the displaced person is a resident-owner in the complex, who ought to be able to park by dint of their ownership share in the parking lot, this would be an even worse result. If enough residents – who ultimately decide which company gets to administer their parking spaces – are angry at not finding spaces in which to park, VCS may lose their contract. Once again, a £100 charge to a trespassing parker who causes this risk to VCS seems reasonable.

    So, this isn’t a situation where the courts are giving corporations free rein to fleece the public for horrendous charges. There’s a reasonableness requirement in this equation. They just forgot to discuss it.

  • Laird

    Shlomo, your understanding of the UCC is insufficient.

  • Shlomo Maistre

    Yeah it’s not my area of expertise but thanks for the super-informative response, really elucidating.

  • Mr Ed

    Shlomo: the contract by conduct is a familiar part of Scots and English Common Law, and I think it deals with the mischief of the ‘rogue’ (not in the technical sense) who purports not to be have read or have been able to read the terms, and so seeks to avoid a contract. Caveat ’emptor’ as it were. Also, if contracts can be formed by conduct, is not signing (or concurring verbally) simply one way in many of signifying agreement, with actions sometimes speaking louder than words?

    Eric:

    Sorry for not making it clear, the Sheriff is the primary civil and criminal judge in Scots courts, having both criminal and civil competence, and they can sit alone or with a jury of 15 in criminal cases, the only crimes a Sheriff cannot try are treason, rape and murdur as the Scots call it 🙂

    Scotland has a confusing court structure just like England and Wales, with a High Court of Justiciary for serious indictable offences and a civil Court of Session with an outer House for first instance and an Inner House for appeals. Scots criminal law appeals stay in Scotland and only civil appeals go to the UK’s Supreme Court (although iirc there was an appeal in a Scots criminal trial to the UK’s Supreme Court on a civil point of some kind that impacted on the criminal case some years ago, causing much hoo-haa in Scotland).

  • TDK

    The bully-boy?

    Whilst I make no judgement as to whether there was bully boys tactics in this instance, we are all aware of “lawfare”: a party who can afford it taking a flimsy claim to court to dissuade others with the threat of time and money lost. An example being vexatious cases made against Ezra Levant. The point being, we can’t just dismiss a claim of bully boy tactics because we think the law is good in general.

  • Fred Z

    I think the bloody woman got off lightly. She should have got a death sentence.

    I owned a rental building in a popular night club part of town for many years that had attached rental parking. We were plagued with unauthorized, unpaid, people using our parking lot. I put up a very large sign that said “If you park here you agree to pay our charges which are $90.00 per month, in advance, or $90,00 PER DAY if you park here without advance payment.”

    It was a complete waste of money.

    The sneak parkers always labour under the delusions that they could come and go before we would notice, that nobody cared or that we were nasty capitalist greedy pricks who ought to be ripped off.

    I occasionally amused myself by blocking their egress, parking an old beater van directly in front of them, and waiting for the phone call.

  • Sam Duncan

    Okay, the point here is that a couple of decades ago, it was judged in Scotland that private parking companies putting clamps on cars or towing them away until outstanding charges are paid amounted to the crime of extortion. (Note that it’s only private companies; local government can do what it likes. And does. £300 to get your car back in Glasgow. That’ll be that “equality under the law” we keep hearing about.) This was widely publicised, of course – showing, as it did, that Scotland is so obviously a nicer place than nasty old Tory England – and taken by the public to mean that “fines“ from parking firms are unenforceable.

    Turns out they aren’t. Heh. The only thing that surprises me is that it’s taken this long for it to be proved.

  • Laird

    Shlomo, it was not my intent to be “elucidating”; merely to point out that your summary of the UCC on this point is deficient to the point of worthlessness. The issue is very fact-specific. Yes, in some cases utilization of the defective product can amount to ratification and acceptance; in others it’s merely mitigation of damages, which the UCC requires. But this isn’t the place for a tutorial on the UCC, so I decline to provide one.

  • Paul Marks

    If there is no penalty for parking without the permission of the landowner then legitimate uses will have no place to park – as the place will be fully of free loaders.

    If the Daily Mail disagrees then people should go to their offices and put trucks (and so on) in their car park – Daily Mail employees can walk to work, and deliveries to the Daily Mail will just have to use teleports.

    If you do not want to pay to park then – LEAVE YOUR CAR AT HOME.

    Full disclosure – I was in charge of parking at Wicksteed Park for years. And I am a former Kettering Councillor – Kettering charges for parking.

  • Mr Ed

    TDK

    The bully-boy?

    Whilst I make no judgement as to whether there was bully boys tactics in this instance, we are all aware of “lawfare”

    Of course there were bullying tactics here, the parker decided that she knew what the deal was and carried on, in the erroneous belief that she would win because the parking charges were unenforceable. So, she was in a stretch of legal parlance ‘volenta’ if my dodgy Latin permits ‘willing’ ‘volenti non fit injuria’ ‘injury is not done to the willing’ (usually regarding tort and those engaged in hazardous pursuits with their proper consent). If anyone was a bully, it was the Defender. She did not even act on her knowing ‘This is not my land they would let me park if I had a permit, so I will buy one for £40‘. Rather she thought ‘Stuff you, I will make use of what is yours as I see fit, and you can do nothing to me’.

    People who think like this are the thin end of the long wedge to Pol Pot; predators. The only way to deal with them is counter-predation if reason will not work.

  • Paul Marks

    In today’s “Daily Fail” (as Nick M. calls it) there was a front page rant about how travel companies should not be allowed to charge extra for holidays in the summer school holidays.

    Yes – price controls for package holidays, to beat the school holiday “rip off”. The Daily Mail really is awful – whether it denouncing Youtube film makers for opinions they do NOT hold, calling them Fascists and so on, or demanding actual Fascist policies itself – such as contempt for private property in land (the root of its free parking demands) or its demand for price controls on nice things its readers want.