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The fact that a contractual clause (i.e. providing free parking for 2 hours and after such time, a fee of £85 is payable) is intended to deter a breach (i.e. don’t park there for longer than 2 hours) does not automatically lead to that clause being unenforceable.

That was the finding of the Court of Appeal in Parking Eye v Barry Beavis [2015] EWCA Civ 402, in unanimously dismissing an appeal against the enforceability of an £85 private parking charge. The Court ruled the charge was enforceable as it was neither extravagant nor unconscionable and on 4th November 2015 the Supreme Court handed down judgment on Mr Beavis's appeal from the Court of Appeal decision upholding the £85 parking charge.

The case had been heard at first instance as a small claim by His Honour Judge Moloney QC, the designated Civil Judge for East Anglia, as a test case for claims of this type. The £85 charge was the result of overstaying a two hour free parking allowance. The Judge found that the clause was enforceable, despite its deterrent nature, and that was the thinking all the way up the court levels. 

The Supreme Court judgment shows that the modern approach to enforceability of contractual clauses is not purely one of deterrence, but whether the clause is extravagant or unconscionable in the circumstances, taking into account a wide range of factors which are not necessarily limited to commercial justifications.

At SCS Law we are experienced in dealing with the enforcement of parking charges and offer low fixed fees for our services; so you can obtain the benefit of legal representation without the fear of spiralling legal costs.