Those who are interested in the amount charged under the "Penalty Fares" schemes, (including Northern Rail's "Failure to Pay" scheme) might be interested in this judgement from the Court of Appeal last week, concerning the amount of £85 charged by a private operator of a car park when a car was found to have over-stayed. ParkingEye Ltd v Beavis  EWCA Civ 402 I'm usually hesitant to let analogies between UK railway custom, practice and law and other disciplines be used to draw conclusions between those sectors, but this particular Appeal was very relevant, as it was focussed on just one question: is the amount of £85 so high that it must be seen as 'a penalty', or is it proportionate to the full and actual costs of the business and their operations? The answer to that question would determine whether or not the amount of £85 would be a lawful charge for the overstaying in a carpark, or whether it would be a penalty which, in law, the operators were not entitled to charge. By inference, it might be supposed that the answer could be relevant to the charges applied by Rail Operators to ticketless passengers. There had been a popular view among the motoring community (supported by the popular UK consumer forums) that these charges levied by private companies operating car parks were, in some way, unlawful, and they had been advising motorists to fail to pay their charges. Had this Appeal, by motorist Barry Beavis, been successful, then it might well have supported that view with a legal ruling. However, his Appeal was not successful. The Court was only asked to address the narrow question of the amount charged, and in the specific circumstances of Mr Beavis' incidents. The Court found that the amount of £85 did not reach the level that would be 'extravagant (or exorbitant) and unconsionable', there being a long standing tradition in Equity that penalties are 'unconsionable'. A popular reference on this forum when considering charges for breaches (particularly for forum member 34D) has somtimes been the case of Dunlop Tyre Co v New Garage and Motor Co  AC 79 in which the amount charged was held to reflect 'liquidated damages' (i.e. a contribution to consequential losses). That argument was run in the hearing, but without success. The charge was also tested against the popular Unfair Terms in Consumer Contracts Regulations 1999, but not found to be "unfair". There are two reasons for me to hesitate to draw too much relevance for the Railway industry from this Judgement: - Firstly, the specifics of the car park in which Mr Beavis parked had a policy of free parking for the first 2 hours, followed by a charge of £85 (reduced to £50 for prompt payment). It follows that the operators have no revenue at all from the operation of that car park if it were not for oveer-staying motorists. - Secondly, Mr Beavis did not instruct a law firm to pursue the Appeal with the level of research and representation which might be expected if a 'test case' is to be of national significance. As might be expected, ParkingEye had instructed a skilled and experienced law firm to assist in advocating their position. On the first of those two points, the Court found "There are obvious benefits to both consumers and retail businesses in having free or cheap car parking available close to the shops for limited periods. That can be achieved only if there is some mechanism for ensuring that in most cases those who make use of the facilities do not abuse them by overstaying. That would not be achieved by a scale of charges graduated by reference to the length of the overstay unless they were sufficient to act as a deterrent. Moreover, the amount of the charge, however, calculated, would have to be large enough to justify collection." On the second point, it would not have my advice to launch a 'test case' with a pro bono QC on one side and a fully staffed team with access to all law libraries on the other. I thought that the significant summary for the Railway sector was burried in this statement from the Judgement: "It was common ground before us that a motorist making use of the car park enters into a contract with ParkingEye under which he agrees to leave the car park within a period of two hours. Failure to do so constitutes a breach of contract in respect of which he agrees to a parking charge of £85. For the purposes of the present appeal I am content to assume that that is so, but it seems to me that the relationship between the motorist and ParkingEye might be better analysed in terms of a licence to use the car park, subject to certain conditions, coupled with an agreement to pay a parking charge in the stated amount if the terms of the licence are not adhered to. On that basis it could be argued that the parking charge was no more than a conditional payment which the motorist could choose whether to incur or not and that the authorities on penalties for breach of contract were of no relevance." Despite the dissimilarities, much of this reasoning does directly correspond with any test in law of the scale of charges imposed by railway operators when passengers are found to be travelling without a valid ticket.