Private Parking Ticket

Firstly the important thing to remember is that Private Parking Companies are not backed by any aspect of criminal law. Tickets from Traffic Wardens working for the police or local authorities or tickets issued by police officers are. There are provisions for them in the Road Traffic Act 1991 and these provisions allow sanctions that the issuing authority can take.

THIS IS NOT THE CASE FOR PRIVATE PARKING COMPANIES.

I'm sure any number of readers will be familiar with such facilities, from your local pay and display to any number of 'multi deck' car parks and even, more recently, the car parks for many stores.

PRIVATE PARKING COMPANIES RELY ON THE LAW OF CONTRACT

And while contract law can be a minefield of offer, acceptance, terms, implied terms and clauses, it can be surprisingly easy to understand in terms of every day matters such as this.

Essentially when a driver of a vehicle drives into a car park and parks his car he is implied to accept the offer for parking on the terms of the offeror (the parking company or land owner). A contract is formed and therefore the contract can be broken (or breached).

The Private Parking Company (PPC) must make the terms clear to the user of the car park. Therefore they are obliged to place ample and appropriate signage about the car park to make those persons using the facilities aware of the terms. The signs must be clear and unambiguous and it cannot be obscured, faded, covered up or in any way difficult or impossible to read and understand. Often times those terms will include a provision that if you over stay you will be penalised to the tune of £50, £70 or whatever. They may also include a clause on clamping (I will not be dealing with the issue of clamping in this article). These signs are usually displayed at the pay stations (for pay and display) and for other car parks at the entrance and at intervals about the land. If the car park is improperly signed then immediately the PPC will be in difficulty. Thus when the driver parks the vehicle in the car park and pays or otherwise he accepts by way of his actions and a contract is formed between he and the owner of the land.

ONLY THE DRIVER AND THE OWNER OF THE LAND ARE A PARTY TO THE CONTRACT UNLESS THE PARKING COMPANY ACTS AS THEIR AGENT

Therefore should you receive an INVOICE from a PPC as the keeper of a vehicle and you do not know who was driving, I suggest you tell them this and tell them not to contact you again. You are under no obligation whatsoever to provide any information to the PPC. Refuse to do so.

If you were the driver of the vehicle then that will move the goalposts a little. I would never advise anyone to lie in a document that could be used in any future proceedings. Thus I cannot advocate that any person write to the PPC and deny being the driver if this they actually were the driver. That said you are still under no obligation to incriminate yourself or to provide the PPC with any information whatsoever. The onus is on the claimant in a civil action to prove their case. As in criminal matters the defendant will retain their right not to incriminate themselves or provide evidence against themselves. I advise that if you were the driver that you ask the PPC to provide proof of who the driver was, being very careful at every stage in communication NOT to offer that you were. Should they be unable to prove who the driver was or unwilling then I would suggest that you write to them telling them never to contact you again.

There will be instances where the PPC has video evidence or otherwise of the driver’s identity. If it transpires that this is the case I would not advise that you make efforts to deny being the driver. I would advise that you simply refuse to confirm that you were and refrain from offering any evidence that may incriminate you later.

Many guides of this ilk will advise you that if you are accosted by an employee of a PPC that you should simply get into your car, not speak a word to them, and leave. Indeed they will struggle to justify their actions or demands without an issued invoice. However I cannot stress enough that driving away quickly or dangerously would be a foolish action, one which could attract unwanted attention. There are plenty of ways to nullify the effect of receiving one of these invoices, so rather than risk any unpleasant outcomes I recommend that if there is no absolutely safe way to simply drive off that you refrain from doing so. I do advise that you ask that person’s name but say absolutely nothing more. Allow them to go about their business, in so far as they do not assault you, but offer them nothing that they could note and use later. Remember you are under no obligation at all to make their job easier. I suggest that you refuse to accept any invoice they hand to you and that you refuse to allow them to place it on your vehicle.

Once one of these invoices has been issued it will have certain characteristics that I would like to draw your attention to.

It will have a name that can be abbreviated to PCN, so Penalty Charge Notice, Parking Charge Notice etc. The reason for this is that there IS a provision within the Road Traffic Act for an instrument called a ‘Penalty Charge Notice’. This provision in the Road Traffic Act applies ONLY to those acting on behalf of the local authority (FPNs will cover tickets issued by those acting for the police). Penalty charge notices issued by local authorities have a certain format they must adhere to and it is well documented. Invoices from PPCs do NOT have to adhere to this format but it is very easy to confuse the two and assume an invoice from a PPC to be a ticket from a local authority. This is no accident and the effect is to cause the uninitiated to believe that the invoice issued by the PPC has an official bearing (ergo to make the recipient more likely to pay without issue).
To this effect the invoice may say on it that removal is prohibited (removal of a PCN or FPN by anyone other than the keeper/driver is a criminal offence under the Road Traffic Act). Furthermore the invoice may also state that the keeper’s details can be obtained from the DVLA (another characteristic of an FPN or PCN because for both these instruments it is the KEEPER who is liable, unlike when dealing with PPCs). To clarify, invoices issued by PPCs are not in any way covered by the provisions of the Road Traffic Act. They will not lead to criminal proceedings, removal or interference with them is not prohibited and they have no statutory right of access to the DVLA’s keeper information (they must request it).

PPCs COMMIT CRIMINAL OFFENCES

If you take the time to examine Section 40 of the Administration of Justice Act 1970 you will be surprised to discover, I’m sure, that the characteristics described, which give the invoice it’s official bearing and suggest that it’s removal may be a crime make the use, issuing and pursuit of funds claimed due because of such, a crime in itself. Note section 40 (d) specifically.

The Administration of Justice Act 1970.
Section 40 of the act provides that a person commits an offence if, with the object of coercing another person to pay money claimed from the other as a debt due under contract, he or she:
(a) harasses the other with demands for payment which by their frequency, or the manner or occasion of their making, or any accompanying threat or publicity are calculated to subject him or his family or household to alarm, distress or humiliation;
(b) falsely represents, in relation to the money claimed, that criminal proceedings lie for failure to pay it;
(c) falsely represent themselves to be authorised in some official capacity to claim or enforce payment;
(d) utters a document falsely represented by him to have some official character or purporting to have some official character which he knows it has not.
Paragraph (a) above does not apply to anything done by a person which is reasonable (and otherwise legal) for the purpose of :
(1) of securing the discharge of an obligation due, or believed by him to be due, to himself or to persons for whom he acts, or protecting himself or them from future loss; or
(2) of the enforcement of any liability by legal process.
It is also provided that a person may be guilty of an offence under paragraph (a) above if he concerts with others in the taking of such action as is described in that paragraph, notwithstanding that his own course of conduct does not by itself amount to harassment.
Thus if you receive one of these invoices and it appears to purport to be a PCN or FPN then I strongly suggest that you report the incident to the police. The police are DUTY BOUND to investigate and act. I had to have a ‘debate’ with the local Sgt to have him act on my behalf, however if you are polite and firm then the police should take it on for you.

THE CONTRACT ELEMENT

Let’s examine the law that does cover the issuing of these invoices.

As I’ve stated earlier the PPC will base it’s claim on the driver having entered into a contract with them. Strictly speaking this is very much the case. Assuming the signage and notice to be sufficient then the driver accept the offer of parking by his actions and is implied to accept the terms and conditions of so doing.

You will have three co-mingling defences to reply on in this case.

Firstly and most simply – contractual penalties. When you park in the car park and over-stay or misuse the facilities in some way you breach your contract with the land owner. The terms state you will not overstay or misuse the facilities, these are terms on which your contract for parking is based, thus when you do something contrary to these terms you breach the contract. The common law holds that the remedy for breach of contract is damages. Therefore the land owner is entitled to damages covering the costs incurred as a result of your breaching the contract.

Let us examine this – if you over-stay at a car park then the land owner loses revenue. Thus if parking is £1 an hour and you overstay by an hour then the damage is £1. Any company may argue that you are liable for the time of any attendant who may be involved in the issuing of an invoice. This is nonsense. The fact is that the PPC employ staff to be at the car park for all eventualities. Their job description will involve the issuing and preparation of these invoices, therefore to imply that damages are incurred by the involvement of an employee hired for this express purpose is a quite ridiculous prospect and should be sternly resisted (particularly when the cost of one of these invoices is more than the attendant is paid per day). Alternatively if you park incorrectly and use two bays I would suggest that in all reality the most that could be said to be valid damages is the value of the spaces you have used (so if you obscure a second space then double the cost of your parking). So as you can see actual damages in these cases will be absolutely minimal. Why, therefore, do the PPCs seek to charge the users of the car parks figures like £50 and £70? Simply because people do not know any better than to pay. The principle surrounding this is very similar to that surrounding bank charges. Banks cannot charge their customers extortionate rates for going over their overdraft limits (breaching their contract). The law is exactly the same for Private Parking Companies. Thus should matters progress with the parking company you should use this as the cornerstone of your defence.

Contractual penalties are dealt with in the following cases:-

The caselaw is well explained by Peter T Barnes of Always Associates in this article.

Is it a Penalty? - Alway Associates

This is aimed more for commercial parties than consumers but it outlines the principles well. The following is a summary from bankchargeshell.co.uk - Legal cases and common law on the relevant case law as it relates to the circumstances at hand (a more consumer based perspective).

Wilson v. Love (1896)

A tenant farmer agreed to pay an additional rent of £3 per ton by way of penalty for every ton of hay or straw that he sold off the premises during the last 12 months of the tenancy. The clause was regarded as a penalty because at the time hay was worth five shillings a ton more than straw.

Dunlop Pneumatic Tyre Co. Ltd. v. New Garage and Motor Co. Ltd. (1915)

In the particular case, the judges held that the sum specified in the contract was reasonable and was classified as liquidated damages. However, in this case, Lord Dunedin laid down rules which are still applied today in these types of cases:

i) The sum is a penalty if it is greater than the greatest loss which could be suffered from the breach – in other words, if it is "extravagant and unconscionable".

ii) If it agreed that a larger sum shall be payable in default of paying a smaller sum, this is a penalty.

Ford Motor Co. v. Armstrong (1915)

In this case, the judges reached the conclusion that the sum to be paid for a breach of the contract was substantial and arbitrary and bore no relation to the potential loss of the other party. It was, therefore, a penalty.

Bridge v. Campbell Discount Co. Ltd. (1962)

In this case a customer bought a car under a hire purchase agreement. He paid the initial and first payments and then cancelled the agreement. The company tried to recover the sums specified in the contract for canceling the agreement, but the courts held that the sums payable were excessive and constituted a penalty clause. It was, therefore, unenforceable.

Murray v. Leisureplay (2004)

Mr Murray was sacked by Leisureplay and he claimed three years' salary as per his contract of employment. The courts decided that this clause was a penalty clause and he was not entitled to this level of damages.

The important issues to remember here are that consumers are not of comparable bargaining power to the PPCs. The PPCs are large companies with significantly better resources. The consumer needs their services (or else where would they park?). For damages to be justifiable and enforceable by the courts they must be a reflection of actual loss. Consider what we have explained the costs and damages to be to the PPCs and then consider the penalty they seek to impose. While a difference of £60 is not grossly disproportionate in the commercial sense, within the context of the contract between the consumer and the PPC/landowner it certainly is. The most valid case on the circumstances is Dunlop. Please, if you have the chance, take the time to read the case for yourself and familiarise yourself with the facts and conclusions. I strongly recommend using a search facility like Lexis Nexis Butterworths or Westlaw.

Secondly there is a piece of little known consumer legislation called the Unfair Terms in Consumer Contracts Regulations (1999).

Schedule 2 Indicative and Non-Exhaustive List of Terms which may be Regarded as Unfair

(e) requiring any consumer who fails to fulfil his obligation to pay a dis-proportionately high sum in compensation.

Thus when PPCs charge £50-£70 for what is a minimal loss on their part, the above regulations will apply.

The full schedules can be found on various government sites. Most notably here –

Statutory Instrument 1999 No. 2083

Pay also particular attention to section 5, which reads:-

“Unfair Terms
5. - (1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

(3) Notwithstanding that a specific term or certain aspects of it in a contract has been individually negotiated, these Regulations shall apply to the rest of a contract if an overall assessment of it indicates that it is a pre-formulated standard contract.

(4) It shall be for any seller or supplier who claims that a term was individually negotiated to show that it was.

(5) Schedule 2 to these Regulations contains an indicative and non-exhaustive list of the terms which may be regarded as unfair.”

Schedule 2 mentioned above is at the end of the document and it is well worth reading up on. It will give you a very good feel for the ‘spirit’ of the regulations.

The OFT’s site will explain this in simpler language and make the regulations more digestible. I urge you to read this also-

Unfair Terms in Consumer Contracts

The OFT’s page will also have information regarding making a complaint with them. Something I urge you to consider very carefully. Should you feel you have grounds to complain then do so.

Again the regulations will provide you with the basis for a defence against any action taken by a PPC. It will also provide ammunition in your negotiations with them and could well persuade them to dismiss any notions of making a claim.

You should also consider making use of the Unfair Contract Terms Act 1977.

A copy of the Act is available here-

Unfair Contract Terms Act 1977

Generally the Act covers agreements made between businesses but it can extend to nearly all forms of contract and interestingly negates clauses in contracts which seek to evade certain specific liabilities.

However in this case Section 4 will apply. It states:-

“4 Unreasonable indemnity clauses

(1) A person dealing as consumer cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.

(2) This section applies whether the liability in question—

(a) is directly that of the person to be indemnified or is incurred by him vicariously;

(b) is to the person dealing as consumer or to someone else.”


Clearly per the Act £50-£70 for parking for a few hours is not reasonable by any stretch of the imagination.

This law should provide three solid avenues by which to have any action against you deflected or halted.

NO TICKET PLACED ON YOUR VEHICLE - DVLA DETAILS

All parking companies seeking access to the DVLA register must be members of an accredited association with a clear code of conduct. The only such associaton that exists at this time is the British Parking Association (BPA), their code of conduct may be found here-

Welcome to the British Parking Association

Lynn Jones, MP details very concisely on her own web page what the code requires and I reproduce it here under fair use copyright entitlements. It is here for your education only.

"1. There is now new detailed guidance on what is likely to constitute a “reasonable cause” for a company or individual to access information from the vehicle register.

The DVLA website Release of information from DVLA records has the guidance.

2. Clear guidance is now included on the detailed application forms that must be completed by any person seeking vehicle keeper data from the DVLA database. The guidance advises clearly that any person misusing the data may have future requests refused. The behaviour of applicants for approved conditional access is now taken into account when an application from them is considered, and where behaviour has not been of a suitably high standard, access is not granted.

3. The new application form requires enquirers to provide evidence that they are the landowner, or that the landowner has granted them permission to act on their behalf – a statement from the landowner is required.

4. The new application form includes a requirement to provide evidence that adequate penalty schemes/signage etc, are clearly displayed.

5. Those bodies and companies seeking approved conditional access to the vehicle register are required to be current members of an accredited trade association. Part of the process of determining accreditation of these organisations includes ensuring that there is a clear and enforced code of conduct (for example relating to conduct, parking charge signage, charge levels, appeals procedure, approval of ticket wording, and appropriate pursuit of penalties – e.g, approach by letter only, with county court action necessary to permit a house call).

6. Any organisation that does not comply with the terms of the accredited trade association will be expelled, and without valid membership of another accredited trade association, will lose approved conditional access to the DVLA vehicle register. This forms part of the process and conditions of accreditation. Loss of accreditation by a previously accredited Trade Association will result in that Association’s members losing their access to the register.

7. All of those seeking approved conditional access will be required to serve a probationary period of six months or, if longer, the period of time it takes to lodge 20 requests to the vehicle register, during which time all requests must be made on a case by case basis.

8. It is now required that all organisations that receive data from the register, as evidence of their “reasonable behaviour” , and as a condition of access to the register, must include in any correspondence with a vehicle keeper a leaflet or statement advising them of :

• The “reasonable cause” that formed the basis of the request;
• The complaints procedure by which a data subject can notify both the DVLA and the Information Commissioner if they believe that their data have been used inappropriately;
• The appeals procedure (of the regulatory body) if they feel that, for example, a parking charge notice has been issued incorrectly;

- and that this information should be placed on the DVLA website.

9. The DVLA must maintain on its website (Driver and Vehicle Licensing Agency) a list of organisations and companies who have requested data, and the reasons for their requests.

10. A reference to location on the DVLA website of guidance and advice and all other data related to the release of vehicle keeper data is to be included on all DVLA documentation sent to the vehicle keeper, including the annual VED reminder.

11. There is now a rolling 3 year programme of audit checks, including targeted checks on those companies and organisations where concerns have been raised.

12. An audit will be triggered by complaints of substance representing a disproportionate level of granted access requests, or any complaint of a serious nature.

If, following implementation of the audit recommendations, a disproportionate level of complaints of substance are received, an organisation with approved conditional access will be required to submit requests on a case by case basis. If it is already subject to request on a case by case basis, it will be subject to additional scrutiny of each request it makes. If a disproportionate level of further complaints of substance is received and a company is found consistently to be using data inappropriately, or a serious complaint of abuse of the system by the applicant is substantiated, then there is a real possibility that the applicant would not be deemed to have reasonable cause for future requests for data release, which would consequently be declined.

13. A clear procedure is in place by which data subjects can notify DVLA if they feel that their data has been used inappropriately. The DVLA now draws the attention of vehicle keepers to this procedure by including information in paperwork sent to them and on the DVLA website. This includes information on how they can notify the Information Commissioner of the mis-use of their data.

14. Complaints received about a company will form part of a the evaluation of whether its application to access data from the vehicle register validly includes a “reasonable cause"..."


Point 3.2 of the DVLA Code of COnduct on Private Parking states -

Specifically, point 3.2 of the code states:

“Notices giving full details of the parking contravention and the proposed course of action to be taken by the enforcer should be placed in a prominent position on the ‘offending’ vehicle without causing it damage. Vehicle keepers should be made aware that their name and address will be requested from the DVLA”.

Therefore if the PPC do not put a ticket on your vehicle they breach the voluntary code and have obtained your details from the DVLA under false pretences. COMPLAIN TO THE DVLA, the BPA and the DATA COMMISSIONER.

Mention this issue to the PPC.


To summarise-

It is most important that you know your rights. Please don’t use this guide as a ‘be all and end all’ to the subject. Use it as your starting point. Read around these topics and get to know the law. This is good consumer law for today’s generation and will serve you well in other aspects of your life. Being willing to speak out and stand up to corporate bullies will set you in good stead for the rest of your life.

The important thing to remember is that you don’t have to help these bloodsuckers to build a case against you. Resist it at every step. The law’s presumption is of innocence and that is for good reason. It protects the individual from the imbalanced power of the many. The PPC must prove your liability. 99 times out of 100 they simply can’t and so you’re safe. In the one instance they may be able to develop a prima facie case you will have three good defences. Rely on these. Become familiar with them and their workings.

Don’t be afraid to contact and request the assistance of the following-

The Police

Trading Standards

The Office of Fair Trading

These organisations were created to protect you and your rights. They may be reluctant to undertake what they regard as a trifling or minor matter but don’t accept that. Demand their assistance. Your council tax, income tax and every other tax the good people of the UK are fleeced for pays for this protection. You have earnt it.

I have NEVER heard of a case like this making it to court. I suspect PPCs don’t sue their victims, and they are victims, because they know the merits of their case are non existent.

I am quite willing to provide advice on a case by case basis provided the answers you seek are NOT on this page or contained in any of the links. I ask that you read this paper in its entirety and do all the suggested reading. However to those whose problem is unusual or not detailed above I can offer some support. I do this as a private individual offering help and guidance. There is no substitute for professional legal advice and if you require representation I urge you to make arrangements sooner rather than later.

My email is pete.jones2811@btinternet .com please feel free to contact me with feedback or questions.

Warmest regards,

Pete Jones

QUICK FAQ

I get a lot of simple questions in my email, questions that are answered above. However, for the benefit of those who just have a 'quickie'... Here is an FAQ -

Q. What do I do now?

A. Well, the problem's not going to solve itself. You can either ignore it or you can tackle it. Your first job is to decide if you're going to pay. Please do NOT email me asking if you should pay. The above should be information enough for you to make up your own mind and make an informed decision. Only you can decide if you are going to pay (if you're paying - I cannot help you).

Q. Do I write to them?

A. Depends how you want to play it. Writing to them commits things to paper, it keeps a record. If you want to tackle it and try to nip the problem in the bud early then a letter is the best way to do it.

Q. What do I say to them?

A. READ THE PAPER ABOVE! This is the basis for your defence. The charge, if its exorbitant, is a penalty, its prohibited by the UTCCCR 1999 (read above), it reflects no actual loss. Seems like a good place to start?

Q. I didn't see the signs, do I have to pay?

A. If you didn't see the signs then you cannot contract with the landowner. This is your first defence. The other issues are secondary defences.


Q. I pay for my parking space and have a permit, but it fell/wasn't displayed/got eaten by a man-eating tiger who stole my car....

A. If you pay for your parking space and it forms part of a property agreement then you are using your own space. A space you pay for. You effetively hire that space. For you to be liable for a charge you would have to cause yourself or the landowner a loss. If you're just parking in your own space then how can you? If you pay for the space then yes technically you do, if it forms part of your contract, have to show a permit, but if you don;t then who's losing out? Nobody is. So do you owe anyone anything? Of course not.

Q. Will the Parking Co sue me?

A. They might do. You must be prepared that they might sue you. If they have a case depends on your circumstances. If you are sued and CANNOT AFFORD a solicitor then I can help you with friendly advice and will be happy to speak to you on the phone about it. Get in touch with me.


Q. Can they send bailiffs to my house?

A. No they cannot. Not without taking you to court, which you would know about and winning a hearing which you could contest. They cannot simply turn up with a van one day having just sent you a letter.


Q. Can they clamp my car?

A. No they certainly can not. Not without an order of the court.


Q. Do I have to pay?

A. You decide that. With the wealth of information available... You tell me. Do you have to pay?