Council,Police and tickets covered by bylaws are normally UN-contestable, unless a serious processing issue has occurred. if we are discussing council and police charges the 28 days, and dates are crucial as are certificates of calibration.
Private Parking Charges Are Civil breaches of contract and the profiteering by third parties is unenforceable
A private company has no right to use the word offense it is bluster and bullshit and the fact they are claiming penalty is unlawful.
The following are extracts from Hansard concerning the Crime and Security Bill. I’ve posted them as something of a reassurance for those who are unsure about PPC “tickets”.
Q 15Tony Baldry [MP for Banbury]: I was concerned by Mr. Troy’s suggestion that in this part of the Bill we were simply displacing clamping to private firms’ ticketing. It would be helpful if we could remind ourselves where we are. This is a trespass. It is a civil tort. It is not a criminal offence. Professor King in his opening comments talked about the punishment not fitting the crime. There is no constitutional right for a private citizen to punish another private citizen. We are where we are because of the case of someone who parked in Exeter: the divisional court said that if you park where a sufficiently clear notice is placed, you are inviting someone to clamp you. But that case gave no authority for fines. It gave no authority to impose a ticket. Otherwise you have to go to the small claims court or prove damage. What possible authority, Mr. Troy, do your members have to impose tickets on individuals? If you are to go around imposing tickets on individuals, clearly the Bill needs to deal with that as well, does it not?
Patrick Troy [Chief Executive, British Parking Association]: Absolutely. It should deal with both issues in order to control both issues. This is an entirely unregulated sector. What the private companies do on private land is unregulated both from their perspective and from the public’s perspective. Therefore, there needs to be some form of regulation. Through the DVLA route some legitimacy has been given to ticketers because only those ticketers that are members of an accredited trade association can access keeper details. That gives the ticketing fraternity some legitimacy. But the Bill needs to address both these areas if it is to control parking properly.
Q 16 Tony Baldry: But if I park on your land and you send me a ticket in the post, which I tear up and then throw away, your only redress is to issue proceedings against me in the small claims court where you have to prove that I caused damage by parking where I parked and you have to prove the measure of that damage. That is right, is it not?
Patrick Troy: That is absolutely right and it goes deeper than that. Our concern is that, currently in an unregulated environment, the person who committed that act—the driver—is liable and the operator does not know who the driver is. So they will obtain keeper details from DVLA and will write to the keeper saying, “The driver has committed a contravention here. Who is the driver, please?” The keeper can say, “I don’t know who the driver was” and not admit that they were the driver or that they know who the driver was. The difficulty is that eventually operators will say that if they cannot recover their outstanding due, they will have to switch to some other form of enforcement, which is clamping. That is what I was saying earlier about distorting the two sectors. There needs to be regulation for the whole sector and not just one element of it.
Q 24Shona McIsaac: I find that an astonishingly low number, because I got my office to go through my records to find complaints about clamping and charges, and I have had 17 cases in the past three months alone.
Patrick Troy: Are these complaints of members of ours or non-members? That is the critical thing .
Q 25Shona McIsaac [MP for Cleethorpes]: UK Parking Control is one of your members. That company gives rise to the vast majority of complaints from my constituents. One has come in in the past couple of days. These notices look very formal. The charge is £100. You were talking earlier about what is a reasonable amount; frankly, my constituents do not think that that is reasonable. They describe these people as cowboys. They resent these companies, which they see as cowboys, using intimidatory tactics to get hold of their personal details.
Patrick Troy: Two things that consumers most when they use car parks, whether local authority car parks or private. One is the size of the penalty charge and the other is the lack of signage. We tackled those two issues head on in our code of practice. You will find that the charge is more or less similar to that in the local authority sector. We try to base it, as far as possible, on that.
Q 26Shona McIsaac: I do not think that any of my local authorities charge a flat rate of £100 for a parking contravention—absolutely not.
Patrick Troy: It is usually discounted by 50 per cent. so you need to compare the two. The current rate in London is £120 discounted to £60.
Shona McIsaac: That is London.
Patrick Troy: Yes, I do not know the rate outside London off the top of my head. What I am saying isthat, in trying to arrive at a charge to put in our code, we have tried to ensure that it reflects as far as possible what the local authority is charging.
Q 27Shona McIsaac: The notices that people are getting are actually a parking charge, not a penalty notice. There is a distinction.
Patrick Troy: Absolutely.
Q 28Shona McIsaac: So this is the parking charge. My constituent says in his letter that he found it “somewhat excessive” to be given a parking charge of £100 for 40 minutes parking at a fast food outlet. The local authority charge is around £1.10 an hour. That is what people are comparing it against.
Patrick Troy: Absolutely.
Q 30Shona McIsaac: In your introduction you talked about your industry’s bad image and about some of the bad practices, but my constituents are complaining about the practices of companies that are meant to be some of the best, according to your association. The company under discussion covers McDonald’s and operates throughout the UK.
I do not know if the same company is responsible for motorway parking. A number of constituents have told me that, while driving at night, they have parked for a little sleep. The notices are not visible, particularly at night, and they are usually small, cheap and very rarely near the entrance to a car park. I will read out what my constituent says, because it summarises part of the problem with both clamping and parking charges—the same industry using those two different ways to get money out of people. My constituent describes the
“seeming increasing number of private parking companies who seem to somehow get away with putting up a couple of CCTV cameras, some cheap signs and by contacting the DVLA”,
he says, “merrily” extort money from people who do not know the law.
Patrick Troy: There are two points there. One is that the whole purpose of establishing this scheme is so that you and members of the public can let us know if there are problems of that nature. Our members will not be perfect either, so we need to have in place—and we do have in place—a process by which we can ensure that those operators will comply with the code. They will not be compliant in all cases.
Q 31Shona McIsaac: Is it part of your code—this relates across the board to clamping and anything we introduce in the future—for companies to put on parking charge notices or anything else what people can do to seek redress? Why is it not part of your code to say, “If you have a complaint about this charge, please contact us”? There is nothing.
Patrick Troy: There certainly should be, and I would be interested to see that. There is a requirement in the code for the operator to have in place a dispute resolutions process, whereby the recipient of the ticket is able to discuss the issue with the operator. As I said earlier, I do not think that that is sufficient; I think that there needs to be an independent appeals service to deal with that, because clearly the operator has a vested interest in the outcome. If that information is not on there, please let me know and I will investigate.
Shona McIsaac: It certainly is not on here. UK Parking Control Ltd is one of the biggest private parking companies in the country, I believe, and as I said, one of its biggest customers is McDonald’s, so if it is issuing these notices, it is doing so the length and breadth of the country and is therefore breaking your code of conduct.
Patrick Troy: Please let me have that notice.
Edmund King [The AA]: We have a lot of evidence that big car parking companies do not abide by the code. I have here a receipt from Parking Control Management. The other issue relating to charging is double-charging, and in this case, there is a wheel clamp release fee of £130. Despite the fact that the individual in the case was going to the library to pay the 15p fine on her library books and was only away for 20 minutes, she was also charged a £200 removal fee straight away and then a £40 storage fee. So the total charge was £370. That was automatic double-charging. Again, there is nothing whatsoever on this receipt that says anything about an appeal or anything else.
That is a major problem. Many of the companies can just make up the charges. We know of companies that, if you call the police, will impose a “call police nuisance” charge, which can be anything from £50 to £150. Another company will have a “swear box” charge that they add on to a charge. That shows that the charges are absolute nonsense—people just make them up. We have certainly had complaints about members of the accredited association not abiding by the code of conduct. That makes the point that any code must be absolutely mandatory and it must be enforced.
Dr. Brian Iddon (Bolton, South-East) (Lab): I am getting the impression that wheel-clamping should be banned completely and that we should move entirely to a ticketing programme. If someone’s vehicle is causing an obstruction, the police will remove the vehicle, whether it is a private vehicle or a company vehicle. The police would have the power to remove a vehicle under the law as it stands now.
I do not see any point in allowing clamping to take place. What is the opinion of our three witnesses? I ask, because the advantage of moving to a ticketing system is that, in order to get the information from the DVLA, you have to be a pukka company and not a cowboy company. If you laid down a code of conduct, you could police that code of conduct.
Edmund King: If the problem is illegal parking, to immobilise a vehicle to ensure that it is parked illegally for a long period of time is absolute nonsense. The courts in Scotland in 1991 actually found clamping on private land to be extortion and theft. In our view, many cases in England and Wales are extortion and theft.
When wheel-clamping was outlawed in Scotland, landowners employed other means to protect their land, which they have a right to do—motorists should not park wherever they want, whenever they want; we are absolutely clear about that—but there has not been a massive outcry in Scotland since 1991 when clamping was outlawed. People put up fences or tackle the problem in other ways. I would suggest that in a civilised society, immobilising a pensioner’s car and towing it away after 20 minutes is outrageous. The best thing would be if clamping could be outlawed.
Q 32The Chairman: But you did not answer, Mr. Troy, nor other witnesses, Shona McIsaac’s sensible question: what about somebody who parks on land after dark, can see no sign, no indication that it is illegal to park there—
Shona McIsaac: Such as a motorway service station.
The Chairman: Is there no responsibility on those who either own the land or will be clamping or ticketing on the land to put up signs that are visible both day and night, to ensure that people are aware of the problems they might encounter if they park there?
Edmund King: That is a valid point, but in some of these cases we have evidence that it is not in the interest of the landowner to have clear signs. Many of them have deals with the clampers whereby they are paid £50 a clamp. If there are clear signs, motorists will not park there and the landowner will not get their money. In many cases it is not in their interests. We also have evidence of other cases where, if there are signs, the clamper will park their vehicle in front of the signs to hide them, otherwise people would not park there.
Q 46Mr. Robert Flello (Stoke-on-Trent, South) (Lab): My first observation is that although I am sure that local authorities do a very good job in the main, there are exceptions. Indeed, not many months ago there was a huge outcry in Stoke-on-Trent when the local authority sign in one of the city centre car parks led everybody to believe that there was free parking after 6 pm, until they all came back to find tickets on their windscreens. There is some work to be done to ensure that local authority signage is up to an acceptable standard. I would be interested in any comments you may wish to make about that.
My main substantive question relates to the way we are looking at the whole issue. Are schemes of registration, land registration and so on not a far too complex way of resolving the problem? Ultimately, it is about landowners looking for the cheapest way—or a revenue-making way—of solving their parking problems. Should we not put it back to the landowners? We should say, “If there is a private piece of land that you don’t want people to park on, fence it. If you are a local business and you only want people who use your business to park on your land, put a barrier up so they will need a ticket or a code to exit. If it is a commercial private car park, take a barrier-type approach with a clear display of charges when you approach the barrier.” Are we not looking at things from the wrong point of view? Would it not be better to put the onus on the landowner to take whatever action is appropriate to resolve the problem, even though it might cost them some money, rather than the poor motorist?
Edmund King: I concur with those conclusions. Having looked at the problem for over 10 years, having seen legislation come in and having seen numerous consultations on it, I can say that many of the proposals would improve things in one aspect and then transfer the problem elsewhere. We have heard that from clamping it goes to towing or to ticketing. Unfortunately, no matter what legislation we bring in, it still appears that there would be loopholes. My view is that we should look to what happened in Scotland and try to change the law in that way.
Shona Johnstone: With regard to the second part, that would certainly be one option. On your first issue, yes, I am sure we can all find examples where local authorities have not always got it right.
Patrick Troy: May I echo that point? The point I tried to get across earlier was that no one is perfect in the parking management world. I have been involved in it for the past 25 years. There will always be circumstances where a silly decision is made. That is why the independent appeals service is so important to try to close down those issues. As I understood your question, it was why can’t we just do away with all this and put barrier systems in place? The problem with that is that it is horses for courses. The best example was given to me early on in my current post. We manage motorway service areas. They are managed by private operators. You simply could not have a barrier system. You have to allow the free flow of traffic into motorway service areas. At the other extreme is the pub landlord with a small car park with only five or six spaces but which is close to a big retail outlet or a station. It is not practical for that landlord to put in a barrier system. There has to be some other solution in certain circumstances. I would accept that those circumstances are perhaps not always right at the moment.
Q 47Mr. Flello: Perhaps there would be a greater burden of cost on the pub landlord with only five or six parking spaces, but nevertheless it would be doable. In the first example, given that most motorway service stations have a long slip road that you can either turn off to park or carry on down to fill up with fuel and then rejoin the motorway, I am not sure that the proposal is that impracticable for a motorway service area. I take the point that there are areas where you could look at it, but surely it is much simpler to say to the owner of the land, “You resolve the problem, but you can’t clamp, you can’t ticket. If you don’t want any parking there, fence it off. If you are not bothered about it, fine, let people park there.”
Further to this they are claiming a loss when the alleged loss is 3rd party
I posted this on the Consumer Action Group and a number of members urged that I post it here also. Thus, if a document exists here containing this information in one place I apologise for the duplication. Otherwise I’m delighted to present my guide.
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 (this guide also excludes those tickets issues pursuant to the Transport Act 2000 governing tickets issued to vehicles on behalf of railtrack or rail operators). 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;
© 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:-
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.
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 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 to anyone who may require 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.
Pete Jones, Advisor in Criminal Law
The ones that are issue are police,council and train station bylaws
Oh and debt collectors are chancers as bill of exchange act 1882 makes third party unable to intervene unless original parties agree.
Further to this a third party can’t claim loss and if the charge is excessive then it is a penalty which they as proved in previous precedents are not allowed to do.
Also Private parking companies use debt collectors and do not like courts generally, those who have been done by courts were default judgements or well and truly hung themselves.
Further to this the parking company has to prove they have an implied contract and person understood, on a 3rd party loss they have no claim and excessive penalty and imposing terms after event is definitely unfair contract.
BBC Watchdog Private Clampers (MUST WATCH)
Legally Remove a Wheel Clamp
let them take the registered keeper to court- there are a mountain of reasons the charge is illegal including the fact that there is zero loss and arbitrary charge.
1 English law does not allow private companies to enforce penalties
2 The chairman of the British Parking Association told Parliament that private companies cannot legally enforce their tickets
3 The Managing Directors of at least two parking companies tell people to ignore tickets
4 The Private Parking Enforcement Regulation Act does not permit enforcement for parking over lines.
5 The Unfair Terms in Consumer Contract Regulations do not allow addition of penalties
7 The solicitor who sends out the final letters for most of the companies is under investigation by the SRA
8 On the very rare occasions that a ticket went to court the company has lost
9 UKPC know all this and have never taken anyone to court themselves
Second example, a motorist takes Excel to Court to reclaim the paid ticket amount (she wins):
Susan Pratt case (she paid an Excel PCN then claimed it back in Court)
Small claims win over parking ticket – Your letters – Sheffield Telegraph
Then there was Tasneem Patel’s victory in reclaiming an already-paid Parking Eye ticket for her brother:
There was also oneeye’s case when taken to court by Trethowans/Aintree Hospital recently:
Recent decision of the Upper Tier Tax Tribunal in the case of Vehicle Control Services v HMRC
1. VCS did not have any right to occupy land or to pursue any action in trespass (which is what VCS had claimed they were doing).
2. Such payments they received by way of “Parking Charge Notices” were not therefore a payment by way of damages and were not therefore exempt from VAT.
3. That on the basis of their standard agreement with landowners there could have been no contract formed between VCS and the motorist because its limited rights to access to the land did not extend to being able to offer the right to park.
4. The signs used by VCS cannot have effect because they have no right in law to make any offer to park in the first instance.
5. Any contract to park could only be formed between the landowner and the motorist
6. Any parking charges collected by VCS would therefore be, in effective, damages in breach of contract or trespass but because they were retained by VCS they constituted a standard-rated consideration and VAT was therefore payable against them.
I believe that this is a noteworthy decision. VCS have had the decision since the 2nd May but seem to have remained thoroughly mute on the subject as have the BPA. One suspects that some amply remunerated legal beagles are working hard on redrafted contracts.
Freedom of Information document from the Ministry of Justice (FOI75999) which reveals that, in 2011, no money claims were issued in any County Court in England & Wales by UKPC.
2.3 Your contract with the driver
The most important contract for operators to focus on
is the contract that they wish to establish with the driver;
you are urged to pay particular attention to this issue. It
must be emphasised that it is the driver, as the driver of
the vehicle making a decision to use a particular parking
facility, who is the contracting party. For that reason, debt
recovery action should only be taken against the driver.
There may be circumstances where a driver is able to
establish that someone else was the contracting party, but
these circumstances will be rare. The fact that a person
is the registered keeper of a vehicle is not by itself a basis
for attempting to impose contractual liability for parking
charges or otherwise taking debt recovery action.
This is a dedicated section for AOS members to assist with answering frequently asked questions about the Protection of Freedoms Act, Keeper Liability and the new Independent Appeals Service. If you cannot find the answer to your question from the list below, please use the link at the bottom to submit a question for answering.
What is the Protection of Freedoms Act?
The Protection of Freedoms Act is a piece of legislation, passed by the Coalition Government in order to return ‘freedoms’ to the British public that they feel have been eroded or removed over time through the implementation of other legislation. It deals with a wide range of issues including reforms of the Criminal Records Checks and storage of DNA data but the element which relates most to the parking industry is a ban of vehicle clamping and removals on private land without lawful authority.
The Act and its guidance notes can be read on the Government’s legislation website which you can access by clicking here.
Click on the button labelled ‘Expand All Explanatory Notes (ENs)’ to see further information.
Why has the Government banned wheel clamping?
Legislation was passed by the previous Government in 2010 with the intention to regulate vehicle clamping and removals on private land. However during the General Election of 2010, the Liberal Party’s manifesto was committed to banning wheelclamping on private land. Upon forming the Coalition Government, this commitment was put into practice with the formulation of the Protection of Freedoms Bill towards the end of 2010.
When did this ban take effect?
Why has it taken so long to come into force?
The formation of all legislation must go through due Parliamentary process, enabling proper debate in both the House of Commons and the House of Lords to ensure – as far as possible – that there is consistency and fairness. In that time, the BPA campaigned, on behalf of the industry, for a number of changes to the Bill.
Although, we achieved a great deal with regard to closing the loophole on Keeper liability (see below) and securing the first Independent Appeals Service for car parking on private land, the government insisted that a comprehensive ban on vehicle clamping and removals on private land without lawful authority was necessary.
Where does this ban apply?
The clamping ban applies on all private land in England and Wales unless there is some other ‘lawful authority’ in place which allows clamping and/or removal of vehicles. The ban includes private land which belongs to local authorities. Clamping and towing away on private land has been banned in Scotland for some time already. In Northern Ireland the ban will not apply.
Who retains ‘lawful authority’ to remove or immobilise vehicles?
‘Lawful authority’ applies in cases where specific legislation is in force which allows for vehicles to be immobilised or removed. There are obvious examples such as the public roads, where Road Traffic Regulations could apply, and those statutory authorities that retain the ability to clamp such as the police and DVLA (and their agents).
However, there are also parking areas where particular by-laws have been created that provide for parking enforcement. A good example of this is some railway station car parks. Under the Railways Act 2005, the Secretary of State made Railway by-laws which allow for vehicles to be immobilised or removed in certain circumstances.
There are many other organisations and public bodies which can establish ‘lawful authority’ through Acts of Parliament and local by-laws and these include airports, ports and harbours, strategic river crossings as well as some common land. Any terms and conditions imposed by a landowner do not normally in themselves establish lawful authority.
If one of my clients wants a car clamped or removed after the ban comes into effect, how can I advise them?
If your client needs to have a vehicle removed from their land after 1st October, and they or their land does not benefit from having ‘lawful authority’, they must contact the relevant authorities to remove the vehicle. This will usually be either the police service or the local authority who may decide to arrange for the vehicle to be removed. If a vehicle has been abandoned on their land, the process is different from enforcement of a vehicle that is left on private land. The Keep Britain Tidy Campaign has information about dealing with abandoned vehicles.
What will happen to me if I clamp or tow away now that the ban is in effect?
Why does the introduction of this legislation increase the proportion of the tickets issued that will be paid?
Parking tickets issued to motorists on private land are presently the responsibility of the driver. Before the Protection of Freedoms Act came in, the registered keeper could effectively pretend that they were not the driver (when, in fact, in many cases they were) – to avoid proper and legitimate action for breach of contract or trespass. This was unfair and the new Act recognised this by providing for a duty on the keeper to identify the driver when enquiries are made by the landowner or his agent. Failing this, the keeper becomes liable for any parking charges due as a result of the breach of contract or trespass. This makes it easier for parking operators to more effectively manage parking on private land. This ensures universal fairness.
How will this work?
The Act describes a process which allows you to write to the keeper seeking payment when a parking ticket remains unpaid for a specified period. The keeper has two options: firstly they can make the payment; secondly they can tell you who was driving at the time, in which case you should seek payment from them. Ultimately the keeper can be made legally liable for payment.
Why is this process different to that in place for Local Authorities where the keeper is liable automatically?
What changes do I need to make to my paperwork?
If the appeals service is being set up by the BPA, how can it be independent?
I already offer an appeals service of my own to motorists, why is this not sufficient?
Under the new arrangements motorists will still be required to write to the operator who issued the parking ticket to seek redress but where the dispute cannot be resolved the operator will be required to offer the motorist access to the Independent Appeals Service. The Independent Appeals Service offers an extra layer of security to the motorist.
Why is the decision of the Independent Appeals Service binding on the operator but not binding on the motorist?
Parking on private land is managed under the law of contract or tort of trespass and only the driver can enter into a contract or commit the act of trespass. The Protection of Freedoms Act does not change this principle. Nor does it change the legal right to justice through the Courts. Motorists will always have the right of redress through the Courts and this cannot be taken away. However, the Government has insisted that the decisions of the Independent Appeals Service must be binding on the operator. This can be achieved through the AOS Code of Practice.
In requiring the BPA to develop an Independent Appeals Service, Government placed five conditions on the service:
a) That it be free to the motorist
b) That it must be funded by the private parking industry
c) That it is binding on operators
d) That it is independent and seen to be independent
e) That it is available for all tickets issued by a member of an ATA
Can a motorist access the appeals service without making an appeal to the operator first?
No. Under the new arrangements motorists are still required to write to the operator who issued the parking ticket to seek redress but where the dispute cannot be resolved the operator will be required to offer the motorist access to the Independent Appeals Service. The Independent Appeals Service will not consider an appeal from a motorist who has not first contacted the operator who issued the parking ticket.
What can I do if I disagree with the decision of the Independent Appeals Service
Ultimately everyone will always have the right of redress through the Courts and this cannot be taken away.
We are currently clamping on housing estates owned by a local authority housing trust. Are they a lawful authority under the new Act?
No. Being a local authority in itself does not provide ‘lawful authority’ to remove or immobilise a vehicle; there must be some other statutory power to remove or otherwise enforce, such as the relevant traffic management regulations.
All local authorities’ private land will be covered by the clamping ban and, interestingly, Schedule 4 of the Act which extends keeper liability to parking tickets issued on private land, will not apply to any parking provided or controlled by local authorities. This means that local authorities private land enforcement will be limited to the issuing of parking tickets with driver liability, or the need to resort to full regulation using road traffic law.
Local Authorities may not rely on Schedule 4 and require the keeper to identify the driver where the ticket has been issued on private land provided or controlled by a local authority and where it could use its Road Traffic Regulation Act 1984 powers to regulate and enforce parking, such as estate roads and associated parking areas. They may only rely on Schedule 4 in other circumstances, such as trespassing or on land where parking would not normally arise, such as a playing field or parks and open spaces for example. This applies regardless of whether the LA manages the land itself or contracts out the parking management.
Are tickets issued prior to 1st October 2012 but chased after 1st October 2012 able to benefit from Keeper liability?
No. Keeper liability can only apply to parking tickets issued in accordance with the Protection of Freedoms Act Schedule 4. This will only be possible when Schedule 4 comes into effect. It should also be noted that the driver is the person who entered into the contract, or trespasses, and is initially liable for any payments due as a result of the breach of contract or trespass. Schedule 4 simply introduces a duty on the vehicle keeper to identify the driver, failing which the keeper becomes liable.
Can the term ‘contraventions’ be used with reference to the independent appeals service?
It is preferable if the word ‘contravention’ is not used. The phrase ‘breach of the terms and conditions for parking’ is more appropriate.
When will we know requirements of the independent appeals service so that we can plan resources and processes?
If you have not yet received information on the requirements of the independent appeals service you should contact us.
What does the independent appeals service adjudicate on – points of law and/or the Code of Practice?
The independent appeals service considers aspects of law. It will determine whether a motorist has complied with the terms and conditions of the contract or committed trespass and, if so, whether the enforcement action is fair and reasonable and who is liable for payment of any charges as a result. The Code of Practice will be a reference document for the independent appeals service and if the appeal identifies activities which do not comply with the Code of Practice they will be referred to the BPA for investigation in the normal way.
If a case is referred back to the operator on a point of mitigation, will another charge be made for that appeal?
No. Each case lodged with the independent appeals service will incur a standard case fee regardless of the simplicity or complexity of the case and the outcome. The decision of the independent appeals service will be binding on the operator who issued the parking ticket. The independent appeals service has the scope to refer an appeal back to the issuing operator for further consideration if additional mitigation arises.
Can an operator appeal a decision on a point of law?
The BPA Code of Practice requires that the decision of the independent appeals service is binding on the operator who issued the parking ticket. The BPA Code of Practice does not deny the operator any legal remedies available to them in the justice system. Where an operator believes that a point of law should be challenged, rather than the decision in the particular case, normal legal remedies could apply.
How long is the transition period be for the implementation of new signs, etc?
This has been set out in the new Code of Practice.
What if my tickets aren’t called PCNs? Will the adjudicator find against me?
Parking Charge Notice’ is a general term used to describe notices to drivers who have committed a trespass or a breach of contract. The BPA Code of Practice describes the situation where this term might be used and where the abbreviation might be used. It is not defined in law.
We are a university; how do we deal with tickets issued to foreign students?
Can you please advise what procedure, if any, a council has to undertake if they want to take a car park from management under TMA and pass it on to the private sector to be operated under contract law?
We are a hospital and have been using clamping signs as a deterrent, with regards to certain areas within the hospital, for instance around A&E. The deterrent effect of the signs alone has worked for years. After 1st October will it be unlawful to have these signs still in place?
Will the contact details for POPLA (the independent appeals service) need to be shown on signage or parking notices?
The new independent appeals service, or POPLA (Parking on Private Land Appeals) as it is known, is provided by London Councils. The Protection of Freedoms Act in Schedule 4 sets out the requirements for notices and signs and this information is reflected in the BPA Code of Practice for the AOS. In essence, if you wish to rely on the provisions of Schedule 4 then details about how a motorist can appeal must be included in signs and notices.
Please confirm if the recommended charge level of £100 is for the lower or the higher rate? I have seen other companies with a fee of £150 is this acceptable
There is no higher and lower rate for parking charges on private land. The BPA Code of Practice for the AOS sets out how parking charges should be determined and we would not expect them ordinarily to exceed £100. Where parking operators who are members of the BPA wish to exceed this charge then they would be expected to be able to justify the charge.
If operating by ANPR and not issuing a ticket what is the agreed timeframe before contacting the DVLA for Keeper details? Will all signs need to advertise this?
We are responsible for managing land on behalf of a local authority. We are very concerned about how we can provide reliable access to the bays and, more importantly, how we keep our emergency accesses/bin rooms and footways clear of illegal parking, without the ability to tow the offending vehicles away. Can you define what “lawful authority” is and whether local authorities can acquire it?
If a local authority made an off street parking places order (under section 35 RTRA 1984) could someone who received a ticket challenge it on the basis that they were parked on a highway within the estate and not an off street parking place?
Should all Approved members take photos of the offence? Is this required by law/legislation?
There is no legal requirement to take a photograph to prove that a parking contract has been breached or that a motorist has trespassed on private land. However operators may do this as part of their enforcement activity to provide evidence in the case of a dispute.
Where an operator uses camera enforcement as the main means of gathering evidence, for example car parks using ANPR technology, then every vehicle entering and leaving the car park could be photographed.
All photographs taken would be subject to protection under the Data Protection Acts.
We are currently carrying out a ticketing service on local authority housing land to manage permit areas. An interpretation of the new legislation seems to indicate that for this to continue the LA will have to create section 35 traffic orders and carry out enforcement under TMA or cease operating. Is this the understanding of the BPA?
Does ‘keeper liability’ apply to local authorities’ private land?
Does a local authority need to be a member of an Accredited Trade Association if it wants to manage parking on its private land under contract law?
What does it cost for a Local Authority to join the Approved Operator Scheme?
Can removal logos be retained as the Police have been given authority to act on private land where necessary? This is particularly relevant to hospitals and housing associations.
What is the cost per appeal and is VAT applicable to the charge or already included?
BPA Council has agreed that the per appeal charge for the IAS will be £27 per appeal +VAT.
What wording will be required on the Parking Charge Notice to advise people of the independent appeals service?
Is it correct that, with the independent appeals service, there is no facility for personal hearings, and that all cases will only be considered via e-mail or correspondence?
Will there be a telephone customer service facility available for motorists for general queries on the appeal process?
Is there a formal appeals pack structure?
What is the response time for appeals to be dealt with?
Will the appeals service decline to deal with appeals that have not been through the operators’ own appeals process?
Is the appeals service limited to a ‘yes’ or ‘no’ decision (with supporting reasoning), or can they suggest accepting payment at other than the full value charge?
It is not expected that POPLA will reach decisions other than ‘yes’ or ‘no’ If the adjudicator believes that there is compelling evidence of mitigation that should have been considered by the operator during their review of the appeal, they may make contact with the most senior representative of that operator and ask them to review the decision originally made. There would be no requirement to change this decision, but to review it.
What advice would you give on leaving existing clamping and removal signage in place after the ban on October 1st?
Consumer Protection legislation won’t allow you to advertise something that you aren’t going to do. Where a sign advertises clamping only as enforcement, it must be removed as soon as possible. Where you are advertising clamping or ticketing as methods of enforcement, you do have a few months to change those signs, but ultimately, they do have to be removed.
B10 Parking charges
B10.1 A driver who is invited to park on private land and pay a
fee does so under a contract with the car park operator.
Any transaction between the driver and the operator
comes under the laws of contract.
B10.2 The parking contract sets out the terms that apply to the
parking service, including the price. The contract may also
say what the extra charges are that the driver will have
to pay if they break the contract terms − for example, by
parking longer than the time paid for. In the Code these
are called ‘parking charges’.
B10.3 Parking charges must be fair, reasonable and not
disproportionately high. We may ask you to show us
evidence to support the level of your parking charges.
allowed an extra 14 days to serve a NTO on the
driver from the date you received notification.
When writing you must include the following
• that the NTO is addressed to the registered
keeper as the person responsible for the vehicle
and is asking for payment of an outstanding
parking charge incurred by the driver. The
registered keeper must be given an opportunity
to tell you that they have sold, hired or were not
driving the vehicle, and if they were not driving it,
• that a parking ticket was fixed to the vehicle, or
issued by post, and has not been paid
• that it is too late to pay a discounted amount
• that payment of the amount owing must be made,
or the ticket challenged, within 14 days or you may
d) Charge recovery and court action
If the Small Claims Court issues a judgment in
your favour, the Court will serve this judgment by
post or in person. However, we recommend that
you take a co-operative approach to collecting
outstanding money and avoid court action when
possible. The courts expect parties in civil actions
to be co-operative, and to try to resolve disputes
without court proceedings. The courts do not
look favourably upon operators who try to
demand money within short timescales and by
using threats, and will award costs against them.
Likewise, the courts do not look favourably on
motorists or consumers who try to withhold
information from operators when it has been asked
for with genuine, reasonable and proper cause.
BPA conveniently forget that their members do not have possession of the land and are charging an unlawful penalty above any contractual loss, which could be only recovered if they were acting as agents on behalf of the land owner and then only actual contractual losses!
For years they have broken the Marlborough Act by towing vehicles away and not using courts as defined in Marlborough Act!
Unfair Contract Terms Act 1977 which clearly provides under group 5 para 1(e)** that “Terms may be unfair if they have the object or effect requiring any consumer who fails to fulfil his obligation to pay a disproportionate high sum in compensation”. In other words, the company owning or managing the parking space can only charge a penalty which accurately reflects the loss of income they suffered arising from that breach. Insofar as the driver arrived 11 minutes late the penalty, if any, should be the cost of an 11 minute ticket. If there were several other parking spaces available, then no loss was suffered.