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Index
to sections...
Private
parking companies
PPCs
commit criminal offences
The
contract element
To summarise -
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PRIVATE PARKING COMPANIES
A
guide to an effective defence.
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).
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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.
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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.
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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 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.
Warmest regards,
Pete Jones, Advisor
in Criminal Law
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