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).
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.
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.
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.
Warmest regards,
Pete Jones, Advisor in Criminal Law