FOLLOWING THE COURT OF APPEAL DECISION IN PARKING EYE LIMITED - v- BEAVIS I AM REVISING THIS PAGE.
IT WILL TAKE A LITTLE TIME TO FULLY CLARIFY THE POINTS RAISED IN THE DETAILED JUGMENT.
HAVE YOU RECEIVED A DREADED "PRIVATE" PARKING TICKET? IF SO APPEALNOW.COM CAN HELP YOU.
YOUR DEFENCE TO SUCH A PARKING TICKET IS TO STATE THAT "THE AMOUNT CHARGED IS NOT A GENUINE PRE-ESTIMATE OF LOSS"
THE PRIVATE PARKING COMPANY MUST ALSO DEMONSTRATE THAT THEY HAVE THE RIGHT TO ISSUE THE "FINES".
What do you do if you have received a so called "Parking Ticket" for parking on private land?
Firstly the use of the word "Parking Ticket" referring to a penalty imposed for supposedly overstaying or infrinding some "parking" regulation is a misnomer.
It will normally be issued by a private company.
Secondly unlike a Penalty Charge Notice (the legal name for a parking ticket issued by a local authority under Traffic Management Act 2004, or in Scotland, The Road Traffic Act 1991) it is NOT governed by statute but by contract law and property law.
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I believe that most private parking penalties are unenforceable because
1. They are penalties which can only be enforced by statute (Interestingly the RAC foundation have recently taken legal advice and confirmed that a penalty cannot be levied by private individuals or companies) and
2. the so-called contract is often either not seen or not seen in its entirety by the motorist . Moreover the right of the car park company to levy the fine is, once again in my view, dependent on the contract with the land owner or lessee.
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In any case the so-called Parking Ticket/Fine is only enforceable by a court and only then if the parking company sue you and win.
I NOW recommend "appealing" to the parking company. If you have done so and your "appeal" has been turned down I NOW RECOMMEND appealing to POPLA
If you were to lose your appeal at POPLA you are still not obloged to pay the amount charged.
The parking company would have to sue you and win in order to get you to pay up. Even if the car parking company has won courts have been saying that the amounts they are claiming is not fair and cutting down the judgements to small figures. So even if they threaten to send round debt collectors or bailiffs they can't until they win in court!
If they write to you if you do not pay, or if you want to write to them (they will then have your address if you initiate the correspondence) in your position I would say "I wish to have my day in court. Please do not send any more threatening letters as it is criminal offence (remember they can only enforce the so called "parking ticket" by suing you in court) Alternatively you could write but not put an address on the letter saying the same thing.
If for any reason they do send round debt collectors (which some try on - I repeat it is not an enforceable debt until a court declares it to be a judgment against you!) I would not open the door - tell them that they are demanding money with menaces and are trespassing and you will have them arrested. Also see my note below on The Administration of Justice Act 1970.
Data Protection Act ,CCTV and private parking tickets and penalty charge notices- click on this link.
The Unfair Terms in Consumer Contracts Regulations 1999
In my view The Unfair Terms in Consumer Contracts Regulations 1999 apply to private parking tickets.
This is what the regulations say:
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."
This provision certainly applies to so called contracts for private parking.
More on this point to follow.
The Administration of Justice Act 1970
Section 40 is headed "Punishment for unlawful harassment of debtors"
Under Section 40 of The Administration of Justice Act 1970
(1) A person commits an offence, with the object of coercing another person to pay money claimed from the other as a debt due under a contract, he—
(a) harasses the other with demands for payment which, in respect of their frequency or the manner or occasion of making any such demand, or of any threat or publicity by which any demand is accompanied, are calculated to subject him or members of his family or household to alarm, distress or humiliation; [BARRIE'S NOTE -]
You may get letters threatening to send round so called debt collectors.
This in my view an offence under Section 40(1) (a) of The Administration of Justice Act 1970. The reason is that this is not a debt until a court issues a judgement against you and until a court does so the car park company cannot enforce it.
Sometimes these so called debt collectors arrive on your doorstep. DO NOT OPEN YOUR DOOR AND NEVER LET THEM IN EVEN TO "DISCUSS" THE MATTER. Sometimes these people will claim some sort of official standing which is also a breach of 40(1) (c) below.
Telephone the company who sent them and tell them that these people are trespassing and must leave or you will call the police.
These actions may also be a criminial offence under the Protection from Harassment Act 1997 (see http://www.legislation.gov.uk/ukpga/1997/40/contents)
(b) falsely represents, in relation to the money claimed, that criminal proceedings lie for failure to pay it;
(c) falsely represents himself to be authorised in some official capacity to claim or enforce payment; or
(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.
In my view if a private parking ticket is called a "PCN", Penalty Charge Notice, Notice to Owner or Fixed Penalty Notice or is made to look like a penalty charge notice from a local authority or a fixed penalty notice issued by the police or some local authorities, then the parking company has committed an offence under Section 40(1) (d) of The Administration of Justice Act 1970.
Many parking companies in correspondence refer to a "private parking" ticket as a PCN (this the common abbreviation used to describe a Penalty Charge Notice issued by a local authority or Transport for London).
Similarly if they send you a document called a "Charge Certificate" I believe that this is also an offence under Section 40(1) (d) as "Charge Certificates" are only issued by local authorities and Transport for London.
The whole point of this exercise is to make you believe that the document you get has some statutory validity which it does not. Similarly I have today seen a blatant example of a private parking ticket inside an envelope with the words "Fixed Penalty Notice"
These tactics are illegal and should be reported to the police.
A motorist has contacted me after they received a privates company's "Charge Certificate". Only Transport for London and local authorities and can issue these and in my view this is a clear illegal act under 40(1) (d) of The Administration of Justice Act 1970.
DON'T GET CAUGHT OUT BY THESE TRICKS!
(2) A person may be guilty of an offence by virtue of subsection (1)(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.
(3) Subsection (1)(a) above does not apply to anything done by a person which is reasonable (and otherwise permissible in law) for the purpose—
(a) 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
(b) of the enforcement of any liability by legal process.
(4) A person guilty of an offence under this section shall be liable on summary conviction to a fine of not more than £100, and on a second or subsequent conviction to a fine of not more than £400.
PS: In my experience I would not hold your breath about winning an appeal against a private parking ticket - the so called appeal process is not run by an independent body.
HUMAN RIGHTS ACT 1998
In my view if the fee for releasing your vehicle is unreasonable (and in my view they all are) it is therefore a punishment rather than compensation. Therefore there is a very strong argument to say that that this is a breach of your human rights under the act because you can only be "punished" after due legal process.
WHAT HAPPENS IF THEY TAKE YOU TO COURT?
So let's assume that the parking company has taken you to court. They are going to claim the amount of the charge that have made on the so called parking ticket given or sent to you. [ Please note that from 1st October 2012 if the parking company follows certain procedures the owner of the vehicle may be become liabile rather than the driver for any liability which may arise in court.]
There are 4 pointsto your defence
1.If the terms for parking were not properly or completely displayed your defence is: There is no contract because the terms were not made clear to you or were incomplete. The parking company will have to demonstrate that the full terms of the contract were made available to you when you entered the car park
4. The sum claimed is a NOT genuine pre-estimate of loss
What this means is that the parking company can only recover its loss. Its loss can only be an amount that they would have charged for the time you overstayed at in the car park without buying a ticket. So if they charge £4.00 per hour then if you overstayed 1/2 hour then they can only charge you £2. If you forgot to buy a ticket and stayed there two hours then they can only claim £8. It could also include the cost of printing that one parking ticket.
It cannot include day to day running of the car park, back office salaries or the parking attendant's salary
3. The so called parking ticket is not enforceable because of The Unfair Terms in Consumer Contracts Regulations 1999.
3. In particular if you own the car but were not the driver at the time (e.g. your wife used your car ) then you cannot be held responsible for the action of the driver, between there was no contract between you and the parking company.
If you get sued in yourt defence ask the parking company to produce the following information for you and the court.
1. A copy of the contract.
2. Evidence that they are entitled to receive the sum they have claimed.
3. Evidence that the sum claimed is a genuine pre-estimate of loss and the precise calculation they made to come to the figure claimed
HAVE YOU BEEN CLAMPED ON OR TOWED FROM PRIVATE LAND?
If you have click on the link above.
For completeness a private parking ticket appeals body is being set up.
Click on this link to be kept up to date on parking ticket news, everything about parking tickets, clamping towing, bus lanes and yellow boxes.
The whole matter of private parking tickets is now before the Court of Appeal in the case of Parking Eye -v- Barry Beavis & Martin Wardley
Disclaimer: This information is my interpretation of the complex law relating to private parking tickets. It is based on my understanding of the law but as in all matters of opinion relating to legal matters I cannot guarantee that a court will agree with my opinion.
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