PARKING FINES. What are my rights regarding parking penalties for parking in private carparks and on private land.
(Updated 13-4-2014) with grateful thanks to Nev Metson:
Do you shop at supermarkets, visit DIY stores, eat at restaurants or takeaway establishment, stay at hotels, drop people off or pick them up from airports, or visit any other retail outlets that provide their own parking facilities? If the answer is ‘Yes’ then this applies to you.
The vast majority of these retail units now employ private parking companies (PPCs) to manage the parking at these locations.
Unlike the Police and Local Authorities these PPCs cannot issue 'fines' or 'penalties'. However, their parking tickets bear a striking resemblance to those issued by the authorities and often use the same abbreviation of 'PCN' – although in the case of the PPCs 'PCN' stands for 'Parking Charge Notice' rather than 'Penalty Charge Notice'.
The way that these private parking tickets ‘work’ is that it is all based on civil contract law. If a motorist breaches the advertised terms and conditions then the PPC will either seek ‘damages’ or a ‘contractual sum’ for that breach. Only the driver is potentially liable for the parking charge (but the 'keeper' can be held liable is the driver is not identified).
Those PPCs who are members of the British Parking Association Ltd’s 'Approved Operator Scheme' can get unlimited access to registered keeper data from the DVLA. Those bigger companies who process thousands of these tickets every day can apply for DVLA access electronically using the 'Data Protection Act' exemption of 'Just Cause'. This is the equivalent of those companies having a DVLA computer terminal in their offices. At this point, access to registered keeper data is based in a small part on a contractual agreement and a large part on trust, and in reality that access is totally unrestricted.
The British Parking Association Ltd’s ‘Approved Operator Scheme’ is a private members club and it exists primarily to promote the interests of its members. It oversees a Code of Practice which PPC members are expected to abide by and the BPA Ltd is expected (by the DVLA) to enforce. In the latter part of 2012 however, the DVLA was forced to reach over the BPA Ltd’s shoulder and suspend six of its members for serious breaches of the rules because the BPA Ltd had repeatedly failed to act.
The DVLA earns £2.50 for each data release to a PPC and this generates in excess of £5,000,000 a year in revenue for the DVLA/Dft.
In 2012, the Protection of Freedoms Act (PoFA) came into being and slipped in under the radar was Clause 56 and Schedule 4 which dealt with parking on private land. In a nutshell, from 1st October 2012, clamping was largely banned in England and Wales but the trade-off to the clamping gangs was that the registered keeper can now be potentially held liable for the alleged debt of the driver (so long as certain conditions are met).
There are two ways that a PPC can ‘ticket’ a vehicle under PoFA.
1) A private parking ticket placed on a vehicle is prescribed under PoFA as a ‘Notice to Driver’ (NtD)
2) A private parking ticket sent to the registered keeper through the post is prescribed under PoFA as a ‘Notice to Keeper’ (NtK)
The PPCs have decided to stick with the generic title of ‘Parking Charge Notice’, abbreviated to ‘PCN’ rather than the correct titles of NtD and NtK.
The consumer safeguards in PoFA actually create a legal framework under which the PPC can ultimately seek to claim the parking charge from the registered keeper. That legal framework consists of a number of legal hoops that the PPC must jump through before the registered keeper liability ‘kicks in’.
Two simple examples are as follows:-
1) Where a NtD has been placed on the offending vehicle at the time of the event, the PPC is prohibited from accessing the registered keepers details until day 29 after the initial parking contravention. If they access the registered keeper data before day 29 they have failed to comply with the statutory requirements of PoFA and the registered keeper cannot be held legally liable for the driver’s debt.
2) Where a NtK is sent via the post (and no NtD was issued at the time of the parking event) then the PPC must serve the NtK on the registered keeper within 14 days. If the NtK is either posted or received outside the 14 days then the PPC has failed to comply with the statutory requirements of PoFA and the registered keeper cannot be held legally liable for the driver’s debt.
Whilst the PPCs cannot issue 'fines' or 'penalties', they can pursue a sum of money under civil contract law (the 'parking charge') either as ‘damages’ arising from the breach of the Terms and Conditions or as a ‘contractual sum’.
The difference between the two is as follows;
If they are claiming 'Damages' – the amount of the parking charge can only be a genuine pre-estimate of liquidated damages. For example, if parking is £5 an hour and you stayed for an hour without paying then the damages or loss would be £5 plus maybe £2.50 for the DVLA (to trace the registered keeper) and maybe another £7.50 for admin and postage costs to write to the registered keeper making a fair and reasonable total of £15.00
However, if they are claiming a 'contractual sum' – this is the fixed price for parking other than in accordance with the Terms and Conditions. For example, a sign might say (in effect) "you can park here for free so long as you are only here for two hours, you park within the white lines and within the designatesd spaces and only park in the disabled bays if you display a blue badge, alternatively you can park for longer, straddle the white lines, park outside the bays or park in a disabled bay without a blue badge at a cost of £100 (reduced to £60 if paid within 14 days)"
However, when you receive your NtD or NtK you may not necessarily be informed whether the parking charge amount they are demanding you pay is either 'damages' or a 'contractual sum'.
'Damages' are viewed by HMRC as a breach of contract and are therefore not liable for VAT. A 'Contractual sum', however, is viewed by HMRC as providing a service and is liable for VAT.
Basically, parking is subject to VAT and it is a legal requirement to state the percentage and the amount of VAT due on any transaction totalling more the £50. So a failure to disclose whether a 'PCN' for more than £50 is 'Damages' or is a 'Contractual Sum' might be viewed by HMRC as an offence.
Next, there is a two stage appeal process, firstly to the PPC itself and if that is unsuccessful then to the 'Independent' Appeals Service (funded by the BPA Ltd and its PPC members) called 'POPLA'.
Nev Metson is starting a website informing recipients of 'Parking Charge Notices' how to handle this. (URL TBA).
If the PPC does not state whether the amount claimed is damages or a contractual sum', it is important for those challenging the legality of the parking charge amount to submit appeals that address both the potential issues of ‘damages’ and a ‘contractual sum’
The whole appeal process is fairly lengthy and time consuming and so in the first instance, where the charge is £30 or less, it may be easier to simply pay the initial parking charge at the reduced rate and move on with your life.
That is unless of course the moral principles of right and wrong make it an issue worth fighting.
THE LAW FROM 1-10-2012:
A new Law from 1st October 2012 (part of the Protection of Freedoms Act) changed liability for parking on private land from the driver of the vehicle to the vehicle’s registered keeper, unless the keeper clearly identifies who was driving the car at the time.
From figures compiled by the British Parking Association, over 2011-2012, 1,800,000 Private Parking Charge tickets were issued. Of these, 31% went unpaid, leaving 1,242,000 paid.
Typically, these ‘breaches of parking contract’ include: dropping a disabled person off at the door of a shop, bringing a vehicle close to the door of a shop to load a heavy item, falling asleep in a car at a motorway service area where parking is restricted to 2 hours, returning to the same 2 hours free car park later the same day, displaying a misprinted parking ticket, parking ticket blowing off the car’s dashboard, car one wheel over a bay marking white line, failure to buy a ticket (when the machine is broken), parking outside the parking bay, parking in a disabled bay without displaying the blue card the right way up, leaving the carpark to go to the bank to get money to shop in the shops served by the carpark, breaching any of the conditions of the carpark that may be many and varied and listed on a small notice board you failed to see,…it’s a long list.
In 2013, members of the British Parking Association planned to issue 500,000 more Private Parking Charge tickets, bringing the total to 2,300,000. But, because keepers can be legally pursued for these charges, it is likely that the number of tickets actually paid will increase by about 1,000,000, to close to the number of tickets actually issued.
At an average of £50 a ticket, that will increase revenues for BPA members by around £50,000,000, and, correspondingly, leave the British Motoring public poorer by an extra £50,000,000.
How was this allowed to happen?
Partly because consumer journalists in general slept through it and did not alert the public to this attack on their pockets.
And partly because MPs were either too stupid to realise the implications, or had vested interests in this new law being passed, or were misled.
As part of the due diligence before the law was passed, an Impact Assessment was carried out, in particular on the burden on the county court system in trying cases where keepers and drivers were pursued for private parking charges they had not paid.
The figures submitted by the BPA were that between 2% and 5% of tickets issued resulted in court action. This equates to between 36,000 and 90,000 of the 1,800,000 tickets issued.
But a Freedom of Information request to the Ministry of Justice shows that, in fact, members of the BPA registered only 845 small claims court actions, of which only 49 cases actually went to a contested hearing in the small claims court.
So the change in the law making vehicle keepers directly liable for private parking charges will result in the burden on the courts being reduced by a maximum of only 49 cases, not between 36,000 and 90,000 cases.
There will no longer be any ‘get out’. Vehicle keepers sent private parking charge notices will be legally liable either to identify the driver responsible or to make the payment.
THREE STAGES OF APPEAL
However, they (or the identified driver) will be allowed to appeal. Firstly to the parking company itself that issued the parking charge. Then secondly to an Independent Appeals Service (POPLA) administered by London Councils (who already operate the adjudication service for decriminalised street parking offences). Taking an appeal to this second stage removes any discount for early payment of the penalty. If keepers or identified drivers are not satisfied with the the decision of the IAS (POPLA), they can still contest the matter in the County Court.
Making a person (the keeper) liable for a civil breach of contract by another person (the driver) is fundamentally flawed as it is contrary to long established legal principles under Contract Law. So a case will need to be taken to Appeal and then on to the Supreme Court for a ruling. Hopefully an organisation claiming to represent the interests of motorists will finance this.
Meanwhile, vehicle owners and drivers of all ages and classes will be compelled to dig deeper to the tune of up to £115,000,000 a year for such minor transgressions as dropping a disabled person off at the door of a shop or parking with one wheel over the line marking a parking bay.
One vehicle owner or driver in every 15 will be pursued for between £45 and £130.
Two comments from Nev Metson who knows more about this issue than anyone else:
I'd like to make two observations if I may.
1) The Achilles heel in this legislation for the private parking company is that once the registered keeper has named the driver then the registered keeper can no longer be held liable, irrespective of whether or not the private parking company gets it's money or not from the driver. This is really important because I anticipate that some 'rogue' operators might try to simply pressure the registered keeper. If this happens I'm sure that Patrick Troy and the BPA boys will come down on them like a ton of bricks so please continue to complain to the BPA everytime this happens.
2) We are still awaiting a formal public statement of response from Patrick Troy and/or the BPA about the huge disparity in the figures that were included in the Impact Assessment. 49 contested court cases simply cannot be 'spun' into meaning 'between 36,000 and 90,000 cases'. In the interests of openness and transparency I look forward to the frank and honest explanation from the BPA (as befits a Government sponsored ATA) as to exactly what went wrong. Clearly such a statement must include, as an absolute prerequisite. the disclosure of the data upon which the figures were based so that we can see for ourselves that the BPA are operating with 'clean hands'
The second level appeals service is called POPLA
Nev Metson explains: “The first appeal to the private parking operator can be about almost anything relating to the issue of a parking charge where the parking operator should genuinely consider each case on its merits, including mitigating circumstances. I understand that Parking Eye (for example) currently 'allows' in the region of 50% of all appeals it receives.
The second stage appeal to POPLA is only available to motorists if the operator refuses the first appeal. POPLA will only consider the raw legal aspects of the parking event that caused the parking charge to be issued in the first place. Any appeal to POPLA must be made on legal grounds and the two principle grounds are: The operator does not have sufficient contractual rights to bring a claim in its own name. Or the amount of the parking charge (for breach of the terms and conditions) does not represent a genuine pre-estimate of liquidated damages.”
Barrie Segal of www.AppealNow.com is recommending people to not appeal to POPLA although it will be run by a very experienced and highly respected parking adjudicator. The main reason is that there will not be any personal hearings of cases. This erodes a fundamental element of British law. In fact I know of no tribunal in the UK where an appeal cannot be conducted in person. Therefore cases will only be decided on the basis of paperwork/evidence submitted by the parties which in my view must give an advantage to the parking company as most motorists will not have the time, skill or experience to present their cases fully. Additionally in my experience personal appellants at the parking adjudicators are often able to put their case well and have the added advantage that they can clarify or expand on any questions the adjudicator might have.
Barrie Segal questions POPLA over two issues:
The POPLA website's FAQs state "Will the parking charge increase if I lose my appeal? You will have already lost your right to the early payment discount offered by the operator and be liable for the full cost of the parking charge notice. If your appeal is refused, in order to avoid any further action by the operator you should pay the full parking charge within 14 days. Do not send any payment to POPLA." Rather surprisingly you do not point out that the decision is not binding on the appellant. Could you explain why?
The POPLA website also states "If you made representations to the operator who issued the parking charge notice but these were rejected, you have 28 days to either pay the parking charge or appeal against the operator's decision to POPLA. If you appeal to POPLA, which is independent of both the operator and the BPA, an impartial Assessor will consider your case." Can you explain to me the legal basis for this statement that "you have 28 days to either pay the parking charge or appeal against the operator's decision to POPLA". Are you saying that the motorist must do either and cannot just ignore the matter and let the operator pursue the matter in court/ If you are will you please give me your statutory authority for this statement.
SMALL CLAIMS TRACK OF THE COUNTY COURT
Be careful before allowing a case to go to Small Claims. This is not about what is fair. The judge may only consider matters of law.
A reader whose parking ticket had blown off his dashboard let his case go to court.
The ticket had been retrieved in the presence of the parking attendant, but the reader was nevertheless penalise for failing to display. He argued that the standard terms of the contract ‘ticket to be displayed at all times’ may be unreasonable in a few unusual circumstances and that all the circumstances should be taken into account in the Judges assessment of whether this came into the territory of an 'unreasonable consumer contract' as defined in the 1999 Act. He also argued that this is a consumer contract where the consumer (motorist) has no bargaining power at all. He submitted that a contractual penalty could not apply where clearly the company had suffered no loss. The Judge agreed that the parking companies had not a shred of discretion or reasonableness but that they were not obliged to have this in law and gave a judgement against the reader.The £50 penalty cost him around £170.
13-6-2011: Relevant Clauses of Schedule 4 of Protection of Freedoms Bill:
Department of Transport’s Guidance on Clause 56 and Schedule 4 of the Protection of Freedoms Act 2012: Recovery of Unpaid Parking Charges:-
“Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver.
“If the terms and conditions of parking contracts seek to impose charges for different types of breaches (eg for straddling two bays compared to overstaying in one bay), or for the same breaches in different car parks, consideration should be given to whether the level of loss is likely to vary accordingly.”
VEHICLES LEFT ON LAND
Offence of immobilising etc. vehicles
54 Offence of immobilising etc. vehicles
(1) A person commits an offence who, without lawful authority—
(a) immobilises a motor vehicle by the attachment to the vehicle, or a part
of it, of an immobilising device, or
(b) moves, or restricts the movement of, such a vehicle by any means,
intending to prevent or inhibit the removal of the vehicle by a person otherwise
entitled to remove it.
(2) The express or implied consent (whether or not legally binding) of a person
otherwise entitled to remove the vehicle to the immobilisation, movement or
restriction concerned is not lawful authority for the purposes of subsection (1).
(3) Subsection (2) does not apply where—
(a) there is express or implied consent by the driver of the vehicle to
restricting its movement by a fixed barrier, and
(b) the barrier was present (whether or not lowered into place or otherwise
restricting movement) when the vehicle was parked.
(4) A person who is entitled to remove a vehicle cannot commit an offence under
this section in relation to that vehicle.
(5) A person guilty of an offence under this section is liable—
(a) on conviction on indictment, to a fine,
(b) on summary conviction, to a fine not exceeding the statutory
(6) In this section “motor vehicle” means a mechanically propelled vehicle or a
vehicle designed or adapted for towing by a mechanically propelled vehicle.
Alternative remedies in relation to vehicles left on land
Alternative remedies in relation to vehicles left on land
55 Extension of powers to remove vehicles from land
(1) Section 99 of the Road Traffic Regulation Act 1984 (removal of vehicles
illegally, obstructively or dangerously parked, or abandoned or broken down)
is amended as follows.
(2) In subsection (1)—
(a) in paragraph (a), after “road” insert “or other land”,
(b) in paragraph (b)—
(i) after “road”, where it appears for the first time, insert “or other
(ii) after “road”, where it appears for the second time, insert “or
(c) in paragraph (c) for “, or on any land in the open air,” substitute “or
other land”, and
(d) at the end insert “or other land”.
Part 3 — Protection of property from disproportionate enforcement action
Chapter 2 — Vehicles left on land
(3) In subsection (2)—
(a) in paragraph (a), after “road”, where it appears for the third time, insert
“or on land other than a road”, and
(b) after paragraph (a), insert—
“(aa) may provide, in the case of a vehicle which may be
removed from land other than a road, for the moving of
the vehicle from one position on such land to another
position on such land or on any road;”.
56 Recovery of unpaid parking charges
Schedule 4 (which makes provision for the recovery of unpaid parking charges
from the keeper of a vehicle in cases where it is not known who was driving
the vehicle when the charges were incurred) has effect.
Latest street parking legislation (entirely different from private parking by contract):-
From Barrie Segal - founder of AppealNow.com™
The government has claimed that new parking regulations coming into force in England and Wales on 31st March 2008 are transparent and fairer for the motorist. Nothing could be further from the truth.
One example will suffice. Under current legislation, in order for a parking ticket to be valid it must be handed to the person believed to be the driver or put on the vehicle. If it is not, then it is not validly issued and is not enforceable. This was confirmed in the 2007 High Court case of R (on Application of Transport for London) v Parking Adjudicator (interested party Ademolake) (EWHC 1172 Admin)
Under current law, a ticket issued by a parking attendant can only be sent by post if the parking attendant was physically prevented from putting the ticket on the vehicle or giving it to the driver. (From the 31st of March, as a result of some bright spark’s inspiration, parking attendants will be known as Civil Enforcement Officers—this is the only part of new parking laws which is likely to give the motorist a laugh.)
There are very good reasons for this rule. If someone gets a parking ticket they know exactly what they were doing at the time, and if for example they were letting off a passenger or loading goods, they can gather the evidence necessary to prove that. There are a lot of cases where drivers drive away before the ticket can be put on their vehicle either because they are unaware of the presence of the parking attendant or because they see the parking attendant lurking. In this situation the parking attendant is prevented from issuing a valid parking ticket so it has led to a massive fraud where the parking attendant claims that the ticket was put on the vehicle or handed to the driver when neither was the case. As a result, the first the motorist knows of the parking ticket is when they get a document called a Notice to Owner in the post, claiming they haven’t paid the parking ticket.
When I uncovered this scam nearly five years ago, I christened it the Ghost Ticket, and the name stuck. It is now used by parking attendants, local authorities and the press. There have been many cases heard by Parking Adjudicators which have demonstrated that parking attendants have fabricated evidence to claim that the tickets were correctly served. The latest wheeze is when challenged to show a photograph of the ticket on the vehicle, the parking attendants either claim they were physically assaulted and prevented from issuing the ticket or that the motorist tore up the ticket.
In the new legislation the government has sneakily inserted a provision that where a parking attendant has started to write a ticket and the motorist drives away, they can send the ticket by post. The opportunities for fraud are astonishing and in my view ‘legalize’ the issue of Ghost Tickets. The Transport Minister has claimed this is to do with safety, as it will stop motorists driving away to avoid receiving a ticket!
What is worse is that when a ticket is issued in these circumstances and are sent in the post, motorists will lose their current right to make an informal appeal against the parking ticket. If they appeal to the council and the council turns them down, their next appeal is to the Parking Adjudicator.
There are at least two major problems with this: How will the motorist know exactly what they were doing at the time the parking ticket was allegedly written up and if the motorist never receives the parking ticket because it is lost in the post or mis-addressed (or actually never sent!) the first they will hear of the parking ticket is when they receive a document called a Charge Certificate, increasing the original fine by 50% and threatening that unless payment is made the debt will be registered at Northampton County Court.
The glaring problem with this is that once a Charge Certificate is issued, the motorist can no longer appeal against the parking ticket. They will either have to persuade the council to cancel the Charge Certificate and re-issue the Penalty Charge Notice (the legal name for a parking ticket), or if they do not, then await the registration of the debt at the court and the issue of an Order for Recovery.
The only way then to stop bailiffs arriving at the front door is for a witness statement to be sent to the court stating that the original Penalty Charge Notice was not received and requiring the court to cancel the registration of the debt and requiring the local authority to go back to the parking ticket stage. There are strict time limits to get this witness statement in to the court, and if the motorist fails to do so they can expect bailiffs at their door. Given the high percentage of mail that is lost in the post, it is likely that Orders for Recovery will rocket, bailiffs’ visits will increase, more vehicles will be impounded and general chaos will reign.
If this isn’t bad enough, the new legislation will mean that all parking tickets or other tickets issued on the basis of CCTV camera evidence will be subject to the same new procedure. (Currently all but one type of CCTV-issued tickets are subject to the three-stage appeal process: 1- the informal appeal to the council, 2- the formal appeal to the council, and 3- the final appeal to the Parking Adjudicator.) Moreover, as local authorities outside London start to issue CCTV tickets, this will have a further knock-on effect with corresponding Orders for Recovery and bailiffs’ visits.
The new Parking laws came into force by virtue of the Traffic Management Act 2004. Under this legislation the existing parking legislation, The Road Traffic Act 1991 legislation is repealed. The parking rules are now to be set out in statutory instruments by the Lord Chancellor.
Four Statutory Instruments were passed just before the 2007 Christmas recess on 10th December 2007. As these Statutory Instruments are “delegated legislation “ they were debated and approved in Committee rather than by the full Parliament.
The statutory Instruments are as follows:
Civil Enforcement of Parking Contraventions (England) General Regulations 2007
Civil Enforcement of Parking Contraventions(Approved Devices)(England)Order 2007
Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007.
The Removal and Disposal of Vehicles (Amendment) (England) Regulations 2007
Note that London authorities have been able to issue camera tickets under the London Local Authorities Act 2000 so Camden were entitled to use CCTV to issue the ticket but clearly issued it unfairly.
Since 31st March 2008 other council in England and Wales have the right to issue CCTV tickets for parking and other contraventions if they apply to and re authorised by the Department for Transport.
Barrie Segal is the founder of www.AppealNow.com, a website which helps motorists fight unfair parking tickets.
Barrie is the author of “The Parking Ticket Awards: Crazy Councils, Meter Madness & Traffic Warden Hell” published by Portico.
THE REST OF THIS FAQ NEEDS TO BE TAKEN IN HISTORICAL CONTEXT. IT WAS WRITTEN BEFORE THE PROTECTION OF FREEDOMS ACT CAME INTO EFFECT IN OCTOBER 2012, SO IT IS BACKGROUND ONLY AND HAS BEEN SUPERCEDED BY THE ABOVE.
BPA and Parliament
The British Parking Association in 2011 lobbied Parliament for a clause in the Protection of Freedoms Bill (Chapter 2, Clause 56) to make vehicle keepers liable for private parking penalties in the same way they can be held liable for road traffic offences and street parking offences if they do not identify the driver of the car at the time of the offence. Already the BPA has obtained exemption from the Data Protection Act allowing its members to purchase keepership details from the DVLA in order to pursue keepers for parking penalties. (Relevant Sections of Protection of Freedoms Bill at the end of this FAQ answer).
On 8th November 2011, Parlaiment passed the Protection of Freedoms Bill with Clause 56 unamended with no statutory appeals service. However, the Bill provides for the Secretary of State to take a decision on the suitability of the "independent challenge body" before issuing a “commencement order” for this part of the Act and the British Parking Association will be setting up an independent appeals scheme to operate from October 2012. Meanwhile, the BPA has asked that if I receive complaints about private parking enforcement that I feel are justified, I should ask readers to register their concern at www.britishparking.co.uk/AOS-Enquiries You can find the BPA Code of Practice at: www.britishparking.co.uk/Approved-Operator-Scheme-Code-of-Practice
As of 23-12-2011, Parliament had not passed the Protection of Freedoms Bill. It has completed its passage through the House of Commons and is currently at committee stage in the House of Lords. It is expected to
receive Royal Assent in the spring of 2012 and it is anticipated that the parking provisions will become law in October 2012.
As written, the Bill provides for a ban on wheelclamping without lawful authority in England and Wales.
There is no specific reference to an independent appeals service. The government has no plans for a statutory appeals service.
The Government has asked the BPA to establish an independent appeals service (IAS) and this the BPA is committed to do. It is working in partnership with consumer and motorist representatives groups: CAB, Consumer Focus, The RAC Foundation, Disabled Monitoring UK and others. It is absolutely the BPA's intention to establish this IAS so that it is not only independent of the BPA and the AOS but seen to be so.
The Bill also provides for the issue of what are being described as Parking Enforcement Notices (PEN) by private companies managing parking on private land. These can be served directly to the driver, attached to the vehicle or delivered by post when ANPR or camera technology is used for enforcement purposes. The Government has agreed and that there should be a duty on the registered keeper to identify the driver at the time of the contravention; if the driver cannot be identified in the keeper becomes liable for unpaid parking charges. The Bill provides for this in Schedule 4.
Other general information about the BPA which may be of interest:
The BPA is committed to raising standards in the management of parking on private land and requires all its members to adhere to the AOS Code. Every member of the AOS needs to undergo an Evidence of Compliance audit at the time of joining; which is repeated annually and by an external auditor.
Since October 2010 the BPA has had a scheme of sanctions in place which awards Penalty Points on a Scale depending upon the severity of the breach of the Code, (like a driving licence) Penalty Points expire after 12 months assuming that rectification has occurred. Currently 23 member companies (out of 157) are in receipt of sanctions and the total number of Penalty Points currently active is 59.
If a company acquires 12 or more penalty points in any 12 months period it is suspended and liable to be expelled from the BPA in accordance with the BPA Code of Professional Conduct for bringing the industry into disrepute. The membership of five companies has been terminated.
The AOS as it stands today has a Complaints Service and motorists can write to us where they suspect a breach of the AOS Code has occurred. The BPA Code requires that each AOS member has an internal dispute resolution process. The BPA cannot deal with mitigation for parking enforcement action, which currently must be taken up with the operator's dispute resolution service. Once the IAS is in place we shall include in our Code a requirement for the operator to tell a motorist with an unresolved mitigation claim about the IAS. This mirrors the statutory regime in principle.
Unfair Private Parking Penalties
(With thanks to Alan Salsbury)
Ticketed car parking in a car park or on private land is a contract between the car driver and the owner of the land or the company managing paring on the land. If an unfair penalty for parking in an off road car park is imposed by a parking enforcement company due to a breach, often due to circumstances beyond the car owner's control, there is a remedy. (Thinking in particular of the driver who, having purchased a train station parking ticket for two days, arrived back at the car 11 minutes late.)
The law covers this situation adequately with the 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.
"I have quoted this act several times to such organisations and in each case they have cancelled the ticket, albeit without prejudice to future decisions to avoid creating a precedent. It has worked every time. However, anybody thinking of using this law to avoid buying a ticket. beware. You have to purchase a ticket to establish a contract."
(** Amended by Schedule 2 under regulation 5 (5) of the Unfair Terms in Consumer Contracts Regulations 1999.)
A debt collector can be used without a court order. They are often used to collect debts using scare tactics including threatening letters, threats of a visit, telephone calls etc - but a bailiff cannot be used to seize goods without a court order or judgment.
Many debt collectors have certified bailiffs attached to them. They print this on their letterhead and will attempt to blur the line and confuse the issue in the alleged debtor's mind as to the role in which they are acting at any particular time. So in private parking cases we are often told that they have "received a letter from a bailiff" when the case has not been the subject of any court proceedings. The letter is from a debt collector.
Prior to a court order (and often prior to court proceedings) the main recourse of the debt collector is of threats of possible things to come rather than any actual deliverable action. So the closer they can associate themselves with future difficulties without the problem of going to court and actually winning their case the more likely they are to receive payment. This is particularly true when the alleged debtor is more "vulnerable" - older people will often pay in the face of these threats for example.
WHAT TO DO
If you have not paid to park and are clamped or issued with a penalty notice, there is no initial contract. The Appeal Court case Vine -v- Waltham Forest found against the parking company.
The relevant points are:
# The breach of contract brought no damage therefore claimant is only entitled to nominal damages.
# Unfair Contract Terms Act 1977 s.5 (arbitrary sums claimed) and possibly UCCT Regulations 1999 as well regarding the charges being penalties.
# No evidence has been provided and the claimant will be put to strict proof.
# No harassment, please – Protection from Harassment Act 1997.
# Registered keeper is under no obligation to identify who was driving at the material time, whether or not the or she knows this.
# If claimant wishes to sue for nominal damages, please start an action in the County Court.
From The HJ Column on 18-12-2010 Parkers guide:
I write regarding the advice you gave to DP on 14th September regarding a 'penalty' he received from Parking Eye in an Aldi carpark. Private Parking Companies (PPCs) such as Parking Eye are quite simply charlatans out to make a quick buck.
Their 'Penalty Notices (PCNs)' are unlawful as nobody except Councils and Police have the legal power to issue fines. Thus the PPC’s use of words such as 'penalty' and 'fine' are also unlawful and inaccurate. So-called 'penalty notices' issued by PPCs are simply speculative invoices which can quite safely be ignored.
Parking Eye (and most other PPCs) have never won a court case over their joke parking tickets; the one or two incidents of such court cases have resulted in the PPC losing quite spectacularly.
If a PPC 'ticket' placed on a vehicle goes unpaid and ignored, the PPC will apply to the DVLA for the registered keeper's name and address, and will proceed to post the keeper a series of progressively more threatening and intimidating letters, sometimes replacing their name with that of a solicitor or debt collection agency that may or may not exist, before simply giving up and moving on to their next victim.
The PPC’s argument is that you have breached the contract you entered into with them when parking in the carpark, but there are a number of issues with this.
Firstly, the fact that terms and conditions are written on a sign somewhere in the carpark, and the fact that you've parked in said carpark is not good enough in a court of law to prove that you have agreed to the terms of the contract.
Secondly any such contract (if it exists at all) is entered into with the driver of the vehicle at the time, not the registered keeper to whom the PPC will send harassing and threatening letters.
Furthermore, so far (May 2011) the PPC has no legal right to force the keeper to declare who was driving the car when it was parked in the carpark (Section 172 of the Road Traffic Act does not apply to PPCs), so the existence of any contract is thrown into doubt yet again. (The British Parking Association is lobbying Parliament to change the law over this and make keepers liable.)
Thirdly, if the PPC somehow manages to convince a court that a contract does exist, they are entitled only to “reasonable” compensation for the losses incurred by the car being parked in the carpark contrary to their terms and conditions; they are NOT entitled to ‘fine’ the driver an arbitrary amount.
If the car park was, for example, pay and display, the PPC would be entitled to the £1 or £2 lost by not paying, but if the carpark was a free supermarket carpark, they would be entitled to absolutely nothing. I therefore disagree with your advice to DP to send Parking Eye £10. If he or she did this, not only would he be wasting £10 of his hard earned money on a PPC which does not deserve it, he may also in his covering letter admit to driving the vehicle at the time and or give Parking Eye personal information such as his address which they could then use to send him the series of threatening letters.
My advice is to simply ignore the invoice placed on his windscreen, and file it along with the chain of threatening letters for use in the highly unlikely event that court proceedings do actually follow. You will notice that the DVLA is complicit in this little scam. The reason for this is that the PPCs pay the DVLA £2.50 every time they wish to acquire a registered keeper's name and address, and, indeed, you give the DVLA permission to do this in the small print when signing the V5 on any car you buy.
Thank you for this excellent, beautifully written and informative email, but I think you may be wrong about “free” supermarket carparks. They are conditional. They are there for customers of the shop and the ‘consideration’ of a parker’s contract is the money he or she spends in the supermarket. If you park there and spend no money in the shop you have effectively ‘stolen’ a parking space that could have been used by a paying customer. That is why, in this situation, it is wiser to offer “reasonable” compensation than it is to try to get away Scott free. I think the same applies if you park in a restaurant carpark and do not actually eat there. Or if you eat there, then leave your car in the carpark to shop elsewhere.
If you are ever claimed against you should look for EX303 on the HCMS website, which gives you all the information you need to respond to a claim following the lodgement of an NI by the Claimant. Link to HCMS/EX303
Response from Hew Goldingham
I have read with great interest HL's letter in today's page regarding the answer to the intimidatory practices of Private Parking Companies. I also agree with your view that their threats should not simply be ignored, and would add that in the event that one's cheque proffered in "reasonable compensation" is returned together with a further demand for the full (or an increased) penalty, one should reply that the demands amount to the criminal offence of harassment under the Protection from Harassment Act 1997 and may also entitle the writer to bring a claim for damages against the PPC. [The threat of a claim for damages is in practice a hollow one if, as I understand it, damages are a discretionary adjunct to an injunction to stop the harassment occurring; invoking the criminal offence should be enough of itself to put a stop to the threats]. Prior to the coming into effect of the Protection from Harassment Act 1997 I successfully used on a couple of occasions on behalf of an elderly relative the similar provision of the Administration of Justice Act 1970 (as amended by the Criminal Justice Act 1982) to put a stop to persistent and unjustified demands. It constantly surprised me that such a useful tool appeared to be so little known - such bullying tactics must have succeeded on uncountable occasions, and it's appalling to hear that PPCs are lobbying to have their powers increased; thank heaven for voices like yours constantly fighting for all (sensible) motorists.
Hew Goldingham adds (22-1-2011): In very many cases the car parks are operated by the PPCs as agents for e.g. one of the train operating companies, and therefore your contract is with the principal, not the agent. Study the terms and conditions posted in the car park, as they should disclose (I believe in law they must) if the PPC is agent for another party. If you have a proper case my advice is to talk to the organ grinder and not the monkey, i.e. ignore the PPC and write direct to the principal. This will often dispose of the complaint straight away - provided you write in a reasonable and temperate tone. You may then have the pleasure of telling the PPC to stop wasting your and their time. (If like me one is retired and with time to spare, there can fun to be derived from stringing the thing along as the calibre of those employed by the PPCs is often lamentably low, but for a busy working person or an easily intimidated individual the pressure exerted by PPCs can cause great anxiety).
Council CCTV Trickery
Article by Barrie Segal about unscrupulous use of CCTV in council carparks: CCTV Trickery
Another parking ticket site
The rest of this section should be read in historical context
The 1689 Bill of Rights embodies your fundamental constitutional rights and cannot be repealed or amended in any way.
This website explains more:-
However, on 6th July 2006 in the Royal Courts of Justice, the Judge refused Robin de Crittenden oral application for Judicial Review, declaring that, "the Bill of Rights does not apply to parking as parking tickets are not fines or forfeitures."
Paul Smith (RIP), founder of the Safe Speed road safety campaign (www.safespeed.org.uk) said: "This is a perverse ruling apparently intended to preserve the status quo. It's not a judgment - it's a fudgement."
"It's a very bad day for justice, but a good day for the English language, which surely must gain the word 'fudgement'. Over 400 years of legal principles are being swept away and we are by far the poorer for it."
6.00 am Thursday 3rd August 2006
High Court Parking Ticket Victory for Motorists
AppealNow.com’s claim that Barnet and other council’s parking
tickets are invalid upheld by the High Court.
Barnet Council’s parking tickets were judged to be invalid in a landmark case decided in the High Courton 2nd August 2006.
Mr. Justice Jackson ruled that Barnet’s parking tickets were invalid as they did not have two dates on them, one a date of contravention and the other a date of issue.
In the case of Hugh Moses – v - Barnet, Barrie Segal the founder of www.AppealNow.com™, represented Mr. Moses at the Parking Adjudicator and challenged the validity of Barnet Council’s parking tickets on the grounds that they did not have a date of issue. Two separate Parking Adjudicators upheld Mr. Segal’s argument and agreed that Barnet Council’s parking tickets were invalid.
Barnet Council took the matter to the High Court and challenged the decisions.
The test case decision by Mr. Justice Jackson ruled that Barnet’s parking tickets were invalid as they did not have two dates on them, one a date of contravention and the other a date of issue. He also said that any parking ticket needs those two dates to be valid.
Barrie Segal of www.AppealNow.com says “Parking tickets have to comply with a strict legal requirement. Under the Road Traffic Act 1991 the date of issue, amongst other things, must be shown on the parking ticket. In the Barnet and other cases it was not.
I have previously told the Chief Parking Adjudicator in London, the National Parking Appeals Service and the Scottish Appeals Service that in the interests of justice all adjudicators must consider the validity of the parking ticket when the make their decision. The fact that Parking Adjudicators have not done this as a matter of course is unacceptable. Following this decision they will have no choice.
The Parking Tickets (technically called a Penalty Charge Notice or PCN) do not comply with Section 66 of the Road Traffic Act 1991(“RTA 1991”)
Section 66 (3) states
(3) A penalty charge notice must state [my emphasis and underlining]—
(a) the grounds on which the parking attendant believes that a
penalty charge is payable with respect to the vehicle;
(b) the amount of the penalty charge which is payable;
(c) that the penalty charge must be paid before the end of the
period of 28 days beginning with the date of the notice;
(d) that if the penalty charge is paid before the end of the period
of 14 days beginning with the date of the notice, the amount of the
penalty charge will be reduced by the specified proportion;
(e) that, if the penalty charge is not paid before the end of the
28 day period, a notice to owner may be served by the London
authority on the person appearing to them to be the owner of the
(f) the address to which payment of the penalty charge must be sent.
More at www.AppealNow.com™,
If a parking ticket is not issued on the driver or the car before he/she drives away it is void. Tfl v/s Ademolake, High Court, 27-3-2007
This judgement by Mr Justice Calvert-Smith currently applies only to London where Traffic Wardens are employed by the Metropolitan Police, not local councils or 'enforcement agencies'. But it's an important confirmation of the letter of the law in the Road Traffic Act 1991 because of planned legislation to extend the system to conviction by CCTV and penalty notices sent by post.
Simeon Ademolake got the £50 penalty fine notice after parking in a bay but putting one wheel on double red lines in Commercial Road, East London, in June 2005. He disputed the notice, sent through the post, and won his case at the Parking and Traffic Appeals Service after explaining that he told the warden "I'm driving away now" and no ticket was ever given to him or placed on his windscreen.
Transport for London, appealed to the adjudicator but this was turned down so Tfl took the case to the High Court, where Mr Justice Calvert-Smith ruled that the two earlier decisions were correct.
The London Local Authorities Act 2000 states that if a warden tries to issue a ticket but is prevented by anyone from doing so, the authority may send a fixed penalty notice by post to the vehicle's owner.
The judge ruled that merely jotting down details about the car and driver, as the warden had done, did not amount to an "attempt" to issue a parking ticket.
Ian Rogers, counsel for the traffic adjudicators, told the judge at an earlier hearing that his judgment would have wide importance because a bill due to be introduced soon would allow local authorities outside London to issue fixed penalty notices by post.
However, not mentioned in court, is the fact that a London Traffic Warden may instruct a driver to stop and failing to do so is an offence in itself. An independently employed 'parking enforcement officer' has no such power.
The power is under S.163 RTA 1988 (Police power to stop vehicles) amended to include Traffic Warden, viz:
The Functions of Traffic Wardens (Amendment) Order 2002. This Order amends the Functions of Traffic Wardens Order 1970 in consequence of section 44 of the Police Reform Act 2002. Article 2 provides that references to a constable in sections 163 (power to stop vehicles) of the Road Traffic Act 1988 are to include references to a traffic warden.
Some case Law: Whilst in R v Waterfield  there was no power to detain a stationary vehicle, a driver has a duty to keep the vehicle at a standstill whilst a constable has reasonable opportunity of exercising his powers and this may include telling the driver his suspicion that a vehicle is taken without the owners consent and arrest if necesssary. Lodwick v Sanders 
This tends to suggest that power to stop includes initiating the due course of the law i.e. view docs, report for summons.
Solicitors specialising in defending alleged motoring offences:
Department for Transport (National) Press Release 25-7-2007:
"Motorists to benefit from fairer parking enforcement"
New powers to make parking enforcement more motorist-friendly and consistent are being introduced, Transport Minister Rosie Winterton announced today.
Regulations, laid in Parliament today, will give independent adjudicators more power, including the right to ask local authorities to scrap fines for motorists who have mitigating circumstances.
Further regulations, to be laid later this year, will introduce a number of improvements including lower penalties for less serious offences.
New guidance also requires local authorities use parking enforcement to improve road safety and cut congestion, not make money.
Rosie Winterton said:
"It is vital that we increase public confidence in parking enforcement by making it fairer. These new rules will make the system more transparent and consistent.
"There is a perception that motorists are often unfairly penalised by parking attendants who are only interested in issuing as many tickets as possible. We want to ensure the penalties they issue are fair and justified.
"At the same time it is important that motorists understand parking enforcement is crucial to ensuring traffic flows smoothly. Parking in the wrong place can and does cause traffic jams. It can also put other road users in danger."
The regulations will come into force next March to give local authorities time to prepare for the new system.
Notes for Editors
1. The regulations being laid in Parliament today have been introduced under the Traffic Management Act 2004.
2. For the purposes of this press release, 'fines' refers to Penalty Charge Notices (PCNs).
3. To improve consistency, for the first time local authorities outside London will be able to issue PCNs by post when camera evidence is available or when parking attendants are prevented from serving notices by violence or driving away. Authorities outside London will also be able to enforce dropped footways and double parking.
(This clause is to overrule a clause of the Road Traffic Act 1991, upheld by case law Tfl v/s Ademolake, High Court, 27-3-2007, that the ticket must be issued to the driver or the car directly for the fine to be legal.)
4. There will be more power for independent adjudicators. They will have the power to refer back to local authorities where a parking contravention has taken place but in mitigating circumstances. They can also consider cases where the authority has not followed correct procedures.
5. There will be an increased discount period for PCNs sent by post (21 days instead of 14 days).
6. There will be higher parking penalties for more serious contraventions and lower penalties for minor ones.
7. There will be quicker clamping and removal times for persistent evaders. Wheel clamping will otherwise be discouraged.
8. Statutory Guidance will be published which will make clear that the making and enforcing of parking regulations is done in a transparent, legal and comprehensive fashion. The emphasis is on information for road users. The guidance says that authorities shall publish their policies and reports; foster a more professional approach by providing training for everyone involved in parking enforcement; regularly review parking policies in consultation with stakeholders and communicate these policies effectively to the public. Authorities should make it clear performance and rewards/penalties should never be based on the number of PCNs, clampings or removals.
9. The Road Traffic Act 1991 began the system of Decriminalised Parking Enforcement (DPE). Under DPE parking offences are enforced by parking attendants employed by the relevant local authority rather than traffic wardens employed by police. This reflects the need for police to concentrate on core policing priorities.
10. Under the new proposals DPE becomes Civil Parking Enforcement (CPE). Parking Attendants become Civil Enforcement Officers (CEOs)
11. The Representation and Appeals Regulations laid today are affirmative regulations and therefore will be debated in Parliament. This will happen after the summer recess. Once they have been approved, they, and the other five statutory instruments that are subject to the negative Parliamentary procedure will be made and the Statutory Guidance will be published.
12. The draft regulations and draft Statutory Guidance will be sent to all local authorities and stakeholders once the affirmative regulations are laid.
13. The regulations will come into force on 31 March 2008 to give local authorities time to prepare for the new system.
14. The DfT will in early August consult on detailed Operational Guidance to local authorities.
15. The regulations and Statutory Guidance will only apply to local highway authorities in England. The Welsh Assembly Government is planning to lay similar regulations for Wales.
Public Enquiries: 020 7944 8300
Department for Transport Website: www.dft.gov.uk
The new Traffic Management Act became law in March 2008 and disgracefully enables enforcers to obtain convictions on CCTV evidence, using CCTV which is supposed to be for public safety rather than revenue raising.
Local authorities are ignoring the government's statutory guidance on the use of CCTV enforcement, assording to Barrie Segal of www.appealnow.com.
In The Secretary Of State's Statutory Guidance To Local Authorities On The Civil Enforcement Of Parking Contraventions it states "The Secretary of State recommends that approved devices are used only where enforcement is difficult or sensitive and CEO enforcement is not practical. Approved devices should not be used where permits or exemptions (such as resident permits or Blue Badges) not visible to the equipment may apply."
Councils ignore this statutory guidance because using parking attendants/civil enforcement officer to move along drivers who were in the process of parking where they shouldn't, or whose physical presence would remind drivers not to park where it is inappropriate, does not raise money. It would certainly keep traffic flowing which is the whole point of the legislation but it would not raise revenue. So they ignore
the advice and resort to CCTV to issue fines and fill their coffers.
LANDMARK PARKING TICKET VICTORY THROWS PARKING ENFORCEMENT INTO CHAOS. MILLIONS OF PARKING TICKETS ARE UNENFORCEABLE
From Barrie Segal - founder of AppealNow.com™ www.appealnow.com
8 pm Saturday 8th November 2008
In a landmark case at the London Parking Adjudicator, Barrie Segal, the founder of
www.appealnow.com, got the Controlled Parking Zone for the central zone of London’s West End declared illegal.
Barrie represented transport company, Keystone Distribution UK Ltd in a case against Westminster Council where he claimed that the Council’s massive F3 Controlled Parking Zone in the heart of the West End was illegal and that no parking tickets could be issued to motorists on single yellow lines in that zone. Barrie’s argument was that Zone F3 did not have the correct signs at each vehicle entry point and therefore the zone was illegal. After a site inspection the Parking Adjudicator agreed with Barrie.
The effect of the decision (Keystone Distribution UK Ltd –v - City of Westminster Case 2080274557), is that every single yellow line must have a time plate showing the parking restrictions along its length (The Department for Transport recommends every 30 metres). As hardly any single yellow lines in the area have these individual signs no parking ticket can be issued to vehicles parked or waiting there.
The F3 Zone is bordered by the whole of Oxford Street to the south, Edgware Road to the West, George Street /New Cavendish Street to the North and from Centre Point northwards to the East
In a statement Barrie said” This is a victory for motorists in their fight against over-zealous councils. This decision will affect motorists throughout the United Kingdom as I believe that hundreds if not thousand of Controlled Parking Zones are not properly marked as required by law. It is clear to me that millions of parking tickets have been issued illegally in London and the rest of the UK. For years councils have unfairly penalised motorists for trivial contraventions like parking slightly over a parking bay and have said “that’s the law”. Well this is the law and the council failed to comply and must suffer with the consequences”
Barrie’s advice to motorists who have received parking tickets for parking on single yellow lines in the F3 zone in Westminster is to contest their parking ticket quoting the “Keystone case – PATAS number 2080274557) ”
BARRIE'S CONTACT DETAILS:
Mobile: 07803 922 522
Landline: 08701 62 0760
The legal requirement for signs in a Controlled Parking Zone is governed by the Traffic Signs Regulations and General Directions 2002. A Controlled Parking Zone must have at each vehicular entrance to the Zone a sign in the form of Diagram 663 0r 663.1 which specified the restricted parking time. If the Controlled Parking Zone is valid then the council does not need to have a time plate at 30 metres along each single yellow line. As a result the council can issue Penalty Charge Notices (parking tickets) to any vehicle waiting on that single yellow line (unless they are exempt – e.g unloading goods) during those restricted hours without the need for individual time plates running along the length of the single yellow line.
If Controlled Parking Zone is NOT valid then no parking ticket can be issued to a vehicle parked on a single yellow line UNLESS THEY HAVE THOSE INDIVIDUAL TIME PLATES. As few yellow lines in Central London do then any such parking tickets have been issued illegally.
The F3 Zone is bordered by the whole of Oxford Street to the south, Edgware Road to the West, George Street /New Cavendish Street to the North and from Centre Point northwards to the East. See Westminster website
Extract from decision of the Parking Adjudicator:
“Despite three adjournments I have not been assisted by any information from the local authority concerning the Controlled Parking Zone described as “F3”. Controlled Zone F3 has no signs in the form 663 or 663.1 at any of the entrances. The definition of its being a controlled Parking Zone under Regulation 3 and Direction 25(2) in the Traffic Signs Regulations and General Directions 2002 is not therefore made out therefore In consequence, if the local authority wish to enforce parking restrictions on any of its streets in that neighbourhood and in particular, Regent Street [My note – this where this parking ticket was issued] it will not be able to rely upon the signing concession in Direction 25(2) and will need to ensure that the requirements of Direction 25(1) are complied with. The signing is therefore unlawful here and the appeal is allowed.”
Barrie Segal is the founder of AppealNow.com™ (www.appealnow.com), a website that helps motorists fight unfair parking tickets. He represented the motorist in the Landmark High Court case of Moses – v- Barnet which led to millions of parking tickets being declared illegal. Barrie is the author of “The Parking Ticket Awards: Crazy Councils, Meter Madness &
Traffic Warden Hell” published by Portico Books.
Added 4-12-2008:- Vine v Waltham Forest London Borough Council
For many years motorists in England, at least those who are ready to take desperate measures to find somewhere to park, have run the risk of having their car disabled by the application of a wheel clamp.
The case of Vine v Waltham Forest London Borough Council CA Times April 12th 2000 shows what bloody minded persistence can achieve. The Appellant sued for damages after having her car clamped when she parked on private land owned by the Respondent Council.
The case had to deal with three issues. Was there any trespass to the car, what level of notice was required, and what level of damages was appropriate.
The case is useful because it establishes that the clamping of a car is a trespass to that car. The Court of Appeal decision is considerable authority. It follows that wheel-clamping is unlawful unless the person who applies the clamp can demonstrate that the owner of the car consented to the clamping. To establish that consent the car clamper must show that the parker knew of and assumed the risk of, being clamped.
The second issue was whether the Claimant was given sufficient notice of the clamping policy. If she had notice then she was to be deemed to have consented to the clamping. In this particular case, the Claimant demonstrated that she was subject to very considerable distractions, and that it was a medical emergency which required her to stop.
The court looked at the case law regarding the giving of notice to those parking cars. These cases are well known to contract law students. In effect the court applied the standard that "there must be some clear indication which would lead an ordinary sensible person to realise ..." the existence of the notice, and also the requirement that the notice must be "brought home to the parties so prominently that he must be taken to have known of it and have agreed with it".
The third issue was the measure of damages. The more optimistic motorist must recognise that the court does not intend to encourage such claims by awarding exemplary, or even useful, damages. The court said "the conduct could not be described as insolent, malicious or cruel, nor was it calculated to make a profit exceeding any likely compensation payable". Those who successfully argue this case in future may perhaps recover the cost of fees paid, but little more. The defendant here was a local authority, perhaps a private company might be less well treated.
One interesting question is this. The court clearly made the right of the clamping company to clamp a vehicle dependant on the implied consent of the motorists who parks being aware of the notice. What would happen if the motorist places a sticker on the windscreen, or possibly the wheels themselves, stating, in the clearest of terms, that they do not consent to any clamps being placed on the vehicle? What if that consent could not be implied? The court found that the clamping required consent. That consent was inferred, and no more, from a notice. An explicit denial of that consent might lead to interesting court cases.
Lastly, we must commend the firm of solicitors and Counsel for their enterprise and the Claimant for her persistence.
Another tempting question is whether wheel-clamping could be a criminal offence under the Administration of Justice Act 1970, which makes criminal the collection of civil debts by causing distress and public humiliation.
Neil Herron selling car and number plate to fund court battle
Parking ticket campaigner and activist Neil Herron is selling his car and personalised numberplate to raise cash for a High Court fight. He is challenging tickets issued by Sunderland City Council, claiming they were unlawful.
In a case thart he says could prove pivotal for drivers, he will argue that hundreds of thousands of parking tickets issued around the UK are unlawful because of flawed regulations.
Having already re-mortgaged his house Mr Herron – who set up his own firm Parking Appeals Ltd – is now putting his own Nissan Navara, which he has had for about three years, up for sale, along with a personalised “F1NED” numberplate.
He hopes to raise £20,000 by selling the car, which has yellow lines painted down the side in an effort to highlight parking problems. He’ll add the car cash to the £80,000 he says his legal fight has already cost him.
Market trader Mr Herron is due at London’s High Court on May 18 2010 to attempt to get a judicial review into Controlled Parking Zones (CPZs).
He will claim that many tickets are invalid, arguing how the law states every road within a CPZ must be marked with a single or double yellow lines, except where parking spaces are provided.
Any CPZ zone that contains other markings like zig-zags, bus lanes, pelican or zebra crossings would be unlawful, making parking tickets issued in it invalid, he says.
Mr Herron said: “We’re trying to expose that local authorities have a duty to residents, rate-payers and motorists to act fairly and to comply with the law and not to use cost as a weapon to deny people justice or use fines as a way to raise revenue. Many people have paid a parking ticket that they feel is unjust because of the potential cost of appealing it.
“Effectively I have spent £100,000 on a parking ticket. But I’ve had to put my money where my mouth is and if you’re going to stand on a point of principle there’s a degree of sacrifice you have to make.
“I’m hoping there’s a millionaire out there who’s fond of social justice and realises there’s a principle to be fought for. I’m sure there will be someone out there who would pay a lot to see this case succeed.”
Sunderland City Council will contest the case on behalf of all local authorities.
In 2001 Mr Herron was part of the campaign to clear the name of greengrocer and “metric martyr” Steven Thoburn. Mr Thoburn, who died in 2004, was prosecuted for selling his produce traditionally by the pound at his shop in the area Southwick in Sunderland.
Regular followers of the fight against parking pirates will welcome the news that one of the “Penalty Charge Notice” perpetrators, OPC Parking, was fined £26,750 plus costs in Wolverhampton Magistrates Court on 31 March, having been convicted of numerous Trading Standards offences including the misleading of drivers by purporting to charge them for overstays in a free car park after they had left it within the allotted time but returned later in the day. How regrettable it is in any event that we live in times where free car parks are watched over by a battery of ANPR cameras and companies such as this can mine the DVLA for data.
The HJUK campaign statement:
CLAMPING IS ABOUT TO BE REPLACED WITH SOMETHING FAR MORE EXPLOITATIVE
Soon, you will not be able to park off the road anywhere that you do not own without risking an £20 to £120 fine.
The previous government legalised clamping by licensing clampers with bad law that had no built in safeguards. This law was so badly drafted that thuggish clampers could even call for the support of the police when clamping a car and were extracting penalties of up to £700 from hapless motorists.
Our current government is about to ban clamping, but plans to replace it with a new law that creates a far greater licence to exploit than clamping did, again with no built in safeguards.
This is contained within the Protection of Freedoms Bill that, in banning clamping, purports to concern itself with “Protection of property from disproportionate enforcement action.”
But clause 56 of the Protection of Freedoms Bill states:
56 Recovery of unpaid parking charges
Schedule 4 (which makes provision for the recovery of unpaid parking charges from the keeper of a vehicle in cases where it is not known who was driving the vehicle when the charges were incurred) has effect.
That allows Parking enforcers to pursue the registered keeper of a vehicle for any parking penalty it may chose to impose.
If motorists write to their MP to complain about this licence to exploit, they receive a standard reply, which states:
“You will be pleased to learn that there are various safeguards. Private parking companies who wish to receive information from the DVLA about the registered keeper of a vehicle must be a member of a DVLA Accredited Trade Association and abide by its Code of Practice. The Code of Practice sets conditions on signing and maximum fine levels and is there to make sure that drivers are treated fairly when parking on private lane and that a complaints procedure is in place if they feel they have been treated unjustly. If a company does not abide by the Code of Practice they risk losing their accreditation and will be unable to access information electronically from the DVLA. In addition, the Transport Minister Norman Baker is working with the British Parking Association to establish an independent process for challenging tickets issued for parking on private land.
I welcome clarification that if the keeper of the vehicle was not the driver at the time in question, they may give the name and address of the individual who was driving so this person can be pursued for payment instead.
I am confident proper safeguards have been put in place to protect drivers rights in the UK.”
The "safeguards" are containeds in the British Parking Association's Code of Practice at: www.britishparking.co.uk/Approved-Operator-Scheme-Code-of-Practice . Possibly as a result of our campaigning, the BPA is now running a pilot appeals scheme here: www.parkingforum.co.uk/adjudication_pilot / It states, “This pilot is designed to test the principles behind formalising such a service and may form the basis of a statutory appeals service when the Government legislates to introduce one.”
But typical behaviour of members of the British parking Association who obtain vehicle keepership details from the DVLA are illustrated by these two emails:
“I have been contacted on three occasions by a company asking for payment for a private parking fine. They are threatening to take a court order against me and name and shame me on their website for non-payment. I have been baffled by their requests as the incident occurred in Devon and I have never been to Devon. I have written to them saying that I was not the driver and that they should stop harassing me otherwise I will contact the BPA. I have since contacted the BPA as they have written to me again asking for payment or face the prospect of a court order. They have also sent through photos of the alleged contravention. It turns out that the picture is not of my car as I have never been to Devon! The company has mistyped the letters on the licence plate and sent the fine to me rather than the owner of the car in question.”
AA, London E6
“With reference to our recent correspondence regarding my dispute over a parking penalty for parking on a disabled bay on 20th December last year, when the only sign was a faded painted one on the road surface, which was not visible at the time. Since then I have received eight letters, firstly from the security company and then from a debt collection agency containing various threats, the last one stating that visit to my home would be made in order to collect the penalty, now £90, and to assess what property could be earmarked for collection by bailiffs should it become necessary. I have stated to them repeatedly that I have no intention of paying until I have the opportunity of defending my actions in civil court. To take out an injunction would cost money, which I do not want. Am I correct in assuming that if and when this company applies to a civil court for a bailiffs warrant that I will be notified in order to defend or oppose the application.”
AJ, via email
The British Parking Association has proved by its past behaviour that it is utterly incapable of controlling its members or of overseeing any fair safeguards against the licence to exploit in Clause 56 of the Protection of Freedoms Bill.
I therefore propose that that the “safeguards” mentioned in the MP’s pro forma letter be incorporated into Clause 56 of the Act. Then the pariahs who have been ruthlessly exploiting my readers and offering no kind of appeal will not be able to exploit them any more. But those drivers who trespass on private land or disobey their clear contractual parking obligations will still be subject to fair contractual penalties.
In addition, attention need to be paid to the issue of cloned registration plates. As soon as an issue of cloning is raised, a marker must be put on the registration by the DVLA which must then refuse to divulge the registered keeper.
This is a typical readers letter to their MP:
“I understand that Parliament is shortly to pass the Protection of Freedoms Bill. Under Clause 56 of this Bill it seems that parking enforcement companies will be able to pursue registered keepers for whatever "penalties" they care to allege are due, regardless of who was driving at the time. This appears to be wider than the powers available to local authorities that had to first serve notice on the registered keeper requiring him to supply the name of the driver. If he did not respond, this was an offence for which he could be prosecuted. If he supplied a name, that person could be prosecuted for the original offence. It appears that Parliament is creating an absolute offence purely for the benefit of a commercial undertaking. I hope that when appropriate you will take all necessary steps to oppose these provisions. There is another aspect to this issue that causes concern. Information as to registered keepers is already sold to car park enforcers by the DVLA, based on number plate recognition. It is open to these people to obtain these details as soon as a car enters a car park and pass them to a burglar in the reasonable expectation that the keeper's address will be unoccupied for a certain time. Does the Bill make any provision to prevent this from happening? Certainly regulation by a trade association the members of which benefit from parking penalties would not be acceptable.”
You can oppose Clause 56 by signing these e-petitions:
The campaign against Clause 56 as it stands in the Bill is supported by the AA:
“The AA, the UK's largest motoring organisation, spotted the potentially disastrous clause 56 in the Protection of Freedoms Bill when the draft bill was first presented. Since then we have campaigned to try and ensure that private parking companies, their debt collectors and trade association do not get away with this one. The principle of private enforcement is that it is the driver that accepts the 'contract' to park after reading the signs - the registered keeper is very often not present so how can the keeper be legally forced to take the rap? Until all private parking enforcement is regulated or licensed by the government, with a fully independent appeal process, the motorist has virtually no protection, unlike the proper legal processes that exist for public highway offences.”
PW, The AA, Basingstoke
Street Parking Judgement: Shiva v TfL and NSL Ltd 2-11-2011
Determined that if a vehicle is towed away when legally parked in a loading bay, the owner is not only entitled to a full refund of the charges, but also to reasonable damages.