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Seems to me in his advice that HJ offered a sensiblecourse of action for those with a conscience, i.e. done wrong and offering partial re-embursement, as opposed to those with none and not admitting fault or reponsibility of which there are too many.
dvd
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But that is not to say the charges are unenforceable. Faced with clear signage which cannot be missed which clearly outlines the terms of the contract and photographic evidence of the stay a court could well find for the parking company but may not impose the level of charge they are demanding.
TERMS OF CONTRACT
Any persons reading this post have entered into the following contract. If the reader agrees that Private Parking Company charges are enforceable, they hereby agree to pay a fee of £90, reduced to £60 if paid within 7 days. Your webcam has just been used to take photographic evidence. Payment should be made to .......
That contract must be legally binding as it is in writing and clearly here for all to see. If any contract displayed on a sign is binding, then any mickey mouse contracts can be printed up on a nice sign and displayed and well, it's a contract it must be legal.
But back to the first post, the issue referred to (in the link) was against recommendations made to pay a small amount to the company - when the parking company does not own the land, and the car park was free anyway so could not possibly have any quantifiable losses of any kind.
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Lucy BC - you said
**the keeper cannot have entered into the contract unless they were there.**unless ordered to so so by the court the keeper does not have to disclose who was driving.**never enter their appeals process. The "appeals process" is largely bogus and you might provide evidence to support their case.
Let's say my girlfriend borrows my car and goes shopping. She parks in Tesco's car park and gets carried away elsewhere. She returns to my car and finds a ticket attached to the car.Now according to you, I as the keeper have not entered into a contract so have not formed a contract. I am also not obliged to inform the issuing company who was driving. It can't go to court because without the identity of the driver, no summons can be issued.Yet the advice on here is still to pay a nominal fee?? But you've said I have no contract so why should I pay?By paying a nominal fee I'd be admitting that I was there and had a contract and would effectively be commiting a crime by taking the blame for something someone else did.I can't help but feel the advice here is poor - and that's being complimentary.
Edited by darich on 28/09/2010 at 00:06
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But you've said I have no contract so why should I pay?By paying a nominal fee I'd be admitting that I was there and had a contract and would effectively be commiting a crime by taking the blame for something someone else did.I can't help but feel the advice here is poor - and that's being complimentary.
Read what I said. I have never advocated paying a nominal fee.
Honest John does but only in cases where the transgression is admitted - ie the person says "yes, I overstayed".
I can see the argument behind doing so but my advice has always been to have no communication whatsoever with anyone unless you receive a claim from the court.
Edited by LucyBC on 28/09/2010 at 07:24
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You said
Read what I said. I have never advocated paying a nominal fee.
Honest John does but only in cases where the transgression is admitted - ie the person says "yes, I overstayed".
So if you've "never" advocated paying a fee and Honest John does where the car has been long er than permitted, someone is wrong.
You can't "never" advocate paying a fee yet the person you advise, advises the oposite.
Which is right? Should a fee be paid as per HJ or should it "never" be paid as per LBC? If you're the adviser to HJ then it appears that your advice is at odds with what he is saying. Incidentally, why would someone receive a "fine" if they hadn't overstayed and why wold someone admit to this knowing it would cost them?
No private parking firm in the land can prove who was driving the car at any time and it therefore means any ticket that is issued and not paid is doomed to fail if pursued through the courts.
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In Combined Parking Solutions -v- Stephen J Thomas the judge agreed that the probability was that Mr Thomas had been driving the car and hence found against him.
Mr Thomas did not help himself by meddling with the documentation but if there is only one person insured for the vehicle and that is the keeper then on the balance of probabilities (which is all that is required in the civil courts) the judge will assume they were driving and the courts are likely to find against them.
On the issue of whether to pay a nominal sum it has never been tested in court (and probably never will be) and there are no firm rules on this.
HJ's recommendation is a counter offer to "settle out of court" which mirrors that of the parking company.
It may stop many unwanted letters and other communications if the keeper was driving the car and did indeed breach the terms and conditions of a properly warned "contract".
It is also likely to further reduce the (admittedly unlikely) possibility of the parking company issuing proceedings.
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You don't enter into the contract by reading the sign or reading your post for that matter - you enter into it by parking on the land.
It's contract law. It doesn't matter whether the parking company owns the land or not if they are an appointed agent or have permission from the owner to operate on agreed terms.
The quantifiable losses are also (largely) irrelevant as the cases are not brought under trespass. If the court deems the charges "punitive" then the level of charging may be relevant and the court will normally take reference from charges imposed by official bodies.
So if the parking company has everything absolutely right (and in the unlikely event it gets to court) a judge will allow a £30-£70 charge but any more is probably considered outlandish.
Furthermore they will look more leniently on a family who didn't quite eat their hamburgers quite quickly enough in a fast food restaurant near Gatwick or someone who fell asleep in a motorway services than they probably will on the "Militant Tendency" of private parkers who think they can park all day and block up spaces with impunity in private car parks offered by legitimate businesses for the convenience of their customers because they have been told that any regulations are "unenforceable". Or copy useless information off other websites: Combined Parking Solutions -v- Stephen J Thomas comes to mind.
Doing so is discourteous and akin to someone with no reason parking in a disabled or parent and child bay.
There is a genuine problem in private parking matters.
The resolution is for the DVLA to charge a higher fee for properly licensed and regulated private parking companies to access driver information and the resultant money raised to be put into an official and binding appeals and arbitration process with an ability to impose an enforceable decision.
The effect would be that the private parking company would think twice before sending in unsustainable claims against minimal overstays and the "militant tendency" aggressive "stuff you" drivers would know they could no longer get away with it.
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Looking back over the many posts on this one, several mention the issue of driver identification. If the responsibility for the 'ticket' lies with the driver of the vehicle rather than the registered keeper, presumably then an effective method of response would be to send a reply requesting that the parking sharks provide you with the details of the driver at the time of the alleged contravention, and you will then pass on the details of the 'ticket'. So even if you were driving you have managed, without making any actual statement which is false, to muddy the waters by asking for details that the sharks would be unable to provide. Does this work?!
Edited by happy polo on 30/09/2010 at 01:53
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There is no "Section 172" for civil matters but in the unlikely event that it ever reached court the keeper would need to show that on the balance of probabilities (this being a civil case) he/she was not the driver.
If the vehicle was registered to them and they were the only insured then the court would be likely to hold that they were the driver - unless they could show otherwise.
I have seen a number of cases where private parking companies are threatening (in letters at least) to apply to the courts for a "Norwich Pharmacal Order" which - if granted - would provide a court order to compel the keeper to reveal who was driving.
A Norwich Pharmacal Order would normally require the applicant to show that revealing the information was in the public interest.
Furthermore the substantial costs of a Norwich Pharmacal Order must be paid by the applicant (ie the parking company) and while they are recoverable if granted the application for costs is subject to a further hearing.
So any mention of a Norwich Pharmacal in a parking case is likely to be another empty threat from the parking company's representatives.
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You clearly do not understand car insurance either. It is possible for someone else to drive the car under their own policy, so the insurance on the car itself is entirely irrelevant.
Evidence against contacting private parking companies and offering a small amount of compensation here forums.moneysavingexpert.com/showthread.php?p=3770...8
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I work for an insurance company heading their legal department. I will leave others to consider who is best placed to give advice.
The reason Honest John has me answer motor legal questions is so people get decent accurate advice rather than bar-room bore type half-truths they can get elsewhere. I notice you are not only a frequent poster on the money saving thread but it is also inaccurate and very probably libellous.
As to the issues:
The civil court will take the view on the balance of probabilities on who was driving which is what it did in the case of Combined Parking Solutions and Stephen J Thomas.
In that case it found that - on the balance of probabilities Stephen J Thomas had probably been the driver and had breached a contract by parking where he did and subsequently found against him.
If the court was told there was no one else insured to drive the car - which would be a reasonable question for the claimant parking company to ask if a case ever got to court - then the defendant would need to show someone else was driving it on their "drive other cars" (DoC) benefit on their own policy. If he could not show that then the court -- probably naming the other driver -- then there is a very good chance that the court would find, on the balance of probabilities that the defendant had been driving.
The case would then rest on whether there was a contract and whether the charges are fair. In most cases I agree they would not.
Regarding the issue of whether it is a good idea to offer a small amount of compensation - as I have said opinions are divided even in this website. As I have explained to you before - both the notice from the parking company and any offer from the keeper to settle are effectively "offers to settle out of court".
In most cases the parking company rejects the offer to settle. If they do so then the court would take a view as to whether the offer of a small amount of compensation was reasonable or whether the parking company's charge was reasonable considering the transgression or breach. I leave it to you to guess which way they would go.
As I have said many times these charges are usually best ignored because it is not economic to issue proceedings at this level on the balance of costs weighed against prospects of success for the parking company - so most of them try to collect using debt collector tactics and wearing people down. We get many people who succumb and you need a thick skin to resist them.
But in the very unlikely event that proceedings are issued, the court will try the case and as in Mr Thomas's case they may find for the parking company. So contrary to what you have said in earlier posts the charges are not unenforceable - they are just difficult to enforce.
Most parking companies are slipshod in the way they gather evidence and the courts consider their charges excessive so very few cases against motorists succeed - but there are cases where they have won in court.
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It's a pity and great shame that HJ has confused people with his misguided advice about a partial payment. Similarly LucyBC on the one hand states you can ignore them but has introduced minor technicalities to give us all that bit of doubt.
The reality is that we are dealing with Rogue Operators who will employ scare tactics upon victims who may have made innocent mistakes or overstayed limits by small amounts.
My father in law, a 75 year old entered his local small Car Park where the fee is only 30p per hour. In his rush to get to the adjoining shop he forgot to pay.He had used the car park for years,always paying (why wouldn't he?). Returning five minutes later, he had been ticketed and was sent his 'penalty' of £90, with threats of further increases.He made the mistake of appealing and of course they refused and increased the level of threats. He paid up before my knowledge of it all.He was literally ill with worry. There is no way a partial payment would have appeased these vultures.
He has now received a second and separate notice for another £90.This time he has a valid ticket but they failed to spot it on his dashboard. It's absolutely ludicrous to suggest that he has any indebtedness to them or that a partial payment should be made to buy them off.
What we need is a firm stand from a 'Consumer Champion' and his Legal Advisor that such punitive charges,from PPC's, whatever the circumstances, have no foundation whatsoever. BBC Watchdog have given this guidance and the forums dedicated to fighting against these scammers are trying their utmost to get the message across.
Why don't you see the bigger picture and get onside with genuine law abiding citizens.
Edited by Defence Counsel on 21/10/2010 at 12:19
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My colleague has appeared twice on Watchdog on this and I advised on it. He also did the Face the Facts programme and was instumental in getting Excel cut off from the DVLA link for six months. We have campaigned on parking issues for at least five years.
I think you are misreading what we are saying. Nobody is supporting the private parking companies in making excessive charges but my role is to clarify what the legal position is - what the companies can and cannot do in both economic and practical terms.
The facts unlike what the OP says which is reiterated elsewhere on the internet are that the charges are not illegal. In a very limited number of cases defendants have lost in court.
In the vast majority of cases the courts have ruled the charges as excessive. Thus you are very unlikely to get your case to court at all. Instead they will send endless letters threatening court - use debt collectors etc because it only costs the price of a cheap envelope and a second class stamp
My advice - for the last five years in dealing with these cases - is and has always been ignore all correspondence. Don't even acknowledge it as you will only confirm your address. Do not appeal as their appeals process is a sham aimed at securing further evidence against you. Do not acknowledge any correspondence unless you get a blue claim form from a magistrates court - when you should file a defence which is free. This needs to be a letter from the court - not just the threat of one.
The court is your friend as that is the first place you will get a fair hearing.
That said for someone in a position such as your father the endless hassle is extremely wearing.
To protect people such as he there the real need is for some sort of practical legislative or regulatory solution:
- all operators need to be licensed and regulated or they do not get access to the DVLA data. Personnel need to be vetted CRO'd and trained.
- maximum overstay charges need to be outlined and fixed.
- the charge for them accessing the DVLA data should be at least £10 to prevent fraudulent or false requests for data (when people have not oversstayed).
- the additional money raised from the DVLA charge should be used to fund an independent and binding appeals process similar to PATAS. As with PATAS if people lose their appeal they pay at a higher rate - or pay nothing.
- The appeals process should apply de minimis principles in the event of a minor transgression or minimal overstay
- Don't comply with any of the above and you don't trade.
However regulatory solutions are not the flavour of the month with the current government so it is not likely to happen anytime soon.
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To Defence Counsel and others who seem confused by this situation. Unfortunately there are no absolutes. The cases we are all discussing come under civil law which is notoriously interpretive but usually turns on the balance of probabilities, therefore it is unpredictable until a judgement is made. So effectively there is no hard and fast advice that is guaranteed to give you the outcome you desire. What LucyBC rightly says time and again is that if you follow a certain course of action you are very likely to prevail. I for one think that LucyBC gives very sound advice and would back her judgement against most advice given by well meaning but sometimes misinformed threaders. Without condoning reckless and deliberate flouting of parking contract terms I think it reasonable to avoid being fleeced by these private companies whos sole purpose is to extract money from motorists. Therefore when they issue their Parking Charge Notices ( not legal Penalty Charge Notices) for large sums for small infingments it rightly gets the motorists back up, after all we pay enough for the dubious 'priviledge' of owning a car. It also wrankles that they make their parking charge notices look just like the official ones that only police/local authorities can issue and their jargon is the same. All designed to fool the unwary. Therefore please just follow LucyBC and ignore all but official correspondence. I have used this method twice in the past 2 years and prevailed. So despite the threaders who pick out a few words from her statements and take them out of context, which promotes more discussion, please just follow her advice. I know who I would like in court beside me if ever the occasion arises, and it wouldn't be a threader, sorry lads but that's life. Best to all. Incidentally I intend to post a thread with suggestions to avoid this confusion in future. Comments invited. Best to all. Concrete
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'To Defence Counsel and others who seem confused by this situation. Unfortunately there are no absolutes.'
I don't think I have any confusion at all. I am following Lucy's advice which is to ignore PPC invoices. She is pretty unequivocal on that. I objected to the part payment idea where such an action would be giving the scammers something for nothing and encourage further harrassment from them.
For an ordinary threader yourself, you seem overly gushing towards Lucy btw. Close friends?
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No relationship.
I advised Concrete how to deal with a private parking bill. In the same way as I provide good quality free legal advice here every day of the week to anyone wanting it.
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You are objecting to something that LucyBC does not recommend. It is HJ that sometimes states that if you believe you have innocently breached a contract you should offer a small sum in full and final settlement. I have asked HJ about this and understand his reasons for saying it, although it does create confusion. Like you I have ignored completely any correspondence from the the private parking scammers and that seems to have worked up to the present. Concerning your final remarks; I have never met the lady in question. I felt the need to offer my support for LucyBC and her efforts to provide sound advice, because I have benefited from her advice in the past on several subjects. I apologise if my remarks were interpreted as 'overly gushing' and I sincerely hope no embarrassment was caused to LucyBC. Nor of course your own tender sensibilities. I think we all have more to agree about than disagree, but the debate is usually fun and stimulating and long may it remain so. Best to all. Concrete
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I think he's probably a waif or a stray from money saving expert concrete.
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The reason Honest John has me answer motor legal questions is so people get decent accurate advice rather than bar-room bore type half-truths they can get elsewhere. I notice you are not only a frequent poster on the money saving thread but it is also inaccurate and very probably libellous.
t.
Well said!! May I please ask........what happens if the parking company sells the fine to a debt collection agency which threaten court action and the recipient has gone to work in the USA for 3 yrs? Should we [parents] tell them or just not respond unless/until a court summons arrives?
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Its is NOT a fine! SFAIK only legally constitued courts can subject you to a fine, after due legal process. If a letter arrives you aren't going to open it, or are you? It isn't addressed you after all! Just file it away until the wanderer returns!
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Just ignore it. Do not enter into any correspondence.
They are extremely unlikely to issue proceedings so do not bother with anything they send you unless it is a letter from the court - not just a letter threatening court action as there will be plenty of those.
If you are not sure if the letter is from the court come back to me and I will advise you.
I have seen letters designed to look like court documents which are not and in one case this has become a police matter against the debt collector concerned.
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As everything rests on contract law. -- I got a parking charge but did not see any signs . If the driver really did not see the signs at any stage of his visit to the car park how can he have entered into a contract ?
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As everything rests on contract law. -- I got a parking charge but did not see any signs . If the driver really did not see the signs at any stage of his visit to the car park how can he have entered into a contract ?
Hello Perky, it matters not that you did not see the signs. The fact they are there and displayed in such a manner to comply with any signage regulations or any reasonable expectation of seeing them, is enough to satisfy the legal position. If what you received was a PARKING CHARGE NOTICE, then totally ignore it. For further comment read the statements by LucyBC in the thread. If however, you have a PENALTY CHARGE NOTICE then you are captured my friend. Cheers Concrete
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Google "HMRC V VCS" also google "Should I pay a private parking ticket" before you part with any money or even appeal
Here are some recent court rulings
When Mr Ibbotson refused to pay up, he was taken to court by VCS and ordered to pay £42.50 in costs.
But he appealed and last week a judge at Sc***horpe County Court dismissed the company’s claim and instructed VCS to give him the money back. Mr Ibbotson had learned that VCS did not have the legal go-ahead from the landowner of the Wickes store site to pursue parking charges. VCS is one of Britain’s biggest parking control companies. It operates on more than 600 sites at shopping centres, hospitals and universities all over Britain. The firm is owned by Simon Renshaw-Smith, who also runs a vehicle immobilisation operation called Mr Clampit.
The judge ordered Mr Renshaw-Smith to come to court next month to explain why he had pursued Mr Ibbotson when he had ‘no lawful contractual assignment of authority to do so’. Mr Renshaw-Smith, 45, lives in a £900,000 detached house in the Derbyshire village of Barlow, five miles from the Sheffield headquarters of VCS. Last year he paid himself a salary of £766,353 according to documents lodged at Companies House – and his main company, Excel Parking Services, had a turnover of £10.3 million and an operating profit of nearly £500,000.
VCS v HMRC. In simple terms VCS's appeal was dismissed but the tribunal made decisions on a number of points wholly relevant to the PPC case. The UTT is a superior court of record and its decisions carry the weight of a High Court finding.
The appeal tribunal held:
1. VCS did not have any right to occupy land or to pursue any action in trespass (which is what VCS had claimed they were doing).
2. Such payments they received by way of "Parking Charge Notices" were not therefore a payment by way of damages and were not therefore exempt from VAT.
3. That on the basis of their standard agreement with landowners there could have been no contract formed between VCS and the motorist because its limited rights to access to the land did not extend to being able to offer the right to park.
4. The signs used by VCS cannot have effect because they have no right in law to make any offer to park in the first instance.
5. Any contract to park could only be formed between the landowner and the motorist
6. Any parking charges collected by VCS would therefore be, in effective, damages in breach of contract or trespass but because they were retained by VCS they constituted a standard-rated consideration and VAT was therefore payable against them.
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5. Any contract to park could only be formed between the landowner and the motorist
As so many businesses lease their buildings and land, rather than actually own them, does point 5 apply to most private parking ?
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I wouldn't get too excited about the Upper Tribunal and County Court cases. Both are highly fact specific in relation to the particular company's terms with its clients.
The County Court case was decided by a District Judge (ie the most junior) and while possibly persuasive in other cases is not an authority.
And the whole landscape will change in the autumn when the Protection of Freedoms Act kicks in.
Edited by Bromptonaut on 06/06/2012 at 10:42
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