Private Parking Charge Jul 4, 2017Views: 587
Recently had a client asking whether or not a parking 'fine' that had been issued by a private company on private land was in fact enforceable:
Problem: I am an Architect and for the past 8 months I have been travelling by car to a project I am involved with in Birmingham. The site is severely restricted, being surrounded by a mixture of office and residential properties. As you can therefore imagine, parking is very difficult, whilst the closest public car park is a good 10 minutes walk away.
I was informed by the site manager that just up the road was an apartment block, and that a few of the professional visitors to the site was using the residents parking bays to park for a few hours during the day. He did mention that to park there you had to have a residents permit, although the worst case was a parking ticket would be issued by a private firm, but it could not clamp your car nor pursue the parking ticket unless it knew who the driver was.
I therefore decided to use this 'car park', and although I did get quite a few tickets, I was never clamped nor did I hear anything from the parking firm immediately after the ticket was issued.
However, just before Christmas, I received a demand for £840.00. This was for 7 parking tickets at £120.00 each. I ignored this, and then received a ‘Letter Before Action’. I ignored this as well. I have now received a further letter stating that the matter is now being actioned through the Small Claims Court.
Should I be concerned? I received a parking ticket about 5 years ago when I overstayed at a motorway services, and I ignored this because I was under the impression that only the driver could be pursued and if the driver was unknown, then the fine was unenforceable.
Response: Parking ‘tickets’ or ‘fines’ from private companies are in fact invoices. When someone drives into a privately owned car park, they do so, on licence, and enter into a civil contract. There will usually be visible signs on display which are the terms and conditions of the contract, and if you breach any of the T&C’s, then there is usually a pre-determined liquidated sum specified as the damage that the keeper of the vehicle is liable for.
Before 2012, a private landowner could immobilise a vehicle that was on its land. However, where only a parking ‘ticket’ was issued, providing the keeper of the vehicle did not inform the land owner or its agent who the driver was, the ‘fine’ was pretty much toothless, as the landowner / agent, if it wanted to recover the ‘fine’ through the courts (which is the only means of recovery for non-payment), it had to prove who the driver was because the contract was between the landowner / agent and the driver.
However, in 2012, Protection of Freedoms Act came into force. Although this Act outlawed private land owners from immobilising vehicles, paragraph 56 gave effect to Schedule 4 of the Act which provided for the recovery of unpaid parking charges: “The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle.” Hence, it is now the keeper of the vehicle that is liable for the parking charges.
Hopes were raised in mid-2015 when a disgruntled driver challenged his parking charge and the case went all the way to the Supreme Court. The driver was challenging the charge on the basis that it was a penalty and thus unenforceable. The driver was unsuccessful. The Court said although the penalty rule is engaged, the charge (which was £85.00) was not a penalty, and that the landowner and its agent “had a legitimate interest in charging overstaying motorists, which extended beyond the recovery of any loss.” The Court further stated that the interest of the landowners was the provision and efficient management of customer parking for the retail outlets whilst the interest of the agent was in income from the charge, which met the running costs of a legitimate scheme plus a profit margin.
The Court further said that the: “charge was neither extravagant nor unconscionable [which are 2 essential tests to deem that a charge is in fact a penalty], having regard to practice around the United Kingdom, and taking into account the use of this particular car park and the clear wording of the notices.”
All that said, you still can bring forward defences such as the charge is a penalty (this will depend on the level of the charge and the particular use of the car park), whether the signs were clear and visible and whether the ground markings were clear. And of course, you can always make an offer to settle.
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