Consumer Contract Regulations 2013 and private parking
The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (CCR 2013) were introduced to consumer contracts from 13th June. The importance of these regulations is that since private parking is based on contract law, these regulations set down a number of requirements for a valid consumer contract. If those are not met (i.e. breached by the parking company) then the motorist cannot be bound by the contract, and therefore not liable for the parking charge.
To date, there is no case law to determine whether parking contracts are covered by the regulations, so we would recommend inlcuding the point since, in our opinion, it is likely that they are covered, and at some point case law will exist.
We would argue that parking contracts fall under the definition of a distance contract, as specified in section 4 of the regulations:
“distance contract” means a contract concluded between a trader and a consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded;
It should also be noted that the EU Directive implemented by CCR 2013 specifically includes payment for parking spaces.
The BPAs independent appeals service, POPLA, have stated in several appeal decisions that parking contracts are not covered since they believe them to be ‘automated premises’. This is defined in section 6 as:
These Regulations do not apply to contracts—
(a)concluded by means of automatic vending machines or automated commercial premises;
POPLAs template response to citing these regulations is as follows:
The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 require that certain information is provided prior to the conclusion of the contract. However, under section 6 (2) it states that “These Regulations do not apply to contracts – (a) concluded by means of automatic vending machines or automated commercial premises”. In this case I have considered “automated commercial premises” to mean a place of business where little to no human contact is required for the conclusion and performance of a contract. Following my review of the evidence provided by the operator, I conclude that the car park in question is such a premises. Parking is managed by ANPR cameras and motorists park their vehicles without any assistance. Accordingly, I consider that there is no requirement for the operator to provide pre-contract information to motorists before a contract can be concluded, in this instance.
The logic for defining parking contracts automated premises is, in our opinion weak. Before entering into contract, the motorist has seen (or should have seen) the signage, and decided to accept the terms by performance, namely the act of parking. At that point, his entry time may have been recorded by ANPR, a fact which the motorist may or may not have been aware of. He has not engaged in any automated process with any machines or equipment, has not put coins into a slot, and his decision to accept or decline the contract was based on what was written on the sign. The fact that ANPR may be used to detect breaches does not affect the nature of the contract.
Another aspect of the law is the £42 threshhold. The legislation has a minimum value of £42, below which transactions are not covered. Above that they are. In the parking scenario, normal parking charges would not be covered typically (i.e. they are usually a few pounds), but a parking charge for breach of the terms and conditions (i.e. the charges of £100 or so) would be.
The lack of case law means that we cannot be certain how a court would interpret private parking situations. As such we would recommend citing them in both appeals and in county court defences – there is nothing to lose by including them in a layered defence.
Example wording (that should be customised to the particular scenario) for such a defence could be:
The signage at this location fails to create any contractual liability due to the failure to comply with the provisions of the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. The purported contract created by the signage is a ‘distance contract’ as defined in section 5 of the Regulations, and is therefore subject to the mandatory requirements set out in section 13, relating to the statutory information which must be provided by the trader.
The Regulations state, at 13(1)(a), that the information listed in Schedule 2 must be given or made available to the consumer in a clear and comprehensible manner. The Claimant’s notice fails to comply with various clauses of Schedule 2, as follows:
[You should review Schedule 2 to understand which parts are not met and list them explaining why they have not been met. The list can be found here .
Examples in a parking contract might include:
2(c) – Requirement to provide a geographical address. The Claimant’s address is given as a PO Box number.
2(k) – Requirement to provide a complaint handling policy. This is not described on the signage.
2(o) – Requirement to provide information about the right to cancel, or to state that there is no right to cancel. This is not stated on the signage.
2(r) – Requirement to provide information about Codes of Conduct. This does not appear on the signage.
2(x) – Requirement for access to an Alternative Dispute Resolution mechanism. Not indicated by the signage.]
Due to these significant breaches of the Regulations, it is submitted that I cannot be held contractually liable, according to the wording of the Regulations at 13 (1) “Before the consumer is bound by a distance contract, the trader must …”.