If a private parking company wishes to enforce a parking ticket (or Parking Charge Notice) then they have to apply to the local County Court or Money Claim Online for a judgement. Due to the size of the claim it will almost certainly be dealt with on the Small Claims track (for cases of £5,000 or less).
The Citizens Advice Bureau has a good explanation of how the Small Claims process works.
The key points in relation to private parking tickets are:
- Small Claims is nothing like court on TV – it’s a few people around a table, not the Old Bailey, men in wigs, juries etc
- The idea of the court is to keep costs low – e.g. the claimant won’t normally be able to claim solicitors costs
- You must not ignore a claim form served to you – if you do, you would risk a default judgement being awarded against you
Now, in order for a parking company to successfully make a successful claim for an unpaid Parking Charge Notice they may need to prove several things such as:
- There is a contract between the parties
- The person named on the claim is the person they have a contract with (i.e. the driver)
- The person actually broke the terms and conditions
- The contract does not contravene other laws (e.g. unfairness)
- The party bringing the claim has the legal right to do so
A contract has several elements in law, namely offer, consideration and acceptance. In the case where you have purchased a ticket this is reasonably straightforward to prove (i.e. the ticket is effectively the contract). Where the car park is free, this is harder to prove. Typically free car parks operated by private parking companies have signs dotted around the car park displaying their terms and conditions. There being a contract relies on the fact that you saw those signs and therefore signed up to the terms and conditions displayed.
If you get a private parking ticket, then consider whether the signage in the car park was reasonable. For example:
- Could you have parked without seeing a sign?
- Are the signs legible from the distance you would typically read them from?
- If it was dark, were the signs lit?
- Does the sign state the name of the company issuing the Parking Charge Notice?
Who was the driver?
One big problem the parking company has is to know who they hold a contract with. The important point is that, on the assumption there is a contract, it is between the parking company and the driver – not the registered keeper. Unfortunately, many people fall into the trap of following the ‘appeal’ process where they inadvertently identify themselves as the driver. If the driver is not known to the parking company, then who can they take legal action against?
The usual method the parking company take is to request the registered keeper‘s details through the DVLA which they are allowed to do if they are a member of the British Parking Association (the unregulated trade association for such companies). Each request costs them a small fee (£2.50). The parking company will then be able to write to the registered keeper.
With the introduction of the Protection of Freedoms Act in October 2012 the parking company can invite the registered keeper to name the driver. If the registered keeper refuses to name the driver then the parking company may pursue them to whatever charge they were lawfully entitled to from the driver. If the registered keeper names the driver, they may only pursue them. See our keeper liability page for more details.
The contract was broken
One would hope that if a parking company brought a case to court that they would have a watertight case for the contract being broken. However, this isn’t always the case. I’m not sure who the parking companies use to write their signs, but often they seem to have the same grasp of English as the people behind the legendary cases of chinglish!
Joking aside, read the signs carefully and check that you actually did break their terms and conditions as written on their signs (i.e. the contract). There have been cases lost by parking companies because the signage has been written using such poor English that the parking rules had not actually been broken when interpreted literally.
Often it’s worth getting other people’s views – raise it on a forum if you need help.
Fairness of the contract
Civil contracts are not normally allowed to punish or penalise the consumer – only criminal law can do that. This is backed by common law and statute. The Unfair Terms in Consumer Contracts Regulations 1999 provides protection to consumers from unfair contracts.
In particular, it defines where a term is considered as unfair:
5.—(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.
(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.
In the case of a car park, clearly the terms and conditions will have been drafted in advance, so this law would apply to them.
Where a term is considered unfair, it therefore might not be binding:
8.—(1) An unfair term in a contract concluded with a consumer by a seller or supplier shall not be binding on the consumer.
In the case of a parking ticket, if a term is found to be unfair, then the parking company may not be able to enforce it.
Schedule 2 of the document gives indicative information about terms which may be considered unfair. In particular:
1. Terms which have the object or effect of–
(e) requiring any consumer who fails to fulfill his obligation to
pay a disproportionately high sum in compensation.
Further to this, the Office of Fair Trading has issued guidance on its view of this legislation to provide guidance to courts about how the law should be interpreted. In this document they provide guidance for disproportionately high compensation.
5.1 It is unfair to impose disproportionate sanctions for breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law. Other types of disproportionate sanction are considered below – Part III, Group 18(c).
In the case of a parking ticket, it would be very hard to argue that this is a reasonable pre-estimate of the loss caused. For example, if the car park charges £1 per hour, and I stay 15 mins over the hour, how can the loss be any more than 25p? How can they justify £40-120 being a reasonable pre-estimate of the loss?
One should bear in mind that whilst this legislation seems to quite clearly outlaw these charges, the Unfair Terms in Consumer Contracts Regulations 1999 does not regulate the ‘core terms’ of the contract:
6 – (2) In so far as it is in plain intelligible language, the assessment of fairness of a term shall not relate–
(a)to the definition of the main subject matter of the contract, or
(b)to the adequacy of the price or remuneration, as against the goods or services supplied in exchange.
Whilst this argument seems very strong, a parking company could argue that a Parking Charge Notice is the price for parking there, as opposed to a penalty for breaking the terms and condition of their contract. To the author that sounds like nonsense – especially when their own trade association recommends that parking companies make their charges inline with council-issued penalties! If a case does proceed to court that it is up to the judge on the day to interpret the law and the guidelines and the outcome is not guaranteed. Certainly there are lots of examples of judges agreeing that these are unfair terms (such as in this case), whilst parking companies also point to examples in their favour.
In recent cases (as of May 2014) Parking Eye have been claiming their parking tickets to be commercially justified. Whilst judges have found their tickets to be penalties (usually not allowed under consumer law, as described above), the penalty is commercially justifiable in that it is necessary to perform parking management. This area of law is developing as of the time of writing and so the author cannot offer any specific advice here. We would suggest you do your own independent research, or engage a legal professional.
Right to claim?
Recently there has been a case in which the Upper Tax Tribunal found that a standard parking company contract does not provide the parking company contractual authority to issue enforcement proceedings their name or the name of the land owner, and there has subsequently been at least one case thrown out by a County Court on this basis.
This story was reported by the Daily Mail.
Going forward, I’m sure that the parking companies will take this into account and update their contracts as necessary, but it will take time, and this line of inquiry should be pursued since it would blow the case out of the water if that is found.
There are also numerous cases where people have been issued tickets for parking in their own space for not displaying a permit. For example where they live in a development with a communal car park, but with allocated spaces. If their leasehold or freehold does not state anything about permits, then the parking ticket would not be enforceable.
Right of Audience
If a claim against you does go to hearing, make sure you question their representative’s right of audience. Private parking companies often do not use solicitors or barristers to represent them, and instead send a legal advocate from a 3rd party firm, such as LPC Law. Since they are not qualified solicitors or barristers, then they may not have right of audience. This means that the case could get struck out before even arguing it! Read more here.
What not to do
If you are taken to court then there are certain things that you should be careful about:
- Ignore official court papers – if you ignore them, then the parking company can apply for a default judgement – you lose.
- Lie – Irrespective of whether the parking company’s case stands up in law, if you are found to have lied, then your case will likely be looked on unfavourably. What else has the defendant lied about?
- Be obstructive – this will only raise questions about you. Certainly you have no responsibility to help the parking company build a case against you, but if it were to proceed to court then the judge will not look favourably on you if you are not helping him make the right judgement in law.
If you do receive official court papers, then we would recommend you seek assistance. Professional legal services, such as a solicitor will be able to help, but may come at a cost that outweighs the cost of the ticket itself. The online forums may be another place to get good advice, but remember that the people frequenting them are most likely not professionally qualified and any information you publish will be in the public domain.