Private Parking Ticket - Have I admitted liability?

[munty]

Hi, I have been reading through a lot of the threads about disputing tickets from private car parks, but wish I had read them before I replied to Napier Parking.

I now need to know (if anyone does?) if I have admitted liability for breaking a condition of the contract. I stated in appeal letter that I wrote that the ticket I purchased must have been blown from my dashboard... I included a photocopy of the ticket I had bought.

They responded as per below:

"It is clear to us that a breach of the conditions of parking was committed and the penalty charge notice (PCN) was therefore correctly issued.

Consideration has been given to the points that you have raised, however on this occasion we are unable to cancel the PCN for the breach in the conditions of parking. It is the driver’s responsibility to ensure the ticket is displayed in a prominent position behind the windscreen."

Obviously I am really not happy about the prospect of paying this charge when I bought a ticket!

[Zamzara]

You have not admitted liability. You did not agree to pay such a charge, and in any case it's an illegal penalty.

[Barnsley Boy]

The rules regarding penalties in contract are generally in accordance with the Dunlop case as below.

Dunlop Rule


The rule laid down in Dunlop was as follows:

1. "Though the parties to a contract who use the word 'penalty' or 'liquidated damages' may prima facie be supposed to mean what they say, yet the expression used is not conclusive. The Court must find out whether the payment stipulated is in truth penalty or liquidated damages. This doctrine may be said to be found passim in nearly every case.
2. The essence of a penalty is a payment of money stipulated as in terrorem of the offending party; the essence of liquidated damages is a genuine covenanted pre-estimate of damage (Clydebank Engineering and Shipbuilding Company v Don Jose Ramos Yzquierdo y Castaneda).
3. The question whether a sum stipulated is penalty or liquidated damages is a question of construction to be decided upon the terms and inherent circumstances of each particular contract, judged as at the time of making the contract, not as at the time of the breach (Public Works Commissioner v Hills and Webster v Bosanquet).
4. To assist this task of construction various tests have been suggested, which if applicable to the case under consideration, may prove helpful, or even inclusive. Such are:

1. It will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach. (Illustration given by Lord Halsbury in Clydebank case)
2. It will be held to be a penalty if the breach consists only in not paying a sum of money, and the sum stipulated is a sum greater than the sum which ought to have been paid (Kemble v Farren). This though one of the most ancient instances is truly a corollary to the last test. Whether it had its historical origin in the doctrine of the common law that when A. promised to pay B. a sum of money on a certain day and did not do so, B. could only recover the sum with, in certain cases, interest, but could never recover further damages for non-timeous payment, or whether it was a survival of the time when equity reformed unconscionable bargains merely because they were unconscionable -- a subject which much exercised Jessel M.R. in Wallis v Smith -- is probably more interesting than material.
3. There is a presumption (but no more) that it is a penalty when, 'A single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage.' (Lord Watson in Lord Elphinstone v Monkland Iron and Coal Company)

On the other hand:

It is no obstacle to the sum stipulated being a genuine pre-estimate of damage, that the consequences of the breach are such as to make precise pre-estimation almost an impossibility on. On the contrary, that is just the situation when it is probable that pre-estimate damage was the true bargain between the parties (Clydebank case, Lord Halsbury; Webster v Bosanquet, Lord Mersey)."

The bits highlighted in red are of particular relevance to PPCs and their PCNs [actually calling them Penalty Charge Notices is particularly dumb].

In your case, the PPC insist on calling the proposed charge a penalty. They propose the same charge for a trifling breach [failure to display] as for a major breach [failure to pay]. They request a sum greater than the normal parking rate and considerably greater than any conceivable loss they may have incurred.

If you choose to write to them, don't bother quoting all the above. They obviously don't understand it anyway, best to use one of Benie's templates - see "stickys" at the top of the forum.

DON'T PAY!

[munty]

Thanks for your advice, I will respond with another letter from Benie's stickys.."The response to the “appeal” rejection", and let you know how i get on.

[munty]

3 of Benie's template letters later and Napier are refusing to drop this! When I sent Benie's template letter asking about accepting the contract and have wrote the following:

"In earlier correspondance you stated that you had a valid ticket and you neglected to display it correctly. This implies to us that you were fully aware of the conditions of parking as you state that you purchased a ticket confirms to us that you were certainly aware of the contract as it is also displayed on the pay machines . Also the ticket clearly states 'Display the ticket in a prominent position behind the windscreen'"

I am getting fed up of this and really dont fancy a trip to court or the £80 fine... :o(

Any advice gratefully recieved.

[Zamzara]

In a case such as this where you paid for the right to park, the argument is not the you didn't enter into a contract (you did), but that a term specifying a penalty charge for breach of the contract is not legally enforceable.

You can also argue that you did not breach the contract as you displayed the ticket to the best of your ability to do so, but it fell down outside of anybody's control.

It is very unlikely that they will take you to court, and there is no particular need to correspond with them if you don't want to.

[Barnsley Boy]

Munty,

The Dunlop Case i quoted to you is still THE reference case on penalties. Napier will continue to write nasty letters to you if they think there is even a small chance that you will give in and pay. There really is only a vanishingly small chance of them being silly enough to take you to the small claims court. They know if they did, and you defended the action, they would lose.

In your position I would send the cease and desist letter.

I am in receipt of your letter dated ********** with regard to the above referenced unsolicited invoice.

I demand that you issue Court proceedings within 14 days or cease and desist from any further contact.

Any other form of contact whatsoever, whether by you or your agents, will be regarded as harassment and will be reported as such.


Yours Faithfully

This just brings home to them that you know just as much about this scam and the way it operates as they do. Don't worry, the chance of them taking this to court is literally 1000s to 1. The chance of them winning is infintesimal.

[DMR]

Any update? I am just about to send my second letter to Napier, but am now a lot more informed than I was at the time of the first letter.

One factor is that they didn't actually affix the PCN to my vehicle, the parking attendant handed it to me, which I believe is in breach of the code of conduct? They use words like "Penalty" & "Offence" which as I believe as they are a PPC is not the case. Also, their PCN is in the style of those issued by local authorities, and not the sample parking ticket shown on the BPA website.

Also, I am a permit holder. My stance is that my permit was attached to the vehicle, while their stance is that it was not displayed, and that their definition of "failure to display a valid pay & display ticket" includes parking permits. I will put the onus on them to supply evidence of reasonable cause, including photographic evidence, that I was in breach of contract. I have not admitted any liability of failing to display properly.


I doubt this will be the last of it, but we shall see.

[lamma]

napier specialises in very misleading letters and have quite probably shot themselves in the foot by their choice of wording. any chance of the text ( anonymised of course)

[DMR]

I left the letter at home - I work away in the week, not too far from MK which is why I was at Willlen Lake. So far Napier only have my weekday digs as my correspondence address, not my home address.

I will get a scan of the letter emailed to me, and then get the text up. Below is the PCN (I have removed my vehicle details & the PCN No.

[DMR]

Here is also my initial letter to Napier, which in hindsight, I probably shouldn't have sent. I have basically admitted I was the driver.
------------------------------------------------
Napier Parking Limited
PO Box 263
Alton
GU34 9EU

18 March 2008

Re: Penalty Charge Notice No. WL000###

Dear Sir

I am appealing the above penalty charge notice attached to vehicle ##### on ## March 2008.

The charge notice was issued for: (01) Failure to display a valid Pay and Display ticket. However, it is not necessary to display a pay & display ticket for this car park in all circumstances. In this case I am a Willen Lake permit holder, issued by Whitecap Leisure, permit number ###.

Also, I contest the time stated on the ticket, as being observed between 14:00 and 14:05. I was actually in the WakeMK building for a brief period of time, but returned to my vehicle before 14:05.

I would therefore appreciate it if you would cancel the above notice, given the inconsistencies noted above.

Yours faithfully

[Barnsley Boy]

DMR

I'd edit the ticket further. The time in conjunction with the PA nr. may be enough to match your posting with Napier's information.

[DMR]

Originally Posted by Barnsley Boy

DMR

I'd edit the ticket further. The time in conjunction with the PA nr. may be enough to match your posting with Napier's information.

Done. Thanks.

[lamma]

A contact of mine received a "Charge Certificate" from them (at Willen lake also). It breaks so much legislation that it would take 45 minutes to type it all up. I would not contact them and wait for the incriminating "Charge Certificate". My contact just ignored them completely and heard nothing more at all. They seem to depend on putting on the hard "frighteners" but the content of the communications (that I have seen and have a copy of) mean they have zero chance of enforcing.
Ignore and let them bury themselves - you can bet that if you engage they will hound you as they will see it as an indication that they have 'scared you'.

[DMR]

Yeah. I've just secured a job back home in east anglia, so won't even be at my contact address much longer, so they would have to go to the DVLA to get information.

[Al27]

We've missed the point along the way.

1. Do not pay
2. Do not contact them any further

Don't get too deep into the contract side of things. They will not take you to court for two very good reasons:

1. They don't have a legal leg to stand on in enforcing their 'penalty'.
2. Their 'PCN' is completely and utterly illegal. It is the most blatantly fraudulent ticket I have seen in a long while and is a virtually an exact copy of a council ticket.

Do not contact them any further. Ignore any correspondence that comes through your door, however threatening.

If you live in a quiet rural area, feel free to take a trip down to the nick and ask to report an offence under the 2006 Fraud Act (bobbies in a big town won't have the time to bother, but a police station in a quiet area might fancy taking a look)

[lamma]

IIRC the signs at Willen Lake say 'Penalty Charge'.

what comedians

[pin1onu]

Originally Posted by Al27

If you live in a quiet rural area, feel free to take a trip down to the nick and ask to report an offence under the 2006 Fraud Act (bobbies in a big town won't have the time to bother, but a police station in a quiet area might fancy taking a look)

If the Old Bill won't take a look then look for the following on all their documents.

NAPIER PARKING LIMITED
149A MASONS HILL
BROMLEY
UNITED KINGDOM
BR2 9HY

Under the Companies Act they are required to put the registered address of the company on all documentation - This includes letters, emails and invoices, which despite its claim to be otherwise is what their "Penalty Charge" is.

If this information is not on the documents you could:

1. Report them to Companies House (Compliance Section)
2. conclude that it is not an official document of the Company and ignore.

BTW the following also came up on Webcheck. Company No. 06009471