Success?

[tom4rse]

Hello there, having a Private Parking ticket issue:

http://www.consumeractiongroup.co.uk/forum/parking-traffic-offences/123586-pcn-vehicle-control-services.html#post1281757

 

On another note however, does anyone have any stories about taking on these companies and it getting to court? If so what was the outcome?

 

Cheers

Tom

[battyboomboom]

You seem to be a little confused. It is not for you to take these [problematic], I mean PPCs to court. They have sent you an invoice for what they believe to be a breach of contract, and therefore if they want to enforce it they must take you to court. This is unlikely though, because they know they won't win if you defend the case properly.

[tom4rse]

Hiya,

 

Yes I realise the emphasis is on them to sue me for breach of contract (although I don't seem to have a defence tbh - I parked, didn't see the signs and thus am liable despite what the defence's listed in the stickys??)

 

I seem to be relying on the fact that I'm calling their bluff not to take me to court.

 

What I mean is that does anyone have an experience of actually being taken to court, have the companies actually made good on their threats and taken anyone through the court system (sucessfully or not).

 

cheers

tom4rse

[Guest interesting]

There is a record of 1 company taking a person to court, but not the company you are dealing with.

There seems to be debate on the question 'do they', many people on here will tell you they never do as they (with the exception of the 1 case) have not heard of any.

Question is, if a parking company takes people to court and won, would the driver/poster advertise the fact online - probarly not, only the PPC would and not many of them post on here.

The people who are telling you to fight it have, in the most, ignored the ticket and called their bluff - there are records of 2 cases going to court and the PPC not turning up and the driver claiming a victory.

The simple answer is no one knows for a FACT - looking at the chances I would say they are unlikely to take you to court for cost reasons, but no one can guarentee it.

[petej2811]

Hiya,

 

Yes I realise the emphasis is on them to sue me for breach of contract (although I don't seem to have a defence tbh - I parked, didn't see the signs and thus am liable despite what the defence's listed in the stickys??)

 

I seem to be relying on the fact that I'm calling their bluff not to take me to court.

 

What I mean is that does anyone have an experience of actually being taken to court, have the companies actually made good on their threats and taken anyone through the court system (sucessfully or not).

 

cheers

tom4rse

 

Have you actually read the sticky? Taken notes? Done some research? Asked questions?

 

It doesn't look like it.

 

You do have a defence. Read the sticky again, twice. Regardless of the signage those issues therein are claim killers. Plus, if you didn't actually see the sign you can't have contracted on those terms, can you?

 

I have experience or two of my joes being taken to court, both by the same firm, not the one you mention.

 

PJ

[legaladviser]

Any properly defended case will easily be won by the motorist. In a properly defended case the private parking company does not turn up because they do not like to be humiliated. As you have noticed unfortunately many of the posters here are supporters of private parking companies and some are even bosses of the companies. Be careful therefore who you listen to and ponder their motives.

[Movingon]

legaladvisor - are you qualified to use that name? If not, your advice could be lent inappropriate weight by inexperienced members just from your name - I would strongly urge you, if you're not qualified, to change your user name; mainly for your own protection!

[tom4rse]

Have you actually read the sticky? Taken notes? Done some research? Asked questions?

 

It doesn't look like it.

 

 

You were quite right to chastise me Pete, I have now read through your sticky with the defence available to me should this proceed to an actual court case, which is what I'm concerned about - I can deal with threats and nasty letters etc.

 

Background: I didn't see the signs, however there actually were 4 of them when I looked again however I'd just like to point out this was not a carpark, this was a private road and as such I was apparently "parking without a valid permit". So (a) assuming they can prove there was adequate signage and (b) the ticket they issued appears to not be in breach of the Administration of Justice Act 1970. © they can prove I was the driver of the motorbike. Therefore, it would seem my defence is:

 

1) I am being charged a Penalty (as defined by the cases you mention) - but does this apply as I was there without a valid permit rather than overstaying any time I had paid for. Also I'm unsure what being charged an actual penalty means for me - what is the significance of this?

 

2) Assuming they can prove there is a contract between me and them (leaving this aside as I'm working on worst case scenario here) it would appear that the damages are unjustifiably high compared to the actual loss incurred by the landowner/company by my breaching the contract.

 

3) Under the Consumer Contract Regulations (1999) schedule 2 (e) - the amount asked is disproportionately high.

 

4) The terms of the contract are unfair under section 5 of Statutory Instrument 1999 No. 2083.

 

Would I be right in thinking this?

 

Tom

[tom4rse]

I have experience or two of my joes being taken to court, both by the same firm, not the one you mention.

 

What was the outcome?

[Guest interesting]

Does the ticket refer to "penalty charge" or "parking charge".

The references to unfair contract terms (i think) irelevant as most companies refer to it as a charge, rather than a penalty.

A landowner can apply whatever conditions he/she wants to an area of land (as long as its legal) and if they want to charge £100 for parking then they can - the short stay at heathrow costs over £60 per 24hrs, it says it on the signs and thats the cost, no real argument there.

The common defence is 'prove i am the driver', the plaintiff would have to show the court they (on the balance of probabilities) feel it was you - if you refuse to tell the court then the PPC can apply for an order compelling you to divulge the details of the driver - it is used often in personal injury claims.

As for petes cases, they were both from the same company and the PPC did not turn up (for whatever reasons unknown to the rest of us).

[tom4rse]

It is a "Parking Charge" on the ticket.

 

Is it a case of everyone backs down and pays which is why there are no cases that reach court? (other than the two you mention)

[Guest interesting]

There is a member on this board called perky who runs a PPC and he took a case to court and won, he then posted the judgement transcript.

Since posting there have been many people who say he owly won because of a poor defence etc., and he offered to post more but the site mods blocked his account and now only publish what they want people to see - as a result no more 'real' case transcripts have appeared, its a shame but I suppose this is a 'consumer forum' and does not want to have the other side aired.

Its down to you, I would personally ask the likes of Pete and "legaladvisor" if you defend the case and lose with their assistance as they are 100% sure you will not lose, but if you did, would they pay the difference between what it is now and the end result - I am sure they will back you and give that guarentee as they are 100% sure you will not lose.

If they are not prepared to do that, its down to you, if you think its not enforceable then stand by your guns, the worst it will cost you (if you lose) is a day off work and £200 or so quid ... the best is it will cost you nothing.

[patdavies]

the PPC can apply for an order compelling you to divulge the details of the driver

 

On what basis in law?

[Guest interesting]

Im not sure pat, I saw it on another forum with regards to a personal injury case and apparantly its used alot, but the application for it costs more than the parking ticket charge normally is so it is not cost effective - I know no more than that.

I will try and find that post on forum and post more if I find it.

[Bernie_the_Bolt]

The references to unfair contract terms (i think) irelevant as most companies refer to it as a charge, rather than a penalty.

 

Excuse me! How do the PPCs justify the charge if not a contractual term? If it's a contractual term it is subject to UCTA and a whole bunch of other stuff. If it is not a contractual term the PPCs are in an even worse position.

[Guest interesting]

Good point Bernie.

The charge has to be displayed on the signs, like with an NCP carpark or similar and if you decide to park there you communicate your offer by parking and accepting the terms.

I am sure most signs say along the lines of "only park if you agree to the charges", thereby the driver if he does not want to be bound by the terms can remove his/her vehicle.

If I didnt want to leave my car at heathrow shortstay for 24hrs costing £50 I would move to the long stay where it costs £5.

The same applies to wheelclamping/towing, if the sign states if you park here without a permit or other you will be clamped and to get declamped it will cost £100, you park, get clampled and have to pay the £100 as thats what it said, is that an unfair contract term, The PPC would argue not as the terms were clear and you had a choice to park/not to park.

of course it has to be shown a resonable person would have seen the signs in the first place and the wording on the signs were clear and communicated the message in a way no one could misunderstand.

To argue I never saw the signs is not valid if it can be demonstrated they were there to see (Vine Case) and on reading although the PPC lost, they lost not because the clamping was wrong but other mitigating circumstances (1 sign, high up, obscured by a landrover, the driver was physically sick, it was not clear it was private and not part of the road).

[legaladviser]

legaladvisor - are you qualified to use that name? If not, your advice could be lent inappropriate weight by inexperienced members just from your name - I would strongly urge you, if you're not qualified, to change your user name; mainly for your own protection!

I am extremely well qualified to use that name. But thank you for your concern.

[Guest interesting]

I know perky offered to put a case that was argued on the unfair contract terms etc.. and he won, but as he is now heavily moderated and can only write what the mods like he has been unable to post it.

[Bernie_the_Bolt]

if you refuse to tell the court then the PPC can apply for an order compelling you to divulge the details of the driver - it is used often in personal injury claims.

 

On what basis in law?

 

Im not sure pat, I saw it on another forum with regards to a personal injury case and apparantly its used alot, but the application for it costs more than the parking ticket charge normally is so it is not cost effective - I know no more than that.

I will try and find that post on forum and post more if I find it.

 

I would have thought it comes down to a matter of public policy.

 

Motor third party liability insurance is a compulsory class of insurance and therefore any negligent driver receives a full indemnity for the loss or damage they cause others.

 

If you are the owner of a vehicle and are insured and fail or are unable to name the driver it will be your insurance that coughs up as they are the "interested insurer".

 

If you are an uninsured driver you will find yourself not only guilty of a criminal offence but personally liable in damages.

 

I see no parallel here for PPCs where there I see no public policy issue. It is a basic principle of contract law that both parties must be identifiable at the time of effecting the contract, that there must be unqualified offer and acceptance and there must be consideration. The PPCs should ensure that they can identify the counterparty at the time they enter into the contract.

[tom4rse]

the worst it will cost you (if you lose) is a day off work and £200 or so quid ... the best is it will cost you nothing.

 

You think that's how much it would be in the worst case?

[Bernie_the_Bolt]

Good point Bernie.

The charge has to be displayed on the signs, like with an NCP carpark or similar and if you decide to park there you communicate your offer by parking and accepting the terms.

I am sure most signs say along the lines of "only park if you agree to the charges", thereby the driver if he does not want to be bound by the terms can remove his/her vehicle.

If I didnt want to leave my car at heathrow shortstay for 24hrs costing £50 I would move to the long stay where it costs £5.

The same applies to wheelclamping/towing, if the sign states if you park here without a permit or other you will be clamped and to get declamped it will cost £100, you park, get clampled and have to pay the £100 as thats what it said, is that an unfair contract term, The PPC would argue not as the terms were clear and you had a choice to park/not to park.

of course it has to be shown a resonable person would have seen the signs in the first place and the wording on the signs were clear and communicated the message in a way no one could misunderstand.

To argue I never saw the signs is not valid if it can be demonstrated they were there to see (Vine Case) and on reading although the PPC lost, they lost not because the clamping was wrong but other mitigating circumstances (1 sign, high up, obscured by a landrover, the driver was physically sick, it was not clear it was private and not part of the road).

 

OK there's a fundamental issue here.

 

Airport parking prices are determined by market forces (among others). The prices are clearly displayed at the point of entry ie when the driver enters into a contract. There is clear communication of terms, offer and acceptance and consideration on the part of the car park operated is completed by the provision of parking and by the driver in paying the fee at exit.

 

In my view it is fallacious to compare this with PPCs who seek to mimic and LA enforcement and dupe the motorist with inadequate and/or unlawful signage. I have no issue whatsoever with PPCs who mimic airport parking by displaying their terms clearly at the point of entry and operate a gate with a pay as you exit scheme.

[legaladviser]

Tom4rse, do not be swayed by those who would have you believe that you are likely to be taken to court or that you will lose there. It is all a big [problem]. They have vested interests and in most cases are connected with the very parking companies seeking to pull these cons.

 

Read the sticky and have courage. Better still go over to Pepipoo and you will find far less apologists for this disreputable industry and a much warmer welcome.

[Bernie_the_Bolt]

Tom4rse, do not be swayed by those who would have you believe that you are likely to be taken to court or that you will lose there. It is all a big [problem]. They have vested interests and in most cases are connected with the very parking companies seeking to pull these cons.

 

Read the sticky and have courage. Better still go over to Pepipoo and you will find far less apologists for this disreputable industry and a much warmer welcome.

 

"far fewer apologists"

Personally I think that Tom4rse is well served by being prepared for and hearing both sides of the argument. Makes for someone better able to mount an effective defence if they know what curved balls may come.

[petej2811]

You were quite right to chastise me Pete, I have now read through your sticky with the defence available to me should this proceed to an actual court case, which is what I'm concerned about - I can deal with threats and nasty letters etc.

 

Background: I didn't see the signs, however there actually were 4 of them when I looked again however I'd just like to point out this was not a carpark, this was a private road and as such I was apparently "parking without a valid permit". So (a) assuming they can prove there was adequate signage and (b) the ticket they issued appears to not be in breach of the Administration of Justice Act 1970. © they can prove I was the driver of the motorbike. Therefore, it would seem my defence is:

 

1) I am being charged a Penalty (as defined by the cases you mention) - but does this apply as I was there without a valid permit rather than overstaying any time I had paid for. Also I'm unsure what being charged an actual penalty means for me - what is the significance of this?

 

2) Assuming they can prove there is a contract between me and them (leaving this aside as I'm working on worst case scenario here) it would appear that the damages are unjustifiably high compared to the actual loss incurred by the landowner/company by my breaching the contract.

 

3) Under the Consumer Contract Regulations (1999) schedule 2 (e) - the amount asked is disproportionately high.

 

4) The terms of the contract are unfair under section 5 of Statutory Instrument 1999 No. 2083.

 

Would I be right in thinking this?

 

Tom

 

 

Tom,

 

In response.....

 

1) Essentially you broke the terms of any alleged contract by overstaying/parking without a pewrmit and so on. The PPC will suggest that on any breach they may charge you a fine/charge or whatever they want to call it. Boiling it down to its bare bones - you broke the contract and now they want you to pay a sum of money because of it. That sum of money does not represent a loss. It is just a figure effectively plucked from the air and serves more as a punishment and deterrent. In contract law if one breaches a contract then all the other party may claim for is liquidated damages, or in short - the cost to him of that breach. The cost here is nil, therefore the PPC may sue for nil.

 

2) Absolutely correct.

 

3) Correct again, and because it is disproportionately high it is a prohibited term, it is void and has no effect.

 

4) This is the same as the above, so yes.

 

Your best and easiest defence is that you did not see the signs. In order for there to be a contract there must be offer, there must be acceptance and there must be consideration. I'll ask you to trust me that consideration is not an issue. The signage represents the offer. If you do not see it then how can you know of it, know of its terms and accept it? There must be a meeting of the minds, both parties must intend to be bound by these terms and in your case this does not exist.

 

As regards the two cases that went to court, the PPCs did not turn up and my Joes won their cases. Both were awarded costs against the PPCs.

 

Regards,

 

PJ

[petej2811]

There is a member on this board called perky who runs a PPC and he took a case to court and won, he then posted the judgement transcript.

Since posting there have been many people who say he owly won because of a poor defence etc., and he offered to post more but the site mods blocked his account and now only publish what they want people to see - as a result no more 'real' case transcripts have appeared, its a shame but I suppose this is a 'consumer forum' and does not want to have the other side aired.

Its down to you, I would personally ask the likes of Pete and "legaladvisor" if you defend the case and lose with their assistance as they are 100% sure you will not lose, but if you did, would they pay the difference between what it is now and the end result - I am sure they will back you and give that guarentee as they are 100% sure you will not lose.

If they are not prepared to do that, its down to you, if you think its not enforceable then stand by your guns, the worst it will cost you (if you lose) is a day off work and £200 or so quid ... the best is it will cost you nothing.

 

A court is a strange environment and nobody could ever say that success is 100% guaranteed.

 

I would say that the chances of success are a good 95-98% depending on how well the claimant's case is constructed and the whim of the District Judge.

 

PJ