OPC claiming "debts" not "damages"

[Nineconsonants]

Hi all

first post here, I've been lurking for a while but haven't come across this so far...

 

A few months ago I'd parked outside our flats, but my permit had fallen off the windscreen and I got a parking ticket from OPC. I'd not seen these forums before and so (stupidly) I appealed and gave them my admission that I was the driver.

 

After my appeal was rejected, I came across this forum and sent them another letter of appeal along the lines of some of the templates (saying that they were only entitled to damages which in this case were nil since I owned a permit to park there), but this appeal was rejected also. They say in the letter:

 

"The basis upon which the parking ticket is issued is [...] under contractual law, however it is not damages due to breack of contract it is rather parking charges or a parking ticket issued under agreement to the contract. [...] The claim is in debt not damages; therefore it does not have to represent losses. [...] By regulation 6(2) of the Unfair Terms in Consumer Contracts Regulations 1999 the provisions of the terms and conditions as to the fee payable when not displaying a permit are not liable to be assesed for fairness."

 

Where do I go from here? From what I've seen here the PPC's don't have a leg to stand on, please tell me this is the case here!

[Barnsley Boy]

You would have to look at what you signed for or, if you didn't sign anything, what the terms and conditions stated on the permit and / or signage state. You will also have to consider who issues the permits. Is the sanction of non renewal a possibility?

 

From what you have said, it is entirely possible that the PPC are just talking their usual bow locks. It is actually quite dificult to draft an agreement that states "permit holders only" and at the same time saying that the penalty for failure to display is actually not a penalty or breach of contract but rather, part of the agreement.

 

Regulars will roll their eyes when I trot out the Dunlop v new Motor yet again but it is still the precedent on penalty clauses.

 

 

 

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
   )

The bits I've highlighted in red are all relevant to your case. If I were in your position, and I accept that I'm not, I would call the PPCs bluff.

 

 

Dear Sirs,

 

I note that you have rejected my "appeal". However, my opinions have not changed. I will pay your proposed charge upon direction of the court and only upon direction of the court.

 

Should you choose to proceed with court action, please be advised that I will defend my case vigourously.

 

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

 

y/f

 

 

[Nineconsonants]

Thanks for your help. I've decided to reply directly to this claim that it isn't a penalty clause, so I've written the following letter. I've included a few points that I've seen from a few other posts, and your kind advice.

 

Dear Sir/Madam,

I was disappointed with your letter dated XX/XX/XX, in which you state that my appeal against the above parking ticket has been denied. As I have stated in two previous letters to you, our family owns [address of our flat], and has therefore paid for a parking space in the car park controlled by you.

 

 

With regard to your letter dated XX/XX/XX, in which you state:

“[...] the legal principles relating to liquidated damages clauses [...] and penalty charges are not relevant or applicable to the facts.”,

I refer you once again to the case of Dunlop Pneumatic Tyre Co. Ltd. v New Garage & Motor Co. Ltd. [1915], in which it was noted that a clause is penal if it provides for “a payment of money stipulated as in terrorem of the offending party”, (i.e. a payment of a sum of money intended to frighten or intimidate the offending party). My opinion is that this is the case here, since:

• 1, Your parking ticket was clearly designed to resemble a fixed penalty notice; which would be enforceable publicly rather than privately. The use of the term “appeal” suggests the penal nature of the ticket, while also creating a falsely official bearing to your claim.
  2. The cost of the ticket rises from £50 to £100 if payment is not made within 14 days, intimidating those receiving a ticket into paying without protesting.
  3. You are persistently making demand for payment, and threatening that “Failing to make such payment will result in said debt being factored for collection” in a manner which I perceive as intimidating. I remind you that in my letter dated XX/XX/XX I state that I view your pursuing of the matter to contravene the Protection From Harassment Act 1997 and Section 40 of the Administration of Justice Act 1970; an opinion which I restate here.

Furthermore you claim that:

“They [the driver] do not display a permit [...] [OPC] are entitled to impose a charge in accordance with the terms of the contact.”

However, I refer you to your own terms and conditions, displayed on the signage at the site in question:

“The charge for unauthorised use is £100 (£50 if paid within 14 days).”

Since OPC has defined “Parking on site without clearly displaying a valid Resident or Visitors parking permit within the front windscreen” as “Unauthorised”, I fail to see how this is not a penalty clause, or indeed how the driver can contractually agree to this charge. In your letter dated XX/XX/XX you cite regulation 6(2) of the Unfair Terms in Consumer Contracts Regulation 1999, and state that the fee payable is not liable to be assessed for fairness, however the same regulation requires that the term assessed is in “plain intelligible language”. In my opinion, stating a consideration for parking without displaying a permit, while also stating that such action is “unauthorised” is confusing and contradictory.

 

 

You should be aware that under constitutional law you are breaking the law by demanding money from me before any court conviction (bill of rights 1689). Therefore any claim you have is null and void as you have demanded monies from me.

 

 

My opinions on this matter have not changed. I will pay your proposed charge upon direction of the court and only upon direction of the court. Should you choose to proceed with court action, please be advised that I will defend my case vigorously. Please be aware that should refer this matter to a debt collection company, I will inform them that this matter is in dispute, whereupon they have a legal obligation to refer the matter back to yourselves. I am explicitly instructing you not to contact me again for any reason, except to confirm that the matter is now closed.

y/f

What are your opinions? Does anyone know whether the bill of rights 1689 still applies to the letter?

[Zamzara]

The Bill of Rights does not apply to something like this. Apart from that you're 100% right, but will sending this achieve anything that ignoring it won't?

[Nineconsonants]

Perhaps not in terms of OPCs appeals process, but I really want to have a record that I consider their behaviour intimidating and harassing should it come to court.

[Zamzara]

Another point to add to the list is that they have not provided consideration to the contract, as you indicate you either own the land or have existing permission to park there.

[Barnsley Boy]

Nineconsonants,

 

No problem whatsoever in what you've said, apart from that Bill of Rights stuff which, as Zamzara has intimated, is not really applicable to alleged contract.

 

Where I would differ is in terms of tactics. I'd keep my powder dry regarding the many reasons why the PPCs claim is bow locks until it came to a genuine face off. I prefer short and sweet to engaging the [problematic] at their level. Taking them too seriously gives them an overly inflated opinion of their own importance.