Private Parking 'fine any case law???

[vjohn82]

Is there any case law on the books regarding private parking fines (such as camera operated supermarket sites etc).

 

Thanks

[crem]

As there is no such thing as a "private parking fine", it therefore follows that there can't be any case law on such a thing.

[vjohn82]

As there is no such thing as a "private parking fine", it therefore follows that there can't be any case law on such a thing.

 

Just checking crem... I know some people have been hit with N244's in recent times and whilst the vast majority probably go undefended I was placing some faith in someone taking them to task and getting a judgement in favour of the Defendant.

[vjohn82]

I've just read something about "Judge Ackroyd in Oldham Court in 2008" on a news site... I'll check it out.

[vjohn82]

Here's the case... obviously not binding being a SC case but interesting nonetheless:

 

 

IN THE OLDHAM COUNTY COURT Claim No. 8QT03984

 

 

Tuesday, 14th October 2008

　

 

Before:

 

 

DISTRICT JUDGE ACKROYD

 

 

　Between:

 

COMBINED PARKING SOLUTIONS

 

 

Claimant

 

 

-v-

 

 

STEPHEN JAMES THOMAS

 

 

Defendant

 

 

______________________

 

 

Representative for the Claimant: MR PERKINS

 

Representative for the Defendant: MR LARGE

 

______________________

 

 

　

　

 

JUDGMENT APPROVED BY THE COURT

 

 

　

Transcribed from the Official Tape Recording.

 

 

 

JUDGMENT

 

　

1. THE DISTRICT JUDGE: This is a claim by Combined Parking Solutions of Wolverhampton against Mr　Stephen James Thomas. It is for a parking charge of £135 plus some interest, totalling £136.86.

 

2. The background to this case is that Combined Parking Solutions and the vicar or minister of St Andrew’s Methodist Church on Smith Street, Rochdale entered into a licence agreement on 19th October 2007. St Andrew’s Methodist Church is in the middle of Rochdale and is a relatively modern building probably constructed within the last 15 to 20 years, maybe later, with a large surrounding car park and that car park is to accommodate people who use the church for worship purposes, probably for meetings and for other groups but the car park, which is apparently well surfaced and laid out, also is used to provide probably needed remuneration and money for the church because the church, according to the notices placed on the building by the church, accommodate weekday permit holders so it can be inferred from that that the church sells car parking permits to people who want to take advantage of the central location and use the church land for weekday parking and, in fact, a designated area apparently is set out for those permit holders.

 

3. It is clear from the evidence that the church have been suffering from people who trespass and from people who are rogue parkers – in other words, they do not have any business at the church and are not a permit holder. There is a statement from the minister of the church who has, in the past, made notes of the registration numbers of rogue parkers and one of the cars which has been an offender is that belonging to the defendant, the car of which he is the registered keeper and the minister of the church has indicated in his statement and from the diary note the registration numbers of several vehicles which have been rogue parkers which included the vehicle of which the defendant is the registered keeper.

 

4. At all events, the problem was such that the church decided to enter into the licence agreement, which is part of the bundle and in respect of which no issue has been taken by the defendant, so that there could be some regulation brought into the parking problem which the church had. The position is that following the agreement being entered into a number of notices were placed around the church car park and there are photographs produced by the claimant showing the church, the car park and the notices. The notices are in red, printed in white and have a castellated black line around the perimeter.

 

5. On 15th November 2007 vehicle registration number [REMOVED] was parked in the car park at St Andrew’s Church, it did not have a permit, it was not authorised to be parked at the location and, in accordance with the agreement between the church and Combined Parking Solutions, a ticket or a parking charge noticed was applied to the vehicle and because there was no response, the matter was then taken up by Combined Parking Solutions as they are authorised to do by virtue of the licence agreement and this litigation results from the non-payment of the parking charge.

 

6. The basis of the parking charge is a contractual agreement because the notice or notices displayed at various locations in the car park, not only at the entrance but near to the entrance and elsewhere state:

 

"Warning: contractual agreement. This private land is strictly for the parking of motor vehicles when complying with the terms and conditions as indicated below: displayed valid permits and authorised persons only. All vehicles must be parked in their allocated bay if applicable and in a non-obstructive manner. If you park on this land contravening the above terms and conditions, you are contractually agreeing to pay a parking charge of £85 payable within 28 days from the issue of a parking charge notice reduced to £60 if paid within 14 days, one charge per 24 hour period can be issued. You will incur additional charges resulting from further action being taken against you if the fee remains unpaid. By parking on this land you are also agreeing that if you are not the registered keeper, the registered keeper has authorised all acts that you perform as the driver of the vehicle and that the registered keeper has agreed to accept liability and responsibility for the above parking charge. Do not park here unless you understand and agree to all the above contractual charges and conditions."

 

Then there is a name, telephone number and address of Combined Parking Solutions.

 

7. The vehicle in question, the registration number of which I have given, parked in contravention of that notice because there was no authorisation or permit for the parking of the vehicle. Mr　Stephen James Thomas, the defendant, is the registered keeper of the vehicle but as such he cannot be liable. The issues in the case are whether Mr　Thomas could be identified as the driver of the vehicle on the day in question and the court has to consider that matter on the balance of probabilities, the court has to consider whether in addition the notices were sufficiently visible having regard to the test set out by in the case of Vine v Waltham Forest and finally the court has to consider whether the amount or amounts escalating from £60 to £135 were a penalty or whether they were compensation and if they were compensation, whether they were a disproportionately high amount having regard to the Unfair Terms in Consumer Contracts Regulations 1999.

 

8. There is common acceptance that the defendant, Mr　Thomas, is the registered keeper. It is his case that he denies being the driver of the vehicle on the day in question and if I accept that evidence, then that is the end of the case. If I do not accept that evidence, then we need to move on to the other issues of notice. If the issue of notice put by the defendant is accepted, then that is the end of the case and, if not, we then move on to the issue of compensation or penalty.

 

9. It is well settled law, from what I can see of the authorities that have been provided, that a notice such as was placed by the claimant or notices on this car do form a contractual agreement if they are seen and understood by the persons parking their cars on the car park in question. There is a contract formed by virtue of conduct. There has been an issue raised in relation to consideration. That issue is put not at the forefront of the defendant’s arguments but, nevertheless, it is put and it needs to be dealt with.

 

10. I have already indicated that this is a relatively modern church building with a large, well surfaced car park in respect of which the car park is used for the congregation, other users of the church as well as a commercial enterprise to raise what are probably much needed funds for this church building and it seems to me that we are here not looking at the issue of a piece of waste land but a properly constituted car park used partly for commercial purposes. The cost of creation would have been enormous, the cost of maintenance will be high and it seems to me that if consideration is an issue, there is ample evidence that consideration flows from the formation and creation of this contract in that the defendant, if he was driving the vehicle, would receive a valuable benefit from parking his vehicle there at the time.

 

11. The first issue to decide is the issue of identity. The claimant, of course, has to prove its case on the balance of probabilities. It is not to be proved beyond a reasonable doubt; it is on the balance of probabilities, which is the civil standard of proof and the court has to be satisfied on that standard whether the defendant was the person who parked his vehicle. There is no identification evidence, nobody saw him park, he parked early in the morning when in all probability it was dark. He was not seen to drive away his vehicle. The minister cannot provide identification evidence.

 

12. The car was parked on 15th November which is a Thursday and, of course, if the claimant cannot prove the defendant parked there, they will lose the case. This is a case where this claimant has been doing some investigation, it has been doing some homework in order to try and get its case home and undoubtedly it is faced with this sort of argument a lot if there is no identification present at the time that the ticket is put on the screen.

 

13. It is the defendant’s case that he cannot say for sure whether he was the driver on that occasion and there were several drivers who were legally authorised by him to use the vehicle and they could have been using it on the day and the defendant says in his witness statement that he has spoken to all the other potential drivers and none of them are prepared to say who it was but it was the defendant’s clear case that it was not him. He said to me in evidence that there is one person, it could be his younger brother, he is a bit younger than him but he does not know.

 

14. He says he drives to work every day, not on only one, he recalls going back to the car but he cannot remember whether he had parked there on that day or not.

 

15. He said if somebody else had used his car on that day and there are other people, his brother and his associates do, he would have got a lift to work and it could have been anybody else who was driving it.

 

16. It is a situation where, on the balance of probabilities, there is absolutely no doubt that I should find and I do that this defendant was the driver of the vehicle on that day. This defendant has run, in respect of the issue of identity, a disingenuous issue.

 

17. What of the other issues, the issue of the signs? It is the defendant’s case that he did not see the signs at all, that it was dark, he had been back, he had looked round and on a dark morning none of the warning signs imposing the contract or inviting the defendant to enter into a contract could be seen and he went on to say in his statement that if he had been the driver, he would have seen the warning signs and he would have parked elsewhere. There is no doubt about it that the warning signs in daylight, because I have daylight and night time photographs, are there for all to see. In the bundle, which is helpful, it shows a number of signs placed in highly visible positions on entry to the car park, on exit from a vehicle, on exit from the car park.

 

18. In the dark it is different. The photographs taken by the defendant upon which he relies are taken without flash simply showing the security lights on the car park but it can be safely assumed that at that time of the year, which was 15th November, at the time the defendant went to the car park and parked it would be dark. One of the signs is apparently illuminated because it is underneath one of the security lights. The other signs are visible. It is reasonable to accept the claimant’s submission that on a dark morning in November the users of the car park at that time would have their headlights on. Of course, headlights driving into a car park with signage facing one would be illuminated by the headlights. The defendant’s case in part is that he did not see the signs at all and he would not have seen one of the signs adjacent to where his car was parked because he would have jumped over a low wall to exit the car park.

 

19. There has been, of course, case law in relation to matters of this nature. Vine v London Borough of Waltham Forest is the leading case which has been referred to. This was a clamping case and the leading judgment was given by Lord Justice Roch and he deals with signs and he says in his judgment:

 

"The act of clamping the wheel of another person’s car even when that car is trespassing is an act of trespass to that other person’s property unless it can be shown that the owner of the car has consented to or willingly assumed the risk of his car being clamped. To show that the car owner consented or willingly assumed the risk of his car being clamped, it has to be established that the car owner was aware of the consequences of his parking his car so that it trespassed on the land of another. That will be done by establishing that the car owner saw and understood the significance of a warning notice or notices that cars in that place without permission were liable to be clamped. Normally the presence of notices which are posted where they are bound to be seen, for example at the entrance of a private car park, which are of the type which the car driver would be bound to have read, will lead to a finding that the car driver had knowledge of and appreciated the appropriate warning."

 

Lord Justice Waller says:

 

"If it is established that a car driver saw a notice and if it is established that he appreciated that it contained terms in relation to the basis upon which he was to come onto another’s land but did not read the notice and thus fully understood the precise terms, he will not be able to say that he did not consent to and willingly assume the risk of being clamped."

 

20. Of course, the law in relation to clamping and notices applies, in my judgment, equally in relation to the notices placed at the entrance to the car park and in and about the car park in relation to the contract in this case. The sentence which I take from the judgment of Lord Justice Roch is this:

 

"Normally the presence of notices which are posted where they are bound to be seen, for example at the entrance to a private car park, which are of a type which the car driver would be bound to have read, will lead to a finding that the car driver had knowledge of and appreciated the warning."

 

21. The type of notice in question is, of course, relevant and in this case the type of notice is a notice which is entirely different from the church notices. The church car park notices directing users are dark red with a wooden frame and gold writing. They do not stand out anywhere near as much as the bright red notices with white printing which the claimant used and whilst it is accepted from the evidence of the defendant that he used this car park, it seems on a regular basis because he just thought it was a car park, it is hard to accept that he did not see and take note of the new notices which had only gone up a short time before 15th November and I simply do not accept the evidence of the defendant that he did not see the notices. They were as large as life and they are a type of notice which a driver is bound to have read, they would be picked up in his headlights which, on the balance of probabilities, he would be using that morning to drive to the church car park which is illuminated by way of security lights. This applies not only to the notice as he entered the car park but the notice adjacent to where he would exit his car. So I am quite content, on the balance of probabilities, that it had been proved that the defendant was driving and that he had full knowledge and consented to enter into the contract which is alleged.

 

22. What about the third aspect of the case? The third aspect of the case concerns the issue as to whether it is a penalty or not. I have already indicated that this is a relatively modern church with a large, well constructed car park where people buy permits to park and go and work in the town. The defendant has said that he has been intimidated by the claimant’s behaviour. That comes very loosely within the issue as to whether the charge is a proper contractual charge or a penalty. I cannot find on any basis that the claimant has intimated the defendant. The letters he received and his response are in the bundle. They are standard, plain, polite letters.

 

23. The issue now is whether it is a penalty or not. If this is a penalty or it is a disproportionately high sum in compensation, then the claimant fails on that part of the issue. The charge is £85 reduced to £60 if paid within 14 days. The charge then escalates if it is pursued further and in the letter of 8th January, which was the letter before action, January 2008:

 

"As authorised agents we are advised that you are required to pay the sum of £85 within seven days of this letter to this office. Failure to do so will result in legal proceedings being taken against you as the registered keeper in the county court. We are also obliged to advise you that once legal proceedings have commenced the fee will increase to £135 plus court issue costs and interest."

 

24. The notice in the car park put the defendant on notice that he would incur additional charges resulting from further action being taken against him if the fee remains unpaid. The principal question is whether the fee of £85 reduced to £60 is a penalty or a parking charge and on the face of it the man in the street would think that this was a penalty, a fine, for parking there but is it? I think what people fail to realise is that there is a cost for everything these days, not only the cost of creation and maintenance of the car park but the loss of revenue to the church by rogue parkers who otherwise would pay for a contract permit. There is the cost of dealing with the matter of running the car park and, of course, this claimant effectively runs this car park for the church. It has helpfully produced in the bundle a breakdown as to how the parking charge is calculated building in, of course, a gross profit element and these calculations do show how the parking charges are based at £60, £85 and £135 producing a gross profit for the company of in the region of 20 to 27 per cent depending on which of the charges is paid after which, of course, they have to pay their other company expenses and pay tax.

 

25. I cannot find that the amount, bearing in mind the calculations provided, is a penalty and that takes into account what I have said about the nature of the car park, the state, its running cost, the potential loss of revenue, the cost of policing the car park and the rest of it and neither can I find that it is a disproportionately high sum in compensation, so for all those reasons the claimant’s case succeeds and the defendant’s case fails and there will be judgment for the claimant for the amount of the claim.

[mightymouse_69]

A county court case is not binding.

 

Can be persuasive though.

 

The rumours are that it was a set up. I am not too sure personally.

 

As for case law - There is none on PPCs as such. There is case law on principles - I.E - contract, trespass etc.

[vjohn82]

I've been reading up on a thread which seemed to have got out of hand... always fun on CAG!

[vjohn82]

I've been looking at:

 

Murray Vs Leisureplay (2005) EWCA Civ 963

English contract law recognises that, if the parties agree that a party in breach of contract shall pay an unjustifiable amount in the event of a breach of contract, their agreement is to that extent unenforceable.

 

In conclusion, the above cases show that extortionate penalties imposed against consumers for failing to meet obligations are unfair and contrary to the law, yet unless each case is taken individually not a lot is being done to protect consumers despite the laws ruling on the issue.

 

What the Unfair Terms in Consumer Contracts Regulations 1999 No 2083 states:

 

Schedule 2 Indicative and Non-Exhaustive List of Terms which may be Regarded as Unfair

 

(e) requiring any consumer who fails to fulfil his obligation to pay a dis-proportionately high sum in compensation 10 Complaints- consideration by (OFT)

(1) It shall be the duty of the [OFT] to consider any complaint made to [it] that any contract term drawn up for general use is unfair, unless--

(a) the complaint appears to the [OFT] to be frivolous or vexatious; or

(b) a qualifying body has notified the [OFT] that it agrees to consider the complaint.

(2) The [OFT] shall give reasons for [its] decision to apply or not to apply, as the case may be, for an injunction under regulation 12 in relation to any complaint which these Regulations require [it] to consider.

 

Seems to me that even charging people who park in what are labelled "free" parking areas and then expecting £40 in "compensation" is disproportionate.

 

Am I right in saying that the parking companies cannot take people to court anyway because they are not the landowner?

 

Isn't it also an issue that the car park was open during shop closed hours without a barrier? A sign I noticed states customers who park over the requisite time are liable for the fine; if you are not a customer then surely no contract has been entered into?

[sequenci]

Seems to me that even charging people who park in what are labelled "free" parking areas and then expecting £40 in "compensation" is disproportionate.

You've hit the nail on the head

[Al27]

Heatherington Jakeman is the most persuasive case on this.

[vjohn82]

Thanks!

[sequenci]

Heatherington Jakeman is the most persuasive case on this.

 

Is there a copy of this case online? I couldn't locate it on lexis?!? (probably searching for the wrong thing!)

[vjohn82]

Is there a copy of this case online? I couldn't locate it on lexis?!? (probably searching for the wrong thing!)

 

Here it is

Heatherington Jakeman 2008.pdf

[sequenci]

Thanks! So, I'm assuming this was in the County Court?

[vjohn82]

Thanks! So, I'm assuming this was in the County Court?

 

Yep... so obviously not binding but the Judge was well up on penalties and contract law.

[sequenci]

Yep... so obviously not binding but the Judge was well up on penalties and contract law.

 

For a change!