TCP parking notice WITH PHOTOS

[Anus Horribilis]

As for "RK Liability", don't forget that does not change a basic tenant of civil law which states that the landowner can only claim for actual damages caused and not some fancy figure plucked out of thin air.

 

I may be wrong, but it appears to me that section 2(2) of Schedule 4 of the Protection of Freedoms Act 2012 permits the landowner to recover their displayed parking and overstay charges. (http://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted).

 

The Minister has the power to set a cap upon such charges, so they can't just make up any price they like, but I think that a landowner will have no problem recovering a £50 charge for a substantial overstay (for example).

[Anus Horribilis]

Liability for what? If I post you a bill for breaking my rules, do you consider yourself liable?

 

It does not matter what I consider proper. The law has been changed to permit RK's to be held liable.

 

"Right to claim unpaid parking charges from keeper of vehicle" - Section 2(4) of Schedule 4 of the Protection of Freedoms Act 2012 (http://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted).

 

Don't shoot the messenger....

[Andy77799]

Does the new bill only apply to council tickets etc???

 

We still ignore the cowboys if we get one???

[Anus Horribilis]

Does the new bill only apply to council tickets etc???

 

We still ignore the cowboys if we get one???

 

I will be very happy if someone explains my mistake, but I understand the new Act to specifically give this right of recovery to private landowners and their agents. It is now enacted as law, but will not be implemented until autumn.

[Jasper1965]

It does not matter what I consider proper. The law has been changed to permit RK's to be held liable.

 

"Right to claim unpaid parking charges from keeper of vehicle" - Section 2(4) of Schedule 4 of the Protection of Freedoms Act 2012 (http://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted).

 

Don't shoot the messenger....

 

It's good to learn thanks for flagging this it's something new that I wasn't aware of. It wont affect my current ticket though but I'll have to be more careful come October.

[Jamberson]

It does not matter what I consider proper. The law has been changed to permit RK's to be held liable.

 

"Right to claim unpaid parking charges from keeper of vehicle" - Section 2(4) of Schedule 4 of the Protection of Freedoms Act 2012 (http://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted).

 

Don't shoot the messenger....

 

I wasn't trying to shoot you. It was a rhetorical question. What I mean is, there is no liability established in the first place, so they can hold or not hold anyone they like as "liable". No-one owes them anything just because they say so. As you say above it is a matter of who to direct their claim to - "right to claim". So far as I can see, it changes nothing except who they will post their junk to.

[Jamberson]

I may be wrong, but it appears to me that section 2(2) of Schedule 4 of the Protection of Freedoms Act 2012 permits the landowner to recover their displayed parking and overstay charges.

 

It says at the very top:

 

1(1)This Schedule applies where—

 

(a)the driver of a vehicle is required by virtue of a relevant obligation to pay parking charges in respect of the parking of the vehicle on relevant land; and

(b)those charges have not been paid in full.

 

... so this would only be of relevance if you are, "required by virtue of a relevant obligation to pay". I don't see any such obligation, so the rest of that part of the act seems to serve no purpose.

[DBC]

And what is a "parking charge"? Is the fee you agree to pay when you park ( unless it's a free car park), or is it imaginary sum of money dreamed up by the PPC for breaking one of their rules?

 

This whole section of the bill is a complete mess, it's trying to mix criminal law with that of civil law.

[SURFBOY]

It would be interesting to see how this "plays out " in an actual court claim!

[Jasper1965]

As DBC what appears to be a tidying up exercise has simply created an entirely new mess for all concerned parties.

 

Can see the Judges loving it though as it gives them a good opportunity to interpret the law themselves.

 

Perhaps I should be writing to Asda now and asking them for a breakdown of their pre-estimated loss for a 5 minute, 60 minute and 24 hour overstay on their free car park so I can decide for myself if these are a fair and accurate pre-estimate of losses incurred or just a penalty charge.

 

Impliedly accepting the land owners offered contract does not mean that I would become bereft of the protections afforded me by the Unfair Terms in Consumer Contracts Regulations 1999 for example in fact I would become better protected in the event a Judge deemed I had impliedly accepted the contract for the contract itself is then open to scrutiny.

 

I smell some very bad publicity coming up for some big name land owners such as Tesco, Morrisons, Sainsburys, Asda if they start to take their customers to Court over car parking. It was after all the deliberate ploy of plentiful and free car parking offered by the big names that drew the consumer away from the high street to the retail parks in the first instance.

 

If I have to wait 20 mins to be served at a till after putting £150 of product in a trolley and am then taken to court by the supermarket for overstaying the 90 minutes permitted I suspect I'll try and get a run for my money through the legal system including making that fine as expensive as possible for the landowner to pursue.

 

Technically possible assuming protocol strictly followed.

 

"Not worth the candle" where the amount claimed is a genuine pre-estimate of costs.

[instrumentsofjoy]

.......

If I have to wait 20 mins to be served at a till after putting £150 of product in a trolley and am then taken to court by the supermarket for overstaying the 90 minutes permitted I suspect I'll try and get a run for my money through the legal system including making that fine as expensive as possible for the landowner to pursue.

......

 

I would suggest a much better approach would be to take the £150.00 of food, mostly frozen, wait until half the produce has been checked into the till and then rush out saying "I must move my car".

 

Couple of dozen of customers like that in a week and they would soon stop.

[Jasper1965]

LOL I like it!!!!!

[Anus Horribilis]

... so this would only be of relevance if you are, "required by virtue of a relevant obligation to pay". I don't see any such obligation, so the rest of that part of the act seems to serve no purpose.

 

s1(2) of Schedule 4 defines -

a “relevant contract” means a contract (including a contract arising only when the vehicle was parked on the relevant land) between the driver and a person who is—

(a)the owner or occupier of the land; or

(b)authorised, under or by virtue of arrangements made by the owner or occupier of the land, to enter into a contract with the driver requiring the payment of parking charges in respect of the parking of the vehicle on the land;

 

a “relevant obligation” means—

(a)an obligation arising under the terms of a relevant contract; or

(b)an obligation arising, in any circumstances where there is no relevant contract, as a result of a trespass or other tort committed by parking the vehicle on the relevant land;

 

There is no obvious reason why this statute would be unenforceable, unless the demanded charge exceeded the Miinisterial guidance. I do agree that High Street brands would be foolish to pursue every minor overstay, and I should think that in practice they will make a safe allowance to avoid alienating genuine customers.

[DBC]

It still seems a strange mixture of criminal and civil law.

[Jamberson]

There is no obvious reason why this statute would be unenforceable

 

Let's agree on what we are talking about here: a parking charge for failure to comply with the Ts & Cs in a private car park.

 

It would be (in my opinion) unenforceable because the terms of the contract themselves are not lawful. They remain unable to impose fines on people, whether there is a contract or not. A contract does not trump the law.

 

To illustrate the point with an absurd example: Someone borrows £1 from you and signs a contract saying if they don't repay you within one week, you have the right to shoot and kill them. Contract signed - so can you follow the terms of the contract and carry out the punishment?

 

No - the terms of the contract are not lawful - so it can't be enforced.

[Anus Horribilis]

Let's agree on what we are talking about here: a parking charge for failure to comply with the Ts & Cs in a private car park.

 

It would be (in my opinion) unenforceable because the terms of the contract themselves are not lawful. They remain unable to impose fines on people, whether there is a contract or not. A contract does not trump the law.

 

To illustrate the point with an absurd example: Someone borrows £1 from you and signs a contract saying if they don't repay you within one week, you have the right to shoot and kill them. Contract signed - so can you follow the terms of the contract and carry out the punishment?

 

No - the terms of the contract are not lawful - so it can't be enforced.

 

I would be surprised if all those Parliamentary draftsmen, lawyers and industry consultations have created a defective law which is unenforceable through the courts. But if you are right, then it will be a major embarrassment for the government and all over the national news very quickly. We'll soon see, it comes into effect in Autumn.

 

Personally I think it's quite simple. If a driver contracts for parking at a rate which is clearly signed and within the national guidance, then that driver can already be held liable in a civil court for payment of the due amount. If the sign says "Free for 2 hours, then £20 per hour" then the driver has not "failed to comply" if they stay for 8 hours. They have just chosen to use a parking facility at a cost of £120. This much is enforceable under current law I would say, but only against the driver.

 

POFA's key change is to make the RK liable for any unpaid parking fees. This is supposed to give the parking companies a lass nasty enforcement option after the abolition of private clamping.

[Tony P]

I suppose it will be a matter of whether the term "Parking Charge" refers to the hourly rate/entry charge OR a penalty charge for exceeding that which was charged for, or touching a white line, or displaying the receipt in the wrong window, or allowing the window to be covered by falling snow, etc.

 

It looks as if it is intended to be the former, but I bet I know which way the PPCs will try to interpret it !

[Jamberson]

I suppose it will be a matter of whether the term "Parking Charge" refers to the hourly rate/entry charge OR a penalty charge

 

Exactly. That's why I said in my last post that I was talking about this in terms of a charge for breaking the contract. If one wishes to read it as a charge for using the service - as Anus (!!) says, then that would be different, and would be enforceable in my view.

 

They are very different situations legally. One is a legitimate fee for a service, one is a privately imposed fine.

[Jasper1965]

The two big flaws I can see with this piece of legislation are:

1) Proving that the "charge" represents an accurate pre-estimate of losses for contractual breach or damages for tort such as trespass and not simply a heavily weighted penalty charge or fine might prove difficult in some instances. Is £75 a fair pre-estimate of loss for say overstaying 20 minutes in an otherwise free car park, a car park which charges £1 per hour, an open car park outside shopping hours etc.

 

2)The statute awards the right to pursue the RK for unpaid charges thus:

 

(9)2)

 

(f)warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—

 

(i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and

 

(ii)the creditor does not know both the name of the driver and a current address for service for the driver,

 

the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;

 

 

Now if we look at this a little more closely we can see the word "and" appears right at the end of condition (i) meaning that both conditions must be met for the right to pursue the RK.

 

But if the RK has supplied the name of the driver at the time both connditions cannot be met ergo no right to pursue the RK.

 

Think about it for a moment, what offence civil or criminal will be committed if the RK replies to the notice served under section 9 with something along the lines of "I was not driving the vehicle at the time the name of the driver was John Smith/mohammed patel, Donald Duck and he lives at 20 Park Drive"?

 

Do this with a speeding ticket etc from the police and you're in a whole heap of trouble but do this with a civil notice such as this where no offence for providing false information has been created and it's a different ballgame.

 

I'm not advocating responding with a fabricated name/address just illustrating that if you did then the right to collect from the RK is not awarded under this statute as proving that you supplied the driver details in response to the notice would be a complete defence to any attempt to recover a charge from the RK since both conditions were not met (assuming every other condition was met obviously).

There is no provision for returning liability to the RK in the event the driver cannot be traced or made to pay up so it's pretty obvious to me that these parking control companies are going to be inundated with lots of replies naming foreign sounding "named drivers".

And what happens if the RK does provide a genuine name and address eg their spouse?

 

These regulations don't actually clarify the current situation one iota where the driver is the one pursued.

They certainly do not award the landowner/agent an automatic entitlement to any "charge" such as these regs attempt to confer upon the landowner/agent in instances where the RK is the one being pursued.

Nothing has changed legally where the driver is pursued, a fine is still unlawful and penalty charges which do not represent a true pre estimate of cost/losses are still unlawful under the Unfair Terms in Consumer Contracts Regulations 1999.

These regs do not award the landowner any extra recourse against the driver whatsoever, they were too busy looking at punishing the owner to bother about the driver but IMO all the RK has to do is supply the name of the driver, any driver even and the legislation becomes worthless.

I'm not advocating telling lies to the parking enforcement companies but I can see it happening with alarming frequency... LOL!!

[DBC]

An excellent summing up by Jasper1965. As I have said a couple of times, this legislation is trying to graft a sort of pseudo criminal ( and unworkable) element on what is still civil law.

[Jasper1965]

It also fails to acknowledge the existence of the doctrine of Privity in contract law ie a 3rd party cannot be held liable under the terms of a contract to which he is not a party.

So there's further ammunition for a defence in the event a claim is brought on the pretext that the driver impliedly accepted the terms of the landowners contract by parking and the driver is not the RK.

[instrumentsofjoy]

My own personal opinion is that there will be a re-jigging of the PPC letter which will make a it LOOK as if the registered keeper is actually liable.

 

There may be a series of further letters quoting this "new" law in some sort of weasel way.

 

The more people get the message to ignore the better. I would rely on the good faith of the British public for them to send the name of an actual driver rather than that of someone else.

 

I am sure no-one would ever dream of sending private parking companies on a wild goose chase. Would they?

[Anus Horribilis]

But if the RK has supplied the name of the driver at the time both connditions cannot be met ergo no right to pursue the RK.

 

Think about it for a moment, what offence civil or criminal will be committed if the RK replies to the notice served under section 9 with something along the lines of "I was not driving the vehicle at the time the name of the driver was John Smith/mohammed patel, Donald Duck and he lives at 20 Park Drive"?

 

I would guess it's vulnerable to a possible charge of fraud by false representation (with the intent to to cause loss to another or to expose another to a risk of loss) contrary to s2 Fraud Act 2006. In any event the point is moot, because if false details are supplied then the requirement of subsection ii) is met, because the creditor does not know both the name of the driver and a current address for service for the driver. Liability therefore still falls to the RK.

 

What will be interesting will be when RK says he lent the car to John Smith and gives his address, but John Smith then denies this. The creditor will have to sue them jointly and let the court award damages and costs against whichever is held to be dishonest. The creditor cannot lose (because if Smith is held to be truthful then RK must pay, and vice versa) but the time and cost of pursuing a case like this may be a significant deterrent.

 

I suppose we will see a range of test cases and examples in the first year, and it will start to become evident how widely the new law will be used. As ever, it should not be assumed that I am advocating or supporting these new measures.

[Jasper1965]

if false details are supplied then the requirement of subsection ii) is met, because the creditor does not know both the name of the driver and a current address for service for the driver. Liability therefore still falls to the RK.

 

 

Correct but is the creditor ever going to be in a position to prove this? very doubtful I'd say, it's quite common for a parking ticket to be ignored, and sadly very common for a county court claim to be ignored too. A lack of response from the "driver" will not be of any detriment to the RK as I pointed out earlier that the new legislation does nothing to return liability to the rk in the event the monies are not paid by whatever means of enforcement by the "driver".

 

A failure to collect charges from the named "driver" in no way proves or disproves the integrity of the information supplied by the RK and since we're talking parking tickets not multi million pound fraud I can't see much interest from the authorities in pursuing cases even if fraud is suspected.

Fixed penalties and formulaic fines are where the moneys at in the legal system, by failing to make the incorrect supply of driver details a criminal offence subject to a mandatory fine this legislation will be of little interest to the criminal divisions.

 

The denial aspect is food for thought though:

 

I suspect that if A blames B and B denies it then very quickly this will be held that A has failed to incorrectly identify the driver and is thus liable as RK.

What makes it really interesting is that B could ignore all demands for money until a court claim is brought.

Once a claim is issued B enters a defence: "I was not the driver because I was on holiday in Cornwalll at the time, at work etc."

 

At best claimant has lost the costs of bringing the claim, at worst they could get hit with the defendants costs on top.

Either way the loss outweighs the potential gain and might serve to deter the blanket issuance of claims.

 

What the landowners really needed (wanted more accurately) was an IF ELSE statute.

What they've got is an IF ELSEIF ELSE where ELSE is a void function.

 

If section 4 as enacted were a computer programme it would be entirely reliant upon the user (the RK) entering the correct data. There is no catchall error routine for bad/erroneous data entry which I as a coder of many years exp can identify as bad logic from a great distance.

 

The statute makers could learn much by studying programming logic, section 4 as it stands will crash frequently

[Anus Horribilis]

The denial aspect is food for thought though:

 

I suspect that if A blames B and B denies it then very quickly this will be held that A has failed to incorrectly identify the driver and is thus liable as RK.

What makes it really interesting is that B could ignore all demands for money until a court claim is brought.

Once a claim is issued B enters a defence: "I was not the driver because I was on holiday in Cornwalll at the time, at work etc";

 

At best claimant has lost the costs of bringing the claim, at worst they could get hit with the defendants costs on top.

 

If B entered a defence denying responsibility, the creditor would simply add the RK as a joint defendant.

 

At trial, the RK would be asked to confirm under oath that their car was being used by B at the time that the parking charge was incurred. B would be asked to confirm under oath whether this was true. The judge would decide which of them was telling the truth (it cannot be both, obviously). In a criminal court this would be called a "cut-throat" trial, because each defendant is necessarily seeking that the other is found responsible.

 

Costs for both the claimant and the innocent defendant would usually be awarded against the defendant who was found to be responsible. So that defendant's liability might easily be in the thousands by the end of the process.