Unfair/unlawful Terms?

[Timsta]

My Mother In Law's car was ticketed in private parking. We replied with "We don't know who the driver is, the keeper doesn't drive. Please take it up with the driver." (MIL doesn't drive, but it is her car for us to ferry her around in!)

 

Anyway, they replied with their T&C's, saying "please see Item no 8."

 

Item no 8 reads, "Every person who enters into a contract with the company for the parking of a vehicle in the car park whether by purchasing a ticket or otherwise does so on behalf of himself and all other persons having propriety, possessory or other financial or material interest in the vehicle and its contents"

 

They are trying to use this clause to get MIL to pay, however she wasn't even in the car at the time. I know they have no chance, but does anyone have any nice "unfair terms" type of legislation or anything similar?

[dw190]

My Mother In Law's car was ticketed in private parking. We replied with "We don't know who the driver is, the keeper doesn't drive. Please take it up with the driver." (MIL doesn't drive, but it is her car for us to ferry her around in!)

 

Anyway, they replied with their T&C's, saying "please see Item no 8."

 

Item no 8 reads, "Every person who enters into a contract with the company for the parking of a vehicle in the car park whether by purchasing a ticket or otherwise does so on behalf of himself and all other persons having propriety, possessory or other financial or material interest in the vehicle and its contents"

 

They are trying to use this clause to get MIL to pay, however she wasn't even in the car at the time. I know they have no chance, but does anyone have any nice "unfair terms" type of legislation or anything similar?

 

You say your MIL car was ticketed and we replied with dont know who the driver was.

 

Did you wait for them to get the details from the DVLA or write in response to a notice on the car?

 

What do you think this company would say if I entered into a financial contract on their behalf commiting them to pay your MIL for the privilage of havig her car decorate their car park.

 

They will continue to prey on the vunerable who pay up after receiving their threats.

[Sidewinder]

No need to even enter into a discussion with them - the clause is addressed to the driver, and claims that the driver (being the one who may have entered into a contract), does so on behalf of others. The fact remains that their contract is with the driver, not anybody else on whose behalf he or she may have accepted the terms of the contract.

 

The clause is cr*p in any case - and the only thing which matters is that they must prove that the driver of the vehicle accepted a contract which said that they would pay a parking company £xxx under a certain circumstance. To test that contract in law they would have to take civil action against the individual who agreed to the terms, and the RK may well have been many miles away at the time, so your MIL can quite correctly state that she has had no involvement in forming any alleged contract. If she feels like writing back to them she can threaten to report them under the Protection from Harassment Act.

 

Don't go quoting words such Unfair Contract Terms to them otherwise you may be admitting that a contract exists and that you are just arguing about the scale of the charge!

[Timsta]

Thank you, sometimes it's hard to keep focused!

[Zamzara]

This is called privity of contract by the way, and is fundamental to English contract law.

[Timsta]

Thank you, that's what I was looking for. I have invited them to take us to court or shut up. (I was a bit more diplomatic) I have also advised them that they have one more letter, then I will charge for my time, and invoice them.

 

Let's see.

[Guest perky88]

Although this takes place on private land, certain sections of the RTA do apply on private land that is open to the public.

 

The RTA does require the owner/keeper to know who has was driving their vehicle at any specific time.

 

If this case went to court and the defendant just refused to tell the judge who was driving, the question would be asked as why would a person be refusing to name an individual for such a trivial matter.

 

The claimant (parking company) could show evidence of the keeper from DVLA, photogrpahic evidence of the vehicle taken at the time / signage in clear view and a clear to understand sign .... on a balance of probability 51/49 at that stage the claimant would win.

 

The defendant would then argue they did not drive it at the time and therefore the charge is not due to them ..... and then not give the court any evidence as to who was ...

 

The claimant would respond by stating "they cant provide because they were driving" - and unless they can show the court evidence to the contary then the parking charge should stand.

 

I have only dealt with 2 cases with this defence and in both I have won, as I have previously mentioned small claims court set no legal precedenance.

[Guest perky88]

Sorry, Just to add if you did charge them for responding to their letters you would notbe able to claim.

 

They would simply defend any claim you made with "The claim has no legal cause of action".

[Rob S]

Although this takes place on private land, certain sections of the RTA do apply on private land that is open to the public.

 

The RTA does require the owner/keeper to know who has was driving their vehicle at any specific time.

 

Could you tell us which section of the RTA please?

 

If this case went to court and the defendant just refused to tell the judge who was driving, the question would be asked as why would a person be refusing to name an individual for such a trivial matter.

 

Interesting, as it is up to the claimant to prove who the driver of the vehicle is.

 

The claimant (parking company) could show evidence of the keeper from DVLA, photogrpahic evidence of the vehicle taken at the time / signage in clear view and a clear to understand sign .... on a balance of probability 51/49 at that stage the claimant would win.

 

Showing evidence of the keeper doesn't show who was driving at the time, and if the parking company doesn't have that evidence available then the balance of probabilities will be in favour of the defendant.

 

The defendant would then argue they did not drive it at the time and therefore the charge is not due to them ..... and then not give the court any evidence as to who was ...

 

It is not up to the defendant to provide evidence of who was driving the car at the time, that is the responsibility of the claimant. It would be quite reasonable for the defendant to say to the judge "It's up to the claimant to provide evidence of who the driver was at the time, not me. There is no requirement for me to name the driver. If the claimant is unable to give evidence of who the driver was then there is no case to answer".

 

The claimant would respond by stating "they cant provide because they were driving" - and unless they can show the court evidence to the contary then the parking charge should stand.

 

If the defendant admits at this point they were the driver then the only issue at hand is whether or not a contract has been formed between the claimant and the defendant.

 

I have only dealt with 2 cases with this defence and in both I have won, as I have previously mentioned small claims court set no legal precedenance.

 

These 2 cases are very specific in that the defendant have admitted in court they were the driver. I doubt you would get the same result from someone who is properly prepared.

[Guest perky88]

Rob,

 

I can only comment on facts, these being the 2 cases I have been to court with by people refusing to admit they were driving and stating they would refuse to give the details to the Judge in small claims.

 

I agree that each case in the small claims is case specific, my point to people is to be careful when reading sites like this and thinking it is 'law' and that it will apply to them.

 

Many people have been issued with tickets lawfully and correctly, and try every loophole / excuse / winge known to try and get out of it ...

 

If I lose a case (and I am sure the time will come), then I will buy an old £50 car and park it on their driveway, the law is the same ... then they will know how we feel and maybe next time they park next to a sign stating private land/permit holders only they will think twice instead of doing the decent thing and going to the NCP carpark .. sorry off topic a little !!!

[Timsta]

The defendant would then argue they did not drive it at the time and therefore the charge is not due to them ..... and then not give the court any evidence as to who was ...

 

The claimant would respond by stating "they cant provide because they were driving" - and unless they can show the court evidence to the contary then the parking charge should stand.

 

Well, being that the defendant is blind I think we *may* just get away with claiming it wasn't her.

[Guest perky88]

True, I suspect the claimant would find it hard to persuade a judge the blind person was driving ... but Judges do sometimes do some weird things !!

[Timsta]

Could you tell us which section of the RTA please?

 

I think perky88 is referring to Section 172 of the road traffic act:

 

 

Section 172, road traffic act.

(1) This section applies—

• (a) to any offence under the preceding provisions of this Act except—
  (i) an offence under Part V, or
  (ii) an offence under section 13, 16, 51(2), 61(4), 67(9), 68(4), 96 or 117,
  and to an offence under section 178 of this Act,
  
• (b) to any offence under sections 25, 26, 27 and 45 of the [1988 c. 53.] Road Traffic Offenders Act 1988, and
  
• © to any offence against any other enactment relating to the use of vehicles on roads.

(2) Where the driver of a vehicle is alleged to be guilty of an offence to which this section applies—

• (a) the person keeping the vehicle shall give such information as to the identity of the driver as he may be required to give by or on behalf of a chief officer of police, and
  
• (b) any other person shall if required as stated above give any information which it is in his power to give and may lead to identification of the driver.
  In this subsection references to the driver of a vehicle include references to the person riding a cycle.

(3) A person who fails to comply with the requirement of subsection (2)(a) above is guilty of an offence unless he shows to the satisfaction of the court that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle or, as the case may be, the rider of the cycle was.

(4) A person who fails to comply with the requirement of subsection (2)(b) above is guilty of an offence.

 

 

 

 

 

However, section 172 only covers offences, not civil matters, and can only be requested by the chief of police or someone acting on his behalf.

[Timsta]

Also, Traffic Acts do not apply unless there is a Local Authority Off Street Parking Order in effect.

[patdavies]

 

The RTA does require the owner/keeper to know who has was driving their vehicle at any specific time.

 

 

No, it doesn't.

 

The part of the RTA to which you refer is S.172.

 

It does not mention owner anywhere and there is absolutely no legal duty whatsoever for a vehicle owner to know who was driving at any time.

 

There are differing levels of expectation in the Act for keeper and registered keeper. This has been enshrined in case law.

 

There is a statutory defence in S.172(4) of reasonable diligence.

 

All of which is moot as it is only exercisable on behalf of the Chief Officer of Police in cases of certain alleged criminal offences.

 

Any case you raise in civil court must be against the driver, if the defendant can show - on the balance of probabilities - that he/she was not the driver, then the case ends as even if they name the driver, your case has not named that person as a defendant.

 

 

And we haven't even started on Unfair Contract Terms...

[patdavies]

Also, Traffic Acts do not apply unless there is a Local Authority Off Street Parking Order in effect.

 

Not so, the RTA applies to any road where the public have access

[patdavies]

If I lose a case (and I am sure the time will come), then I will buy an old £50 car and park it on their driveway, the law is the same ... then they will know how we feel and maybe next time they park next to a sign stating private land/permit holders only they will think twice instead of doing the decent thing and going to the NCP carpark .. sorry off topic a little !!!

 

This is

 

A) extremely childish, and

B) not the same at all as their driveway is not a road to which the public have access.

 

 

Try that with me and you would find the Police knocking on your door asking why a vehicle registered to you is parked dangerously and obstructing the highway.

 

It will cost you a lot more than £50 also, as you will have to tax and insure it to get to my property.

[Guest perky88]

Pat,

 

You seem to miss the general principle of what I am saying - I was talking about any private parking area (this could be a road, driveway, carpark or individual space).

 

As a person paying for it, ie. the householder/landowner it is designated as Private Land and therefore the police would not get involved as no criminal act is taking place.

 

There is NO difference in law with a person parking on a private driveway to a house or a private carpark for a business - If a vehicle was dumped/parked them the police would have NO legal grounds for asking for its removal - it would be a civil matter etc...

 

The same rule would apply (as if I took your argument) - I would merely tell the owner of the house that although I was the registered keeper, I did not drive it and therefore have no responsibility (the registered keeper is not necessec the legal owner).

 

 

But your comment "Try that with me" is exactly the reaction that EVERY landowner who pays for a carpark space feels when some inconsiderate person parks when signs are clearly on view telling them its private ... it is VERY annoying and frustrating.

 

Then to find sites on here, when all they seem to discuss is ways of getting one over on the person who has done nothing wrong except try and keep the space/carpark/land he pays for so he can use !!!

 

 

As for unfair contract terms .. If signage is clear and gives the driver the opportunity to accept or decline the terms then this cannot be used as a defence - I have taken many cases to court and lost only 1 (technicality, currently going through appeal).

 

I cannot speak about other companies signs, and I must admit that if the examples certain people have given on here are corect then I agree they do not have the sufficient wording to consitute the terms of a contract.

 

The driver MUST be aware he is entering into a contract by parking, taking into account the drivers legal obligations to ensure he is legally entitled to park and the landowners responsibility as regards to signage.

 

I fail to see how any person who is parked next to a sign stating if they donot have a permit then they are agreeing to pay a set charge, payable within a set number of days and the charge if not paid - the sign clearly states donot park here unless you agree to the said conditions. - would have any legal argument for stating they did not agree to it.

 

All the cases I have taken to court (in excess of 50) - this argument has NEVER held ground. - But I can only comment on the ones I have done, using our signs and when all the photogrpahic evidence is available and shows the vehicle next/very near to a sign and the carpark area is clearly signed etc... I agree it could be different to the companies who put 1 sign, hidden behind a tree to catch people... and rightly so those charges should not be held.

 

I know of carparks in central london charging upto £25 per hour (short stay) ... If I park there and stay 1hr, I will expect to pay £25 as it states .. I cannot give them £15 and start quoting unfair charges etc...

 

As I have stated, parking charges are designed to be a deterrant .. the courts are realistic and accept this also ..

[patdavies]

You seem to miss the general principle of what I am saying - I was talking about any private parking area (this could be a road, driveway, carpark or individual space).

 

No, you are missing the point. The RTA does apply to what you are calling private car park areas because the public has access without let or hindrance.

 

The RTA does not apply to my driveway, because the public do not have unfettered access

 

 

As for unfair contract terms .. If signage is clear and gives the driver the opportunity to accept or decline the terms then this cannot be used as a defence - I have taken many cases to court and lost only 1 (technicality, currently going through appeal).

The driver, not the RK

 

The driver MUST be aware he is entering into a contract by parking,

Even you admit that it is the driver

 

All the cases I have taken to court (in excess of 50) - this argument has NEVER held ground. - But I can only comment on the ones I have done, using our signs and when all the photogrpahic evidence is available and shows the vehicle next/very near to a sign and the carpark area is clearly signed etc...

 

As I have stated, parking charges are designed to be a deterrant .. the courts are realistic and accept this also ..

Perhaps you could scan and post some of the paperwork here to provide some evidence of these cases that you have won.

[Zamzara]

The driver MUST be aware he is entering into a contract by parking, taking into account the drivers legal obligations to ensure he is legally entitled to park and the landowners responsibility as regards to signage.

 

Exactly: contract. Contracts are nothing whatsoever to do with the RTA. Some elements of roads law apply on private land where the public has access, but parking tickets is not one of them, and in any case private companies, acting on their own authority, can never issue statutory parking tickets on any kind of land.

 

It is doubtful whether a unilateral type of contract can be legally accepted merely by the act of parking, since the driver is not fulfilling their obligation at the time. See Carlil v Carbolic Smoke Co. In any case, penalties in contracts are unenforcable especially in consumer law.

 

If someone is tresspassing and causing a problem, the landowner can remove the vehicle using reasonable force and claim damages for actual loss suffered. This cannot be exploited as a profit making opportunity. Someone who builds a car park, paints spaces, and opens it to public access is hardly in the same position as someone who has his driveway invaded.

[Guest perky88]

Pat,

All I can say is one day I hope you own a business and pay a fortune for a carpark space, only to find some person abusing the space and not allowing you to use it - then, and only then will you be able to appreciate what people are trying to acheive.

 

I also fail to see how Carlil v Carbolic Smoke Co plays any part in a potential appeal against a parking charge to which signage is clearly visable/on display and ensures the driver can fulfil all elements of contract law (offer, consideration, acceptance) - there is no doubt a contract is being entered into and the terms & conditions clearly on display before the contract is created.

 

I agree this comes down to the wording of individual signs, and with equal importantance the evidence the parking company can provide to the court to demonstrate the contract existance.

 

I note another slight inaccuracy in below posts .. Most of our clients are small companies with a few spaces, the public does not have unrestricted access but in the same way there is no physical barrier to prcent the public from accessing the land.

 

This is very much the same as a private driveway at home (unless you have a locked gate) ..

 

A person could park a car on your open driveway at home, as the landowner you would have NO rights to remove the vehicle immediately, if you did remove a vehicle then the owner of the vehicle could potentially have a criminal case against you for theft/damage etc.. (Ok, the reality is it would never happen but from a legal viewpoint it could).

 

You would have no rights to immobilise the vehicle, unless you are SIA registered and signage was in place PRIOR to the vehicle being left there and in the event of signage not being on display stating vehicles could be towed away then removal is only possible once the RK has been contacted (or attempts made to give the RK the opportunity to move it).

 

 

Anyway .. this is off topic - lets stick to the initial point, Unfair/unlawful terms.

[Rob S]

"I also fail to see how Carlil v Carbolic Smoke Co plays any part in a potential appeal against a parking charge to which signage is clearly visable/on display and ensures the driver can fulfil all elements of contract law "

 

Perky, I am pleased to see you recognise that any contract is with the driver and not the registered keeper.

[Guest Gertie100]

Need to ask these questions:

 

Did you know who was driving?

Did you know you were parking on private land?

Did you have authority to park there?

Were there signs informing you what would happen if you parked there?

 

Sorry to say it, but I thought this website was about reclaiming the right, and helping people who have been ripped off, not about helping people who took a calculated risk, have been caught and are now trying to find a loophole so as to not pay.

 

Ultimately you accepted the terms when "you" parked there (in inverted commas cos we don't actually know if it was you!)

 

I find it hard to believe that if there is a bloody great big sign telling you what will happen if you park there and you do not have the necessary "authority" (once again in commas for obvious reasons) to park there what do you expect to happen?

 

Ignore all the above if it turns out there were no signs etc....:o

[Timsta]

Ultimately you accepted the terms when "you" parked there (in inverted commas cos we don't actually know if it was you!)

 

I find it hard to believe that if there is a bloody great big sign telling you what will happen if you park there and you do not have the necessary "authority" (once again in commas for obvious reasons) to park there what do you expect to happen?

 

Of course, we could say the same about the bank charges. You read the terms, you accept the charges.

[Guest Gertie100]

And up to a point I would agree with that.

However we are talking about you trying to get out of paying a parking fine for which you are liable.

You aren't disputing how much you should be paying are you?

You are delibrately trying to get out of paying a fine which you have incurred!

 

And I think you'll find that if someone posted something along the lines of:

 

I don't care if I default on my loan, don't pay my credit card etc because I know I can claim charges back I think the sympathy would be slightly thin on the ground.

Most people on this site don't have a issue with paying back the loan amount, its all the other charges which they incur.

 

Working on your logic, did you pay to park?