CONSUMER CHAMPION Private parking ‘cowboys’

Court of Appeal overrules challenge to £85 fine
The private parking enforcement industry scored a major victory over the rights of the motorist this week after a 48-year-old chip shop owner had his challenge to an £85 fine overruled.

Barry Beavis, from Billericay in Essex, took private parking enforcement operator ParkingEye to court over an £85 for overstaying a two-hour free stay by 56 minutes.

He asked Court Of Appeal judges to declare the fine ‘unenforceable’. He maintained that the charge was disproportionate and that the ‘bullying’ tactics of private car park companies should be prevented in law.

But after more than two years of fighting the ticket, Mr Beavis heard the judges rule that the charge was ‘not extravagant or unconscionable’.

For their part, Parking Eye argued that the level set for the charges for Riverside Retail Park in Chelmsford was reasonable, given the city centre position close to a rail station, in order to deter abuse or mis-use of the car park.

What this means for you – how can you avoid a parking fine?
Mr Beavis is not going to give up on his case – his next move is to take the issue to the Supreme Court – but the important question is how this affects the everyday motorist.

A key part of Mr Beavis’s defence of the ticket is that the charge set under the law should merely compensate the parking contractors for costs incurred in deterring parkers from overstaying.

Mr Beavis and his Lawyer argue that the fine itself amounted to a ‘penalty’ for parking and that this is not how the law ought to work.

‘General pre-estimate of loss’
So how do you fight a fine like this? Well, the latest ruling does make it harder, but it’s important to remember that any private parking contractor should have a clause in its contract with the landowner that specifies how much an overstayer costs the business.

This is known as a pre-estimate of loss, and should inform how much any parking contractor charges for its ‘fines’.

Fine? No – an invoice
Another important point to remember with private parking contractors is that, by parking on their land, you have entered into an unwritten civil contract with the parking contractor. By overstaying, you breach that contract.

This means that any penalty invoked by the company is technically an invoice for breach of contract rather than an invoice. Therefore, if you do not pay the ticket, it cannot affect your credit record and the issuers cannot send bailiffs to recover the money. If they want to force you to pay, they will need to take you to court, which is costly and time-consuming.

Be persistent
As this week’s Chelmsford case proves, sometimes fighting a ticket won’t be easy. Raise your issue direct with the company first – you can do this via, where you can keep all your correspondence in one focused place. If the company rejects your dispute, then you can escalate to the firm’s trade member association. You must have an official reference number from the company and their reasons for rejecting your dispute. They will refer you to POPLA, the Independent Tribunal for Parking Fines.

Be fair – the friends and family test
If you want to work out whether or not you are likely to be successful in your appeal, talk to family members or friends. Explain the situation to them, and ask them if they think the charge levied against you is unfair. If they don’t think so, it’s unlikely you’ll have a case…

Where could you receive a Parking Fine Notice?
If you have parked on private land, for example a road, car park, shopping centre, retail park or supermarket car park, then you could receive a Parking Fine Notice.

If you have paid
If you want to appeal your ticket but have already paid, then unfortunately it is too late. If you want to dispute the ticket, never use terms such as appeal, as you are creating legitimacy for the ticket. Instead, state that you would like to “dispute the ticket”.

Can you be clamped?
In 2012, clamping on private land in England and Wales was banned under the Protection of Freedom Act . In Scotland, the practice was banned in 1992. However, in Northern Ireland the right to clamp still exists.

Who is liable for the ticket?
In England and Wales, the owner is liable for the costs rather than driver of the car. Hired cars are the exception, as in the hire agreement you agree to be liable for ticket costs. In Scotland and Northern Ireland the driver is liable for the cost of the ticket.

Asked to pay at the time?
Do not pay if you are asked to pay at the time of the event. All legitimate firms will accept communications by post or email and will not expect you to pay on the spot.

What can you be charged?
The BPA recommends that any ticket should be less than £100. If you were taken to court, the firm will need to prove the costs are fair and reasonable under the Unfair Terms in Consumer Contracts Regulations 1999. It is reasonable to ask about street parking ticket charges.

Want to contest the Parking Fine Notice?
If you are going to dispute, then you should collate as much evidence as possible to support your case. Take photos of where you received the ticket.

Look out for:
• Signs: are the signs unclear or not visible where you parked? See if you can demonstrate the signs were not reasonably visible and therefore you were unaware of the terms.
• Ground markings: are any parking bays unclear, confusing or is there no ground marking at all so that you could not determine where to park?
• Meter: take a picture of the ticket and the meter, along with all writing on the meter. Were the parking times or the amount you had to pay unclear?
• Witnesses: if possible, get witness statements to support your case