Parking Eye - Nasty tricks

Kite2010

Councils have powers to issue penalties, and have a proper appeals process in place.

And generally councils won't beat around the bush with unpaid penalty tickets

hendenne

OK, a Council is able to impose a Penalty of e.g. £40 for overstaying on a paid space by 15 minutes.

So, with the Bill now sponsored by BPA to give them the same name-the-driver powers as Councils and Police is it only a matter of time until ParkingEye and similar outfits will be able to enforce their exhorbitant charges?

Sirdan

hendenne wrote: »

OK, a Council is able to impose a Penalty of e.g. £40 for overstaying on a paid space by 15 minutes.

So, with the Bill now sponsored by BPA to give them the same name-the-driver powers as Councils and Police is it only a matter of time until ParkingEye and similar outfits will be able to enforce their exhorbitant charges?

No you have misunderstood the position.

BPA are not getting name-the-driver "powers" what they are getting is the right to pursue the keeper through the County Court system if the driver is unknown.

This would be a claim in the small claims court for a breach of contract or trespass.

It is unlikely that there will be many claims as the private parking companies much prefer the cheap option of threats of action which results in around 70%+ of persons giving in and paying.

This is because their claims are normally very weak and most often they lose.
the law has not changed private companies have no right in law to penalise you.(as driver or keeper).

Indeed it is likely that claims against keepers will be even weaker than those against drivers.

The right in the new schedule has been referred to as "keeper liability" , this implies the keeper becomes liable for the charge !

THAT IS THE BIG LIE.

What the new law actually says is that the keeper becomes liable to be persued in the County Court for the charge ...a subtle but important difference.

The decision on liability rests ultimately with the court.

For breach of contract it is hard to see how a court can rule that you the keeper are liable for a breach of contract that you were not aware of and certainly did not enter into if you were not the driver.

This is the contract law doctrine of privity which says :-

"a contract cannot confer rights or impose obligations arising under it on any person or agent except the parties to it."

As for trespass how can a court hold someone liable for a trespass if they were not even there ??
This is what's known as common sense !!!!

Hope that all makes sense .....

The reality is that when discussed in parliament this is what was said

"the Government state in the impact assessment that they expect 74% of penalty tickets to be paid up front at the time the ticket is issued, rising to 82% when keeper liability is added in."

So we can see that so called "keeper liability" is not about a strict liability ..it is all about allowing the BPA to lawfully extend it's threatening and intimidating business model to keepers as well as drivers !!

(Shame on you Parliament if you enact this )

PS The reason Councils can impose penalties under Statute law (as opposed to contract law) is that they are strictly regulated (unlike privateers)...this is also why 60% plus of appeals of Council issued tickets win !

hendenne

Thanks for that very clear information Sirdan. I now understand, and believe that you know this matter well.

Is it possible that outfits like ParkingEye might acquire Statute Law powers that would allow them to act as Councils now do?

Do you feel this ePetition is misguided or is there value in all on these forums 'signing' ? I am not allowed to post a link so ....... epetitions.direct.gov.uk/petitions/6342


Thanks again.

Sirdan

hendenne wrote: »

Thanks for that very clear information Sirdan. I now understand, and believe that you know this matter well.

Is it possible that outfits like ParkingEye might acquire Statute Law powers that would allow them to act as Councils now do?

Do you feel this ePetition is misguided or is there value in all on these forums 'signing' ? I am not allowed to post a link so ....... epetitions.direct.gov.uk/petitions/6342


Thanks again.

Not even this Parliament or any in the future I would venture would dare to overturn the fundamental principle of law that private individuals (and companies) can not punish other private individuals.
It is a cornerstone of our justice system that punishments are a matter for the state.
Otherwise I would be issuing fixed penalties of £10,000 pounds every time British Gas and their ilk dare to set foot on my property ..after all I don't invite them do I ???

As for the petition ..very poorly written ..there are no criminal provisons in the new statute..the keeper would not be guilty of anything.
For clarity offences regulated by statute allow for prosecution of keepers under S172 of The Road Traffic Act :

"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.

(3)Subject to the following provisions, a person who fails to comply with a requirement under subsection (2) above shall be guilty of an offence.

(4)A person shall not be guilty of an offence by virtue of paragraph (a) of subsection (2) above if he shows that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was."

This is usually used for speed camera offences where the keeper denies driving and will not name the driver ..if found guilty of a S172 the penalty is far higher than the original speeding offence.

HOWEVER :-

None of that applies to private parking tickets -even under the new law it will not be an offence to refuse to name the driver ..it just means that the company can issue a claim against the keeper which has just as much chance of failing in court as those issued now against drivers !! :-)

The writer of the petition has got hold of the wrong end of the stick entirely..it seems they believe if you refuse to name (or cannot remember) who was driving then you the keeper HAVE to pay the charge ..which is of course absolute nonsense.

hendenne

Very clear.. many thanks. I'll direct the writer of that petition to this thread.

Sirdan

hendenne wrote: »

Very clear.. many thanks. I'll direct the writer of that petition to this thread.

I think the problem lies with the legal criminal usage versus the common usage of "guilty"

In common usage if a person is found liable to pay a parking charge for "breach of contract" or "trespass" then they could be described as being "guilty" of either a breach of contract or trespass.

In legal usage though they certainly are not guilty as in guilty of an offence.

However as the new statute does not create a strict liability but only a liability to be claimed against it is not a "guilty till proven innocent".

It is difficult to see how a DJ could hold a keeper as "guilty" of a breach of contract for a contract that they did not enter into or indeed "guilty" of a trespass that they did not commit !!

Worth remembering that even under statute law if you don't name that speeding driver you can be convicted of a S172 offence "failing to provide the drivers details" but you certainly can not be found guilty of the actual speeding !! (Unless there is evidence you were the driver beyond all reasonable doubt of course).

Where the new statute is somewhat sinister is that it appears to be leading the courts to the position that unless you have some evidence you were not the driver then you the keeper will be treated as the driver ...now that is somewhat akin to guilty until proven innocent.

It remains to be seen whether or not our judiciary are prepared to be lead in this direction by Parliament ..seems unlikely as it undermines yet another fundamental principal of law.

That said it is also worth noting that if you refuse to name the driver and the DJ considers you are being unreasonable or disingenuous in doing so ,it is perfectly possible for them to draw the conclusion that your refusal is borne solely out of self -interest as you are in fact the driver...NB in a civil action such as this the threshold is "on balance of probability" not "beyond all reasonable doubt".
In plain language the court only has to find that you are more likely to be the driver than not for you to lose that point ..as it is on balance that could mean 51% / 49%.
That said once the driver is established the Private Parking Companies still have a spectacular fail rate at court as there are plenty of other defence points to help dismiss the claim.

See what a High Court judge made of a private parking charge here :-

http://www.violetmount.com/page3.jpg

I believe this Judge got it right and the legislation supporting him is this :-

"The Unfair Terms in Consumer Contracts regulations 1999"

and the enforcement body for that legislation is the Office of Fair Trading, and here is what they have to say about the sort of "contractual" charges private parking companies try to enforce :

"5.9 The Regulations are concerned with the intention and effects of terms, not just their mechanism.
If a term has the effect of an unfair penalty, it will be regarded as such, and not as a 'core term'.
Therefore a penalty cannot be made fair by transforming it into a provision requiring payment of a fee for exercising a contractual option."


I believe most private parking charges fall nicely into that definition ..as their intent is to prevent or punish actions that the landowner does not wish you to take ..like overstaying etc etc etc ...

robredz

""5.9 The Regulations are concerned with the intention and effects of terms, not just their mechanism.
If a term has the effect of an unfair penalty, it will be regarded as such, and not as a 'core term'.
Therefore a penalty cannot be made fair by transforming it into a provision requiring payment of a fee for exercising a contractual option."


I believe most private parking charges fall nicely into that definition ..as their intent is to prevent or punish actions that the landowner does not wish you to take ..like overstaying etc etc etc ..."

Thanks Sirdan, that is exactly as i understand it. BTW had a phone call from my MP, says letters forwarded with comments and will respond with the Ministers comments.

Sirdan

robredz wrote: »

""5.9 The Regulations are concerned with the intention and effects of terms, not just their mechanism.
If a term has the effect of an unfair penalty, it will be regarded as such, and not as a 'core term'.
Therefore a penalty cannot be made fair by transforming it into a provision requiring payment of a fee for exercising a contractual option."


I believe most private parking charges fall nicely into that definition ..as their intent is to prevent or punish actions that the landowner does not wish you to take ..like overstaying etc etc etc ..."

Thanks Sirdan, that is exactly as i understand it. BTW had a phone call from my MP, says letters forwarded with comments and will respond with the Ministers comments.

AND just in case the PPC/BPA try to wriggle by claiming their charges amount to fair penalties as opposed to unfair ones ....

here is one example of an unfair contractual penalty as defined in OfT guidance..

"5.1 It is unfair to impose disproportionate sanctions for breach of contract.
A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty.
Such a requirement will, in any case, normally be void to the
extent that it amounts to a penalty under English common law. "

Again that sounds to me like most private parking charges !

Sirdan

Parking charges penalties or contractual charges ?

A well known parking company notice at a well known retail store :

"Maximum stay 2 hours -if you exceed 2 hours a Civil[STRIKE] Penalty[/STRIKE] Parking Charge of £60 will be issued.

Me "So that's a penalty then for staying longer than permitted ?"

PPC " No of course not ,it's a contractual charge for parking over 2 hours"

Me " So I can stay over two hours "

PPC " Yes but you have pay £60"

Me " For how long ?"

PPC " what ??"

Me " For how long ..is this a genuine contractual offer to park over two hours for £60 ?"

PPC " Yes, er... yes it is"

Me " Not a penalty for exceeding 2 hours"

PPC " No of course not"

Me " Great I accept ..you're nice and close to the airport and £60 for two weeks in a patrolled busy well lit car park is a bargain"

PPC " You can't DO that !!!!"

Me " O so it wasn't a genuine contractual offer then just a penalty ?"

PPC " f**k ..er....well ...ummm................."

Me " I think the word you are looking for is YES, as in yes it is a penalty "