Sunday Times Ingear supplement article 17 November 2010

HO87

Here's a transcription of the above article:

LOOK OUT HERE COMES A PARKING TICKET BULLY
Private companies that demand payment, sometimes with a heavy hand, for alleged parking infringements are booming. But just how enforceable are their charges, asks Dominic Tobin.

[FONT=Arial, sans-serif]When is a parking ticket not a parking ticket? It's not a trick question, and it it has become vital to know the answer as more and more drivers find they are being ticketed by private companies.[/FONT]

[FONT=Arial, sans-serif]In recent months, there has been a surge in the number of private firms moving into the parking ticket business, issuing demands for everything from staying too long in a supermarket or restaurant car park – Tesco, Sainsbury's and McDonald's all use them – to parking in a private housing estate.[/FONT]

[FONT=Arial, sans-serif]The companies either use wardens to leave tickets on windscreens or a numberplate recognition camera takes a picture of the car, and the first a driver knows of their alleged transgression is when a letter demanding payment of a "fine" drops through the letter box.[/FONT]

[FONT=Arial, sans-serif]Worryingly, these tickets can look plausibly official – sometimes with a black-and-yellow checked border or stamped with the letters PCN commonly understood to mean penalty charge notice. Look carefully and you will see that they carry the name of a private firm and not a local authority. More concerning still is that many of the companies issuing these tickets will have had access to the Driver and Vehicle Licensing Authority records. They can pursue their demands with letters sent to drivers' homes threatening increasing bills for non-payment and possibly county court action. Some even phone motorists at home. Yet these companies are operating on uncertain legal ground and only in rare cases can they force drivers to pay.[/FONT]

[FONT=Arial, sans-serif]It is useful to understand why private ticketing is on the rise and why in the next few months it is set to become far more widespread. Private companies have been allowed access to DVLA records since 1998. Surprisingly as it may seem – many people believe that the data they provide about themselves to official bodies such as the DVLA should remain private – this information is available for sale. All a company has to do is become a member of the British Parking Association (BPA) giving examples of the signs and tickets it will use to enforce parking regulations and promising to abide by the code of conduct, and it can obtain details of car owners for only £2.50 a vehicle.[/FONT]

[FONT=Arial, sans-serif]Until recently, only a few firms were in on the act. In the past few months, the numbers have surged. With clamping on private land set to be banned as part of the government's Freedom Bill, due next year, clamping firms – including the cowboys – are looking at replacing their revenue (estimated at £1 billion a year) by issuing tickets.[/FONT]

[FONT=Arial, sans-serif]The BPA is the trade body for the parking industry and says that inquiries about joining its Approved Operator Scheme (AOS) quadrupled in the two months after the proposed ban[/FONT]
[FONT=Arial, sans-serif]was announced. The number of members in October was up 10% from July to 139 and about 850,000 private tickets are being issued.[/FONT]

[FONT=Arial, sans-serif]The business is lucrative enough for many private companies to offer their services to landowners free of charge, certain that they can make enough money from motorists to turn a profit.[/FONT]

[FONT=Arial, sans-serif]The BPA's scheme provides the easiest way for private companies to pursue drivers. Only AOS members are able to pass on car registration numbers – obtained by private wardens or from numberplate recognition cameras – to the DVLA and obtain the car owner's details.[/FONT]

[FONT=Arial, sans-serif]As far as the BPA is concerned, it is the acceptable side of a growing industry – providing regulation where none existed before and keeping rogue operators at bay. BPA members do have to follow a code of conduct. This says members should not give the impression to the public that they are acting with the powers of the police or some other public body. It bans the use of terms such as "fine", "penalty" or "penalty charge notice". The code also limits the maximum charge to £150 (for the first week, the charge is limited to £75 to encourage early payment).[/FONT]

[FONT=Arial, sans-serif]Unsurprisingly, this still does not go down well with customers of supermarkets and other premises. "Customers are shocked and horrified when firms like this employ private companies and they are sent an £80 fine," says Jo Abbott of the Rac Foundation. "It is not the way they are used to being treated as customers."[/FONT]

[FONT=Arial, sans-serif]The Sunday Times's own investigations have revealed that some parking companies are apparently obtaining motorists' addresses even though they are not on the BPA's scheme. Whites Car Park Solutions, which is based in Southampton and once lodged a court claim against a restaurant for loss of income when its staff warned customers not to park in an area where Whites was clamping, claims on its website that it uses DVLA data to track down motorists. If true, it is unclear how this is being done as the BPA says Whites is not a member. Whites said nobody was available for comment last week.[/FONT]

[FONT=Arial, sans-serif]So should you pay if you receive one of these tickets? There is an argument that if you use a supermarket or restaurant, you should not overstay because you are blocking a space that other customers need. That said, the rules must be made clear. There should be notices that state what the restrictions are and what happens if you break the terms of the agreement. If you contravene the rules what you are liable for is not a fine but a charge for compensation from the landowner. The compensation should be in line with a fair rate for parking – typically £2-£5 an hour. On top of this an administrative charge may be added.[/FONT]

[FONT=Arial, sans-serif]So a fair demand should be no more than, say, £50 – much less that the £200 some companies outside the AOS bill drivers for. The real area of contention, though, lies in the methods being used by some ticket companies to pursue drivers. Demands are sent to owners of cars, but, on private land, it is not the owner of the car who is responsible for alleged infractions – it is the driver, and there is no obligation for the car owner to say who was driving.[/FONT]

[FONT=Arial, sans-serif]Recently,the BPA admitted there was a loophole. In calling for the law to be changed to make owners liable (a move that would no doubt bring a handsome windfall to parking companies – and a move that the AA is opposing) the BPA, perhaps inadvertently, gave the game away.[/FONT]

[FONT=Arial, sans-serif]"Currently, in an unregulated environment, the person who committed the act – the driver – is liable and the operator does not know who the driver is," Patrick Troy, the BPA chief executive, told a parliamentary committee earlier this year. "So they will obtain keeper details from the DVLA and will write to the keeper saying, "he driver has committed a contravention here. Who is the driver, please?'[/FONT]

[FONT=Arial, sans-serif]"The keeper can say, 'I don't know who the driver was', and not admit that they were the driver or that they know who the driver was."[/FONT]

[FONT=Arial, sans-serif]It makes tickets difficult to enforce legally and the advice from online parking advice forums such as consumeradvocate.com and pepipoo.com is to ignore any letters completely.[/FONT]

[FONT=Arial, sans-serif]Some ticketing firms claim to have won cases in court, but Les Knight, new business director of Euro Car Parks, a private parking firm, admits it has not taken legal action against any non-paying drivers, and that any future action is likely to be difficult because of the legal uncertainty. "As more motorists become aware of the situation, it may reduce compliance with tickets," he says.[/FONT]

[FONT=Arial, sans-serif]One driver on a forum at moneysavingexpert.com, wrote last month; "I quite often park in supermarket car parks and spend more time than allowed as I'm a chauffeur and have to rest. I've never paid one of these parking enforcement tickets and I've had many. I even got two in motorway car parks and never answered them."[/FONT]

[FONT=Arial, sans-serif]Rod Anderson, 57, contacted the Sunday Times after being caught out when he took his 14-year-old daughter to a McDonald's restaurant while waiting for a flight at Stansted airport this year. "The plane was delayed, so I took my daughter for a meal," says Anderson, a retired financial sales manager from Essex. "No doubt there are notices on site, but they are the last thing I would have though to look for."[/FONT]

[FONT=Arial, sans-serif]Parking in the restaurant car park is enforced by numberplate recognition cameras from MET Parking Services, which issues tickets for cars that stay beyond the one hour limit.[/FONT]

[FONT=Arial, sans-serif]"I got back from holiday to find a parking charge notice for £50, which had already increased to £100 by a date passed while on holiday," says Anderson. "It panicked me that somebody was charging me, but then I asked myself, 'Why should I pay this?' I ate a meal and overstayed beyond a time limit I was not aware of. It is very different to clogging the car park up while I went to the airport.[/FONT]

[FONT=Arial, sans-serif]"I wrote to McDonald's, but they said they had a right to impose charges on customers. Since then, I have ignored the four letters the parking company have sent me. The cost has risen to £150 and the parking firm has used some colourful language, telling me I may have county court judgments against me and it might affect my ability to get credit, which might make some people nervous enough to cough up."[/FONT]

[FONT=Arial, sans-serif]the forceful language is the private firms' best weapon. Letters often warn of bailiff action, court hearings and a dire effect on credit status.[/FONT]

[FONT=Arial, sans-serif]"The draconian nature of the language encourages motorists to roll over too soon," says Barrie Segal, a chartered accountant who is an expert on Britain's parking regulations.[/FONT]

[FONT=Arial, sans-serif]Legal experts agree. "Many of these claims [that you could have bailiffs knocking on your door and court judgments against you] are simply not true," says Jeanette Miller, a solicitor who writes as a motoring expert for the Sunday Times. Her firm, Geoffrey Miller, specialises in defending drivers. "This would only happen following action in court and the issue for most private organisations is identity. The costs of investigating who the driver was and going to court are prohibitive, unless the driver has been caught on CCTV."[/FONT]

[FONT=Arial, sans-serif]Miller says that without any evidence of who was driving, a case against the car owner would probably collapse.[/FONT]

[FONT=Arial, sans-serif]"Ticketing firms are also uncertain of victory because of the vague nature of the contract the driver was agreed to when parking. Going to court is unlikely to be profitable; under civil law, the plaintiff can only claim damages. So, if a driver overstayed for an hour in a car park charging £2 an hour, the firm would be entitled to £2 and administrative costs.[/FONT]

[FONT=Arial, sans-serif]"Its not worth the costs involved in pursuing a prosecution," says Nick Freeman, the solicitor known as Mr Loophole for successfully defending celebrities such as David Beckham and Andrew Flintoff against motoring charges.[/FONT]

[FONT=Arial, sans-serif]"Most motorists will either pay up through fear and bully-boy tactics or not bother, and if they don't bother, the people might send letters threatening all sorts of horrible things and that will be it. The charges have to be fair and reasonable and you are not talking about a massive amount; I say £50 maximum."[/FONT]

[FONT=Arial, sans-serif]The safest way of dealing with tickets is to write back to the firm demanding that it prove the identity of the driver, and provide proof of the contractual terms, says Miller. "We usually highlight the Administration of Justice Act, which says you should not set out to deceive motorists to suggest that a ticket is an official document. We highlight things like companies using the initials PCN – not penalty charge notice – as they are not allowed to issue penalties. The companies say it stands for 'parking charge notice'. They also user yellow-and-black squares on the plastic envelope, like councils. We have dealt with around 60 cases and every one has been dropped after an initial letter from us."[/FONT]

[FONT=Arial, sans-serif]While many regard tickets as unenforceable, the DVLA continues to pass drivers data to these firms, charging £2.50 per record. The most recent data released show 724,021 records were handed to parking firms on its electronic system between April 2008 and March 2009. Add in an estimated 100,000 paper requests received by parking companies and £2.1m for the DVLA.[/FONT]

[FONT=Arial, sans-serif]"The information commissioner accepts that the Approved Operator Scheme is bona fide and can receive data from the DVLA," says Paul Watters, the head of roads and transport policy at the AA. "It kind of semi-legitimises it, and yet the whole practice is legally unregulated. All it does is regularise the supply of information but it doesn't introduce any regulations."[/FONT]

[FONT=Arial, sans-serif]And who decides which companies have access to your details? A BPA board that includes five parking companies.[/FONT]

[FONT=Arial, sans-serif]"Its industry watching industry, and that's our problem with it," says Watters.[/FONT]

[FONT=Arial, sans-serif]Please Note: This article originally appeared in the Sunday Times, Ingear supplement on 17 November 2010. The copyright remains that of Sunday Times and this article is reproduced in this format for educational purposes only.[/FONT]

torontoboy45

useful; deserves to be a stickie.