Advice needed on Private Car Park fine

ManxRed

PPCs do operate on a trespass basis, quite often.

However they seldom fail to grasp the difference between the two scenarios.

Coupon-mad

ManxRed wrote: »

PPCs do operate on a trespass basis, quite often.

However they seldom fail to grasp the difference between the two scenarios.

The really funny thing is that, AIUI, the PPCs now HAVE to operate on a trespass basis if they are an AOS member because that's the only reason for giving a ticket that's written into the POFA and the BPA COP as well. Has to be a 'genuine pre-estimate of loss'.

But most PPCs haven't sussed that difference yet and have contract based signs up...no way of making that stick against a registered keeper!

To Avs - you should just be playing snap with these letters by now, did you miss the sticky thread at the top of the forum when you were last here? It shows preview pics of all the threatogram letters to expect, in order. Look for 'PPC letter chains' (5th from the top of the parking forum at the time of posting this reply) and click on the pre-October link to letter previews.

TrickyWicky

Well if you think PPCs are operating on trespass, why do you continue saying their PCNs are not legal and then say that their contractual agreements are worthless?

Remember before you answer that, I've worked for two PPCs and neither of them worked on this basis.

PPCs can not operate on a trespass basis. They have no state powers to enforce a trespass offence. I have never seen any PPC state anything about trespass on their signs yet I frequently see them state 'contractual agreement'.

ManxRed

Trespass = some or all of the public cannot park here, full stop. This includes examples such as 'permit holder only', 'no parking', or even 'no return within X hours'. This does happen on private land, such as business parks where companies may have exclusive rights to certain spaces and only their own vehicles may park there. The 'no return within X hours' also happens on retail parks.

Contract = Anyone may park here, so long as you comply with these terms and conditions.

As I say, many PPCs don't understand the difference.

You do not need state powers to 'enforce' a trespass 'offence'. It too is a civil matter, albeit only the landowner can bring a claim - a third party agent may not (unless they are a lawyer acting on behalf of the landonwer). We do often advise on this basis.

We don't ALWAYS claim that the PPC issue is a contractual one, its just that in many cases it is. That's not ALWAYS the case though.

Coupon-mad

TrickyWicky wrote: »

Well if you think PPCs are operating on trespass, why do you continue saying their PCNs are not legal and then say that their contractual agreements are worthless?

Remember before you answer that, I've worked for two PPCs and neither of them worked on this basis.

PPCs can not operate on a trespass basis. They have no state powers to enforce a trespass offence. I have never seen any PPC state anything about trespass on their signs yet I frequently see them state 'contractual agreement'.

My point exactly.

But remember before you answer that yor experience was pre POFA.

And yet the new BPA Code of Practice allows charges ONLY where there is a genuine pre-estimate of loss. That's trespass only, not contract! :rotfl:

ManxRed

OK, maybe we're all getting confused here, let's see if I can summarise it.

Trespass = You can't park here (could be aimed at everyone or just certain members of the public, i.e. non permit holders).

Its a civil offence and you can seek damages in relation to Trespass, for example if I park a 4 x 4 on someone's lawn and the lawn gets churned up and needs relaying. The landowner can bring a claim against me for the cost of relaying the lawn. Or someone parks in my space in my block of flats and I then need to use a pay and display across the road. Again I could bring a claim for the cost of the P&D against the trespasser. However in most private parking trespass claims there are no damages caused, so the court might award nominal damages (usually a £1). Not really worth it. Also, ONLY the landowner can bring this claim. That's always been the case, pre POFA, and pre VCS v HMRC even.

Contract = Anyone can park here but you must abide by these terms.

Again, its a civil matter, and the aggrieved party can bring a claim equivalent to liquidated damages (or a pre-estimate) to any party breaching the contract. In real life this happens all the time. I put contracts in place for telecoms services, and if the supplier sub-leases infrastructure from a third party and is tied in for a year, and I then cancel after one month, then the supplier has demonstrable losses of 11 months worth of costs. They CAN claim for this as a legitimate termination fee (or if I simply breach and the contract is terminated as a result).

The problem parking companies have is that their losses as a result of parking infringements are inevitably next to zero - OK, the cost of the DVLA £2.50, or the cost of a P&D ticket if someone overstays or doesn't buy a ticket, but that's it. Anything on top of that ought to be impossible to justify and would be deemed an unenforceable penalty unrelated to their actual liquidated damages. This again applies pre and post POFA, although the guidelines on the POFA reinforce this concept and actually make reference to it (as CM has pointed out).

PPCs are employed to manage both Trespass scenarios and Contract scenarios, (although they do fail to grasp the difference themselves) and for the reasons outlined above they would always struggle to make a claim for either. For Trespass, they can only advise the landowner to do it and even then its likely to be for a couple of pounds at best, and for Contract they have to be able to demonstrate that they had the necessary authority to form such a contract in the first place, which again they struggle with.

I hope that clarifies a bit.

Coupon-mad

That's a good summary! :T

The_Slithy_Tove

ManxRed wrote: »

PPCs are employed to manage both Trespass scenarios and Contract scenarios, (although they do fail to grasp the difference themselves) and for the reasons outlined above they would always struggle to make a claim for either.

This is surely not helped by the way their signage attempts to dress up a trespass as a standard charge as part of a contract. Take motorway service stations, for example, where they say parking charges are 0 for up to 2 hours and £60/day for over 2 hours (you can pay inside at WHSmith). I assume that this is falling foul of unfair contract/unreasonable charges, making it effectively a "penalty" for trespass (exceeding the time for which you are welcome on the premises).

Or have I got it wrong?

ManxRed

That's definitely a bit 'grey area' and one Perky often argues. Argument (a) states 'you're welcome to park here longer than 2 hours but you'll owe us £100 = contract (b) states 'you've had your two hours and you are no longer welcome = trespass.

Its a minefield.

That particular example I'd leave up to a qualified lawyer or judge to be honest!

Coupon-mad

But as I enderstand it, Argument (a) is outside of the BPA Code of Practice and possibly outside of POFA as well if that also uses the 'genuine pre-estimate of loss' phrase?