Parking Eye - Unfair Charges?

Footymanu

When Somerfield fell out with Parking Eye in 2006 the subsequent court cases disclosed documents that laid bare the nature of the contract between PE and Somerfield. These were released through the courts following a hearing on July 25 2012.

Ticket process
The charging process was a series of four letters. The Judge found "letter three contained serious falsehoods that were deliberately made by the relevant ParkingEye executive". The fourth and last letter was even more aggressive. These letters were "unlawful".

What is odd is the contract between PE and Somerfield sent out progressively more intimidating letters, but If the driver had not paid by the time of the fourth letter was sent no further action would be taken as stated in the contract with PE and Somerfield.
extract from appeal
"iv) In any event neither ParkingEye nor Somerfield actually had any settled intention of issuing legal proceedings if the money was not paid. The contract provided by Schedule 2 that if the registered keeper did not pay after a fourth letter, no further action would be taken but detailed records of non-payers and persistent offenders would be stored. If Somerfield decided to sue ParkingEye was to assist."

Conversion rate
PE says during the period it issued 5998 charges, 2994 were paid.
IF PE knew they would not pursue the driver after the fourth letter, was this Fraudulent misrepresentation under 1967 Misrepresentation act or does it breach unfair contract law?

A fraudulent misrepresentation occurs when someone makes a statement that -

[*]they know is untrue, or,
[*]they make without believing it is true, or,
[*]they make recklessly

If you enter into a contract as a result of a fraudulent misrepresentation, then you can cancel the contract, claim damages, or both.
The Misrepresentation Act 1967 allows you to base your claim on negligence or on the fraud.

Charges
The Somerfield parking charges started at £37.50 then £75 after 14 days of non payment. The third and fourth letter put charges at £135 or more. The judge accepted that charges of £135 were punitive but £75 probably was not. (At that time no challenge had been made to assess the £75 charges against a pre-estimate of loss and so £75 charge was seen as a legal revenue stream for PE). The current POPLA cases show this may no longer be true.

PE current charges
£70 may not be a lawful charge as current appeals are that it is not an accurate pre-estimate of loss. (Information from Martins Money Tips - POPLA Decisions thread Aaron Aadvark shows drivers who have won appeals based on this very point). POPLA cases "#18 (allowed), #34 (allowed), #48 (allowed), #68 (allowed), #77 (allowed), #81 (allowed), #90 (allowed), #93 (allowed), #94 (refused) [note, report disputed], #118 (allowed), #121 allowed), #138 (allowed), #144 (allowed), #166 (allowed), #181 (allowed), #182 (allowed), #187 (allowed), #193 (allowed), #194 (allowed), #198 (allowed), #199 allowed), #206 (allowed), #207 (allowed), #208 (allowed), #209 (allowed), #210 (allowed), #187 (allowed), #193 (allowed), #194 (allowed), #229 (allowed), #235 (allowed), #236 (allowed), #237 (allowed), #240 (allowed), #243 (allowed), #255 (allowed), #262 (allowed), #263 (allowed), #272 (allowed), #275 (allowed), #285 (allowed), #288 (allowed), #291 (allowed), #296 (allowed), #298 (allowed), #299 (allowed), #309 (allowed), #317 (allowed), #321 (allowed), #326 (allowed), #332 (allowed), #336 (allowed), #341 (allowed), #347 (allowed), #348 (allowed)" o It may follow the "initial contract" and all subsequent letters may be unlawful from PE as they are requesting money without entitlement..

Public Order Act 1994
17.—(1) It shall be an offence for any person who, with a view to gain for himself or another or with intent to cause loss to another, makes any unwarranted demand with menaces.

(2) For the purposes of this section—

(a) a demand with menaces shall be unwarranted unless the person making it does so in the belief—

(i) that he has reasonable grounds for making the demand, and

(ii) that the use of the menaces is a proper means of reinforcing the demand;

(b) the nature of the act or omission demanded shall be immaterial and it shall also be immaterial whether or not the menaces relate to action to be taken by the person making the demand.

(3) A person guilty of an offence under this section shall be liable—

(a) on summary conviction to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 12 months or to both,

(b) on conviction on indictment to a fine or to imprisonment for a term not exceeding 14 years or to both.


Current Position
According to the courts PE have previously made unlawful demands. The current business model suggests PE drive their entire revenue stream, including the costs of running their business and profits from fines. These costs are not being accepted as a true pre-estimate of loss by POPLA.

Whilst PE may have made a genuine mistake in understanding what they can charge for, this has come to a climax given their inability to satisfy POPLA on many occasions. The recent claims by PE about a "vendetta" appears misguided if they are in breach of the law. Given the current position and potential penalties to PE and its staff, perhaps PE should stop issuing tickets, stop complaining about a vendetta and resolve the real legal challenges it currently faces.


F