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Beating UKCPS court action
fuseman
Posts: 15 Forumite
I have had a year-long dispute with UKCPS Ltd in Leeds about a Charge Notice put on my car whilst it was outside a deserted office block in Leeds during the evening.
They paid their court charges etc and by the time the hearing was called they were after at least £200 from me (the original £100 penalty charge and £100 in various costs).
I sent a defence based partly on the fact that it was dark and I couldn't be expected to see the (unlit) notice but also based on legal argument which I am happy to share with others here.
They discontinued the claim 14 days pre-trial with no explanation so I don't know how exactly they came to this decision. However I believe there is a good argument that the recent Supreme Court decision on ParkingEye v Beavis can be interpreted as only supporting charges during a time when a landowner has a legitimate interest in controlling parking, i.e. not at night behind an office etc.
I have summarised my arguments below. I don't know how they would work in an actual court case but they would be worth a try. Please post any comments, esp if you use the arguments and they succeed. Let's hope we can discourage this modern version of highway robbery!
1 The Claimant states that there was a contract in place between myself as the driver of my vehicle and UKCPS Ltd. I do not accept this for the reasons stated at 1 and 2 above [my argument about the unlit sign] but in any event I submit that any such contract would have been unfair. The Unfair Terms in Consumer Contracts Regulations 1999 state amongst other things: -
Unfair Terms
5.—(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.
(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.
(3) Notwithstanding that a specific term or certain aspects of it in a contract has been individually negotiated, these Regulations shall apply to the rest of a contract if an overall assessment of it indicates that it is a pre-formulated standard contract.
(4) It shall be for any seller or supplier who claims that a term was individually negotiated to show that it was.
(5) Schedule 2 to these Regulations contains an indicative and non-exhaustive list of the terms which may be regarded as unfair.
Assessment of unfair terms
6.—(1) Without prejudice to regulation 12, the unfairness of a contractual term shall be assessed, taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract or of another contract on which it is dependent.
(2) In so far as it is in plain intelligible language, the assessment of fairness of a term shall not relate–
(a)to the definition of the main subject matter of the contract, or
(b)to the adequacy of the price or remuneration, as against the goods or services supplied in exchange.
2 I submit that if the Court were to find that there was a contract in place it was clearly not individually negotiated and it caused a significant imbalance in the parties’ rights and obligations arising under the contract to my detriment. Looking at the nature of any service which was allegedly provided to me, this amounted to parking for a couple of hours in a nearly deserted area at the rear of an office block outside normal office working hours. My car did not cause any loss to the owners or occupiers of the offices. I subsequently established that there was nearby parking available in manned, supervised parking areas for the whole evening at a cost of £3 (Trinity Centre Car Park) or £5 (Queens Hall Car Park) which indicates a fair value for parking at that time in that area of Leeds.
3 In view of the above I assert that the contract which UKCPS claims to have been in place would in any event have been an unfair contract under the terms of the above regulations.
4 The hearing in this case was delayed until judgment had been given in the case of ParkingEye Limited (Respondent) v Beavis (Appellant) in the Supreme Court. This case was in relation to a parking charge which Beavis argued was a penalty charge and was unfair under the Unfair Terms in Consumer Contracts Regulations 1999.
5 The Supreme Court rejected Beavis’s appeal by a majority decision.
6 However I believe there are important distinguishing factors in this case which the Court should consider. The ParkingEye v Beavis case involved a retail parking area in the middle of the day. The landowners in the case therefore had a legitimate interest in charging motorists who overstayed the allowed free time as this may have prevented other motorists from using the car park to purchase goods or services. I submit that in this case there was no such interest since it was a near-deserted area at a time when the landowners were not using it themselves, had no interest in visitors or customers using it and were not in any way disadvantaged by me parking there. This means that the £100 (or £60) charge was a penalty and should be considered unfair.
7 Whilst UKCPS might argue that they had an interest in enforcing a penalty charge in furtherance of their business, I submit that this interest should not be interpreted to mean that parking enforcement companies can, with the agreement of landowners, put up notices anywhere that is not public land in order to earn a profit. This would amount to a law to provide such companies with profit through unfair penalties even when there was no legitimate interest of the landowner to control parking.
8 I submit that under the 1999 regulations there was, in my case, an unfair term which arose contrary to the requirements of good faith. A summary of the judgment in ParkingEye v Beavis stated: -
“Any imbalance in the parties’ rights did not arise ‘contrary to the requirements of good faith’, because ParkingEye and the owners had a legitimate interest in inducing Mr Beavis not to overstay in order to efficiently manage the car park for the benefit of the generality of users of the retail outlets. The charge was no higher than was necessary to achieve that objective.”
9 Since there was no such legitimate interest in my case, I submit that the Court’s decision in ParkingEye v Beavis is not a precedent which applies here.
They paid their court charges etc and by the time the hearing was called they were after at least £200 from me (the original £100 penalty charge and £100 in various costs).
I sent a defence based partly on the fact that it was dark and I couldn't be expected to see the (unlit) notice but also based on legal argument which I am happy to share with others here.
They discontinued the claim 14 days pre-trial with no explanation so I don't know how exactly they came to this decision. However I believe there is a good argument that the recent Supreme Court decision on ParkingEye v Beavis can be interpreted as only supporting charges during a time when a landowner has a legitimate interest in controlling parking, i.e. not at night behind an office etc.
I have summarised my arguments below. I don't know how they would work in an actual court case but they would be worth a try. Please post any comments, esp if you use the arguments and they succeed. Let's hope we can discourage this modern version of highway robbery!
1 The Claimant states that there was a contract in place between myself as the driver of my vehicle and UKCPS Ltd. I do not accept this for the reasons stated at 1 and 2 above [my argument about the unlit sign] but in any event I submit that any such contract would have been unfair. The Unfair Terms in Consumer Contracts Regulations 1999 state amongst other things: -
Unfair Terms
5.—(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.
(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.
(3) Notwithstanding that a specific term or certain aspects of it in a contract has been individually negotiated, these Regulations shall apply to the rest of a contract if an overall assessment of it indicates that it is a pre-formulated standard contract.
(4) It shall be for any seller or supplier who claims that a term was individually negotiated to show that it was.
(5) Schedule 2 to these Regulations contains an indicative and non-exhaustive list of the terms which may be regarded as unfair.
Assessment of unfair terms
6.—(1) Without prejudice to regulation 12, the unfairness of a contractual term shall be assessed, taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract or of another contract on which it is dependent.
(2) In so far as it is in plain intelligible language, the assessment of fairness of a term shall not relate–
(a)to the definition of the main subject matter of the contract, or
(b)to the adequacy of the price or remuneration, as against the goods or services supplied in exchange.
2 I submit that if the Court were to find that there was a contract in place it was clearly not individually negotiated and it caused a significant imbalance in the parties’ rights and obligations arising under the contract to my detriment. Looking at the nature of any service which was allegedly provided to me, this amounted to parking for a couple of hours in a nearly deserted area at the rear of an office block outside normal office working hours. My car did not cause any loss to the owners or occupiers of the offices. I subsequently established that there was nearby parking available in manned, supervised parking areas for the whole evening at a cost of £3 (Trinity Centre Car Park) or £5 (Queens Hall Car Park) which indicates a fair value for parking at that time in that area of Leeds.
3 In view of the above I assert that the contract which UKCPS claims to have been in place would in any event have been an unfair contract under the terms of the above regulations.
4 The hearing in this case was delayed until judgment had been given in the case of ParkingEye Limited (Respondent) v Beavis (Appellant) in the Supreme Court. This case was in relation to a parking charge which Beavis argued was a penalty charge and was unfair under the Unfair Terms in Consumer Contracts Regulations 1999.
5 The Supreme Court rejected Beavis’s appeal by a majority decision.
6 However I believe there are important distinguishing factors in this case which the Court should consider. The ParkingEye v Beavis case involved a retail parking area in the middle of the day. The landowners in the case therefore had a legitimate interest in charging motorists who overstayed the allowed free time as this may have prevented other motorists from using the car park to purchase goods or services. I submit that in this case there was no such interest since it was a near-deserted area at a time when the landowners were not using it themselves, had no interest in visitors or customers using it and were not in any way disadvantaged by me parking there. This means that the £100 (or £60) charge was a penalty and should be considered unfair.
7 Whilst UKCPS might argue that they had an interest in enforcing a penalty charge in furtherance of their business, I submit that this interest should not be interpreted to mean that parking enforcement companies can, with the agreement of landowners, put up notices anywhere that is not public land in order to earn a profit. This would amount to a law to provide such companies with profit through unfair penalties even when there was no legitimate interest of the landowner to control parking.
8 I submit that under the 1999 regulations there was, in my case, an unfair term which arose contrary to the requirements of good faith. A summary of the judgment in ParkingEye v Beavis stated: -
“Any imbalance in the parties’ rights did not arise ‘contrary to the requirements of good faith’, because ParkingEye and the owners had a legitimate interest in inducing Mr Beavis not to overstay in order to efficiently manage the car park for the benefit of the generality of users of the retail outlets. The charge was no higher than was necessary to achieve that objective.”
9 Since there was no such legitimate interest in my case, I submit that the Court’s decision in ParkingEye v Beavis is not a precedent which applies here.
0
Comments
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I like that - thanks for posting - and well done! :TPRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Excellent newsHi, we’ve approved your signature. It's awesome. Please email the forum team if you want more praise - MSE ForumTeam0
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I've now revised this template to make it more generic so it could be used in other cases that are relevant - i.e. in non-retail areas at night etc.
I've posted it in another thread and will send the template as a Word document on request/
Please note it has not been tested in Court so far.0 -
Great post.
I've just received a Demand for Payment - the incident happened in 2013 and I had all but forgotten about it, The demand cites the ParkingEye vs Beavan case.
Like you I was parked in the evening in a virtually deserted car park.
I now have the ammunition to continue to refuse to pay!
Thanks.0 -
Another poster in response to my later more generic post said:
"UTCCR 1999 has been superseded by the Consumer RIghts ACt 2015 now so that needs amending"
I haven't read the new act so you might want to check if it does supercede the Unfair Terms 1999 act and, if so, alter the wording somewhat.
Good luck - I think my argument about deserted areas is a good one but as far as I know it remains to be tested - I was certainly prepared to test it before UKCPS discontinued. Whether they did so because they had lost a similar case or had been advised that they might lose is a question I can't answer.
Please post any updates - I'm sure a lot of folk would be interested in seeing how this plays out.0 -
In 2013 I received a ticket. Just got letter referring to this case as evidence. Asking me now to pay up.
The judgement is a good read if you want to get to sleep early. It does make some valid points. One of which is the charge. I will comment to the leeds one above.
Looks like all those non payers are now going to get a new letter!0 -
Point 6. Having read the appeal notes. The owner gets a wedge from them to operate their scheme. The charge is there to prevent for one thing abuse. If you were charged £1 all day for staying over, the car park would be full. The charge they say are to ensure turnover of cars to the shops, Intrestingly parking eye turnover in 2013 was 14m. They also say that 99.5 abide, so .5% are giving them 14m wow! When you overstay they cannot charge you as a trepasser, that would the owners job, they don't. The operator is charging. This ruling sucks hope it gets turned over Soon. But if you read the legal arguments based on years of evidence not looking so good.0
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I have just returned from the county court and have just won my case against them0
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Except yours was UKPC, not UKCPS, but well done! We look forward to your thread update!I have just returned from the county court and have just won my case against them
PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
hi
i would like help with fine i have received from UKCPS. on 06.01.2018 i parked my car in the car which i have been using for more than 2 year. it is pay and display car park, this car parks bay lines are not very clear,
i parked my car in a bay near the exit which is not marked very clearly and only has has half faded bay marking.There is not any sign saying this half marked bay can not be used.
after 2 weeks later i received letter from UKCPS say i have parked out of marked bay and blocked the exit, asking for £60.
i appealed against this to UKCPS but my appeal was rejected. my friends advised me to ignore this.
after 2 moths i have received letter from DRP Debt Recovery asking for payment of £120 or UKCPS will take me to the court.
i have took few picture of the bay as evidence of the bay not marked correctly.
please advice me on this as i do not wish to go court.0
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