Car lease company paid private parking company's parking charge & sent me the invoice to pay them.

eskbanker

MobileSaver said:

Jenni_D said:

I've highlighted the critical term ... no offence has occurred; the OP has allegedly breached a contractual term with the parking operator - that is not an offence in any understanding of the word. The way terms are written are key, and the Man on the Clapham Omnibus would not adjudge offence to relate to a contractual matter.

Again, I completely disagree. Many companies have a contractual term for their employees that drinking on the job is a sackable offence... do you think the Man on the Clapham Omnibus would agree with your narrow interpretation of "offence" and let the drunk employee off? (We'll assume for impartiality that the drunk employee wasn't the driver of the aforementioned Omnibus. )

My expectation would be that formal employment contracts would refer to terms like 'gross misconduct' rather than a more vernacular expression such as 'sackable offence', but even if they did use such casual terminology, that still doesn't affect the definition of 'parking offence'....

Undervalued

MobileSaver said:

Jenni_D said:

I've highlighted the critical term ... no offence has occurred; the OP has allegedly breached a contractual term with the parking operator - that is not an offence in any understanding of the word. The way terms are written are key, and the Man on the Clapham Omnibus would not adjudge offence to relate to a contractual matter.

Again, I completely disagree. Many companies have a contractual term for their employees that drinking on the job is a sackable offence... do you think the Man on the Clapham Omnibus would agree with your narrow interpretation of "offence" and let the drunk employee off? (We'll assume for impartiality that the drunk employee wasn't the driver of the aforementioned Omnibus. )

I made a similar point much earlier in this thread. Some people are assuming "offence" always means a criminal offence and I am not sure that is so. We have both given the employment example and I think it can also mean a breach of rules or terms and conditions (in this context of parking). 

The OP says they didn't break the rules and that may very well be so but that is another matter.

MobileSaver

eskbanker said:

MobileSaver said:

Jenni_D said:

I've highlighted the critical term ... no offence has occurred; the OP has allegedly breached a contractual term with the parking operator - that is not an offence in any understanding of the word. The way terms are written are key, and the Man on the Clapham Omnibus would not adjudge offence to relate to a contractual matter.

Again, I completely disagree. Many companies have a contractual term for their employees that drinking on the job is a sackable offence... do you think the Man on the Clapham Omnibus would agree with your narrow interpretation of "offence" and let the drunk employee off? (We'll assume for impartiality that the drunk employee wasn't the driver of the aforementioned Omnibus. )

My expectation would be that formal employment contracts would refer to terms like 'gross misconduct' rather than a more vernacular expression such as 'sackable offence', but even if they did use such casual terminology, that still doesn't affect the definition of 'parking offence'....

The point is that any reasonable person clearly understands that a "sackable offence" is simply a breach of employment contract rules and so the assertion "that is not an offence in any understanding of the word" simply doesn't stand up to scrutiny.

I agree with @Undervalued that some people here seem fixated on a private parking invoice not being included in the definition of a 'parking offence' but for me that's plainly incorrect and is driven more by an understandable dislike of parking companies rather than applying logic or reason - it might make people feel better but won't do much good in a court of law...

As others have said, this still leaves the issue of whether the parking invoice was valid originally but for me that situation is not much different to the police towing a car in error and you then have to fight to get your payment refunded; I don't think it changes the fact that you still owe the lease company the original charge and their admin fee.

Fruitcake

Unregulated private parking companies are not permitted to use certain words such as penalty, fine, or offence, and are not permitted to imply they are some sort of authority. This is stated in the parking companies' trade associations codes of practice with which they are required to comply by the DVLA in order to obtain vehicle keeper details. In other words, a government agency has indirectly stated that certain words, including "offence" is not permitted. It is logical therefore that no offence can have been committed.

This prohibition of use of these words is also backed up by the Private Parking Bill 2019, and the current version of the mandatory government private parking code of conduct being written by the DLUHC, and expected to be introduced this year. 
Again, since the use of the word "offence" is not permitted, then no offence can have occurred.

In the OP's case, it matters not. The problem here is the action of the lease company. The government was conned by the unregulated private parking industry into introducing a law, (The Protection of Freedoms Act 2012, Schedule 4) that permits someone who was not in the vehicle at the time of the alleged event to be liable for a parking charge on private land.
They could be at home in bed, in hospital on a ventilator, on a gap-year in Australia, or being shot at whilst on active overseas duty with the armed forces, but the law says they can be held liable if the parking company doesn't know the name or address for service of the driver.

The lease company, being the registered keeper was, and still is liable for paying the charge, and nobody else, unless they passed the name and address for service of the hirer/lessee to the parking company. They failed to do this, despite the law allowing them to transfer liability having been around for twelve years. Having failed to transfer liability, they had/have no right to demand payment from the hirer/lessee.

Okell

I'm surprised so many people think that what the lease company is doing is OK.  I don't see how it can be.

The lease company receive an "invoice" from a private parking company and without referring it to the OP or indeed without conducting any investigation at all into the validity of the invoice, they pay it and recharge the OP without giving him an opportunity to challenge it.  And they charge him an admin fee for doing so.

I see at least three grounds on which the OP could challenge his lease company:

1.  As I posted pages ago it's surely an unfair contract term.  Not only is it generally unfair but I can't see why it doesn't match the specific example of an unfair term given in para 20 of Schedule 2 of the Consumer Rights Act 2015 (legislation.gov.uk):  "A term which has the object or effect of excluding or hindering the consumer’s right to take legal action or exercise any other legal remedy..."

The effect of the term in question here is to prevent the OP from challenging the "invoice" in court, which I understand the OP has a right to do here.  (Or rather he a has a right to defend himself in court when the private parking company sues him).  The hire company is substituting itself for judge and jury in this case.  I don't see how this particular term could be judged to be fair.

2.  Under s49(1) of the CRA the hire company is legally obliged to perform its service with reasonable care and skill.  I don't see how it could be said to be exercising reasonable care and skill on behalf of its client if it simply coughs up and pays any old parking charge that a private parking company sends it without any investigation and without referring it to the client.  As somebody previously pointed out, such a "practice" could easily be used as the basis of a massive fraud.

I'm no parking expert - so I could be totally wrong on this point - but my understanding was that POFA legislation provides a specific process for hire companies to transfer liability to their clients in this sort of situation.  If such is the case then I don't see how the hire company can be exercising reasonable care and skill if they don't follow the process laid down in the legislation when that process is avaialble to them and it is in their client's best interest for them to do so.

3.  I'm not so sure about the contra preferentum approach, but posters on here more knowledgeable than I am about private parking cases seem to think it has legs, so why not run with that too.

Having said all that, I'm not a lawyer so perhaps I'm completely wrong and all those who say the OP should just cough up are right.  But this term doesn't sound fair to me within the meaning of the legislation - whether the OP has agreed to it or not...

MobileSaver

Fruitcake said:

Unregulated private parking companies are not permitted to use certain words such as penalty, fine, or offence, and are not permitted to imply they are some sort of authority. This is stated in the parking companies' trade associations codes of practice with which they are required to comply by the DVLA in order to obtain vehicle keeper details. In other words, a government agency has indirectly stated that certain words, including "offence" is not permitted. It is logical therefore that no offence can have been committed.

This is simply not correct, I have just looked at the IPC's Code of Practice and while the words  "penalty" and "fine" are indeed not permitted, it does not state you cannot use the word "offence".

Regardless, this is flawed argument anyway - it is the lease company who use the words "parking offence", we have no idea what words the parking company may have used.

MobileSaver

Okell said:

I'm surprised so many people think that what the lease company is doing is OK.

On the contrary, I and I am sure others think the lease company's policy on this is madness and a recipe for disaster.

However if the OP is going to challenge anything they need to be using valid legal arguments (like the ones you have suggested) rather than wishy-washy accusations of "vagueness" and demonstrably untrue claims about using the word "offence".

sjs2013

Shall we take a look at relevant terms from another leaser?



This leaser uses a more generic terms like fees, fines & liabilities. They specify an amount as admin fee for providing drivers details. They also specify a higher amount as admin fee for paying the liability if driver doesn't pay it. 

Jumblebumble

sjs2013 said:

born_again said:

sjs2013 said:

Looks like the CRA Section 69 is definitely going to help in this case. 

RE: the scam: The lease company doesn't have any additional benefits if they DON'T pay the PP but only give them the drivers details. They can still recoup their 'admin' fee from the lessee. So why do some lease companies pay them the 'fine'? Do the leaser & PP have some kind of under the desk arrangement to pay themselves the lessee's money?

Is there any authority who can investigate this matter? I'm sure there're fair few  people who have fallen for this. 

All you can do is go through their complaints process & then escalate to FOS. 
But even then FOS could rule in their favour.

I've complained to BVRLA already. They'll take about 30 days to process it. If BVRLA rules in their favour, can I still take the leaser to small claims court?

I reckon this case is fairly strong in my favour & what the leaser did is a serious malpractice affecting many motorists. I'll be very happy to spend some of my time + small amount of money to put a full stop on it.   

If you want to see how the BVRLA view this take a look at 
https://www.bvrla.co.uk/static/uploaded/61b3298b-a918-499b-9ac8b8bea2b726a0.pdf
Note the they unlike some of posters here clearly differentiate between parking offence and parking notice
I would reasonably assume that they interpret a  parking offence to be a criminal offence and a parking notice  is decriminalised
Therefore my take on this is that  you have not committed any offence that justifies the lease co recharging you

Kim_13

sjs2013 said:

born_again said:

As the lease co actually own the car. Then they are free in many ways to do what they want when faced with these invoices. Looks like this is simply paying & bill the driver. 

In that case their contract should've said "We as the owner/RK will do whatever we wish to do & you as a driver pay us for that". 

Then I don't think many people will sign that & get their car.

If all lease companies did, they would. Just look at the number now signed up to inflation + almost 4% rises on their telecoms, and almost 4% even if inflation is negative (less that you can do about it as regards to broadband, compared to mobile where you can buy a phone outright, get a pay as you go bundle and not notice a difference in service.)

A proportion of the population would assume that they would never receive a ticket if they didn't do anything wrong, but clearly this does happen to some.