Legal Issues

Below we will explain the legal issues and basis for tickets on private land, enforcement and the myths around private parking.

General Overview

Parking tickets and charges, especially those issued on private land are hot topics for debate often fuelled by armchair lawyers who use various media such as the internet as their soapbox – As with many aspects of the internet this advice is very often ill founded and the people giving it are not legally qualified in any way and very often hide behind aliases and appear on many forums under multiple identities.

Charges issued by CPS are based on agreement to pay a set parking charge, in the majority of cases this is £100 reduced to £60 if paid within 14-days – for parking charges not paid and referred for legal collection the charge increases to £150 to cover additional administrative expenses to enforce the debt plus legal costs (these are clearly defined at the time the contract is made).

When a ticket is issued on behalf of CPS we ensure that photographic/CCTV evidence is taken thereby showing the vehicle parked in clear view of a sign and therefore by the actions of parking you are deemed to have accepted all conditions on display.

CPS are one of the few companies that rigoursly pursue unpaid parking charges via the courts and all cases are dealt with by our team of in-house legal experts without using third parties – thereby ensuring a consistent enforcement policy.

The statement that parking companies never win cases is a total myth and we produce a small sample of cases taken to court by CPS with the company and defendant present, many different avoidance defences were used but the court was satisfied that the parking charges were issued correctly, the signage clear and of a type that is bound to have been seen by a reasonable person and more importantly that our parking charges were fair.

Unfortunately many of the cases taken to court have been led into the belief that parking charges were not enforceable and by defending a case it would either be not pursued or be thrown out – this advice has come from various internet/advice forums and has resulted in an original charge of £60 costing the defendant at least 3-times that amount, a County Court Judgement being issued (which could make getting credit very difficult for upto 6years) and time/money spent by a defendant preparing a defence and attending court.

The Protection of Freedoms Act 2012 (for tickets issued after 1st October 2012 in England & Wales) now results in the registered keeper being liable to pay the charge if they are unable or unwilling to provide the name and address of the driver – It is also a criminal offence under Section 2 of the Fraud Act 2006 to dishonestly make a false representation on the form nominating a false driver, which could lead to a term of imprisonment of up to 10years and a fine upon conviction on indictment.

POPLA (private parking appeals service update)

We can also confirm the POPLA (the independent Parking on Private Land Appeals Service) also confirms our charges are enforceable and not based on a breach of contract but a contractually agreed charge.

POPLA decision.
Another POPLA decision.

Media Reports Confirming Charges Are Legal

The courts have recognised parking charges to be fair and legal, and this was reported on recently in the media – Reported Case and Reported Case 2 shows that they are enforced by the court costing considerably more than the original £60 if paid promptly.

Case Law (England & Wales)

There are 2 main cases that are relevant for private parking, these of Arthur v. Anker [1996] 2 WLR 602 and Vine v. Waltham Forest London BC [2000] 1 WLR 2383, which are cases concerned with whether an offending driver parking on private land consented to their vehicles being wheel clamped or not. Such consent being a defence (within England and Wales: contrast the position in Scotland: Black v. Carmichael (1992) SCCR 709) to the tort of unlawful interference with goods. Strictly speaking those cases are not directly in point because they are concerned with whether the driver was able to recover the fees that they had paid over to release their cars as being the damage that they had suffered as a result of the alleged unlawful interference i.e the imposition of the wheel clamp. Those cases do not specifically address the question of whether parking charges could be recovered on a contractual basis or not. Nevertheless those cases do consider the question of “consent” based upon notices which is of course clearly relevant where the question of whether a contract will have been formed or not is an “objective” rather than a subjective test: See Chitty on Contract, General Principles (28th Edition), paragraphs 2-02 and 2-024 to 2-027 and the cases there cited.

If an acceptor has conducted himself in a way that a reasonable observer would consider that he intended to accept a contractual offer made to him, that acceptor will be treated as having accepted that offer even if in fact he had no such subjective intention. Those principles are of course fairly similar to the principles that the Courts were grappling with in the Arthur v. Anker and Vine cases. The Courts will apply similar reasoning to the contractual analysis that parking companies are in fact concerned with.

The Vine v. Waltham Forest London BC case stated “the question whether a person voluntarily assumes a risk or consents to trespass to his or her property is to be judged objectively and not subjectively; once it is established that sufficient and adequate warning notices were in place, a car driver cannot be heard to say that he or she did not see the notice. Were that to be the law, it would be too easy for car drivers who trespass with their cars to evade the only method land owners have of stopping the unauthorised parking of cars in parking spaces or parking areas on their property” – This simply means that if sufficient warning signs are in place then the contract has been made.

The court of appeal agreed and Lord Justice Roche stated “To show that the car owner consented or willingly assumed the risk of his car being clamped, it has to be established that the car owner was aware of the consequences of his parking his car so that it trespassed on the land of another. That will be done by establishing that the car owner saw and understood the significance of a warning notice or notices that cars in that place without permission were liable to be clamped. Normally the presence of notices which are posted where they are bound to be seen, for example at the entrance to a private car park, which are of a type which the car driver would be bound to have read, will lead to a finding that the car driver had knowledge of and appreciated the warning.”

Lord Justice Waller confirmed the above by stating “But I would suggest that absent unusual circumstances, if it is established that a car driver saw a notice and if it is established that he appreciated that it contained terms in relation to the basis on which he was to come onto another’s land, but did not read the notice, and thus fully understand the precise terms, he will not be able to say that he did not consent to, and willingly assume the risk of being clamped.

There is also the older case of Thornton v. Shoe Lane Parking Limited [1971] 2 WLR 585. That case concerned the issue of whether an injured plaintiff who had driven into a car park with an automated barrier was bound by the terms of an exclusion clause that was contained within a long set of terms and conditions that were not particularly well displayed. The Court of Appeal (and in particular Lord Denning MR) held that he was not. The contract was concluded only upon the terms of the notice that had been prominently displayed in the entrance way before he had taken his ticket at the barrier (which notice did not include the relevant exclusion clause). Lord Denning MR stating in particular at page 589 that a customer of a car park would only be bound by those terms that were displayed “reasonably sufficiently” so as to give him notice of it.

All 3 cases mentioned above are also relevant in Scotland for the issue of contractual acceptance.

Case Law (Scotland)

Cases heard by higher courts in England are persuasive in Scotland but not binding on a Sheriff Court, Cases heard by the House of Lords are only binding if the case involved a Scottish legal issue.

The legal reference for a Scottish case is University of Edinburgh -v- Daniel Onifade [2005 S.L.T (Sh Ct) 63], heard before Sheriff Principal Iain Macphail QC – and the full legal text can be found at http://www.scotcourts.gov.uk/opinions/sc514.html

This case found parking charges issued to be lawful and upheld the charges imposed.

Combined Parking often takes cases to court in scotland Click here for recent case detail.
and here is a copy of the decree.

For the avoidance of doubt and to negate question 2 as raised in the appeal, our signge only states “Parking Charge” and therefore the question of misrepresentation is not relevant.

The Charges

All claims made by CPS are for contractually agreed parking charges, clearly displayed on the signage.

Our signage clearly states that a person should NOT park their vehicle if they do not agree and understand the contractual charges as set out in the signs – A person cannot therefore claim the charge is unfair after they have agreed to pay the charge and by parking their vehicle they have accepted the charge. (as the Vine Case also stated, a person cannot state they did not know the charges because they did not see the signs if it is shown that there are signs available to be seen)

We will again look at case law, in The Vine v. Waltham Forest London BC case it was stated the charge levied of £105 was not unreasonable, the court did not disagree with this.

We will also look at the ‘real world’ – The following is taken from Birmingham Airports Website (www.bhx.com): A new ‘Rapid Drop-Off’ area is situated close to Terminals One and Two and will cost £1 for 20 minutes. The ‘Rapid Drop-Off’ area is suitable for those with time-pressures and is intended for drop-off only. For this reason, drivers should not need to use the facility for longer than 20 minutes; however, stays over 20 minutes will be charged £3 for every subsequent fifteen minutes. – On-site longer term and holiday parking can also be pre-booked via its website at very competitive rates – for as little at £2.99 a day.

If a driver elects to park outside the terminal, he will be charged a rate of £285 per day .. If a driver parks in the long term car-park which is a 10minute walk away he can park for £2.99 … The signs on display clearly state the charges and a driver has an option where to park his vehicle – Therefore he could not expect to argue the charges after being parked for 24hrs stating they are excessive – The same rules apply for parking charges issued by CPS.

Our charges are in line with those recommended by the IPC (Independent Parking Committee), whilst it is accepted that the IPC does not have any statutory powers in relation to parking charges, it has never been held by a court that our parking charges when issued in conjunction with our signage are unfair and has always upheld the charges.

Court Orders

We pursue all outstanding parking charges and regularly take people who refuse to pay to the County Court so their case can be heard before a district judge and ultimately a court order made forcing them to pay – It would be impossible to list every case on this website but below We list a few court orders, granted after a FULL case has been heard with CPS and the defendant being present in various county courts throughout the UK – This shows how the courts uphold parking charges if issued correctly. – These are NOT judgements by default..
Ultimate Rug Company – Wolverhampton County Court
Gill – Middlesbrough County Court
Savatovich – Stoke-On-Trent County Court
Arroyo – Cardiff County Court
Wilson – Worcester County Court
Gapara – Milton Keynes County Court
Steele – Stoke On Trent County Court
Purdy – Southampton County Court
Gladwell – Telford County Court
Thomas – Oldham County Court
Morris – Portsmouth County Court
Williams – Lincoln Court
Holland – Worcester County Court
Read – Swindon County Court
Gabriel – Wolverhampton County Court
Blackburn – Birmingham County Court
De-Brunner – Harrogate County Court
Schutte – Telford County Court
Rees – Coventry County Court
Pittson – Telford County Court

Court Order Transcripts

When a court makes an order, the judge will give a summary of his judgement, the factors considered and the reasons for arriving at the decision they come to – From time to time we request a transcript of the order if it is particularly useful from a legal viewpoint or to assist with other cases – Below are actual transcripts given by the court for cases awarded to CPS above.

The below shows the JUDGEMENT transcript only, they are NOT transcripts of the FULL hearing (the two are very different).
Transcript 1 – Dorrington – Portsmouth County Court
Transcript 2 – De-Brunner – Harrogate County Court
Transcript 3 – Blackburn – Birmingham County Court
Transcript 4 – Rees – Coventry County Court

Refusing To Pay/Assist

Many forums/sites advise people to ignore tickets, some advise them to send standard letters to deny liability for the ticket and other outrageous defences to avoid paying a charge

A £60 parking charge is a very minor issue and when cases are presented to a court the claimant has to prove the case on the balance of probabilities (ie 51%) – A court could see defendants being obstructive as having something to hide .. If a person receives a ticket and they believe it to be incorrect a reasonable person would state the reasons why at the first possible opportunity … If a case progresses to court after an appeal has been heard and rejected then the court will decide but the court will see all parties have attempted to resolve issues fairly and amicably and resorted to legal action as a last resort. (Under Civil Procedure Rules parties are specifically instructed to only use the court system as a last resort).

If a case goes to court and a defendant has not appealed, not responded to letters or sent obstructive defences the court could draw the conclusion that a person has something to hide for going to extraordinary lengths to avoid a minor parking charge.

It is for this reason we clearly state that if you feel the parking charge was issued incorrectly then you should write to us within 14-days of the ticket being issued and state your reasons so the matter can be looked into and dealt with accordingly

 

The Protection of Freedoms Act 2012 (for tickets issued after 1st October 2012 in England & Wales) now results in the registered keeper being liable to pay the charge if they are unable or unwilling to provide the name and address of the driver – It is also a criminal offence under Section 2 of the Fraud Act 2006 to dishonestly make a false representation on the form nominating a false driver, which could lead to a term of imprisonment of up to 10years and a fine upon conviction on indictment.

The Extent Of Bad Advice

We are constantly amazed at the lengths people will goto to avoid paying correctly issued parking charges. In many cases the amount of time and effort they put into trying to avoid payment far outweighs the original charge when time, effort, stress and the eventual court hearing is taken into account – We are not stating a parking charge should be paid if it has been wrongly issued but if a person genuinely feels the ticket is wrong they should appeal and state the reasons why without delay so it can be investigated and cancelled where appropriate.

We experienced an individual that operates on certain consumer groups under the alias of “Southpaw82″ from Telford, Shropshire who parked on private land belonging to a client – In order to try and avoid paying the charge he stated that he was a police officer on official business.

It actually transpired he was actually a civilian employee working for the police and definitely not on any type of police business at all, he then posted on various internet forums that are setup to assist people to avoid paying parking charges or other types or tickets/parking penalties using his computer within the police headquarters where he worked.

“Southpaw82″ was so vocal in one of these forums he called his colleagues employed as “PCSOs” sloppy and even advised one person to sue colleagues of a neighbouring police force.

A formal complaint was made to the professional standards of West Meria Police force who immediately suspended “Southpaw82″ and due to the seriousness of “Southpaw82″ actions they were considering disciplinary action that could have resulted in his dismissal from a well paid, professional job within the Police Service – “Southpaw82″ decided to resign…. All for a £60 parking charge correctly applied to his vehicle.

This person still gives advice on various internet forums, under the guise of leegomery16 and Southpaw82 – Recent reports indicate he has been promoted to a moderator of one of these sites (however like many of these armchair lawyers he may have many identities from which he gives bad advice).

UPDATE: “Southpaw82″ is such an amazing lawyer – he has contacted a solicitor to ask us to remove the story above (surely, if he was that knowledgeable of the law he would have taken legal action himself) … We have refused as everything in the above statement is CORRECT …