I was disappointed to see a case in the news today of a young mother forced by the courts to pay a £185 ‘fine’ for ‘overstaying’ her allotted time in a town centre car park. Cases of this sort arise quite regularly and the people involved invariably end up paying hefty charges levied under the misnamed ‘Protection of Freedoms Act’ quite unnecessarily.
Prior to the Protection of Freedoms Act, most of the car parks involved were free for the public to park in, many of them having been municipal property and therefore theoretically owned by the public. However, now in a move reminiscent of the Enclosures Acts that denied common people access to what was previously common land, the Protection of Freedoms Act, is being used to deny the public access to parking facilities that were once part of the common wealth of our nation, and this is iniquitous.
The ‘freedoms’ referred to under the Act are: the freedom for carpark management companies to apply to the DVLA for the name and address of the owners of cars recorded parking in their car parks; and the freedom for those companies to send the individuals concerned a ‘Parking Charge Notice’ for breach of contract.
A ‘Penalty Charge Notice’ offers parking offenders the option to pay a ‘Fixed Penalty Charge’ rather than be prosecuted in court and face a potentially higher penalty. Penalty Charge Notices (PCN) can by law only be issued by the Police, a local authority or a traffic warden as they are the only authorities possessing the power to impose such a penalty and enforce payment under PACE (the Police and Criminal Evidence ACT 1984). Private companies cannot issue a Penalty Charge Notice they can only issue a Parking Charge Notice, that is, notice of a parking ‘charge’ rather than a parking ‘penalty’.
In this latest case, the lady concerned, Liz Taylor, responded to the Parking Charge Notice in the way that any polite and responsible person might; she wrote to the parking management company concerned and attended court when they refused to offer leniency, and she was ordered by the courts to pay £185 presumably consisting of the original charge of £85, plus court costs.
The Parking Charge notice reproduced here shows the parking management company appearing to quote paragraph 9(2)(b) of Schedule 4 of the Protection of Freedom Act 2012, stating that under this section of the Act the individual is “required to pay the parking charge in full”. This is in fact not true. That part of the Act merely gives the parking management company the right to request payment in full. In fact the onus on the part of the individual issued with a Parking Charge Notice to pay the charge is based upon the premise that they have willingly and knowingly entered into a contract with the parking management company.
What should happen is that the parking management company should make car owners aware of the parking conditions and parking charges applicable before they park their car. If this is done properly, the law accepts that a contract for parking exists thereafter and the parking management company can use the Protection of Freedoms Act to enforce payment. However if they don’t, then no contract for parking exists and all the parking management company can do is to take action through the civil courts to recover damages that may have resulted from your trespass on their property.
Parking management companies usually position a number of relatively small signs around their car parks of the kind shown below, and they assume that these are sufficient to bring the terms of their implied parking contract to the attention of people parking, however these signs are usually deliberately constructed at an inadequate size, in order that motorists will not always see them and will thereby incur parking charges that they otherwise would not.
It is worth noting that when a company wants you to see a commercial for their products or services, they use massive colourful billboards with lettering that is two or three feet high, whereas these parking management companies ‘expect’ us to see small signs with black and white lettering that is a few inches high at best, and often illegible from any distance.
The way to extricate yourself from this entrapment if you find yourself in receipt of a Parking Charge Notice, is to deny having seen the parking management company’s signs, and to state that no contract therefore existed between you and that company. Tell them that you have now noted their wish to effect an implied contract with car owners and that you will of course in future abide by the terms of that contract should you ever park on their land again.
Under Common Law, for a contract to exist, there must be the intention on the part of both parties to enter into a contract, and if you were not aware of the parking signs, you could not have intended to enter into a contract. Obviously this is a defence that you can only use once in any given car park, as you cannot plead ignorance twice. Once you admit having seen the signs, or being aware of them before you parked, then like the lady in today’s story, you will be forced by the courts to pay.
Remain steadfast in your denial that you ever saw the signs and state firmly that at no time did you ever have any intention of entering into a contract for parking facilities, and the parking management company will not be able to invoke the Protection of Freedoms Act and will only be able to sue you for any damage or financial loss they may have suffered as a result of you overstaying the specified parking period.
The amount of damages they will be able to claim will of course be zero, because all you will have done is park on a piece of tarmac and then drive away. If they sue you therefore they will lose in court and will simply incur both their own court costs and yours as well. Therefore they will not sue. In order to succeed in court they would have to prove that you saw the signs and were therefore aware that you were entering into a contractual relationship.
The parking management company will write to you several times, each time making their demand for payment and threatening court action, but if each time you reply in the way I have explained, they will eventually leave you alone and pick on someone else who is more likely to roll over and pay up without protest.
While I cannot guarantee that the approach I advocate here will always work, I have successfully used this defence on two different occasions involving two separate car parks. Each time, after sending me seven or eight demands the parking management companies have given up and no further action has followed.
By Max Musson © 2016
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John
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Interesting article, Max.
Last year I got caught out in a motorway service area. I pulled in around 2 am, really tired and intend to book into the Travel Lodge there. I switch the engine off and closed my eyes – just for a minute. Big mistake! The next thing I knew it was 6.30. So I went and go breakfast before plodding on. Thought no more about it.
About a month later I got a letter stating I had exceeded the 2 hour limit and fining me £60. It was all on camera, so denying it was not an option. I tried to fight it, but in the end I decided that if it really did go to court I simply would not be able to carry the costs involved.
These companies apparently act on behalf of the owners of the motorway services.
Puerile as it may sound, I vowed that I would never spend another penny in any motorway services again. Both my wife and I now ensure that we refuel at the local supermarket before setting out. We take either a flask of coffee – or one of the delicious iced coffees sold in Aldi for 50p, and at least a ‘breakfast bar’ snack, if not a pack of sandwiches – £1.50 max in a supermarket. However, I make sure I stop every so often to stretch my legs and use their facilities, and also empty any rubbish in my car into their bins. Not much, but I bet I would have spent £60 or more over the past year, but doing it my way I have save considerably on fuel and not eating any of their substandard over priced products.
Max Musson
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Hello John, the first occasion when I received one of these notices was also at a motorway service station and like you, my entry to the car park and exit from it was all recorded on camera, however it is still possible to successfully contest these charges as I did.
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Their entire case depends upon the assumption that you will have seen the parking signs, will have stopped to read them and will therefore have voluntarily entered into a contract by parking for longer than 2 hours. In my case however, I arrived at a time when it was pouring with rain. I didn’t see the signs and sprinted from my car to the service area shopping centre where I spent about two and a half hours before leaving, again while it was still raining. Clearly, it was unreasonable to assume that I would stop to read their paltry signs in the pouring rain and I successfully argued that no contract existed because there was no intention on my part to enter into a contract.
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The second time was when a friend gave me a lift to an airport which tried to make money by forcing visitors to use their formal pay-upon-exit car parks. My friend was just dropping me off near the terminal and he stopped for less than a minute to do this, but was later sent a Parking Charge Notice for unauthorised parking, and I took the case up on his behalf.
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In this second case we had passed small signs again with equally small lettering, and this time in the dark. I again argued that it was unreasonable to expect someone to be able to read a small sign while driving past in the dark and that neither my friend or I had seen the signs and cannot therefore have intended to enter into a contract. Again we were successful and the airport authorities dropped the case.
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My belief is that we don’t have to show extenuating circumstances in order to successfully argue our case. There are so many roadside signs nowadays, traffic signs, tourist signs, and advertising hoardings, and it is simply unreasonable, even in sunny weather to expect people to take the time to read every sign within view, especially if some of the signs are small and contain very small writing that it is impossible to read unless close by.
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The onus lies with the car park management companies, for them to prove that you were aware of the terms and conditions detailed on the signs and had therefore entered into an implied contract. This of course is almost impossible for them to do, and so we can all avoid any charges levied for the first time at each location. The key to remember is that for the car park management companies to invoke the terms of the Protection of Freedoms Act they must first establish that you knowingly entered into an implied contract. In the absence of this, they can only sue you for damages caused as a result of trespass. Trespass itself is not an offence. It is only an offence if accompanied by criminal damage. Therefore if you have parked without knowledge of an implied contract and committed no damage to the fabric of the car park, they cannot press you to pay their charges and will not be awarded any damages if they sue.
Peter
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I picked someone up from Stanstead airport using the 10min area, but was there for about 20mins. On exiting the charge that came up was £65!!! I pressed the help button and told the operator that I hadn’t seen any signs stating that the maximum time was 10mins, and offered to pay £5 for the parking which was accepted.
Max Musson
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That is where an airport is operating their own parking control system, and in such circumstances, the airports are likely to exercise sensible discretion. The problems arise when they contract out their car park management to management companies that try to exploit the Protection of Freedoms Act in such a way as to maximise their profits.
Nationalist4UK
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How one person deals with parking fine from a private car park.
Max Musson
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This chap appears to have employed a similar argument to my own albeit less diplomatic, the key point being that KFC and the car park management firm are not legally authorised to issue ‘fines’ or ‘penalties’ for inappropriate parking. They can only pursue you for payment of a parking charge if you acknowledge that you saw their signs and before leaving your car and in doing so gave implied agreement to be bound by the terms of their contract. If you maintain that you did not see the signs, then there cannot have been any intention on your part to enter into a contract and the parking management firm can only pursue you for damages (i.e. nothing, because you will not have caused any damage) as a result of your trespass on their property. There is no need to be rude or insulting when replying to the parking management company, just make them aware that you did not enter into a contract, that you know the law and will not pay the charge.
George
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‘If only I had had my reading glasses on at the time…..’.
What I find despicable is that you must register your car with the DVLA by law and this information can then be passed on. Any information that is not volunteered should be treated as confidential.
Max Musson
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You are right, and it can only be a matter of time now before the NHS begins selling our medical information to private medical companies, and we start receiving targeted cold calls from a call-centre in India from people trying to sell us all sorts of potions, remedies, bandaging, incontinence aids, etc. We can look forward to embarrassing moments when our mobile phone rings on Christmas morning (a Hindu or Muslim supplier of course) while we are entertaining friends, only to be told that our three month supply of haemorrhoid cream has been delayed in the Christmas post but should be with us the following day!