From a very helpful reader and probably the definitive answer:
On July 25 2009, you answered a letter by P.M. of Kineton who had received a "penalty" for overstaying while parking to eat at McDonalds. You advised the person to pay the "penalty" and then sue. I disagree with you. A huge act of dishonesty has been perpetrated against the British public by these parking companies, and if you look into it, maybe with the assistance of your newspapers legal advisors, you might find an interesting subject for your writing. I looked into this myself as a result of a despicable private parking company trying to demand money from someone close to me. I will tell you some of what I found out, or worked out:
I am assuming that the parking ticket was for parking on privately owned property (probably land owned by McDonalds, or maybe by some shopping centre, etc., where they have their business). It seems to have been issued by a private parking company (PPC) hired by McDonalds, or by whoever owns the land. This is very important. In British law, there is no provision for a private company to issue "fines" or "penalties" to anyone. If you think about it, it is absurd that there ever would be. Fines and penalties are punishments issued by the state, who have the power to punish people. McDonalds does not have the power to "fine" you, any more than you have the power to "fine" me. It is amazing arrogance by these companies that they think they can fine people, and they know their case is very weak. They rely on the British public not thinking about this and being intimidated. This was established by a well-known court case, Dunlop Pneumatic Tyre Co. Ltd. v. New Garage and Motor Co. Ltd. (1915). This court case basically makes it impossible for private parking companies to charge penalties for parking on private land. This issue with the concept of a "penalty" is the same issue that caused the banks so much trouble when everyone started suing them for refunds of "penalty" payments. The same applies here.
You can, however, demand money from someone as a result of them entering into a contract and that is how this really works, not that they want you to know that. The "penalty" notices and "fines" are really invoices. They typically claim that by parking there, you must have read a sign indicating that you have entered into a contract to pay, or to pay if you overstay, etc. This is a strictly civil matter, nothing like a council parking ticket "penalty" matter, and the legal support that the company has is much more limited.
1. If they try to mislead you into thinking this is a penalty, they are almost certainly committing an offence - fraud. They may do this by using the word "penalty" on the sign or ticket. Sometimes, they try to make the ticket look official by putting the black and white squares pattern on it. Usually they make it yellow. They may put text on it saying it is a criminal offence to remove it - this is a lie. It is no more an offence to interfere with one of these tickets than it is to interfere with a pizza advert - because, and this is the important point - they are invoices, not parking tickets. If they use fraudulent methods they are likely to make their claim invalid, and even end up in trouble themselves. They should make it clear this is an invoice and give no other impression. Maybe a call to trading standards or the police is appropriate in some situations?
2. If they sue you, they will need to establish to a reasonable degree of confidence that you saw the sign, and read it, to enter into the contract. They have the usual arguments about signage that councils face every day. Over half of council tickets get thrown out on appeal, often due to issues about signs. You can imagine how this lot would get on in court without even the same authority to back their demands up.
3. A council can issue a penalty and the owner of the car has to pay it, no matter who parked it. This is not the case for these things, as they are invoices. UK law has no provision for saying that someone who drives a car and enters into a contract creates any liability at all for the car owner. Why should it be otherwise? If I am driving your car and stop to sign a document giving someone £1,000 at the roadside, you as the vehicle owner have nothing to do with it. They get the DVLA to provide them with your details as the vehicle owner, but that is not good enough. To have a successful case against you, they have to sue the person who parked the car, and they have to show in court that that person was driving. The police can require you to name the driver for speeding tickets, but these scam merchants are not the police. They have no such right. You are not required at all to tell them who was driving. You should never tell them who was driving. If you have any contact at all with them, you should never indicate who was driving the vehicle. Finding out who was driving is their problem - and it is likely to be next to impossible in many cases. Clearly, when you get you invoice on the windscreen, you should not argue with their employees at the scene. It may also be unwise to phone them or write to them when you get home. You can wait for them to pay the DVLA for your details and contact you (which is nice as it costs the scam monkeys money), and then give them the problem of proving you were driving. You do not need to confirm or deny that you were the driver. This, alone, is likely to kill off most of these tickets. They are unlikely to have the resources to identify the driver from CCTV, etc in all these cases. They know that. They are hoping you don't and that you think they can "fine" you.
4. Remember, these things are not "fines". This means the amount they can charge is nothing at all to do with punishment, or deterrence, or what the councils can charge you. If they sue, all they can recover is the costs they incurred as a result of your parking. A court is likely to view these as minimal, if you use this as a defence. For example, if parking costs £2 per hour and you overstay by an hour, the cost should be £2. If parking is free and you overstay a bit, the inconvenience to the land owner may be minimal. If they get you on a technicality - for example, you have a permit for a place where you work and forget to display it, I would expect they should be entitled to nothing, because your parking should have been allowed anyway so cost them nothing. They are not likely to be able to recover the costs of employing the PPC to patrol their car park. A court is likely to regard their "fine" demands as outrageous, and award them next to nothing. You can probably see here why I would think it a good idea not to pay and to let the PPC sue you. The PPC are unlikely to do this, as they know they are just operating a scam. If they do sue you, you can use the points I made here as a defence. To collect their money they have to show that:
1. They know who was driving the car, and are suing that person.
2. You saw the signs.
3. The amount they are trying to claim is reasonable, and reflects the
costs incurred as a result of your parking.
Also:
1. They may have to defend against claims by you that their signage is fraudulent if it talks about "penalties" or "fines".
2. They may have to defend against claims by you that their paperwork is similarly fraudulent if it tries to appear like a penalty notice, or appear as if some kind of authority is behind it.
You can probably see how difficult their case is going to be, and how
likely they are to sue.
Something else which may be relevant:
Any limited company in the UK (and most of these PPCS are limited companies) needs to state its registered company number, and place of registration (e.g. "Registered in England and Wales") on its invoices. Someone I know received one of these tickets and the information was missing. Of course, the last thing they want you to do is think of these things as invoices by private companies, so it is hardly a surprise. You may have grounds for complaining to Companies House over this, which would at least be an inconvenience for them. You can probably see how this works: as soon as you switch from thinking of these things as "penalty notices" to thinking of them as "invoices", the problems just stack up for the PPC. I have not seen any mention of this one on the internet, but am aware of it as am a limited company director and have these responsibilities with paperwork. They are unlikely to sue you, but if they do it is important you use these issues in a defence. It would make their case poor.
I have put this into practice. Some time ago, someone was collecting my mother from a hospital appointment (notice I follow my own rules here and do not identify him/her - even to you). This person had the right to park, using her disabled badge, as he/she was collecting her, yet he/she was issued with an invoice by Central Ticketing. I made a reply which I have attached to this e-mail. The ticket was cancelled.
That is one way of dealing with this. The other way is just to ignore them. Either way, you should never identify the driver. They will be all huff and puff and issue threats and get debt collectors, etc. None of this has any authority at all to back it up. In fact, if they do get debt collectors onto you, you can tell them that the debt is disputed and refer it back to the PPC, and ask the debt collectors not to contact you again. If they do, complain to the authorities.
If I can be of any further assistance with this issue, please do not hesitate to contact me, and I would be happy to send this information to P.M. of Kineton, or maybe you would like to (you could of course make it clear you are not responsible and are just passing it on). I am not a lawyer, but have looked into this quite a bit .
My motive in writing to you is simply to try to do what I can to make people aware of a huge act of fraud being perpetrated by these companies, and the huge arrogance in companies thinking they can fine people, even doing it when they know it is not remotely deserved, as is the case with your correspondent. When I dealt with the hospital parking incident, mentioned above, I found out that a nurse at that hospital had been "fined" for forgetting to display her permit on her car. This is a disgusting way for an organization to treat its staff - to attempt to fine someone who should have had the right to park there anyway over a technicality. The hospital is 100% ethically at fault, because it has hired the PPC to do this on its behalf, and it is defrauding its own staff. The poor nurse thought, as almost everyone does, that she had been "fined" - and all she was doing was turning up to do her job. I was repulsed by this. I hope I have shown here that she, and thousands of others, have been mislead about this, and why people deserve to know the truth.
I also have a link for you:
www.penaltychargesforum.co.uk/showthread.php?p=407...5>
The people there may be able to tell you more, and may be able to deal with any areas in which my information is at fault.
Summary: You should almost never pay these things, provided that it is private land and is a private "ticket". It is going to be hard for them to sue to get their money. Let them try. Let them make threats. If they do sue (unlikely) be aware of the defences needed. Complain as necessary to Trading Standards about any misleading signage/paperwork.
(I was, in fact, advising P.M., on the basis of civil law rather than criminal law and the fact that you park on private land on the basis of a contract between you and whoever operates the parking concession on that land. The Unfair Terms in Consumer Contracts Regulations (1999) lists in Schedule 2 Indicative and Non-Exhaustive List of Terms which may be Regarded as Unfair: (e) requiring any consumer who fails to fulfil his obligation to pay a dis-proportionately high sum in compensation.)
HJ
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HJ - many thanks for posting this full and clear explanation of the legal position on these illegal penalty charges.
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.....and that explanation HJ should be specially Bookmarked on this site.
dvd
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HJ, can I ask if you are going to be able to act on this advice and give it the publicity it deserves? Will the DT lawyers look at it and allow you to print it to finally get the message over to Joe Bloggs not to pay these fines?
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This is excellent, really excellent!
The only thing I would like to add is, should you in any event happen to write to the parking company, under no circumstances sign the letter!
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What's your legal position if your car is clamped as a result of exceeding a posted time limit in a retail park's car park? If you are saying that a company can't impose an 'ordinary' fine, how come they can clamp your car and effectively force you to hand over the money? Or is that something different?
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Link takes you to the site for Athena ANPR. As you'll see they use the expressions "fine" and "offence".
tinyurl.com/locyvk
The charge "certificate" you can open, says they operate in accordance with the "DVLA code of practice for private car park enforcement". Is there such a code?
"Many of our clients successfully use these car park management options to generate income for their business."
Edited by Optimist on 05/08/2009 at 15:19
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That looks like either an inaccurate web page, or a naughty one. Worth a complaint, in any case. Who can we complain to (not the company)?
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There is a voluntary code:
www.ukmotorists.com/Voluntary%20Code%20of%20Practi...p
Looks like a waste of consultation to me!
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FT. The ISP that hosts the site perhaps? Might HJ do it on our behalf?
Edited by Armitage Shanks {p} on 05/08/2009 at 15:32
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Both UKPC and Athena ANPR can access data from DVLA electronically. To do this they must be members of a DVLA approved Accredited Trade Association.
There are four:
The British Parking Association, the Association of British Investigators, the Finance and Leasing Association and the British Oil Security Syndicate.
You can find out about the BPA here: www.britishparking.co.uk/index.php.
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Who can we complain to (not the company)? >>
Perhaps your MP, or this MP who seems to have taken a special interest in these matters:
www.poptel.org.uk/lynne.jones/parkingenforcement.h...m
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If HJs very lengthy post can be shortened to a few bullet points it would be worth sending to the MP to highlight this method of obtaining money by deception.
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HJ's post added as a "sticky" in Discussion.
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It would be really useful to read a couple of reports of actual court proceedings, if such exist.
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It would be really useful to read a couple of reports of actual court proceedings, if such exist >>
do you mean something like the newspaper articles linked at post #8 here? :
www.penaltychargesforum.co.uk/showthread.php?p=407...5>
Also, in the forums linked to in your [i.e. FotheringtonThomas's ] other thread on this subject, I think there were examples of people who have taken these people to task [not sure if as far as the Courts, though].
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>> It would be really useful to read a couple of reports of actual court >> proceedings if such exist there were examples of people who have taken these people to task [not sure if as far as the Courts though].
That's exactly why I asked the question. There're lots of vague Interweb statements, but I want cold hard fact (gone to court).
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As I've posted before, I have seen one of these to it's conclusion this year and am currently awaiting a few more to ignore.
I can cope with these things...in fact, it's rather fun to wind these PPCs up.
What I cannot understand , though, is the reluctance of anyone to give this some proper publicity.
I have written to both our local and evening paper outlining the legal side ,but, although they huff and puff about people being landed with these so called 'fines'...they won' t publish anything which helps the poor motorist....I bet they would if one of their senior staff got one !
Ted
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Thanks fo your replies. Today we had a letter in the post stating the fine had been reduced to £45. We are still ignoring it though.
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the fine>> had been reduced .
Did the letter actually use the word "fine"?
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>> the fine>> had been reduced . >> Did the letter actually use the word "fine"?
No the word Charge was used. Letter below..
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UKPC CHARGE CERTIFICATE Civil Traffic Enforcement Notice. On the Parking Charge issue date you were the registered owner/keeper/driver of the vehicle registration mark opposite when the Parking Charge Notice was isssued because the vehicle was allegedly involved in the following parking contravention namely: Unauthorised parking Contravention - Vehicle not displaying valid permitAt (time) xxx In (place) XXXXXXXXX The Parking Charge of £90.00 must be paid within 28 days of the enforcement notice issue date of this notice. If the Parking Charge is paid within 14 days of the date of this notice a reduced amount of £45 is payable. Representation can be made (within 7 days of notice) in writing only to UKPC Appeals PO Box 492 etc.....
FAILURE TO PAY THE FULL BALANCE OUTSTANDING WITHIN 28 DAYS OF THE DATE OF THIS NOTICE WILL RESULT IN UKPC FORWARDING THE OUTSTANDING AMOUNT TO A DEBT RECOVERY AGENT WHERE YOU MAY INCUR ADDITIONAL COSTS.
Photograph of rear of car showing reg. No. printed on Charge Certificate Plus Payment slip with space for credit card details
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FT is looking for legal precedent on this but if anyone has gone to court I doubt if there will be a published judgment.
But there is guidance in post 11 on the subject if he follows this link:
www.consumeractiongroup.co.uk/forum/parking-traffi...s
where the poster refers to unfair terms and conditions. I don't know if the case law is accurate, but a little research should prove the point. In any event the post seems to me a reasonable summary of the overall position.
Good to see OP's original problem seems to be diminishing. If everyone who gets one of these things ignores it the parking companies will have to give up because it won't be practical to take registered keepers to court unless it can be proved they were the driver on the day.
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So if these charges are illegal, can you call the police to a clamped car and ask them to charge the clampers with unlawful imprisonment?
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unlawful imprisonment?
Applies to people not cars !
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But if you can't move your car you are effectively trapped. The police can intervene if someone parks across your drive and traps you in.
Edited by danensis on 07/08/2009 at 13:56
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Trapped in your car might be different.
Edited by Pugugly on 07/08/2009 at 14:05
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Somewhere at the root of this problem is the ease of access to the data that the DVLA holds and the misunderstanding of common or garden man that the charge notice is more akin to a fine than an invoice.
If the DVLA were less willing, or perhaps more restricted in their ability, to provide third party access to the data, this problem would start to receed.
Documents on the DVLA site suggest that not a lot of people have actually complained to them about third party access or the use of data gained under their third party access system.
DVLA Site: www.dvla.gov.uk/foi/Disclosure/ReleaseofInfo.aspx
Read the letter titled 'Response to request of 13 July 2009', specifically the end of page three and beginning of page four. They refer to their internal safeguards against abuse of their third party access system.
Perhaps, if there's to be a summary of HJ's posting (that which will probably turn out to be the definitive answer) it should suggest that while ignoring the PPC's letters it's a good idea to put pen to paper and let the DVLA know that you're not happy that they've shared data with someone who appears to be using it to dishonest ends (by which I mean misrepresenting an invoice for a dubious contract as a legitimate fine).
If the DVLA were to receive enough complaints about the way their third party access system is used then they're surely obliged to review it.
Their own figures, pages two and three of the above referenced letter, show that enquiries from parking companies have gone up so they ought to be carrying out audits of those accessing the data.
I feel an FOI request writing itself in my head...
Apologies to the OP, I'm not trying to hijack the thread away from the issue he raises about the legality of the charges.
Edited by Battles on 07/08/2009 at 15:20
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>>That is one way of dealing with this. The other way is just to ignore them. Either way, you should never identify the driver. They will be all huff and puff and issue threats and get debt collectors, etc. None of this has any authority at all to back it up. In fact, if they do get debt collectors onto you, you can tell them that the debt is disputed and refer it back to the PPC, and ask the debt collectors not to contact you again. If they do, complain to the authorities.
Ignoring debt collectors is not advisable as you may end up with a CCJ against you. This will obviously give you major problems.
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You will not get a County Court Judgement by ignoring debt collectors.
Only the County Court can issue you with a judgement and then only if the PPC take action against you.
The Court will write to you long before any hearing.
These cases have never been known to go to court as the amount they can claim is so low. If, at any time, this matter ever ends up in the County Court, then you can, presumably offer to settle out of court for a fiver, say, which would be more than the court would award them.
The debt collectors are often just another arm of the PPC.
Ignore them with all your might !
Ted
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They need to know who to sue as well.
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Don't we all, PU, don't we all... any ideas?
:o}
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thanks for all this info..
i have just had a ticket from ukpc for 100 pounds for parking at macdonalds (over 2hours) ..i thought it was a fine but now looking again it is called a parking charge notice...i have unfortuantely already written admitting more a less i was the driver as i stated i was in the restuarant thinking it was a mistake and a fine for parking their when not using the restaurant..they wrote back saying i still have to pay. Do I? It is a free car park or so i thought
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