You're right that they lobbied the government to change the law regarding that, HJ, but it has absolutely no effect on enforceability.

Parking charge Notices are based on contract law. Contract law states that the "injured" party will only be compensated by the amount the breach of contract costs them. In the case of PCNs, you're usually speaking about a "free" space for a certain length of time, or a space costing a couple of pounds for a certain length of time. No court is going to award charges of 2500% of the agreed parking charge - which is around what these theiving companies are asking you for - for overstaying the allotted time.

The rest of the arguments against PCNs still apply; they haven't changed the unenforceability of PCNs, they've just scored another way to scare people into paying something they aren't entitled to pay.

This is a letter which was drafted by a solicitor, and placed online for the use of anyone who may need it. You can change the details to suit your requirements. I've noted the parts which have changed due to the alteration of statutes:

Town & City Parking Ltd

5 South Inch Business Centre

Shore Road

Perth

PH2 8BW

Date

Sir/Madam

I am writing in final response to your claim for £XX.XX, supposedly due in relation to Parking Charge Notice (notice number here), issued on xx/xx/xxxx.

You are probably aware Private Parking Companies rely on the law of contract as the basis for claiming and enforcing penalty notices. This differs from notices issued by police or local authorities that are issued pursuant to the Road Traffic Act 1991.

The long established remedy for breach of contract is damages and the measure of the same is to put the injured party in the same position had the breach not occurred. Clearly, therefore in this instance there is no loss amounting to £XX.XX, as the parking is free. It is trite law (Wilson v Love 1896, Dunlop Pneumatic Tyre v New Garage Motor 1915 et al) that you cannot charge a penalty for breach of contract, i.e. where the sum bears no relation to the potential loss.

I am not the only driver of the vehicle and require proof that I was the driver at the time of the alleged offence. ( Loubs: This is the only part which can no longer be used under the change of statutory law.)

Additionally, the Unfair Terms in Consumer Contracts Regulation 1999 and related Statutory Instrument 1999 No. 2083, in particular at section 5 states that unfair terms are:

(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.

There is also the Unfair Contract Terms Act 1977 that states in section 4 that:

(1) A person dealing as consumer cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.

(2) This section applies whether the liability in question –

(a) is directly that of the person to be indemnified or is incurred by him vicariously;

(b) is to the person dealing as consumer or to someone else.

Clearly the charging of £XX.XX is wholly unreasonable.

We have no intention of wasting any more time corresponding with you. If you continue to pursue the matter this will constitute an offence under the Protection From Harassment Act 1997.

Due to the way in which you have harassed me in this matter, as well as the supposedly official nature of your alleged “PCN” I am considering reporting the matter to the police pursuant to Section 40 of the Administration of Justice Act 1970, that states, it is an offence to coerce another person to pay money claimed from the other as a debt due to under contract if he or she:

(a) harasses the other with demands for payment which by their frequency, or the manner or occasion of their making, or any accompanying threat or publicity are calculated to subject him or his family or household to alarm, distress or humiliation;

(c) falsely represent themselves to be authorised in some official capacity to claim or enforce payment;

(d) utters a document falsely represented by him to have some official character or purporting to have some official character which he knows it has not

Again, as this is a breach of contract claim I am only liable to compensate you for ACTUAL LOSS. As parking was free for 2 hours, you have not suffered a loss of £XX.XX.

I look forward to your written confirmation that the ticket has been withdrawn.

Regards

Signature

Edited by Loubs on 03/11/2012 at 22:42

HJ

To be clear, it's for the Parking Company to issue CC proceedings for the debt, rather than CC being a form of 'appeal' open to the driver/keeper. Councils can register PCN debt at the Northampton TEC and it's likea judgement debt. Not the same for private land.

The registered keeper will get notice in form of summons and opportunity to defend. If he fails to respond to the summons then default judgement and bailiffs will likely follow. Provided he files defence the case will go to the District Judge for a hearing.

Whether the contractual loss = diddley squat line will still run post 1 October remains to be seen. Sch 4 to PoFA implies certain assumptions about the terms of the contract and signage.

Only when these cases start coming to court in next few months will we get some sense of how the law is being interpreted. Personally I'd struggle to defend a well designed PoFA compliant notice, such as those now displayed at local Homebase/Argos, which infers a contract to pay £65 for overstaying, parking outwith bays etc

Edited by Bromptonaut on 04/11/2012 at 08:45

Not under the new law, daveyjp.It makes the keeper directly liable if he does not identify the driver and/or if the driver does not pay. That is the big change in the law. The keeper can first appeal to the parking enforcer, then to the London Councils adjudicators, but if his appeal fails the charge is due and he has to to to the small claims track of the county court to appeal it rather than the parking enforcer take him to court to enforce it.

HJ

The private land appeals website has recently been updated imcluding a newsletter. Advice there, as mine yesterday, is that it Landowner must issue proceedings in CC to secure payment. Bailiffs won't be relevant until that step is passed.

https://www.popla.org.uk/Newsletters.htm

Edited by Bromptonaut on 05/11/2012 at 16:12