I don't see how a charge can be held unenforceable on the grounds that it is too high. There is no legal requirement for charges for services or goods to be reasonable - a lot of companies would have gone out of business if that were the case!
There is of course a big difference between:
i) a fine, which can only be issued by legally empowered bodies, such as the Police;
ii) compensatory damages for breach of contract, which cannot exceed the actual losses incurred by the claimant. For example, if you buy a ticket for 2 hours of parking, and stay for 3 hours, you have breached your contract with the car-park owner. They are technically able to claim damages, but they would have to prove they've suffered a loss, which is unlikely;
iii) a penalty for breach of contract, which is not enforceable (see above), but car-park owners used to get away with it;
iv) a charge for services. For example, it costs £1 for 2 hours and £70 for any stay that exceeds 2 hours. It's not compensation for breach of contract, or a fine, it's just a charge for services.
It's all in how the car-park charges are phrased on the notice board.
If it says "penalty charge for overstay = £70", then that is different to saying "parking charge for over 2 hours is £70".
It's like if you go into a shop and the price is £10 for something, but £100 for something slightly bigger. You might think it's a rip off, but it's not illegal.
It annoys me on news reports where the journalists don't bother to make the distinction between the basis on which the excessive amount" is being charged.
It similar to when they use "sell-by", "best before", and "use by" dates interchangeably.
There's actually been a ruling on this - Civil Enforcement Limited v Kerry McCafferty. In the county court again so not binding of course.
The gist of it was that the judge absolutely spanked CEL.
He ruled that the sum was not a "genuine offer to park at that price" but was in fact to deter and was a penalty disguised as a contractual sum.
Some other PPCs have used this 'contractual charge' setup but it's got a few holes. Firstly, it only really works on free car parks with the 'paid overstay' model. E.g. it makes no sense at a P&D car park where the amount per hour is fixed.
Second, if you argue that you REALLY are offering 'free parking for two hours or £70 thereafter', then that's pretty cheap at some places, e.g. for airport parking, given that you presumably can stay for weeks for just £70.
You can get around these problems but then the signs and the 'contract' becomes increasing complicated.
Then the final issue is that - as CEL found out the hard way - it's up to a court to decide whether or not it's actually a GENUINE offer to park for the money or a piss take.
There also the usual other legal issues such as their legal standing to offer any contract on behalf of the landowner and to issue proceedings in their name etc.
We can't force people to pay their fines, but the site I work has ANPR on all the entrances, so if they accumulate 3 or more fines, they just get banned from coming on to site.
Why should it be his responsibility if it says PRIVATE then what the hell is a car driver doing parking there, if it says PRIVATE don't park there or face the consequences which should be an a hefty charge.
Yes indeed. Hefty, but proportionate to the offence. In other words, not excessive, why are you even arguing about that?
The Consumer Association are supporting next week's appeal. They believe it could lead to all types of services using excessive charges for the slightest infringements if the appeal goes in favour of PE. We'll see.
If the appeal goes against PE, I suppose compensation claims could include other losses or even trauma suffered by any individual who has been illegally ticketed.
The Consumer Association are supporting next week's appeal. They believe it could lead to all types of services charging excessive charges for slight infringements if the appeal goes in favour of PE. We'll see.
I saw that on the Channel 4 show this week, I think that's a bit OTT to be honest unless the judges go way overboard with their ruling.
As I mentioned earlier, while the Beavis case will hopefully see a CoA ruling on many issues, it is still a specific set up and has already been ruled irrelevant to other parking cases, let alone ones involving completely separate companies in other industries.
I saw that on the Channel 4 show this week, I think that's a bit OTT to be honest unless the judges go way overboard with their ruling.
As I mentioned earlier, while the Beavis case will hopefully see a CoA ruling on many issues, it is still a specific set up and has already been ruled irrelevant to other parking cases, let alone ones involving completely separate companies in other industries.
Yes, that being PE pay £1000 per month to the landowner concerned and the motorist was charged £85 for the overstay on that particular piece of land. I agree, with a bit of luck, hopefully the COA next week will clear this up once and for all in so far as what is and what isn't excessive.
Shouldn't it come down to what is reasonable though? Most of us would surely agree that any 'penalty charge' for an overstay should be in proportion to the existing parking fees and not these ridiculous amounts seemingly plucked out of thin air and demanded by these greedy private parking companies.
Yes, that being PE pay £1000 per month to the landowner concerned and the motorist was charged £85 for the overstay on that particular piece of land. I agree, with a bit of luck, hopefully the COA next week will clear this up once and for all in so far as what is and what isn't excessive.
Shouldn't it come down to what is reasonable though? Most of us would surely agree that any 'penalty charge' for an overstay should be in proportion to the existing parking fees and not these ridiculous amounts seemingly plucked out of thin air and demanded by these greedy private parking companies.
Well that was the sort of the point behind the original ruling, there were no parking fees as it was a free car park. Usually the argument here would be there is no loss and so no charge can be levied.
However in this case, as PE were being charged by the landowner the judge said that the amount of the 'parking charge' was 'commercially justified'.
This stems itself a lot from another high court ruling regarding a similar legal question of loss v penalty, Azimut-Benetti SpA v Healey, that was back in 2010.
That's actually quite a key case and may well influence the Beavis decision a lot.
In that case, it was held that is possible to lawfully levy a charge which is neither a penalty nor a pre-estimate of loss, so long as it's commercially justifiable.
HOWEVER, the case was not a parking one and involved big commercial enterprises entering into a fully written contract, regarding the building of a yacht.
The key question that Beavis will ultimately answer (hopefully) is whether or not the same commercial justification legal argument can apply in the case of a private parking situation, and if so, under what conditions.
IMO it could well go either way. There is a lot of support for the commercial justification argument but none of it really applies to the contract between a driver and parking company. As the name suggests, it's more about commercial contracts between companies.
The key legal issue for the parking companies to get over is is whether or not the charge is there simply to deter the breaking of the contract, at which point it will almost always be regarded as a penalty clause and therefore unenforceable.
We can't force people to pay their fines, but the site I work has ANPR on all the entrances, so if they accumulate 3 or more fines, they just get banned from coming on to site.
Well that was the sort of the point behind the original ruling, there were no parking fees as it was a free car park. Usually the argument here would be there is no loss and so no charge can be levied.
However in this case, as PE were being charged by the landowner the judge said that the amount of the 'parking charge' was 'commercially justified'.
This stems itself a lot from another high court ruling regarding a similar legal question of loss v penalty, Azimut-Benetti SpA v Healey, that was back in 2010.
That's actually quite a key case and may well influence the Beavis decision a lot.
In that case, it was held that is possible to lawfully levy a charge which is neither a penalty nor a pre-estimate of loss, so long as it's commercially justifiable.
HOWEVER, the case was not a parking one and involved big commercial enterprises entering into a fully written contract, regarding the building of a yacht.
The key question that Beavis will ultimately answer (hopefully) is whether or not the same commercial justification legal argument can apply in the case of a private parking situation, and if so, under what conditions.
IMO it could well go either way. There is a lot of support for the commercial justification argument but none of it really applies to the contract between a driver and parking company. As the name suggests, it's more about commercial contracts between companies.
The key legal issue for the parking companies to get over is is whether or not the charge is there simply to deter the breaking of the contract, at which point it will almost always be regarded as a penalty clause and therefore unenforceable.
I believe a decision in next weeks COA hearing is due around mid March so we haven't too long to wait.
I am not talking about customers talking about people who park on land they know is private and has the word private on it then wonder why people get annoyed.
For example my old office had 6 spaces for the people who worked in it and people would just turn up and park there even though it said Private Staff Only.
Why shouldn't they be fined?
Because it is a civil offense. The complainant is only entitled to compensation
So again someone can just park there and stick two fingers up and go away and come back and all the landowner can do is go through a civil procedure.
Everything geared towards the motorist who is the one in the wrong.
No most people would say if people have broken the law let the law deal with it, yes a civil procedure, but at the head of it is a judge who will decide if the law has been broken. So being dealt with by the legal system which is the right way for these things to be done.
If you dont break the parking rules then you wont get fined, although
I suppose looking at it, all the motorist is guilty of is trespass from which the land owner can only receive compensation if any damage has occurred, or any loss has occured as a direct result of that trespass. On top of that theres also the issue that people are invited into some car parks so the whole trespass thing is on very shaky ground form the start.
At a guess it works like this in residnetial car parks:
If some one parked in your space at a residential development, and that person then received a fine form a parking enforcement company and you had to park elsewhere in a pay car park ( which put you out of pocket ) I suppose the parking enforcement company would pay you back your costs from the fine they collect from the trespasser, so while the fine may be £100 reduced to whatever the true amount charged by the parking enforcement company would in theory be much much lower
If any of the parking enforcement company's have been playing a bit fast and loose, and there are refunds of these fines to motorists then theres a risk that these enforcement /security companys will just fold, however that then leaves the landowners at risk of having to pay out as if they have taken on an enforcement company to act on their behalf then the landowners can be held to account for whats been going on in their name.
The simplest way to avoid problems is to keep out of trouble, and park as you should, a quick search on google has bought up this website from the consumer group the British parking Association http://www.knowyourparkingrights.org/
Well that was the sort of the point behind the original ruling, there were no parking fees as it was a free car park. Usually the argument here would be there is no loss and so no charge can be levied.
However in this case, as PE were being charged by the landowner the judge said that the amount of the 'parking charge' was 'commercially justified'.
This stems itself a lot from another high court ruling regarding a similar legal question of loss v penalty, Azimut-Benetti SpA v Healey, that was back in 2010.
That's actually quite a key case and may well influence the Beavis decision a lot.
In that case, it was held that is possible to lawfully levy a charge which is neither a penalty nor a pre-estimate of loss, so long as it's commercially justifiable.
HOWEVER, the case was not a parking one and involved big commercial enterprises entering into a fully written contract, regarding the building of a yacht.
The key question that Beavis will ultimately answer (hopefully) is whether or not the same commercial justification legal argument can apply in the case of a private parking situation, and if so, under what conditions.
IMO it could well go either way. There is a lot of support for the commercial justification argument but none of it really applies to the contract between a driver and parking company. As the name suggests, it's more about commercial contracts between companies.
The key legal issue for the parking companies to get over is is whether or not the charge is there simply to deter the breaking of the contract, at which point it will almost always be regarded as a penalty clause and therefore unenforceable.
BIB No PE are paying the landowner for the obviously lucrative rights to ticket on the site not the other way around. PE want the charge set at a level where they can afford to pay the landowner and make a profit.
The simplest way to avoid problems is to keep out of trouble, and park as you should, a quick search on google has bought up this website from the consumer group the British parking Associationhttp://www.knowyourparkingrights.org/
I thought you were making some reasonable points until you refer to the BPA as a consumer group:o. They are a trade association for the parking industry and as far away from a consumer group as you can get.
I thought you were making some reasonable points until you refer to the BPA as a consumer group:o. They are a trade association for the parking industry and as far away from a consumer group as you can get.
This seems pretty much focused on the consumer http://www.knowyourparkingrights.org/
if people just parked willy nilly then the car parks would soon become log jammed and no one would be able to park anywhere as chaos would ensue.
As for this parking eye company..
BIB No PE are paying the landowner for the obviously lucrative rights to ticket on the site not the other way around. PE want the charge set at a level where they can afford to pay the landowner and make a profit.
doesn't that make them just sitting tenants? so they would be fully entitled to their money from the motorists, just as shops are entitled to their money in return for their goods?
If you bought something from a shop and walked out without paying then that wouldn't be right either would it?
This seems pretty much focused on the consumer http://www.knowyourparkingrights.org/
if people just parked willy nilly then the car parks would soon become log jammed and no one would be able to park anywhere as chaos would ensue.
Anarchy even!:D Isn't it amazing that in Scotland and NI where there is no keeper liability, so making the charges totally unenforceable, there has been no mass breakdown in society and things carry on as normal.
Does that mean that if motorists end up being owed money, the keepers of the land in Scotland won't be liable, so no refunds in Scotland and Northern Ireland?
Does that mean that if motorists end up being owed money, the keepers of the land in Scotland won't be liable, so no refunds in Scotland and Northern Ireland?
The rules for staff and students differ though, we do fine the students for misbehaving, cycling without lights, continual bad parking and drinking out of the alcohol free zones. I guess it's more of a private 'fine', as they agree to the university ordinances when they join. They may not be eligible in a court of law, but the student won't be able to graduate if there are outstanding 'fines'.
The rules for staff and students differ though, we do fine the students for misbehaving, cycling without lights, continual bad parking and drinking out of the alcohol free zones. I guess it's more of a private 'fine', as they agree to the university ordinances when they join. They may not be eligible in a court of law, but the student won't be able to graduate if there are outstanding 'fines'.
The Office of Fair Trading had something to say on that last year.
I am not sure if it has TBH, I know that that's what's happened in previous years, but maybe it's changed this year. Although that link is just suggestions, not actual regulations from what I can gather. We tend to fine students for poor conduct, as opposed to getting the police involved. Maybe the police will have to be involved far more in future, which could be bad as having a criminal record maybe far worse in the long run, as opposed to fines and disciplinary action in-house.
Comments
There's actually been a ruling on this - Civil Enforcement Limited v Kerry McCafferty. In the county court again so not binding of course.
The gist of it was that the judge absolutely spanked CEL.
He ruled that the sum was not a "genuine offer to park at that price" but was in fact to deter and was a penalty disguised as a contractual sum.
Some other PPCs have used this 'contractual charge' setup but it's got a few holes. Firstly, it only really works on free car parks with the 'paid overstay' model. E.g. it makes no sense at a P&D car park where the amount per hour is fixed.
Second, if you argue that you REALLY are offering 'free parking for two hours or £70 thereafter', then that's pretty cheap at some places, e.g. for airport parking, given that you presumably can stay for weeks for just £70.
You can get around these problems but then the signs and the 'contract' becomes increasing complicated.
Then the final issue is that - as CEL found out the hard way - it's up to a court to decide whether or not it's actually a GENUINE offer to park for the money or a piss take.
There also the usual other legal issues such as their legal standing to offer any contract on behalf of the landowner and to issue proceedings in their name etc.
Yes indeed. Hefty, but proportionate to the offence. In other words, not excessive, why are you even arguing about that?
If the appeal goes against PE, I suppose compensation claims could include other losses or even trauma suffered by any individual who has been illegally ticketed.
I saw that on the Channel 4 show this week, I think that's a bit OTT to be honest unless the judges go way overboard with their ruling.
As I mentioned earlier, while the Beavis case will hopefully see a CoA ruling on many issues, it is still a specific set up and has already been ruled irrelevant to other parking cases, let alone ones involving completely separate companies in other industries.
Yes, that being PE pay £1000 per month to the landowner concerned and the motorist was charged £85 for the overstay on that particular piece of land. I agree, with a bit of luck, hopefully the COA next week will clear this up once and for all in so far as what is and what isn't excessive.
Shouldn't it come down to what is reasonable though? Most of us would surely agree that any 'penalty charge' for an overstay should be in proportion to the existing parking fees and not these ridiculous amounts seemingly plucked out of thin air and demanded by these greedy private parking companies.
Well that was the sort of the point behind the original ruling, there were no parking fees as it was a free car park. Usually the argument here would be there is no loss and so no charge can be levied.
However in this case, as PE were being charged by the landowner the judge said that the amount of the 'parking charge' was 'commercially justified'.
This stems itself a lot from another high court ruling regarding a similar legal question of loss v penalty, Azimut-Benetti SpA v Healey, that was back in 2010.
That's actually quite a key case and may well influence the Beavis decision a lot.
In that case, it was held that is possible to lawfully levy a charge which is neither a penalty nor a pre-estimate of loss, so long as it's commercially justifiable.
HOWEVER, the case was not a parking one and involved big commercial enterprises entering into a fully written contract, regarding the building of a yacht.
The key question that Beavis will ultimately answer (hopefully) is whether or not the same commercial justification legal argument can apply in the case of a private parking situation, and if so, under what conditions.
IMO it could well go either way. There is a lot of support for the commercial justification argument but none of it really applies to the contract between a driver and parking company. As the name suggests, it's more about commercial contracts between companies.
The key legal issue for the parking companies to get over is is whether or not the charge is there simply to deter the breaking of the contract, at which point it will almost always be regarded as a penalty clause and therefore unenforceable.
But they ARE NOT fines, but Invoices surely
I believe a decision in next weeks COA hearing is due around mid March so we haven't too long to wait.
Because it is a civil offense. The complainant is only entitled to compensation
So again someone can just park there and stick two fingers up and go away and come back and all the landowner can do is go through a civil procedure.
Everything geared towards the motorist who is the one in the wrong.
No most people would say if people have broken the law let the law deal with it, yes a civil procedure, but at the head of it is a judge who will decide if the law has been broken. So being dealt with by the legal system which is the right way for these things to be done.
I suppose looking at it, all the motorist is guilty of is trespass from which the land owner can only receive compensation if any damage has occurred, or any loss has occured as a direct result of that trespass. On top of that theres also the issue that people are invited into some car parks so the whole trespass thing is on very shaky ground form the start.
At a guess it works like this in residnetial car parks:
If some one parked in your space at a residential development, and that person then received a fine form a parking enforcement company and you had to park elsewhere in a pay car park ( which put you out of pocket ) I suppose the parking enforcement company would pay you back your costs from the fine they collect from the trespasser, so while the fine may be £100 reduced to whatever the true amount charged by the parking enforcement company would in theory be much much lower
If any of the parking enforcement company's have been playing a bit fast and loose, and there are refunds of these fines to motorists then theres a risk that these enforcement /security companys will just fold, however that then leaves the landowners at risk of having to pay out as if they have taken on an enforcement company to act on their behalf then the landowners can be held to account for whats been going on in their name.
The simplest way to avoid problems is to keep out of trouble, and park as you should, a quick search on google has bought up this website from the consumer group the British parking Association http://www.knowyourparkingrights.org/
BIB No PE are paying the landowner for the obviously lucrative rights to ticket on the site not the other way around. PE want the charge set at a level where they can afford to pay the landowner and make a profit.
I thought you were making some reasonable points until you refer to the BPA as a consumer group:o. They are a trade association for the parking industry and as far away from a consumer group as you can get.
This seems pretty much focused on the consumer http://www.knowyourparkingrights.org/
if people just parked willy nilly then the car parks would soon become log jammed and no one would be able to park anywhere as chaos would ensue.
As for this parking eye company..
doesn't that make them just sitting tenants? so they would be fully entitled to their money from the motorists, just as shops are entitled to their money in return for their goods?
If you bought something from a shop and walked out without paying then that wouldn't be right either would it?
Well, that's to be confirmed, it's ultimately what the Beavis case will (hopefully) decide
Anarchy even!:D Isn't it amazing that in Scotland and NI where there is no keeper liability, so making the charges totally unenforceable, there has been no mass breakdown in society and things carry on as normal.
No, two entirely different things.
Maybe, I haven't given it much thought TBH.
The rules for staff and students differ though, we do fine the students for misbehaving, cycling without lights, continual bad parking and drinking out of the alcohol free zones. I guess it's more of a private 'fine', as they agree to the university ordinances when they join. They may not be eligible in a court of law, but the student won't be able to graduate if there are outstanding 'fines'.
The Office of Fair Trading had something to say on that last year.
http://www.theguardian.com/business/2014/feb/18/oft-warns-universities-higher-education-groups-student-sanctions
I wonder if your establishment has taken note?
I am not sure if it has TBH, I know that that's what's happened in previous years, but maybe it's changed this year. Although that link is just suggestions, not actual regulations from what I can gather. We tend to fine students for poor conduct, as opposed to getting the police involved. Maybe the police will have to be involved far more in future, which could be bad as having a criminal record maybe far worse in the long run, as opposed to fines and disciplinary action in-house.