Le­gal................................................

Why you could end up pay­ing the price of free park­ing...

Fast Bikes - - CONTENTS -

QMy bike was parked in a locked car park in cen­tral Lon­don. I paid £6 for the priv­i­lege and it then tran­spired that my bike was stolen, prob­a­bly by use of bat­tery pow­ered an­gle grinders on my se­cu­rity chain. Can I sue the car park own­ers?

AThe car park is pro­vid­ing a ser­vice for re­ward, it there­fore falls within the mean­ing of the Con­sumer Rights Act 2015. Sec­tion 49 of The Act says that a ser­vice is to be per­formed with rea­son­able care and skill, and in light of the fact that the car park at­ten­dants told you that mo­tor­cy­cle theft is a weekly oc­cur­rence and they have taken no steps to re­duce theft it seems to me that most judges would find that the pro­vi­sion of park­ing in a se­cure car park for mo­tor­cy­cles falls below the ex­pec­ta­tions of a rea­son­able con­sumer.

You also have a se­cond el­e­ment of claim which is a bit more tech­ni­cal, and re­lies on an old com­mon law con­cept called bail­ment. Bail­ment has a long his­tory and would ap­ply in your case. If you asked me to look af­ter some­thing of yours I need to take rea­son­able care of it. If I do it with­out you pay­ing me for it then I have to do it non-neg­li­gently. If you ask me to look af­ter your bike, and I leave it in a pub­lic place with the key in the ig­ni­tion and the mo­tor­cy­cle is stolen that would be neg­li­gent and I would be li­able to you in bail­ment. But if you are pay­ing me for a ser­vice then I must use rea­son­able care and skill. It adds lit­tle to sec­tion 49 of the Con­sumer Rights Act so you do not of­ten have it raised in con­sumer dis­putes.

Your more ob­vi­ous rem­edy is the Con­sumer Rights Act 2015. This means, I would sug­gest to most rea­son­able judges, that if I leave my mo­tor­cy­cle in a car park which is ad­ver­tised as se­cure then you keep an eye on the CCTV cam­eras, you lis­ten out for rogues with bat­tery pow­ered an­gle grinders and you chal­lenge peo­ple leav­ing the car park, es­pe­cially when they are push­ing a mo­tor­cy­cle.

How­ever, com­mon law says that a per­son is not usu­ally li­able for the “mis­chievous in­ter­ven­tion” of an­other per­son. The law has some odd terms, usu­ally in Latin and this is no ex­cep­tion. Novus ac­tus in­ter­ve­niens is the magic phrase. The test is “if the in­ter­ven­tion of a third party caused the harm or loss did it oblit­er­ate the wrong do­ing of the car park own­ers” and there I think you may be in dif­fi­culty but any de­ci­sion will be fact sen­si­tive. The judge at this point has a wide dis­cre­tion. He or she will de­cide as a mat­ter of fact rather than law whether al­low­ing thieves free and un­chal­lenged ac­cess to a car park is causative of theft.

The judge hear­ing your case will have to weigh up all three com­pet­ing ar­gu­ments and de­cide, on the facts, whether it is right for a car park to ad­ver­tise it­self as se­cure but let ras­cals with an­gle grinders have free range in their car park and then push bikes out past a bar­rier. As a reg­u­lar court room lawyer I see judges try­ing hard to do the right thing and the de­light of English law is that it is flex­i­ble and our judges are pretty fair minded.

I couldn’t guar­an­tee a win on these facts but any lawyer who guar­an­tees a win in front of a judge is ei­ther fool­hardy or new to the job, but I reckon you are in with a de­cent chance if you could pro­vide ev­i­dence of a num­ber of bikes be­ing stolen from that garage. As a firm we have used fo­rums and Face­book to track down wit­nesses and that would be a good place for you to start. Bik­ers help other bik­ers and if we can make Lon­don less of a honey pot for thiev­ing lit­tle scrotes, then any brother or sis­ter biker will be there to help you.

How­ever, if your bike was parked on the high­way, even if you have to pay for the park­ing as you have to in cen­tral Lon­don, or you were in a free car park then you have no re­al­is­tic rem­edy, be­cause in or­der for there to be a con­tract there has to be the pro­vi­sion of “con­sid­er­a­tion” which in a nor­mal con­tract term means that you have paid for the ser­vice or pro­vided some­thing else of money or monies worth for the ser­vice. Sim­ply park­ing your bike in a place which you do not have to pay for it cre­ates vir­tu­ally no le­gal du­ties upon the land owner who has per­mit­ted the park­ing of your mo­tor­cy­cle. On street park­ing does not raise the in­fer­ence of safety and pay­ing for bike park­ing sim­ply per­mits you to park on the street which would oth­er­wise be an of­fence.

As a reg­u­lar Lon­don rider I’d pay triple the £1 per day for bike park­ing if the Mayor’s Of­fice or­gan­ised shackle points at bike parks. I’d pay what­ever it took if we could har­poon the thiev­ing scum who make tak­ing a bike into Lon­don a lot­tery as to ever see­ing your bike again.

AN­DREW DAL­TON

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