Private parking charges
Know your rights when you get issued a parking ticket.
Private parking tickets that are issued unfairly can be beaten, but you need to follow Michael Lott’s up-to-date advice.
Type ‘private parking charge’ into an internet search and most likely you’ll read that they aren’t enforceable and can be ignored. In truth, what you should be ignoring is that advice, as it’s now outdated and, if followed, generally leads to a County Court Judgement. The law changed in 2012 and there was also a Supreme Court test case in 2015.
However, wrongly-issued tickets can still be beaten, but not by ignoring them.
Necessary evil?
Fair and transparent parking controls are in everyone’s interest. Shoppers’ car parks need time restrictions to prevent spaces being taken up by all-day parkers with business elsewhere. Charges also go towards the cost of providing parking and it’s unfair on those who do follow the rules if others get away with not doing so.
Sometimes, though, parking enforcement is unfair and more about extracting money for the flimsiest of reasons. This, some say, is inevitable when those deciding when to charge also rely on the money that’s collected through those charges for their income, so the more charges they issue, the more money they make.
Our advice is for cases like this. It is not intended to get anyone out of a legitimately-imposed charge. Additionally, the writer is not legally
qualified and is not giving legal advice. Rather, we are trying to correct misinformation that’s being widely circulated so that you have the facts to decide whether to pay or fight.
Council or private?
There are three types of parking ticket: those issued by local councils, those issued by or on behalf of the police, and those issued by or on behalf of private landowners.
Council parking tickets are penalties and backed by law. If ignored, they’re registered as fines at the local magistrates court and can be enforced in the same way as court fines. There will, however, be a fair and impartial appeal process. Some councils also look at ‘mitigating circumstances’, something private parking companies rarely do.
The police issue parking tickets mainly to cover red route infringements and in the relatively few places where waiting restrictions have not been decriminalised and are still enforced by traditional traffic wardens employed by the police. Again, they are fully enforceable and, in most cases, the only formal appeal is to ask for the case to be dealt with by a magistrates court. If a genuine mistake has been
made, you can always write to the issuing force – the ticket should explain how to do this – and there is a good chance that it will be cancelled.
Private Parking Company (PPC) tickets aren’t fines at all, though many are made to look like them. Only government, or government-appointed, agencies can ‘punish’ wrongdoers and a PPC has no right to issue fines to individuals. Rather, they’re invoices for a charge which, it’s claimed, you agreed to by parking. ‘Clearly visible’ signs outline the terms and conditions, basically saying “If you park here, you agree to the following…”
PPCS can obtain Registered Keeper (RK) details from the DVLA for parking enforcement purposes, provided they are members of a recognised trade body. There are currently two of these: the British Parking Association (BPA) and its more recently-formed rival, the International Parking Community (IPC).
However, a PPC can only make you pay by winning its case against you in court.
Protecting freedoms
Until October 2012, it was often quite easy to avoid a PPC charge. The PPC’S ‘contract’ was with the driver of the vehicle, but the PPC could only trace the Registered Keeper (RK) and the RK didn’t have to name the driver. The PPC had to either get the RK to name the driver or find another way of satisfying a court that they had the right person.
That changed, though, with the 2012 Protection of Freedoms Act (POFA), which outlawed wheel-clamping on private land. However, following representations from the private parking industry, which claimed this change would otherwise hinder legitimate parking control, the POFA also introduced Registered Keeper Liability. Under this, a Private Parking Company can, provided certain conditions are met, hold a vehicle’s registered keeper liable for parking charges, irrespective of who was driving. These conditions include time limits on when papers are served and access to an independent appeals procedure. The BPA and IPC both offer appeal services that they claim are independent.
Where a PPC complies with the POFA rules – and they have also to inform you they are doing this – the ‘I wasn’t driving ’ defence is now a total non-starter.
Some PPCS, however, don’t use POFA. They instead argue that it’s a ‘reasonable assumption’ that the Registered Keeper was driving, in the absence of evidence or statements to the contrary.
Despite what you may read online, ‘reasonable assumption’ can be difficult to disprove. Some judges have taken a refusal to name a driver in court as suggesting ‘beyond reasonable doubt’ that the keeper and driver were the same person. If, however, the keeper is a company or the keeper can create sufficient legitimate doubt as to the driver’s identity, they may win. Proof that the keeper was elsewhere – a timed debit card receipt, for example – is extremely useful, as is evidence that a vehicle is insured for any driver. This could persuade the PPC that a court case isn’t worth the risk.
POFA – and thus Keeper Liability – applies only in England and Wales, not in Scotland or Northern Ireland. Here the PPC still has to identify the driver or rely on ‘reasonable assumption’.
The Beavis case
Parking Eye vs Beavis went to the Supreme Court at the end of 2015, and Parking Eye – the biggest PPC in the UK and a wholly-owned subsidiary of Capita – won. The court decided Barry Beavis was liable to pay the £85 charge for overstaying two hours of free parking on a retail site. This was significant because, unlike County Court judgements, higher court decisions create case law. PPCS, therefore, regard the Beavis case as giving their charges legal legitimacy. Campaigners, however, say Beavis’s scope is limited to car parks with fixed-time free parking.
Beavis has, though, removed one defence: that a PPC charge is not a ‘genuine pre-estimate of loss’ – in other words, it isn’t what the PPC lost through the space being occupied. The judgement was quite specific that this wasn’t relevant.
What to do?
So what should you do if you get a private parking charge? Think rationally. Have you genuinely been treated unfairly or did you really just try to get away with something? If it’s the latter, then maybe just pay up.
If you want to contest the charge, wait until a Notice to Keeper arrives in the post. This may be the first you hear anyway – these days, most enforcement is via ANPR cameras. If a ticket was for something silly or clearly wrong – such as saying you didn’t buy a ticket when you did, displaying a ticket upside down (yes, that’s happened!), a silly ‘parking 3mm over the white line’ infringement or a problem caused by a non-working or confusing ticket machine, I’d take a photo or three as evidence. Keep your ticket, too.
Similarly, if signs aren’t clear – maybe you parked after dark – then photograph them, too. Many car park signs aren’t illuminated and while simply saying “I didn’t see the signs” is unlikely to win (PPCS usually counter it with evidence of signage meeting industry standards), photo evidence of invisibility could help.
Double-dipping
Sometimes, visiting the same place twice in a day causes an issue. Let’s assume – and this is based on a real case – you’re driving from Derby to Brighton and back in a day and call in at Cherwell Valley Services on the M40 on the way down and again on the way back. In some cases, an ANPR camera will record your entry for the first visit and your exit for the second, but not the other two, leading to an automatic charge for a long period. This is known as ‘double-dipping’ and is well-known to operators, so you should have little difficulty getting the charge cancelled, not least because the operator knows you’re pretty-much guaranteed a win in court. Talk to the service area first.
Ask the shop
If the car park is connected to a shopping centre, shops can often get an overstay charge cancelled if you were shopping for longer than usual. It is, though, extra hassle to a hard-pressed store manager. Local press and social media can also help. Communicate by email rather than phone so you’ve got proof. Cancellation now is by far the simplest option, so give it a go.
Do respond when the Notice to Keeper arrives – don’t listen to rubbish about this establishing a contract. However – and especially if you’re dealing with an IPC member – make it clear you’re acting as the Registered Keeper and ‘no assumptions about the driver’s identity should be drawn from this’; by and large, it’s IPC members who use ‘reasonable assumption’ rather than POFA. Be careful not to give the game away – use phrases like “the driver reports”.
If you genuinely weren’t driving, say so now, and do not be taken in by any demands that you name the driver or pay yourself, unless the company are using POFA. Without POFA, they’re just a private company chasing a debt someone else owes, so why should you help?
On the other hand, getting caught telling lies will definitely go against you. Repeating them in court – or on anything you know might be used in court – could land you in jail for perjury.
Independent appeal
If your appeal is rejected, you can ask for an independent appeal. This involves the PPC issuing a code. Here is where expert advice specific to your case is recommended. This needn’t cost you: breakdown cover often includes free legal advice, as do some motor and household insurance policies.
There is advice available online – including some useful letter templates – but use common sense here, because while some is good, much is rubbish based on hearsay. Be very wary if you see terms such as ‘Freedom of the Land’, ‘Freeman of the Land’, ‘FOTL’ or anything including the words ‘in honour’ or quoting 19th-century law – this is nonsense, based on a silly notion that people are only bound by laws they choose to accept.
One good source of information is the Facebook group Fight Your Private Parking Invoice; Barry Beavis is one of the admins. Mitigating circumstances will not be considered in an independent appeal. The decision will turn on whether the PPC was right to issue the ticket.
If your appeal is rejected – and there’s strong anecdotal evidence that the IPC reject more than the BPA – you need to decide whether you will, if necessary, fight the PPC in court. At this point I definitely recommend taking specialist advice about your case. There’s a lot of useful advice online, along with some that is anything but, so make sure that whatever source you use is reliable.
Conclusions
Parking has to be managed, and penalising motorists who break the rules is, arguably, a necessary part of that. However, not all PPCS are fair or straightforward, and resolving problems can feel like banging your head against a car park’s asphalt surface!
It is possible to beat an unfair private ticket, although doing so can be frustrating and time-consuming. For those wanting an easy life, the best advice is to watch where you park, look for signs and stick to any rules.
Above all, disregard anyone advising you to ignore private parking tickets.