Can penalty notices be enforced by law?

THE letters have the air of Big Brother society at its most intimidating.

For there, confronting the motorist, is photographic evidence of the supposed transgression.

The pictures show the offending vehicle both arriving and leaving the car park, together with the exact times and an explanation of the infraction.

Equally prominent is the demand for money – to be paid in as little as 14 days, in many cases, or the sum owing will rise.

The aggressive approach has certainly proved successful. Parking penalties are some private firms’ biggest source of income. But do they carry any legal force?

That question has engaged legal minds for years – and, just when most agreed penalties could be safely ignored in Scotland, a landmark court case presented itself as a potential game-changer.

Weeks ago, Carly Mackie, 28, was ordered to pay £24,500 to a private firm whose notices she had ignored for 16 months. She had repeatedly parked in a car park at the Dundee home of her parents – and, because she did not have a permit, the firm operating the car park repeatedly issued fines.

Finally, Vehicle Control Services took her to court and won.

The case will undoubtedly undermine the widespread belief that private parking penalties need not be paid – but lawyers differ on the degree of its impact.

Chris Buchanan of Glasgow firm Scullion LAW says the Dundee Sheriff Court hearing was a landmark case that set a legal precedent and could open the floodgates.

Lauren Rae, an associate with Dundee solicitor Thorntons, agrees: ‘Private parking fines are charges and they are enforceable.

‘There was a lot of uncertainty because it was never something that had really been challenged in court but in 2015 there was a Supreme Court case – the highest court in the UK – that said they are enforceable. What we are seeing now is the application of that locally. I suspect there are going to be even more of these cases.’

There are, however, important differences between Miss Mackie’s case and those of motorists ruthlessly chased in relation to small, often accidental, one-off breaches.

Miss Mackie knew perfectly well her behaviour was incurring penalties and yet persisted in it for more than a year. Furtherwillingly more, she did it so often she made it financially worthwhile to pursue her in court.

That left her with no possible defence under contract law that she did not understand the terms and conditions of the parking operator.

She clearly did understand the terms and conditions but refused to accept them.

Lawyers believe it would be much more difficult to establish that a binding contract had been entered into in the case of a motorist making a one-off visit to a public car park.

As Gordon Ghee of Nellany and Co LLP in Saltcoats, Ayrshire, points out: ‘In the Mackie case there was clear signage. The defender appeared to have understood the position but proceeded on the incorrect basis that the pursuers had no right to issue any penalties at all.’

Then there is the question of reasonableness – another line of argument not raised in the Mackie case.

Mr Ghee said: ‘If an elderly driver overstayed the length of the ticket by a short period and, if the company refused the appeal against the ticket, then there could, potentially at least, still be an interesting debate about reasonableness.

‘Similarly, if there is a genuine error in entering a car registration number at a ticket machine, many will feel the charge is unfair in all the circumstances, particularly since the error may not be discoverable until it is too late.’

The appeals process could also prove the private parking

‘Even more of these cases’

company’s undoing in court. What view would a sheriff take of a company operating as its own judge and jury on appeals which impact directly on profits?

Mrs Ghee said: ‘It would surely be more sustainable if the appeals body were itself an independent entity or even an ombudsman such as we have in the financial services and other sectors.

‘Perhaps the main issue on these matters, though, is economics. It was clearly cost-effective for the pursuers to risk proceedings in the Mackie case where the quantification was at such a substantial figure.

‘However, on one view, one would surely question the economic sense of pursuing a large number of nominal value claims in court where drivers would contest the basis for the refusing of their appeals on the ground of natural justice/fairness.’

There is a final, important safety net for Scottish motorists. In England, under the Protection of Freedoms Act 2012, the registered keepers of vehicles are ultimately liable for parking charges, whether or not they were the driver.

But Scotland opted out of this Act, which means only the driver of the vehicle at the time of the infraction is liable. For the parking company to succeed in any court case, it must be able to prove who was driving.

Some lawyers advise clients this is their get-out, that the companies’ guns can be spiked by simply writing back and suggesting they contact the driver of the vehicle. The registered keeper is under no legal obligation to say who that was.

For their part, parking companies are anxious to cite case law which shows they can and do take people to court. On their websites, both ParkingEye and Smart Parking refer to the case of Essex chip shop owner Barry Beavis who, in 2015, lost a Supreme Court battle with ParkingEye.

He had argued the fine of £85 for staying almost an hour over his allotted time was ‘unfair and disproportionate’.

Both companies also cite the case of Miss Mackie in their literature, to establish that parking charges are indeed enforceable in Scotland.

A Smart Parking spokesman said yesterday: ‘The court case in Dundee clearly demonstrated that parking charges are enforceable in law and motorists who ignore them may find themselves taken to court to recover the outstanding amounts.’