In 2015 the Supreme Court ruled that a fine of £85 against a person who overstayed their time in an off street car park was fair, even if the actual cost of the parking, had the driver paid up front, might have only been £1.
Since then however the private parking companies – those who run car parks for local councils, for bus, underground, tram and other transport companies, and who build their own car parks, have taken the Supreme Court ruling to give them the right to trigger fines of lunatic amounts – often amounting to far more than the £85, against anyone who infringes even a tiny amount of the parking regulations.
However Jiving.info – a website that encourages creativity and an independent lifestyle – decided to take up the challenge when one of us got caught by National Car Parks.
Now it is important to say from the start that NCP may not have fully given up on this case. We haven’t heard from them for four months, after their solicitors returned the details of the case back to NCP, without taking the action that they had repeatedly threatened, but so bizarre has NCP’s actions been thus far, it is quite possible that they might suddenly start up again. If they do, we’ll let you know.
The original case that led to the Supreme Court ruling came about because a driver, Mr Beavis, appealed against a parking charge for overstaying at a car park in the Riverside Retail Park in Chelmsford in 2013. He’d left his car for 56 minutes longer than the allotted free two hour wait time and was issued with an £85 parking charge. He believed the charge should be ruled unlawful, including under the Unfair Terms in Consumer Contracts Regulations (which are now part of the Consumer Rights Act 2015). Parking Eye argued – and the Supreme Court agreed – that the charge was justified to discourage people from overstaying at a site close to the railway station and law courts. The Consumer Association is asking the government to look at the Unfair Terms in Consumer Contracts Regulations again, but so far this has not happened.
So let’s look at what car parks are now doing.
Of late in many car parks the old barrier and ticket approach has gone and instead a camera takes a picture of the car number plate as it enters, and again as it leaves. The parking company asks that you declare your car number when you buy a ticket, and the whole process is matched digitally. If you drive out without having bought a ticket and allocated it to your car, or you have overstayed, they automatically fine you.
This means they no longer use wardens to check the cars and their tickets, and everything including the issuing of the fine notice and subsequent notices is done automatically.
But they consistently make mistakes, and this is where you may well have a chance of seeing them off, if you do inadvertently overstay or make some other mistake.
First, the terms and conditions of the car park must be on display in a place where you can read them. It is no good having them on a huge board as you drive in, because it is clearly impractical to stop the car and hold up other road users while you study 2000 words of rules and regulations.
So by driving into a car park with a barrier and the regulations outside the barrier does not make you beholden to the rules. It might be possible for a car park to argue that in such a case you should have parked and gone back to read the rules, but this seems unlikely to win, and could only win a case if it is possible to leave the car park without paying, having read the rules.
Clearly that is ok in a non-barrier car park and indeed many systems are set so that if you leave within 15 minutes (the time taken to park, read and leave) you will not be picked up by the system.
The rules and regulations do have to be clear, and they have to say, “do pay for your ticket when you arrive” if that is what they insist. If they don’t say that, you can obviously pay for the time you have had, when you leave – so if doing that, make a note of the time you arrive.
The terms and conditions have to be reasonable and easy to understand for everyone. If they are not, they won’t stand up in court. They also have to be clean and easy to read at night, if you are parking at night.
Infringements within barrier operated private car parks
In one case we were involved in, an off duty nurse took a disabled patient to a hospital, entered through the barrier and then found there were no disabled bays available as a delivery truck was parked across two of them. The nurse parked as best she could and took the patient into the hospital. She returned to find she had a ticket for parking partially in a special needs bay.
She wrote to the company and to the hospital pointing out that by the time she found there was no bay in which she could park she had entered the car park, and thus it was the car park operator that was at fault since it was offering a service (parking, including disabled bays) and the service was not available she did not have to pay.
The hospital said the letter had gone to their appeals committee but had been turned down. The driver wrote back and asked for details of the hearing, who was there, and why she was not invited. The hospital refrained from replying.
The parking company wrote four times demanding money, but the driver repeatedly threatened publicity for the case, and the parking company then gave up.
The ticket machine is poorly placed or the numbers are not clear
In some locations you may be asked to enter your car number into a machine when buying a ticket, having parked the car. Many of these machines have very small numbers and letters which are set very low down so it is difficult to read them. Some become very worn so the numbers and letters are impossible to read.
We have seen cases where parking companies are sending out £85 fines to people who entered one digit wrong on a machine where the numbers and letters are set very low. This most certainly should be appealed because it is the duty of the car parking company to make the system usable by all road users. They put the numbers low for those in wheelchairs – which is of course very reasonable. But people who stand say six feet tall also have to be able to use the machine.
If the numbers have been rubbed out by over use, or if it is too dark to see the numbers clearly, then it is not your fault. Likewise if you have a bad back and can’t bend down, but are able to get in and out of a car, the parking company has no case.
In all these cases do take a picture on your mobile phone if you can.
You paid, but they say you didn’t
This was the case Jiving fought. In this case a regular user of NCP car parks used a mobile phone to pay. The system recognised his phone number, repeated the car number and the credit card number, and then confirmed the bill had been paid for the amount of time required.
The driver needed to press “1” each time to say that the information confirmed by the system was true, which he did. The system did not ask the expiry date of the card.
Having parked and paid, the driver then received a call from NCP saying “your card did not go through – have you been issued with a new card with a new expiry date?” This was indeed the case, and information was given, ending with the driver asking, “Is that all paid?” and the employee confirming it was.
Two weeks later the driver received a demand for £85 for parking without payment. He wrote back and said he had paid, and reminded NCP of the phone conversation. They denied this, and said that the driver had not given the new information and had cut the call.
The driver then appealed through the supposedly independent appeals procedure and his appeal was rejected on the grounds that the driver had opted to have a confirmatory text message to say he had paid, and this had not been sent. The driver rejected this notion on the grounds that the human voice saying he had paid overrode the need for an automatic message.
NCP continued to write and demand payment. The driver wrote back and said he was not paying and wanted NCP to take him to the county court where he was sure he would win, and would then be able to quote the court case in subsequent publicity.
NCP then threatened to send bailiffs around, and the driver wrote to say this was harassment given that he had said he was not paying. Despite this a firm of bailiffs wrote to the driver demanding the money pointing out that it would be hard to gain any credit once the driver had a county court judgement against him. By this time the “bill” had escalated to around £200 since it was now adding in the bailiffs fees.
The driver replied to each letter, and then the solicitors of NCP, wrote to the driver. They now escalated the costs further, and clearly had not seen any of the details of the case.
They also phoned the driver five times, but on four occasions an automatic system took over asking the driver to press various numbers depending on his situation. The calls then ended either with the line going dead or else the driver being told there was no one available. Eventually the driver did speak to one representative of the solicitors, explained that he was not paying, and suggesting that they read the case notes.
After a further letter from the solicitors, the driver sent copies of all the documentation and a letter explaining why he was not paying.
The driver also said that as the case was clearly going to court he wanted, in advance of the hearing to have a copy of the recording of the conversation between himself and the NCP representative, and of the CCTV footage which would show him on the phone – thus proving that he did not cut the call at the start.
The solicitor replied that the driver would have to pay to obtain this evidence – something which is of course against all county court rules. NCP did not have to provide such evidence, but since without it, they have no way of backing up their claim, it was obvious that the court would want to see such evidence. Defendants do not have to pay for the evidence presented by the person taking them to court.
The solicitors then replied that they had returned the case to their client as they had no further instructions from the client. And there it stopped.
The whole case shows quite clearly that no humans are involved in most of these processes, as well as showing that the supposedly independent appeal system is capable (at least in this case) of reaching a farcical conclusion. Also it appeared that the solicitors were letting the cases be handled by unqualified clerks, although we can’t prove that.
The parking ticket flipped over
We have seen a number of cases of car parks still using the old machine and ticket system requiring the ticket to be displayed on the dash board. In several cases we have seen cases of the ticket being bought but flips off the dash board as the car door is closed. The car park company asserts that displaying the ticket is part of the requirement of the contract and thus a fine must be paid.
So far, each case we have seen challenged has been accepted by the car park. The regulations do suggest we should all check the ticket remains in place after the door is shut, but if one can produce the ticket to show it was bought then the car park accepts that.
If it doesn’t the argument is that the car park is amiss at not providing tickets with a sticky section so they can be stuck to the windscreen if the driver wishes, and that the display failure is clearly an unintentional error. It would be a brave and stupid car park company that tried to take that to court – although as the examples above show, there are some very stupid, or very greedy car park companies around.
The terms and conditions
Companies can change the details of their terms and conditions but if they do they have to tell users that this has happened – it is unreasonable to expect car park users to read a mass of regulations each time they drive in. Also there needs to be clarity in the regulations – they need to be understandable and readable by the users – which includes people from all walks of life.
What can be done if you get a fine?
First, if the terms and conditions of parking in the car park are clearly displayed and can be read either outside the car park or inside with the option to leave then the rules of the Supreme Court that overstaying can result in an £85 charge have to be complied with. If you don’t like these rules, don’t park there.
If not, fight. Answer each letter clearly and unemotionally. If you want to take it all the way through, tell them that from the start. Then their action of putting the matter with bailiffs and solicitors can be shown to be harassment. They have no reason to call on you or phone you, or send you more than one letter, as long as you have replied.
Keep all correspondence, answer promptly, tell them you will go for maximum publicity at the outcome, and if you are going away for a while, tell them that so they can’t claim they wrote and you did not reply.