I thought about it.
First, there are a few flaws with the original notice:
- It does not properly identify the car park; only a 1 line car park name with no mention of town or county.
- It states that signage showing the terms and conditions is clearly displayed at the entrance - it was not, or it would have been noticed.
- That by parking, the driver has agreed to be bound by the terms and conditions - not so! Not being aware of the sign, one could not know that parking there would bind one by the terms and conditions. (Even if one was aware it is still possible to park there without agreeing to the terms and conditions though this might constitute trespass instead of breach of contract).
The letter states that as the keeper one should identify the driver, and comments here http://www.honestjohn.co.uk/faq/private-parking-penalties/ suggest that one must identify the driver.
The British Parking Association in 2011 lobbied Parliament for a clause in the Protection of Freedoms Bill (Chapter 2, Clause 56) to make vehicle keepers liable for private parking penalties in the same way they can be held liable for road traffic offences and street parking offences if they do not identify the driver of the car at the time of the offenceand
but their letter does not state how to do this. of course not, they would rather that one just paid.Two comments from Nev Metson who knows more about this issue than anyone else:...The Achilles heel in this legislation for the private parking company is that once the registered keeper has named the driver then the registered keeper can no longer be held liable, irrespective of whether or not the private parking company gets it's money or not from the driver.
And in true cheapskate fashion it asks the reader to do their dirty work for them, stating
If you were not the driver at the time, you should tell us the name and current postal address of the driver and pass this notice to them.Well, actually, no, I don't think I have to do your delivery work for you, you can send a notice to the driver yourself. (Which they then did).
The appeals procedure is interesting, but to follow such a procedure would imply that one agreed with the original assertion that one had entered into a contract with them. They can have an appeals procedure if they like, but I don't need to use it.
£100The size of the claim is interesting. At http://www.honestjohn.co.uk/faq/private-parking-penalties/ we read:
So what was the actual loss by my parking in an almost empty car park after the shops were closed? Nothing!Unfair Private Parking Penalties
(With thanks to Alan Salsbury)
Ticketed car parking in a car park or on private land is a contract between the car driver and the owner of the land or the company managing paring on the land. If an unfair penalty for parking in an off road car park is imposed by a parking enforcement company due to a breach, often due to circumstances beyond the car owner's control, there is a remedy. (Thinking in particular of the driver who, having purchased a train station parking ticket for two days, arrived back at the car 11 minutes late.)
The law covers this situation adequately with the Unfair Contract Terms Act 1977 which clearly provides under group 5 para 1(e)** that "Terms may be unfair if they have the object or effect requiring any consumer who fails to fulfil his obligation to pay a disproportionate high sum in compensation". In other words, the company owning or managing the parking space can only charge a penalty which accurately reflects the loss of income they suffered arising from that breach. Insofar as the driver arrived 11 minutes late the penalty, if any, should be the cost of an 11 minute ticket. If there were several other parking spaces available, then no loss was suffered.
"I have quoted this act several times to such organisations and in each case they have cancelled the ticket, albeit without prejudice to future decisions to avoid creating a precedent. It has worked every time. However, anybody thinking of using this law to avoid buying a ticket. beware. You have to purchase a ticket to establish a contract."(** Amended by Schedule 2 under regulation 5 (5) of the Unfair Terms in Consumer Contracts Regulations 1999.)
I also learn that although the car park is managed by ParkingEye, I do not need to deal with ParkingEye I can deal with the land owner (in the same way that I can deal with BBC instead of TV Licensing).
The driver will be identified (to ParkingEye) and after that I will have fun drawing the other points to them one at a time. I will leave the legal capacity of the actual driver in being able to enter into a contract till the very end. I will post updates on my blog.
A repeat demand addressed the actual driver was received today. The driver has no business relationship with ParkingEye and has elected to ignore the notice.