Should you pay your parking fine?

Parking ticket

There's something about receiving a parking ticket that really makes your blood boil and that sense of irritation is only increased if you feel you've been hard done by.

At least if you receive a penalty charge notice for parking on a road or local authority car park, the process by which you're charged and the amount you will pay are laid down by law – in this case the Traffic Management Act 2004. And if you feel you have been the victim of an overzealous traffic warden or have any other reason to dispute the charge, you can appeal to one of two statutory appeals services – the Traffic Penalty Tribunal in England and Wales or the Parking and Traffic Appeals Service for notices issued by London authorities.

However, if you're charged for parking in one of the UK's 20,000 private car parks – say you overstay on a visit to the cinema, supermarket, retail estate, even a hospital – it's a whole different ball game. Here, the company that manages the car park will use a 'breach of contract' or 'act of trespass' to justify its charge and there is no legislation in place to limit the amount you'll be asked to pay.

"The councils are entitled to charge you under traffic regulations but with a private car park you'd be charged for breaching a presumed contract with the landowner or their agent," explains Tim Cary, a partner at law firm Leathes Prior, who heads up its traffic law division.

The 'contractual licence', which sets out the terms under which you can park on the land, should be shown on signs at the entrance and throughout the park. It should tell you what – if anything – you'll have to pay, how long you can stay and the charges if you don't comply.

Should you fall foul, you will either receive a 'ticket' on your car called a 'parking charge notice' or PCN (confusingly the same abbreviation given to the penalty charge notices issued by local authorities), or receive a letter in the post.

Following a change to the law that prevents parking operators from using clamps, these firms can now buy DVLA data to find out the name and address of a vehicle's keeper once they have its registration plate – so long as it's a member of one of two accredited trade associations and follows its code of practice.

You can expect to pay as much as £100. This isn't a figure set by law, rather the trade associations have advised their members that they should not be charging more than this. But most motorists are shocked by the size of the penalty if itis substantially more than that charged by local authorities (currently £50, reduced to £25 outside London if you pay within 14 days).

Indeed, in its paper 'Private Parking, Public Concern', motoring research organisation the RAC Foundation notes it's an amount "that has never been universally justified and seems rather arbitary". You can appeal – but who you appeal to comes down to which trade association the operator is a member of.

Pursued

While most motorists acknowledge landowners have the right to control their car parks, there is a growing anger not just about the amounts being charged but also the way in which they are being pursued.

Will Howell, 34, who works for an insurance company, was caught out earlier this year in Birmingham. "I was out driving in Birmingham when my wife Gina wanted to stop to pop into a shop. The bays in front were full but there was a car park close by."

There were no ticket machines or obvious signs but, as there were others parked there, Will decided to park and wait in the car while his wife went shopping. "After a while, I jumped out to get her but when I came back there was a ticket on my windscreen – I was so angry." Eventually, he found a small sign on a back wall detailing the penalties for parking.

Given that he had only been away for his car for a matter of minutes, Will suspects the parking attendant had been lying in wait in another of the parked cars.

The charge was £105 but if it was paid within 14 days, it was cut to £85 so Will bit the bullet and paid up before the higher charge kicked in. A few months later, he's still fuming. "Someone is making a mint from this," he says.

Màire, a young mum from High Wycombe, wrote to the RAC Foundation when she was charged £100 for overstaying in a car park that charged 20p an hour. "I was made to feel like a criminal since the charge compares with fines given to people caught without licences or drinking and driving." Like Will, Màire doubted her chances in an appeal but, unable to afford the £60 reduced fee in the time prescribed, paid the full whack.

Should you automatically pay up?

A quick Google search will reveal a huge body of opinion that suggests these charges are not legally enforceable. Indeed, Parkingcowboys.co.uk, a site run by a team of parking campaigners, says operators have no 'legal basis', and stresses "this is not a fine or a penalty backed by statute.

It is more akin to an invoice requesting payment". Indeed, a plethora of similar sites offer motorists advice on how to appeal against these fines with template letters, while many contributors to forums go a step further and simply advise motorists to ignore the charge and after a few letters the problem will go away.

Richard Silver, a solicitor who specialises in motoring offences, says: "People think they have to pay these but it's a grey area. A private company can only get their money back by suing through the courts."

He also says that while the tone of letters demanding payment might be frightening they are, arguably misleading. "Some letters will say that if you don't pay it will affect your credit rating. But this isn't true – it can only affect your credit rating if they sue you, win and you get a county court judgment for not paying."

You might question how willing a private parking company would be to take a motorist to court over an unpaid charge. However, Cary says they are starting to stand up to non-payers. "Parking companies never used to sue but they have become pretty litigious over the past 12 months. Unless the amount is grossly disproportionate, the person does tend to come second."

One motorist who appears to have been made an example of is Barry Beavis, who runs a fish and chip shop in Chelmsford. Back in April 2013, Parking Eye charged him £85 for overstaying in a retail estate car park.

Barry refused to pay on the grounds that the charge was a penalty, not a genuine pre-estimate of loss. "If there is a breach of contract, you should compensate for loss but this was a free car park. If somebody else had parked in my spot, they wouldn't have made any more money."

As a result, the charge was then increased to £150 and Barry was summoned to Cambridge County Court. Despite his arguments, the judge found in favour of Parking Eye so Barry then decided to take his case to the Court of Appeal but, again, Parking Eye emerged victorious. The judge said there was a strong element of penalty, but added that it was a commercially justifiable deterrent. "It was the first time a decision like this had been made against a consumer," Barry told Moneywise.

This ruling appears to be a gift for parking operators by sanctioning punitive charges to motorists who flout the rules. But campaigners are not giving up. The RAC Foundation still holds that more thorough controls are required to keep parking operators in check. "By selling publically-owned data about vehicle owners without defining what constitutes a reasonable parking charge, the government has sold the motoring public short," the report said.

The foundation believes that the government must challenge the business models used by parking operators. "Some companies are paying landowners to manage their car parks," says head of communications, Philip Gomm. "That business model has to be wrong as it's relying on penalty income and that gives it no incentive to treat customers fairly."

Among its calls to the Department for Communities and Local Government - which is responsible for control of private car parks – is that landholders should pay for parking enforcement services in order to prevent parking operators relying solely on penalty income. It would also like to a see a definition of 'reasonable' parking charges and ensure that only these can be recovered as well as the formation of one code of practice to be administered by a government department or genuinely independent body.

As for Barry Beavis, he still believes his penalty is unlawful and with the help of crowdfunding and a pro bono barrister is stepping up his campaign and taking his case to the Supreme Court.

The best ways to challenge a private parking fine

As part of the deal that allows them access to DVLA data, private parking firms must be a member of a trade association with a code of practice and an independent appeals process for use when an initial appeal to the issuing company is overturned.

Members of the British Parking Association (which include Parking Eye, NCP and a number of NHS Trusts) use POPLA, the Parking on Private Land Appeals Service, while members of the Independent Parking Committee (which include Combined Parking Solutions and Easy Parking Enforcement) use IPC's Independent Appeals Service.

However, these services are unlikely to respond to mitigating pleas so it may make sense to arm yourself with receipts or any paperwork that can confirm you were a genuine customer and appeal to the landowner itself.

Tim Cary, a partner at Leathes Prior, says: "If it's a supermarket, speak to the manager. Approach them in the right way and they may be able to discontinue the charge. Philip Gomm of the RAC Foundation agrees and says supermarkets won't want to punish genuine customers."You can always create a fuss, go to the landowner direct and call on their mercy."

If this doesn't work, check out websites such as Which?, Citizens Advice and dedicated motoring justice sites such as Parkingcowboys.co.uk for appeals advice and template letters.

Published: 18 June 2015
Last updated: 18 June 2015

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