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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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I recently parked my wifes vehicle on a shopping centre car

Customer Question

I recently parked my wifes vehicle on a shopping centre car park which allowed three hours free parking. On returning to the vehicle prior to the three hour time limit I found that I could not gain access to it due to other vehicles having parked so close at either side that I could not open the doors sufficiently to get inside the vehicle. By the time one of the adjacent vehicles was moved and I was able to remove my wife's vehicle from the car park I had exceeded the 3 hour time limit. My wife recieved a Parking Charge Notice several weeks later which I replied to acknowledging that I was the driver of the vehicle at the time and explaining the circumstances of the situation. The Company involved have now written informing me that my representations to them have been unsuccessful and that I may now appeal to POPLA. Having read the "Grounds of Appeal" in the POPLA documentation ie. a) The vehicle was not improperly parked b) The parking charge exceeded the appropriate amount c) The vehicle was stolen d) I am not liable for the parking charge, it appears that none of these circumstances relate to my situation. If I decide to wait until the Parking Company take the matter to County Court will the fact that I took all due care to avoid the commissioning of the offence be considered as a defence?
Submitted: 3 years ago.
Category: Law
Expert:  Joshua replied 3 years ago.

Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

Were the neighbouring cars parked outseide of the parking lines please are are the spaces too small in the car park?

Customer:

My wife's car is a large estate vehicle which whilst fitting inside a normal parking bay width does not give much room for the doors to open before encroaching onto adjacent parking bays. With cars parked in each bay at the side of the vehicle I was unable to gain access to the driver's seat through any of the side doors and as I am nearly 63 years old I did not feel capable of gaining access through the tailgate and climbing over the rear and front seats

Joshua :

Quite understandable. Do you happen to have photographic or other evidence to support your statement - i.e. a picture of the parked cars preventing access?

Customer:

Unfortunately not, it was only when my wife recieve the Parking Charge Notice that I became aware that I had overstayed the time limit

Joshua :

Thanks. Does the parking company accept your version of events or do they make no reference either way - I assume the latter?

Customer:

They make no comment other than my representations have been unsuccessful and that I may now appeal to POPLA

Joshua :

Thanks. Private tickets of this kind used to be essentially unenforceable if the registered keeper refused to identify the driver but that changed last year when the Protection of Freedoms Act outlawed clamping and provided enhanced measures for parking companies to enforce private tickets. The PoFA provides that if a registered keeper refuses to identify the driver within 28 days then the registered keeper is liable for the demand.

Joshua :

However the Act has not authorised private parking firms to issue fines. These demands are still nothing better than invoices demanding payment for breach of contract - the contract is formed by the use of signs warning to display tickets/permits or risk a ticket (invoice) at the advertised rate. Being a contract the ordinary rules of contract apply whereby they must prove that they displayed adequate signage to enable a driver parking there to know of the requirements; evidence of loss on their part as a result of the breach of contract and evidence that they have attempted to mitigate their loss.

Joshua :

A car breaking down is a not uncommon scenario and amounts to a mitigating circumstance. Although for very different reasons your car was from what you say no less immobilised. Having said that if the parking company were to dispute this it would be your word against theirs. In terms of how to proceed...

Customer:

Although my wife is the Registered Keeper of the vehicle I was driving that day and as the Parking Company are now in written communication with me, not my wife, they are fully aware of the situation.

Joshua :

How you choose to proceed depends on your appetite for risk. My general feedback in relation to POPLA is that appeals are largely a waste of time in that it is an industry body and therefore appeals have a tendancy to favour the parking companies which are ultimately only interested in making money and therefore rarely grant appeals themselves. In fact I have never heard of a successful appeal however that is not to say that they do not occur as logically if an appeal is successful the individual concerned is unlikely to be contacting a lawyer. However it remains the case that as nothing more than an invoice the parking company have to go to court to force you to pay just as with any other debt.

Joshua :

If there were to do so you obviously have the argument that you were unable to avoid overstaying however this has the above weekness of lack of evidence. In addition however you may be able to argue that they failed to provide adequate signage and therefore may fail to show that a contract was formed when you entered the car park or parking area; alternatively or in addition they would struggle to show any loss from your alleged breach of overstaying particularly if there were other free spaces available. They will attempt to claim admin costs and so on but they would still struggle to demonstrate a loss of any significance compared to the amount they will no doubt attempt to claim - solicitors costs cannot be claimed if they go to court as the matter would be a small claims hearing if it was pursued. Generally a doubling of the fee if not paid (as is often provided for on these claims) within a certain period is almost certainly unenforceable in contract law.

Joshua :

Accordingly you may either pay the amount demanded or simply ignore the various threatening letters that will ensue should you fail to do so. All they can do is issue proceedings in the County Court to sue you for the amount demanded plus costs which would be in the order of £35. Historically they almost never did so because they would find it very difficult to win. Now they have a better position in that they can sue the registered keeper under the above act but they must still prove loss and so on as above which is not easy. There is little evidence of large scale claims in the county courts though the Act is still relatively young.

Customer:

I appreciate that failure to pay the current charge may result in the issue being taken to County Court but my question relates specifically to whether the Court will take mitigating circumstances into account

Joshua :

You may consider writing to the company and or POPLA advising that you dispute their invoice on one or more of the above grounds and put them on notice that should they elect to issue proceedings in the county court you will defend the same and draw the courts attention to your letter. In adition you can advise that the company has not cited any reasons for their decision and that their letter appears to be one of a standard nature and that the civil procedure rules requires them to genuinely enter into a process with you so as to attempt to avoid litigation failing which the court can award costs against them whether or not they are successful

Joshua :

the court certainly can and will take mitigating circumstances into account. Such matters can always be considered in respect of claims of breach of contract which is what this is. it is worth noting that in respect of parking tickets issued by the council ( which operate under a very different regime to private tickets such as this) do make provision for circumstances which delay or prevent the driver from moving their car

Joshua :

is there anything above I can clarify for you?

Customer:

Thankyou for yor attention, you have been most helpful

Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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