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Jo C.
Jo C., Barrister
Category: Law
Satisfied Customers: 70709
Experience:  Over 5 years in practice
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My question refers to a parking charge notice in a private

Customer Question

My question refers to a parking charge notice in a private car par. I parked in an area of the car park (previously used as parking for car showroom) where there was extra room to the side of the end marked bay next to a railing. The car parked in that bay had utilised that extra room. When I arrived all spaces were in use in this area apart from one, and a large van has parked so as to obstruct part of this bay. However, there was ample room to park my car (next to the one which had used the extra room. It meant that I was not parked 'wholly' within the marked bay, but did not cause any obstruction to anyone and I paid my parking in full. They claim that I have breached the terms and conditions by not parking "within a marked bay", but I would argue that I parked "sufficiently" inside the marked bay, causing NO obstruction or any loss of revenue. Can you give advice on whether this is a reasonable argument for not breaching their so called "contract" or not. I realise that this may not be in your remit, but thank you for reading thus far.
I have received a letter if claim. Do I need to give "full" details of my defence (some of which I have outlined to them previously) in my response, or mere outlines. I have not used the above argument with them yet.
Submitted: 1 year ago.
Category: Law
Expert:  Jo C. replied 1 year ago.

Who is the issuer please?

Customer: replied 1 year ago.
Excel Parking issued the PCN and bw legal is the debt collection company.
Expert:  Jo C. replied 1 year ago.

Ok. Are you asking if you are liable?

Customer: replied 1 year ago.
I'm asking if my defence against breach of terms and conditions is viable. I do have other areas of defence which rely on a case which I hope is a precedent for a pay car park. There was no commercial loss for the parking company.
Expert:  Jo C. replied 1 year ago.

No, not really.

It depends what their signs say but if they say that a driver had to park within a marked bay and you did not then there is a breach.

There is no defence in saying that you didn't obstruct others which is effectively what 'substantial compliance' amounts to.

Expert:  Jo C. replied 1 year ago.

Commercial loss is also not a defence now as the case of Beavis has implicitly confirmed. There never had to be a financial loss per se anyway as it was too remote from the wrongful act.

Expert:  Jo C. replied 1 year ago.

Private land fining was always a perfectly valid claim. It was just not very cost effectively to pursue in practice.

Expert:  Jo C. replied 1 year ago.

that hasn't changed.

They have become more aggressive essentially because they have lost control of the industry.

Expert:  Jo C. replied 1 year ago.

Can I clarify anything for you?

Jo

Customer: replied 1 year ago.
in effect you are confirming that I did breach terms and conditions by not parking totally within the bay? Whatever mitigating circumstances there were at the time, and even though it caused them no commercial loss. They are likely to win this ase in your view?
Customer: replied 1 year ago.
Sorry was meant to read case not ase .
Expert:  Jo C. replied 1 year ago.

Yes, if that is what their signs say.

Mitigating circumstances are a non issue.

Yes, if they litigate on these facts they would win.

Customer: replied 1 year ago.
The argument relating to genuine pre estimate of loss is not valid then? I would have argued that there was no commercial justification as there was in the Beavis case.
Customer: replied 1 year ago.
In your experience, letter of claim means generally that they will pursue it to court?
Customer: replied 1 year ago.
If I do go to court, do I need to give them my full defence in my response to their letter of claim. Would that be wise?
Expert:  Jo C. replied 1 year ago.

No. It is not. It never was the test.

Expert:  Jo C. replied 1 year ago.

No, a letter of claim doesn't really mean anything. They may pursue it, they may not.

On the face of it, you are not raising a defence

Customer: replied 1 year ago.
There was a case Parking Eve v Cargius in which the parking company lost . It was a pay car park and the ruling was different because of this. If they pursue to court can it be settled still before the court date?
Expert:  Jo C. replied 1 year ago.

They lose many cases but not on these facts. Commercial loss is a non issue.

Yes, you can always pay although they would be claiming costs. Costs would be fairly low though.

I'm happy to continue with this but please rate my answer.

Jo C. and other Law Specialists are ready to help you
Customer: replied 1 year ago.
Thank you Jo, it's difficult to know what to do, I feel there is a principle and the parking company is just being greedy, as there was no loss of revenue. However, the law doesn't always work on the side of what is right. I agree they seem to be more aggressive thes days, but the terms /conditions of a contract should reflect a logical reason for have them. Not just to keep a car park looking "orderly".
Expert:  Jo C. replied 1 year ago.

If you are not phased by the risk of a small amount in costs then I would refuse to pay and see if they sue. Mostly they still do not.

Also, anything can happen. Their signs may be inadequate. The suing company may not be able to show a deed of assignment.

Customer: replied 1 year ago.
Thank you Jo.
Expert:  Jo C. replied 1 year ago.

No problem.

All the best.