OPC Private Parking Tickets

[GuidoT]

I do not know much about this forum, I know a bit about bank charges though, so here goes.

 

I have an office and we pay £7K a year for 6 parking spaces. The car park in controlled by a private parking firm.

 

I must have received 30 tickets in the past 3 years or so, not paid any one of them, disagreed with them for a variety of reasons. They have not pursued very rigorously.

 

The reason I end up with tickets is that sometimes employees or visitors fail to display the correct permit, but are in our designated spaces or we park in a visitors spaces when our own spaces are full.

 

Notwithstanding all this, can a private parking firm lawfully issue a ticket that demands money that amounts to a penalty?

[GuidoT]

Thank you, is there something here that I can use as a template to write to them with.

[GuidoT]

Probably gone over the top and erred a bit on the legal side, but I sent this letter last week:

 

We do not accept that the above Penalty Notice is valid. The vehicle in question was parked in one of our bays that we pay several thousand pounds a year for.

 

Notwithstanding the above, as you are probably aware Private Parking Companies rely on the law of contract as the basis for claiming and enforcing penalty notices. This differs from notices issued by police or local authorities that are issued pursuant to the Road Traffic Act 1991.

 

The long established remedy for breach of contract is damages and the measure of the same is to put the injured party in the same position had the breach not occurred. Clearly, therefore in this instance there can be no loss as the car in question was parked in our space that we have already paid for.

 

However, even if the car was not parked in one of our spaces, it would be for you to demonstrate the loss you have incurred due to the breach. It is trite law (Wilson v Love 1896, Dunlop Pneumatic Tyre v New Garage Motor 1915 et al) that you cannot charge a penalty for breach of contract, i.e. where the sum bears no relation to the potential loss. Indeed, it is noted that you even refer on the ticket several times to it being a penalty.

 

Additionally, the Unfair Terms in Consumer Contracts Regulation 1999 and related Statutory Instrument 1999 No. 2083, in particular at section 5 states that unfair terms are:

 

(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

(3) Notwithstanding that a specific term or certain aspects of it in a contract has been individually negotiated, these Regulations shall apply to the rest of a contract if an overall assessment of it indicates that it is a pre-formulated standard contract.

(4) It shall be for any seller or supplier who claims that a term was individually negotiated to show that it was.

(5) Schedule 2 to these Regulations contains an indicative and non-exhaustive list of the terms which may be regarded as unfair.

 

There is also the Unfair Contract Terms Act 1977 that states in section 4 that:

 

(1) A person dealing as consumer cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.

(2) This section applies whether the liability in question –

(a) is directly that of the person to be indemnified or is incurred by him vicariously;

(b) is to the person dealing as consumer or to someone else.

 

Clearly the charging of £50 (increasing to £100) is wholly unreasonably.

 

Additionally, the Writer of this letter is not the owner or driver of the vehicle in question. Contrary to your assertion on the reverse of the notice you have no statutory right of access to the DVLA’s keeper information.

 

We have no intention of wasting any more time corresponding with yourselves. If you continue to pursue the matter this will constitute an offence under the Protection From Harassment Act 1997.

 

We are considering reporting the matter to the police pursuant to Section 40 of the Administration of Justice Act 1970, that states, it is an offence to coerce another person to pay money claimed from the other as a debt due to under contract if he or she:

(a) harasses the other with demands for payment which by their frequency, or the manner or occasion of their making, or any accompanying threat or publicity are calculated to subject him or his family or household to alarm, distress or humiliation;

(b) falsely represents, in relation to the money claimed, that criminal proceedings lie for failure to pay it;

© falsely represent themselves to be authorised in some official capacity to claim or enforce payment;

(d) utters a document falsely represented by him to have some official character or purporting to have some official character which he knows it has not. Paragraph (a) above does not apply to anything done by a person which is reasonable (and otherwise legal) for the purpose of :

(1) of securing the discharge of an obligation due, or believed by him to be due, to himself or to persons for whom he acts, or protecting himself or them from future loss; or

(2) of the enforcement of any liability by legal process.

It is also provided that a person may be guilty of an offence under paragraph (a) above if he concerts with others in the taking of such action as is described in that paragraph, notwithstanding that his own course of conduct does not by itself amount to harassment.

 

We look forward to your confirmation that the ticket has been withdrawn.

[GuidoT]

It seems to have had the desired effect, received a two line letter from the parking company saying it has been referred to their appeals department.

 

I received this 2 liner before last year (on some other tickets) after I may add, a more protracted exchange of letters and then never heard from them again.

 

Hopefully the letter in post 5 has achieved the desired result.

 

I now have a further 3 tickets.

 

I would appreciate any comments on my letter in post 5 as I am going to use it again.

[GuidoT]

Hi lakejen, I now have so many tickets from them I have lost count. I have received different types of responses from OPC, some saying they are sending the matter to their appeals department, they have withdrawn the ticket, they are passing the debt onto a factor, but I have not paid them.

 

The police are unlikely to be interested.

 

Let us know how you get along.

[GuidoT]

RichH6109 - They have told me Windsor Smythe are factors and not debt collectors - they are useless.

 

Do not take any notice of their threats regarding a CCJ against your name. To do this, first of all they will have to commence legal proceedings, you will get the opportunity to defend your position and then if you loose (unlikely) they will get judgment for the sum, this takes about six months.

 

Even if they obtain judgment providing you pay it within, I think 28 days, the debt will not be registered as unpaid.

 

Different story if you do not pay on judgment as then you will have an unsatisfied CCJ, but this is very unlikely.

 

Let us know how you get along, you may want to send a letter along the lines of my post 5.

 

OPC's behavior is reprehensible, just stand your ground and do not be intimidated by their lamentable threats.

 

Let us know how you get along.

Edited April 27, 2009 by GuidoT

[GuidoT]

I am no expert but I think my position is different to your link in post 11 as the ticket was issued by Dartford Borough Council, mine were on private land, although I am not sure of the position if through a private ticketing company on behalf of a council.

 

Additionally in that link it is not clear if the breach of contract, no penalty argument was pleaded. That seems to be the view of those here too CCJ Threat - Private PCN (OPC) - FightBack Forums.

 

I will ask someone who knows more to take a look.

 

Anyway initially your concern was a CCJ and that is a long way away, if indeed ever, you should see how things develop and then you can make a more informed decision as to whether to pay or otherwise.

 

Was your ticket issued on behalf of a local authority?

[GuidoT]

As I say above a CCJ will not appear 'out the blue'.

 

The police are unlikely to be interested as it is really a civil matter.

[GuidoT]

Someone is really having fun here.

 

OPC have taken to writing to the registered keepers of some of the cars, some belong to a lease hire company, so that lease hire company has forwarded the letters to me.

 

The lease hire company is Lloyds TSB Autolease and wait for it, I have just received an invoice from Lloyds TSB and they have charged me £25.00 for forwarding a OPC letter for an unlawful charge.

 

Needless to say it will not be paid.

 

Quite apart from that my OPC battle just rumbles on, I must have about 50 tickets now and they keep writing me threatening letters that I respond to in one batch each month.

[GuidoT]

As I think you know only UTCCR only applies to consumers and not businesses. UCTA applies to both.

 

In my case, whilst in some occasions the business may own / lease the cars (notwithstanding that the PCN is unlawful) it is the individuals that OPC should be pursing for the PCN and not the business.

[GuidoT]

Sent this letter to Lloyds TSB Autolease:

'We are in receipt of your invoice dated x.

Initially, we do not accept that the OPC Penalty Notice dated x 2007 ref. x is valid as set down in our letter dated x 2007 (copy enclosed).

Additionally, we are absolutely dismayed that you have raised the said invoice due to the unlawful actions of a third party without even any consultation with ourselves and then to compound matter matters you advise that you intend to take payment by direct debit on the x 2007.

Notwithstanding that we emphatically reject the Penalty Notice and vehemently deny you have any entitlement to any payment, how you arrive at a charge of £25.00 + VAT, for simply placing a sticker on a letter and posting to us is wholly incomprehensible.

For the avoidance of any doubt, you are not authorised to deduct the said sum in August 2007 or in any subsequent months. We are sure that do not need to remind you, in particular given that you are part of Lloyds TSB, that the direct debit guarantee prevents you from taking such a sum.

In the event you receive any further letters from OPC regarding unlawful Penalty Notices, then please do not forward them to us and charge us £25.00 + VAT for the privilege.

Please issue a credit note for your said invoice.'

[GuidoT]

£25.00 refunded today relating to letter in post 20.

[GuidoT]

Received 2 identical letters from Windsor - Smythe & Partners (debt recovery) that I cannot be bothered to type up, but the jist is pay us or there will be all sort of consequences, I responded with this:

'We are in receipt of your two letters dated x August 2007.

We will not be paying the above reference notices for the reasons set down in our letters dated x January, February and x April 2007 (copies enclosed).

Your letter is a lamentable effort to intimidate through the threat of further consequences that are at best half truths:

1. You state that additional legal costs will be payable, such additional legal costs would be limited to the court fee of £30.00 as this matter would be allocated to the small claims track, not to mention the fact that you would have to be successful to recover this sum - which you will not be.

2. Failure to settle the debt may have a direct effect on your credit standing – for this matter to have any impact on credit worthiness, you would have to be successful with you claim and obtain judgement in your favour, we would then have to fail paying that judgement within 28 days and the debt be registered as a default.

3. Reference is made to your recovery database – this is meaningless and in any event you do not know the correct name. The Data Protecting Act prohibits you from sharing this information.

In the event you commence proceedings your claim is doomed to fail for the following reasons:

a) Neither x and or x Ltd committed the purported offence, therefore if you use these names to commence proceedings you will be commencing in the wrong name

b) It is unlawful to charge a penalty for a breach of contract; clearly you have suffered no loss as c) below

c) It was parked in one of our bays that we pay several thousands pounds a year for

d) The vehicle had a valid permit

e) We did not receive notice x

f) You cannot add an administration charge or solicitors charge of £60.00 that you have just concocted. We would be interested to learn who the solicitor is and what they have done.

Please do not further waste our time dealing with this matter or make any further threats and certainly do not bother to send a claim form that has not been sealed by the court.

We will not be writing any further on the matter, save to vigoursly defend any legal proceedings.'

 

Let us see if they commence proceedings.

[GuidoT]

In summary if you are successful and you are on the small claims track you can claim:

 

1. court fees

2. no more than £260 for legal advice relating to an injunction or specific performance

3. no more than £50 / day at the hearing

4. travelling and overnight expenses relating to the hearing

 

This is confirmed here:

Small claims track

 

What authority do you have to support your contention that they can recover their reasonable administration costs in order to bring the claim? That is what the solicitors fixed cost is for.

 

In any event for a claim between £25 - £500 the sum would be £50 if served by the court (£60 if served personally) as 45.2A (2) of the CPRs:

PART 45 - FIXED COSTS

 

Rule 27.14 (2) (b) relates to injunctions and specific performance as the practice direction below at 7.2 and is irrelevant to the issue of the parking tickets in question (this is as the £260 in point 2. above):

PRACTICE DIRECTION – SMALL CLAIMS TRACK - This Practice Direction supplements CPR Part 27

[GuidoT]

RichH6109 - are you saying that they then send you a claim form that has not been sealed by the court?

[GuidoT]

Only the authority that the ticket does state if the charge is unpaid the legal action commenes then administration costs will be added.

 

Also the authority that cases we take to court include a £50 admin fee as specified on the parking charge at the time.

 

To claim additional costs, that were not expressly stated on the parking charge notice would not (normally) be permitted.

 

It is good to have the other sides views here.

 

Writing something on a ticket is not really authority for anything.

 

I would be interested to hear if have you been successful in obtaining judgement at a hearing, not by default, where the defendant has properly argued the breach of contract / penalty argument.

 

Additionally how do you demonstrate what your losses are, thus avoiding the penalty argument. I can see in principle why you would be successful if you can demonstrate that your losses broadly represent the sum on the parking ticket.

 

In my case, I cannot see how OPC can demonstrate any loss and thus avoid the penalty argument, as my tickets relate to spaces that we pay an annual fee for. The reason we get a ticket is that we do not have the correct pass displayed, there are 3 different types.

[GuidoT]

RichH6109 - So how long was it since they sent you that unsealed claim form?

[GuidoT]

This is OPC's not so easy to find website:

:: Observices Parking Consultancy Limited ::

 

It has contact details that you will not find anywhere on their tickets or letters (where they use a PO Box).

[GuidoT]

I can see Perky's argument has merit, as Zamzara says his or her approach can be distinguished from most other parking companies. Good job I do not drink coffee.

 

I have seen private parking companies succeed in court, usually because those that have received tickets have not properly defended their position with the breach of contract / penalty argument.

[GuidoT]

By parking on this land you are also agreeing that if you are not the registered keeper, the registered keeper has authorised all acts that you perform as the driver of the vehicle and that the registered keeper has agreed to accept liability and responsibility for the above parking charge.

 

That above is probably unenforceable in law. You cannot effectively force an unwitting third party to enter into a contract that they are unlikely to have any knowledge of. This flouts the basic privity rule.

 

There are of course exceptions, like in the case of agency, but I see no such circumstances here.

 

But I do not suppose it matters, most people will not be aware of this defence and are likely to pay up.

[GuidoT]

No more hijacking please.

 

If you still feel you must, then play nicely and no more than one further post from each of you - you know who you are.

[GuidoT]

Another month passes and a few more tickets and Windsor - Smyth & Partners wrote to me saying (incorrectly) that I never responded to their last letters.

 

That letter gives me yet another 14 days before they say they will commence proceedings.

 

Anyway I responded with this:

'We are in receipt of your two letters dated x 2007.

Your letter erroneously states that we have failed to respond to your letters dated x 2007, this is incorrect, we responded on the 2007 and enclose a further copy of the same.

We have sent this letter by ordinary post in the pre-paid envelope provided and again in our own envelope and obtained a certificate of posting.'

 

They kindly sent me 2 pre-paid envelopes for my cheque, so I used one for the letter and the other I filled up with rubbish from my bin.

[GuidoT]

Yes, I posted it back to them.

[GuidoT]

Just an update, despite that they said they would commence legal proceedings on the 30 August 2007 and the threat of bailiffs (without even commencing proceedings!) coming to collect by the 04 October 2007, they have not done anything relating to that specific ticket.

 

They are either slow or are not going to carry out their threats.

 

Received another dozen or so letters in the last few weeks relating to other tickets.

 

I am moving to my second lever arch file. I am now going to schedule out all the documentation for each individual ticket and go to the police and report the matter as harassment pursuant to Administration of Justice Act 1970.

 

I am not feeling particularly positive about the police taking it seriously though, but I am going to have a go.

[GuidoT]

I received another half dozen or so letters of threat and a few more tickets.

 

Given that they said in August 2007 they would commence proceedings and they have yet to do so, I think their threats are empty.

 

I have now taken to only responding to the ticket initially now, as they seem to ignore all my other letters.

 

Given they are now attempting to charge me around £200 per ticket, this now equates to around £10,000 of tickets.

 

By the way please do not hijack my thread.