Receiving a private parking charge, usually referred to by the issuing company as a Parking Charge Notice (PCN) is now a part of life for motorists. Supermarkets, retail parks, and even many seemingly public parking areas are now subject to a regime that is not 'public' at all because private companies are employed to enforce the conditions of parking on private land in distinction from their public counterparts.
The private parking industry has expanded greatly since the introduction of schedule 4 of the Protection of Freedoms Act 2012 (PFA). The significant difference from the earlier position is that, in certain circumstances, the alleged breach of contract which forms the legal basis for a PCN may be enforceable, if established at all, against the registered keeper of a vehicle as distinct from the person driving the vehicle at the time the contract was alleged to have been formed and breached by them. The identity of the driver will invariably be unknown (and unknowable) to the parking company. So, as the registered keeper of a vehicle receiving such correspondence where do you stand, and more importantly should you pay, and what will happen if you do not?
Liability of the registered keeper
Until the introduction of section 56 and schedule 4 of the PFA there was no ability of a company issuing a PCN to pursue the registered keeper of a vehicle for settlement. It was standard practice to state that a contract had been entered into on the private land where the car was parked which meant that, if certain conditions were breached, such as the failure to purchase a parking ticket, a penalty charge was due. Despite this fact, the companies would obtain the registered keeper's details from the DVLA and pursue that person for settlement of the PCN.
No doubt as public knowledge increased of the inability of these companies to enforce a contract against someone who was not a party to it, the private parking industry lobbied government for just that ability. The legislative consequence was the introduction of schedule 4 of the PFA. Paragraph 4 of schedule 4 confers the right to a creditor company to recover any unpaid charges from the registered keeper but only if the conditions specified in paragraphs 5, 6, 11 and 12 (so far as it applies) of schedule 4 are satisfied. Unless a 'Notice to Driver' is issued, which could only be by way of a ticket on the windscreen of the car in the car park, a 'Notice to Keeper' under the legislation must comply with all of the conditions in paragraph 9 to be valid. These conditions are both numerous and onerous. The consequence of a failure to provide a valid Notice to Keeper is that the charge cannot be enforced against the registered keeper.
It is rare that there is compliance with the legislation, though this is likely to be consistently denied by the parking company which will simply threaten an escalation of action if payment is not made.
The starting point therefore, is to check carefully whether any PCN received complies with the terms of schedule 4. If it does not, then the company has no right to recover a charge from the keeper of the vehicle.
The tactics used by private parking companies to attempt to extract payment from the registered keeper of a vehicle follow a broadly similar pattern. A string of boiler plate letters directed to the registered keeper threatening escalating charges if payment is not made within a certain time frame, and the threat of court action are the norm. It will be extremely rare that specific correspondence pointing out defects in the process and non-compliance with schedule 4 is met by anything other than the next standard letter. The process usually progresses to the company passing the 'debt' to a debt a collection company which makes further similar threats and finally to a firm of solicitors, most usually closely connected to the debt collection company (if not actually the same entity) making yet further threats of the same or similar nature. The escalation of threat is cosmetic, but despite the relatively small sums at stake, can be intimidating to many who may feel that the charge is unjustified.
There will frequently be mention in correspondence of an appeal to POPLA (Parking on Private Land Appeals) and a statement that no correspondence will be entertained but by that route. This is incorrect. POPLA is not a creature of statute and has no legal jurisdiction. It is a figment of the private parking industry. There is no need, and far less any requirement, to lodge an appeal with POPLA to advance your position.
The reason for this is that ultimately this is a civil dispute founded upon contract law and the terms of schedule of 4 of the PFA. If a parking company wishes to assert its case it ultimately must do so as the claimant through the small claims court where costs are not at large, and proceedings are transferred upon request to the defendant's local court, which may be many miles from the claimant company.
The consequence is that a parking company wishing to pursue a claim through the small claims court would need to issue a claim, pay the necessary fee, and attend a hearing to even have a chance of obtaining judgment for a sum of usually around £100, with no ability to recover legal costs even if successful.
Contrary to what is often stated by the companies in correspondence, the amount claimed cannot exceed the amount of the the original PCN. To most companies involved in the industry, it is not economically viable to pursue such a claim. The number of people who hold their nerve and refuse to pay an unwarranted or unlawful request for payment cannot be known, but to the companies that operate in this area this is an economic activity based on percentage recovery. It is not personal; they exist to turn a profit. This is why the formulaic process, involving in tandem, the threat of an escalation of penalty for non-compliance and an incentivised 'discount' for early payment is stock in trade for the parking companies.
How to challenge
When considering whether to pay a charge levelled at you as the registered keeper of a vehicle REACH for the following:
- Respond- When a PCN is received. Check whether it complies with the statutory requirements in schedule 4 PFA and set out any failings in a responsive letter.
- Engage- You will receive boiler plate letters which will fail to respond to matters you raise in correspondence. Keep going. Point out the failures. Do not feel obliged to appeal to POPLA regardless of the terms of any letter you receive. If you do not want to appeal to POPLA point out that it has no legal jurisdiction and any decision is only binding (by agreement) on the company if you were to succeed in the appeal. Even if you appeal to POPLA and lose, a company would still need to bring a successful claim in the small claims court to enforce the PCN against you if you don't pay. So an appeal to POPLA really is an unnecessary step in the process.
- Acknowledge - Do not ignore future correspondence. Continue to make your point and request answers to matters that the company has failed to address.
- Continue - Don't be intimidated by escalating levels of threat. Ultimately a company must decide whether it is commercially viable to issue proceedings. It rarely is. There will come a point when responding may become repetitive. Take a considered decision when to stop responding.
- Hold - If you are correct in your assessment then it is unlikely the company will ultimately issue proceedings, or if they do, and you engage and defend them, that they will pursue the matter to trial. Remember, to the companies this is a numbers game.
Above all, don't be intimidated by the tactics deployed by the parking company. It is worth bearing in mind that the very worst outcome is that in the unlikely event that the parking company issues a claim and takes the case all the way to trial in the small claims court and you are unsuccessful, you will have to pay the value of the PCN they are claiming in any event.