Recently we received a parking charge relating to a courtesy car. Ideally we should know who was using the car at the time when the charge was received but we have checked and we cannot identify who was in charge of the vehicle.
The car was parked in a free shopping centre car park at the time but was straddling two bays and apparently even though it is free to park in the car park they can issue tickets if you don’t park within the marked bays.
Do we need to pay the Parking Charge Notice?
Whether you are required to pay the charge is dependent upon certain criteria and importantly whether the land where the vehicle was parked was private land. Without reviewing the documentation issued it is impossible to provide definitive advice. Private land could be a shopping centre, retail park, hospital, privately owned car park, or other private residential land such as a private road.
A ticket may be left on your windscreen or sent through the post.
Parking tickets issued on private land are called Parking Charge Notices. These are different to Penalty Charge Notices issued by the council or police on public land such as a council run car park.
Parking Charge Notices are easier to challenge.
Over recent weeks RML has been tasked by several members to draft correspondence and provide advice on Parking Charge Notices. We are unsure whether customers are being less careless with where they choose to park, or whether there are more companies seeking to enforce Parking Charge Notices?
Parking Charge Notices generally rely upon the fact that the person driving the vehicle has entered into a ‘contract’ with the land owner and has in some way broken or breached the terms of the contract.
The breach of contract entitles the land owner to claim damages for the loss that it has incurred as a result of the breach.
In the circumstances you have outlined it appears that the landowner will experience difficulties in proving that you, the registered keeper of the vehicle, are in breach of a contract that you did not enter into and to which you are not a party.
Even if you were driving the vehicle at the time, the landowner is responsible for proving their case which will require them to prove;
- The existence of a contract, Offer, Acceptance, Consideration, Intention to create a legal relationship etc.
- The terms which were incorporated into the contract
- That you breached the terms
- That they have incurred loss as a result of your breach,
If the landowner is unable to prove these elements of their case then it is likely that you will be successful at Court.
Even if the Landowner can prove that you agreed to enter into a contract to park your car, and that you have agreed all the terms that they are seeking to rely upon they will only be entitled to claim damages to compensate them for the loss that they have incurred as a result of your breach of contract.
The land owner will be required to prove what loss it has incurred.
In the situation you explained the person using the vehicle straddled two bays. For the sake of argument let’s agree that you were driving the car, knew about this term and are liable for breach of contract.
By straddling two bays you have prevented another vehicle parking. However given the fact that the car park was ‘free’ it is unclear how the landowner has incurred loss as a result of your breach of contract.
If another vehicle had parked in the bay you prevented them from using, the land owner would not have received any additional payment because it offered free parking.
Even if there was a charge for parking then the loss to the landowner is likely to be limited to the additional fee it incurred from the bay straddled during the time you were parked.
If there were other vacant bays available when your vehicle was parked and the ticket issued then it is unlikely that the landowner has incurred any loss because another car would have simply parked in an available bay. If the ticket was stuck on your window it would be a good idea to take photographs of the car park if it is largely empty for future reference.
The main purpose of the Civil Justice System is to compensate the injured party for the loss that they have incurred as a result of the wrong action of another party. The Civil Court is not generally involved with the punishment of wrongdoers that is the jurisdiction of the Criminal Courts System where criminals are fined or imprisoned/punished for their criminal actions.
Therefore the Landowner will be required to explain how they have incurred loss and how they have calculated their loss. They should not be seeking to penalise you for breaching the contract. If they appear to be attempting to penalise you then it is likely that the Civil Courts will refuse to enforce the penalty clause.
Returning to your original question, do we need to pay?
In the circumstances it would be appropriate to write to the party that issued the ticket and without admitting any liability ask them to provide evidence of;
- The contract,
- What terms were incorporated into the contract,
- How these terms were incorporated,
- How you have allegedly breached the terms,
- What loss has been incurred by the landowner,
- How they have calculated the requested damages.
Alternatively if you are a member of the RML Subscription Service contact the legal helpline on 01832 293003 and we will create an appropriately worded letter.