UK Traffic Law
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have you contacted the company to date please?
no. only got it today
Private tickets used to be 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.
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.
so what are my options?
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.
How you choose to proceed depends on your appetite for risk. 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 by failing to display a badge because you do have one. 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.
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 no evidence of large scale claims in the county courts though the Act is still relatively young.
Is there anything above I can clarify for you?
would you recommend i pay the £40 now and appeal to have it overturned?
This is very much a personal choice as above. If it were me I would not but that does not mean that is the right decision for everyone. My experience of appealing to the company is that it is a waste of time as they are in the business of generating revenue and appeals never seem to succeed for obvious reasons. Providing you are prepared to put up with a few threatening letters if you simply ignore them the evidence generally is they eventually give up. Providing you are prepared to risk the possibility that they may issue proceedings and that you will have to pay some minor court fees in the event you are unsuccessful in a defence then you would likely proceed as would I but if you prefer not to have the worry of the above hanging over you so to speak then you may do better to simply pay up for a quiet life.
There is no significant evidence of parking companies taking drivers to the small claims court but rather that they rely largely on voluntary compliance of driveers paying up but the choice must ultimately be yours on the above basis.
Does the above answer all your questions or is there anything I can clarify or help with any further?
no thank you, XXXXX XXXXX digest your opion and decide my course of action. thank you.
Remember all you have received is an invoice dressed up as a fine.
This can sometimes help put the matter into perspective.
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