Monday Musing: You're out of bullets Daily Mail

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I’ve seen claims before of successful media campaigns. I particularly remember ‘It was the Sun wot won it’ which is spurious to say the least and now the Daily Mail is claiming to have successfully campaigned against clamping and rogue parking operators.  Utter rot!  It was only last month that BBC Watchdog overdramatized their reporting on private parking operators with scenes from the OK Corral (and I used to love Bonanza - sigh).  The Daily Mail is a follower, not a leader.

Unfortunately this type of campaigning will do nothing other than muddy the waters because there is no clear indication of what it wishes to achieve. We believe the desired outcome should be an acceptance that, with 34 million cars on Britain’s roads, parking needs to be managed, properly, effectively but above all fairly. Increasingly, in our towns and cities, public parking is provided on private land (such as retail parks, supermarkets and shopping centres) and landowners must be able to manage this.  Clamping was banned, hurrah, but in truth it was the ‘threat of being clamped’ which provided landowners with effective means of control; once that has gone chaos reigns. It’s true there were some rogue wheel clampers…we didn’t like them either.

If you were clamped there was only one way to get your car back – pay a very hefty fine and one much higher than a Parking Charge Notice.  However, if you parked on local authority land you did have an appeals service.  Was it fair? No. We told the Government so and asked it to properly regulate the private parking sector. It resolutely refuses even to this day to do so. Instead it brought in an ill-conceived ‘total’ ban on clamping with untold and unintended consequences.

In October 2012 Patrick Troy, our CEO said “The Protection of Freedoms Act ushers in perhaps the most significant shake up of the private parking industry ever seen in this country and there is much that we and the Government can be proud of. However, the regulations do not yet go far enough. An independent appeals service which is not binding on all operators is likely to be a recipe for confusion among motorists and a ban on clamping is no substitute for proper regulation of the industry.” How right he was.

The BPA introduced POPLA in 2012 because it brought private parking operators in-line with local authorities who have a statutory right to obtain keeper details and who can also take a motorist to court for unpaid fines.  A motorist parking on private land now has significantly more rights to appeal than ever before and surely, that is a good thing.

Unfortunately, because government did not insist upon all private parking operators joining an Accredited Trade Association, it means that there are indeed ‘loopholes’ [to use a Daily Mail term] and some private companies that the motorist cannot appeal against. We think that is wrong.

So, what does the Daily Mail want?  To pull down the adjudication process that more than 30,000 motorists have been able to access since 2012?  Or does it want to get rid of all private parking operators and leave land-owners unprotected?  Or perhaps like us it wants all private parking operators to join an ATA and adhere to standards?  And who should own those standards?  The government? Who are the real rogues in all this?

We want to make certain that parking enforcement is undertaken fairly, reasonably and responsibly; the practice of rogue ticketing on private land causes distress to motorists and small businesses alike and should be properly regulated; and I’m sure Daily Mail readers and others would agree. Be careful what you wish for…

Comments

Parking Prankster   29/07/2014 at 21:00

Here is what The Prankster wants A consistent appeals process for all tickets, BPA, IPC, and non-members such as Mt Duff's operations at Ransomes Business Park. The BPA to enforce sanctions for breached of the code of practice and publish these. The code of practice to be maintained by government All tickets and standard communications to use a generic template as much as possible. The issue of 'missing mail' to be addressed in the code of practice POPLA to add 'the charge is not a genuine pre-estimate of loss' to the reasons to appeal The BPA to apply sanctions to members whose charge for breach of contract is not a genuine pre-estimate of loss Outlawing toxic business practices, such as providing parking services free, or even paying for the privilege to provide services. This leads to abusive ticketing as the only way to recoup costs is to issue tickets.

Parking Prankster   30/07/2014 at 02:43

The Prankster would also like an edit facility to correct mistakes in comments

Parking Operator   30/07/2014 at 11:26

I guess it's a slow news period at the moment so "cowboy ticketer's" can sell a few newspapers or raise a few clicks. With regard to the pranksters comments I think most operators would have no problem with some of his points. A standardisation of tickets, a single appeals service and a government recognised/controlled code would be welcomed in my opinion. With regard to GPEOL I think everyone now knows what a red herring this is. The "Cambridge Case" proved this and when the case goes to appeal it will be recognised in law, so I think he is trying it on there. As far as changing business models and not offering the service free, then if this is what government wants and it legislates for this then fine. We can all work on a level playing field. However as we live in a country where competition is allowed and businesses are allowed to make a profit, there will always be differing options offered to clients (until legislation says otherwise). In relation to the I didn't receive the letter/ticket, lie/excuse then what does the prankster suggest? That even where photographic evidence is available that this is ignored? We have drivers claiming they haven't received the ticket on screen and then several subsequent letters. How should this be resolved? I think we all know (including the prankster) that in the main this is just an excuse to avoid payment of a legitimately issued parking ticket. As an aside I note that Ricky Gater's appeals website now recognises the legality and enforceability of PCN's in his FAQ's. Strange how not so long ago these were "unenforceable invoices".

Andy Foster   30/07/2014 at 18:40

Reputable and responsible companies would generally welcome effective measures taken to prevent "cowboys" operating in their industry, undercutting them and giving the entire industry a bad name. The difference here is that to all intents and purposes there are no reputable and responsible companies, and you are all cowboys. By "you all" I mean any and all operators whose business model is based on collecting so-called "parking charges" which are intended to deter breach of parking terms or parking at all. In "the Cambridge case", the judge found that without intellectual dishonesty it was impossible to say that the charge was not a penalty. Its predominant contractual purpose was to deter breach - which is the very essence of a penalty. That finding would be impossible to distinguish from any other situation where a parking management company solely used such charges (and the threats of such charges) to deter breach. The judge took a very unique view on commercial justification. Before commercial justification was introduced into case law, any charge for breach which was not a genuine pre-estimate of loss was deemed to be a penalty. Over the last few years, the courts have started to adopt a 'third way' in commercial contracts individually negotiated between parties of comparable bargaining power with high level legal advice, when the clause in question did not have the predominant contractual purpose of deterring breach. Even in such circumstances, its application is very narrow. In "the Cambridge case", the judge found that he could apply it contrary to every single test or factor indicated by the current case law. If the Court of Appeal finds that the existing case law is correct and the single judge sitting in the small claims track of the County Court was wrong, you are all criminals and cowboys. Forgetting the relatively subtle nuances of notices and procedures having the characteristics of official notices, your charges are penalties (predominant contractual purpose of deterring breach), and penalties are utterly unenforceable under contract law. If you try to demand payment of charges which are not lawfully owed, you are guilty of offences of misleading and/or aggressive trading practices contrary to the Consumer Protection from Unfair Trading Practices Regulations 2008. The only defence is that of due diligence - claimed mere ignorance won't cut it.

Parking Operator   31/07/2014 at 11:19

Mr Foster. My thought on your comment above is that parking operators are very much looking forward to the "Cambridge Case" going back to court. We look forward to the verdict.Do you and will you accept the decision when it is given? Also can you tell me how you would deter people from abusing disabled bays, parking dangerously, occupying another persons parking bay, parking in a parent and child bay, not paying to park etc, without there being a charge for this? Finally any comment on Ricky Gater's appeals website recognising the enforceability of parking charge notices. Please try to be specific in your answers and not to waffle.

Andy Foster   31/07/2014 at 13:43

It doesn't matter whether parking operators or those fighting for the rights of motorists are looking forward to the verdict, or even trying to play mind games with the other side by claiming to be looking forward to it, what matters is the eventual outcome. Whether either side accept it as being 'correct' is irrelevant unless it is appealed to the Supreme Court. My personal view is that The Court of Appeal cannot lawfully rule that penalties can be enforceable under contract law as they are bound by the decisions of the House of Lords. Your question implies that there is necessarily a need to deter abuse, and further implies that demanding penalties for breach, which [virtually] any man who knows the law will tell you is a criminal offence, is an acceptable solution. Committing criminal offences in order to deter minor torts and breaches of contract can never be justified, let alone deemed necessary. Let's start by considering ParkingEye as they were/are the Claimant in the "Cambridge case". How does their system deal with people abusing disabled bays, parking dangerously, occupying another person's parking bay, or parking in a parent and child bay? It doesn't deal with those situations at all. All it does is determines how long they have been in the carpark. Deliberately not paying to park, when there is a genuine pay to park car park (as opposed to dressing up a penalty as a charge for parking for those who are in reality not permitted to park) would appear to be a criminal offence (making use of a service when payment is expected, etc.). However, there is a far simpler system - ticket on entry and payment (or endorsed ticket) required to open the barrier on exit. This also remove the problem of unintentional overstays - the motorist does not need to guess how long he will need when he enters the car park, he merely needs to pay for the time used when he leaves - although this might not be as profitable for the operators who would issues large penalties for overstaying pre-paid parking. Physical barriers can be an effective deterrent or preventative measure in most situations. Unfortunately the cost has to be borne by the owner, but that is no different than any other situation where the owner of some property feels the need to invest in some form of physical security to protect his property. If some form of punitive sanction is deemed necessary to prevent or deter abuse, then other than sanctions available to the landowner (banning persistent offenders, suing for trespass, etc.), the proper solution would be for the state to take the necessary enforcement action. A local authority could issue a TRO or PPO and their CEOs could then issue PCNs.

Andy Foster   31/07/2014 at 13:44

Arguably the biggest difference between criminal law and civil law is that criminal law is used [primarily] by the state to control behaviour with the threat of and use of punitive sanctions for the benefit of the population as a whole, or subsets who would potentially be victims. Civil law is intended solely to put the victims of civil wrongs in the position that they would have been if it were not for the wrong, and specifically prohibits betterment (profiting from the compensation). If you want to make a profit from car parking, buy or lease some land and offer motorists the right to park there for more than it costs you to run the car park. If you want to make a bigger profit by demanding payment of penalties for parking on someone else's land, don't drop the soap. Having googled Ricky Gater and read as far as the second sentence of the main body of the text on the home page, it appears that it does not recognise any enforceability of parking charge notices. It says "There is no legal obligation to pay these charges as they are not fines or penalty charges". I'm not entirely sure why you are asking me to comment on a website I have never been to before or had any direct involvement in.

Parking Operator.   31/07/2014 at 15:01

Mr Foster. Not a single answer to one of my questions. Typical really as you don't have any that include any logic. I am going to disengage now and go back to helping people manage their own land. May I make one final suggestion, if you don't want to comply with rules of parking on other peoples land then don't park there. It really is that easy. Goodbye.

Andy Foster   31/07/2014 at 15:21

I answered all your questions, you just didn't like my answers. I note that you seek to imply that I don't want to comply with the rules of parking on other people's land - because if you can make us out to be the bad guys, your criminality appears more reasonable. I have never suggested that the terms of parking of private land should be ignored, merely that people should not give in to unlawful demands for payment of penalties. Going back to the "Cambridge case", neither of the defendants were abusing the car par, or sought to break the rules, they merely inadvertently spent longer shopping in the shops served by the car park than the time limit, which I understand was reduced as a result of ParkingEye not receiving enough revenue, allowed. Obviously, subject to any conditions attached to planning permission, the landowner has the right to set the limit on parking, but when the limit is reduced as too few motorists were overstaying the original limit, is that a genuine solution to a genuine problem, or is it a bunch of cowboys trying to create a problem in order to profit from their 'solution'? Obviously as you have disengaged (which might not be the same as running away with your tail between your legs), you will not answer this, but it doesn't really matter what you think.

David Carrod   31/07/2014 at 15:45

To return to the original theme of this blog, the Daily Mail are far from 'out of bullets'. They have a whole belt of ammunition ready to fire at the BPA 'Cowboys', aka the private parking companies who belong to the comically named 'Approved Operator Scheme'. The BPA works on the principle that if a lie is told often enough, people start to believe it. But the truth is even more believable, as you will see in the forthcoming series of articles.

Arun R   31/07/2014 at 16:13

Tired of paying parking fine. Well now you dont have to, Appeal first. Download our new Ticket Appeal App https://itunes.apple.com/us/app/ticket-appeal/id858570665?ls=1&mt=8

Eddie Williams   31/07/2014 at 19:10

Monday Musing: A big boy did it and ran away, not fair, not fair, the DM is a bully,BWARRRR!

Parking Ticket Appeals Service   31/07/2014 at 19:34

Hello Parking Operator. We at Parking Ticket Appeals Ltd recognise the basis on which these tickets are issued. We to welcome the court hearing (as and when it happens). We will accept the ruling with good grace and you will not hear us moaning or saying "its a setup" etc etc should the motorist lose the case. We are actually in constant dialogue with the BPA as you can imagine we deal with many different operators each and every day. As a result of this we raise issues with the BPA, and as of today have noticed an improvement with one operator. We are not anti parking management nor are we "arm chair lawyers" "parking hobbyists" nor "keyboard warriors". What ever the outcome of the COA ruling this will be ground changing and we are prepared for that. Are you?

Parking Prankster   31/07/2014 at 19:57

With regard to windscreen tickets, we all know the industry is tainted by some cowboys who photograph the ticket then remove it. No doube a small percentage of people do lie and say they never received mail, but some parking companies lie too. I am dealing with one case at the moment where the operator denies receiving mail, despite signing for it registered mail, and also referring to it in a subsequent letter. In my view the whole industry suffers because of the actions of the rogue elements, and the solution is for the BPA to crack down on bad practice and name and shame the rogues. With regards to mail, I believe there is no easy fix, but I would propose that operators consider (some are already doing this) getting their web site to show all correspondence sent and received for each ticket. That way motorists can track if their mail is received, and can track if they should have received something. Further than that, I don't see any great barrier to believing motorists who say they have not received mail. It happens, so the most ethical way is just to reset the timers (costing nothing) and carry on from that point onwards. Also, this captcha is damn annoying. I'm on my 8th try.

John Ferguson   31/07/2014 at 21:00

I will try to keep it short and simple. (1) As a Registered Keeper, when I honestly say who was driving and that happens to be my 2nd son who used my car when visiting from Canada and picked up a ticket, why should the Parking company not accept the overseas address and chase me? (2) Would they chase AVIS under similar circumstances if an overseas customers picked up a ticket? (3) If different actions apply, where under POFA is the distinction?

Paul Cummins   31/07/2014 at 21:05

Also, BPA, what about your rogue operators claiming Keeper Liability on places that are not relevant land, such as air and sea ports. I've won against ParkingEye at POPLA three times on that basis, yet they continue to lie to their victims and I'm assisting at least one case like that right now in court. When the people who provided your seed funding for POPLA won't be bound by their own rulings, why should we believe that the industry is not just a bunch of Cowboys. ParkingLie, Enforcing Maximum Income!

Peter Trott   01/08/2014 at 09:50

"Clamping was banned, hurrah, but in truth it was the ‘threat of being clamped’ which provided landowners with effective means of control; once that has gone chaos reigns. It’s true there were some rogue wheel clampers…we didn’t like them either.If you were clamped there was only one way to get your car back – pay a very hefty fine and one much higher than a Parking Charge Notice. " • So why did the BPA permit their members to clamp? • Were the only 'rogue' clampers not BPA members? • Why are the BPA now 'happy' clamping has been banned, but weren't at the time? • Why does the BPA not control its own 'rogue' members? • Why is the BPA calling the charges 'fines' here? • How can POPLA be taken seriously when it decides that tickets are unenforceable when people point out no GPEOL, but allow them when the appellant isn't sufficiently educated to state it? • Why does the BPA moan that there should be 'standards' and that companies should be 'properly regulated' when the BPA consistently fails to properly enforce its own standards and regulate its own members? Self regulation is no regulation at all, surely? • Why doesn't the BPA force members to use standard signage (other than the 'P' logo sign gradually been rolled out). The BPA could slash confusing signage straight away by introducing proper rules. UKCPS were recently slated in court for their appalling signs. The Prankster's latest post shows another example. Why won't the BPA admit that it likes its members to install vague signage, with small text, high up on posts? This is the EASIEST way to properly regulate members, but the BPA don't bother. • What is the BPA going to do about the recent MET Parking allegations?

DBC   01/08/2014 at 12:00

Another question to be asked regards patient confidentiality in hospital car parks. The registered keeper may not know that the driver has visited the hospital until a notice to keeper drops through the door. That is a breech of patient trust. Another point is the "no return within x hours" rule. What if a second driver (unbeknown to the first driver)does return to that car park within that time? Who has broken that "rule", the first driver, the second driver, or the car?

Moray   12/11/2014 at 20:30

My daughter was caught out by parking being reduced from 2 hours to 90 minutes from her visit only a few days apart and no warnings of same. She therefore inadvertently went 20 minutes over the 90 and presented with a fine. I will not call it a charge since as a free car park it was undoubtedly a money raising scheme by PE with no possibility of anyone having lost any money by her actions. PE turned down her appeal on the grounds that the signs were there, but having read them a week before she felt no need to again. From her description they were carefully amended so that no one who expected otherwise would have there notice drawn to them. She has spent all the time in one shop and approached them. They did not realise the time reduced and would not intervene since the landowners agreement with PE meant that they had to pay the fine if they wished to have it withdrawn. Company policy was not to do so. Feeling pressurised my daughter paid up but in 2 years has never visited the shopping centre again since she regards it as theft. Therefore one gets the feeling that the BPA condone dodgy action by their members and they and DVLA turn blind eyes to everything in the name of profit for a few at a loss to the many who fall foul of the deception they perpetrate. I for one now never park on a private car park since I regard all PPC's as corrupt. One can only hope the Government will see sense and limit their powers to what is legal but one suspects that they have now become above the law and so it will not occur

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