Please note the following the letter below was written for my own particular case and does not in any way constitute advice or assistance on any other cases. What's more there has been change in the law since it was written, too. Finally, I would add a reminder that I own the copyright to this letter and I do not give permission for it to be re-used.
Update on 28/3/12: Following this letter the charge has now been cancelled.
Like many people I'd heard odd stories about parking charge notices being issued for parking on private land but until today I'd never had first hand experience. That is until I parked at The Aggi (full name: The Agricultural Inn) in Braunton, went to the church next door to help with a Lent lunch and then returned to find a demand from "Creative Parking Solutions" for £75 (pictured left - click to enlarge) for not getting a parking ticket which they say will go up to £120 if not paid within 7 days. Now I usually take the view that life's too short to take up disputes of this size if you're fortunate enough to be able to afford not to. However, a few google searches of the firm later and it was clear to me that I'm not the only one feeling a little stung by receiving such a claim from the same firm (albeit at different locations):
Drivers Angry at fines imposed in car park
Motorists slate car park firm for issuing tickets after midnight
Fight against parking fines
So, for what it's worth, I've decided that the fight is worth taking up and have replied with the following (personal details are blanked out).
Central Payment Office, Creative Parking Solutions, Suite 8, Bridge Chambers Business Centre, 1 Bridge Chambers, Barnstaple, Devon EX31 1HB.
Without prejudice, save as to costs
Re. Parking Charge Notice No. ****. Agricultural Inn, Braunton. Vehicle registration **** ***.
I was very surprised to receive a 'Parking Charge Notice' (no.****) today at The Agricultural Inn for my vehicle whose registration number is set out at the top of this letter. I dispute the charge for the reasons set out below. Please note that without prejudice to the fact that I dispute the whole basis of the claim, my main beef is with what I consider to be a disproportionate and punitive level of charge.
1. No contract
There was no contract between myself and either Creative Parking Solutions or The Agricultural Inn. I did not see the notices when I parked and at that time had no idea any charge whatsoever was required. So the requirements of forming a contract such as a meeting of minds, agreement, certainty of terms, etc were not satisfied. Had I known when I parked, I would have been happy to pay. For what it's worth, I was helping my local church (St Brannocks) which was organising a Lent Lunch at the Methodist/URC Church next to the Aggi.
If there was no contract, then at most I was guilty of a civil trespass (though this is neither admitted nor denied). If this was the case, I would be liable to damages. Given that I did no damage to the car park and furthermore that the car park was not full when I parked and I believe also when I left, I would suggest that there was therefore no loss at all.
Without prejudice to the foregoing, even if there was a contract (which is denied):
The charge that you are levying is punitive and therefore void (ie unenforceable) against me. The charge of £75 is arbitrary and in no way proportionate to any alleged breach of contract. Nor does it even equate to local council charges (which in any event are a completely different beast). This is all the more so for the additional charge of £45 which you say accrues after seven days of non-payment. This would also apply to your mention of any costs incurred through debt recovery unless it followed a court order.
The charge you are levying is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. In particular, Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "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" and 5(2) states: "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."
The charge you are levying is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person 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.”
Please take this letter to constitute a written appeal in accordance with your Notice. I also make the following points. I would be grateful for answers to all questions raised and in this respect remind you of the obligations set out in the Practice Direction on Pre-Action Conduct (http://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_pre-action_conduct).
1. Your cause of action: please make this clear. If you claim that I entered into a contract, please send me a complete breakdown of all the terms and conditions of that contract to which you say I agreed.
2. Your loss: please give me a full breakdown as to the actual loss you say was suffered by either yourselves or The Agricultural Inn.
3. The appeal: please send me a copy of the procedure which you follow, along with setting out what factors are taken into account, who is the judge or arbitrator and whether they are independent, whether you require oral submissions, whether it is governed by the Arbitration Act 1996 and any other relevant factors. In addition, please give me disclosure of any arguments being put by yourselves on this matter in the Appeal so that I might reply to any new issues which are raised. If you decide to dismiss the appeal, please send me the full reasoning in relation to each of the specific points raised in this letter.
4. Time for the appeal. Your parking charge notice says: ‘Appeals/challenges received after 7 (seven) days will not be upheld or considered unless in extreme circumkstances, and at the Company’s discretion.’ Please tell me how you say this complies with the Practice Direction on Pre-Action Conduct (above)?
5. Your 'Parking Charge Notice': what do you say is the status of this document? Do you claim it is an invoice pursuant to a contract (in other words an invoice which would generally get declared to the Inland Revenue) or does it have some other status? If it is the latter, please clarify exactly what you say it is?
6. Your status. Your Parking Charge Notice simply mentions 'Creative Parking Solutions'. Please tell me who exactly is making this charge? Are you a limited company? If so, why is this not indicated on either the Notice or your website (http://creativeparkingsolutions.co.uk) along with your company registration number? In this respect, I note that the Companies Act 2006 and the Business Names Act 1985 provides that every UK company should list on its website: its name, its company registration number, its place of registration and its registered office address. If you are not a company, then I assume this is run by an individual or individuals and I would appreciate knowing exactly who is making the claim and in what capacity. Are you VAT registered? For what it’s worth, a female member of staff in The Aggi told me to call 'Frank'. A couple of articles in the North Devon Journal quote 'Francis Millard' and 'Frank Millard' for Creative Parking Solutions. Is this or are these the person/people running Creative Parking Solutions?
7. The Agricultural Inn. A female member of staff in The Agricultural Inn suggested that running the car park had nothing to do with them. Please can you tell me who owns the car park and what is the relationship between The Agricultural Inn and yourselves? Please explain any involvement at all of The Agricultural Inn with yourselves as well as specifically with the Parking Charge Notices. I am also sending them a copy of this letter.
8. What is the relationship between ‘Creative Parking Solutions’ and Creative Parking Solutions PLC (www.creativecarpark.co.uk)? I am sending a copy of this letter to Gary Wayne who it seems is the CEO of Creative Parking Solutions PLC. [UPDATE: Gary Wayne has confirmed that the claim is not made by Creative Parking PLC and that the relevant Creative Parking Solutions is at www.creativeparkingsolutions.
9. Your Notice mentions that 'A photograph may have been taken of the vehicle for evidential value and will be stored in accordance with the Company's Data Protection procedures'. Please send me a copy of those procedures. Furthermore, pursuant to section 7 of the Data Protection Act 1998 please send me a copy of any such photo along with a copy of any other data which you hold relating to me.
10. Please send me details of any Codes by which you claim to comply and any governing body or other such organisation of which you are a member.
11. Please provide me with the name and address of your solicitors (if any) in order that I may copy them into this correspondence.
12. For the avoidance of doubt (and without suggesting that you would), please do not do the following:
a. Send me any document purporting to be from the County Court unless it is a valid Claim Form duly issued.
b. Write to me threatening to send round bailiffs without first going through the process of issuing a Claim Form and obtaining judgment.
c. Send me any standard letters either from yourselves or debt-collectors without addressing the specific points raised in this response.
d. I note that your website says: ‘Unlike some of our competitors, we maximise the deterrent value of parking charge notices by ensuring that all notices issued are pursued if necessary to the issue of a court summons.’ Please can you confirm that this is accurate and tell me how many claims you have pursued to a court hearing? Are there any Notices you have issued which have not been enforced? I note in this respect that a female member of staff in The Agricultural Inn told me yesterday that she had had a problem (albeit over a different issue apparently) with one of your parking tickets only the day before and I was given the impression that the Notice was not going to be enforced in that case.
13. If you want to make a claim , for your information you can issue online or I am sure that Barnstaple County Court would also be very happy to give you a form. My address for service is set out at the top of this letter. If you do decide to issue:
a. I reserve the right to add further arguments to my Defence.
b. Please rest assured that I will be more than happy to attend any court mediations which might be offered.
14. For your information, I have also put a copy of this correspondence on my blogs at http://timkevan.blogspot.com/search/label/parking and www.babybarista.com/tag/parking and intend to cover this case there. I am also sharing it with my two accounts on Twitter: @babybarista (with 11,000 followers) and @timkevan (with 1,000 followers) as well as my accounts on Facebook and LinkedIn.
I very much look forward to hearing from you.
Julian Turner, The Aggi, Braunton, 25 East Street, Braunton, Devon EX33 2EA
Gary Wayne, CEO, Creative Parking Solutions PLC, 33/35 Daws Lane, London NW7 4SD