Wednesday, 8 October 2014

BPA drop requirement for charge to be a genuine pre-estimate of loss

The British Parking Association advisory panel have recommended changes to the AOS code of practice which remove requirements for parking charges to be a genuine pre-estimate of loss. Instead, the charges must be 'commercially justified'. This is a dangerous change which would essentially allow operators to charge what they would like, removing all checks and balances, because this phrase can be used to mean anything.

The change is scheduled for the August 2014 release of the code of practice, although this has not yet been released. The change would not be retrospective, so previous tickets must still be a genuine-pre-estimate of loss.

Robert Toft of the DVLA was present at the meeting, which took place at the Institution of Highways & Transportation on 17th July. It is not known whether the DVLA objected to the change.

Jo Abbott of the RAC were also there. It is not known whether the RAC objected to the change. Members of the RAC may wish to enquire what the RAC view is.

Other attendees were Gary Brierly (Debt Recovery Plus), Grahame Rose (CP Plus), Philip Hammer (Cambridgeshire County Council), Jo Abbott (RAC), John McArdie (BPA), Simon Renshaw-Smith (Excel), Spencer Palmer (London Councils), Patrick Troy (BPA), Kelvin Reynolds (BPA), Jane Hack (BPA), Steve Clark (BPA) and Dave Smith (BPA).

The change may be premature. The change has been introduced following HHJ Moloney's judgment in the ParkingEye v Beavis case. However this is being appealed and the appeal is due to be held in February 2015.

If parking companies change their charging model in accordance with this proposed COP change, and Mr Beavis wins his appeal then the commercial justification argument for parking charges would appear to fly out of the window. The COP would be at odds with the law and the BPA will be unable to introduce this change. The BPA's time would be better spent dealing with those who do not comply with the COP rather than trying to pre-judge Judicial decisions and introducing terms and conditions that may be at odds with the law

Happy Parking

The Parking Prankster


  1. GPEOL wins may dry up at POPLA if they apply a revised Code of Practice.

    However, this will just force them to start considering the other appeal principles that they usually ignore (having allowed the appeal on GPEOL)
    such as
    lack of proprietary interest
    lack of contract
    breach of POFA
    poor signage
    ANPR technology faults

    So this has a long to go yet. I also think it flies in the face of growing public awareness and disquiet. How long until a major political party commits to tackling the abuse in their manifesto?

    1. wrt ANPR technology faults...there has already been a single point appeal upheld at POPLA on this very matter.

  2. The PE case is based on the fact that they pay to run the site so the charge is 'commercially justified'.

    Not all PPCs pay to run sites, so in any POPLA appeal, you need to put the PPC to strict proof that they pay to run the site. How many will be willing to do that?

    1. I've seen this stated many times, can someone please point me to where in the judgment it is stated that the charges are commercially justified because PE pay to run the site?

      On my reading of the judgment the judge ruled that the charges were commercially justified because in this instance a policy of deterrence was necessary to secure performance of the contract, unlike most civil cases where compensation for damages is usually sufficient to secure said performance.

      Nowhere does the judgment appear to stated that the ruling on commercial justification was in any way related to the fiscal arrangements between PE and their client. These arrangements were discussed with regards to whether PE were principal or agent, a different point of law and not the one under appeal.

    2. I believe you are correct. And this is actually why the decision of Moloney is completely contrary to the Court of Appeal decisions on which he is trying to base it on. Because the CoA has stated very clearly that a charge can only be commercially justified if its dominant purpose is not to be a deterrent. Moloney is trying to completely turn this around and say that if a charge needs to be there as the sole purpose of a deterrent then it is also commercially justified. Which is plain wrong.

  3. It also flies in the face of hundreds of years of contract law.

  4. Commercially justifiable means anything you want it to mean. How can an organisation like the BPA change the Law with regard to contract - with no reference either to the courts or parliament?

  5. I said that gpeol would go at some stage, BPA members were losing to much on this, so they move the goal posts with the full approval of the dvla and the rac as they are basically there to some kind of legitimacy to this joke. Popla will stop considering this as they are just the lackeys of the BPA!

    Yet again it's proven that this is all about income generation and they have changed this because parking eye demanded this, the BPA like the IPC are a corrupt bunch of crooks and are determined to rip off motorists!

  6. Do we yet know if this will actually shift POPLA's stance on GPEOL? Up to now they seem to be basing their decisions re: GPEOL on the basis that it doesn't hold up under contract law. Changing an industry body's Code of Practice won't change centuries of contract law, so is there a chance that POPLA will continue as it does now with regard to this appeal point?

  7. POPLA Guidance FAQ's:
    Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver.

  8. This was Steve Clark's email to me about this:

    · You are quite right Version 5 of the Code will be published shortly and references to GPEOL will be removed from Clause 19.5.

    · The maximum recommended level will remain at £100 – you will appreciate that prevailing legislation does not allow us to set a maximum figure much as we wish we could. Many locations operate a charge much lower than £100.

    · The decisions at POPLA are based on the evidence submitted by both parties and the relevant/prevailing legislation, not what our Code contains. The Lead Adjudicator and his Assessors are fiercely independent and I would not expect this Code change to alter how they view GPEOL.

    · My position on GPEOL is that if a motorist is unhappy with the Terms & Conditions of any parking location including any sum for breach of the ‘parking contract’, they should deal with it at the point of parking, namely by locating their car somewhere else. The amount of the parking charge should not be something that they find unreasonable after they have breached the specified Terms & Conditions and which they seek to use as a means of getting off.

    1. I am not sure that the adjudicators will retain the current stance on GPEOL if it is eradicated from the code of conduct...

  9. Why are the BPA Ltd still banging on about that £100 figure? We all know that amount was chosen just to imitate council parking tickets and has nothing to do with the actual loss caused to the land owner.

    As for not parking if you don't agree with the T&Cs. I imagine that many shops won't be happy with this, as it means loss of customers. As for "and which they seek to use as a means of getting off." that's just an insult to many motorists. They don't want to "get off". All they want is not to be ripped off. Typical stupid letter from Steve Clark.