Tuesday, 29 December 2015

Can motorists take action against the British Parking Association for failing to provide a proper appeals service?

Unlawful Interference with a contract? Tort of Conspiracy to injury by unlawful means?
In a recent blog the Prankster pointed out that the BPA were trying to change the appeals process for 4,000 motorists. The BPA were trying to restrict the grounds on which the appeal was to be decided to a single point, that of the level of charge. To do this, they tried to pretend that all other points had been considered even though they had no written evidence to back this up and they knew this was not true from information provided to them by motorists. The most telling information of course, it that evidence packs have not been filed by the parking companies.
The question then arises, is there a case of Unlawful Interference with a contract, or perhaps even Tort of Conspiracy to injury by unlawful means?
If either of the above actions are taking place, there may be a claim available to any motorist awaiting the settlement of his/her appeal. There may also be a breach of the Consumer Protection from Unfair Trading Regulations 2008 for which, perhaps Trading Standards should investigate.
It is clear that often there is a contract between a parking enforcement company and a motorist when that motorist parks. What of the terms of that contract though? Do they include a term that the motorist can apply to POPLA for arbitration? Beavis indicates, quite rightly, that the terms of the Code of Practice do not form part of the initial contract but compliance with the CoP is an indication of fairness for the purposes of Consumer Protection law compliance.
Is there another contract though? Once a demand has been made for the parking charge, if it is not paid, the parking company can sue for the breach of the parking contract. It seems that what actually takes place when the demand for the parking charge is made is that the parking company indicates to the motorist that “if you wish to dispute the claim I will see you in court. However, in consideration of you agreeing to enter into an ADR arrangement to settle our dispute, and to consider the arbiter’s decision, I agree to waive my rights to pursue you via litigation”. Both parties agree to consider the arbiter’s decision - if the parking company loses it cancels the debt; if the motorist loses and fails to abide by the arbiter’s decision the parking company can sue. Thus there are three stages to this parking process and each has its own distinct legal nuances.
This argument of a new contract where arbitration is agreed is given weight by a change in the 2008 Regulations which took effect from the 1st October 2014. The Consumer Protection Amendment Regulations 2014 amended the definition in the 2008 Regulations of a “product” such that when the parking company  demands damages and agree to settle at £100 a “product” is offered to the motorist which is the purchase of “the settlement of actual or purported liabilities” (the product). That is what the 2014 Regulations now say. Thus there is a consumer contract, under the 2014 regulations when the parking company and the motorist agree on how to deal with the acquisition of the “product”.

So, the parking company and the motorist have entered into a contract in relation to a “product” and the terms of that contract are clear in relation to the agreed terms of reference for the arbiter.
The BPA is now seeking to unilaterally change the terms of that contract. Thus it is arguable that it is seeking to interfere in a contract to which it is not a party and which, on the face of it, appears to be a tortious interference with a contract and for which it could have a liability in damages.
We know from the Beavis decision that a defence at arbitration that the claim is not a genuine pre-estimate of loss is likely to fall on stony ground, especially in the case of a free car park.  However, Beavis was only concerned with the quantum of damages and not the actual liability for damages. That had already been agreed at an earlier hearing.  Thus a motorist may have any number of other valid defences to a claim e.g that the signage does not specify that there is a liability for damages; that the defendant did not own the motor vehicle and was out of the country at the time of the parking event; that the car park was visited twice.
It appears clear that, if the arbiter is to reach a decision on liability solely on the grounds of the relevancy of a GPEoL, the motorist could be prejudiced. Further, that the BPA is seeking to engineer a situation whereby the motorist will undoubtedly be found liable such that it can be argued that the BPA is deliberately trying to cause a financial loss to the motorist.
In any claim for an interference with contractual relations the claimant would need to satisfy a court that
1.       The BPA had knowledge of the contract – it is difficult to argue that it doesn’t!
2.       The BPA has offered an inducement to bring about a breach of contract. Clearly a decision based solely on GPEoL and in ignorance of other defences put forward by a motorist will have a benefit to a parking company.  The parking company’s silence suggests that it is in agreement with the BPA’s conduct such that an inducement could be found by a court.
3.       The contract was breached causing loss. At the moment there is an unwillingness by IPSA to travel the road suggested by the BPA. However, the building blocks appear to be in place to leave the BPA with a liability in tort for a loss if the terms of reference are altered. The parking enforcement company would also have a liability as it would be in breach of its contract with the motorist. That could give rise for a claim for costs against the parking enforcement company if it then proceeds to litigation. Imagine – a parking company awarded damages of £100 but told to pay the motorist costs at £19 per hour of his time (litigants in person rate) and which could easily be in excess of £200.
The motorist could be faced with litigation at which his other defences can be properly aired.  That incurs a loss in terms of time and costs. It would be best if motorists keep a spread sheet of all the time they spend on any subsequent litigation if the arbiter’s terms of references are unilaterally altered. The motorist could also plead unreasonable conduct by the parking enforcement company for going along with the BPA’s proposals
So, there may well be an arguable case for the BPA to answer.
Then we have the Consumer Protection from Unfair Trading Regulations 2008. Regulation 5 makes misleading actions unlawful. Presumably parking companies are in agreement with the conduct of the BPA and are, through the BPA, seeking to change the rules under which they agreed to proceed to ADR. Has it committed a misleading action? Perhaps the manipulation of the ADR rules to benefit the trader amounts to an aggressive practice and perhaps at a criminal level. Has the BPA considered this? Should this whole sorry saga be reported to Trading Standards?
Then there is Regulation 5(3) (b). Altering the terms of reference of the arbiter, after the arbitration process has commenced, is at odds with the Code Of Practice. Where a parking enforcement company fails to comply with the requirements of a CoP it is a breach of regulation 5(3) (b) and leaves a potential civil liability.
An interesting can of worms. Perhaps BPA it is time to stop digging?
Any motorist considering taking action against the BPA or a parking company should of course seek legal advice on their own case, as every case is different and will turn on the facts of that particular case.
Happy Parking
The Parking Prankster


  1. Interesting. Not entirely convinced there is a second contract separate from the original parking contract though. The Notice to Driver is a statutory document required by Schedule 4 of POFA 2012 (and as part of this, it must refer to available forms of ADR), it is not a contractual offer.

    1. Is the contractual offer not cusually ontained in the notice of appeal rejection though? The NTD/K is nothing to do with that.

    2. You could perhaps make that argument but to me it comes across as rather disingenuous and I fear a court would approach it in the same way.

      The issue from my point of view is that there doesn't seem to be any intention to create legal relations - the reality of the exchange is that one party is seeking to have a charge overturned by appealing to the other party. The parties' correspondence could not, in my opinion, genuinely be said to have been intended by both parties as the negotiation of contractual terms.

      I'm also not crystal clear on what consideration the motorist offers - if there is indeed a contractual offer what benefit is to be gained by the company by virtue of the motorist 'accepting' the offer by appealing to POPLA? POPLA is not binding on the motorist and therefore of no benefit to the company.

      There are a couple of other issues that spring to mind with regard to clarity of offer but I think the above means it is somewhat moot.

      It is certainly an interesting and creative angle to approach the circumstances from though.

  2. What about when the PCN is a claim for damages arising from trespass or any other tort. In these situations there is no original contract!

    1. And where again the notice to driver remains a statutory document required by schedule 4 and can hardly be said to be a contractual offer?