This type of ticketing has never been legally supported and there is plenty of case law around to support the view that the lease has primacy of contract, and that this cannot be unilaterally overridden. So if your lease allows you to park without conditions, then a parking company cannot require you to display a permit to park.
There is now a persuasive judgment regarding Overstone Park in Cardiff. DDJ Metcalf has a number of pertinent comments in his judgment of the case of Link Parking v Parkinson, including this one
This parking space does not fall within the common parts of the property; it is the property of Mrs Parkinson, and on that basis I cannot see how the management company can interfere with her enjoyment of it, or charge her for its usage via a parking penalty or otherwise. It seems to me that to do so would have required a variation of the original lease and I have not seen such a variation.His full judgment, courtesy of Ms Parkinson, is available on the Prankster's web site.
This is a persuasive judgment supporting the view that all tickets issued by Link to residents parking in their own spaces are not valid.
Getting your money back
If you have been issued a parking charge, and Link got your data from the DVLA, then it is likely they committed a data protection breach by obtaining keeper data for land where they had no rights to issue tickets. The case of VCS v Phillip establishes that £250 is an amount which court will award. This is a minimum. Courts have awarded up to £750.
If you have paid a parking charge then you can attempt to get your money back from Link.
If you have been taken to court and lost because you did not use the right legal arguments, then it might be too late to appeal the judgment - you usually only have 21 days, and you might not be able to introduce new arguments anyway - the appeal will normally only be allowed on points raised in the initial hearing. However, the data protection breach still applies, so you may be able to 'balance the books' by claiming for the data protection breach. If you are still in time, and raised the point that you were a resident then you may be able to appeal.
With all of these issues you should follow the correct legal procedures. First issue a letter before claim, and then if there is no reply, or you cannot come to an agreement, follow up with an actual claim.
If the amount is large, or if you do not fully understand this, you should get legal advice on the course of action to take.
It is important to note that this only applies to parking in your own space. Different arguments apply to similar situations and you may not be able to claim for all of these .This includes;
- Parking with permission in someone else's space
- Parking without permission in someone else's space
- Parking in communal areas
- Parking in visitor spaces
These charges may or may not be valid, and would need an examination of the all facts.
Sample letter before claim for parking in your own space
Dear Link Parking
Letter Before Claim
In 2016 you issued me with a number of parking charges for parking in my own space without displaying a ticket.
[details here]
My existing lease gave me full permission to park, and you had no rights to unilaterally override that. There is a large body of case law which establishes this. In Saeed v Plustrade Ltd [2001] EWCA Civ 2011 it was found the managing agent could not reduce the amount of parking spaces available to residents. There are a number of persuasive judgments in the lower courts. In Jopson v Homeguard [2016] B9GF0A9E, on appeal it was found that the parking company could not override the tenant's right to temporarily stop near the building entrance for loading/unloading. In Pace v Mr N [2016] C6GF14F0 [2016] it was found that the parking company could not override the tenant's right to park by requiring a permit to park. In Pace v Mr N [2016] C7GF51J1, PACE came back again, this time claiming that clause 6.3 of the lease allowed the terms of the lease to be varied. The judge rules that this clause required a month's notice to be given, and as this had not occurred, the point was moot. The claim, and 7 others relying on this, were dismissed.
Of particular interest is Link Parking v Ms Parkinson C7GF50J7 [2016], which concerns this building, Overstone Court. The judge examined the lease and found that the parking company could not override the tenant's right to park by requiring a permit to park.
You obtained my personal details from the DVLA for the purpose of pursuing a parking charge, However, there was never any possibility this charge could be valid. Only I have the right to enforce parking regulations on my own space.
My name and address information (together with other information) is classified as personal data within the meaning of s1(1) of the Data Protections Act (DPA). As there is no possibility that any monies were owed to you by myself, then attempting to charge a parking charge is caused harassment and personal distress to myself, is using it in ways which violate principles 1 and 2 of the DPA, and s13 of the DPA provides for financial compensation for this.
The case of Vidal-Hall v Google Inc [2014] EWHC 13 (QB) provides authority that misuse of personal data is a tort and that damages may be non-pecuniary. The case of Halliday v Creation Consumer Finance Ltd [2013] All ER (D) 199 provides authority that a reasonable sum for compensation would be £750.
The case of VCS v Phillip, claim number C9DP2D6C Liverpool 07/12/2016, while not binding, is persuasive that a DPA breach occurs when a parking charge is not legitimately pursued, and that a sum of at least £250 is compensation for pursuing a purported parking charge when there is no reasonable prospect of success.
I am therefore claiming £250 from yourself for misuse of my personal data under s13 of the DPA.
In addition, I paid the parking charge of [£100] and I therefore require immediate repayment of that amount.
The total payable is [£350].
You have 14 days to remit this amount to myself. After that time I may file a claim without further correspondence.
The rules on pre-action conduct are here
I believe I have provided you with all necessary information.
I am willing to consider alternative dispute resolution and suggest the Consumer Ombudsman.
Link Parking have a large number of residential sites. While you may be able to claim back any monies paid and for data protection breaches at these sites, each case will turn on the facts, which will need an examination of the lease.
You can claim back for up to six years. However you should bear in mind that if there are too many valid claims, Link Parking may not have enough money to pay back all claimants.
Happy Parking
The Parking Prankster
This is not 'case law'. Case law is a decision from the High Court or above, not the county court.
ReplyDeletePP - this is a bit confusing. First I know there was a Lnk Parking residential case in Wrexham, which you blogged about. Overstone Court is in Cardiff, probably 150 miles away from Wrexham. The transcript covers the movement of Mrs P in and around Cardiff and Swansea, yet the case was heard in the Wrexham County Court, which doesn't appear to be the right place at all to be dealing with an issue arising in Cardiff.
ReplyDeleteAlso, I thought that there was to be some form of 'test case' for Overstone Court, which you have also blogged on, yet while the transcript refers to Overstone Court, it doesn't appear to be a test case.
Am I missing something?
Overstone Court was the defendants second residence, not the primary, which was presumably in the Wrexham area. Hence the defenant had the case heard in the court most convenient to herself. (para 5 of the transcript)
DeleteYep, got it now. My blonde moment occurred at the point the original blog was published which I read at the time as a Link Parking case relating to a residence actually in Wrexham.
DeleteThen there was the blog about the (unrelated) test case for Overstone Court, put 2 and 2 together and bingo, 947 - doh! Sorry PP and thanks RM.
Off to sit in a darkened room - it's been a long day LOL
@unknown at 09:36, you are incorrect as it is 'case law', it was heard a by a court of England and Wale, though I think what you appear to be suggesting is that CC cases are not binding and so another CC case could depart from this decision if a sufficient argument arises.
ReplyDeleteJust to be clear, s13 is the remedy for a breach of data protection, and to be entitled to such remedy, you would need to plead which principles the parking company has breached - presumably this would be Principle 1 and/or Principle 2.
You are flat wrong.
Deletecase law
n. reported decisions of appeals courts and other courts which make new interpretations of the law and, therefore, can be cited as precedents. These interpretations are distinguished from "statutory law" which is the statutes and codes (laws) enacted by legislative bodies, "regulatory law" which is regulations required by agencies based on statutes, and in some states, the Common Law, which is the generally accepted law carried down from England. The rulings in trials and hearings which are not appealed and not reported are not case law and, therefore, not precedent or new interpretations. Law students principally study case law to understand the application of law to facts and learn the courts' subsequent interpretations of statutes. (See: case system, precedent)
I am not flat wrong, case law encompasses a dispute between two parties which is then heard in a court of law, county court and upwards. A precedent however can mean two things: (1) binding precedent which is a decision made by a superior court and binding upon all lower courts and then (2) persuasive precedent such as those made at county court level.
DeleteThe fact that your definition from a dictionary website refers to precedent confirms the position above. If a judge asks whether or not a party is aware of any case law which supports their position, the party may refer to any case that has been brought before the courts including county court decisions and not simply superior court cases. Any reliance on CC cases are merely persuasive at best.
a county court decision is not case law because it is not law, law is precedent and creates the common law.
DeleteAre you saying that a decision from 3 magistrates or a parking adj.is case law?
Well you seem to be changing the goalposts a bit by saying case law then referring to law and to my mind, are not one and the same. As I've said above, precedent can be two things and technically, the Court of Appeal and House of Lords are not bound by their decisions, so you could argue that they are actually persuasive precedent.
ReplyDeleteA CC decision is case law as the court's decision, subject to any appeal will be binding on the parties which can be legally enforced should either one not comply with the order. The meaning of case law does not solely relate to binding precedents
*Sorry, I meant Supreme Court not House of Lords
ReplyDeleteOne correction on this. The Court of Appeal is bound by its own decisions unless there are two conflicting earlier CA decisions, or in the earlier CA precedent relevant binding case law was not brought to the attention of the court, see Young v Bristol Aeroplane 1944.
ReplyDeleteOther exceptions are where there are rulings of the CJEU, which are binding, or the ECHR, which are persuasive, or there is settled practice at the EPO, Arrow v Merck (which I was involved in).
Yes I agree
DeleteOops, meant to say Actavis v Merck. (Arrow v Merck on the brain at the moment.)
ReplyDeleteHey,
ReplyDeleteThank you for sharing such an amazing and informative post. Really enjoyed reading it. :)
Apu
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