"illegal" parking fines

I came across this story the other day in the Daily Mail:

Legal battle over 'illegal' car park fines at supermarkets and hospitals could spark refunds for millions of motorists

A Cambridge graduate is seeking to launch a multi-party action  against private parking firms to seek a declaration that the amounts charged are not reasonable and unenforceable.

Based on the story I think the challenge is pretty hopeless, an obiter judgement (not decisive of the main issue in the case) in Parking Eye Limited v Somerfiled Stores [2011]  is pretty fatal to the students case.  Paragraphs 414-434 deal with the relevant principles.

A very brief summation of the judges comments is that penalty charges, although expressed as penalties are not penalties but contractual conditions.  Thus if you park outside the stipulated hours (or those you have purchased) then it is a condition of the contract that that act brings with it a charge.  Thus when taken to court for non payment you are essentially being sued for breaking the contract, the contract to pay £100 (or whatever sum is specified on notices at the parking location) to park outside of the other rules in the contract.

Thus it is not right to see the excess charge as a penalty but a charge for services rendered, those services are parking services.  Essentially the small amount you actually pay (if you park within the rules) needs to be thought of as a "peppercorn rent", you pay a small fee to park where otherwise it would cost the full (eg £100) amount.  If you don't pay the small fee, or stay outside the small fee conditions, then the full sum is due.

Following this I think the student's case is pretty hopeless.  I think the problem lies in the fact that most of us (me certainly included) think that the small fee (e.g. 70p per hour) is the rate to park, it isn't in contractual terms.  The contract is is to pay £100 which is reduced to 70p per hour if we agree to abide by certain conditions.  These are standard conditions in most commercial contracts and sadly for us all means that we will have to keep paying these penalties.

To be clear though if the parking company is asking for more than the stipulated amount of penalty as written on the signs in the car park, there appears to be a very arguable case that the increase is not necessarily recoverable.  At this point the student's claim would be valid, but this is only where the amount exceeds the excess charge specified at the parking location.

There are also potentially claims in nuisance that the parking company could make, but as the article doesn't mention this nor does it appear to be an issue in this case that discussion can be left for another day.

This post should not be taken as supporting private parking companies, I have come across some crazy parking tickets recently issued by some companies that make you question what level of quality assurance they operate under!  Again an issue for another day.

Good luck to the student but I think his case is hopeless.

UPDATE

I have been in correspondence on twitter with Mr Green who is taking the case.  There are some very interesting arguments being made (which sadly don't make it into the newspaper article) and the case is listed for next February in front of the Court of Appeal.  Here is Mr Green's blog on the issue.  I do wish him well.

You can follow Mr Green on twitter to see how he gets on.