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Ouch! - At £24,500 an expensive Parking Ticket for Carly Mackie of Dundee

05 April 2017 Written by Yuill & Kyle Solicitors Category: Blog

Regular readers may remember the Cavendish Square Parking Litigation (Cavendish Square Holding BV [2015] UKSC 67)

ParkingEye charged £85 on an individual, Mr Beavis, for overstaying a two-hour permitted period of free parking at a retail park in Chelmsford.  The Court of Appeal (in agreement with the High Court decision) rejected an argument that the charge was penal.

Although it was not a “genuine pre-estimate of loss”, and was aimed at deterring motorists staying beyond the permitted period, it was not extravagant or unconscionable and was justifiable both commercially and by other factors.  The case was appealed to Supreme court.  A distillation of their over 100 page decision is:

  • The Supreme Court declined to abolish the doctrine of penalties, saying that it was still necessary to protect parties from oppression in contracts which are not regulated in any other way.  It is a long standing rule and similar rules exist in all other developed systems of law.
  • The rules on penalties apply only to the agreed consequences of a breach of contract, not to the fairness of parties’ primary obligations. 
  • Concepts of deterrence and genuine pre-estimates of loss are not helpful.  The “true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation”.
  • The law will not generally uphold a contract remedy where the adverse impact of that remedy significantly exceeds the innocent party’s legitimate interest. 

Vehicle Control Services v Carly Mackie

Carly Mackie thought that she was entitled to park in front of her mother’s garage in Dundee because the property belonged to her family.  She continued to park there despite ignoring hundreds of tickets given to her.  She was eventually taken to court by vehicle control and run up the enormous bill.

In a written judgment by Sheriff George Way of Dundee Sheriff Court it was held that “she knew perfectly well what the signs displayed and that she was parking in breach of the conditions …  She stated (effectively a protest position) that the parking charges were illegal and unenforceable in Scotland and that she would park where she liked as her father’s guest …  The defender is not the tenant.  The defender’s car was an additional burden on the parking facilities and she was the same as any other interloper … She was offered a permit by the factors (at a reasonable charge of £40 per month) but she refused on principle. “

Comment

Parking ‘fines’ in Scotland could well be considered a penalty if deemed by a court to be exorbitant.  However where the ticket is, in fact, not a ‘fine’ but a contractually agreed amount to be paid by the vehicle’s driver then it is likely the court will enforce the contract.  Obviously in the Sheriff’s opinion the parking charges arose from a ‘valid contract’ and she was liable for them.

By parking in a restricted private area, a motorist can be considered to be agreeing to a contract without the landowner or car park operator, provided that there is adequate signage warning of the charge.  This should be contrasted with ‘Penalty Charge Notices’ which are issued by council traffic wardens and the police which are regulated by statute.

In the Sheriff’s opinion Ms Maclure had ‘entirely misdirected herself” in both the law and the ‘contractual chain’ in the case and that she was “bound by that contract and incurred the parking charge on each occasion.  The Sheriff had little sympathy for her … “She refused to pay the parking charges not because she was unaware of the parking scheme or the terms of the notices or the financial consequences of parking at any time, but because she did not believe that the charges were valid in law”. 

Reaction to the Decision

It has been reported in the press that Citizens Advice Scotland’s policy manager Keith Dryburgh said “We have seen a big increase in the numbers of people who have received unfair or disproportionate charges from private parking companies.

“That is why we launched our It’s Not Fine campaign, to set out what peoples’ rights are, and encourage them to challenge any charges they believe have been applied unfairly.”

Conservative MSP Murdo Fraser is drafting a Private Member’s Bill – which he says has the backing of Transport Minister Humza Yousaf – to crack down on the “private parking cowboys”.

Whilst nobody is suggesting that vehicle control services are nothing other than entirely professional Fraser has said “It’s time to bring in clearer and tighter regulations that ensure that parking is fair and transparent”.

Perhaps if the private sector is regulated it will bring clarity thus ensuring that parking charges and the way in which they are enforced are fair and reasonable.  

Questions?

For more information please email Stephen Cowan on This email address is being protected from spambots. You need JavaScript enabled to view it.  or call him on 0141 572 4251 and he'll be happy to help

 

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