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Private Clamping Banned 1st October...but there's a big catch...


Mac
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I'm sure a lot of you are aware that private wheel clamping is to be banned on the 1st October...however the legislation does come with a few gotchyas....including:

(2)The notice must—

warn the keeper that if, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given— .

(i)the amount of the unpaid parking charges (as specified under paragraph © or (d)) has not been paid in full, and .

(ii)the creditor does not know both the name of the driver and a current address for service for the driver, .

the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;

...and probably more significantly:
4(1)The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle.

Up to now private invoices or parking charges are practically unenforceable as you have to prove who parked the car as the company's contract is with them - it is NOT with the registered owner/keeper. The registered keeper has no legal requirement to disclose who was driving, so for the most part you could throw away such tickets.

Not any more however.

It's arguable that the charges have to be reasonable and reflect incurred losses though - what you can't have is a punitive contract and expect to be enforceable. The only people who can are ones that are state backed - so police/councils etc. Will be interesting to see what they deem as reasonable charges on that front.

....anyways, could be an interesting few months +++

Edited by Mac
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I've not done a massive amount of reading on this but my initial research suggests the obstacles that prevented these people from pursuing people through the courts still apply and it won't be the disaster you may think it is. In fact, the new legislation places requirements on registered operators to go through an appeal process which actually costs them money. So whereas the advice used to be ignore all private tickets, it's now appeal, then ignore.

But like I said, that's the impression I'm getting from 30 minutes of reading other forums.

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Yes they can direct their efforts at the registered keeper (however I believe they are still obliged to attempt to identify the actual driver) , but the tactics they employ to obtain money will still be the same (invoices, letters from their 'solicitors' and 'debt collectors') and the defence against the ticket will still be the same, with the added benefit of an appeal process which costs the defendant nothing afaik.

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The defense is absolutely not the same? The RO is now responsible for the fees, not the driver? It's an absolutely massive change. There is now no reason why they will not pursue these charges. All they need to do is prove that the car is parked in a way that breaks the contract of parking, that's it. Then they can go after the RO.

That's completely different to the was previous to the 1st October?

Why wouldn't you pursue it? Ask for RO, send bill, doesn't respond, issue CCJ on t'internet. It's a doddle to do.

Edited by Mac
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They will still need to establish that there was an enforceable contract and what were the terms of that contract. Difficult if it's the first time you're suing someone. They will also need to show that the damages requested are reasonable.

Personally, if I get a letter I'll be replying to deny* that I saw any parking regulations limiting the manner in which I could park there, and offering them a reasonable payment for the time spent parking there in order to resolve their alleged loss. £1.50 should do it.

*which will of course be true, because if I did see any then I wouldn't have breached them +++

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I don't believe this will result in a flood of county court cases as these companies still have to prove a contract, like patently states, and that the damages they are seeking are reasonable. They had to do that before, against the driver; now, they still have to do the same but they can pursue the registered keeper, if they get no joy with locating the driver. It's the same, but different. :)

Imagine I get a ticket in a B&Q car park for not parking within the white lines of a parking bay. They take a chance and take me to court to enforce a 'fine' of £xxx (hundred's of pounds - I have read reports that some parking companies will now charge 3 figure sums for tickets as they used to do with clamping). I believe a Magistrate will laugh them out of court. The damages bear no resemblance to their losses. The car park was free, no one else was prevented from parking (shopping) and all I did was park 1 inch too far to the right!

Similar scenario, but I stayed 30 minutes over the allowed 2 hrs. Again, their losses are minimal (maybe a couple of quid, like patently suggests) and that's all they'd get. They may have won a judgement, which if I remember correctly does not set a precedent as it's only a Magistrates court, but they've lost big style as it's still a ruling that their 'fines' are unenforceable as-is and that would get into the press and the word would spread. They won't want to risk that. They'll continue to rely on scaring people into paying 'fines', as they did before the new legislation.

In each scenario, it's cost them to go through the appeal process (I've read it's about £30) and then again to commence court proceeding (what's that, another £40 or sumfin?) and all they get is their costs and a couple of quid damages. It'll be a brave parking company to be the first to try that on!

Now, think about the bad press the above would cause and who would get some of the flak - the retailers!

Their choice of weapon might change and whom to aim it at, but they're still relying on scaring people with official looking 'fines' and letters from legal companies and debt collectors (often the same people). They'll still get income from the people that either don't know better, or are too frightened to fight back. They won't want to risk that by court cases.

Edited by Sponge
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if they get no joy with locating the driver. It's the same, but different.

They get RO details exactly the same way they can today - just by asking the DVLA. The original costs won't be much, as quite rightly they'll need to demonstrate their cost/loss, but it'd be easy to ramp up charges through enforcement much the same way that Bailiffs do.

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be easy to ramp up charges through enforcement much the same way that Bailiffs do.

Hence the importance of offering them the list parking revenue early in the process. Then you claim that everything after that was unnecessary.

Or insist on the small claims track where they shouldn't be able to claim legal costs.

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