Motorists could be in line for tens of millions of pounds of refunds after hundreds of thousands of drivers could have been illegally penalised for parking too long on private land, the RAC Foundation has claimed.
Drivers who stay longer than the time they have paid for in places like supermarkets have received tickets that demand payments of up to £100. Legal advice written for the RAC by John de Waal QC, argues that this is likely to be several times more than compensation for a genuine loss and so would not be enforceable by the courts.
The Protection of Freedoms Act 2012 has already banned clamping, towing, blocking-in or immobilising a vehicle without lawful authority on private land, after concerns were raised about abuses by rogue clamping firms.
However the RAC Foundation has argued that a ‘barely regulated’ system of penalty charges has taken its place, levying huge charges on drivers out of all proportion to the losses suffered.
Parking on private land is covered by contract law and is something of a grey area according to groups such as the British Parking Association (BPA), which represents private parking companies.
The RAC has said a case coming to the Court of Appeal next week, regarding a motorist who is contesting an £85 charge, could establish a precedent in law if the motorist wins.
Professor Stephen Glaister, director of the RAC Foundation, said: ‘We would like to see this legal argument tested in a higher court so that a binding precedent is set. At the same time we would like the government to do what it should have done at the outset and set out what are reasonable charges.
‘If the courts agree with Mr de Waal then millions of drivers could be in line for a refund. We estimate that in 2013 alone drivers might have been overcharged by some £100m.
‘Some parking operators have a business model which means they only make a profit if members of the public overstay and can be charged an excessive penalty. We think this model, which invites zealous enforcement, is unfair and not fully understood by the public.
‘Ministers thought that the ban on clamping would end parking problems on private land. As we warned at the time, they were wrong. They allowed a system of ticketing to emerge which is barely regulated. In effect drivers have been short changed.’
Labour’s shadow transport secretary Michael Dugher has also weighed into the debate, stating his party 'will make sure that motorists are treated fairly and are able to have confidence that they will not be ripped off through astronomical and unfair fines. This Tory-led Government needs to get a grip and start standing up for motorists'.
Mr de Waal argues that European consumer legislation requires contracts to be fair and so ‘early payment discounts’, which put pressure on the public to pay up quickly, or face a higher charge, are in fact unlawful because they constitute a ‘price escalation clause’. He also said poor signage means charges could also be challenged on the grounds of unfairness.
The BPA does have a code of conduct of its website and has invited members of the public to get in contact if they feel parking companies are violating the code.
Patrick Troy, chief executive of the BPA said: ‘The genuine pre-estimate of loss argument has been a bone of contention for many years and so we look forward to the Court of Appeal reaching a decision.’
The Parking on Private Land Appeals (POPLA) - an independent appeals service for parking tickets issued on private land – is also available to the public to address instances of perceived unfairness.
A Department for Transport spokeswoman told the BBC: ‘Parking in private car parks means that motorists enter a contract with the landowner and the courts must decide if the level of a parking fine is justified should there be a dispute.’
