Why is nobody suggesting using this defence?

[RichardM]

Back in the mists of time, Pin1Onu started a very instructive thread. It may have been missed by most because of the heading, which appeared to be sympathetic to the PPC's (but was far from it in reality).

 

http://www.consumeractiongroup.co.uk/forum/parking-traffic-offences/164651-problems-ppcs-face.html

 

It was suggested at the time that it should become a sticky, because of the legislative references. Sadly it didn't happen.

 

In it, there appeared a little gem of advice, taken from a Trading Standards Advice Leaflet to Businesses which appears to provide an absolute defence in court against any PPC that tries to sue for breach of contract in an otherwise free car park. This is a quote from that leaflet.

 

"How is the contract made?

 

When a trader displays or advertises goods or services, he/she is giving consumers what is referred to as an 'invitation to treat'. The consumer will then make an offer to buy the goods or services, and at this point the trader is under no obligation to accept the offer. A contract is made if and when the trader accepts the offer.

 

Sometimes, the process works the other way round, i.e. the trader makes an offer to the consumer, and a contract is made when the consumer accepts the offer.

 

Under the contract, the consumer will agree to pay the trader a sum of money, and/or to do something else in return for the goods or services the trader supplies. This commitment is known as the 'consideration' in the contract. If there is no consideration, i.e. if a trader offers to supply goods or services completely free of any charge or other obligation, there is no contract at all."

 

(Emboldenment is mine for emphasis)

 

We all advise those who come on here that the PPC documents are not fines but invoices, and that they can only take you to court for a breach of contract. This is saying, most importantly, that if the parking was provided free in the first place, you cannot be in breach of contract, since a contract could not exist without one party paying the other for the service in the first place.

 

Should this not be a starting point for anyone faced with the ever growing mountain of threatening correspondence from those setting up shop in many out of town retail parks etc, looking to make a fast buck.

 

More to the point, would the likes of CPS have been successful in any of their so called wins if this had been used as a first point of defence.

 

No contract = no breach = no win.

 

This is a link to the TS advice leaflet. It's worth reading if only for some of the examples of what is not acceptable in contracts. try and spot how many breaches of contract law the PPC's commit each time they send out one of their documents (even if a contract does exist).

 

Trading Standards Central - Business Guidance Leaflet (for England, Wales and Northern Ireland)

Trading Standards Central - Business Guidance Leaflet (for Scotland)

Edited December 22, 2008 by RichardM
Added link for relevent countries.

[Vermillion]

Well, you haven't had a response yet. Have visited TS site and bookmarked your recommendation...just in case.

Cheers

[lamma]

I agree - was this not essentially the basis for Susan Parry case. Excel didn't own the land therefor no loss (or contract) was possible. In my experience the PPCs do NOT have landowner rights in the vast majority of cases - the actual landowner would be a fool to give it to them.

[RichardM]

Something else that should be picked on and reported every possible opportunity, which is used by every one of the PPC's and as I see it, a contravention of the Unfair terms in Consumer Contracts Regs 1999.

 

Every PPC tells you that you can appeal, but you have to appeal to them. Once that appeal is played out (and usually denied) there is no further recourse to a third party arbitrator. You're told to pay up or the debt collectors are called.

 

------------------------------------------------------------

 

The Unfair Terms in Consumer Contracts Regulations 1999

 

These Regulations, which only apply to consumer contracts, say that a consumer is not bound by a standard term in a contract with a trader if that term is unfair. Examples of unfair terms would include the following:

 

Giving the trader the right of final decision in a dispute.

 

------------------------------------------------------------

 

In this case, it is the PPC's policing car parks where a fee is charged who are in contravention, (if it's free there can't be a contract) since every one of them insist that they have the final say in any dispute (which is effectively what an appeal creates).

Edited December 23, 2008 by RichardM

[angela-27]

you make a very peritinent and valid point - ie can someone be 'fined' in this way if a contract has not been entered into. i think sometimes on here people make too much emphasis on whether not the person in question was driving the vehicle. i think sometimes the point comes across that if you were the driver, this makes you liable. i guess what you are saying is that if you were the driver it is still highly debatable whether a contract was entered into, and that if the ppc cannot prove this in court, they have no case?

[lamma]

they will claim the signs - no matter how good or bad they are. but as this thread has shown there is much much more to it than that. Why do think certain PPC cases are so carefully chosen, often after 'trapping' the victim.

[RichardM]

My understanding (limited as it is in legal fields) is that the signs are immaterial. If a trader is offering a service but is not charging for it, there cannot be a contract. It makes not one iota of difference that he has a sign up saying by parking here you are entering into a contact. Most of these signs fall foul of the UTCCR regs anyway.

 

The only way that a trader (in this case the PPC) can imply a contract is by charging an initial fee for parking. If a store trader offers free parking, then they may get around it by stating that parking is free, conditional on you using the store (but not exclusively that store and no other). However, in that case, if a person chooses not to use the store and his presence does not prevent any other person from availing themselves of the facility, they cannot claim anything other than reasonable costs, which cannot include costs incurred chasing alledged losses under contract which have not been suffered..

[lamma]

agreed - but there is the 'other consideration'. hence they will claim the signs (but they fall over with no landowner rights in the vast majority of cases). and of course when the car park is for a retail park and not just one outlet it gets more complicated again - for the PPCs. And the signs offering parking, as opposed to the 'contract' sign, are an invitation. As for the costs the PPCs have a well worn habit of claiming costs when they can only claim losses. their cost of doing business is their cost of doing business. e.g for an attended site the ticketer has to be paid whether they issue invoices or not. Also I have yet to see a set of paperwork from a PPC that is not unlawful, and have seen many that are illegal.

[RichardM]

The signs themselves may be an invitation, but unless they specify an obligation on the part of the consumer in return for the provided service, e.g. parking is free provided you visit my store and spend £10, then there is still no contract.

 

My reading of it is that time limits, where to park etc only becomes an issue once a contract has been offered and accepted as they are terms/limitations of the contract, not the contract itself.

[lamma]

I agree. am just saying what the PPCs will claim.