For a number of years there has been a myth across Scotland that parking charges issued in respect of private car parks are not enforceable.
It has been widely reported that should you receive such a charge from a private company that you should ignore it since there is nothing that can be done to enforce any payment. My colleague Debbie has commented on the decision in Vehicle Control Services Limited v Carly Mackie, which acted as a stark warning to motorists of the consequences of ignoring parking charges. Ms Mackie was found by the courts to be liable for payment of £24,500 to Vehicle Control Services as they had signs up which clearly advised of the consequence of parking in the car park without a permit. By continually choosing to park in the car park, Ms Mackie accepted the contract and its terms and conditions. By parking in the area without a permit, Ms Mackie breached those terms and conditions and, in doing so, breached the contract.
More recently, it has been reported that a separate loophole may exist.
Registered keepers of cars are attempting to avoid paying charges from private car park operators by refusing to name the person who was driving their car at the time that it was left in the car park. There are suggestions that doing this makes the private car park operators give up their attempts at recovering payment as they do not know who to recover payment from. But is it as simple as that, and is a suggestion by someone to ignore the charges as they're unenforceable legally correct? In short, no.
At the moment there is no written piece of law in Scotland dealing with private parking charges and they are instead based on the law of contract. By parking in a private car park that has signs detailing the terms and conditions of parking there, motorists accept the terms and conditions and enter into a contract with the car park operator. In 2012 consideration was given in England in Wales to situations where someone claims to not have been the driver of their vehicle at the time it was using the private car park. The outcome was that a system of "keeper liability" was introduced. This allows car park operators to pursue the registered keeper of a vehicle for the charges, regardless of who was driving the car at the time it was parked.
With the recent publication of the Parking (Code of Practice) Act, it appears that this is now taking shape in Scotland too. The Act has become law across the whole of the UK and it imposes a code of practice on private parking. The code itself is still to be drafted but its intention is to set a higher standard across the sector. It is likely to create obligations on both private car park operators as well as the motorists who use private car parks.
As a result of the Act, the Scottish Government is understood to be introducing the keeper liability system as part of the Transport (Scotland) Bill which is currently progressing through Parliament. The Bill is presently at Stage 1 in the Scottish Parliament, which means that the general principles of the Bill are still under consideration and there will be considerably more detailed discussion prior to the Bill actually becoming law. A spokesperson for the Scottish Government has recently said “We are working with the private parking industry and the UK Government to ensure that Scotland is fully represented in the development of a proposed new code of practice. We are also considering the issue of extending keeper liability to private parking and what the most appropriate legislative vehicle would be for its introduction.”
This all suggests that it will only be a matter of time before the system of keeper liability is replicated in the law in Scotland. Such a system will mean that owners of a vehicle will be liable for the charges which are issued by car park operators if they fail to provide the details for the person who was using their car. Until then, motorists should be aware that it isn’t legally correct to say that by failing to name the driver of the car that the registered keeper renders the car park operator incapable of any form of further action. There may be other steps which the car park operator can take to recover charges. For the time being car park operators should continue to ensure (i) they have clear signage about their charges; (ii) that any meter, or payment method, they have on site is maintained; and (iii) that they have systems in place to ensure that they can quickly contact drivers who do not pay.
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