Murdo Fraser MSP has brought forward a “proposal for a Bill to regulate the provision of, and charging for, privately-operated car parking in Scotland” to Holyrood.
I have blogged and written about this topic before. As such, I offered a few thoughts on his consultation, by way of the electronic survey tool provided. That consultation offers a series of questions and I put the bulk of my response in my answer to question 1. This asked: Do you think legislation is needed to govern the operation of privately-operated car parks in Scotland?
Whilst aspects of the law relating to parking a vehicle on another person’s land have been clarified by recent case law and related commentary, it does seem fair to raise a question about whether certain “fines” (that is to say, payments in respect of breaches of contract that have been properly entered into on appropriately advertised terms) can reach levels that would seem high to most members of the public but either:
- do not quite meet the threshold to be characterised as a penalty (and accordingly such sums could not be challenged in court); or
- more importantly, are set at a level that could in fact be a penalty, but challenging such sums in court will not seem like an attractive proposition.
Situation 1) involves a judgement call about the specific situation being consulted on, and introducing a specific level for parking transgressions or perhaps introducing a cap in relation to prevent (repeat) penalties being ratcheted up over time. Whilst I recognise landowners and anyone appointed by owners to manage parking have interests that can and should be recognised, I welcome this opportunity to have a discussion about this. For my part, I make no firm recommendation as to what any level or cap might be and I recognise any figure might be viewed as arbitrary; others with industry involvement and users of such services will be able to make representations about specific figures better than I can. That being said, I would highlight the clear benefit of having *any* limit could play a role in preventing the sort of abuse that I describe in situation 2).
Moving to that situation 2) specifically, this could arise where the prospect, cost and time implications of litigation are such so as to make a fully informed recipient of such a fine not wish to litigate. Alternatively, situation 2) could arise where someone does not realise there might be a prospect of successful challenge, perhaps owing to the professional appearance of any demand or owing to a correspondent confidently asserting the enforceability of penalty charges on the basis of recent case law. A clear, publicised regime backed by statute could remove such concerns.
I have no statistical evidence about how often these situations arise, but I do note that this concern was raised in Which? magazine: Adam French, “Private parking fines fair says Supreme Court ruling: Decision could open door for more financial penalties” 4 November 2015.
For my part, I wrote about this in a recent article in the Journal of the Law Society of Scotland: ‘Fine to Park Here?’ (2017) 62(6) JLSS 26.
There were some other questions, which I duly responded to (such as about a role for “keeper liability” and on matters relating to signage and parking charge notices). I will link to my full response when it becomes publicly available.
The consultation is open until 2 March 2018.