The £25,000 parking charge

Previously I wrote about the $10million comma. Next up, the £25,000 parking charge.

There was quite a lot of media attention given to the case of Vehicle Control Services Limited (VCS) v Carly Mackie earlier this month, although the judgment itself was handed down in January.

The publicity is welcome, because it debunks the dangerous - and sometimes costly - myth that private parking charges are not legally binding.

The parking scheme

This case involved a development on the Waterfront District in Dundee, where factors had appointed VCS to provide a parking management scheme, where permits were issued to property owners, which they could use for any vehicle.

Any vehicle not displaying a permit would be deemed to parking without right, and a notice would be attached to the vehicle's windscreen.

This type of parking scheme is not unusual.

Eight signs were prominently displayed around the entrance points to the property: informing people that the property was private, and if they chose to park they did so subject to the terms and conditions set out on the notices.

Those terms were

• Parking was restricted to vehicles displaying appropriate permits

• Failure to display one meant a parking charge of £100 per day or part thereof, reducing to £60 if paid within 14 days

Swap references to "permits" to "tickets" and you could be talking about any car park in the country.

VCS v Carly Mackie

The defender, Carly Mackie, the daughter of a tenant at a development, regularly parked her car on the site.

Her father had a designated garage and could have sought a permit for his daughter to use, but didn’t.

He gave evidence that he told his daughter to park there, and that he understood private parking charges were not legally binding.

It's not clear from the report whether he himself was entitled to a free permit — as he had a garage — but in any event the defender was offered her own permit for £40 per month, but she apparently “refused on principle.”

At the time, the factor said he believed the defender was waging a personal "crusade" to prove the parking scheme was illegal or unenforceable. Mr Mackie, meanwhile, "was perfectly candid in his evidence that the defender just ignored the parking notice and the charges levied on principle."

A £25,000 principle!

Rise of the myth

Type in terms such as "parking tickets", "parking charges", in any internet search engine, and you’ll find countless cases where self-proclaimed experts advise us not to pay up when notices drop through the letterbox. "It's a scam." "You can't be taken to court." "Bin the notice! Parking charges are unenforceable in Scotland!"

Mr Mackie and her daughter would seem to have been of this school of thought.

But this is the myth.

As Sheriff George Way declared, the defender entirely misdirected herself on the law.

"The signs at the car park created a contractual offer that was accepted by the defender when she continued to park at the property. The defender refused to pay the parking charges not because she was unaware of the parking scheme, or the terms of the notices, but because she did not believe that the charges were valid in law. The parking charges flow from a valid contract between the pursuers and the defender and she is liable for them."

All £24,500 of them, plus expenses.

It's not clear why such a body of opinion has grown that parking charges are unenforceable. It is a straightforward matter of contract. Yet it seems that having to pay for parking gets people excited.

In the case of University of Edinburgh v Onifade back in 2004, Mr Onifade seemingly did not object to a contract being constituted by notices and subsequent parking. His argument was that the university's signs' declaration that "persons parking without a permit will be liable to a fine of £30 per day" indicated an intention to penalise, as further indicated by his receipt of tickets which referred to a "penalty charge", and that the university had no power to impose any such penalty.

He would not have had an issue with them had the notices referred to a "fee" rather than a fine. The court rejected this as a disingenuous argument: a fine can be a fee paid for any privilege.

Whereas the defender then also argued that there was no contract because he did not accept the charges, the court held that by parking his vehicle on university property without a permit he made it plain that he accepted the institution’s position that a fee (or fine) of £30 per day would be payable.

"It is nothing to the purpose for him to maintain that he did not intend to pay because he considered that the pursuers were not entitled to make the charge specified. The judicial task is not to discover the actual intentions of each party; it is to decide what each was reasonably entitled to conclude from the attitude of the other. The pursuers were reasonably entitled to conclude that the defender, by parking without a permit in the knowledge of the terms of the notice, had accepted liability for the payment to them of £30."

Onifade, like Mackie, set down a path following points of principle. But in each case, their contentions flew in the face of basic rules on the constitution of contracts.

Be advised, and don’t end up paying for your principles!