ITS

NOT
FINE.
Parking on Private Land:
A Legal Opinion and Advice Update

July 2015

Contents
Introduction

Advice Trends:
Advice sessions at Citizens Advice Bureaux

Advice given by the Consumer Helpline

Self-help on Citizens Advice Scotland Website

Case Studies

Legal Opinion explained

Legal Opinion of Mark Lindsay QC

Supplementary Note by Mark Lindsay QC

Introduction

itizens Advice Scotland has been campaigning on the charges levied on drivers
in private car parks by private parking management firms. Our Its Not Fine1
report in October 2014 detailed the issues that an increasing number of consumers
were experiencing. These issues commonly included:
unclear terms and signage,
punitively high charges for small infractions,
lack of adequate appeal methods that take into account mitigating
circumstances, and
aggressive and misleading debt collection practices.
Since the publication of our report, we have seen an upsurge in clients seeking
advice across our Service: face-to-face advice, telephone advice and self-help
advice via our advice website have all increased.
This trend in Scotland has been echoed in the rest of the UK where the RAC
produced a report looking at issues and legal arguments regarding English and
Welsh law on parking charges in February 20152. Media coverage of the issue has
also been high including an undercover investigation by the BBCs Watchdog
program in May 20153.
This latest report publishes a wide reaching legal opinion taken by Citizens Advice
Scotland on the legality of such charges in Scotland and how they are handed to
Scottish drivers. We also present the latest statistics on issues brought to the
Citizens Advice Service in Scotland on private parking supported by case studies.

Citizens Advice Scotland, Its Not Fine, October 2014, www.cas.org.uk/publications/its-not-fine

RAC Foundation, Private Parking Public Concern, February 2015,
www.racfoundation.org/research/mobility/private-parking-public-concern-report
3
BBC, Watchdog Programme Private Parking, June 2015,
www.bbc.co.uk/programmes/articles/r9w2hNCTvRRTBrdQH17nWh/private-parking
2

Summary of advice
Advice sessions at Citizens Advice Bureaux
In the last two years CAB across Scotland have seen a steady
increase in the advice sought about private parking. Over 4,800 issues with parking
were advised on in 2014/2015 by staff and volunteers in Scottish Citizens Advice
Bureaux.
In fact, parking saw the biggest increase in advice demand of any consumer related
issue at Scottish CAB in 2014/15, with the number of issues jumping by 45%
compared to the previous year. . Analysis of parking cases show that signage and
enforcement methods are the two areas where most advice is given.

Figure 1: Number of issues regarding parking problems presented to Citizens Advice Bureaux in
Scotland over the previous two years split by quarter.

Client demographics show a significant number of 65-79 year old clients compared
with the overall client base of the service. This may suggest that older drivers are
much more likely to seek advice if they receive one of these charges or indeed that
they may struggle with the car parking rules due to unclear signage.
Age

18 - 24 25 - 34 35 - 44 45 - 59 60 - 64 65 - 79 80 +

Clients with
9%
parking issue

13%

17%

31%

8%

20%

2%

All clients

18%

19%

33%

9%

12%

2%

8%

Figure 2: Comparison of age demographics of clients with parking issues at CAB against all CAB
clients

Advice given by the Consumer Helpline

The Citizens Advice consumer helpline reported a significant
increase in the number of calls regarding issues with private parking
in the last quarter of 2014/2015.
This is likely due to the campaign run by Citizens Advice Scotland to inform
consumers of their rights and which also highlighted the fact they could get advice
form the Service on this matter.

Figure 3: Calls made to the Citizens Advice Consumer Helpline by Scottish consumers regarding
private parking.

Using the data from the phone line we are also able to analyse where consumers
were being impacted by these issues. Interestingly, consumers in small towns and
accessible rural areas are disproportionately affected.
Urban/Rural Class

Description

All
cases

Parking
Cases

Large Urban Areas

Settlements of 125,000 or more people

33.7%

33.2%

Other Urban Areas

Settlements of 10,000 to 124,999 people

34.8%

33.2%

Accessible Small
Towns

Settlements of 3,000 to 9,999 people and

within a 30 minute drive of a settlement of
10,000 or more

9.2%

12.8%

Remote Small Towns Settlements of 3,000 to 9,999 people and

with a drive time of over 30 minutes to a
settlement of 10,000 or more

3.2%

1.8%

Accessible Rural
Areas

Areas with a population of less than 3,000 11.7%

people, and within a 30 minute drive time
of a settlement of 10,000 or more

13.5%

Remote Rural Areas

Areas with a population of less than 3,000 6.1%

people, and with a drive time of over 30
minutes to a settlement of 10,000 or more

5%

Figure 4: Comparison of Urban/Rural demographic of parking clients based on the Scottish

4
Governments Classification Scheme

While we know that the majority of car parks who operate schemes run by private
parking management companies are in towns or cities, this may suggest that
commuter consumers who travel to a larger settlement to shop or do business are
disproportionately affected. This may be due to the fact they are less familiar with the
rules imposed in certain car parks in the town or city that they are visiting.

Self-help on Citizens Advice Scotland Website

Self-help information remains the most accessed form of advice for
consumers regarding private parking charges with over 25,000 hits
to our webpage Parking Tickets on Private Land in March 2015
alone. This has increased from 4,000 in February 2013 a dramatic
increase in the last two years.

Figure 5: Views of the Scottish parking on private land self-help page of the Citizens Advice Scotland
website.

In March 2015 it was the most viewed page on our self-help website up from second
the year before and 16th in 2012/2013. It has knocked long standing pages on the
website such as divorce and jury duty from the top viewed page.
4

CAS used the Scottish Government Urban/Rural Classification Scheme to determine where callers
to the service lived based on their postcode, for more detail on the scheme see
http://www.gov.scot/Topics/Statistics/About/Methodology/UrbanRuralClassification

Case Studies

AB across Scotland have continued to send case studies of some of the worst
practices by private parking firms to CAS. Clients often cite unclear terms and
signage, punitively high charges for small infractions, lack of adequate appeal
methods that take into account mitigating circumstances, aggressive and misleading
debt collection practices in their advice sessions.

An East of Scotland CAB reports of a client who has received a parking charge
through the post which states she stayed 28 minutes over the allowed free time
of the car park. The client wasnt aware that the car park had restrictions as she
has parked there before for even longer with no issue. The parking charge
demand is for 120 and she has been receiving threatening letters from
solicitors who state if she does not pay she faces County Court Judgments
(these are not applicable in Scotland).
A consumer in the West of Scotland reported that he had received a parking
charge for parking in a taxi bay at a supermarket. The client says there were no
signposts or marking that where he was parked was a taxi bay and disputes
this fact. After contacting the firm they claimed to have photographic evidence
however when he asked to see it they refused. The firm are requesting him to
pay 140 in parking charges.
A West of Scotland CAB reports of a client who had parked in a car park which
was advertised as FREE PARKING. When she came back to her car she
found a ticket on the windscreen demanding a 100 payment. It turns out that
although the car park is free it is on condition that you take a ticket from the
machine after putting your number plate details into it. The client only realised
this after reading the notice on the machine in the car park as the signs just
advertised free parking for four hours (which she had complied with). The client
had appealed the charge but the company ignored her appeal letter and she
has been sent a new demand for 160 threatening court action and bailiffs
(who dont operate in the Scottish legal system). The client is now very worried
that people will turn up at her door demanding large sums of money.
A consumer in the East of Scotland reports that he received a parking ticket
after parking for two hours at a retail park. The signage says 3 hour free
parking in large writing but on closer inspection in small writing at the bottom it
states on match days 1 hours max. The client has no idea if it was a match
day or not and feels this is completely unfair to have rules that people wouldnt
know if they applied or not.
A consumer based in the East of Scotland regularly uses a pay and display car
park but one day the machine for paying was out of order. She took a
photograph as proof of this. The consumer has since received a letter from a
parking firm demanding payment of 100 for not displaying a ticket. She had
appealed sending the evidence the machine wasnt working but the firm wont
7

accept her appeal stating she should have phoned them at the time. The client
is particularly aggrieved as she uses this car park regularly and feels like the
firm have no respect for repeat customers.

Legal Opinion explained

Why a legal Opinion?
The status of the law surrounding private parking charges in Scotland is complex.
The main relevant area of law is that of contract. This area is not covered by
legislation but instead has been developed through common law: law developed by
judges through decisions in cases which set a precedent to be followed.
In England and Wales the common law has recently considered the issue of private
parking charges in the case of Beavis v. Parking Eye5 and the RAC Foundation
published the Opinion of John de Waal QC which explores the legal principles likely
to apply in England and Wales.
However, the law in Scotland is different from the law in England & Wales. In private
parking in particular there are some major differences which mean that the recent
case and the Opinion of John de Waal QC do not directly apply.
CAS wanted to take steps to clarify the law in Scotland around private parking
charges and so we commissioned Mark Lindsay QC to provide a legal opinion on the
likely Scots Law position.

The Legal Opinion

As well as setting out a general overview of the law relating to private parking
charges in Scotland, Mr Lindsay QC also offered some clarity on the grounds of
challenge for charges.
The potential for challenge falls in to two categories in situations where the signage
has been unclear, and where the charges are punitively high.
1. Signage: Was a contract formed?
The charge is the result of a contract between the driver and the owner or manager
of the land on which the car is parked. The terms and conditions on the signs set out
the contract to park and so a driver should have a chance to read these before
choosing to park. If they then leave the car, they have agreed to the terms and
conditions and have a contract.

[2015] EWCA Civ 402

If there is not a valid contract then the charge cannot be enforced and so the first
aspect of the Opinion focuses on this: when is a valid contract formed?
The legal opinion suggests there are certain minimums the signs must meet:

The driver should have reasonable opportunity to read the signs before
parking the vehicle
It is the responsibility of the car park (owner or management company) to
make sure the signs are:
o displayed in a prominent location for example at the entrance to
the car park and at other places in the car park
o visible to drivers when they are parking for example, there should
be a sign on the way in to the car park and not only on the back wall of
a car park
o sufficient font size and type so that drivers can read the signs in
their car drivers should be able to see the signs and the terms from in
their car, they shouldnt have to park and get out of the car to have to
read the terms
o in a format which people recognise as outlining contractual terms
and conditions:

The signs should be so noticeable and clear that no reasonable person could claim
to be unaware of what they said or meant.
The fact that someone did not read the signs does not stop a contract being formed
if there were signs that met the standards above but a driver didnt read them.
2. The Level of the Charge
If the signs were clear and a contract was formed, the fact that a driver has broken
that contract means they may face a financial charge. It is legal that there is a
charge but there is a question about the level of the charge.
The maximum charge which both the British Parking Association (BPA) and the
Independent Parking Committee (IPC) recommend is 100. However, of the cases
analysed by CAS in our Its not Fine report, we found that 30% of clients were
charged more than this.6 Using the recommended maximum charge of 100 as a
guide, CAS asked Mr Lindsay QC for his opinion on whether the level of these
charges was lawful.

http://www.cas.org.uk/system/files/publications/It%27s%20Not%20Fine%20report.pdf at page 8

10

Like with contract law, the law in Scotland is different from the law in England &
Wales. There is no legislation which sets a definitive level but instead the rules
come from common law. The law in Scotland says that while there may be a charge
for breaking a contract, this charge should not be so high that it can be considered a
penalty. Penalties for breach of contract are not enforceable so this raises a
question: when does a charge become a penalty which is unlawful?
In Scotland, the common law gives some guidance. Although it will be different
depending on the circumstances of an individual case, any charge for breach of
contract must be a genuine pre-estimate of loss. In other words, it is for the
company to show what it lost because a motorist overstayed and the charge should
be based on that calculation.
The actual losses sustained will vary depending upon the particular circumstances of
the private car park. This actual loss will also vary depending on how long the driver
overstayed, and potentially what time of day the overstay happened. They may
include the profits which were lost from potential customers who were unable to find
a parking space because of overstaying vehicles and therefore did not purchase any
goods or services from the owner, and a reasonable administration charge.
However the charge is worked out, a driver is entitled to ask a parking company to
break it down for them:

In his opinion, the 100 charge recommended as a maximum by the BPA and the
IPC is likely to be an unenforceable penalty because it is not a genuine pre-estimate
of the parking companys loss. It follows that any charge over 100 is also likely to
be unenforceable.
3. Different kinds of contract
As the signs are the basis for a contract between the driver and the parking
company, there is the potential that they can make different kinds of contracts.
The first kind of contract is between a driver and the parking company that they will
only stay in the car park for a set period of time (for example two hours of free
parking). If the driver overstays then they have broken their contract and they face a
charge for doing so.

11

The second kind of contract is one which says that a driver will only stay for a set
period of time and after that time passes, the price to stay in the car park is, for
example, 100.
In the first opinion we asked for, we had focused on the first kind of contract.
However, the IPC suggested that some contracts might be of the second kind and so
we asked Mr Lindsay QC for further advice. His advice was clear. It is the
substance of the contract which is important and not the form - 100 is likely to be
considered an unenforceable penalty no matter what kind of contract the sign sets
out.

Summary:

12

Opinion of Mark Lindsay QC

OPINION of SENIOR COUNSEL
For
CITIZENS ADVICE SCOTLAND

Re

PARKING CHARGES ON PRIVATE LAND

________

INTRODUCTION

1. I refer to the Memorial for the Opinion of Counsel and note that I have been
instructed to advise on the following matters. For ease of reference a summary of
my advice is provided in bold type.
a)

At what point can an individual be deemed to have entered a contract

with the parking company? When the individual parks his car in the
private car park after having had a reasonable opportunity of
reading the conditions of contract prior to parking.

b)

What are the minimum requirements in the display of terms and

conditions outlining the basis upon which any contract is formed? The
notices require to be so prominent and clear that no reasonable
person could claim to have been unaware of the terms and
conditions incorporated into the contract by the notice.

c)

What is the legal status of the charge? The charge is contractual in

nature. It is therefore governed by the civil law and not by the
criminal law. If it is enforceable it will be characterised as a liquidate
damages provision. If it is unenforceable it will be characterised as
a penalty clause.

d)

Is the maximum charge of 100 recommended by British Parking

Association (BPA) and Independent Parking Committee (IPC) lawful?
If the 100 charge is not a genuine pre-estimate of loss then it will
be deemed to be an unenforceable penalty clause. In most cases a
charge of 100 is likely to be held to be an unenforceable penalty as
13

Opinion of Mark Lindsay QC

it will be extravagant and unconscionable in amount in comparison
with the greatest loss that could conceivably be proved to have
followed from the breach.
e)

Are charges higher than this maximum recommended charge lawful?

Such higher charges are unlikely to be enforceable.

f)

What would parking companies have to establish to demonstrate their

charges as a genuine pre-estimate of loss? In order to demonstrate
that the parking charges are a genuine pre-estimate of loss the
parking company will require to show that its likely actual losses
sustained as consequence of the motorist overstaying are broadly
comparable with the parking charge.

g)

What legal grounds might be relied upon to challenge a charge? The

grounds of challenge will depend upon the individual
circumstances of the motorist concerned. However, in general, a
parking charge could be challenged on the grounds that it was not
validly incorporated into the contract. If it was validly incorporated
into the contract it could be challenged on the grounds that it was
an unenforceable penalty. Finally, charges which have increased
because of a failure to pay promptly may be challenged on the
grounds that they are unfair for the purposes of Regulation 5(1) of
the Unfair Terms in Consumer Contracts Regulations 1999/2083.

2. This Opinion will now consider all of these issues in greater detail.
3. Charges may be levied by the owner of the private car park, by the occupier of
the private car park if it has been leased from the owner or by parking companies
who have been engaged by the owners or occupiers to administer the parking
charges on their behalf. For ease of reference this Opinion will simply make
reference to the parking companies to cover all three of these possible scenarios.
The legal position will remain the same regardless of whether the charges are
issued directly by the owner or by a parking company on its behalf.

A. ENTERING INTO CONTRACT

4. A motorist will enter into a contract with the parking company when he parks his
vehicle in the private car park after having had a reasonable opportunity of
reading the conditions of contract prior to parking. By parking his vehicle in the
private car park after having had a reasonable opportunity to read the conditions
14

Opinion of Mark Lindsay QC

of contract the motorist will be deemed to have accepted the conditions of
contract; and thereby entered into a contract on these terms with the parking
company.
5. The proposed conditions of contract will not be incorporated into the contract
between the motorist and the parking company if the motorist has not had a
reasonable opportunity to read them prior to parking his vehicle. This is because
if terms are to be incorporated into a contract this must be done at the time when
the contract is being made. They cannot be introduced at a later stage.

B. MINIMUM REQUIREMENTS OF SIGNAGE

The law

6. The terms on which one party contracts may be displayed on a notice. It may be
sufficient to display a notice prominently so that it can be easily seen at the time
of making the contract. For example, in W.N. White & Co Ltd v Dougherty
(1891) 18 R. 972 printed conditions of sale were hung in front of an auctioneers
rostrum. The buyer had not read the conditions, but he knew of them. The court
held that the buyer was bound by the conditions. Similarly, in Wright v Howard,
Baker & Co (1893) 21 R 25 notices in clear terms were posted at various places
of work and were held to be incorporated into contracts of employment, even
although many of the workmen may not have read the notices.
7. It is, however, a question on the facts of a case whether what was done was
reasonably sufficient to bring a notice to the attention of the contracting parties.
The leading Scottish case on this issue if the decision of the House of Lords in
McCutcheon v David MacBrayne Ltd 1964 SC (HL) 28. In that appeal the
carriers conditions were displayed on a bill at their office and on three bills on a
ship. The pursuer had not read the conditions, had not had his attention drawn to
them and there was no reason why he should have read them. The House of
Lords held that in these circumstances the pursuer was not bound by the notices.
This was because the defenders had failed to show that, by displaying copies of
them, they had done what was reasonably necessary to bring the conditions to
the notice of the pursuer.
8. There are no Scottish authorities applying these general principles to private car
parks displaying notices warning of parking charges. However, there is no
material difference between English and Scots common law regarding when
terms are incorporated into a contract by reference to a public notice.
15

Opinion of Mark Lindsay QC

Accordingly, it is permissible and of assistance to have regard to English cases
dealing with private car parks and parking charges.
9. The first English authority which is of assistance is the judgment of the Court of
Appeal in Mendelssohn v. Normand Ltd. [1970] 1 Q.B. 177. In that appeal Lord
Denning M.R. dealt with the question whether a term on a notice board at a car
park might have been incorporated into a contract where it was not obvious as
the driver came in but was obvious when paying for parking at the end, and
where the plaintiff had parked often before. At page 182 of his judgment he
emphasised that such notices must be displayed prominently:
He may have seen the notice, but he had never read it. Such a notice is not
imported into the contract unless it is brought home to the party so prominently
that he must be taken to have known of it and agreed to it

10. The second English case which is of assistance is the judgment of the Court of
Appeal in Thornton v Shoe Lane Parking [1971] 2 QB 163. In that appeal the
ticket stated the vehicles time of arrival and that it was to be presented when the
car was claimed. In the bottom left hand corner in small print it was said to be
"issued subject to conditions ... displayed on the premises." On a pillar opposite
the ticket machine a set of eight printed "conditions" was displayed in a panel. In
the second condition it was stated that the garage would not be liable for any
injury to the customer occurring when his car was on the premises. The Court of
Appeal held that since the plaintiff did not know of the exemption condition and
the defendants had not done what was reasonably sufficient to bring it to his
notice it did not exempt them from liability.
11. At page 173 Megaw LJ explained why the defendants had not done what was
reasonably sufficient to bring the notice to the attention of motorists:
I think it is a highly relevant factor in considering whether proper steps were
taken fairly to bring that matter to the notice of the plaintiff that the first attempt to
bring to his notice the intended inclusion of those conditions was at a time when
as a matter of hard reality it would have been practically impossible for him to
withdraw from his intended entry upon the premises for the purpose of leaving his
car there. It does not take much imagination to picture the indignation of the
defendants if their potential customers, having taken their tickets and observed
the reference therein to contractual conditions which, they said, could be seen in
notices on the premises, were one after the other to get out of their cars, leaving
the cars blocking the entrances to the garage, in order to search for, find and
peruse the notices! Yet unless the defendants genuinely intended that potential
customers should do just that, it would be fiction, if not farce, to treat those
16

Opinion of Mark Lindsay QC

customers as persons who have been given a fair opportunity, before the
contracts are made, of discovering the conditions by which they are to be bound.

12. The third English authority which is of assistance is Vine v Waltham Forest LBC
[2000] 1 WLR 2383. In that appeal the plaintiff left her vehicle in one of two
private parking spaces. On the wall of the space that the plaintiff did not park in,
at a height of about 10 feet above the ground was a yellow notice which read:
No Parking. Any Vehicle left unattended is liable to be towed away or wheel
clamped. Recoverable by the payment of a fine of 105. There was no notice on
the wall of the parking space that the plaintiff parked in. The notice was visible to
a person who was standing up but the Range Rover in parked in that space
would have obscured the notice for someone sitting in the driving seat of the
plaintiffs car. When she returned, she found her vehicle clamped by a contractor
employed by the defendant council and was forced to pay 105, plus a 3.68 fee
for using a credit card, to secure its release. The Court of Appeal held that if the
person doing the clamping could not establish that the car owner saw and
understood the significance of the warning notice he could be liable to the owner
in damages; and as the plaintiff did not see the warning notice she was entitled to
repayment of 108.68 or damages in that sum.
13. The Court of Appeal provided some useful guidance on the location and type of
notice that would be required in order to incorporate conditions into the contract
for parking a vehicle in a private car park. At page 2390 Roch LJ advised:
Normally the presence of notices which are posted where they are bound to be
seen, for example at the entrance to a private car park, which are of a type which
the car driver would be bound to have read, will lead to a finding that the car
driver had knowledge of and appreciated the warning.

14. Importantly, at page 2393 Waller LJ makes clear that a motorist cannot avoid
terms being incorporated into the contract by simply failing to read the terms of a
notice which clearly contained contractual terms and conditions:
Circumstances in different cases will present different problems. But I would
suggest that, absent unusual circumstances, if it is established that a car driver
saw a notice and if it is established that he appreciated that it contained terms in
relation to the basis on which he was to come onto another's land, but did not
read the notice, and thus fully understand the precise terms, he will not be able to
say that he did not consent to, and willingly assume the risk of being clamped.

15. Waller LJ then explained why inadequate notice of the proposed contractual
terms had been given in the particular circumstances of that appeal:
17

Opinion of Mark Lindsay QC

Thus in this case I would say: (1) it would be less clear than in many other
circumstances to a motorist that they were trespassing in pulling off the road into
an area where there was both a way in and a way out; (2) it would not be fair
having regard to that factor and the position of the notice to say that any ordinary
and sensible person should have realised at or before the time they parked their
car that they would be clamped if they did so

16. May LJ made similar points at page 2395 of his judgment:

But I would not exclude the possibility that a motorist, who appreciates that there
are warning signs obviously intended to affect the use of private property for
parking vehicles but who does not read the detailed warning, might, depending
on the facts, be held to have consented to, or willingly assumed, the risk of his
vehicle being clamped, if the unread warning sign in fact gives sufficient warning
that trespassing vehicles would be clamped

I would also find, if it were necessary to the decision, that the sign in this case
was not sufficiently prominently and clearly positioned and displayed to sustain
any contention that she consented to, or willingly assumed, the risk of her vehicle
being clamped. In so far as this would be a finding of fact which differed from
anything found by the recorder, I derive it from the photographs and the plan
which show the area and the sign as clearly to this court as they were shown to
the recorder. It was not intrinsically obvious, apart from signs, that the area where
Mrs. Vine parked was private property. It might have been part of the highway.
The sign, which Roch L.J. has described, was on the wall beside the second of
two bays and was not on the occasion in question visible from the driver's seat of
Mrs. Vine's car when she parked it in the first bay because a van parked in front
of her blocked the view.

17. The guidance provided by these English authorities is not binding upon the
Scottish courts but will be viewed as being highly persuasive.
Discussion

18. It is clear from these authorities that in order for a notice to incorporate terms into
a contract reasonable steps must be taken to bring it to the motorists attention
prior to the contract being entered into. Such reasonable steps will include
displaying the notice in a prominent location at the entrance to the private car
park and at other locations throughout the private car park where they will be
visible to motorists when they are parking their vehicles. The notice must be in a
format which the reasonable person would recognise as being one which
contained contractual terms and conditions. It must also be of a sufficient size
18

Opinion of Mark Lindsay QC

and type face so that it is easily legible to motorists in their vehicles. Notices
which are only visible to motorists after they have parked their vehicles and left
the private car park will not incorporate any terms into the contract.
19. In summary, the notices require to be so prominent and clear that no reasonable
person could claim to have been unaware of the terms and conditions
incorporated into the contract by the notice.
20. The matter will be judged objectively by the courts. If it would have been apparent
to a reasonable person that the prominent and legible notice was importing
contractual terms and conditions the fact that the individual motorist chose not to
read the notice will not prevent the conditions from being incorporated into the
contract between the parking company and the motorist.

C. LEGAL STATUS OF CHARGE

21. Parking on private land is not regulated by legislation. The relationship between
the owner of a private car park and the motorist who parks his vehicle in the
private car park is governed by contract. Accordingly, it is the civil law and not the
criminal law which determines the parties respective rights and obligations. In
particular, the Scots common law relating to the incorporation of terms into a
contract by notice and to liquidate damages and penalty clauses will determine
whether the charges are legally recoverable. If the conditions relating to the
charges have been validly incorporated into the contract and are held to be
enforceable as liquidate damages provisions, they can be recovered from the
motorist as a contractual debt in civil proceedings.

D. LAWFULNESS OF 100 MAXIMUM CHARGE

Introduction

22. The maximum charge of 100 recommended by the British Parking Association
(BPA) and the Independent Parking Committee (IPC) will be legally
recoverable from the motorist if it is a genuine pre-estimate of loss. It will not be
recoverable if it is a penalty or fine. Indeed, this is recognised by both the BPA
and IPC in their respective guidance. The reason for this is the distinction the
common law draws between enforceable liquidate damages provisions in
contracts and unenforceable penalty clauses. As the relationship between the
19

Opinion of Mark Lindsay QC

motorist and the parking company is a contractual one these common law
principles apply to parking charges and will determine whether they are
enforceable.
Liquidate damages and penalty clauses

23. Lord Macfadyen summarised the relevant legal principles in his Opinion in City
Inn Ltd v Shepherd Construction Ltd 2002 SLT 781:
[15] For a contractual provision to be regarded as imposing a penalty, and
therefore as being unenforceable, it must, in my opinion, stipulate for payment by
one party to another of a sum of money which (a) is payable on the occurrence of
a breach of contract committed by the former party (EFT Commercial Ltd), and
(b) does not constitute a genuine pre-estimate of the loss likely to be suffered by
the latter party as a result of the relevant breach of contract, but is instead
unconscionable in respect that it is designed to operate in terrorem, or
oppressively or punitively (Dunlop Pneumatic Tyre Co Ltd v New Garage & Motor
Co, per Lord Dunedin at p 86, para 2; Clydebank Engineering and Shipbuilding
Co v Castaneda; AMEV UDC Finance Ltd v Austin)

24. This statement of the law is frequently quoted before the Scottish Courts and was
approved by the Inner House in Hill v Stewart Milne Group [2011] CSIH 50. It is
these principles which will be applied by the courts to determine whether the
parking charges are an enforceable liquidate damages provision or an
unenforceable penalty clause.
Relevant English authorities

25. There are two English authorities which provide some assistance in determining
whether a 100 maximum parking charge would be held to be enforceable by the
courts. The first is the unreported decision of District Judge Wall in Excel
Parking Services Limited -v- Hetherington-Jakeman, Mansfield County Court,
18th March 2008. In that case the Claimant operated an automated car park and
claimed a parking charge of 100 from the Defendant for having parked her
vehicle for a period in excess of the specified time limit. The charge in question
represented an enhanced sum. The initial amount of the charge to which, it was
said, she was liable was 60, which was discounted to the lower figure of 40 in
the event of prompt payment. The higher sum of 100 was then demanded after
she had failed to pay either of these sums.

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Opinion of Mark Lindsay QC

26. The District Judge accepted that there would have been a contract when the
motorist entered the car park on the terms set out on the signs which she would
have seen. However, there was nothing on any of the signs to inform a motorist
that a charge or fine would be payable if a specified time limit was exceeded.
Accordingly, the claim failed. But the District Judge also went on to consider
whether the charge sought to be recovered was to be treated as a penalty. He
held that the increase from 60 to 100 was a penalty because it was a sum
which was "intended to effectively frighten or intimidate someone into making a
payment promptly." He went on to note that there were undoubtedly overhead
costs, not merely in operating the car parking system itself but also in collecting
the charges. But he noted that he had no details of these costs and it seemed to
him that the amount claimed was far beyond any costs which could realistically or
reasonably have been incurred.
27. The second English authority which is of assistance is the judgment of Judge
Hegarty in ParkingEye Ltd v Somerfield Stores Ltd [2011] EWHC 4023 (QB).
In that case the ParkingEye system was designed to catch those who overstayed
and induce them to pay the charges. The names and addresses of the owners of
overstaying vehicles were, using the registration number, obtained from the
DVLA. ParkingEye would then send a letter of demand for the charge. If no
payment or response was received, a second, third and even fourth letter in
stronger and stronger terms would be sent. The basic charge was 75, reduced
to 3750 if paid within 14 days of the Penalty Ticket, i.e. the first letter. Judge
Hegarty held that this amount was not a penalty and was enforceable as against
the motorist. However, if payment was not made within a specified time the
charge increased to 135. Judge Hegarty held that this was a penalty and thus
unenforceable.
28. Judge Hegarty deals with increased charge of 135 at paragraph [419] of his
judgment and explains why it was an unenforceable penalty:
419 It seems to me that, in the present case, it would be difficult for ParkingEye
to justify, as against any motorist, a claim for payment of the enhanced sum of
135 if the motorist took the point that the additional 60 over and above the
original figure of 75 constituted a penalty. It might be possible for ParkingEye to
show that the additional administrative costs involved were substantial, though I
very much doubt whether they would be able to justify this very large increase on
that basis. On the face of it, it seems to me that the predominant contractual
function of this additional payment must have been to deter the motorist from
breaking his contractual obligation to pay the basic charge of 75 within the time
specified, rather than to compensate ParkingEye for late payment. Applying the
formula adopted by Colman J. in the Lordsvale case, therefore, the additional 60
would appear to be penal in nature; and it is well established that, in those
circumstances, it cannot be recovered, though the other party would have at least
a theoretical right to damages for breach of the primary obligation.

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Opinion of Mark Lindsay QC

29. At paragraphs [423] to [426] of his judgment Judge Hegarty considered whether
the initial charge of 75 was also a penalty and concluded that it was not:
423 Applying the formulation adopted by Colman J. in the Lordsvale case, it is
necessary to determine, as a matter of construction, whether the predominant
contractual function of the 75 penalty ticket is to deter the party from committing
a breach of the contract. In essence, Mr Fealy's argument is that the primary
obligations imposed upon the motorist are negative in nature, most notably not to
stay for more than one hour. If he parks for longer than one hour, he is in breach
of his contract and liable in damages. Those damages, it is suggested, will be
small or nominal. Accordingly, any obligation to pay 75 in the event of such a
breach must be regarded as a penalty and unenforceable.

424 This approach gains some support from the wording of the signs and in
particular the statement that a "penalty ticket" might result from a "failure to
comply" with the prohibitions which are then set out. But, as Mr Fealy himself
acknowledged, the terminology, and in particular the use of the word "penalty", is
not conclusive.

425 It seems to me that it is particularly important in the case of such an informal

contract to see how the message on the signs would reasonably be interpreted,
from an objective standpoint, by the ordinary motorist who wished to make use of
the parking facilities. Any such motorist would be well aware that charges were
normally made for the use of such car parks; and that those charges were
commonly graduated, depending upon the time for which he parked. In this
particular case, I think that the ordinary user of the car park would see the 75
"penalty ticket" as the price which he would or might have to pay if he used the
car park for longer than a period of one hour.

426 If this is the price payable for the privilege, it does not seem to me that it can
be regarded as a penalty, even though it is substantial and obviously intended to
discourage motorists from leaving their cars on the car park for any lengthy
period of time. I accept that this analysis is a little more difficult to apply to the
other prohibitions set out on the signs. But those are very much subsidiary to the
charges for exceeding the time limit; and, as it happens, there appears to have
been no procedure for levying charges for a failure to park within the marked
bays or for the improper to use a bay reserved for disabled users.

Discussion
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Opinion of Mark Lindsay QC

30. Having regard to the foregoing general principles and to the English authorities
which provide some guidance on the level of charges which will constitute an
unenforceable penalty, the courts are likely to hold that a charge of 100 is an
unenforceable penalty because it is not a genuine pre-estimate of the parking
companys loss.

E. LAWFULNESS OF CHARGES IN EXCESS OF 100

31. In light of the discussion in the foregoing chapter of this Opinion parking charges
in excess of 100 are highly unlikely to be enforceable. This is because they will
be viewed as an unenforceable penalty clause as such a level of charge will not
be viewed as a genuine pre-estimate of loss; as it will be far in excess of any
losses actually sustained by the parking company.

F. ESTABLISHING A GENUINE PRE-ESTIMATE OF LOSS

32. In order to demonstrate that the parking charges are a genuine pre-estimate of
loss the parking company will require to show that its likely actual losses
sustained as consequence of the motorist overstaying are broadly comparable
with the parking charge.
33. As it is frequently difficult to quantify potential losses with precision, the charges
merely require to be broadly comparable with what the actual losses might have
been. In other words the parking charge stipulated for must not be extravagant
and unconscionable in amount in comparison with the greatest loss that could
conceivably be proved to have followed from the breach.
34. The owner will be able to include administration costs in his parking charges and
this will not render the charges unenforceable.
35. The actual losses sustained by the owner will vary depending upon the particular
circumstances of the private car park. They may include the profits which were
lost from potential customers who were unable to find a parking space because
of overstaying vehicles and therefore did not purchase any goods or services
from the owner.
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Opinion of Mark Lindsay QC

G. LEGAL GROUNDS OF CHALLENGE

36. The legal grounds upon which a parking charge can be challenged will depend
upon the individual circumstances of the case. The first issue to be considered is
whether or not the conditions relating to the charges were validly incorporated
into the contract. If the conditions relating to the charges were not incorporated
into the contract because of inadequate notice then any civil action seeking
payment of the charge could be defended on this ground.
37. If the conditions relating to the charges have been validly incorporated into the
contract the next issue to be considered is whether they are an enforceable
liquidate damages provision or an unenforceable penalty clause. If they are an
unenforceable penalty clause then any civil action seeking payment of the charge
could be defended on this ground.
38. In his Opinion for the RAC Foundation John de Waal, QC expresses the view that
an early payment discount is really a price escalation provision and is therefore
unfair for the purposes of regulation 5(1) of the Unfair Terms in Consumer
Contracts Regulations 1999/2083. I concur with this conclusion for the reasons
given by Mr de Waal in his Opinion. Accordingly, this is an additional line of
defence which can be relied upon when the owner is seeking to recover a parking
charge which has increased because of a failure to pay it promptly.

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Supplementary Opinion of Mark Lindsay QC

OPINION of SENIOR COUNSEL
For
CITIZENS ADVICE SCOTLAND

Re

PARKING CHARGES ON PRIVATE LAND

________

INTRODUCTION

39. I refer to the Memorial for the Opinion of Counsel and note that I have been
instructed to advise on the following matters. For ease of reference a summary of
my advice is provided in bold type.
a) Does an interpretation of the penalty charge as the price of parking
substantively change the nature of Counsels advice in previous Opinion?
Yes, if the charge is the contractual price for parking, rather than a
charge which becomes payable upon a breach of contract by exceeding
the maximum permitted time, the authorities relating to unenforceable
penalty clauses will no longer apply. However, there are strong
arguments to counter the Independent Parking Committees (IPC) new
position. If the substance and reality of the charge is analysed, rather
than its contrived legal form, it is clear that it is an unenforceable
penalty payment which becomes payable upon a breach of contract.
b) If so, having regard to the Unfair Terms in Consumer Contracts Regulations
1999 SI 1999/2083 (the 1999 Regulations) and other relevant factors, what
impact does this interpretation have? If the court accepts that the charge is
the contractual price for parking the authorities relating to
unenforceable penalty clauses will no longer apply. This means that it
would not be possible to argue that the charge was an unenforceable
penalty because it was not a genuine pre-estimate of loss. In addition, if
the charge was the price for parking it would be one of the core terms of
the contract and therefore it would not be possible to argue that the
charge was unfair in terms of the 1999 Regulations. However, even if the
charge were held to be the price of parking, it would still be possible to
argue that the terms relating to the charge had not been incorporated
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Supplementary Opinion of Mark Lindsay QC

into the contract because of inadequate notice. In addition, early
payment discount would remain a price escalation provision and would
continue to be unfair for the purposes of regulation 5(1) of the 1999
Regulations.
40. This Opinion will now consider all of these issues in greater detail.
THE IPCS CHANGE OF POSITION

41. In recent correspondence the IPC have raised with CAS their altered
interpretation of the contract. The IPC now contend that the charge is the cost of
parking and is not a penalty for a breach of contract. They have set out their new
position as follows:
Many of our operators do not pursue charges for breach of contract. In fact their
signage creates a contract with the motorist where the parking in certain
circumstances is the price of such parking. Where the amount payable as a price
the issue of damages and GPOL does not come into consideration as the EC
directive on core terms of a contract prevents courts interfering with the core
terms of contracts.
42. This Opinion will now explain why the classification of the charge as either the
contractual price for parking or as penalty for breach of contract is an important
issue when considering whether or not such charges are enforceable.
PENALTY MUST ARISE ON BREACH OF CONTRACT

43. In Scotland, the rules relating to penalty clauses have no application unless the
penalty arises on breach of contract: see, e.g. Bell Brothers (H.P.) Ltd v Aitken
1939 S.C. 577, Granor Finance Ltd v Liquidator of Eastore Ltd 1974 SLT
296 and EFT Commercial Ltd v Security Change Ltd 1992 SC 414. This
means that the rules on penalty clauses may be evaded if the contract provides
for payment on an event other than a breach of contract. Accordingly, to decide
whether or not a clause is penal the first stage is to decide if the clause is brought
into operation by a breach of contract; the second stage involves the character of
the clause and the distinction between liquidated damages and penalties.
44. These two distinct stages can be seen in the Opinion of Lord Macfadyen in City
Inn Ltd v Shepherd Construction Ltd 2002 S.L.T. 781 at page 788A-B:
[15] In my view this issue turns on the proper construction of cl 13.8.5 in the
context of the contract as a whole. For a contractual provision to be regarded as
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Supplementary Opinion of Mark Lindsay QC

imposing a penalty, and therefore as being unenforceable, it must, in my opinion,
stipulate for payment by one party to another of a sum of money which (a) is
payable on the occurrence of a breach of contract committed by the former party
(EFT Commercial Ltd), and (b) does not constitute a genuine pre-estimate of the
loss likely to be suffered by the latter party as a result of the relevant breach of
contract, but is instead unconscionable in respect that it is designed to operate in
terrorem, or oppressively or punitively (Dunlop Pneumatic Tyre Co Ltd v New
Garage & Motor Co, per Lord Dunedin at page 86, paragraph 2; Clydebank
Engineering and Shipbuilding Co v Castaneda; AMEV UDC Finance Ltd v
Austin).

45. The law in England on this point is the same in all material respects: see, e.g.
Export Credits Guarantee Department v Universal Oil Products Co. &
Others [1983] 1 W.L.R. 399.
SUBSTANCE NOT FORM

46. The distinction between the sums due on breach and sums due when there is
no breach can be a narrow one. Prior to the statutory regulation of hire
purchase agreements there were a considerable number of Sheriff Court cases in
which the court required to determine whether or not a payment was due as a
result of a breach of contract. In these cases the court looked at the substance of
the payment rather than just its legal form. For example, in Mercantile Credit Co
Ltd v Brown 1960 S.L.T. (Sh. Ct.) 41 at page 43, Sheriff Substitute Murray
emphasised the importance of looking at the substance or reality of why a
payment was being demanded rather just its legal form:
According to the argument of the pursuers the Court has refused to intervene
on the ground (the pursuers contend) that the penal results did not follow from
breach of contract but from an option which was exercised by the hirer.
(Associated Distributors Ltd. v. Hall [1938] 2 K.B. 83; cases referred to in Cooden
Engineering Co.; and Bell Bros. v. Aitken (infra).) In all such cases, according to
the pursuers' contention as I understood it, the law is powerless to intervene,
however harsh and unconscionable the penal provisions may have been.

In my opinion, the pursuers' argument is not as impregnable as they contend, at

all events in Scotland where the Courts prefer principles to precedents. I consider
that the true approach to the present problem is to inquire how it was that the
pursuer's right of claim arose in the present case. It undoubtedly arose directly
from and because of the defender's inability to pay the stipulated instalments: in
other words it arose from the defender's breach of contract The financial
results which I have set out in paragraph 6 were the inevitable result of the
defender's breach of contract if the pursuers cared to exercise their rights under
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Supplementary Opinion of Mark Lindsay QC

the agreement. If I am right in holding that they were penal in amount, then it
follows from what I have stated above as a principle that they are not
enforceable.

47. After recognising the substance or reality of the circumstances which gave rise to
the obligation to make payment, the learned Sheriff went on to say that the
pursuers were disguising the true facts and that their argument was based upon
a number of fallacies:
In my opinion, the pursuers in this case are merely trying to disguise the above
facts by not presenting the case in its true perspective. They say that the financial
results did not arise from breach of contract but from the action which one of the
parties (in this case the defender) took to determine the contract by exercising his
option. The fallacy in that argument, in my opinion, is that, in so stating it, they
have failed to distinguish between a claim and a right to claim. It is the right to
claim which is the criterion in the principle I mentioned above. The fallacy would
be more obvious if it had been the pursuers who had exercised their option and
had transformed their right to claim into an actual claim: but the same fallacy
underlies their present argument. What the law refuses to enforce is a right to
claim a penalty, and that right arose in the present case as soon as the defender
put himself in breach of contract through his inability to pay the instalment due
In my opinion, it is just as fallacious in the present case to say that what brought
the penal provisions into being was the defender's option to exercise his right to
determine the hiring. As I tried to indicate above, the pursuers' right to claim the
penal consequences of breach had already been brought into being by the
defender's breach of contract: there was nothing he could do to prevent the penal
consequences in terms of the agreement. The provisions were already penal and
unenforceable against the defender. His action in terminating the hiring did not
alter the character of the pursuers' right under the agreement: all he did was to
prevent it getting any bigger: he did not make good what was already bad.

48. Finally, the Sheriff concluded by emphasising the importance of the option only
being open for exercise as a consequence of the hirers breach of his primary
obligations:
I think further that it is fallacious to argue that the pursuers in the present case
could not sue for breach of contract because the defender was not in breach of
contract in terminating the contract, but was only exercising an option open to
him in terms of the contract. By failing to implement his primary obligations the
defender was plainly in breach of contract.

49. A similar approach was taken by Sheriff Substitute Christie in Bowmaker

(Commercial) Ltd v McDonald 1965 S.L.T. (Sh. Ct.) 33. At page 34 the learned
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Supplementary Opinion of Mark Lindsay QC

Sheriff warned against deciding cases of this nature on the basis of a legal fiction
and that the factual reality should determine whether the payment became due
as a result of a breach of contract:
In my opinion, it is quite unrealistic to regard the defender in the present case as
having exercised an option to terminate the hiring. The exact circumstances of
the return of the car are not specified all that is known about the matter is that he
was in arrears with his instalments and that the car was surrendered. To decide
this case as if the defender had considered the penalties provided for in clause 7
and had then decided to exercise the privilege of terminating the contract on
these conditions would be to decide the case on fiction. The reality is that he was
in breach of his contract and surrendered the vehicle; and he should pay the
damages appropriate to a breach of the contract. This seems to me the line of
reasoning followed in Mercantile Credit Co. Ltd. v. Brown (supra) and, if I may
respectfully say so, I think that this line of reasoning is sound.

50. Finally, in the recent Court of Appeal case of ParkingEye Ltd v Beavis [2015]
EWCA Civ 402 Lord Justice Moore-Bick made some interesting obiter dicta
observations that the reality for the motorist was the same regardless of
whether the parking charge was technically a sum payable on breach of contract
or on the use of the facility for longer than the advertised period of free parking:
23 It was common ground before us that a motorist making use of the car park
enters into a contract with ParkingEye under which he agrees to leave the car
park within a period of two hours. Failure to do so constitutes a breach of contract
in respect of which he agrees to a parking charge of 85. For the purposes of the
present appeal I am content to assume that that is so, but it seems to me that the
relationship between the motorist and ParkingEye might be better analysed in
terms of a licence to use the car park, subject to certain conditions, coupled with
an agreement to pay a parking charge in the stated amount if the terms of the
licence are not adhered to. On that basis it could be argued that the parking
charge was no more than a conditional payment which the motorist could choose
whether to incur or not and that the authorities on penalties for breach of contract
were of no relevance.

24 ParkingEye did not seek to raise that argument before the judge or before us,
and in those circumstances I do not think it is open to us to pursue it. However,
even if it had done so, I doubt whether it would have materially affected the
outcome. The origin of the rule against the enforcement of penalties lies in the
unwillingness of equity to enforce penal bonds. As far as the motorist is
concerned, it matters not whether the parking charge is technically a sum
payable on breach of contract or on the use of the facility for longer than the
advertised period of free parking. In either case the reality is the same: the
motorist incurs a flat rate charge regardless of the length of time for which he
overstays.
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Supplementary Opinion of Mark Lindsay QC

51. Accordingly, when considering whether the sums payable upon the expiry of the
free period of parking are the contractual price for parking or a penalty for breach
of the terms of contract, it is the reality of the circumstances and not the legal
form which requires to be analysed.
DISCUSSION

52. If the foregoing approach is adopted when analysing the new approach
advocated by the IPC it is arguable that it is a mere legal fiction, or disguise, to
classify the charge as the price for parking. The motorists liability to pay the
charge only arises if the motorist breaches his primary obligation of not parking
for longer that the maximum period of free parking. The charge, with its flat rate
nature, is designed to deter motorists from exceeding the maximum period of free
parking. The flat rate charge is not a graduated charge related to actual periods
of time, as one would encounter in a conventional commercial car park. In other
words the flat rate charge closely resembles a penalty charge and is of an
entirely different nature from the graduated parking fees encountered in a
commercial car park.
53. If the flat rate charge is analysed from the true perspective it is clearly a penalty
which become payable upon breach of the motorists primary obligation not to
exceed the maximum period of free parking. The IPCs argument that the flat rate
charge is simply the contractual price for parking is artificial legal analysis which
fails to disguise the true nature of the flat rate charge as a penalty payable if the
maximum period of free parking is exceeded.
54. While much will depend on the particular wording of the contractual notices, in
general such arguments would have reasonable prospects of successfully
persuading the court that the charge was truly an unenforceable penalty and was
not, upon proper analysis, the contractual price for parking.
CONCLUSION

55. If the foregoing arguments against the IPCs new position are accepted by the
courts, then the advice contained in my Opinion dated 23 rd March 2015 remains
unaltered. Flat rate parking charges of this type are unenforceable penalty
payments, arising upon a breach of contract, which cannot be recovered as they
are not a genuine pre-estimate of loss.

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Supplementary Opinion of Mark Lindsay QC

56. Alternatively, if these arguments are not accepted by the courts and the flat rate
charges are held to be the contractual price for parking, the authorities relating to
unenforceable penalty clauses will have no application. This means that it will not
be possible to argue that the flat rate parking charge is irrecoverable on the basis
that it is unenforceable penalty.
57. However, even if the IPCs new position is accepted by the courts, the conditions
relating to whether or not the flat rate charges were validly incorporated into the
contract remain unaltered. If the conditions relating to the flat rate charges were
not incorporated into the contract because of inadequate notice then any civil
action seeking payment of the charge could be defended on this ground;
regardless of whether or not the charge fell to be classified as the price for
parking rather than a penalty for breach of contract.
THE 1999 REGULATIONS

Regulations 5 & 6

58. Regulation 5 provides, where relevant:

5. Unfair Terms
(1) A contractual term which has not been individually negotiated shall be
regarded as unfair if, contrary to the requirement of good faith, it causes a
significant imbalance in the parties' rights and obligations arising under the
contract, to the detriment of the consumer.
(2) A term shall always be regarded as not having been individually negotiated
where it has been drafted in advance and the consumer has therefore not been
able to influence the substance of the term

59. Regulation 6 provides:

6. Assessment of unfair terms

(1) Without prejudice to regulation 12, the unfairness of a contractual term shall
be assessed, taking into account the nature of the goods or services for which
the contract was concluded and by referring, at the time of conclusion of the
contract, to all the circumstances attending the conclusion of the contract and to
all the other terms of the contract or of another contract on which it is dependent.
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Supplementary Opinion of Mark Lindsay QC

(2) In so far as it is in plain intelligible language, the assessment of fairness of a

term shall not relate
(a) to the definition of the main subject matter of the contract, or
(b) to the adequacy of the price or remuneration, as against the goods or services
supplied in exchange.

60. For present purposes, it is the exclusion contained in regulation 6(2)(b) which is
of the greatest potential relevance when considering the applicability of the 1999
Regulations to flat rate parking charges.
Application of 1999 Regulations to flat rate parking charges

61. In paragraphs [20] to [47] of his Opinion for the RAC Foundation John de Waal,
QC analyses the relevance and application of the 1999 Regulations to flat rate
parking charges. I concur with this analysis and with Mr de Waals conclusions,
which were advanced on the basis that the flat rate charges were payable upon a
breach of the terms of the contract for parking by the motorist. In particular, I
agree with Mr de Waal that the reasoning expressed by the House of Lords in
Director General of Fair Trading v First National Bank [2002] 1 AC 481 has
more application to flat rate parking charges than the later Supreme Court appeal
of Office of Fair Trading v Abbey National plc and others [2010] 1 A.C. 696
62. On the other hand, if the court accepts the IPCs new argument that the flat rate
charges are the contractual price for parking these charges will become part of
the core terms of the contract, rather than a default provision and it will no
longer be possible to argue that the flat rate parking charge is unfair for the
purposes of regulation 5(1) of the 1999 Regulations. This is because the flat rate
charge would be part of the core terms relating to price and would fall with the
scope of the exclusion contained in regulation 6(2)(b) of the 1999 Regulations.
63. However, even if the court accepts that the flat rate parking charge is the
contractual price for parking, early payment discounts would continue to be price
escalation provisions; and therefore would remain unfair for the purposes of
regulation 5(1) of the 1999 Regulations.
64. If I can be of any further assistance or if Agents wish to discuss any matter
arising out of this Opinion, they should not hesitate to contact me.

32