In May last year, Nicholas Bowen QC pulled into the car park at Membury Services on the M4 just before midnight. He needed a nap before he continued his journey. He had his nap and drove home at 2.20 a.m.
He was subsequently issued with a £85.00 parking charge by ParkingEye, who claimed he overstayed the two-hour free parking limit by 35 minutes.
Instead of paying the fine for an easy life, he refused, challenging the charge a public interest basis, arguing the company had no legal right to sue people who parked in an empty service station car park at night to take a nap. “My defence was that your contract was unenforceable and that you have no legal right to charge members of the public for night parking in service station car parks”, he advised ParkingEye, to no avail.
ParkingEye took him to court, but on the day failed to represent themselves at the hearing where a district judge dismissed their claim and unusually for the small claims court ordered them to pay £1,550 in legal costs.
Mr Bowen’s argument was based on a breach of consumer protection law and having an unenforceable contract, accusing ParkingEye of “indulging in pernicious bullying tactics against motorists” and claimed it was relying; “either on apathy, or that most of your victims lack the ability or funds to fight back”.
Following his success Mr Bowen added; “I hope ParkingEye will learn a lesson from losing this case, reconsider your contractual terms and change what is an unlawful and unconscionable practice.”
We do not know the exact reasoning behind the judge’s decision to dismiss ParkingEye’s case, but Consumer Protection Laws are largely consolidated within the Consumer Rights Act 2015, part 2 of which provides for general rules about fairness of contract terms and notices.
It may be that the judge agreed that the signage providing the information about the 24/7 charging being in microscopic print and requiring “20/20 vision or a magnifying glass”, was unfair.
The test for ‘unfair terms’ in the Consumer Rights Act provides that a term is “unfair” if “contrary to the requirements of good faith, it causes a significant imbalance in the parties’ rights and obligations to the detriment of the consumer”.
There is a requirement in Consumer Law for prominence and transparency which means that information is to be provided in plain and intelligible language and, if in writing, is legible and is prominent, being brought to the consumer’s attention in such a way that the average customer – who is well informed, observant and circumspect – would be aware of the term.
Besides the general schadenfreude gained from this victory against a notoriously aggressive parking company, this is also victory for common sense. Driving whilst tired is after all, dangerous and as Mr Bowen has remarked; “There should not be a disincentive to stop at night – as the signs say: ‘Tiredness kills, take a break.”