Claire-Louise Southway, consultant solicitor at Setfords, offers some clarification about where responsibility for vehicles that have attracted charges lies.

The law relating to parking and repair costs has changed considerably since 2009. An update in relation to the different classes of claim is provided below, together with advice as to how best to tackle these types of demands.

Claims by repairers

It is well-established that a repairer’s lien operates against a third-party owner, whether you (as the owner) were aware of the repairs or not. The reasoning is quite simple – your vehicle has been repaired and its value enhanced, and therefore it would be unjust for you to obtain a windfall at the repairer’s expense.

However, your liability in relation to the repairer’s storage charges is no longer as straightforward.

Previously you would not be liable for storage charges because you were not a party to the contract. Yet, the case of Caterpillar (NI) Ltd formerly known as FG Wilson (Engineering) Ltd v John Holt Company (Liverpool) Ltd [2013] EWCA Civ 1232 may well lead to an altogether disagreeable outcome should it be construed as conferring authority upon the customer to bind you to pay storage charges.

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In this case the seller attempted to exercise its retention of title clause but was unable to do so because the goods had been shipped to Nigeria and resold. The seller then claimed the price of the goods pursuant to Section 49 of the Sale of Goods Act 1979.

The court held the retention of title clause operated in such a way as to prevent title passing to the buyer, and, as such, the customer held the goods as ‘fiduciary agent’ allowing the customer to sell the goods on behalf of the owner. The seller’s action subsequently failed despite the fact that the customer had not paid for the goods.

How does this case impact on you? You will need to consider whether anything (including storage charges) binds you as the owner of the goods, and because of the agency between you and the customer.

Seizure by the police or local authority

The police or local authority have the power to seize your vehicle for various parking, congestion and similar offences when using their powers under Section 99 of the Road Traffic Regulations Act 1984. Since then the Protection of Freedoms Act 2012 (POFA) came into force extending the powers of the police to remove vehicles from all areas of private land where the vehicle is illegally, obstructively or dangerously parked or broken down (Section 55 POFA).

The Clean Neighbourhood and Environment Act 2005 (Commencement No 6 and Saving) (England and Wales) Order 2015 was made on 2 March 2015 and bought into force certain provisions relating to the extension of the police to stop, search and seize vehicles used in waste crime.

The Control of Waste (Dealing with Seized Property) (England and Wales) Regulation 2015 (SI 2015/426) came into force on
6 April 2015 and sets out the procedures that regulators must follow once they have seized a vehicle.

How does this affect you? In short, as you were not involved in the offence in question you will not be liable, but in order to recover your vehicle you may have to pay the charges first and seek reimbursement from your customer pursuant to your terms and conditions.

Seizure by private parking enforcement operators

Section 54 of the POFA made it an offence to clamp, remove or immobilise a vehicle without lawful authority in England and Wales from 1 October 2012.

Section 56 and Schedule 4 allows landholders to pursue registered keepers in relation to unpaid parking charges on private land. The POFA allows landholders, in certain circumstances, to hold the registered keeper liable for unpaid parking charges if the registered keeper refuses or is unable to name the driver at the time the parking charge was incurred.

A person hiring a vehicle from a hire company is responsible for any parking charges during the hire period if they have signed a hire agreement accepting liability. In those circumstances the hire company cannot be liable for unpaid parking charges during the period of hire if they provide a copy of the hire agreement to the landholder within 28 days of receiving a notice of keeper in the post.

In ParkingEye Limited v Beavis [2015] EWCA Civ 402 the case raised the question of the legality and level of charges levied on private land. ParkingEye managed the car park at a site owned by British Airways Pensions Fund. There were around 20 clear signs around the car park stating that if a driver stayed over two hours, there would be a "parking charge of £85". Mr Beavis overstayed by nearly an hour. He was charged £85 but refused to pay. Proceedings were issued for recovery of the parking charge. Mr Beavis defended on the grounds that the parking charge clause was unenforceable at common law as a penalty and/or by virtue of the UTCC regs 1999. He lost at first instance and in the Court of Appeal. He appealed to the Supreme Court.

The Court upheld the decision of the judge below, finding that the sum claimed by ParkingEye was not "extravagant or unconscionable" and that the contract was enforceable at common law.

Welcome clarification

Local councils and private parking operators no doubt welcomed this clarification of the law, and we must all be relieved that private parking operators are no longer clamping and removing vehicles!

As always, each case must be judged on its own merits but a pragmatic approach to storage and repair costs is often more successful and cost-effective in the long run. Invariably reality kicks in for most situations where the parties sensibly place focus and emphasis on negotiation as opposed to a strict application of the law and the technical difficulties this can bring.