Free Traffic Legal Advice
Live cases legal advice => Private parking tickets => Topic started by: thechosenone on July 21, 2024, 06:12:52 pm
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Hi all, thank you all for your time and help.
I wrote the car rental company an email requesting a refund for the 70 pounds and awaiting their reply.
Re the question ...
.....may I posit that the Man on the Clapham Omnibus(it would broaden my knowledge if the OP could give us a US equivalent!) would simply write to the hire company and ask for their money back?
*- https://en.wikipedia.org/wiki/Man_on_the_Clapham_omnibus
... seems to me that the American term is a "reasonable person" .... and I believe I am such a man .... :-)
Thank you again, and I shall update with the outcome.
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If the hirer wanted to use that argument (if the chargeback is declined) they would almost certainly be the one having to do the suing though!
The chargeback is unlikely to be declined. It's a voluntary process by card issuers and acquirers with limited scope for refusal, though what US rules are in place by this particular issuesr will determine whether it is allowed or not.
An issue is whether it gets re-debited somewhere down the line when (if) enterprise say "No, we maintain it was a valid charge".
With a chargeback the issuer is a go between.
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I understand your point. However, in this case, how, or where could this claimant sue a US citizen who resides in the USA?
If the hirer wanted to use that argument (if the chargeback is declined) they would almost certainly be the one having to do the suing though!
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Some time after I reached back home in the USA, I got an email from the rental company saying the following ...
The rental car company:
1. "processed" the citation, which means they sent the parking lot operator my information, and the citation to me by email.
2. they did *not* pay the fine. They explicitly told me that I will be paying the fine separately.
3. they went ahead and charged my credit card 35 pounds per ticket for processing - without getting my consent beforehand.
Next, the hotel administrator canceled the two citations - they were issued by mistake ...
.....may I posit that the Man on the Clapham Omnibus(it would broaden my knowledge if the OP could give us a US equivalent!) would simply write to the hire company and ask for their money back?
*- https://en.wikipedia.org/wiki/Man_on_the_Clapham_omnibus
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I understand your point. However, in this case, how, or where could this claimant sue a US citizen who resides in the USA?
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How is this ever going to court?
The only place you could argue an unfair term is in court…
The chargeback may well succeed on the basis of the wording in the contract, but I was referring to the argument about an unfair term of the charge is cancelled.
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By the rental agreement I was the only one authorized to drive the car, so I don't know if I can claim that the driver is unknown by me ...
You are not claiming that the driver is unknown to you. The Hire Company does not know you were the driver. They cannot prove you were the person who drove the car onto the private land. All they can do is provide the PPC evidence you were the Hirer at the time of the alleged breach of contract.
The PPC does not know you were the driver. They are not allowed to presume nor infer that you were the driver just because you happen to be the Hirer. The driver and the Hirer/keeper are two separate entities in civil law. There is plenty of persuasive precedent to validate that point in law.
There is no legal obligation for the Hirer to identify the driver in civil law. Unlike in criminal law, where the Hirer could be required to identify the driver, it is not the case here.
Anyway, this is all academic as the Parking Charge Notices (PCN) have been cancelled. All this argument about who is and who is not liable for the alleged breach of contract does not matter anymore. It is only an argument if it was being appealed or if the Hirer were being sued for the alleged debt in county court.
This is now a contractual dispute over the hire agreement. It is betond our remit except for the fact that we fancy ourselves to be somewhat knowledgable in matters of contract law without the required qualifications of being actual lawyers.
I’m pretty sure that Enterprise Car Hire is a member of the BVRLA and that ATA has guidelines for its members that they are expected to abide by. One of their guidelines is about differentiating between penalties and fines for traffic offences which are criminal matters (although many of the offences are de-criminalised) which, if they ever got to court would be dealt with by a magistrate and any fines imposed would go to the public purse and Parking Charges which are simply civil matters involving contract law and are nothing to do with authorities of any kind as they are simply invoices issued for alleged breach of contract by unregulated private companies.
Unless the hire agreement differentiates between “offences” that incur “penalties” and/or “fines” or “charges” from unregulated private companies, then you have an argument as to whether the agreement allows the hire company to charge you an admin fee.
So, the issue about not revealing the drivers identity is now moot in this case. Good luck with your dispute over the admin charge but feel free to let us know how you get on.
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Thank you all for your time and inputs, highly appreciated!
By the rental agreement I was the only one authorized to drive the car, so I don't know if I can claim that the driver is unknown by me ...
The parking lot serves only this hotel and the hotel immediately told me they will take care to cancel the bills.
I took the numerous advice and sent them this email below .... I will report back what they say.
If that does not work, then I will dispute with the credit card company (the CC company expects at least such an attempt before disputing).
Thank you again !
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Here's the email:
Dear Enterprise Service,
I have received 2 emails such as the one attached below for which you have charged my credit card £70. Please refund these charges asap.
Indeed the agreement does state that "an administration fee of up to £45 in the UK and up to €35 in Ireland for processing any fines or offences against the Vehicle, Owner, Renter, any Authorised Driver or any other person Renter permitted to use the Vehicle during the Rental Period, unless caused through Owner’s own fault;".
This statement was not present in the Rules and Restrictions document presented to me when making the rental car reservation. It was only presented to me verbally while picking up the car and as an addendum to an email I received while / after picking up the car. Not sure if this is legal, but it is definitely not honest.
Regardless:
1. You have simply received an invoice by a private company. This private company is in no shape or form an authority that can issue fines or penalties.
2. The two bills by the parking company associated to the Holiday Inn hotel in Cambridge I was staying in have been cancelled by request of the hotel as they were issued by their mistake. You may review the attached email from the hotel confirming that. Hence, the driver committed no "offence" and received no "fine".
3. The agreement does not grant you the permission to charge my credit card without my consent. You should have first received my consent to such charge prior to any charge. Since I did not issue such a consent, the credit card charge you issued on my credit card is illegal.
Please refund the amount you have charged my credit card.
Best regards,
Guy
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How is this ever going to court? The OP is an American living outside the UK. There will be no jurisdiction for any English court. The Hire company can dispute the chargeback and plead its case. However, suggesting that an English court may decide this issue is simply a non starter.
The Op should dispute the admin charge and let the credit card company argue it out with the Hire company.
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It may be an unfair term if it is not refunded where a charge is cancelled.
If the sun demanded was genuinely a pre estimate of the actual cost of the admin then I don’t think a court would support that view, after all why should the hire co. bear that as they have done nothing wrong.
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Many hire companies have widened the terms to include the word "charges" to attempt to bring private tickets into scope.
There is, perhaps, a consumer rights argument. It may be an unfair term if it is not refunded where a charge is cancelled.
I have had hire agreements with:-
- Refunded if charge cancelled (fairly common)
- Explicitly not refunded
- Silent
A reasonable interpretation of the latter may be that the term only applies to valid charges.
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I disagree.
3. As regards the distinction between the terms fines, traffic violations, offences and parking charges, IMO don't nit-pick or, in the paraphrased words of Sir Thomas Bingham, Master of the Rolls, 'on a straightforward down-to-earth reading of [the contract term] without legalism or exegetical sophistication” the context is designed to cater for your event and is an enforceable contract condition.
But there are other views!
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You are correct in your assumptions. No "fine" was issued. A speculative invoice from an unregulated private parking company was sent to the keeper (the hire company) for an alleged breach of contract with the unknown driver.
The Fire company then transferred liability from themselves to the Hirer (you). The private parking company (PPC) still has no idea who the unknown driver is. They only know that you are the known Hirer. Unfortunately for us here in England and Wales (and soon in Scotland), there is a law that allows the PPC to transfer liability from the unknown driver to the known keeper or known Hirer.
This law is known as the Protection of Freedoms Act 2012 (PoFA). However, for the PPC to be able to transfer that liability, they must fully comply with all the requirements of PoFA. In 99.99999% of cases involving hire or lease vehicles, they fail to fully comply and so cannot rely on PoFA to transfer the liability to the Hirer. They only way they would know the identity of the unknown driver is if the known Hirer told them. There is no legal obligation, whatsoever, for the known Hirer to identify the unknown driver.
So, the PPC has nowhere to go. Normally an appeal is rejected but the secondary appeal is usually upheld. Even if it wasn't the PPC would never allow it get in front of a judge if ti went to county court as a debt claim. They would be spanked by a judge. They simply hope that the Hirer is low-hanging fruit on the gullible tree and pays up.
In this case, you say "Next, the hotel administrator canceled the two citations - they were issued by mistake ...". I don't think that is quite right. The hotel could ask their agent, the PPC to cancel the PCN (citation in your Americanise) and it seems likely they did as they knew they would have no hope of getting you to pay them if you were not low-hanging fruit.
The problem now is that the Hire company has charged you their admin fee which they are not entitle to do based on the agreement you have with them if it only states ""fines or offences against the Vehicle, Owner, Renter". The driver committed no "offence" and received no "fine". As stated, the keeper was simply invoiced by a private company. A PPC is in no way, shape or form an "authority" that can issue fines or penalties. They are simply ex-clamper thugs out to scam as many unsuspecting low-hanging fruit on the gullible tree into paying them.
My advice is to dispute the fee with your credit card company and get them to chargeback the fee. Nothing will come of it and you will have defeated the mugs who were out to either scam you or wrongly charge you for something that you were not liable for because they failed to write their agreement properly.
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Hello,
The events are in England, I am an American with an American credit card.
I took a rental car at a rental company in Heathrow airport.
The rental agreement does say (in some addendum sent by email...): "an administration fee of up to £45 in the UK and up to €35 in Ireland for processing any fines or offences against the Vehicle, Owner, Renter, any Authorised Driver or any other person Renter permitted to use the Vehicle during the Rental Period, unless caused through Owner’s own fault;".
I stayed at a hotel in Cambridge for a few days, parking there the rental car.
I returned the rental car to the rental company and left England for the USA.
Some time after my stay, the hotel parking administrator issued me two parking violations for not paying for parking for two days.
Some time after I reached back home in the USA, I got an email from the rental company saying the following ...
The rental car company:
1. "processed" the citation, which means they sent the parking lot operator my information, and the citation to me by email.
2. they did *not* pay the fine. They explicitly told me that I will be paying the fine separately.
3. they went ahead and charged my credit card 35 pounds per ticket for processing - without getting my consent beforehand.
Next, the hotel administrator canceled the two citations - they were issued by mistake ...
So my questions are :
1. Does the agreement note/text above give the rental company authorization to charge my credit card without prior notification to me, giving me a chance to object?
[I would think that not - that opens the possibility for two rogue companies to conspire on issuing false charges with the intent of charging processing fees even if the parking bill itself is later on canceled]
2. Does the rental company providing the parking lot administrator my information + sending me an email with the details of the citation count as "processing", thus justifying a 35 pounds charge (per ticket) ?
[I would think that "processing" means actual payment, not just sending two emails, cause then there is the risk I won't pay the rental company back for the fine they payed already]
3. Does a private parking lot company claim that I owe them money count as a "fines or offences against the Vehicle, Owner, Renter" ?
[I would think that a fine is issued by a government entity ; a private company does not issue fines but only a bill ... I would think]
Thank you for your time taken to read and answer my questions.
Best,
Guy