Moderate Defence

Unfair Contract Terms: Consumer Protection Against Parking Charges

The Consumer Rights Act 2015 provides that unfair terms in consumer contracts are not binding. A parking charge notice is based on a consumer contract, and if the terms are unfair -- for example, if they create a significant imbalance in the parties' rights, if key terms were hidden in small print, or if the terms are excessively one-sided -- they may be unenforceable.

--The Consumer Rights Act 2015 applies to private parking contracts
--A term is unfair if it causes a significant imbalance to the detriment of the consumer
--Terms that were not transparent or prominent may not be binding
--The fairness of a term is assessed at the time the contract was made

Key Takeaways

Private parking terms are consumer contracts governed by the Consumer Rights Act 2015
Key terms must be transparent (in plain language) and prominent (brought to your attention)
One-sided terms that heavily favour the operator may be unfair
Terms that exclude or limit the operator's liability while imposing harsh penalties on you may be unfair
The court has power to assess fairness and strike out unfair terms

What This Defence Means

The Consumer Rights Act 2015 (CRA) replaced the Unfair Terms in Consumer Contracts Regulations 1999 and provides broad protection against unfair contract terms. Section 62 of the CRA states that an unfair term in a consumer contract is not binding on the consumer. A term is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations to the detriment of the consumer. For parking charges, this means that terms which are excessively punitive, unclear, hidden, or one-sided can be challenged. The assessment of fairness considers the nature of the contract, the circumstances at the time it was made, and the other terms of the contract.

When This Defence Applies

The parking charge amount is excessive relative to the service provided or the loss suffered
Key terms (such as the charge amount or time limit) were hidden in small print or not prominent
The terms give the operator broad powers while offering the consumer no corresponding protections
The terms allow the operator to vary the charge amount after the contract was formed
The terms exclude the operator's liability for errors (e.g., ANPR misreads) while penalising the consumer
The terms create an obligation to pay that is triggered by a technicality (e.g., failure to register a vehicle) rather than any actual loss

How to Argue This Defence

1.Identify the specific term(s) in the parking contract that you consider unfair.
2.Explain why the term causes a significant imbalance in the parties' rights and obligations.
3.Reference Section 62 of the Consumer Rights Act 2015.
4.If the term was not transparent (not in plain, intelligible language) or not prominent, reference Section 64 and argue it should not be binding.
5.Refer to Schedule 2 of the CRA, which lists terms that may be regarded as unfair (the 'grey list'). Relevant examples include terms that require excessive compensation for non-performance and terms that allow the trader to vary the contract unilaterally.
6.Argue that the court should assess the fairness of the term and, if it is unfair, treat it as not binding.

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Relevant Law

Consumer Rights Act 2015, Section 62

A term in a consumer contract is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations to the detriment of the consumer.

Consumer Rights Act 2015, Section 64

A term that relates to the main subject matter of the contract or the adequacy of price can still be assessed for fairness if it is not transparent and prominent.

Consumer Rights Act 2015, Schedule 2

The 'grey list' of terms that may be regarded as unfair, including terms requiring excessive compensation and terms allowing unilateral variation.

Example Scenarios

1.The parking terms state that any overstay, even by one minute, results in a charge of 100 pounds. This all-or-nothing approach may be disproportionate and unfair.
2.The terms require you to register your vehicle on an app, but the app was not working. The terms make no provision for technology failures, placing all risk on the consumer.
3.The terms state that the operator can increase the charge if not paid within 14 days, but offer no corresponding right for the consumer to reduce the charge if the operator is at fault.
4.Key terms about the charge amount were displayed in small print on a sign 3 metres off the ground, not at eye level.

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Frequently Asked Questions

Does the Consumer Rights Act apply to parking charges?

Yes. A private parking charge is based on a consumer contract between the motorist and the parking operator. The Consumer Rights Act 2015 applies to such contracts, including the provisions on unfair terms in Sections 62 to 69 and Schedule 2.

Can a court declare a parking term unfair?

Yes. Under the Consumer Rights Act 2015, a court has the power to assess the fairness of any term in a consumer contract. If the court finds a term to be unfair, it is not binding on the consumer. The rest of the contract may continue to exist if it can operate without the unfair term.

What is the difference between unfair terms and a disproportionate charge?

They are related but distinct arguments. A disproportionate charge argument focuses on the penalty rule -- the charge is excessive relative to the operator's legitimate interest. An unfair terms argument is broader and applies the Consumer Rights Act 2015 -- the terms as a whole (not just the charge amount) may be unfair because they create a significant imbalance. Both arguments can be raised together.