Excessive towing/storage fees as a Beavis penalty

Towing-and-storage fees commonly £200-500+ are challengeable as penalty clauses under the doctrine restated in Cavendish Square Holding BV v Talal El Makdessi; ParkingEye Ltd v Beavis [2015] UKSC 67. The test: is the sum out of all proportion to the legitimate interest of the innocent party in the enforcement of the primary obligation? Where the fee bears no relation to actual recovery and storage cost, and the operator cannot evidence costs, the clause is an unenforceable penalty. CRA 2015 ss.62-69 also apply: the term must be transparent, prominent, and not cause significant imbalance to the consumer's detriment.

Legal basis

Cavendish Square Holding BV v Talal El Makdessi; ParkingEye Ltd v Beavis [2015] UKSC 67 (penalty doctrine); Consumer Rights Act 2015 ss.62-69 (unfair terms); ss.61-65 (consumer notices); Schedule 2 (indicative grey list, item 6 — 'disproportionately high sum in compensation')

How to identify this in your case

Towing/storage release fee is £200+; signage does not break down the fee or differentiate from parking charge; operator cannot evidence actual recovery + storage costs; fee charged per day with no cap.

Sample appeal wording

Dear [OPERATOR], Re: Towing/storage fee for vehicle [REG] — Demand for refund of £[AMOUNT] The fee charged is unenforceable for the following independent reasons: 1. Penalty clause. Per Cavendish Square Holding BV v Talal El Makdessi; ParkingEye Ltd v Beavis [2015] UKSC 67 a contractual sum payable on breach is unenforceable as a penalty if it is 'out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation' (Lord Neuberger and Lord Sumption [32]). The £[AMOUNT] charged bears no relationship to your actual cost of recovery (a few miles tow) and storage (£[X]/day commercial rate) and is therefore extravagant and unconscionable. 2. Unfair term. Under section 62 of the Consumer Rights Act 2015 a term is unfair if 'contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations under the contract to the detriment of the consumer'. Schedule 2 paragraph 6 to the Act lists as an indicative unfair term any provision 'requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation'. 3. Transparency. Under s.68 CRA 2015 a term must be transparent and prominent. The signage at [LOCATION] [does not display the fee / does not break down the fee / displays it only in small print on a low-down sign]. 4. UTCCRs/CRA Schedule 2 grey list — disproportionately high sum. I require a refund of £[AMOUNT] within 14 days. If you wish to defend the charge, please provide: (a) Itemised breakdown of actual cost of recovery and storage; (b) The contract with the landowner authorising you to charge this sum; (c) Copies of all signage and a positional plan; (d) The data under UK GDPR Article 15. Yours faithfully, [NAME]

Replace [PARKING DATE], [NtK DATE] etc. with your own dates before sending.

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Sources

ParkingEye v Beavis [2015] UKSC 67
Consumer Rights Act 2015 ss.62-69, Sch 2