Highview

Coupon-mad

Yep - in addition I think you could have a bit of fun & make Highview jump through hoops re the signage, by extending the point 3. Signage to state that:


The sign at the entrance to the car park was positioned on a pole on the passenger side of a standard right-hand drive vehicle and on a sharp right hand bend. This makes the sign difficult for a driver to see from inside the car. It is also difficult to view this sign without impeding the flow of traffic and pedestrians behind. The BPA Code of Practice at Appendix B sets out strict requirements for entrance signage, including “The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead” and “There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background”.

Highview's first sign failed not only to meet those conditions but also failed to create any contract with a driver in moving traffic. And this failure lies not just with the purported entrance sign; indeed no Highview signs were seen and so it is a matter of fact that their alleged terms formed no contract with the driver. I contend that Highview's actions since this PCN was issued actually support my assertion that the signs on the day were inadequate. I received my POPLA code and went to get photos of signs at that car park but I saw that they have all just been changed - now there are signs on every lamp post with different wording. Of course Highview's evidence and signage map must be appropriately dated and I put them to strict proof that they MUST show the signs/site map as existed on the date of this PCN.

Many other signs exist in this shoppers' car park, what with adverts, offers of BOGOFS, signs for the trolleys and toilets or cashpoints etc., and no shopper is expecting to enter into a contract with a third party when they arrive and their mind is focussed on their shopping. No shopper is expecting to 'clock in and clock out' in some sort of trolley-dash when shopping. So, just another sign up a pole - with unreadable small t&cs and which is not in the driver's line of vision - is not capable of being described as an offer or contract that 'must' have been seen.

In J. Spurling v. Bradshaw <a title="Link to BAILII version" href="http://www.bailii.org/ew/cases/EWCA/Civ/1956/3.html"&gt;[1956] 1 W.L.R. 461 there are the observations of Lord Justice Denning at page 466: ' I quite agree that the more unreasonable a clause is, the greater the notice which must be given of it. Some clauses which I have seen would need to be printed in red ink on the face of the document with a red hand pointing to it before the notice could be held to be sufficient.''
This was repeated by Lord Justice Denning in Thornton v. Shoe Lane Parking Ltd. <a title="Link to BAILII version" href="http://www.bailii.org/ew/cases/EWCA/Civ/1970/2.html"&gt;[1971] 2 Q.B. 163 ''the court should not hold any man bound by it unless it is drawn to his attention in the most explicit way. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it - or something equally startling."

The old signage was certainly not 'startling' in this busy car park and therefore I respectfully request that my appeal is upheld and the charge dismissed.

Stormy38

Again have use the copy and paste a lot and have amended some of the comment 3 text where it's relevant, hope that's OK. Am hoping this is the final copy I can send through to POPLA. Again many thanks for all your help.


Alleged Contravention Date & Time: 21/04/2014


Date of PCN: 13/05/2014





I as the driver received an invoice from Highview Parking Ltd. requiring payment of a charge of £70 (discounted to £42 if paid within 14 days) for the alleged contravention of exceeding the duration of maximum stay permitted at Riverside Retail Park B. The issue date on the invoice is XXXXXXX.





As the driver, I would like to appeal this notice on the following grounds:


1. Charge not a genuine pre-estimate of loss


2.No authority to levy charges


3. Signage


4. Unlawful Penalty Charge


5. ANPR Accuracy


6. Summary





1. Charge not a genuine pre-estimate of loss


The demand for a payment of £70 (discounted to £42 if paid within 14 days) is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to the loss that would have been suffered by the Landowner.The BPA code of practice states:


“19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.


19.6 If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable.


I require Highview Parking Ltd. to prove the charge to be a genuine pre-estimate of loss. There was no parking charge levied in the above car park as the car park is 'free', there is no loss flowing from this parking event because the car park was not full, there is no loss of potential income in a free car park.


This Operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.


The charge that was levied is punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. Nor does it even equate to local council charges for all day parking, as the parking rate in the corresponding area is £2.00 per hour with a daily rate of £20.00 per 24 hour period. I would question that if a charge can be discounted by £30 by early payment that it is unreasonable to begin with.


I am aware from Court rulings and previous POPLA adjudications that the cost of running the business (such as the erection of signage, the provision of back office services, the maintenance of ANPR cameras, cost of membership of the BPA Ltd etc.) may not be included in this pre-estimate of loss.


I therefore respectfully request that my appeal is upheld and the charge dismissed.





2. No authority to levy charges


A parking management company will need to have the proper legal authorisation to contract with the consumer on the landowner’s behalf and enforce for breach of contract. Highview Parking Ltd. must produce evidence to demonstrate that it is the landowner, or a contract that it has the authority of the landowner to issue charge notices at this location.


I believe there is no contract with the landowner/occupier that entitles Highview Parking Ltd. to levy these charges and to pursue these charges in their own name as creditor in the Courts and therefore has no authority to issue charge notices.


I request Highview Parking Ltd. To provide strict proof to POPLA that they have the necessary legal authorisation at this location and I demand that the Highview Parking Ltd. produce to POPLA the contemporaneous and unredacted contract between the landowner and the Highview Parking Ltd. Even if a basic contract is produced and mentions PCNs, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between Highview Parking Ltd. and the owner/occupier, containing nothing that Highview Parking Ltd. can lawfully use in their own name as a mere agent, that could impact on a third party customer.


I therefore respectfully request that my appeal is upheld and the charge dismissed.





3. Signage


The sign at the entrance to the car park was positioned on a pole on the passenger side of a standard right-hand drive vehicle and on a sharp right hand bend. This makes the sign difficult for a driver to see from inside the car. It is also difficult to view this sign without impeding the flow of traffic and pedestrians behind. The BPA Code of Practice at Appendix B sets out strict requirements for entrance signage, including “The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead” and “There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background”.

Highview's first sign failed not only to meet those conditions but also failed to create any contract with a driver in moving traffic. And this failure lies not just with the purported entrance sign; indeed no Highview signs were seen and so it is a matter of fact that their alleged terms formed no contract with the driver. I contend that Highview's actions since this PCN was issued actually support my assertion that the signs on the day were inadequate. I received my POPLA code and went to get photos of signs at that car park but I saw that they have all just been changed - now there are signs on every lamp post with different wording. Of course Highview's evidence and signage map must be appropriately dated and I put them to strict proof that they MUST show the signs/site map as existed on the date of this PCN.

Other signs exist in this shoppers' car park, adverts, offers etc., and no shopper is expecting to enter into a contract with a third party when they arrive and their mind is focused on their shopping. No shopper is expecting to 'clock in and clock out' in some sort of trolley-dash when shopping. So, just another sign up a pole - with unreadable small T&Cs and which is not in the driver's line of vision - is not capable of being described as an offer or contract that 'must' have been seen.

In J. Spurling v. Bradshaw there are the observations of Lord Justice Denning at page 466: ' I quite agree that the more unreasonable a clause is, the greater the notice which must be given of it. Some clauses which I have seen would need to be printed in red ink on the face of the document with a red hand pointing to it before the notice could be held to be sufficient.''
This was repeated by Lord Justice Denning in Thornton v. Shoe Lane Parking Ltd. ''the court should not hold any man bound by it unless it is drawn to his attention in the most explicit way. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it - or something equally startling."

The old signage was certainly not 'startling' in this busy car park and therefore I respectfully request that my appeal is upheld and the charge dismissed.






4. Unlawful Penalty Charge


Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for a free car park, it can only remain a fact that this “charge” is an attempt at extorting an unlawful charge in lieu of a parking ticket. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008), also OBServices v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012). The operator could state the letter as an invoice or request for monies, but chooses to use the wording “CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to what the Police and Council Wardens issue.


I therefore respectfully request that my appeal is upheld and the charge dismissed.





5. ANPR Accuracy


Highview Parking Ltd. are obliged to make sure the APNR equipment is in working order, as described in paragraph 21.3 of the British Parking Association’s Approved Operator Scheme Code of Practice, version 3 of June 2013. I require Highview Parking Ltd. to present records as to the dates and times of when the cameras were checked, calibrated and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times – it’s vital that Highview Parking Ltd. produce evidence in response to these points.





6. Summary


On the basis of all the points I have raised, this “charge” fails to meet the standards set out in paragraph 19 of the BPA CoP and also fails to comply with basic contract law.

Coupon-mad

Send it, I reckon, and get on with your life now!

Stormy38

I've just received an email with the evidence from Highview do I just sit tight and wait? Also the photos of the signs they have included is the new ones not the ones up when I apparently overstayed, do you think I should tell them this even though this was mentioned in my appeal?
Advice please. TIA

Redx

no reason why you cannot add to your popla defence by refuting this new evidence pack on any relevant details , including these incorrect signage photos

if you read pranksters blogs you will see he has mentioned this signage issue before (and wrong maps)

telling popla twice only reinforces your appeal

Coupon-mad

Stormy38 wrote: »

I've just received an email with the evidence from Highview do I just sit tight and wait? Also the photos of the signs they have included is the new ones not the ones up when I apparently overstayed, do you think I should tell them this even though this was mentioned in my appeal?
Advice please. TIA

Yes I do think you should email POPLA to point it out.

Stormy38

Today I've received my appeal decision from POPLA and it has been upheld!!! Thank you so much to everyone on here for your advice and support. Hoping the second will have the same decision as it was the same place and company. Again many many thanks to all :-)

Redx

excellent news

please post the judgement (minus personal info) in the POPLA DECISIONS thread, linked in the crabman sticky thread