HighView Parking Charge

HouseQuest

Hi Guys

I received a fine from Highview and am going to appeal it.

We looked at the most recent thread on Highview and were thinking we could use the same template altered as suggested for mctaggart. See what we will send below. We were wondering if he won on it being a free carpark, should we add the paragraph on the charges being unreasonable to it, rather than waiting to do so in the POPLA appeal?
I hope this makes sense. We have tried to read boards, sticky notes etc before asking!

See below our letter and the bit we wonder if we should add:

[FONT=&quot]Dear High View

Charge Notice Reference Number:

as the registered keeper, I have received your parking invoice which of course, I decline your invitation to pay. I wish to invoke your appeals process, since all liability to your company is denied on the following basis:

1) The amount being claimed is not a genuine pre-estimate of loss to your company or the landowner
2) Your signage does not comply with the BPA Code of Practice and was not sufficiently prominent or clear to create any contract
3) You are not the landowner and do not have the standing to offer contracts nor to bring a claim for trespass[/FONT]
[FONT=&quot]4) Finally Highview is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of BPA's Code of Practice. Having since visited the site, I contend that Parking Eye have failed to clearly inform drivers about the cameras and what the data will be used for and how it will be used and stored. I have also seen no evidence that they have complied with the other requirements in that section of the code. In addition I question the entire reliability of the system.[/FONT]
[FONT=&quot]
Please issue your standard cancellation letter or a specific, detailed rejection letter. If you choose to send the latter, it must state:

- the legal basis of your charge (i.e. breach, trespass or contractual fee?) as your signage was not seen/accepted by the driver and your recent Notice failed to make the basis of the charge clear. As keeper, I cannot be expected to guess the nature of the allegation.

- if alleging breach of contract, with your rejection letter I require a breakdown of the liquidated damages suffered, and by whom, and when this calculation was determined and how this particular 'loss' arose. Please also explain how/why you charge a fixed sum no matter whether the alleged contravention was trivial or more serious and how that can amount to a genuine pre-estimate of loss.

- if alleging trespass please enclose evidence of the perpetrator and proof of the liquidated damages alleged and the calculation of this sum.

- if alleging 'contractual fee' I require that you now send me a VAT invoice by return and explain the daily rate for parking and service provided for the fee. Failure to provide this information and a VAT invoice now that I have requested it, will be considered evidence that this was not in fact a genuine offer to park for a fee and is merely a penalty which is not recoverable in contract law (as found by Mr Recorder Gibson QC, on appeal at Luton County Court in the case of Civil Enforcement v McCafferty 3YK50188 (AP476) 21/2/2014).

Take formal note:

(a) Your unsupported, unsolicited invoice and any further letters if you persist, will constitute harassment. If you continue, your contact and that of any agent will be deemed a 'serious and persistent unwarranted threat' as found by Lord Justice Sedley in Ferguson v British Gas Trading Ltd [2009] EWCA Civ 46 (10 February 2009) and I reserve the right to take the matter further. You have been informed that I consider this to be harassment so any decision to send further letters rather than cancel the invoice will reinforce the evidence of your persistent unwarranted threat and you may be required to justify your actions in court.

(b) Any obfuscation on your part, such as pretending I have to name the driver, alleging I am too late or unable to appeal as keeper or requiring more evidence when clearly I have already set out my full challenge for this stage, will be reported to the DVLA and to your respective ATA, as a sanctionable breach of your Code of Practice.

(c) If you reject my challenge and insist upon taking the matter further I must inform you that I may claim my costs from you and my time at the court rate of £18 per hour. The expenses I may claim are not exhaustive but may include the cost of stamps, envelopes, travel expenses and legal fees as well as liquidated damages for distress arising from harassment.

By continuing to pursue me you hereby accept liability to pay my costs when I prevail and you acknowledge and imply full understanding of the above.

Yours,

[/FONT]

Should we add more on:...?
1. Charge not a genuine pre-estimate of loss
2. The amount of the charge is disproportionate ( as it is free?)

Thanks so much for your time.

Redx

the template letter in the NEWBIES sticky thread will suffice

HouseQuest

Hi Guys

I have appelaed the parking notice and been rejected by Highview. From what I can see, and from my own sense of proportion, £85 is a huge fine for a free carpark and I have seen others have been successful on this appeal so I am going for this approach. I have drafted this letter to POPLA using the posts around Highviewand the advice in the stickies etc..could you please tell me if I have it about right? I have removed details about me and the appeal.

Thanks for all your help!

POPLA Reference Number:
Vehicle Reg:
PPC: Highview Parking Ltd.
PCN Ref:
Alleged Contravention Date & Time: Date of PCN:

I as the registered keeper received an invoice from Highview Parking Ltd. requiring payment of a charge of £85 (discounted to £50 if paid within 14 days) for the alleged contravention of exceeding the duration of maximum stay permitted at This issue date on the invoice is

As the registered keeper, I would like to appeal this notice on the following grounds:
1 Charge not a genuine pre-estimate of loss
2 The amount of the charge is disproportionate.
3 No authority to levy charges
4 No Creditor identified on the Notice to Appellant
5. Unlawful Penalty Charge
6. Summary

1. Charge not a genuine pre-estimate of loss
The demand for a payment of £85 (discounted to £50 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 keeper declares that the charge is punitive and therefore an unenforceable penalty.
The BPA code of practice states: 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 provide a detailed breakdown of how the amount of the “charge” was calculated. 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. The amount of the charge is disproportionate
The amount of the charge is disproportionate to the loss incurred (off which there is none as this is a free car park) by Highview Parking Ltd. and is punitive, contravening the Unfair Contract Terms Act 1997. I also consider the PCN to be a penalty because being a free car park it is impossible to pay for any overstay. There can have been no loss arising from this incident. Neither can Highview Parking Ltd. lawfully include their operational day-to-day running costs in any “loss” claimed. I contend there can be no loss shown whatsoever. 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 meter rate in is normally around £1 an hour. I would question that if a charge can be discounted by £30 by early payment that it is unreasonable to begin with.
I therefore respectfully request that my appeal is upheld and the charge dismissed.


3. No authority to levy charges
A parking management company will need to have the proper legal authorization 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 put the Highview Parking Ltd. to strict proof to POPLA that they have the necessary legal authorization 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.

4. No Creditor identified on the Notice to Appellant
Failing to include specific identification as to who “the Creditor” may be is misleading and not compliant in regard to paragraph 9(2)(h) of Schedule 4 of the Protection of Freedoms Act 2012. Whilst the Notice has indicated that the operator requires a payment to Highview Parking Ltd. Ltd., there is no specific identification of the Creditor who may, in law, be Highview Parking Ltd. Ltd. or some other party. The Protection of Freedoms Act requires a Notice to Appellant to have words to the effect that “The Creditor is…” and the Notice does not.
I therefore respectfully request that my appeal is upheld and the charge dismissed.


5. 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.

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.

Yours faithfully

Redx

I would maybe add the extra beavis and adamson addition in not a gpeol

cannot see any claim about signage being poor etc, and this company are notorious for poor signage, incorrect maps etc (see parking pranksters blogs about them) - ALWAYS include signage as a point of appeal as these companies usually fail on signage

so good try but needs more work IMHO

ps:- although its an old template, its still linked via the newbies thread so read this and maybe add relevant parts like signage ?

https://forums.moneysavingexpert.com/discussion/4817018

HouseQuest

Thanks very much for that feedback, Ill email it off now and see how we go!

Redx

they dont normally accept email unless there is a problem with online submissions on their site

try their site first and attach your appeal

Dee140157

Um have you actually received your rejection and POPLA code from Highview? You can't do anything until you get that and since your first .appeal was only about 10/08 I would be surprised if you have it so soon.

You have to wait for POPLA code before you can do the next step.

Umkomaas

You need to beef up appeal point 4. Failure to disclose the creditor is not a winning appeal point in isolation.

What failure to disclose means they have not complied with PoFA and therefore have no case against the Keeper. They need to pursue the driver: you are under no obligation to inform them who that was.

I absolutely have a total dislike for this 'plea' at the end of each appeal paragraph, so I'd advise removing each and place one only as the last sentence of your whole appeal.

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

HTH

Coupon-mad

Have a look at the CP Plus one I just edited and re-wrote here:

https://forums.moneysavingexpert.com/discussion/comment/62180281#Comment_62180281

Not all relevant as that's an MSA car park but the GPEOL wording and the ANPR wording is strong and it shows you how to tear into a non-compliant NTK (which is not called a 'Notice to Appellant' that's a mistake from someone's old POPLA appeal).

Umkomaas wrote: »

I absolutely have a total dislike for this 'plea' at the end of each appeal paragraph, so I'd advise removing each and place one only as the last sentence of your whole appeal.
HTH

Totally agree about the 'plea' at the end of each paragraph - I detest it too and have never written one like that!

HouseQuest

I thought I would come back and say I won!
Thanks for all the advice. Basically I won as the POPLA appeals people said the amount the company claimed could not be justified due to it being a free car park and a vague definition of "overheads" used to try and show how staying in a free car park costs anything extra.
If you are in doubt, use the boards and take the time to do it!


Thanks again to all who helped

Coupon-mad

Well done - as expected but good to see you come back & confirm it for newbies.

Could you add a synopsis of the decision or a copy & paste job, into the top thread 'POPLA Decisions' please, stating first which PPC it relates to? Thanks.