Highview Parking Ltd

pbsimon

Hi all,

I'm looking for a template letter that can be used to send to Popla about Highview Parking Ltd after they rejected my initial appeal for overstaying in a Tesco & Retail Park car park in Watford recently.

Part of the problem is that shortly after the date of the "crime" my partner and I were in hospital for a week after our son was born prematurely and by the time I came home and finally went through the post that had piled up, I had received both the initial letter and the "you've not paid so you now owe us more money" follow up letter.

Any advice would be great as I don't fully understand forums and really just want to get this behind me and start looking after our son!

Thanks

Redx

just read post #3 of the NEWBIES sticky thread near the top of this forum

click on the link to take you to loads of popla appeals, choose a reasonable match and adapt it for your case (there are no template letters for this, you have to adapt a close match)

or if you had used the search box and HIGHVIEW POPLA APPEAL as the search phrase you would have found this from earlier this morning (and many others)

https://forums.moneysavingexpert.com/discussion/5047838

if its all too much, pay PTAS £16 to do it all for you

at parkingticketappeals.org.uk

pbsimon

Hi

Any feedback on the following letter to Highview Parking would be greatly appreciated.

Thanks

---

Dear POPLA,

I am writing to you regarding a rejected appeal to HIGHVIEW PARKING LTD following their claim that my car was parked on their client’s property for longer than permitted. Notwithstanding the fact that both their initial charge and their subsequent reminder arrived at a time when I was living away from my home address as my son had just been born prematurely and my partner and I were staying with him in the NeoNatal Unit of the hospital, they rejected my claim. I now fear I am liable to pay the full amount rather then their ‘generous’ reduction for early payment.

However, as I believe this charge to be erroneous and unsafe, I am the registered keeper & this is my appeal:

1)The Charge is not a genuine pre-estimate of loss
Their sign states the charge is for not fully complying with the conditions so this Operator must prove the charge to be a genuine pre-estimate of loss. There is no loss flowing from this parking event because the car park was not even half full, so if the duration of any stay exceeded any supposed allotted time (which is denied as I am the keeper and it is up to HIGHVIEW PARKING LTD to show as much) there was 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.

Nor is the charge 'commercially justified'. If we look at another, similar company, Excel (VCS) cite 'ParkingEye v Beavis & Wardley' it's irrelevant since Mr Beavis is taking that flawed small claim decision to the Court of Appeal, just as HHJ Moloney fully expected at the time he made his decision, which was full of caveats and full of holes and a distinct lack of case law. In addition, POPLA Assessor Chris Adamson has stated in June 2014 upon seeing VCS' latest effort at a loss statement - their latest attempt to get around POPLA and likely to be broadly similar to any effort made by their sister firm, Excel - that:

''I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”.

This supports the principle that the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''

My case is the same and Excel contracts are nothing like HIGHVIEW PARKING LTD's contract in the Beavis case anyway, where Parking Eye paid £1000 per week for what was in effect a 'fishing licence' to catch victims and where the Operator made out they were the principal. In my case, HIGHVIEW PARKING LTD appear to be merely agents at best, with a bare contractor's licence to put up signage and 'issue tickets' and they are known to be paid by their client so they have no standing nor loss to claim in their own right anyway. Of course money changing hands will affect any calculations of so-called 'loss' and is one of several reasons why I will require the landowner contract in full (unredacted) as mentioned later.

Therefore I believe this charge to be purely punitive and would call on HIGHVIEW PARKING LTD to prove otherwise.

2) Lack of signage - no contract with driver
A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. The driver did not see any sign; there was no consideration/acceptance and no contract agreed between the parties.

The sign also breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver in the hours of darkness: ''Signs should be readable and understandable at all times...”

3) Lack of standing/authority from landowner to issue tickets
HIGHVIEW PARKING LTD has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put HIGHVIEW PARKING LTD to strict proof of the contract terms with the actual landowner (not a lessee or agent). UKCPS have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that HIGHVIEW PARKING LTD are entitled to pursue these charges in their own right.

I require HIGHVIEW PARKING LTD to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.

4) Unreasonable/Unfair Terms
The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.

Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer".

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”

I contend it is wholly unreasonable to rely on a lack of signs/markings in an attempt to profit by charging a disproportionate sum where no loss has been caused by a car in a free car park. I put this Operator to strict proof to justify that their charge, under the circumstances described and with their utter lie about the keeper's right to appeal 'only if the car is stolen' in mind, does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.

5) Inaccuracies in the ANPR cameras

As has been the case with previous claims, it is wholly possibly that the ANPR cameras used by HIGHVIEW PARKING LTD are flawed. Given the range of shops and restaurants available in this retail park, it would be very possible for a customer to visit the same car park twice in a day but HIGHVIEW PARKING LTD issued the ticket based on the 1st entry and last exit (i.e. one long stay). This could indicate a flaw in either the technology (e.g. not always recognising number plates) or the business process (e.g. HIGHVIEW PARKING LTD not checking their records correctly) and the burden of proof lies with them to prove otherwise.

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

Yours faithfully

Coupon-mad

Needs to be merged, should not be a separate thread as we can't see the background details and we have a 'one case ONE thread' rule to keep the forum organised well and easier to follow individual cases:

https://forums.moneysavingexpert.com/discussion/5063480

Send a pm to Crabman and ask him to merge the threads.

pbsimon

Oh lordy, it's all so confusing. I'm sorry. That last thread was just me being a complete novice, so is that the one it needs to merge with? And Crabman can help me with this?

Umkomaas

The two threads need merging (not the two appeals), and yes, Crabman (forum guide) will do the merger for you.

I notice in the above appeal a couple of things.

1. You mention Excel and VCS a couple of times - not sure why you're bringing two further PPCs into the equation - is there a specific reason? Edit - and UKCPS, this is looking a bit of a mishmash.

2. I note that Highview Parking Limited is in block capitals throughout your appeal. It looks to me that you have done a 'find and replace' job in Word? Whilst to a degree that's ok, the BLOCK CAPS does give it away a bit. Plus, there is also the danger that other parts of the appeal refer more specifically to the previous PPC - so you do need to check the text in every paragraph very carefully to ensure this isn't the case.

Crabman

Duplicate threads have been merged.

P.S: Welcome to MSE :cool:

Coupon-mad

Oh lordy, it's all so confusing. I'm sorry. That last thread was just me being a complete novice, so is that the one it needs to merge with?

Yes but you can now see the difference, now we can see this (BELOW) as background which helps us see what's what. We can't advise on a random POPLA appeal in isolation of detail of when/where/what happened:

pbsimon wrote: »

Hi all,

I'm looking for a template letter that can be used to send to Popla about Highview Parking Ltd after they rejected my initial appeal for overstaying in a Tesco & Retail Park car park in Watford recently.

Part of the problem is that shortly after the date of the "crime" my partner and I were in hospital for a week after our son was born prematurely and by the time I came home and finally went through the post that had piled up, I had received both the initial letter and the "you've not paid so you now owe us more money" follow up letter.

Any advice would be great as I don't fully understand forums and really just want to get this behind me and start looking after our son!
Thanks

You do need to change everything to Highview throughout any POPLA draft you use!

In fact I have just added a new example POPLA appeal to the 'How to win at POPLA' link in post #3 of the Newbies thread, and it's about G24 but I stated 'can be used for Highview' as their flaws in wording and the 2 firms' modus operandi, etc. are sooo similar. All you would need to do would be to use the new G24 example and change the G24 to Highview throughout. It's stronger than the one you found because it includes stuff about the NTK flaws = no keeper liability.

pbsimon

Thanks for all your help. Really appreciate it. I have merged my letters and taken on board your various posts also.

No doubt it's still too wordy and a bit confused, but hopefully it's more of a step in the right direction.

Thanks

---

Dear POPLA Assessor,

Re: Highview Parking Ltd fake PCN, verification code xxxxxxxxxx

I am writing to you regarding a rejected appeal to Highview Parking Ltd following their claim that my car was parked on their client’s property for longer than permitted. Notwithstanding the fact that both their initial charge and their subsequent reminder arrived at a time when I was living away from my home address as my son had just been born prematurely and my partner and I were staying with him in the NeoNatal Unit of the hospital, they rejected my claim. I now fear I am liable to pay the full amount rather then their ‘generous’ reduction for early payment.

However, as I believe this charge to be erroneous and unsafe, I am the registered keeper and I wish to appeal a recent parking charge from Highview Parking Ltd. I submit the points below to show that I am not liable for the parking charge:

1) No genuine pre-estimate of loss
This car park is free and there is no provision for the purchasing of a ticket or any other means for paying for parking. There was no damage nor obstruction caused so there can be no loss arising from the incident. Highview Parking Ltd notices allege 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. Given that Highview Parking Ltd charge the same lump sum for a 15 minute overstay as they would for 150 minutes, and the same fixed charge applies to any alleged contravention (whether serious/damaging, or trifling as in my case), it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss.

Nor is the charge 'commercially justified'. If Highview Parking Ltd cites 'ParkingEye v Beavis & Wardley' it's irrelevant. Mr Beavis is taking that flawed small claim decision to the Court of Appeal, just as HHJ Moloney fully expected at the time he made his decision, which was full of caveats and full of holes and a distinct lack of case law. In addition, POPLA Assessor Chris Adamson has stated in June 2014: ''In each case that I have seen from the higher courts...it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach...It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''

Highview Parking Ltd and POPLA will be familiar with the well-known case on whether a sum is a genuine pre-estimate of loss or a penalty: Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC 79. Indeed I expect Highview Parking Ltd might cite it. However, therein is the classic statement, in the speech of Lord Dunedin, that a stipulation: “… will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach.'' There is a presumption... that it is penalty when "a single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage".

The Office of Fair Trading has stated to the BPA Ltd that a 'parking charge' is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists. And the BPA Code of Practice states that a charge for breach must wholly represent a genuine pre-estimate of loss flowing from the parking event.

Like other operators, it is in the public domain that Highview Parking Ltd have recently jumped on the bandwagon and manufactured a newly re-written ‘loss’ statement. This is surprisingly similar to that used by PPS (after PPS had won a couple of anomalous POPLA decisions). This allegedly plagiarised calculation is now common to several operators and POPLA has seen it and dismissed it before. A generic 'model loss statement' cannot possibly show any regard to calculating before the event, a genuine pre-estimate of the likely loss which might typically flow from a parking event. I contend Highview Parking Ltd 's calculation is merely a conveniently-totalled sum of actual loss suffered, made afterwards, rather than a genuine pre-estimate of loss.

I put G24 to strict proof of the date when the GPEOL was decided for this contravention in this car park. This must include documentary evidence of a meeting with their client or contemporaneous notes or emails or other evidence which shows how/when this PCN sum was decided in advance, specifically for this client in this car park and showing the likely losses caused by this alleged contravention.

2) No standing or authority to pursue charges nor form contracts with drivers
Highview Parking Ltd do not own the land mentioned in their Notice to Keeper and have not provided any evidence that they are lawfully entitled to demand money from a driver or keeper. Even if a contract is shown to POPLA, I assert that there are persuasive recent court decisions against Highview Parking Ltd which establish that a mere parking agent has no legal standing nor authority which could impact on visiting drivers.

In ParkingEye v Sharma, Case No. 3QT62646 in the Brentford County Court 23/10/2013 District Judge Jenkins checked the ParkingEye contract and quickly picked out the contradiction between clause 3.7, where the landowner appoints ParkingEye as their agent, and clause 22, where is states there is no agency relationship between ParkingEye and the landowner. The Judge dismissed the case on the grounds that the parking contract was a commercial matter between the Operator and their agent, and didn’t create any contractual relationship between ParkingEye and motorists who used the land. This decision was followed by ParkingEye v Gardam, Case No.3QT60598 in the High Wycombe County Court 14/11/2013 where costs of £90 were awarded to the Defendant. District Judge Jones concurred completely with the persuasive view in ParkingEye v Sharma that a parking operator has no standing to bring the claim in their own name. This case is the same.

3) Flawed landowner contract
Under the BPA CoP Section 7, a landowner contract must specifically allow the Operator to pursue charges in their own name in the courts and grant them the right to form contracts with drivers. I require Highview Parking Ltd to produce an unredacted copy of the contract with the landowner as I believe it is not compliant with the CoP and that it is the same flawed business agreement model as in Sharma and Gardam.

Indeed I submit (and as I have raised the issue, Highview Parking Ltd must now disprove) that their Contract or User Agreement with the landowners is likely to contain a secret 'genuine customer exemption' clause which in fact exempts customers from these spurious charges. Not only have Highview Parking Ltd not allowed my initial appeal, but at the outset, when they allege a contract was formed, (which is denied) Highview Parking Ltd failed to alert the driver to that secret clause. Which leads me to the next point:

4)The signage was not compliant with the BPA Code of Practice so there was no valid contract formed between Highview Parking Ltd and the driver
I submit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B. The signs failed to properly warn/inform the driver of the terms and any consequences for breach. Further, because Highview Parking Ltd are a mere agent and place their signs so high, they have failed to establish the elements of a contract (consideration/offer and acceptance). Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) Highview Parking Ltd have no signage with full terms which could ever be readable at eye level, for a driver in moving traffic on arrival. The only signs are up on poles with the spy cameras and could not be read nor even seen by the occupants of any car, who are there at the invitation of the landowners, to shop and enjoy free parking as expressly offered to customers in the principal's advertising and website.

5) ANPR Accuracy and breach of the BPA Code of Practice 21.3
This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I say that Highview Parking Ltd 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. I require that Highview Parking Ltd present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos 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 is vital that this Operator must produce evidence in response and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss recently in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from ParkingEye was fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

So, in addition to showing their maintenance records, I require Highview Parking Ltd to show evidence to rebut the following assertion. I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR "evidence" from the cameras in this car park is just as unreliable and unsynchronised as the evidence in the Fox-Jones case. As their whole charge rests upon two timed photos, I put Highview Parking Ltd to provide strict proof to the contrary.

I request that my appeal is upheld and for POPLA to inform Highview Parking Ltd to cancel the PCN.

Yours faithfully,

THE REGISTERED KEEPER

Coupon-mad

I would definitely include this as well because it's relevant to Highview as they just lost the POPLA case mentioned. I would put this as point #2 and move the rest down a number:



The Notice to Keeper is not properly given and does not establish keeper liability under the Protection of Freedoms Act 2012 (POFA)
The operator must produce evidence that the keeper liability requirements of Schedule 4 of the POFA have been complied with, as the liability is not based in the law of contract but is created by the statute. The fact that some of this information (below) may be able to be implied by a reader familiar with the legal context of parking does not mean that the NTK is compliant. A NTK is a fundamental document in establishing keeper liability. The requirements of Schedule 4 of the POFA as regards the wording in a compliant NTK are prescriptive, unequivocal and a matter of statute, not contract law. Any omission or failure to set out even some of the mandatory NTK wording means there is no 'keeper liability'.

The following points (A)-(C) are omissions in the NTK, making this a non-compliant under Schedule 4:
(A) The 'period of parking' is not shown, only the time of issue of an alleged PCN when the car was seen by a remote camera in moving traffic at the exit, not parked.
(B) It fails to specify any (not even a stated 'zero amount') of unpaid parking charges “for the specified period of parking” (which was not specified). These charges, which the Schedule defines as a sum which 'remains unpaid' as at the day before issue of the NTK, cannot be the extravagant PCN 'parking charge' because that only becomes (arguably) 'due' after the NTK is served. The amount and circumstances of the 'unpaid' parking charges must be 'described' and cannot just be omitted entirely since the 'description of charges which remain unpaid' is mandatory.
(C) It does not identify the creditor, as was found by POPLA Assessor, Nadesh Karunairetnam, in Sept 2014 in POPLA code 2922064001 when reviewing the same document from Highview:
''The notice to keeper issued by {Highview Parking} appears not to comply with sub-paragraph 2(h) as it does not identify the creditor. The identification of the operator as the organisation to which cheques should be made payable and to whom complaints may be made does not constitute an identification of the creditor, as an organisation that is not the creditor could perform all the specified roles. As the notice to keeper is not valid, I cannot find that the charge notice is enforceable.''

pbsimon

Just wanted to thank you all for your help...WE WON! Really appreciate all your support with the correct wording. Have added the POPLA appeal decision to the relevant thread.