Highview Parking PCN - Still a bit confused

DJBenz

OK, barring my queries about the NTK I've modified as follows (edited for length, highlighted bits have been added)

[...]
My appeal is based on the following grounds:
[...]

1. No breach of contract and no genuine pre-estimate of loss
[...]

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.''

I would also like to rebut in advance Highview Parking Ltd's (now commonly submitted in POPLA appeals) generic Genuine Pre-Estimate of Loss statement that will include vague heads of cost described as 'overheads' and numerous 'checks and balances' alleging hours of Management time spent checking other staff's work. This is far too many layers of staff costs to be fair, and it is a spurious statement of 'actual costs' rather than demonstrating the charge was based on a Genuine Pre-Estimate of Loss. These overheads cannot be in the reasonable contemplation of the Operator at the time of issuing every PCN, because less than 2% of cases ever go to POPLA. PCN's issued and paid at full rate, cannot be liable for the cost of a POPLA appeal for the tiny minority, yet that is what Highview are trying to suggest makes up the total.

In a recent (02 October 2014) decision on Highview Parking Ltd's generic Genuine Pre-Estimate of Loss statement, POPLA Assessor Shehla Pirwany stated, "Whilst staff costs may fall within a genuine pre estimate of loss, in this case, the Operator has included ‘overheads,’ within their staff costs. Overheads are a general operating cost that would have been incurred even if the motorist had parked in accordance with the terms and conditions and are therefore not a cost that can be incurred as a result of a breach of the terms and conditions. The ‘overheads,’ amount is included with the largest amounts listed on the breakdown and I am unable to determine the amount of the figure that is attributable to overheads. As the amount for overheads cannot be separated from the overall amount, the amounts must be discounted from the breakdown. In the absence of further explanation as to the overhead amount being claimed, I am not satisfied that the amount of the charge is substantially linked to the loss incurred as a result of the breach."


[...]

3. Notice to Keeper not properly given under POFA 2012 – no keeper liability.

[...]

The wording of Paragraph 9(2)(h) of Schedule 4 of the Act does not just indicate that the creditor must be named/assumed, but “identified”. The owner of the vehicle is entitled to know the identity of the party with whom the driver has allegedly contracted. In failing to specifically identify the ‘Creditor’ in its Notice to Keeper, Highview Parking Ltd. has failed to establish keeper liability. In this case, the NTK has not been correctly 'given' under POFA2012 and so it is a nullity. In a previous ruling, POPLA Assessor Matthew Shaw stated that the validity of a Notice to Keeper is 'fundamental to establishing liability' for a parking charge, stating: "where a Notice is to be relied upon to establish liability it must, as with any statutory provision, comply with the Act."

I would also like to bring to attention POPLA Assessor, Nadesh Karunairetnam's findings in POPLA Appeal 2922064001 that "Specifically, the appellant did not admit to being the driver and submitted that the notice to keeper was inadequate as it did not properly indicate the creditor.

The operator must produce evidence that this has occurred regardless of whether the issue is raised by the appellant, as the liability is not based in the law of contract but is created by the statute. The notice to keeper issued by the operator appears not to comply with sub-paragraph 2(h) as it does not identify the creditor. "

The NTK is also missing a description of the parking charges which remained outstanding and unpaid by the driver the day before the NTK was issued; in other words any tariff not paid (if 'none' then POFA2012 makes it clear the NTK still has to describe them).

[...]

5. Unclear and non-compliant signage, forming no contract with drivers.

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. is a mere agent and places its signs in a non-compliant manner, it has 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 car park, 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. has no signage with full terms which could ever be readable at eye level, for a driver in moving traffic on arrival.

Any further advice gratefully received, naturally.

Coupon-mad

Yep looks fine TBH, you will win! The duration isn't the period of parking though, as you say it's the time of arrival and leaving in moving traffic and nothing to do with any parking time at all. So you could add the fact:


There is no 'period of parking' shown on the NTK, no doubt because no parking was observed. As this is a postal PCN, the times shown are merely the arrival & leaving times at the entrance/exit which is not the same as the mandatory 'period of parking' required by Schedule 4 paragraph 9. The parking period cannot be assumed - parking is not driving in/out - and the requirement to state a parking period is mandatory.

DJBenz

Brilliant, thank you. The full appeal is posted below in case anyone needs to refer to it without comparing between the first version and the changes. I'll post as soon as there is a verdict, and should there be anything new and significant in the assessor's comments, I'll post up the appeal number so that others can quote it in future.

Dear Sirs,

Re: POPLA CODE [removed]

As the registered keeper of the vehicle, registration number [removed], I wish to appeal against the parking charge issued by Highview Parking Ltd..

My appeal is based on the following grounds:

1. No breach of contract and no genuine pre-estimate of loss.
2. Contract with the landowner – no locus standi.
3. Notice to Keeper not properly given under POFA 2012 – no keeper liability.
4. Lack of photographic evidence and unreliable, unsynchronised and non-compliant ANPR system.
5. Unclear and non-compliant signage, forming no contract with drivers.


To expand on these points:

1. No breach of contract and no genuine pre-estimate of loss

The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable under contract law. The estimate must be based upon loss flowing from a breach of the parking terms.

I require Highview Parking Ltd. to submit a full breakdown of how these losses are calculated in this particular car park and for this particular ‘contravention’. Highview Parking Ltd. cannot lawfully include their operational day to day running costs (e.g. provision of signs, ANPR and parking enforcement) in any ‘loss’ claimed. Not only are those costs tax deductible, but were no breaches to occur in that car park, the cost of parking 'enforcement ' would still remain the same.

According to the Unfair Terms in Consumer Contract Regulations, parking charges for breach on private land must not exceed the cost to the landowner during the time the motorist is parked there. For the record, the alleged contravention was of a duration of 32 minutes at a time when the driver noted that the car park in question was at an estimated 25% of capacity. The Office of Fair Trading has stated 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.''

Highview Parking Ltd. 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. 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. There is no genuine loss being pursued.

Neither is this charge 'commercially justified'. In answer to that proposition from a PPC which had got over-excited about the ParkingEye v Beavis small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway) POPLA Assessor Chris Adamson has stated in June 2014 that:

''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. 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.''

I would also like to rebut in advance Highview Parking Ltd's (now commonly submitted in POPLA appeals) generic Genuine Pre-Estimate of Loss statement that will include vague heads of cost described as 'overheads' and numerous 'checks and balances' alleging hours of Management time spent checking other staff's work. This is far too many layers of staff costs to be fair, and it is a spurious statement of 'actual costs' rather than demonstrating the charge was based on a Genuine Pre-Estimate of Loss. These overheads cannot be in the reasonable contemplation of the Operator at the time of issuing every PCN, because less than 2% of cases ever go to POPLA. PCN's issued and paid at full rate, cannot be liable for the cost of a POPLA appeal for the tiny minority, yet that is what Highview are trying to suggest makes up the total.

In a recent (02 October 2014) decision on Highview Parking Ltd's generic Genuine Pre-Estimate of Loss statement, POPLA Assessor Shehla Pirwany stated, "Whilst staff costs may fall within a genuine pre estimate of loss, in this case, the Operator has included ‘overheads,’ within their staff costs. Overheads are a general operating cost that would have been incurred even if the motorist had parked in accordance with the terms and conditions and are therefore not a cost that can be incurred as a result of a breach of the terms and conditions. The ‘overheads,’ amount is included with the largest amounts listed on the breakdown and I am unable to determine the amount of the figure that is attributable to overheads. As the amount for overheads cannot be separated from the overall amount, the amounts must be discounted from the breakdown. In the absence of further explanation as to the overhead amount being claimed, I am not satisfied that the amount of the charge is substantially linked to the loss incurred as a result of the breach."


2. Contract with landowner - no locus standi

Highview Parking Ltd. do not own or have any interest or assignment of title of the land in question. As such, I do not believe that Highview Parking Ltd. has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract. Accordingly, I require sight of a full copy of the actual contemporaneous, signed and dated site agreement/contract with the landowner (and not just a signed slip of paper saying that it exists). Some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory has ever seen the relevant contract, or, indeed is even an employee of the landowner. Nor would a witness statement show whether there is a payment made from either party within the agreement/contract which would affect any 'loss' calculations. Nor would it show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow Highview Parking Ltd. to pursue these charges in their own name as creditor in the Courts, and to grant them the standing/assignment of title to make contracts with drivers.

In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.

Therefore, I require the unredacted contract for all these stated reasons as I contend the Highview Parking Ltd. Ltd's authority is limited to that of a mere parking agent. I believe it is merely a standard business agreement between Highview Parking Ltd. and their client, which is true of any such business model. This cannot impact upon, nor create a contract with, any driver, as was found in case no. 3JD00517 ParkingEye v Clarke 19th December 2013

In that case the Judge found that, as the Operator did not own any title in the car park: "The decision to determine whether it is damages for breach...or a penalty...is really not for these Claimants but...for the owners. We have a rather bizarre situation where the Claimants make no money apparently from those who comply with the terms...and make their profit from those who are in breach of their contract. Well that cannot be right, that is nonsense. So I am satisfied that...the Claimants are the wrong Claimants. They have not satisfied this court that they have suffered any loss...if anything, they make a profit from the breach."

I challenge Highview Parking Ltd to rebut my assertion that their business model is the same 'nonsense', and is unenforceable. Highview Parking Ltd. cannot build their whole business model around profiting from those they consider to be in breach of a sign, on land where they have no locus standi, and then try to paint that profit as a perpetual loss.


3. Notice to Keeper not properly given under POFA 2012 – no keeper liability.

The Notice I have received, as the registered owner of the vehicle, makes it clear that Highview Parking Ltd. is relying on Schedule 4 of the Protection of Freedoms Act 2012. Highview Parking Ltd. has failed to comply in the wording of their Notice to Keeper since they have failed to identify the ‘Creditor’. This may, in law, be Highview Parking Ltd. or their client, their debt collecting agent, or the landowner or indeed some other party. Schedule 4 of the Act requires a Notice to Keeper to have the words to the effect that ‘The Creditor is:”.

The wording of Paragraph 9(2)(h) of Schedule 4 of the Act does not just indicate that the creditor must be named/assumed, but “identified”. The owner of the vehicle is entitled to know the identity of the party with whom the driver has allegedly contracted. In failing to specifically identify the ‘Creditor’ in its Notice to Keeper, Highview Parking Ltd. has failed to establish keeper liability. In this case, the NTK has not been correctly 'given' under POFA2012 and so it is a nullity. In a previous ruling, POPLA Assessor Matthew Shaw stated that the validity of a Notice to Keeper is 'fundamental to establishing liability' for a parking charge, stating: "where a Notice is to be relied upon to establish liability it must, as with any statutory provision, comply with the Act."

I would also like to bring to attention POPLA Assessor, Nadesh Karunairetnam's findings in POPLA Appeal 2922064001 that "Specifically, the appellant did not admit to being the driver and submitted that the notice to keeper was inadequate as it did not properly indicate the creditor.

The operator must produce evidence that this has occurred regardless of whether the issue is raised by the appellant, as the liability is not based in the law of contract but is created by the statute. The notice to keeper issued by the operator appears not to comply with sub-paragraph 2(h) as it does not identify the creditor. "

The NTK is also missing a description of the parking charges which remained outstanding and unpaid by the driver the day before the NTK was issued; in other words any tariff not paid (if 'none' then POFA2012 makes it clear the NTK still has to describe them).

Neither is there a 'period of parking' shown on the NTK, no doubt because no parking was observed. As this is a postal PCN, the times shown are merely the arrival & leaving times at the entrance/exit which is not the same as the mandatory 'period of parking' required by Schedule 4 paragraph 9. The parking period cannot be assumed - parking is not driving in/out - and the requirement to state a parking period is mandatory.


4. Lack of photographic evidence and unreliable, unsynchronised, non-compliant ANPR system.

I call into question the reliability and compliance of the ANPR system because Highview Parking Ltd. are relying on two pictures of a vehicle. In these two images, the vehicle registration mark is illegible. Attached below are computerised displays of my vehicle's registration mark, presumably taken by the ANPR system. As the photographic images have illegible vehicle registration marks and Highview Parking Ltd. is relying on their ANPR system to raise this charge, I require the Operator to present records which prove:

- the Manufacturers' stated % reliability of the exact ANPR system used here.

- 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.

Highview Parking Ltd. must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

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 theexact 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 accurately, and this is in addition to the missing time/location/number-plate evidence from the second photo. Therefore I contend that this ANPR "evidence" from this Operator in this car park is just as unreliable as the ParkingEye system in the Fox-Jones case and I put Highview Parking Ltd. to strict proof to the contrary.

In addition, the unreliable/unsynchronised ANPR system used, and lack of information about the use of data, is not compliant with the BPA Code of Practice, which contains the following:
''21 Automatic number plate recognition (ANPR)
21.1 You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.
21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action. Full details of the items you should check are listed in the Operators’ Handbook.
21.3 You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with.
21.4 It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must:
• be registered with the Information Commissioner
• keep to the Data Protection Act
• follow the DVLA requirements concerning the data
• follow the guidelines from the Information Commissioner’s Office on the use of CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks.''

At this location, there are merely a few small cameras mounted on poles or walls. No signs at the car park clearly tell drivers about this technology nor how the data captured by ANPR cameras will be used. The signage only states “This car park is controlled by ANPR cameras and/or Warden patrols”. No mention is made of what exactly an “ANPR camera” is or what the data will be used for. To a lay person, this is extremely confusing and makes no sense. This means the system does not operate in a reasonable, consistent and transparent manner, and I have reason to believe that, potentially, every section of paragraph 21 is breached here.

Unless the Operator can show documentary evidence otherwise, then this BPA Cop breach would also point to a failure to comply with the ICO terms of registration and a breach of the CPUTR 2008 (claiming to comply with the BPA Code of Practice when I believe it is not the case). This Operator is put to strict proof to the contrary.

5. Unclear and non-compliant signage, forming no contract with drivers.

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. is a mere agent and places its signs in a non-compliant manner, it has 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 car park, 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. has no signage with full terms which could ever be readable at eye level, for a driver in moving traffic on arrival.

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.


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

Coupon-mad

Yep - let us know when you win!

DJBenz

Evidence pack received today. 25 Pages. I'll give a summary of each section:

Section A - Evidence Checklist

Section B - Case Summary

[car park] is a pay to park site and we have not received payment from [registered keeper] to cover the stay (please see transaction report section G). Therefore our initial loss following this is the additional £1 tariff that should have been paid by [registered keeper] had s/he complied with the Terms & Conditions of the site as detailed on the sufficient signage displayed throughout the site (see section F for signage plans and images).

Enforcement and the issue of PCNs is recognised as asset protection and as the principal or lease holder of the site it is incumbent on us and part of our contractual responsibility to manage the facility to the best of our ability in order to either generate the maximum amount of revenue possible for the land owner or lease holder or to keep our clients allocated parking clear of fly parkers and for the actual use of those who are entitled to park, be it an office, allocated parking area, retail park or a persons individual parking space or drive way. There are a number of costs incurred in the continuous enforcement process that are a necessity in making sure drivers adhere to the parking T&Cs advertised and the chasing up of any outstanding and unpaid PCNs.

In parking Eye v Beavis and Wardley, HHJ Moloney states "if breach without compensation became widespread the business would plainly suffer, both because the Operator] would have no income and because its 'suppliers'the landowners would not achieve their commercial objectives. In such circumstances it would be permissible to specify a proportionate (not extravagant) sum as compensation for each individual breach even though it bore no direct relationship to the loss caused by that one breach."

That said, the table below outlines and details the costs that we estimate, at the time of issuing the PCN, would be incurred should a breach arise at this site.

Tariff - £1
ANPR Verification £0.75
DVLA costs - owners details £2.50
Document Print - £0.60
Postal Costs per notice plus envelopes - £3.68
Cost of Appeals Executive, including employers NI - £11.83
Responding to POPLA appeal - £62.15

As you can see above, our GPEOL totals £82.15. The amount outstanding on this PCN is £85 therefore [registered keeper]'s claim that the charge is not a GPEOL is unfounded. We also note that [registered keeper] does not offer any evidence as to why s/he believes the Charge to have exceeded the appropriate amount; s/he simply states that in his/her opinion it does. We contend that that the burden of proof lies with the motorist to lay out their reasons with supporting evidence as to why the charge is not appropriate.

Determining Costs

A section then follows explaining why it is not practicable for Highview Parking to leave damages 'at large' and not to calculate them on a case by case basis. A chapter from a book by Chitty is extracted.

Business Model

A parking management business comprises of a number of elements and the element that requires the most resources is enforcement of the parking terms and conditions of a car park. Our business model does not rely on the issuing of Parking Charge Notices but rather On the management of parking facilities and where parking charges apply, protection of income.

This sum, and the calculations which have been made in setting it, has been approved and agreed by the landowner and/or his agent of the site.

Wewould contend that it is too late now for the appellant to indicate their unhappiness with the parking charge― this should have been done as soon as they saw the clear and ample signs that stated the parking terms and conditions and charges at the location_if the appellant was not prepared to pay such charges and was unhappy with the contract
terms,they should not have remained at the location.

Signage

A short section follows stating that the signage is compliant with DOT guidelines and meets minimum lux lighting values. No rebuttal is offered to the points made about the signage being legible to a driver on approach in traffic that I raised in my appeal.

We can confirm that we have the authority to act on behalf of the landowner as outlined in the witness statement in section G. We can also confirm that a NTK was sent to [registered keeper] and s/he failed to respond or object if s/he was not the driver. [registered keeper] has not disputed s/he was the keeper.

We maintain that we have received no genuine mitigating circumstances or evidence for which we should to [sic] cancel the PCN and our position remains that [registered keeper] entered into a valid contract and should pay the valid charges as per the signage on the site.

There then follows some pictures of their standard signage.

Section C - Parking Charge Notice and any notes

Copy of the NTK included.

Section D - Registered Keeper details and liability trail

Registered Keeper name and address is this section.

Section E - Original Representations and Notice of Rejection

Copy of the rejected first appeal

Section F - Images, Plans etc.

Pictures of the signs on site, and an aerial view showing their locations.

Section G - Other Evidence

List of redacted license plates with time in/out of the car park. The RK's plate doesn't appear on this list.

A 'witness statement' from the company that is based on the site, which is a subsidiary of the landowner company. The witness statement is from the company's (not the landowner's) Estates Manager and is not signed.

ENDS

Hearing date is around the 10th November. Where to go from here? Rebut everything?

Herzlos

Correct, rebut everything.

These aren't GPEOL points:
"Cost of Appeals Executive, including employers NI - £11.83
Responding to POPLA appeal - £62.15"

As the first is a cost of running the business, and the second is an appeal point and only incurred after you appealed. I'm pretty sure POPLA costs can't be passed on either, but that might just be their fee.

They also didn't prove the signage is compliant. Them saying it is doesn't provide proof any more than you saying you paid did.

Coupon-mad

Yes, rebut everything in an email to POPLA this week. I am sure we have a recent thread with a Highview rebuttal somewhere if you search the forum for their name.

The witness statement is from the company's (not the landowner's) Estates Manager and is not signed.

LOL!

EnigmaPart1

Do not rebut this witness statement as it will give them a chance to supply a new one

DJBenz

EnigmaPart1 wrote: »

Do not rebut this witness statement as it will give them a chance to supply a new one

Really? Just not mention that it's unsigned, or remove all reference to it?

This is what I've drafted up so far:

Dear Sirs,

Re: POPLA Appeal [removed]

I am writing in response to evidence received from Highview Parking Ltd (Highview) in relation to the above case.

Pre-estimate of loss calculation

I contend that the calculation of loss provided by Highview Parking Ltd is not genuine. Highview Parking has submitted a breakdown of its losses, totalling £82.51. However, I contend that only £8.53 of this amount (covering postage charges, stationery, etc) is the genuine pre-estimate of loss. The additional £73.98 covers costs relating to responding to appeals, including £62.15 for responding to the POPLA appeal. It is an absolute fallacy to suggest that responding to a POPLA appeal can be included as a cost that is a genuine pre-estimate of the losses encountered. Statistically, the vast majority of motorists will not get as far as appealing to POPLA; as you will no doubt be aware, the POPLA annual reports from 2013 and 2014 show that a mere 144 appeals (12 in 2013 and 132 in 2014) were heard by POPLA in relation to Highview Parking. By including this in its breakdown, I assert that this proves beyond all doubt that the £85 is a punitive charge and not a genuine pre-estimate of loss.

Further to this, I contend that Highview Parking did not employ anyone especially to deal with my case and so the costs can be thought of as simply the running costs of parking enforcement. Were no breaches to occur in that car park, the costs to Highview Parking would remain the same. Highview Parking cannot lawfully include operational day-to-day costs in the loss claimed. Additionally, any genuine losses would be tax-deductible, further reducing the loss and something which Highview Parking have not acknowledged in their breakdown.

Finally, in his 2014 POPLA Annual Report, Mr Henry Greenslade, Lead Adjudicator, states:

“...However, genuine pre-estimate of loss means just that. It is an estimate of the loss which might reasonably be suffered, made before the breach occurred, rather than a calculation of the actual loss suffered made afterwards.”

By including the costs of a POPLA appeal in its calculations, Highview Parking has clearly shown that it has produced a POST-estimate rather than a pre-estimate, as it is clearly not foreseeable whether a motorist would indeed appeal to POPLA or not.


Business model/Background and Signage

Highview Parking states that the charge is commercially justified, and quotes from the Parking Eye v Beavis and Wardley small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway). May I remind you that POPLA Assessor Chris Adamson has stated in June 2014 that:

''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. 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.

Contract with landowner - no locus standi

Highview Parking do not own nor have any interest or assignment of title of the land in question. As such, I do not believe that Highview Parking has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract. Accordingly, I require sight of a full copy of the actual contemporaneous, signed and dated site agreement/contract with the landowner.

I would ask POPLA to please note that this is now the second time that I have requested to see this contract: once in my original POPLA appeal and now here for a second time.

In Section G, page 25 of its additional information, Highview Parking has provided a witness statement in lieu of the relevant contract. I contend that there is no proof whatsoever that the person named on this statement has ever seen the relevant contract, or, indeed is even the landowner or an employee of the landowner. Nor does this witness statement show whether there is a payment made from either party within the agreement/contract which would affect any 'loss' calculations. Additionally, it does not show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow Highview Parking to pursue these charges in its own name as creditor in the Courts, and to grant them the standing/assignment of title to make contracts with drivers.

In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. As Highview Parking has produced a witness statement mentioning the contract, but has not yet produced the actual un-redacted contract document, I ask that POPLA be consistent and rule any such statement invalid.

Therefore, I require the un-redacted contract for all these stated reasons as I contend that the Operator's authority is limited to that of a mere parking agent; I believe it is simply a standard business agreement between Highview Parking and its client, which is true of any such business model. This cannot impact upon, nor create a contract with, any driver, as was found in case no. 3JD00517 ParkingEye v Clarke 19th December 2013 .

In that case the Judge found that, as the Operator did not own any title in the car park:

“The decision to determine whether it is damages for breach...or a penalty...is really not for these Claimants but...for the owners. We have a rather bizarre situation where the Claimants make no money apparently from those who comply with the terms...and make their profit from those who are in breach of their contract. Well that cannot be right, that is nonsense. So I am satisfied that...the Claimants are the wrong Claimants. They have not satisfied this court that they have suffered any loss...if anything, they make a profit from the breach.”

I challenge Highview Parking to rebut my assertion that their business model is the same 'nonsense', and is unenforceable. Highview Parking cannot build its whole business model around profiting from those they consider to be in breach of a sign, on land where they have no locus standi, and then try to paint that profit as a perpetual loss.

Registered Keeper or Driver

On page 5, Highview Parking seems to suggest that they are confused as to whether I am appealing as the registered keeper or driver. I am unsure where this confusion comes from, but for the benefit of everyone, I would like to state that I am merely the registered keeper of the vehicle and am bringing this appeal in this role.

Signage

Highview Parking Ltd. has not refuted my point that their signage is in breach of Appendix B (Mandatory Entrance Signs) and has no signage with full terms which could ever be readable at eye level, for a driver in moving traffic on arrival. Furthermore, the collection of photographs and site plans showing the signage does not prove compliance.




ANPR System

Highview Parking Ltd. has not provided sufficient evidence of a reliable, synchronised and compliant ANPR system. It has merely included a print out, presumably from the same system, showing redacted registration numbers with date and time stamps. This document does not prove reliability, synchronisation or compliance as per my initial appeal point.

Non-compliant Notice To Keeper under POFA 2012 - No Keeper Liability

I note that Highview Parking Ltd. has made no effort to rebut the appeal point regarding its non-compliant Notice To Keeper, but has included a copy to prove my point.

I would be extremely grateful if you could add the above additional information to my submission.

With the above points in mind I respectfully request once more that my appeal is upheld and the charge cancelled.

Regards,

DJBenz

Sorry for bumping, would appreciate a thumbs up/down on the above before sending. Thanks!