Highview PCN

scorpio_on_blue_moon

Got a PCN from Highview for overstaying max time in shopping centre free parking.


I sent following as appeal email:


Highview Parking
Barnet


Dear Sirs

Re: Charge Notice No. xxxxxxxxxxxxx

With reference to the above notice which I challenge, not as driver but as keeper of the car, on the following grounds:

a). The sum sought does not represent a genuine pre-estimate of any loss and yet it is intended by your client as a deterrent, so the charge is a penalty.
b). The signage on site is deficient, the wording unclear and it fails to comply with the Code of Practice.
c). In the absence of any evidence it is my case that you lack any or sufficient proprietary interest in the land.
d). Your notice was deficient and fails to comply with Schedule 4 of the Protection of Freedoms Act 2012.

This is my formal representation. There will be no admissions as to who was driving that day and no assumptions should be drawn in the absence of evidence. I have decided to appeal this as keeper and as such, you must either rely on the POFA 2012 or you must cancel the charge if you know you cannot claim keeper liability in this case. Please uphold this challenge or send a rejection letter, so I can escalate this matter to the independent appeal service offered by your Trade Body.

Yours faithfully,




They have rejected the appeal and sent me POPLA code.


Please help me here. Shall I pay the fine or appeal to POPLA? What template shall I use for POPLA appeal? Can't see any for Highview specific in Newbie thread.

Northlakes

Now you have started this process, go through to completion and win!


Read the NEWBIE thread, read other Highview threads (by the forum search) and see how others have won.


Follow the right format, submit your POPLA appeal here for appraisal and the experts here will give very helpful and correct advice.

Umkomaas

Not sure how far you've looked, but you seem to have missed this.

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

G24 (would also suit Highview and other camera issued Supermarket/retail car parks) - http://forums.moneysavingexpert.com/...=#post66594270

scorpio_on_blue_moon

Thank you very much fellas!!!


I am considering following appeal to POPLA (kindly referred from http : / / forums.moneysavingexpert.com/showthread.php?t=5027349):


Dear POPLA Assessor,
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 offence of being in Violation of the terms and Conditions displayed on the Signage at Waterfields Retail Park, Watford.

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. No Clarification as to whether the Charge is for Breach of Contract or Trespass
3. No authority to levy charges
4. No Creditor identified on the Notice to Keeper
5. Unlawful Penalty Charge
6. ANPR Accuracy
7. 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:
“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.
Neither is this charge ‘commercially justified’. In answer to that proposition from a PPC which had got over-excited about the Parking-Eye 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.”

2. No Clarification as to whether the Charge is for Breach of Contract or Trespass

Highview Parking Ltd. Have not stated in their Charge Notice whether this charge is for "Breach of Contract" or Trespass, and only that the charge is for "Violation of the Terms and Conditions displayed on the signage". Of which they have not enclosed a copy with the Charge Notice, Therefore Highview Parking Ltd have failed to show keeper liability under Schedule 4 paragraph 9(2)(c) of the Protection of Freedoms Act 2012 as this states the notice to keeper must describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose, (including the means by which the requirement was bought to the attention of the drivers) and the other facts that made them payable.

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 provide 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.

4. No Creditor identified on the Notice to Keeper

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., there is no specific identification of the Creditor who may, in law, be Highview Parking Ltd. or some other party. The Protection of Freedoms Act requires a Notice to Keeper to have words to the effect that “The Creditor is…” and the Notice does not. Therefore in failing to identify the creditor Highview parking have failed to establish keeper liability with regard to paragraph 9(2)(h) of Section 4 of the Protection of Freedoms Act 2012.

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.

6. 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.

7. 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.

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

Yours faithfully

Could someone verify the appeal wordings please?

ezerscrooge

You need to mention signage

____
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.

scorpio_on_blue_moon

Thank you very much ezerscrooge pointing that out. I have included the signage point now. The updated appeal is:


Dear POPLA Assessor,

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 offence of being in
Violation of the terms and Conditions displayed on the Signage at Waterfields Retail Park, Watford.

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 signage was not compliant with the BPA Code of Practice
3. No Clarification as to whether the Charge is for Breach of Contract or Trespass
4. No authority to levy charges
5. No Creditor identified on the Notice to Keeper
6. Unlawful Penalty Charge
7. ANPR Accuracy
8. 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:
“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.

Neither is this charge ‘commercially justified’. In answer to that proposition from a PPC which had got over-excited about the Parking-Eye 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.”

2. 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.

3. No Clarification as to whether the Charge is for Breach of Contract or Trespass

Highview Parking Ltd. Have not stated in their Charge Notice whether this charge is for "Breach of Contract" or Trespass, and only that the charge is for "Violation of the Terms and Conditions
displayed on the signage". Of which they have not enclosed a copy with the Charge Notice, Therefore Highview Parking Ltd have failed to show keeper liability under Schedule 4 paragraph 9(2)(c) of
the Protection of Freedoms Act 2012 as this states the notice to keeper must describe the parking charges due from the driver as at the end of that period, the circumstances in which the
requirement to pay them arose, (including the means by which the requirement was bought to the attention of the drivers) and the other facts that made them payable.

4. 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 provide 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.

5. No Creditor identified on the Notice to Keeper

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., there is no specific identification of the Creditor who may, in law, be Highview Parking Ltd. or some
other party. The Protection of Freedoms Act requires a Notice to Keeper to have words to the effect that “The Creditor is…” and the Notice does not. Therefore in failing to identify the creditor
Highview parking have failed to establish keeper liability with regard to paragraph 9(2)(h) of Section 4 of the Protection of Freedoms Act 2012.

6. 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.

7. 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.

8. 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.

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

Yours faithfully



Could this updated appeal be verified by someone please?

Umkomaas

Looks good to go.

Just double check your NtK that your assertion of failure to identify the creditor is in fact correct. Not that I'm suggesting it is included, but where you make an absolute statement, you need to be sure it can't be easily debunked, possibly undermining other parts of your appeal.

When you submit to POPLA tick 3 of the 4 reasons (obviously not the 'stolen' one) and send via their website portal. Formatting I think is a problem if you copy and paste into the dialogue box on the website, so just do a quick synopsis with identifiers (including your POPLA verification code) in the box, then attach your appeal as a Word document with all your formatting (which isn't too good above) sorted.

If you've got a few days left before your deadline, delay sending for 24 hours or so to see if any other regular(s) wishes to comment.

Have you checked your verification code's deadline via Parking Cowboys' website? Link in NEWBIES sticky.

Dee140157

Looks ok to me too.

scorpio_on_blue_moon

Thank you very much for the help.


I did check the PCN letter thoroughly and cannot find anything related to creditor identification.


I also have verified the POPLA code through Parking Cowboy's website, the deadline is 28-Oct-2014.


I surely be selecting the 3 of 4 options (not the 'stolen' one) from POPLA website portal while making the appeal application (I have looked at http : / / forums.moneysavingexpert.com/showthread.php?t=5069278). Also will make sure to format the appeal text.


Really appreciate the help from you guys.

bartos1976

Did you use 'enquiries@highviewparking.co.uk' for your original email appeal as i need to file one and their online option doesn't work?

Coupon-mad

bartos1976 wrote: »

Did you use 'enquiries@highviewparking.co.uk' for your original email appeal as i need to file one and their online option doesn't work?

Bartos1976 you are now collecting these for fun I think! Or helping friends appeal?