Highview Parking Charge Notice

Coupon-mad

No. Just send the template appeal from the Newbies thread.

erind

Hi,

I posted the initial appeal and received a rejection letter on the 4th November complete with POPLA reference number.

Is there a standard letter to send to POPLA or do I have to adapt one?

Northlakes

Search for posts on this forum (POPLA successful appeals) Highview Parking and find a thread with the same circumstances of which there will be plenty.

Umkomaas

erind wrote: »

Hi,

I posted the initial appeal and received a rejection letter on the 4th November complete with POPLA reference number.

Is there a standard letter to send to POPLA or do I have to adapt one?

NEWBIES FAQ sticky, post #3, 'How to Win at Popla'. Find a Highview example (recent one) which you will need to adapt at the margins to reflect your parking event. Post it up here before you send it to POPLA - POPLA deadline is absolute, don't miss it!

erind

Thanks for all of the wonderful advice. I have had a look at a lot of the examples and have pieced together this draft. Please could someone read through it to ensure I haven't made any mistakes or missed out anything vital. Thanks in advance.


Popla reference number: …………………………….



Dear POPLA Assessor,



As the registered keeper of thevehicle, ………………….. I wish to appeal against the parking charge issued by Highview ParkingLtd..



As the registered keeper, I would like toappeal this notice on the following grounds:

1. Charge not agenuine pre-estimate of loss

2. The signage wasnot compliant with the BPA Code of Practice

3. NoClarification as to whether the Charge is for Breach of Contract or Trespass

4. No authority tolevy charges

5. No Creditoridentified on the Notice to Keeper

6. UnlawfulPenalty 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 ifpaid within 14 days) is punitive, unreasonable, exceeds an appropriate amount,and has no relationship to the loss that would have been suffered by theLandowner. The keeper declares that the charge is punitive and therefore anunenforceable penalty.

The BPA code of practice states:

19.5 Ifthe parking charge that the driver is being asked to pay is for a breach ofcontract or act of trespass, this charge must be based on the genuinepre-estimate of loss that you suffer.

19.6 Ifyour parking charge is based upon a contractually agreed sum, that chargecannot be punitive or unreasonable.

I require Highview Parking Ltd. to provide a detailedbreakdown of how the amount of the “charge” was calculated. I am aware fromCourt rulings and previous POPLA adjudications that the cost of running thebusiness (such as the erection of signage, the provision of back officeservices, the maintenance of ANPR cameras, cost of membership of the BPA Ltdetc.) may not be included in this pre-estimate of loss.

Neither is this charge ‘commercially justified’. Inanswer to that proposition from a PPC which had got over-excited about theParking-Eye v Beavis small claims decision, (now being taken to the Court ofAppeal by Mr Beavis anyway) POPLA Assessor Chris Adamson has stated in June2014 that:

“In each case that I have seen from the higher court, itis made clear that a charge cannot be commercially justified where the dominantpurpose of the charge is to deter the other party from breach” This is mostclearly stated in Lordsvale Finance PLc v Bank of Zambia [1996] QB 752, quotedapprovingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor vUnited International Pictures Ors [2003] EWHC Civ 1669 when Coleman J states aclause should not be struck down as a penalty, if the increase could in thecircumstances be explained as commercially justifiable, provided always thatits dominant purpose was not to deter the other party from breach”.

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

2.The signage was not compliant with the BPA Code of Practice so there was novalid contract formed between Highview Parking Ltd and the driver

I submit that this signage failed to comply with the BPACode of Practice section 18 and appendix B. The signs failed to properlywarn/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 andacceptance). Any alleged contract (denied in this case) could only be formed atthe entrance to the premises, prior to parking. It is not formed after thevehicle 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 termswhich could ever be readable at eye level, for a driver in moving traffic onarrival.

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

Highview Parking Ltd. Have not stated in their ChargeNotice whether this charge is for "Breach of Contract" or Trespass,and only that the charge is for "Violation of the Terms and Conditions displayedon the signage". Of which they have not enclosed a copy with the ChargeNotice, Therefore Highview Parking Ltd have failed to show keeper liabilityunder Schedule 4 paragraph 9(2)(c) of the Protection of Freedoms Act 2012 asthis states the notice to keeper must describe the parking charges due from thedriver as at the end of that period, the circumstances in which the requirementto pay them arose, (including the means by which the requirement was bought tothe 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 properlegal authorisation to contract with the consumer on the landowner’s behalf andenforce for breach of contract. Highview Parking Ltd must produce evidence todemonstrate that it is the landowner, or a contract that it has the authorityof the landowner to issue charge notices at this location. I believe there isno contract with the landowner/occupier that entitles Highview Parking Ltd tolevy these charges and to pursue these charges in their own name as creditor inthe Courts and therefore has no authority to issue charge notices.

I put it to Highview Parking Ltd to provide strict proofto POPLA that they have the necessary legal authorization at this location andI demand that Highview Parking Ltd produce to POPLA the contemporaneous andunredacted contract between the landowner and Highview Parking Ltd. Even if abasic contract is produced and mentions PCNs, the lack of ownership orassignment of title or interest in the land reduces any contract to one thatexists simply on an agency basis between Highview Parking Ltd. and theowner/occupier, containing nothing that Highview Parking Ltd can lawfully usein 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 “theCreditor” 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 operatorrequires a payment to Highview Parking Ltd, there is no specific identificationof 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 theeffect that “The Creditor is…” and the Notice does not. Therefore in failing toidentify the creditor, Highview parking have failed to establish keeperliability with regard to paragraph 9(2)(h) of Section 4 of the Protection ofFreedoms Act 2012.

6.Unlawful Penalty Charge

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

7.ANPR Accuracy

Highview Parking Ltd. are obliged to make sure the APNRequipment is in working order, as described in paragraph 21.3 of the BritishParking Association’s Approved Operator Scheme Code of Practice, version 3 ofJune 2013. I require Highview Parking Ltd. to present records as to the datesand times of when the cameras were checked, calibrated and generally maintainedto ensure the accuracy of the dates and times of any ANPR images. This isimportant because the entirety of the charge is founded on two imagespurporting to show my vehicle entering and exiting at specific times – it’svital 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 andalso fails to comply with basic contract law.

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



Yours faithfully

Umkomaas

It looks OK, but I struggled to read it in detail as the merging of words throughout the draft makes it difficult (a tech problem with the site with copy and paste directly from Microsoft Word, if you copy it first into Notepad, save it, then copy and paste it from there, that seems to get rid of the formatting problem).

The one area you might like to have another look at is your appeal point 5. If you can beef this up with other parts of the NtK that are not POFA compliant, then you can really hammer home the failure to establish keeper liability. Check your NtK against this checklist:

http://www.parkingcowboys.co.uk/keeper-liability/

If you find other 'failures' you could just flash up that one appeal para for us to look at (rather than the whole appeal again).

HTH

erind

Thank you. Should I replace point 5 with the following:


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 is relying on Schedule 4 of the Protection of Freedoms Act 2012. Highview Parking 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 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 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.

erind

I was also wondering if I should add any points regarding the time of night my car was parked. There were only a handful of cars in the car park so therefore there can be no loss as a result of my car being parked in an almost empty car park.

Umkomaas

Your NtK needs to be surgically analysed against the key requirements of PoFA as per the link I gave. Go through each bullet point below and check that your NtK complies precisely with each. Where it 'fails', that's yet a further reason that keeper liability is lost to the PPC, and you need to highlight each of those fails to POPLA

• Which car the ticket relates to
• What land the car was parked on
• The period the car was parked
• Advise that the driver is liable for the parking charge and the amount and that it has not been paid in full
• State whether a notice to the driver was given either to the driver or placed on the vehicle and if so to repeat the information in that notice about paying the parking charge and when
• Specify the outstanding amount of the parking charge and of the maximum additional costs they may seek to recover, and of the dispute resolution arrangements
• Invite the registered keeper to pay the outstanding parking charge or, if he was not the driver, to provide the name and address of the driver and to pass a copy of the notice on to that driver
• Identify the “creditor” who is legally entitled to recover the parking charge
• Warn the keeper that if the parking charges remains outstanding after 28 days and the name and address of the driver has not been given, or otherwise known to the person entitled to the parking charge, that “creditor” will be entitled to recover the parking charge from the registered keeper.
• Details of the discount for payment within 14 days, The Discount should be at least 40% of the full charge under the BPA Code of Practice (applies to BPA Members only)
• Date of the notice

Note - the 'outstanding amount of the parking charge' means that which was not paid on the day. I guess it was a free car park? There you go!

In relation to your other query re 'time of night' - it's not a 'showstopper', but you might want to add it in as context, but be very careful not to imply who was driving, or you can forget all the work you're going to do on the keeper liability para. You'll blow it out of the water by inadvertently identifying the driver.

erind

Ok thanks. I will go through the points an amend accordingly.
Thanks for your help.