Right choice for POPLA?

BWill

Hi All

I’m following the advice on here and would like to check something please.

This is the first time for me so I’m still feeling my feet somewhat. I’ve had a letter (as keeper) demanding money from Highview Parking about an alleged overstay at Norwich Riverside. This was, I believe, what’s called a “double-dip” but I’ve followed the instructions on here to ignore excuses and used your standard appeal letter.

Highview have rejected this and provided a POPLA code.

I’m planning to use “Coupon-Mad”s recommendation (01-07-2013, 6:51 PM – thanks “Coupon-Mad”)– originally for G24 (as below). Could you reassure me that this is the best approach for Highview Parking and still up-to-date please?

Many thanks BW

p.s. I can't post a link so this is the one I'm planning to use:
"forums.moneysavingexpert.com/showthread.php?p=66594270&highlight=#post66594270"

Fruitcake

You are doing really great so far. Well done on doing the first appeal without having to ask loads of questions here first.


All the info in the Sticky thread is up to date. I can't get your link to work but the best thing is to copy and paste your appeal into a new post on this thread, edit it to suit your case, then click reply. The experts can they check it to see if it is suitable.

Coupon-mad

I saw the link, and the answer I would say, is yes, use that as your base, except for two changes (except of course I assume you have changed the name to Highview throughout!):

1. Change the ANPR paragraph to a tweaked version based on this one, as it's a better one and talks about 'no proof that this wasn't 2 visits':

https://forums.moneysavingexpert.com/discussion/comment/65745741#Comment_65745741

You will need to remove mention of 'going for change' and 'pay and display system' and instead I would actually start that paragraph saying that the driver has informed you as keeper, that they believe this was a day when they visited the retail park twice, so the PCN has been issued as a result of the well-known error of ANPR camera systems taking only the first and last pictures of a VRN in any one day. Then continue as per the PE version, without the stuff about paying.

2. Remove the waffle under the no GPEOL point, to cut out the stuff not applicable to Highview which is all of this, not needed:

'G24 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 G24 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 G24 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 G24's calculation is merely a conveniently-totalled sum of actual loss suffered, made afterwards, rather than a genuine pre-estimate of loss.

As such, POPLA should I hope, see through it just as Ricky Powell did in 6861754004 (re PPS, the originators of the generic calculation G24 now use):
''I am not satisfied that the pre-estimate of loss supplied by the Operator reflects the charge issued. I find that the ‘appeal writing’ loss asserted is duplicated in two heads of loss. The ‘Appeals staff’ appeals writing costs are included in the sum for £9.51. However, there are further appeal writing costs included in the ‘Management’ costs, which total £71.65. It has not been explained how the individual heads of loss included under the heading ‘Management’ are calculated. It is also impossible to determine what contribution the appeal writing costs contribute to the total of £71.65. Therefore, I cannot find that the total costs for ‘Management’ are substantiated and so must disregard them from the total genuine pre-estimate of loss. The total pre-estimate after subtracting the above £71.65 is £31.18. I find that this does not substantially amount to the issued £100 charge and that it does not constitute a genuine pre-estimate of the Operator’s loss caused by the Appellant’s breach. Therefore, I find that the parking charge is not enforceable in this case. '' (Ricky Powell, Assessor, August 2014).

I contend that G24's calculation (even if it is a more credible effort than those recently presented) must fail as it has been re-written recently and is not a genuine PRE-estimate. In fact it would be a 'post-estimate' after the event, of figures designed to match the charge. As such, any re-write by G24 would be disingenuous and not acceptable, according to the words of Mr Greenslade: “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."

BWill

Many thanks for your advice “Coupon-mad”, I’ve incorporated it and made a few changes for relevance and would be obliged if you would cast your expert eye over the following draft POPLA appeal … BW

---

Dear POPLA Assessor,
Re: Highview Parking, verification code xxxxxxxxxx

I am the registered keeper and I wish to appeal a recent parking charge from Highview Parking. Notwithstanding that the driver was a genuine customer of the stores at the retail park, 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. The car park had abundant free spaces at the time and there was no damage nor obstruction caused so there can be no loss arising from the incident. Highview Parking 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 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 this 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 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.''

I put Highview Parking 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) The Notice to Keeper is not properly given and does not establish keeper liability under the Protection of Freedoms Act 2012

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.'

The fact that some of this information 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 POFA2012 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'.


3) Lack of standing/authority from landowner

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put Highview Parking to strict proof of the contract terms with the actual landowner (not another agent as they are not the landholder). Highview Parking has no legal status to enforce this charge because there is neither assignment of rights to pursue PCNs in the courts in its own name nor standing to form contracts with drivers itself. They do not own this car park and appear (at best) to have a bare licence to put signs up, merely acting as agents. No evidence has been supplied lawfully showing that Highview Parking are entitled to pursue these charges in their own right.

I require Highview Parking 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 BPA Code of Practice and does not allow Highview Parking (specifically) to issue proceedings for this sum for this alleged contravention in this car park. Highview Parking have previously failed in several attempts in 2014 when it was exposed that only their principal had the right to start court proceedings. I say this is likely to be typical of Highview Parking contracts. In my case with this car park site, if Highview Parking cannot show the landowner has authorised them to pursue PCNs in the court in their own name alone, they will fail to show they have standing and authority. 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. A redacted contract will not refute my assertion either because the redaction could be the relevant wording about who can start court proceedings.


4) The signage was not compliant with the BPA Code of Practice so there was no valid contract formed between Highview Parking 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 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 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 were not read nor even seen by the occupants of the car, who were there at the invitation of the many shops in the Riverside Retail park, to shop and enjoy free parking as expressly offered to customers in the principals advertising and websites.


5) The ANPR system is unreliable and neither synchronised nor accurate

The driver has informed me (as keeper), that they believe this was a day when they visited the retail park twice, so the PCN has been issued as a result of the well-known error of ANPR camera systems taking only the first and last pictures of a VRN in any one day. As keeper I cannot discount that this may have been a double visit (possibly even with two drivers since the car has more than one family member who drives it). Or the driver may have driven in, realised they lacked something important and then driven out to get it before returning (and of course the ANPR cameras show only the first and last visits). The BPA even mention this as an inherent problem with ANPR on their website;
"Link here - I can't post links" "xxx.britishparking.co.uk/How-does-ANPR-work"
The BPA's view is: 'As with all new technology, there are issues associated with its use:
(A) Repeat users of a car park inside a 24 hour period sometimes find that their first entry is paired with their last exit, resulting in an ‘overstay’. Operators are becoming aware of this and should now be checking all ANPR transactions to ensure that this does not occur.
(B) Some ‘drive in/drive out’ motorists that have activated the system receive a charge certificate even though they have not parked or taken a ticket. Reputable operators tend not to uphold charge certificates issued in this manner...'

Even if an Operator shows a list with 'no record' of that car registration in between the times, this would not discount the 'double visit' possibility as it is well known that car registrations are completely missed when a vehicle is followed closely by a higher vehicle, or by a temporary interruption in the camera recording. Or even an item temporarily obscuring the camera from picking up one car registration, such as a passing bird or wind-blown carrier bag or leaves appearing in front of the camera, even for moments, would stop a record appearing of a car leaving in between the stated times. I put the Operator to strict proof to the contrary. All footage would have to be checked and this Operator will be unable to refute the double visit possibility since they don't bother to record continuous footage. If I am wrong then they must show POPLA a complete 'video' that they allege shows no more entries or exits that day by this car.

Further, this Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the BPA Code of Practice and to have signs stating how the data will be stored and used. I say that Highview Parking have failed to clearly inform drivers about the cameras and how the data 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 terms of ANPR logs and maintenance and I put this Operator to strict proof of full ANPR compliance.

In addition I question the entire reliability of the system. I require that Highview Parking 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 a 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 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. As their whole charge rests upon two timed photos, I put Highview Parking to strict proof to refute all of my points about their flawed ANPR records.

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

Yours faithfully,

THE REGISTERED KEEPER

Coupon-mad

Looks almost good to go, I only skim-read it though. See what others say - all I could see was that this contradicts itself so remove some of it and state what you believe happened, not other possibilities:

The driver has informed me (as keeper), that they believe this was a day when they visited the retail park twice, so the PCN has been issued as a result of the well-known error of ANPR camera systems taking only the first and last pictures of a VRN in any one day. As keeper I cannot discount that this may have been a double visit (possibly even with two drivers since the car has more than one family member who drives it). Or the driver may have driven in, realised they lacked something important and then driven out to get it before returning (and of course the ANPR cameras show only the first and last visits).

BWill

Many thanks “Coupon-mad”.

Hi All, “Coupon-mad” has only skim-read my draft POPLA submission and no-one else has made any comment. What should I make of that please?

Thanks … BW

ezerscrooge

Good to go from I have read.

Just be sure the ""Link here - I can't post links" "xxx.britishparking.co.uk/How-does-ANPR-work" is as it should be in your POPLA letter.

You may need to refute any statements that Highview make in their evidence pack on GPEOL, but come back here an you'll be pointed in the right direction.