Rebuttal at POPLA stage with Highview Parking

maspas

The below was in theier evidence pack:
Case Summary – xxxx
We received correspondence from xxxx who appealed his PCN on the basis that he believes that the:
Charge is not a genuine pre-estimate of loss.
We note that xxxxx has appealed to yourselves on additional grounds which we believe should not be
taken into account as we have not been able to consider these as part of the appeals process. Nevertheless we shall
address these points below.
xxxxx Retail Park is a retail site with a maximum permitted allowance of 2 hours 30 minutes. Mr
xxxxx allowed his vehicle to remain on this site for 3 hours 6 minutes, therefore overstaying by 36 minutes.
This site is also for retail park customers only, as detailed on the prominent signage on site (See Section F). It is noted
that Mr xxxxx makes no claim to be a customer of the retail park. The initial loss that caused us to pursue
this breach is the overstay of 21 minutes which has prevented new customers from being able to park and use the site
therefore a loss has been incurred in the provision of that space. Also, as a Parking Management company, we have a
need to ensure that the site has a reasonable turnover of parking to allow for the maximum potential of new customers.
The cost of providing the space for free parking for customers for the maximum permitted allowance of 1 hour 30
minutes is £0.82. Therefore by overstaying by 36 minutes, Mrxxxx has caused an initial loss by
diminishing the value of the parking space.
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, a 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.
That said, the table below outlines and details the costs that we estimate, at the time of issuing the PCN, would be
incurred in this case.
As you can see above, our genuine pre-estimate of loss totals £82.33. The amount outstanding on this PCN
is £70; therefore Mr xxx’s claim that the Charge is not a genuine pre-estimate of loss is refuted.
We note that Mr xxxx does not offer any evidence as to why he believes the Charge to have
exceeded the appropriate amount; he simply states that in his 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.As a parking management company, we aim to make parking free so as to be desirable and attractive to
customers. In order to make this feasible, the terms and conditions of the site need to be adhered to. In
Parking Eye v Beavis and Wardley, HHJ Moloney states that “There is not a significant imbalance between
the parties rights and obligations when the motorist is given a valuable privilege (2 hours [in this instance 2
and a half hours] free parking) in return for a promise to pay a specified sum in the event of overstaying,
provided that the sum is not disproportionately high.” This Charge, as shown above, is not
disproportionately high.
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.”
As such, as outlined above, we contend that the Charge represents a proportionate sum for which we should be
compensated.
Determining Costs
There are two methods lawfully available to Highview Parking Ltd by which such costs can be determined. Firstly, it
would be open to Highview Parking Ltd to leave damages ‘at large’, and therefore determine the quantum of damage
on a case by case basis. This method would mean the cost of recovering the losses may, in some cases, be less than the
cost of the PCN, while some undoubtedly would be considerably more. It would be highly impractical to employ this
method, due to the administrative burden of keeping track of what resources had from time to time been employed to
any particular point in time and any particular car park. The second lawful method of determining the quantum of
damages is through the mechanism of liquidated and ascertained damages – this is the mechanism which Highview
Parking Ltd has elected to adopt. Should there be any doubt as to the legitimacy or enforceability of a liquidated and
ascertained damages clause; Appendix 1 contains the relevant paragraph from Chitty on Contracts, 31st Edition,
paragraph 26-171:
“Where the parties to a contract agree that, in the event of a breach, the contract-breaker shall pay to the other a
specified sum of money, the sum fixed may be classified by the courts either as a penalty (which is irrecoverable) or
as liquidated damages (which are recoverable). The clause is enforceable if it does not exceed a genuine attempt to
estimate in advance the loss which the claimant would be likely to suffer from a breach of the obligation in question.
Recent decisions suggest that a clause which provides for an additional payment to be made by a party who is in
breach of the contract may also be enforceable, even if it was not strictly speaking a pre-estimate of the likely loss, if it
was “commercially justifiable, provided always that its dominant purpose was not to deter the other party from
breach”. If the clause is not void as a penalty, it is enforceable irrespective of the loss actually suffered. The purpose
of the parties in fixing a sum is to facilitate recovery of damages without the difficulty and expense of proving actual
damage.”
Business Model/Background
A parking management business comprises of a number of elements and the element that requires the most resource is
enforcement of the parking terms and conditions of a car park. Our business model does not rely on the imposition of
Parking Charge Notices but rather on the management of parking facilities and, where charges for parking 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.
We would 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
We confirm the signage is displayed in accordance with all relevant laws and regulations. All signing of roadside
facilities and signing arrangements within sites must comply with the current Traffic Signs Regulations and General
Directions and any other guidance as may be issued from time to time by the Department for Transport or the Highways Agency. Approval must be sought from the Highways Agency’s signs specialist for the use of all non
prescribed signs. Advice and working drawings may be obtained from ....
We therefore contend that all of the signs on site comply with the requirement to be a display of charges and
furthermore note that there are no regulations within the DfT manuals for traffic signs that relate to off street or
motorway service area parking signs other than the requirement to utilise the ‘P’ for parking symbol (see below) that
our main entrance signs comply with.
The signage on site is located either directly below or close to lampposts. We confirm the signage conforms to lux
levels that allow drivers to clearly see signage within the car park. BS Lux levels are as follows:
TABLE B. Recommended levels of lighting for outdoor car parks and multi-storey roof level – BS 5489 part 9
Area. .......................................E(average)/ lux.............E(minimum)/ lux
Rural, Zones E1 and E2..............15. .............................5
Urban, Zones E3 and E4.............30. .............................10
Multi-storey roof level*...............30. ..............................10
We have provided clear evidence that by staying at the location, the motorist has accepted all of the prevailing terms
& conditions of the parking contract including the charges for breach of that contract. There are a large number of
signs at the parking location, both at the entrance and throughout the site which offers the parking contract to the
motorist, and sets out the terms and conditions of the parking area upon which the operator will rely, and upon which,
by remaining at the location, the motorist has agreed to be bound by – these terms and conditions clearly show the
amount which will become payable if the terms and conditions are breached.
POFA is not binding on parking companies. We have not stated on this PCN that we are issuing this Charge
under POFA and therefore Mr xxxx’s claim that the Notice is non-compliant with POFA has no
relevance to this case.
The Notice to Keeper, a copy of which is provided in Section C, which was sent to Mr xxxxx makes
a clear invitation for the Keeper (Mr xxxx) to forward to us the name and address of the driver if he
himself was not, in fact, the driver at the time. We can confirm that no such information was received from
Mr xxxxxx, nor have we received a denial that he was the driver. Mr xxxxx has not denied
that he is the Keeper.
We can confirm that we have the authority to act on behalf of the landowner as outlined in the signed
witness statement in Section G.
We maintain that we have received no genuine mitigating circumstances or evidence for which we should to
cancel the PCN and our position remains that Mr xxx entered into a valid contract and should pay
the valid charges as per the signage on the site.



that's what they sent along with some other attachments. I appealed as a registered keeper . I would like to rebut all their arguments. Please help!

ManxRed

The cost of providing the space for free parking for customers for the maximum permitted allowance of 1 hour 30
minutes is £0.82.

Not to Highview it isn't. The person who constructed the car park maybe but not them, and certainly the 'cost' of you parking there is not £0.82, it's £0.00, it's a free car park.

As you can see above, our genuine pre-estimate of loss totals £82.33.

Where on earth does that come from?

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.

How can you prove that their losses justify the charge they are levying? You don't have access to their finances. That's for them to state so they can justify their charges. They're just plain wrong on this one.

Parking Eye v Beavis and Wardley

This case is under appeal (the hearing was today) so this case does not set any precedent. In any case, this case confirms that the charges ARE a penalty, albeit potentially commercially justified (but not confirmed until the judgement is handed down in the Court of Appeal), whereas the model Highview are operating and claiming is based on Genuine Pre-Estimate of Loss. They need to make their minds up whether the charge is a justified penalty or a genuine pre-estimate of loss, It can't possibly be both.

“Where the parties to a contract agree that, in the event of a breach, the contract-breaker shall pay to the other a
specified sum of money, the sum fixed may be classified by the courts either as a penalty (which is irrecoverable) or
as liquidated damages (which are recoverable). The clause is enforceable if it does not exceed a genuine attempt to
estimate in advance the loss which the claimant would be likely to suffer from a breach of the obligation in question.
Recent decisions suggest that a clause which provides for an additional payment to be made by a party who is in
breach of the contract may also be enforceable, even if it was not strictly speaking a pre-estimate of the likely loss, if it
was “commercially justifiable, provided always that its dominant purpose was not to deter the other party from
breach”. If the clause is not void as a penalty, it is enforceable irrespective of the loss actually suffered. The purpose
of the parties in fixing a sum is to facilitate recovery of damages without the difficulty and expense of proving actual
damage.”

That actually backs YOUR case up and not theirs. You might want to thank them for that!

maspas

they also attached a witness statement as below;

Witness Statement
Dear Sir/Madam,
On behalf of Henderson UK Retail Warehouse Fund I can confirm the following details:
The sites are xxxxRetail Park A & xxxxRetail Park B, the Landowner/owner of the site is
Henderson UK Retail Warehouse Fund, and the Operator is Highview Parking Ltd.
Furthermore, I can confirm that the Operator has the authority of the Landowner to undertake
parking management, control, and enforcement at the site. This authority was in effect during the
time the PCN was issued and we can confirm that the contract was in fact in place from 1st January
2014 and remains in force. In addition I can confirm the notice period to terminate this contract is
one calendar month and it will therefore be in force until at least 28th January 2015. Included in this
authority is the authorisation by the Landowner for the Operator to issue parking charge notices
where vehicles are parked on the site in a manner not permitted under the terms and conditions of
parking.
The terms and conditions are clearly set out on signage on site and, where applicable, with any
permit or dispensation for use at the site. The issuing of a parking charge notice is subject to the
agreed criteria and exemptions, as also clearly set out on signage at the site and, where applicable,
with any permit or dispensation for use at the site.
The Operator is authorised to issue a parking charge notice for breach of any of the terms and
conditions referred to above. The Operator is also authorised by the Landowner to pursue the
outstanding parking charge in accordance with the British Parking Association Approved Operator
Scheme Code of Practice.
I confirm that I am authorised to make this statement on behalf of the Landowner and that the
above information is true to the best of my knowledge and belief.

with name, position,on behalf of Henderson UK Retail Warehouse Fund, signature and date

is this acceptable?

trubster

Deminishing value of the parking space :rotfl::rotfl::rotfl:

Next they will add on the cost of tarmac too

Parking-Prankster

Hi, I have emailed you a rebuttal. Feel free to add stuff from people here too, but I think mine will be enough, as there is no initial loss and the NTK is not compliant.


However, I do worry about 1 thing. On the evidence pack you sent me, the table which lists the costs has a blank value for POPLA costs, while in your posts here you state the POPLA costs are over £60.

xHannahx

Reading post 12, there are a few discrepancies.

The maximum time is stated as 2 hrs 30. It says you were there for 3hrs 6mins.

It says you overstayed the maximum time frame by 21 minutes.
It says the maximum time for parking is 1 hr 30 and you overstayed this by 36 mins. That will be 2 hrs 06 mins. But they have also claimed you are allowed to park their for 2 hrs 30, and you were there for 3 hrs 6.

Clearly from their statement they don't know how long you're allowed to park there and They havent Worked out time keeping yet.

They state that you being overstayed prevented other shoppers parking. I assume as they are using this argument that the car park was full with no other spaces.
The only loss I can see with that argument they use is the loss of custom the shops may suffer, but the car park operator didn't lose anything.

Karenmuffintop

hi, the above post ... is that a letter you sent them to appeal.. i have just received a letter hinting at court hearing... i like you have had no correspondence from the landowner only this company acting on behalf of.. what was your outcome to this complete waste of time.. got two weeks now to reply...