Rejected appeal letter addresses none of my grounds

MrsCheese

If anybody has the time to take a quick skim through this I'd appreciate it.

Quick question - should I make the hour return trip to take photos of the area in which I've been told the car was parked to add it to the appeal? If the below fails would I get the opportunity to re-submit that evidence? I ask since I really don't want to do the drive unless I have to.

Fingers crossed I'm not too far from the point:

Re: POPLA CODE xxxxxx

As the registered keeper of the vehicle, registration number xxxxx, 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 vehicle was never parked in an area designated as requiring payment for parking, even the pay areas were estimated at less than 50% 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.''

The charge is unconscionable and extravagant and unrelated to local Penalty Charge levels in this area. It is believed that the Supreme Court’s decision in ParkingEye v Beavis will have an impact on the outcome of this POPLA appeal. If the operator does not cancel this charge and/or if there is no other ground upon which the appeal can be determined, I ask that my appeal is adjourned pending the Beavis case.
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 non-redacted 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 aparking 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 what the ANPR evidence actually shows. It shows the vehicle at two points, I can only assume these points are within the hospital grounds, however at no point can they show that the vehicle has entered an area where a charge is required to park. There are pay and display areas within the hospital grounds but the vehicle never entered these areas and thus I challenge Highview Parking Ltd to prove otherwise.
I also 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. 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 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 accurately, 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, I believe there are only 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.

Firstly I submit that the area where the car was parked contains no signage that indicates that a parking charge is required; even if it is assumed that there was, I submit that the signage on the estate 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.

MrsCheese

Any thoughts on this or at least any "don't say that!!!" responses? Your advice is very much appreciated.

Umkomaas

~3.5 thousand words is way too much for a 'quick skim'.

The whole thing is far too long in my view. Chucking the kitchen sink at anything and everything, with suggestion that there is little understanding (reading?) of what you've copied and dropped here, isn't the best way forward, nor likely to persuade regulars to wade through, yet again, the same stuff that's pitched at us daily. Probably why you've had no other responses in the last 24 hours.

Anyway - here's my take from as far as I could get.

ParkingEye v Beavis small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway)

Long gone! 6 months ago!

Some of the stuff you've copied is very dated. Like:

In answer to that proposition from a PPC which had got over-excited about the ParkingEye v Beavis small claims decision

In a recent (02 October 2014) decision on Highview Parking Ltd's generic Genuine Pre-Estimate of Loss statement, POPLA Assessor Shehla Pirwany stated,

Not that recent. The statement was 'recent' late 2014/early 2015. But this just highlights to POPLA that the appeal is but a copy and paste and doesn't, in my view, help strengthen your case. Be careful the Assessor tired of reading the same old stuff doesn't drop this into the 'Await Beavis Supreme Court case' when you won't know the outcome until towards the end of this year. You're wanting a positive decision from them - earliest!

And in that context you need to get your (shortened and updated, hopefully) GPEOL appeal paragraph at the end of the appeal and include the wording in blue text from the NEWBIES FAQ sticky. Just in case they do not uphold on any of the foregoing appeal points.

It all needs crystallising into much more pointed arguments that you understand and (if you want serious input from us) that gives regulars the opportunity to critique it sensibly without having to plough through such a chunk.

MrsCheese

Umkomaas,

Thank you for this! To be honest I'll explain why it ended up like this. I had written a response (it's on my other PC so will post later) then I got the response from pogofish and The Deep which lead me to go back and look at the Newbie sticky again. I followed the instructions, searched the forum for POPLA and Highview Parking and used the arguments contained within a post which had a good response from the wise at the bottom. I edited it to slip around the circumstances I'm looking to address and reposted thinking this is what pogofish and The deep were getting at.

You have just confirmed my exact feelings on the letter, but I'd tried to follow the instructions given. I'm not particularly stupid so whilst I'm certainly not knocking the hard work and fantastic effort that has been put into these Stickies, I do feel that it's difficult for Newbies to know what it is they are meant to be doing and I fully understand why that leads to deep frustration from all the helpful people that have responded to my post and all the others on here. I guess it's really difficult as remembering what you don't know when you started fighting these cowboys is difficult. I'll post my other letter when I get home this afternoon.

I'm very grateful for all the help I am receiving and even if it doesn't appear this way (I sincerely hope this is not the case) I am putting in effort and reading through a large number of threads trying to understand the right way to approach it. Like I said earlier on, 'this is a torrid position, bully boy companies and silly games in defence rather than just plain old truth and reason'.

Thanks again.

Umkomaas

I understand how confusing some of this is, but once you break through and see the light it can be quite empowering when you realise you can deal with this stuff very efficiently and effectively.

As it happens I critiqued another POPLA draft early this morning. Have a look at this as an example of a short and sharp appeal that will certainly not p** off the Assessor after a long week of wading through War & Peace tomes.

https://forums.moneysavingexpert.com/discussion/5274165

You might want to use that as your 'model', but build in some Highview angles as well. You'll note there are no cross references to legal 'precedences' that in the history of POPLA (or certainly in the time I've been studying outcomes) there have been very few, if any, cases upheld on the back of any of the mind-boggling array of 'legals' quoted back at POPLA in appeals.

HTH

MrsCheese

Outstanding, thank you!! I'll look at this and what I had written and pull together a final draft effort. Really appreciate your time.

MrsCheese

The letter you pointed to pretty much applied to me too. The link to the code of practice was also really helpful. In many respects it was what I'd been missing all along so kicking myself for not finding that.

Anyway, here is my version for the case I'm trying to resolve.

Formal Appeal to POPLA

POPLA Verification Code: XXXXXXXXX
PCN Number: XXXXXXXXXXXX
Vehicle Registration: XXXXXXX
Initial Appeal Date: 30th July 2015
Highview Appeal response dated: 13th July 2015
Appeal to POPLA Date: 22nd July 2015
Operator: Highview Parking

Dear Sir/ Madam,
My wife received a Private Parking Charge Notice as the registered keeper of vehicle noted above following a trip to Warrington Hospital on 06/06/2015 and she has asked me to deal with this on her behalf.
I wish to appeal against the invoice, issued as a “Charge Notice”, as detailed above, on the following grounds:
1. Notice to Keeper is not POFA-compliant
2. Authorisation to act on behalf of the landowner
3. Inadequate signage / lack of contract between driver and operator
4. Lack of evidence to show alleged offence
5. Unlawful penalty charge
6. Not a genuine pre-estimate of loss

1. Notice to Keeper is not POFA-compliant

The Notice my wife 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.
The NTK doesn't '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'. It 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).

The NTK states the vehicle was parked but there is no evidence of this, nor the actual period of parking, it simply shows that the vehicle was within the hospital grounds. 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.
The driver of the vehicle has not been identified, or notified to the operator.

2. Authorisation to act on behalf of the landowner

I do not believe that Highview Parking own this car park. I assume that it is an agent of the landowner or legal occupier. In its notice and rejection letters Highview Parking has provided me with no evidence that it is lawfully entitled to demand money from a driver or keeper. I request Highview Parking to provide strict proof to POPLA that it has the proper legal authorisation from the landowner to contract with drivers and to enforce charges in its own name as creditor in the courts for breach of contract. I demand Highview Parking produce to POPLA the appropriately signed, contemporaneous and non-redacted contract between the landowner and Highview Parking. I do not believe a witness statement to be sufficient.

3. Inadequate signage / lack of contract between driver and operator

There are locations within the estate where it is clear there is a requirement to pay and display, however the driver never entered these areas. Given this is the case and Highview Parking have not provided a clear explanation as to where the car was and how the contract with the driver was formed, it makes it impossible for me to accurately provide full evidence to demonstrate that no contract was properly formed, nor that the rules were not breached.
Logically I can only work from a basis that the charge is simply for being within the hospital grounds for the period of time and thus I demand that Highview Parking demonstrate to POPLA that they have in place adequate signage to form a contract with the driver prior to entering the hospital grounds, or clearly displayed time limits when within the grounds. The warning should be clear that merely entering the grounds to establish if the driver wishes to park would in itself form a contract; naturally this would include full details of tariffs before entering the estate.
I contend that if the signage exists at all then it must be inadequate as there was nothing in the area where the vehicle was located. Further evidence of the location the vehicle was in during the visit could be obtained if required however Warrington Hospital is not nearby and would require a special trip journey time 1 hour plus and at significant additional cost. Please advise me if you need this evidence to consider the appeal.
If POPLA believe adequate signage can be demonstrated I request the opportunity to collect full evidence in this respect prior to a final decision.

4. Lack of evidence to show alleged offence
I call into question what the ANPR evidence actually shows. It shows the vehicle at two points, I can only assume these points are within the hospital grounds, however at no point can they show that the vehicle has entered an area where a charge is required to park. The evidence provided by Highview Parking in the ‘Charge Notice’ Notice to Keeper simply shows the car entering and leaving the estate and the time stamps for both actions.
There are pay and display areas within the hospital grounds, but the vehicle never entered these areas and thus I challenge Highview Parking Ltd to prove otherwise. I contend that Highview Parking must prove their claim beyond doubt to POPLA
Knowing that the driver did not break any site rules an appeal was made on a number of points, however my wife (as the registered keeper) received a rejection of appeal, yet none of the grounds for appeal were dealt with or responded to.
To be clear, the vehicle at no point entered any areas of the land that required payment, nor stop the car anywhere that had signs or markings to indicate that such action was forbidden or required a payment. At no time did the driver trespass, block or impede any other drivers (patients or staff) or position themselves or the vehicle in any way which would incur a loss or issue to the land owner. Thus in line with 19.3 in the BPA Code of practice there is no liability for a parking charge.

5. Unlawful penalty charge.

Highview Parking cannot prove demonstrable loss or damage yet a breach of contract has been alleged. It is therefore clear that this Parking Charge Notice is an unlawful attempt at impersonating a legally enforceable parking ticket as issued by the Police or Local Councils. Highview Parking could have made clear the letter was an invoice or request for monies, yet it chose to word it as a 'Charge Notice' in an attempt for it to appear threatening and intimidating in order to extort money from unwitting members of the public.


6. Not a genuine pre-estimate of loss

The amount of £75 demanded by Highview Parking is not a genuine pre-estimate of loss and therefore is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. Highview Parking has provided no breakdown of how the sum has been arrived at based on the alleged parking contravention. My understanding of English law is that a charge can only be made for loss, not for “compensation”. 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 vehicle was never parked in an area designated as requiring payment for parking, even the pay areas were estimated at less than 50% of capacity on the day in question.
Given that Highview Parking apparently charges the same lump sum for alleged contraventions at any time of day on any day of the week, regardless of whether the contravention was serious or trifling, it is clear that no regard has been paid to establishing that this charge is a genuine pre-estimate of loss, and instead the charge is punitive and is being enforced as a penalty. The charge is unconscionable and extravagant and unrelated to local Penalty Charge levels in this area.
It is believed that the Supreme Court’s decision in ParkingEye v Beavis will have an impact on the outcome of this POPLA appeal. If the operator does not cancel this charge and/or if there is no other ground upon which the appeal can be determined, I ask that my appeal is adjourned pending the Beavis case.

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.

Yours faithfully,

XXXXX XXXXXXX
Registered Keeper

Umkomaas

Without clear and compelling reasons for 'acting on behalf' I'm not sure how POPLA would view this. I wouldn't take the risk, just phrase it as if your wife has written it as the Registered Keeper. Take yourself completely out of the appeal structure.

Further evidence of the location the vehicle was in during the visit could be obtained if required however Warrington Hospital is not nearby and would require a special trip journey time 1 hour plus and at significant additional cost. Please advise me if you need this evidence to consider the appeal.
If POPLA believe adequate signage can be demonstrated I request the opportunity to collect full evidence in this respect prior to a final decision

I'd take this bit out - POPLA won't come back to you asking for this. You need to put pressure on HV to prove that their signage was adequate - if they can't, you win!

I think there's a bit of a scramble now, given the Halton debacle, to review and change the signage (possibly at Warrington too), so you need to ask for any signage offered as proof are those signs showing at the time of your parking event - not as they may be now.

You might want to make a crafty reference to the fact that HV have been suspended from accessing the DVLA database relating to Warrington's sister hospital at Halton because of a number of issues relating to signage and the siting of ANPR cameras. Don't make too much of an issue of it, but it would be missing an opportunity to remind POPLA of the Trust's problems with HV 'managing' parking on their sites.

HTH.

The_Deep

This has nothing to do with Beavis, why therefore are you asking for an adjournment?

Paras 3,4, and 6 are is too long, in fact the whole piece is too long, break it up.

Have you read this?

http://www.liverpoolecho.co.uk/incoming/parking-firm-suspended-dvla-over-9660026

Umkomaas

The_Deep wrote: »

This has nothing to do with Beavis, why therefore are you asking for an adjournment?

Paras 3,4, and 6 are is too long, in fact the whole piece is too long, break it up.

Have you read this?

http://www.liverpoolecho.co.uk/incoming/parking-firm-suspended-dvla-over-9660026

TD - that's a last ditch option (why we now advise GPEOL to be at the end of the appeal) in case all other appeal points are dismissed.

POPLA won't be drawing any distinction between various Beavis or not scenarios. They've been 'staying' a large number of cases where it appears that GPEOL was the opening appeal point.

The 'length' of the appeal is ok - have you read the first draft in post #12 - almost 3.5 thousand words. This is a much more POPLA-friendly output.