Highview Parking Fines Help !!

Jofarah

Also I have taken what you have said into account and come up with a second draft . Any advice on submission ??
Dear Sir/Madam

On the above date I, the keeper, was issued with a parking charge notice by Highview Limited. I dispute this on various grounds.

1.)Non Compliance with Pofa which leads to no keeper liability:

As subsection 4 of paragraph 9 of the Protection of Freedoms act clearly states:
The notice must be given by—
(a)handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b)sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
(5)The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.
The date of the alleged offence is 22/08/2015, however, the Notice to keeper was received on 10/09/2015 - well over the 14 days relevant period which is specified.

Furthermore, the operator also falls foul of point (f) of subsection 2 of paragraph 9 :
warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
(i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
(ii)the creditor does not know both the name of the driver and a current address for service for the driver,
the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;

The operator has failed to warn me that as the registered keeper I will be liable to be pursued for the charge after 28 days if the identity of the driver has not been disclosed.

As a result, Highview has not met the keeper liability requirements and therefore keeper liability does not apply. Highview can therefore only pursue the driver. As the keeper of the vehicle, I decline, as is my right, to provide the name of the driver(s) at the time. As Highview have neither named the driver(s) nor provided any evidence as to who the driver(s) were I submit I am not liable to any charge.

I fully believe that this point is sufficient to uphold this appeal. However, I have also provided extra reasons as to why this charge should not be upheld.

2. Reliability of ANPR

Highview’s evidence shows only two pictures of the car car driving into and out of the car park, however, entry and exit times do not constitute parking time.

It is possible that the driver may not have parked at all, but may simply have been driving around during this time without having entered a bay . In this case, there would be no parking time at all and it would be impossible to read the signs in a moving car. As a result, Highview cannot claim there is a loss to the landowner and no parking fees apply. I ask Highview to provide proof that the car in question was actually parked in a bay .

I call into question the reliability and compliance of the ANPR system becauseHighview Parking are relying on two pictures of a vehicle. In these two images, the vehicle registration mark is illegible. Attached below are computerised displays of my vehicle's registration mark, presumably taken by the ANPR system. As the photographic images have illegible vehicle registration marks and Highview Parking 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 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 theexact 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, and this is in addition to the missing time/location/number-plate evidence from the second photo. 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 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, there are merely 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.


3. No authority to levy charges

I believe there is no contract with the landowner/occupier that entitles them to levy these charges and therefore has no authority to issue Parking Charge Notices (PCNs) as per section 7 of the BPA code of practice.
This being the case, the burden of proof shifts to Highview Parking Ltd to prove otherwise - I therefore require that Highview Parking Ltd produce a copy of their contract with the owner/occupier which, to be compliant with the BPA code of Practice, must grant Highview authority to form contracts with drivers and to pursue charges in their own right in the courts. I believe Highview only have an agency agreement with the landowner which does not meet the standards in the BPA CoP.


4. No Genuine Pre Estimate of Loss
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 to submit a full breakdown of how these losses are calculated in this particular car park and for this particular ‘contravention’. Highview Parking 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. 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.''

This Operator 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 discussed in Supreme court) 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.''

5. Unreasonable/Unfair Terms

The Charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:

“18.1.3 These objections are less likely to arise if a term is specific and transparent as to what must be paid and in what circumstances.”

It goes on to state:

“Therefore a term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a ‘disguised penalty’, that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.”

Confusing, ambiguous, poorly placed, and contradictory signage is far from transparent or obvious to drivers, as is disguising a penalty as a tariff. Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e)

"Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation."

Furthermore, Regulation 5(1) states that:

"A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer"

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that:

"A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”

Additionally, the European Court case of “Aziz v Caixa d’Estalvis de Catalunya” provides authority for this, and it is submitted that European Court of Justice decisions must be taken judicial notice of by lower courts in England and Wales. The test established in this case is whether the contract would have been agreed if both parties had sat down with lawyers to negotiate the terms.

"With regard to the question of the circumstances in which such an imbalance arises ‘contrary to the requirement of good faith’, having regard to the sixteenth recital in the preamble to the directive and as stated in essence by the Advocate General in point 74 of her Opinion, the national court must assess for those purposes whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to such a term in individual contract negotiations."

I therefore put Highview to strict proof that their charge is not in breach of the Unfair Terms in Consumer Contracts Regulations 1999.


Yours faithfully

Umkomaas

When is your deadline to submit this?

The Supreme Court will be handing down its judgment on the Beavis case next Wednesday (4/11/15), which will likely change the landscape, one way or another. This will probably render your appeal point referencing the Beavis case obsolete. Depending on direction of the judgment, you are likely to have change your draft to fit in with it.

If time is still on your side, await the Beavis judgment, then avidly read the commentary here, on PePiPoo and the Parking Prankster's blog, to determine how you play this appeal.

Jofarah

Unfortunately, the deadline to submit is Wednesday which makes me nervous about delaying it too long .
Do you think it's worth the risk to wait ?
Also do you think the rest of your points are adequate? ?

Umkomaas

Jofarah wrote: »

Unfortunately, the deadline to submit is Wednesday which makes me nervous about delaying it too long .
Do you think it's worth the risk to wait ?
Also do you think the rest of your points are adequate? ?

That's too close to the wire to take the risk, so you need to get this off to POPLA soonest.

I've skimmed your draft and you seem to have most bases covered - except for a specific appeal section on 'Signage'. You need to get that in as an additional hurdle for Highview to get over.

Just to tidy it all up, put an 'index' at the opening of the appeal - a bullet point list of the appeal paragraph number and its title.

I'd chance a penny (subject to the Beavis outcome) that Highview won't contest this with POPLA.

Keep us posted, especially if you do get a Highview evidence pack (which they will need to let you have around 7 days before the forecast date of your appeal being assessed); this will indicate that Highview are contesting it.

Coupon-mad

jofarah wrote: »

unfortunately, the deadline to submit is wednesday which makes me nervous about delaying it too long .
Do you think it's worth the risk to wait ?
Also do you think the rest of your points are adequate? ?

I say, delay it.

Submit it Weds night after checking back here in the morning of the Beavis decision that same day, in case anything useful comes out of the Supreme Court. POPLA will be fine (I have even submitted them late but don't encourage it).

Jofarah

Unfortunately Beavis has lost the case . Should i just send the appeal anyway ?

Redx

Jofarah wrote: »

Unfortunately Beavis has lost the case . Should i just send the appeal anyway ?

4) needs altering or some or all parts removing, due to the Beavis result

also make sure you address the signage issued identified by Umkomaas too, plus add the bullet points before the main body of the appeal

The_Slithy_Tove

Redx wrote: »

4) needs altering or some or all parts removing, due to the Beavis result

#5 is also shaky given the SC ruling.

Jofarah

Hey guys ,
I have received highviews evidence pack ! Its basically
- case summary almost 90% conrised of beavis supreme court.
- pictures of signage and plan
- witness statement from someone at Tesco saying highviews have right to charge tickets.
- no mention of ANPR , POFA

Jofarah

My question is -
Is a witness statement sufficient in lieu of a contract ?

By not providing evidence do they acceot that they are not pofa and anpr compliant ?
Again thanks for all the advice