Mugging attempt by Highview Parking at Crawley retail park - Update, see first post.

seepyj

Hi all,

firstly a huge thank you to you all on here that have devoted so much so much of their own time to this crusade against unfair parking charges and helping the little man like me. You exist on other websites too and in other mediums, and to you all my upmost thanks.

So got an 'invoice' from Highview through the post yesterday.

Since opening it I have done nothing but study this forum and many others on the internet too, I've been back to the car park to take photos and I called the management company for the retail park too yesterday as I learnt more about POFA 2012, BPA signage best practise and GPEOL etc (Management company really helpful, and would like a copy of my appeal to Highview as they accept a duty of care towards the public)

So, it's been a crazy 24 hours. And I need some sleep but I think can count 5 issues with the NTK that are not POFA schedule 4 compliant. I know a lot of folk recommend the soft appeal but I've drafted a very strong initial appeal to Highview with a drop hands offer as it just felt therapeutic and cathartic!!!!:mad:

Once I've had some sleep I'll re read it and post it on here for comment.

Thanks again,

seepyj

Update: Jan 11th 2016.
Found an email today in my junk that was received on Friday from Matalan customer services, the retailer has accepted my argument that the site signage is poor and have taken it on themselves to cancel the PCN with Highview. Great news, that got better on returning home from work to find a letter waiting for me from HV confirming the cancellation.

Thank you so much to all the regulars on here who have got behind this cause and help out normal folk on a daily basis to beat these thieves.:beer: In particular, thank you to ampersand for your multiple detailed posts and support. :T

Is it wrong that I feel a little deflated that I don't get to fight Highview?

I sent a detailed complaint to the site management company last week and they promise that they are investigating the issue and will report back, I'll let you know when they do.

To sign off, thank you for all the guidance and the information on the forum that spurred me on to rattle every tree prior to an initial challenge and gave me a win before the first hurdle. Drinks on me Saturday evening at my local!:beer:

The_Deep

This is not really a big deal, it happens probably thousands of times a day, and most people pay up. The awkward squad fight the PPCs using the law and, make them pay money, Welcome to the AS.

Ralph-y

"Once I've had some sleep I'll re read it and post it on here for comment."

please make sure you do .......

if you have in any way implied you where driving then you loose POFA 2012 protection as an appeal post.

that is why it is recommended to only use the first appeal template.....

good luck

Ralph:cool:

ampersand

What a refreshing 1st post seepyj - you're very welcome here!

This: '(Management company really helpful, and would like a copy of my appeal to Highview as they accept a duty of care towards the public)' is also rare:-)

Look forward to reading your draft and understand the cathartic, therapeutic need. Whether or not it's deemed wise/complete, I suspect you'll have done any necessary edits before posting.
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Oh, hello Ralphy) - best 2016 yet already started. Very kind regards.

Fruitcake

As above, send only the soft appeal or be very, very careful about what you put in a strong appeal. Alternatively you could just inform the Management company the failings of the PCN and ask that they deal with it themselves, again being careful not to mention who was driving.
"I am the keeper of XXX and was an occupant of the vehicle when I got mugged ..." would be a good way of putting it, and then asking why this company is allowed to operate at all on land they manage.


Well done on doing your research before posting. It really helps the regulars when people do that.

seepyj

Hi all,

Thanks for the kind welcome and replies so far.

The first appeal draft to Highview is pasted below. I know it's long but it really felt good writing it down, copying and pasting from other sources too and getting the frustration off my chest. I welcome all of your critical comments and respect the point about soft appeals, but I'm a militant so and so and will quite happily look to recover costs if they refuse the 'drop hands' offer as I'd like to not have to go to POPLA. At every stage I've talked about the driver in the third person or so I believe, so I trust that I've not hurt POFA protections. I hope I'm not wasting your time by inviting comment on a hard first appeal, and once again thank you.

Dear Sirs/Madam

Re: Invoice

As the keeper of vehicle xxxx xx I received your alleged breach of contract invoice through my door yesterday morning the 4th January.

Firstly, let me state that in the following correspondence there will be no admissions as to who was driving and no assumptions can be drawn.

For the reasons I will set out below I believe your claim to be a vexatious attempt to scam innocent law abiding members of the public into panic paying £50. The points below also set out why your invoice has no basis in law:-

a) At its very core your notice to keeper fails on multiple points to be compliant with POFA 2012 schedule 4, paragraph 6 in that it omits items required in paragraph 9. Therefore as keeper I have no liability to inform you of the driver’s details. POPLA have set precedent that if the NTK is not fully POFA 2012 schedule 4 compliant then they will find with appellant.
• The day after the alleged breach was 19th December, your invoice is dated 24th December, but you sent it by conventional mail over the Christmas period and only with a second class stamp, meaning I did not receive notice until yesterday January 4th, a period exceeding 14 days.
• You have not named the creditor who is legally entitled to recover any loss.
• You have not advised me that the creditor is unaware of the driver details.
• You have not advised me that if the parking charge remains outstanding after 28 days and the name and address of the driver has not been given, the “creditor” will be entitled to recover the parking charge from the registered keeper.
• Finally you fail to mention whether a notice was issued to the driver/vehicle at the time of the alleged breach.

The above non compliance alone gives me leave to appeal but I feel it imperative to make you aware of the following points that make your claim vexatious and akin to the actions of a scam artist.

b) The sum does not represent a genuine pre-estimate of loss, nor is it a core price term. It is a disguised penalty and not commercially justified.
c) As keeper I visited the car park in question yesterday both in the daylight and at night (the period the alleged breach occurred). I have surveyed the sight taking photographic evidence and primarily find your signage at best to be non compliant with the BPA code of conduct and at worst misplaced, unlit, infrequent, contradictory and in poor condition.
d) There is no evidence that you have any proprietary interest in the land. Please provide this.
e) There was no consideration nor acceptance flowing from both parties and any contract with myself, or the driver, is denied.
f) Your invoice states “..the vehicle contravened the terms and conditions displayed on the signage”. Having spoken with the driver of the vehicle and having paid a visit to the site yesterday, the displayed signage that was on multiple lit lamp posts visible from where the car was parked (outside the Matalan entrance) was sun bleach faded but stated ‘no overnight parking’. No other signage is lit at night or visible from this parking location. I’m in agreement with the driver that they acted appropriately and accordingly as per the displayed terms and conditions; and by your own ANPR data shown on the invoice, the vehicle was not left overnight.
g) The driver advises me that this is a free car park and that at the time of entry there were very few other cars in the car park as the retail stores had only 15 minutes until closure. On their return to the vehicle there was hardly any cars at all in a car park with 313 spaces. It’s their contention and mine that your clients have suffered zero loss and that the charge you are demanding is exorbitant and therefore a penalty amount rather than recovery for loss resulting from breach of contract, contrary to UK law.

Your clients should be thoroughly ashamed of the shoddy way you conduct your operations and the resulting manner in which consumers visiting their premises are treated.
Yesterday I spoke with xxx xxxx of JLL the site management company and advised him of my disgust with your actions and the above points. A copy of this letter will be sent to xxx and the CEO of JLL, xxx xxx, with a covering letter and photos explaining the shortcomings in your signage and non compliance with POFA2012, so that they as a respectable landlord can force you to clean up your act and hold you to account.

The final key points of this communication are:-

1. Formal challenge
You must either rely on the POFA 2012 of which you haven’t complied with or cancel the charge. I suggest you uphold this challenge now or alternatively, send a rejection letter with POPLA code – Since you have no case at this key juncture, if you follow the latter you enter into contract with me to accept my claim for costs as clearly stated below in point 2.

2. ''Drop hands'' offer
The extravagant 'parking charge' is baseless but I realise that you may have incurred nominal postage costs. Equally, I have incurred costs to date, for researching the law and responding to your junk mail dressed up to impersonate a parking ticket. It is clear that my costs exceed yours due the time and effort to respond and research and that this is not my normal business. However, I make a formal “drop hands” offer and I remind you of the duty to mitigate any loss, so withdraw the spurious charge within 35 days without further expense and I will not pursue you for my costs. If you persist then I will charge in full for my time at £18 per hour plus my out-of-pocket expenses and damages for harassment.


3. Illegal contract terms
The Consumer Contracts (Information, Cancellation & Additional Payments) Regulations apply now to every consumer contract, save for a few exemptions, which parking contracts are not. It is the will of Parliament following the EU Consumer Rights Directive, that express consent is obtained for consumer contracts now - not implied consent - and that information is provided in a durable medium in advance.
You have failed to meet these requirements. The foisting of unexpected contracts like this on consumers, by stealth, is a thing of the past and your actions are no different to the parking cowboys and clampers of old.

By replying to the challenge you are acknowledging receipt and acceptance of point 2 above. If you decide to persist with this unwarranted threat, I will be put to unnecessary expense and hours of time in appealing or defending this matter. As such, you will be liable for my costs and a genuine pre-estimate of my loss - and in contrast with yours, mine actually is genuine - is that this sum will be likely to exceed £150. If you challenge me you freely enter into this contract and expressly agree to the terms above.

I have kept proof of submission of this challenge. I look forward to your considered reply within 35 days.
Kind Regards,

seepyj

Here's the original PCN

dropbox.com/s/g3o4qp7kjti4w72/Highview%20PCN%20.jpg?dl=0

Can't get photo box to work so you'll need to add www. to the start of the url.

ampersand

AT 1st blush -
Heading it 'Invoice' gives it credibility.
I'd use 'Unenforceable Invoice, styled PCN no. xxxx'
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Lose 1st person wherever possible, jumps out - one example:
'For the reasons[STRIKE] I will[/STRIKE] set out below, [STRIKE]I believe [/STRIKE]your claim appears to be a vexatious attempt to [careful, don't venture into libellous pasture]to panic[STRIKE] innocent[/STRIKE] law- abiding members of the public into paying £50 for an unenforceable invoice.
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Leave out the 'firstly', 'finally' adverbial train. You've used the latter twice.
Also, at this 1st silly stage, you're delineating for them the elements of any subsequent appeal too clearly. At this stage, you simply want to show you are Encyclo.Brit. on this tiresome matter and that their waste of your time will cost them....isn't that so?
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Too much mouth early on may be read later by real assessors or adjudicators, to your possible detriment. Always maintain the moral high ground and the Less is More professional tone. This still allows filleting of such scumpanies by linguistic stiletto - so much more satisfying.
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Punctuation/grammar needs tightening here:

• The date of this alleged breach was 18th December, 2015 and yet this speculative invoice is dated 24th December, 2015, 6 days later!

Sending it by conventional mail over the Christmas period, bearing only a 2nd class stamp, meant it was not received until January 4th, 2016, a period exceeding 14 days after the[explain why this is naughty:D].[How clear is postmark?]
• You have not named the creditor who is legally entitled to recover any alleged 'loss'.[note suggested change]
• You have not advised me, as Registered Keeper, that the creditor is unaware of the driver's details.
• You have not advised me, as Registered Keeper, that if this speculative invoice remains outstanding after 28 days and the name and address of the driver has not been given, the alleged creditor will be entitled to recover the alleged parking charge from the registered keeper.
• You fail to mention whether a notice was issued to the driver/vehicle at the time of the alleged breach.
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seepyj - we DO understand. Ivor Pecheque would, I'm sure, be delighted to see eventual pics of your valid payout, for harrassment et al, join his- as would we:-)
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It's always 'neither/nor', 'either/or'. Mis-paired in [e]
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Haven't time to do more or a proper forensic one until later.
One bit of adjectival repetition I do use is inclusion of 'alleged' before every appropriate noun i.e. 'loss', 'creditor', 'breach', 'offence'.
#
All such letters close 'Yours faithfully,'
#
Must dash. Will look back this evening.
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Before I drop your pic link in, remove veh.make/model/colour details.

seepyj

Ampersand that's awesome feedback thank you.

I know that a soft appeal is easier but I guess the idealist in me wanted to go on the attack. I look forward to your and others further guidance.

I have reposted the the PCN above with vehicle make and model details removed. I would be grateful if anyone can challenge my POFA defences based on the PCN wording. I think each one is cast iron except the 14 day notice period which I understand is up to me to prove I didn't receive it until yesterday, which seems ridiculous.

Also just got an email from Matalan customer services as I explained to them that the signage was on the site was contradictory in that one unlit sign from Highview mentions a 2 hour limit and then multiple faded lit signs on lighting posts state, 'no overnight parking'. The poorly placed sign at the entrance says, "Private Property. Please see signage within car park for full terms and conditions'. It's the drivers contention that the signs stating no overnight parking, the only ones lit, were fully complied with.... Matalan have agreed to raise my issue with Highview but have stated, 'we make no promises'.

Umkomaas

@OP. You're firing too many of your weapons far too early. These are the types of arguments you present to POPLA. Your chances of getting your initial appeal upheld by HV are no better by using your draft than using the short and sharp initial appeal template in the newbies sticky.

Showing so much of your hand so early gives HV more opportunity to rehearse how they will handle your POPLA appeal when it eventually surfaces.

From memory, HV don't pursue PCNs on the basis of Keeper Liability, so appeal points around PoFA are somewhat moot. But please double check your PCN and confirm on what basis they are pursuing their claim.

Your draft appeal is looking much more like a POPLA appeal, so the work you've done won't be wasted. However I'd by reasonably hopeful that Matalan will get this cancelled (they've being doing so of late), but don't delay sending your initial appeal (and miss the HV deadline) waiting for a Matalan reply.

seepyj

Umkomaas

From memory, HV don't pursue PCNs on the basis of Keeper Liability, so appeal points around PoFA are somewhat moot. But please double check your PCN and confirm on what basis they are pursuing their claim.

Sorry brain fried so not sure I understand this. Surely my only legal liability is to tell HV who the driver is, but as POFA has not been complied with I'm absolved of this, so how can this be a moot point? HV can't take me to court they can only take the driver so long as I'm no longer bound by my POFA requirements? I'm confused.

Ref the powder dry, thank you. I'm warming more and more to a simple soft appeal now that the initial emotion is draining from the situation. Maybe just a simple POFA non compliance so leave me alone or send POPLA code, if you do then I will seek costs against you as you enter into a contract with me on the hands sown offer.....

Thanks again.