Underpaid unknowingly

BaBa

Hi

I've read the sticky and several of the recent forum member cases, but none have given me a steer as to how I should approach an appeal.

The driver parked our car on a local car park, and as we were intending to spend longer than two hours at the theatre, inserted £3.30 into the machine for the 'longer than 2 hours' rate. 2 hours parking was the only other available rate, at a cost of £2. It was a dark and wet evening, and the car park was almost empty as it was midweek and that particular car park is rarely busy at any time.

On returning back to the car that evening, we noticed that it read £3.20 and not £3.30, and had an expiry of two hours after purchase. The driver had either innocently miscounted the 10p coins and inserted one too few, or the machine had rejected one of the coins, but irrespective, the machine appears to issue a ticket with any fee paid rather than indicating that the amount does not align with either of the rates for parking.

Around a week later, a charge notice to me as the keeper arrived, advising of a fine of £85 (or £50 when paid in lesser than 14 days). The letter appears to contain the correct wording as far as I can see, so no prospect of appeal due to incorrect wording, but I'd have hoped that as it is clear that we intended to pay for more than two hours rather than the £2 fee for two hours, is it not reasonable to appeal on that basis - or am I being very naive and not fully comprehending the subtleties of how this all works?

Any advice or suggestions would be most appreciated.

Coupon-mad

ParkingEye?

Just send the usual template (from the Newbies thread) attaching a copy of the P&D ticket and add a line or two (careful not to say who was driving - double check before you submit it!).

Say the full £3.30 was in fact paid into the machine by the occupants of the car and you require their ANPR system report showing the unmatched cash overpayment retained that day, along with a POPLA code. Alternatively, you invite them to cancel the charge because an allegation of an unpaid 10p tariff is the opposite of the Beavis case. This charge fails Lord Dunedin's four tests for a penalty, which as PE will be aware, the Supreme Court Judges confirmed was the applicable test where the allegation relates to a small and defined unpaid sum (which is denied).

Only call yourself the registered keeper on the drop-down menu.

BaBa

The charge notice is from Highview Parking and not Parking Eye but that is by-the-by I expect, and so I'll do as you suggest. They do refer to the Parking Eye v Beavis case within the letter (describing it as a landmark ruling).

Thank you very much for your kind and helpful advice.

Coupon-mad

Actually it is better that it's Highview, because I don't think their postal Notice to Keeper (PCN) is fully compliant to the letter, when compared with paragraph 9 of Schedule 4 of the POFA (linked in the NEWBIES thread). Get your pedantic hat on, have a look and don't come back saying you think they more or less match the wording...more or less isn't compliant with the law!

BaBa

Clause (f) within section 9 isn't addressed explicitly within the letter:
(f)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;


Would that be a sufficient enough omission for challenge? The online appeal function on the Highview website only allows you to proceed beyond the initial screen by ticking one of either:
1. Confirm that you were the driver and that the PCN contains the correct information
2. Confirm that you were not the driver, or that the PCN notice contains incorrect information

Coupon-mad

Tick #2 then. You are the keeper.

You won't get it cancelled at this stage, you will get a POPLA code which jumps you to a place where you can win if POPLA are not still playing silly-devils with badly-trained new Assessors who do not understand basics.

And yes, that is a major omission, the warning about keeper liability is mandatory. Do they say anything about keeper liability at all but just badly paraphrase the warning? Or does it not have that warning?

The_Deep

Let us look at this with our sensible hat on shall we.

The fee was £3.30, either, due to human error or machine failure. they claim than you owe them 10p, and because of this, they want £100.

Does anyone think that they are going to take you to court for that?. Even if they did, what is the likely reaction of the judge?

I really do not think that CM is getting enough sleep.

BaBa

Coupon-mad wrote: »

And yes, that is a major omission, the warning about keeper liability is mandatory. Do they say anything about keeper liability at all but just badly paraphrase the warning? Or does it not have that warning?

The letter doesn't explicitly warn the keeper, no. The words used are shown in the image below:

Coupon-mad

The_Deep wrote: »

I really do not think that CM is getting enough sleep.

It's half term off school! :rotfl:

BaBa wrote: »

The letter doesn't explicitly warn the keeper, no. The words used are shown in the image below:

Great. There is no sign of them trying to hold the keeper liable. I thought not but it had been a while since I saw one of theirs.

We just need to get down to the new POPLA Assessors' level and explain the law to them in words of one syllable in future, with a link to Schedule 4 and a copy & paste of the exact wording needed from para 9. We will have to train them because no-one else has bothered; these next forum appeals spelling it out, will have to be their training course on the POFA.

That will do it, hopefully, at POPLA stage, as long as the keeper is the appellant and does not mention the driver/who parked.

BaBa

Hi all,

I've received my expected appeal rejection today from Highview parking and so have drafted the following for my POPLA appeal.

I would be most grateful if those who have already provided me guidance could please have a look at this and let me know of any improvements that can be made:

________________________________________________________

Dear Assessor

Highview Parking PCN reference no:
POPLA reference no:

I am the registered keeper and this is my appeal to the above PCN, issued by post and relating to when the vehicle was parked at Marsh Street car park, Hanley.

On the evening of 10th March, one of the vehicle occupants inserted the full £3.30 fee for overnight parking into the machine and upon subsequent and recent review of the ticket that was issued at that time, it is apparent that one 10p coin either did not register or was rejected by the machine, with the vehicle occupants unaware of this apparent failure.

Other than the £3.30 overnight rate, the only alternate available parking rate is one of £2 for a 2 hour stay, which was clearly not what the vehicle occupant intended or attempted to purchase by reference to the fact that the ticket no Bxxxxxxxx, attached as evidence shows a fee paid of £3.20, just 10p short of the overnight rate and way in excess of the sum required for 2 hours.

My appeal points are:

1) The Notice to Keeper is not compliant with the POFA 2012 - No Keeper Liability
2) Ambiguous, unclear, and misleading signage.
3) No genuine pre-estimate of loss
4) No Landowner authority/contract - a managing agent is not the landowner.
5) This case can be distinguished from Parking Eye v Beavis which does not apply.
6) I rely on the binding authority in Vine v Waltham Forest which was a Court of Appeal judgment, about a driver not seeing the terms and not deemed bound by them.


1) The Notice to Keeper is not compliant with the POFA 2012 - No Keeper Liability

The requirements of Schedule 4 POFA are explicit in that there must be strict compliance with all of its requirements in order to take advantage of the rights granted under that Act to pursue the registered keeper in respect of a driver’s alleged debt. The BPA Ltd AOS Code of Practice (version 5, October 2015) supports the need for strict compliance (para 21.5 refers). Highview Parking has clearly failed to comply with the statutory requirements as follows.

a) Paragraph 8(2)(f) requires that the Notice to Keeper must:
warn the keeper that if, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given—
(i)the amount of the unpaid parking charges (as specified under paragraph (c) or (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 Notice to Keeper clearly fails to comply with this requirement as there is absolutely no liability identified or implied upon the keeper for payment of the charge notice, only upon the driver of the vehicle, the name of whom has not been established.

b) The Notice to Keeper does not, as per Paragraph 8(2)(c), state that a notice to driver relating to the specified period of parking has been given and repeat the information in that notice as required by paragraph 7(2)(b), (c) and (f), with 7(2)(b) requiring that it “describe(s) those charges, the circumstances in which the requirement arose”.

The breach was alleged to be for lack of sufficient parking payment made for the vehicle to cover the full duration of the visit, however it does not make clear to the keeper what the period paid for was, and thus how the driver had (allegedly) exceeded this.

Highview Parking have failed to comply and thus have not fulfilled all of the requirements necessary under POFA to allow them to attempt recovery of any charge from the keeper.

2) Ambiguous, unclear, and misleading signage

Signage in many areas of the car park is sparse or not displayed at all and those displaying the parking terms and conditions that do exist are primarily grouped around one side of the car park affixed to a wall, printed in font of such a size as to be unreadable, and even more so on a dark and wet evening, from any distance other than being directly in front of them.

I submit photographic evidence of one such sign demonstrating the inadequate font sizing and having reviewed the layout and positioning of the signage, it is clear that from the location at which the vehicle was parked on that evening to the exit of the car park, no signs displaying T&Cs are passed and furthermore none are close to the route of exit from that part of the car park adjacent to and facing Marsh Street.

Having subsequently revisited the car park I note that the terms included within the signage at this car park read:
'All vehicles must display a valid staff/visitor permit or purchase a ticket from the Pay and Display machine.' I would also challenge that these terms, had they have been clearly visible, are also ambiguous in that in this case a ticket had been purchased from the pay and display machine.


3) No genuine pre-estimate of loss

The charge of £85 is punitive and unreasonable, contravening the BPA Code of Practice section 19. Highview Parking must therefore be required to explain their 'charge' by providing POPLA with a detailed financial appraisal which evidences the genuine pre-estimated amount of loss in this particular car park for this alleged contravention – relating to a clearly inadvertent shortfall of payment of just 10p against a £3.30 parking ticket. In my appeal to Highview Parking I requested that an unmatched cash report for the machine on that day be provided in order to verify whether the 10p had been collected but not recorded during transaction, though they ignored my request for this information.

The fact that the recommended maximum level in section 19.5 (“we would not expect this amount to be more than £100”) has not been exceeded merely means that the operator does not have to justify the amount in advance. In no way does it absolve the operator of their responsibility to base the figure on a genuine pre-estimate of loss, or to comply with section 19.6 which states that the charge “cannot be punitive or unreasonable”.

Highview Parking cannot include their operational tax-deductible business running costs - for example, costs of signage, staffing and dealing later with the appeals, or hefty write-off costs. This would not represent a loss resulting from a breach of the alleged parking contract and in any case I believe Highview Parking are likely to be paid by their client - so any such payment income must be balanced within the breakdown that Highview Parking supply and must be shown in the contract, which leads me to appeal point 4 below.


4) No Landowner authority/contract - a managing agent is not the landowner

As Highview Parking do not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner that authorises them to offer contracts for parking in their name, issue Parking Charge Notices and take legal action in their name for breach of contract.

A site agreement with another non-landowning agent (such as a managing agent) is not proof of authority from the landowner.


5) This case can be distinguished from Parking Eye v Beavis. There is no commercial justification possible and the signs fail to meet the bar set in the Beavis case.

Highview parking are quoting Parking Eye v Beavis though I do not understand how the result of this court case could possibly be related to Highview Parking's charge here. The only similarity is that they are both called a 'parking charge' but here, Highview Parking's charge is penal, unfair and unsupported by any compelling 'legitimate interest' beyond that of the parking firm's own profits alone - which renders it unenforceable.

In the Beavis case, Parking Eye had control of the car park to enforce a time limit and were expected by the landowner to ensure a regular turnover of parking for customers of retailers. The area of parking in question regarding this Highview Parking charge has no such time limit, no customers needing spaces in a busy car park and there is no 'turnover of bays' requirement.

Signage in many areas of the car park are sparse or not displayed and those that do exist are predominantly grouped around one side of the car park affixed to a wall and fence, printed in font of such a small size as to be unreadable on a dark evening from any distance other than being directly in front of them, again unlike in the Beavis case.

The signage communicating the £85 charge was found to be very 'prominent' in ParkingEye's case at the Supreme Court, unlike the signage in question here. ParkingEye were also able to show that the complex contractual arrangement in that specific car park was not an unenforceable penalty, only in that case, despite the Judges saying that the penalty rule was plainly 'engaged' in private parking charge cases.

The Supreme Court decision in ParkingEye v Beavis states that the contract is accepted by performance in a driver parking, reading signage and being clearly informed of terms and given a 'valuable' licence to park. Mr Beavis was considered to have read the 'very prominent' terms first which showed the parking charge 'in large lettering' and by the action of parking and leaving his car, he was found to have made a promise which constituted consideration and acceptance of terms. This decision does not simply transfer seamlessly to all other types of parking charges and car parks where no licence to park is offered or where no similar commercial 'legitimate interest' exists.

Parking charges in less complex cases can very easily be found to be unenforceable penalties, as was discussed at length in the Beavis case;

EXTRACTS FROM LORD NEUBERGER AND LORD SUMPTION: (with whom Lord Carnwath agrees):

9. The distinction between a clause providing for a genuine pre-estimate of damages and a penalty clause has remained fundamental to the modern law, as it is currently understood. The question whether a damages clause is a penalty falls to be decided as a matter of construction, therefore as at the time that it is agreed…This is because it depends on the character of the provision, not on the circumstances in which it falls to be enforced.

14. …where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty;’

31. The real question when a contractual provision is challenged as a penalty is whether it is penal, not whether it is a pre-estimate of loss. These are not natural opposites or mutually exclusive categories. …The question whether it is enforceable should depend on whether the means by which the contracting party’s conduct is to be influenced are “unconscionable” or (which will usually amount to the same thing) “extravagant” by reference to some norm.

32. The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation. The (operator) can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.


6) I rely on the binding authority in Vine v Waltham Forest CA 5 [April 2000] about a driver not seeing the terms and not deemed bound by them.

This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:

http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established.

The driver in that case (who had not seen any signs/lines) had not entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

In this specific case and with reference to the car Park at Marsh Street, Hanley, there are no signs containing relevant terms and conditions at the entrance to the car park and as previously explained, in large areas of the car park adjacent to the road, signs are not visible and have not been passed in reaching those parking locations.

The Vine v Waltham Forest case supports my appeal and is a Court of Appeal judgment, binding on lower courts, which is far more relevant than the Beavis case in this instance where Highview Parking's interest is nothing beyond the basic aim to punish/fine any alleged defaulter, without making the terms clearly legible from a driver's seat before parking.

Where a parking charge is penal with no legitimate interest extending beyond claiming restitutionary damages, it cannot be saved by the Beavis case and the penalty rule remains firmly engaged.

I therefore, on the basis of the six reasons contained within this letter, respectfully request that my appeal is upheld and the charge dismissed.

Yours faithfully

Mr.Generous

what a superb reply, if I ever fall foul of this ill be asking you for help !! Well done.