Highview Parking Parking Charge Appeal

solamichtum

I received a Parking Charge from Highview Parking for driving into a carpark at the back of a restaurant in Shenfield after I was advised by the restaurant on site’s staff to use car park at the back whilst I drop my kid off for a party in the same restaurant.  

They claim the vehicle was recorded for a duration of 11 mins between 11/03/2022 15:42 to 11/03/2022 15:53. With a fine of £100.

I had to call the restaurant to confirm the permit holders only, hence my stay on the site but I then drove out without parking after they said they could not give any permits.

I appealed to them on 4 grounds I found on this site and have been rejected. They have provided a POPLA Reference Number.
The grounds I used were:

1. Sum sought does not represent a genuine pre-estimate of loss.
2. Signage on site is deficient and does not comply with the BPA COP.
3. They lacked any or sufficient proprietary interest in the land.
4. Their notice failed to comply with Schedule 4 of POFA.

I now intend to appeal to POPLA using the following which I have taken from your website, with amendments.
QUOTE

Dear Sirs/Madam,

Re: POPLA CODE [removed]

As the registered keeper of the vehicle, registration number [removed], 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.
3. Notice to Keeper not properly given under POFA 2012 – no keeper liability.
4. 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 alleged contravention was of duration of 11 minutes at a time when the driver noted that the car park in question was at 100% of capacity. Hence why the car park could not park. 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.''


2. Contract with landowner

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 unredacted 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 a parking charge, stating: 'where a Notice is to be relied upon to establish liability it must, as with any statutory provision, comply with the Act.'


4. Unclear and non-compliant signage, forming no contract with drivers.

As stated in the BPA code 18.1 “You must use signs to make it easy...to find out what your terms and conditions are.”BPA code 18.2 states “Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of. Entrance signs must follow some minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this.”

BPA code 18.3 states “Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that

they are easy to see, read and understand.”

Upon entering this car park, there is a sign no sign that states a “That on entering the parking area you are entering into a contract” The 1st notice of the sign is only seen when you have turned into the entrance of the cark and gone past the Camera. The only other option will be to reverse back into a busy main road.

Signage at this car park is in breach of Appendix B of the BPA code of practice on a number of counts. Firstly, there is no sign at the entrance to the car park required from Group 1 wording. The signs in the car states “Permit Holders Only”. But it is highly impossible to read the “By entering this parking area you are in contract” part of the sign from the vehicle due to extremely small fonts and therefore is highly ambiguous as to the actual terms of the park. Unreadable signage breaches Appendix B of the BPA CoP which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. This would include the signs being lit/reflective and repeated throughout the car park, with consistency of restrictions throughout. In this car park the entrance sign and the signs stating a permit holder's only are so similar that any reasonable person could not possibly consider this a fair attempt at regulating parking.

This concept of clarity is also stated in case law. When giving judgment in Thornton vs Shoe Lane Parking Ltd [1971] 2 QB 163, Court of Appeals, Lord Denning stated that this was not “drawn to his attention in the most explicit way. The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand, but not otherwise. In {ticket cases of former times} the issue...was regarded as an offer by the company. That theory was, of course, a fiction. No customer in a thousand ever read the conditions. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it - or something equally startling.”

I will like to also bring to your attention that the alleged contravention was on the 11/03/22 but the invoice or notice was received on 12/04/22. Some 32 days after the event. Which means the 14-day rule was clearly broken.

Based on the above arguments, I therefore respectfully request that my appeal is upheld and the charge dismissed.

UNQUOTE

l

There is clearly no signs to indicate private parking, so as the restaurant said use the car park at the back. I turned into the site

Main entrance, still no signs, after turning in and picked up by camera. then there is a sign

Please Help

Coupon-mad

Absolutely no grounds to use point 1 and if you found it on this forum it was more than seven years old!  'No loss' went out with the Supreme Court decision in 2015, in ParkingEye v Beavis, so remove that.  It has no legs at all.

I giess you don't realise that your commentary around those photos tells POPLA who was driving?  That would completely bin your otherwise valid point about the NTK not complying with the POFA!  Be more careful with what you write.

I do hope your appeal didn't involve you ticking a box saying you were the driver.  The POFA point only works if you don't imply nor admit who parked.

solamichtum

I already mentioned in the appeal that I was the driver. Is that a bullet in my own foot?

Le_Kirk

solamichtum said:

I already mentioned in the appeal that I was the driver. Is that a bullet in my own foot?

It is if you were going to rely on the PPC not being able to chase the RK due to failure of POFA.

Coupon-mad

solamichtum said:

I already mentioned in the appeal that I was the driver. Is that a bullet in my own foot?

Yes.  That binned the 100% winning point.  You can't use anything about the POFA or the NTK at all.