Highview Parking invoice: What's the current advice?

[filthysurfer]

Hi guys,

 

Haven't been here for a while. Not since you all helped me out with some Excel Parking issues a couple of years ago.

 

Anyhoo, I've now received one from Highview Parking for outstaying our welcome in a Tesco car park. In light of all the 'New law effective from 1st October 2012' malarky, what is the current advice? Back when I was dealing with Excel it was to just ignore and not to communicate with them in any way. Is that still the case? Or do these jokers have a bit more clout now?

 

Thanks in advance.

Edited July 30, 2013 by filthysurfer

[dx100uk]

in all reality its changed nowt

 

however there are those that know better

than me that do write about pofa or whatever it is read a few recent threads here

 

dx

[ericsbrother]

the POFA allows the PPC's under certain circumstances to chase the registered keeper of the vehicle for the alleged debt instead of the driver. Nothing else has changed, any charge is still a speculative invoice and various parking companies are claiming different reasons as to why you owe the money to them but as yet there is no case law that says anyone owes anything to these people.

Current advice recommends asking PPC for an appeal number to go to POPLA for adjudication. The reason for this is that it costs the PPC £27 for every appeal and the outcome is only binding on the PPC, not on the appellant. As many PPC's cannot get their act together they often lose by failing to offer a reason for the charge. See other threads on successful POPLA appeals for what to challenge, calculation or estimation of losses seems to be favourite at the moment.

[filthysurfer]

in all reality its changed nowt

 

however there are those that know better

than me that do write about pofa or whatever it is read a few recent threads here

 

dx

 

Thank you

 

the POFA allows the PPC's under certain circumstances to chase the registered keeper of the vehicle for the alleged debt instead of the driver. Nothing else has changed, any charge is still a speculative invoice and various parking companies are claiming different reasons as to why you owe the money to them but as yet there is no case law that says anyone owes anything to these people.

Current advice recommends asking PPC for an appeal number to go to POPLA for adjudication. The reason for this is that it costs the PPC £27 for every appeal and the outcome is only binding on the PPC, not on the appellant. As many PPC's cannot get their act together they often lose by failing to offer a reason for the charge. See other threads on successful POPLA appeals for what to challenge, calculation or estimation of losses seems to be favourite at the moment.

 

So generally it's a good idea to go down the appeal/adjudication route rather than outright ignoring? In the case of straightforward tickets like mine this is the action to take? Previously the advice on here was to make no contact at all and it would blow over. Is this the major change since October 2012?

 

Sorry for all the questions. Last time I was here there was a lot of discussion regarding non-existent appeals processes, whether to communicate with them, template letters, rumours of court cases etc etc when in 99.9% of cases just binning the begging letters did the job. I want to know what the best course of action is now.

 

Cheers

[Crocdoc]

There are various template letter depending on location. POFA and POPLA do not apply in Scotland for example. Am I correct in saying that you live in England or Wales.

[filthysurfer]

Yes, I'm in England.

 

Template letters? So contact is very much advised? There were template letters available prior to October 2012 but it was widely accepted that sending one off was a waste of a stamp.

[Crocdoc]

Everyone does not share my view , however I would respond and make sure that they comply fully with every detail of POFA, Make full use of the appeal service POPLA as the decision is of course only binding on the PPC and they currently lose 60% of appeals.

 

I will post up a template letter when I get home around 4pm and should you decide to use it, all further details including the POPLA appeal process can also be provided.

 

As I understand it the POPLA office is a very busy and expensive wee gang hut for the PPC's and BPA.

 

If you haven't done so have a read at the Parking Prankster as he has become a legend nationwide. Lots of laughs as well as some very detailed information.

[Crocdoc]

This is not my letter, it does however originate from a very reliable source. If you decide to go down this route please fire up any reply in order that further information can be provided and that the PPc response can be held on record.

 

Name

Address

Date

 

Without prejudice, except as to costs Notice to Driver/Keeper (delete as appropriate) [Give its ref number]

On (date) I was the registered keeper of a (make and model of vehicle) registration number (reg number).

 

Before I decide how to deal with your Notice to Driver/Keeper (delete as appropriate), I should be grateful if you would first answer all the questions and deal with all the issues I have set out below. Once you have done so, I will be able to make an informed decision on how I deal with the matter. I dispute the parking charge for the reasons set out below. Please note that although I dispute the whole basis of the parking charge, my main concern is its disproportionate and punitive level. 1. No contract

There was no contract between the driver and [insert name of parking company]. The driver did not see any contractual information on any signs when entering the car park and therefore at that time had no idea that any contract or restrictions applied. As a consequence the requirements for forming a contract such as a meeting of minds, agreement, and certainty of terms were not satisfied.

2. Trespass

If there was no contract, then at most the driver was guilty of a civil trespass (though this is neither admitted nor denied). If this were the case, the driver may be liable to damages. Given that no ‘damage’ was done to the car park and that the car park was not completely full when the driver parked or when the driver left, there was in fact no loss at all.

 

3. Punitive/unfair/unreasonable charge

Even if there was a contract (which is denied), the following matters are relevant: 3(a). Punitive

The parking charge you are imposing is punitive and therefore void (i.e. unenforceable). The £[insert amount] parking charge is arbitrary and disproportionate to any alleged breach of contract or trespass. This would also apply to any mention of any costs incurred through debt recovery unless it followed a court order.

3(b). Unfair

The £[insert amount] parking charge you are imposing is an unfair term (and therefore not binding) under the Unfair Terms in Consumer Contracts Regulations 1999. In

particular, Schedule 2 of those Regulations which 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) says:

 

‘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’

 

And 5(2), which states:

 

‘A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.’ 3©. Unreasonable

The £[insert amount] parking charge you are imposing is an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says:

 

‘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.’ Further information I require you to provide and take notice of:

Please note specifically that this letter is not an appeal however, it is a challenge to the issue of the Notice to Driver/Keeper (delete as appropriate) as set out in the BPA AOS Code of Practice B.22. I should be grateful for answers to all questions raised. In this respect I remind you of the obligations set out in the current Practice Direction on Pre-Action Conduct. 4(a). Cause of action.

 

Please make this clear. If it is your claim that the driver entered into a contract, please send me a complete version of the terms and conditions of that contract to which you say the driver agreed to.

 

4(b). Further to the above please explain fully on which of the following grounds your claim is based:

 

(i) Damages for trespass

(ii) Damages for breach of contract

(iii) A contractual sum

5. Your loss.

 

If it is your case that that a trespass was committed or that a contract was breached such that your claim is one for damages, please give me a full breakdown of the actual loss you say was suffered by your business or the landowner/landholder.

6. Appeals procedure.

 

I require a copy of any appeal procedure you follow, along with details of what factors you take into account; who is the judge or arbitrator and whether they are independent; whether you require oral or written submissions; whether it is governed by the Arbitration Act 1996 and any other relevant factors. In addition, please give me disclosure of any arguments you would put forward on this matter in any subsequent appeal process so that either the registered keeper or the driver might consider his or her response to any existing or new issues which are raised. 8. Your status.

 

Your Notice to Driver/Keeper (delete as appropriate) simply mentions [insert name of parking company if that is who is named on the NTD/NTK]. Please tell me who is the actual creditor making this £[insert amount] parking charge demand. I need to know exactly who is making the claim and in what capacity.

 

9. Ownership of premises.

 

Please tell me who owns the car park as I wish to send them a copy of this letter.

10. Contract to operate.

 

Please provide me with a copy of the contract between your company and the landowner/landholder.

11. Involvement of landowner/landholder.

 

Please explain any involvement, if at all, of the landowner/landholder with the management of parking at this site and specifically with regard to the issue and enforcement of your Notices to Driver/Keeper. (delete as appropriate)

12(a). Photographs- handling.

 

Your notice refers to ‘photographic evidence’. Please send me a copy of your procedures for handling and processing that evidence and the relevant audit trail. Furthermore, under section 7 of the Data Protection Act 1998 please send me a copy of all such photographs along with a copy of all other data you hold relating to me. As this would be required to be disclosed in any event as part of your evidence bundle in the small claims process, I do not expect to pay for the release of my personal data which you hold.

12(b). Photographs – evidence.

 

The copies of the photographs that you have provided along with the Parking Charge Notice merely show my vehicle entering and leaving the car park but do not show the actual alleged parking contravention on which your Parking Charge Notice has been issued. Please therefore provide me with copies of all photographs that evidence the actual alleged parking contravention itself

 

13. Signage.

 

If it is your case that a contract has been breached or that a contractual sum is now due, please send me photographs of the signs that you display and upon which you seek to

evidence that a lawful and legally enforceable contract was been entered into. Please ensure that the photographs show the terms and conditions in a clear and legible manner. Please provide me with a diagram showing the locations and layout of those signs at the car park. Also provide evidence that the wording is in plain and intelligible language and in sufficiently large print as to be legible to a driver at the car park’s entry point.

14. Legal representation.

Please provide me with the name and address of your solicitors, if any, in order that I may copy them into this correspondence.

15. To avoid doubt, please do not do any of the following:

(i) Send any further correspondence or documents to me or try to communicate with me in any way except to address in writing the specific points I have raised in this letter.

(ii) Send me any document purporting to be from the county court unless it is a valid claim form duly issued.

(iii) Write to me threatening to send bailiffs to my address without first issuing a court claim form and obtaining judgment.

(iv) Send me any standard letters from your company or debt collectors.

16. If you wish to make a claim you may do so online. My address for service is set out at the top of this letter. If you do decide to issue proceedings, please note that:

(i) I reserve the right to add further arguments to the defence

(ii) I or my representative will be happy to attend any court mediation that might be offered.

17. I look forward to receiving your acknowledgement within 14 days and a comprehensive reply within 35 days (in accordance with the BPA AOS Code of Practice B.22.8). I will then be able to make an informed decision as to how I shall respond to your Notice to Driver/Keeper (delete as appropriate).

18. If you reject this challenge or fail to address the issues that have been raised then, in accordance with the BPA AOS Code of Practice 22.12, please ensure that you enclose all the required information (including the necessary ‘POPLA code’) so that I may immediately refer the matter for their decision.

19. If you fail to follow any of the procedures outlined in the BPA AOS Code of Practice or your legal requirements under the Protection of Freedoms Act, or the requirements of the Practice Direction on Pre-Action Conduct then I will make a formal complaint to the DVLA Data Sharing Policy Group, D16.

Please Note: Unless you have specifically requested it and received my express permission, you do not have my authority to disclose or refer this letter or any other communication from me to any other person or organisation.

[i hate bailiffs]

Don't forget to write to Tesco formal complaint they need to treat there customers better