A polite request for help with a parking case brought against me by Highview Parking

[Forestfan]

Hello,

I am hoping that someone may be able to help me. I am being taken to court by Highview Parking and I am hoping that forum members experience and knowledge you may be able to help. If you are I would be grateful.

For clarity below is what happened and my view on the issues around this case -

What happened – On the 2 June 2018 I drove to go and watch a film at the cinema in Crawley, West Sussex. The cinema car park was full and so I drove next door to the B&Q car park which was almost empty as the store had just closed. It was twilight and I did not register any signs around parking restrictions. I watched the film, returned to my car two hours and 45 minutes later and drove away again without registering any parking restriction signs.

I received a notice twelve days later on 14 June asking for a payment of £85 reduced to £51 if I paid in 14 days as in their view I had agreed to the terms and conditions. I considered this unreasonable and so I appealed to POPLA. Unsurprisingly this was rejected as I don’t think that POPLA is actually an independent adjudicator. I also went into the B&Q store as I am a regular customer but was told that there was nothing they could do about the ticket.

Since then I have received a number of letters from Highview Parking, Debt Recovery Plus Ltd and Direct Collections Bailiffs Ltd requesting different amounts including £125, £134.99, £149.99 and £169. I can provide these.

Issues around this case -

1. I never agreed to the terms and conditions as £51 for parking in an out-of-town area for under three hours is extortionate.

1. When I entered the car park the light was fading and the signs weren’t aluminated and hence I did not see them.

1. The amount claimed seems to change arbitrarily.

1. On the Direct Collections Bailiffs Ltd letters they proudly include ‘As seen on TV channel 5 Can’t Pay? We’ll take it away! In colour only on page two do they state ‘This case is not subject to High Court or Bailiff action. In my opinion this is intimidation and false representation to a degree.

Based on the above do you think I have much of a case and can you suggest how I should approach submitting my defence?

Thank you for any assistance that you are able to provide.

Best regards

Alex

[R0b]

Hello,
There is a knack to these private parking charges because a lot of the time most of the parking companies don't follow the rules and if you play your cards right, tend to discontinue when they think their case is not as concrete as they like to think. The general rule is to never reveal who was driving unless you want to pass liability to that driver, so you should always refer in communications as the driver of the vehicle did this, did that.

Couple of quick questions if you can answer:
1. Did you ever reveal yourself at any point to Highvew that you were the driver and/or during any POPLA appeal?

2. Do you have a copy of the initial PCN that was issued, are you able to upload and redact any personal info as we would like to see the contents to see if they have complied with the relevant rules.

3. Do you have a copy of the signage/notice about parking? If not, are you able to get one and provide us with a picture?

4. Can you post up a copy of the particulars of claim word for word.

5. If you haven't logged in already, acknowledge the claim and give us the date of the claim form so we can work out how long you have to file a defence.

My initial thoughts are that by parking after hours, you are likely to be liable for trespass rather than a breach of contract. Logically, the car parking is for customers only and if the shop is shut then there is no contract since you could never be a customer. From what I see, most parking companies rely on a breach of contract rather than trespass in these instances. Even if there was a trespass, damages are usually awarded for actual loss and since it was after hours, there was no loss.

[Forestfan]

Hello,
There is a knack to these private parking charges because a lot of the time most of the parking companies don't follow the rules and if you play your cards right, tend to discontinue when they think their case is not as concrete as they like to think. The general rule is to never reveal who was driving unless you want to pass liability to that driver, so you should always refer in communications as the driver of the vehicle did this, did that.

Couple of quick questions if you can answer:
1. Did you ever reveal yourself at any point to Highvew that you were the driver and/or during any POPLA appeal?

2. Do you have a copy of the initial PCN that was issued, are you able to upload and redact any personal info as we would like to see the contents to see if they have complied with the relevant rules.

3. Do you have a copy of the signage/notice about parking? If not, are you able to get one and provide us with a picture?

4. Can you post up a copy of the particulars of claim word for word.

5. If you haven't logged in already, acknowledge the claim and give us the date of the claim form so we can work out how long you have to file a defence.

My initial thoughts are that by parking after hours, you are likely to be liable for trespass rather than a breach of contract. Logically, the car parking is for customers only and if the shop is shut then there is no contract since you could never be a customer. From what I see, most parking companies rely on a breach of contract rather than trespass in these instances. Even if there was a trespass, damages are usually awarded for actual loss and since it was after hours, there was no loss.

Hi Rob,

Thank you very much for your response.

In terms of never revealing who was driving I am afraid I have already done that when I appealed to POPLA as I really didn’t think I did anything wrong. Apologies about that.

Below are answers to your questions

1. Did you ever reveal yourself at any point to Highvew that you were the driver and/or during any POPLA appeal?

I am afraid I belive I have. See my initial appeal attached

2. Do you have a copy of the initial PCN that was issued, are you able to upload and redact any personal info as we would like to see the contents to see if they have complied with the relevant rules.

Yes, I have attached.

3. Do you have a copy of the signage/notice about parking? If not, are you able to get one and provide us with a picture?

The photos they submitted, and a site plan are attached. If I had seen them, I wouldn’t have parked there.

4. Can you post up a copy of the particulars of claim word for word.

If you mean the court document, I have attached that

5. If you haven't logged in already, acknowledge the claim and give us the date of the claim form so we can work out how long you have to file a defence.

I have attached the claim. It is dated 9 August, I believe they then add another 5 days and because I have gone in and acknowledged I believe that gives another 28 days meaning that I have until 11 September to respond. Please let me know if you think any of my maths is off.

In terms of trespass versus breach of contract that is close to what I argued in my initial appeal which was rejected out of hand. Unfortunately, in my view, it is all a gotcha money-making enterprise which is why I am trying to fight it.

Thanks so much again for your help.

Best regards

Alex

[R0b]

Thanks, I will have a trawl through in the next day or two and let you know my thoughts. As far as your submission date for a defence, 11th September seems right to me however the rules are that when a deadline falls on a weekend, it carries over to the next business day i.e. Monday to Friday so technicall you have until 4pm on Monday 12th.

Also, I suggest you remove the claim form immediately and re-upload a redacted version. You have shown all your personal details on the form including your name and address as well as the claim number. This is a public forum and anyone can use that information in a malicious way such as filing a defence and once submitted there's nothing you would be able to do other than to pay additional fees to amend your defence. We only need to see the section where it says particulars of claim.

[Forestfan]

Thanks, I will have a trawl through in the next day or two and let you know my thoughts. As far as your submission date for a defence, 11th September seems right to me however the rules are that when a deadline falls on a weekend, it carries over to the next business day i.e. Monday to Friday so technicall you have until 4pm on Monday 12th.

Also, I suggest you remove the claim form immediately and re-upload a redacted version. You have shown all your personal details on the form including your name and address as well as the claim number. This is a public forum and anyone can use that information in a malicious way such as filing a defence and once submitted there's nothing you would be able to do other than to pay additional fees to amend your defence. We only need to see the section where it says particulars of claim.

Hi Rob,

Thanks very much for having a look when you can and also for the good news on the submission date.

Attached are redacted versions of the documents. I can't though work out how to remove the original versions from the earlier post. Sorry about that error.

Thanks again.

Alex

[R0b]

There should be an edit button next to that post, if you click on that button then you should be able to edit the post and next to the uploaded documents, you should see a "remove" option for each of the uploaded documents. Remove the appropriate documents and then save your post.

[R0b]

So, I've had a look at the documents and I think the first thing to note is that the claim form alleges that you were either the driver or the registered keeper of the vehicle. Even though the driver has already been identified you will still need to file a response to the allegations as the registered keeper in your defence otherwise if you don't deny the allegations you will be deemed to have accepted what they allege in the claim form and they could request judgment against you as the registered keeper.

In terms of your defence, you may want to cover the following points:

1. As regards the allegations for liability as the registered keeper:

(a) The parking co. has failed to comply with Schedule 4 of the Protection of Freedoms Act 2012, particularly condition 9(1)(f).

(b) POFA imposes a requirement under condition 5(1) that the parking co. can only hold the registered keeper liable for the PCN if (i) it has the right to enforce the PCN against the driver and (ii) it does not know the details of the driver at the time before proceedings are issued.

(c) for the reasons mentioned above, they can only hold the driver liable for the PCN.

2. Your primary argument which you would repeat as a defence point as the driver and the registered keeper is to say that there was never a contract entered into at all for the following reasons:

(a) The parking sign unequivocally states that it is a private car park which is free parking for customers onlyand that the period of free parking is 2 hours maximum.

(b) The B&Q shop is open from XX.XXam to XX.XXpm on the day of the alleged parking incident.

(c) The driver (i) had no intention of parking in the B&Q car park as a customer but instead parked at B&Q because the car park for Cineworld adjacent to B&Q was full and on that basis you were not in fact a contracting customer but instead a trespasser. The alternative argument is that (ii) since the car park was intended for customers only and because B&Q shut at XX.XXpm it was impossible for you to be a customer of B&Q when the shop is closed, therefore any contract as alleged by the parking co. was impossible.

3. I have also noticed that the PCN says the vehicle was recorded at "London Road Retail Park, Crawley" but when I did a Google search, there doesn't seem to be a retail park under this name. There seems to be a County Oak Retail Park on London Road but I can't see any other retail park. Another potential anomaly is that they have not listed the full address of where you actually parked. B&Q's address on their website is listed as London Road, not London Road Retail Park.

It would be helpful to confirm that because that could be a golden ticket since you can simply deny parking at that address. It is irrelevant if they made a mistake, they have to get it right and since the address given (presumably) doesn't exist or at best is ambiguous and vague their claim ought to be thrown out on that alone. So if I am right, you should definitely look to include this in your defence.

If you want to familiarise yourself with the conditions to hold the registered keeper liable then here's the link for to Schedule 4 of POFA. I am also uploading an example defence which I have been working on for myself in relation to a PCN dispute I have. It is unfinished but it does cover some of the points I've raised and there's other points that probably don't apply to you so you should delete what you think doesn't apply.

If you want any feedback on your draft then feel free to upload it but remember not to include any personal information details and we can take a look and polish it up in advance of the deadline. Just make sure not to leave it last minute or you may cause yourself problems.

[Forestfan]

Hi Rob,

As always thanks very much for your response and help. I have tried to combine your advice and the template that you kindly provided. I have crossed out what I don't think is relevant and included additions in red for ease of review. I also haven't included any sensitive details. If you are able to review and let me know what you think I would again be very grateful.

Thanks again for your help.

Best regards

Alex

[R0b]

Thanks, I'll have a look in the next day or so once I have a chance to sit down and read and let you know if there's anything else to add.

[R0b]

Hi,

I've added some comments to the defence. It looks like all you have done is a copy/paste job in one section what I described above and makes no sense. Suggest you go back and rethink and put the arguments in the right sections of the defence.

[Forestfan]

Hi Rob,

Thanks for your feedback. I am afraid I am unclear as to what should go where are you saying that instead, I should put those points in the Liability as the driver of the vehicle section as opposed to the relevant facts section? Apologies my total lack of legal knowledge is on full display. I have made the other two advised updates.

Thanks for your continuing help. I believe I have to submit on Monday at the latest.

Best regards

Alex

[R0b]

I've uploaded an example defence of what I might want to say based on your last version. Obviously I don't know what I've put is accurate and factually correct so you will need to read through it in full and amend as you feel necessary. There's also some sections where I have put XX in square brackets, which you will need to complete and remove those brackets.

It's a quick and dirty job as I haven't had time this weekend to really think of anything else that you might want include but this should hopefully be sufficient to be successful - your main arguments being that this is a case of trespass and not breach of contract. As the claim is based solely on breach of contract the claim has to be dismissed - that's your argument in a nutshell.

If you want a final review upload the version tomorrow morning at the latest and I should have time to check you're not missing anything before submitting.

[Forestfan]

Hi Rob,

Thanks very much for your help and appreciate you giving up your time. I have reviewed the updated and attached a revised version. I get that trespass is the main argument I am just checking that we want to totally drop the secondary argument about the PCN referencing parking at London Road Retail Park which doesn't appear on any signs or google maps (which I double-checked). I refer to your far greater knowledge but just thought I would check before finalising.

Thank you again for your kind help.

Best regards

Alex

[R0b]

Well, if the address listed on PCN is not the correct address, then that should be the golden bullet and take priority over the trespass argument. I didn't see it in your defence so I assumed that the address was indeed correct. If you are saying it is not, then that should be included in both the defence as the driver and registered keeper.

In paragraph 14, add a new sub-paragraph 14.1 with something like:

The Parking Charge letter states that the parking contravention took place at [insert address on PCN] however, the actual address of the B&Q store where the driver parked is [insert full address and postcode]. It is denied that the driver ever parked at the address as alleged by the Claimant and as such, the Defendant will say that the claim is bound to fail and should be dismissed for this reason alone.

Also in paragraph 19, you will need to change the reference to the paragraphs - they say you are repeating the defence at paragraphs 5 to 9 but those have been amended, so I think ti should refer to paragraphs 14 to 16 (inclusive).

Need to make sure all cross-reference are accurately referred to so double check and ensure they make sense - these small things are important and could have an impact on your defence as a whole.

Another point is that the some of the sub-paragraphs in 14 have capitalised letters and they should be lower case.

Finally, in the conclusion paragraph, I suggest you amend it to say something like:

For the reasons set out in this Defence, the Defendant is not liable as the driver or registered keeper of the vehicle and therefore the Claimant is not entitled to the sums alleged or at all.

[Forestfan]

Thanks Rob,

Attached is an updated version where I have added in details, checked all cross-references and updated the conclusion.

I resisted the temptation to put in the below and kept it all very to the point.

The PCN states ‘The vehicle was recorded on our client’s property at London Road Retail Park, Crawley, but when you search Google Maps, there doesn't seem to be a retail park under this name in Crawley, there is one in Maidstone. There is a County Oak Retail Park on London Road in Crawley.

8. The PCN does not actually list the full address of where the parking offence is claimed to have taken place. B&Q's address on their website lists the Crawley’s store address as London Road, Crawley, West Sussex. It does not mention London Road Retail Park.

Please let me know if any final comments.

Thanks again and best regards

Alex