Wright Hassall : Formal Letter of Claim

[mo781]

[MENTION=5354]mystery1[/MENTION] Hi

Just received an evidence pack from Highview Parking quoting the recent Beavis and PE situation.

Would you be able to help me with a rebuttal following this please?

[mystery1]

Re: POPLA Rebuttal following Beavis vs PE

Of course.

Need the appeal and evidence pack though.

I start work again Wednesday for 3 days too so will have limited time from then.

M1

[mo781]

Re: POPLA Rebuttal following Beavis vs PE

[MENTION=5354]mystery1[/MENTION]

Thanks for your reply, can I email it all to you directly?

[mystery1]

Re: POPLA Rebuttal following Beavis vs PE

It's against site rules.

I'll see if there are any site guys around who can take an email and post it up.

M1

[mystery1]

Re: POPLA Rebuttal following Beavis vs PE

Try [MENTION=7]Tools[/MENTION] julian.siddle@legalbeagles.info
[MENTION=6]Amethyst[/MENTION] admin@legalbeagles.info
[MENTION=49370]Kati[/MENTION] kati@legalbeagles.info

Hopefully one of them can put them on the thread for you.

M1

[Kati]

Re: POPLA Rebuttal following Beavis vs PE

If you email it to me I'll post it up first thing in the morning (I'm trying to get my girly to sleep )

kati@legalbeagles.info

[mo781]

Re: POPLA Rebuttal following Beavis vs PE

[MENTION=5354]mystery1[/MENTION]

Have sent it to Kati, had to send it in two compressed files as its quite a large file in total

Many Thanks

[mystery1]

Re: POPLA Rebuttal following Beavis vs PE

You could've left out the case law hopefully [MENTION=49370]Kati[/MENTION] remembers i don't need that.

M1

[Kati]

Re: POPLA Rebuttal following Beavis vs PE

this:

[Kati]

Re: POPLA Rebuttal following Beavis vs PE

and:

[mystery1]

Re: POPLA Rebuttal following Beavis vs PE

Have they included a copy of the PCN in the evidence pack ?

M1

[Kati]

Re: POPLA Rebuttal following Beavis vs PE

sorry M1, I thought I'd attached that too

[mo781]

Re: POPLA Rebuttal following Beavis vs PE

@mystery1

Yes they have, I've also pasted the case summary below

We received correspondence from Mr ********** who appealed his PCN on the basis that he believes that the Charge is not a genuine pre-estimate of loss, that the signage is insufficient and that we do not have theauthority to act on behalf of the landownerTesco Leicester Narborough is a retail site with a maximum permitted allowance of 2 hours.

Mr Esmail allowed his vehicle to remain on site for 4 hours 27 minutes and therefore overstayed by 2 hours 27 minutes.
In Parking Eye Ltd v Beavis [2015] EWCA Civ 402, it was found, both at County Court and Court of Appeal level,
that appealing a Parking Charge Notice on the basis that the amount is not a genuine pre-estimate of loss is not
a successful defence in law.

In the Court of Appeal judgment, Sir Timothy Lloyd held that “for the law to prohibit a provision such as the
overstaying charge, on the basis that it bears no relationship to the loss suffered…would fail to take account of
the nature of the contract, with its gratuitous but valuable benefit of two hours’ free parking, and of the entirely
legitimate reason for limiting that facility to a two hour period.”

The Judges considered whether a PCN could be invalidated on the grounds that the overstay was a genuine
mistake, that the PCN is a penalty, that the Operator has no commercial interest or should charge a more
modest amount and that the charge was a deterrent to the motorist. In the Court of Appeal judgment, these legal
arguments were analysed and it was unanimously agreed that not one of them presented a legally valid basis for
invalidating the charge.

Instead, it was found that the provision of a free parking facility on a retail park is a useful service for motorists
and shopkeepers alike. In the Judges’ estimation, a driver who overstays the allowed time period
inconveniences the former group and causes a material loss to the latter.
It was found that, in order to facilitate a turnover of visitors, the Terms and Conditions of a car park should
provide a “disincentive to drivers.” The imposition of such charges was deemed to be “not extravagant or
unconscionable and the contract was therefore enforceable at common law.”

The Court of Appeal also explained that municipal parking charges are identical in nature and that only this
method of enforcement, rather than a graduated system of charges where motorists pay a fee proportionate to
the length of the time they have overstayed, can deter widespread abuse of car parks.

We note that the appellant in this case has been granted leave to appeal to the Supreme Court. However, the
judgments passed down thus far by the County Court and the Court of Appeal have provided a clear
endorsement of Operators’ rights to issue a PCN and established a legal precedent rebutting drivers who appeal
a PCN on grounds that the charge does not reflect a genuine pre-estimate of loss.

We therefore seek to rely on the authority of the higher Courts and would submit that the appellant in this case
should not be afforded a defence in law that has been rejected by the judiciary.

Notwithstanding the above case, we have provided a table in Section G which outlines and details the costs that
we estimated, at the time of issuing the PCN, would be incurred in this case. As you can see this clearly
demonstrates the Charge is a genuine pre-estimate of loss.

We can confirm that the signage is displayed in compliance with all relevant laws and regulations and have
provided photos and images in Section F which supports this.

We can also confirm that we have the authority to act on behalf of the landowner as outlined in the signed
witness statement in Section G.

We highlight that Mr ********** is not denying liability for this Notice, nor does he deny that his vehicle was on site
for the stated amount of time. We also highlight that Mr ************** was sent a Warning Notice on the 4/12/14
informing him that he had overstayed previously, which was overlooked, and had overstayed again so had been
sent a Warning Notice. This also informed him that if he continued to overstay then he may be issued with a
PCN. We therefore contend that Mr *********** is fully aware of the restrictions at this site and it continuously and
excessively breaching them.

We maintain that we have received no genuine mitigating circumstances or evidence for which we should cancel
the PCN and our position remains that Mr *********** entered into a valid contract and should pay the valid charges
as per the signage on the site.

[mystery1]

Re: POPLA Rebuttal following Beavis vs PE

I'd be making more of keeper liability but i haven't seen the PCN to point out more.

It needs to have

http://www.legislation.gov.uk/ukpga/...dule/4/enacted

9(1)A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met.


(2)The notice must—


(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;


(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;


(c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;


(d)specify the total amount of those parking charges that are unpaid, as at a time which is—


(i)specified in the notice; and


(ii)no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4));


(e)state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—


(i)to pay the unpaid parking charges; or


(ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;


(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;
(g)inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;


(h)identify the creditor and specify how and to whom payment or notification to the creditor may be made;


(i)specify the date on which the notice is sent (where it is sent by post) or given (in any other case).


(3)The notice must relate only to a single period of parking specified under sub-paragraph (2)(a) (but this does not prevent the giving of separate notices which each specify different parts of a single period of parking).


(4)The notice must be given by—


(a)handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or


(b)sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.


(5)The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.


(6)A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.


(7)When the notice is given it must be accompanied by any evidence prescribed under paragraph 10.


(8)In sub-paragraph (2)(g) the reference to arrangements for the resolution of disputes or complaints includes—


(a)any procedures offered by the creditor for dealing informally with representations by the keeper about the notice or any matter contained in it; and


(b)any arrangements under which disputes or complaints (however described) may be referred by the keeper to independent adjudication or arbitration.



I'd guess that the 4 hour 27 minutes isn't just parking as the ANPR will be located at the entry/exit and at that point you are not parked. Thus, in my opinion, the period of parking won't be specified as required.

A lot of times the keeper isn't invited to pay.

Etc.

M1

[mo781]

Re: POPLA Rebuttal following Beavis vs PE

[MENTION=5354]mystery1[/MENTION]

Ive popped the PCN on for you