Advice on Defence against Highview Parking

[Jinxy2301]

Hi, I would appreciate some guidance on filing a Defence against Highview Parking.

I understand from previous threads the main points to raise in the Defence, however, I have admitted I was the driver of the vehicle when I initially appealed the PCN. However, they have now decided to take court action. Does this mean I am unable to use any arguments in relation to POFA in the Defence?

Thank you in advance for any assistance.

[R0b]

Unlikely, because Highview will simply say you admitted you were the driver so any POFA arguments/defence are not really relevant. You may have other defences if they are claiming breach of contract but the issue is actually a case of trespass.

If you can supply some further details about the situation we can see if there are alternative defences available.

[Jinxy2301]

Hi Rob,

Thank you for coming back on this so quickly. I have set out a summary below: -

1. A PCN was issued on 03 May 2017. The Date of Notice on a letter received by Highview Parking was 18 May 2017. Pictures included vehicle entering and exiting a shopping park.

2. Appealed the ticket initially on the basis the land was not owned by Highview and instead by the Council and I crossed a shared access road. Stupidly, I admitted I was the driver. Appeal was rejected and POPLA reference number provided but did not appeal to POPLA.

3. Letters were received threatening further action etc. which I ignored. Now I have received a Claim Form dated 4 May 2023. I intend to argue breach of limitation period and put them to proof they issued in time. The Particulars of Claim state:

"1. The Defendant(D) is indebted to the Claimant (C) for a Parking Charge(s) issued to vehicle X at Westway Cross Shopping Park

2. The PC details are 03/05/2017

3.The PCN(s) was issued on private land owned or managed by C. The vehicle was parked in breach of the Terms on Cs signs (the Contract), thus incurring the PCN(s).

4. D is liable as the driver of the vehicle and agreed to pay within 28 days but did not. Despite requests, the PCN(s) is outstanding. The Contract entitles C to damages.

AND THE CLAIMANT CLAIMS

1. £170 being the total of the PC(s) and damages. 2. Interest at a rate of 8% per annum pursuant to s.69 of the County Courts Act 1984 from the date hereof at a daily rate of £0.02 until judgment or sooner payment. 3. Costs and court fees"


4. I intend to file an AOS tomorrow within the 14 day time frame and prepare a defence.

However, please note some key points below:-

- I received a further PCN ticket from Highview 6/7 months after the PCN above for the same reasons. This time I appealed on the basis the Council were the owners of the land. I also did not name the driver as I had learned from the first ticket above! This ticket was successfully appealed. I am therefore unclear as to how they can cancel the second ticket but not the above ticket?

- They refer to a Contract in their Particulars of Claim. I have been down to the Shopping Park recently and I cannot see any signs which would inform me of a Contract being made for that area of the car park. It is difficult to explain but when you enter the roundabout to enter into the shopping centre you can go left which is for customers visiting the shops or turn right into another area of the car park (which is where I parked). The entry into the shopping centre has ANPR cameras but I cannot see any signs at that point nor in the right hand side of the car park (which I believe is Council owned) which would inform me of a contract. I suspect this is a strong argument in my defence.

- I entered the car park at 01:56 which is when shops would not be open. I have looked on google street view at the signs in the car park recently (although not in the area I was parked) and it states "customer only car park....". But I was not a customer at that time?

- The Particulars of Claim state the amount claimed to be £256.28 plus a court fee of £35 plus legal representatives cost of £50 although the initial Date of Notice states the amount to be £100 which can be reduced to £60 if paid in 14 days. It also stated if payment was not received in 28 days a debt recovery charge of £40 would be incurred.

I hope that is enough information but please let me know if not.

Again, I appreciate any guidance you can offer.

[R0b]

If the claim form is dated 4 May and assuming the claim was issued via the Money Claims Online service, the rules state that the claim form is deemed to have been served 5 days from the date of the claim form. The deemed service date is therefore 9 May and you have 14 days from that date to acknowledge the claim form. Acknowledging will of course grant you a further 14 days to file a defence so in total you would have 33 days from the date of the claim form to file something.

Do make sure you acknowledge and not leave it to the last second, it only takes a few minutes to complete, just make sure you do not put something in the defence box and only acknowledge the claim.

In terms of your defence:

1. The limitation defence seems to be your strongest argument

2. followed by the fact there is no contract if the land you parked on meant they had no authority to manage or even issue the PCN in the first place. It may be sensible for you to film a drive by of the route you had taken that shows there was no signage that shows you are entering into a car park as further evidence and as silly as it sounds, draw a map of showing the difference where the ANPR may have picked up your car passing by.

3. Inclined to agree with you on the non-customer point. If the signage says customers only then anyone who is not a customer would be deemed a trespasser for that purpose. Based on the particulars you simply argue that the signage states the car park for customers only and, given that you parked early hours of the morning when the shops were closed, you were not a customer and therefore impossible for you to have entered into a contract. Any claim would have to be a claim for trespass but Highview are not claiming trespass but rather a breach of contract (silly Highview).

Just as an FYI point, even if they did claim trespass, they would have to prove their losses or their claim would fail or would be usually awarded a token £1 damages amount where the court acknowledges the trespass but the loss cannot be proven. Would find it difficult for Highview to argue loss when the shops are closed and the car park is virtually empty.

[Jinxy2301]

Hi Rob,

Thank you for your assistance with this - that is all very helpful.

In terms of there being no signage in that section of land, is there any statutory guidance, instruments or authority I should be referring to within my defence, to enhance my position?

I had also read somewhere on this forum something along the lines of PCNs should be given within 14 days. As the alleged event took place on 3 May 2017 but the date of notice on the letter I originally received was 18 May 2017, I am not sure if that is relevant here?

Lastly, in relation to the additional charges, would you advise mentioning that these are excessive in nature? I can assume from research on this extremely helpful forum, Highview will mention the Bevis case in their witness statement so I would like to try and pre-empt that and, any other points you think they may throw up, in my defence.

Thank you again.

[charitynjw]

For information, there appears to be a parking area (or was, at the time of contravention) known as Paradise Fields which is at the rear of McD's. It is not an area which Highview cover, but the access to it (&, I believe, the ANPR cameras at the time) is common to both the Highview controlled area and Paradise Fields.

Imho, if the Highview postal Notice date was 18th May 2017, the recent court claim will not be statute barred.

Is this being dealt with on behalf of Highview by DCB Legal?

[R0b]

For information, there appears to be a parking area (or was, at the time of contravention) known as Paradise Fields which is at the rear of McD's. It is not an area which Highview cover, but the access to it (&, I believe, the ANPR cameras at the time) is common to both the Highview controlled area and Paradise Fields.

Imho, if the Highview postal Notice date was 18th May 2017, the recent court claim will not be statute barred.

Is this being dealt with on behalf of Highview by DCB Legal?

Have to disagree with you on that one Charity.

The limitation period starts from the date that the cause of action accrues i.e. the date of the breach and it is calculated 6 years from that date. By their own admission in their particulars, Highview has stated as a matter of fact, that the PCN was issued on 03/05/2017 and I'm sure if we reviewed the letter that was sent to the OP the 'breach date' will be 03/05/2017 or earlier. So the last date for filing a claim would have been 4pm on 03/05/2023.

It appears I have jumped the gun on the time-barred point anyway because if the claim was submitted before 4pm on 03/05/2023 then the claim would in fact have been brought in time and the limitation defence would not be valid. The limitation period is calculated up to the point where the court receives the claim rather than when it was issued.

Jinxy2301 You should be able to log in to MCOL and see the exact date and time when the claim was submitted but if you can't, you should contact the MCOL service team to verify the exact time it was submitted, even by the second. Then we can etermine if the claim is time-barred.

[atticus]

4. D is liable as the driver of the vehicle and agreed to pay within 28 days but did not. Despite requests, the PCN(s) is outstanding. The Contract entitles C to damages.

Surely on the Claimant's pleaded case the cause of action arose on non payment within 28 days, i.e. on 31 May 2017.

That will not preclude the OP from running all other available Defences.

[R0b]

As I understand it, parking companies rely on the signage that is simply states a limited number of terms or you will be in breach and liable to pay the relevant charge, akin to strict and immediate liability upon the breach occurring. There is generally no terms that suggest payment is due on demand or anything like that.

When you look at the authorities on this point, I am of the view that the cause of action accrues immediately upon non-compliance of the parking terms but in any event, as we know, once the limitation defence has been raised, the burden then shifts to the claimant to prove it is not time-barred.

[atticus]

... I am of the view that the cause of action accrues immediately upon non-compliance of the parking terms ...

As indicated above, I agree. The question arises what were those terms? Were they as pleaded, i.e. payment within 28 days?

Of course this will all be rendered academic if the Claim Form was received by the court office for issue on or before 3 May.

[Jinxy2301]

Hi All,

Thank you all for your input.

This is being dealt with by DCB Legal.

I have logged into the MCOL and it only says in the history that a claim was issued on 4 May 2023. It does not state when it was lodged sadly. When we called previously, the assistants at the court were unable to help us on this point. Therefore, to be safe, I believe the best course of action specifically on this point is to raise it in the defence and allow them to prove they served in time.

The second main point is regarding the area Paradise Fields area. As Charity has pointed out correctly above, this area is not managed by Highview and there are no signs in that area. I am therefore wondering what legal points I can raise in my defence in regards to this or whether any previous members have had this scenario? Is there any specific case law I should raise about lack of signage and also, about the extra fees they seem to have added on to the original penalty?

I really want my defence to come across as strong as possible.

Thank you all again.

[charitynjw]

Have to disagree with you on that one Charity.

The limitation period starts from the date that the cause of action accrues i.e. the date of the breach and it is calculated 6 years from that date. By their own admission in their particulars, Highview has stated as a matter of fact, that the PCN was issued on 03/05/2017 and I'm sure if we reviewed the letter that was sent to the OP the 'breach date' will be 03/05/2017 or earlier. So the last date for filing a claim would have been 4pm on 03/05/2023.

It appears I have jumped the gun on the time-barred point anyway because if the claim was submitted before 4pm on 03/05/2023 then the claim would in fact have been brought in time and the limitation defence would not be valid. The limitation period is calculated up to the point where the court receives the claim rather than when it was issued.

Jinxy2301 You should be able to log in to MCOL and see the exact date and time when the claim was submitted but if you can't, you should contact the MCOL service team to verify the exact time it was submitted, even by the second. Then we can etermine if the claim is time-barred.

Hi R0b.

The accrual date, as is often the case, is a slippery beast to try & pin down.
There are many factors to consider (eg is the driver being pursued, or the keeper? Has the pcn been appealed? Has the keeper been served a Notice, & the driver been subsequently ID'd?, etc).

Using a BPA member parking company pursuing a keeper, & with reference to the BPA Code of Practice*....

"BRITISH PARKING ASSOCIATION CODE OF PRACTICE

24.3Under POFA 2012, you can gain the right to recover
unpaid charges from keepers only if particular conditions
have been met. Once the conditions are met you may
use your right to recover, after the end of the period
of 28 days beginning with the day on which the Notice
to Keeper was given. You should read paragraph 4 of
Schedule 4 of POFA 2012 to understand what these
conditions are. Note in particular that if:
•the vehicle was stolen at the time of the parking event, or
•the vehicle keeper has sold on the vehicle to another
registered keeper
you will not be able to pursue the vehicle keeper under
the POFA 2012 provisions. However, if the keeper did
not give you details about the driver or hirer, or if the
driver or hirer refuses to acknowledge their liability, you
would be able to pursue the registered keeper.
24.4Once you have become able to use your rights to recover
from the keeper under POFA 2012 you must do so in line
with the following steps in the Code. These steps are based
on industry good practice, not on the law.

aNotification letter
•You should send a notification letter to the keeper.
This letter should say that the keeper is now liable to
pay the charge, and that the keeper should pay the
amount due within a set time.
•You must wait until at least 28 days after you sent the
Notice to Keeper before sending the notification letter.
•The notification letter does not have to follow a
specific format but should confirm that the amount is
due and how it should be paid.

bFinal reminder
•If you do not receive a challenge or appeal, and the
parking charge is unpaid, you may send a final reminder.
•You must wait until at least 14 days after you sent the
notification letter before sending a final reminder.
•You should make it clear in the final reminder how to
make the payment and what you will do next if you
do not receive payment.

cCourt action or charge recovery
•When you have sent the final reminder, you must wait at
least 14 days before taking further action, such as starting
court action or debt recovery against the keeper."

Note that a challenge/appeal alters the accrual date.
My math is not the best, but I reckon that amounts to 28 days + 2 working days for service of the Notice to Keeper, plus 14 days plus 2 working days for service of the reminder, plus a further 14 days wait minimum before issuing a court claim.
This doesn't take the letter before claim/PAP into consideration, a step not applicable in the instant case and I believe can be disregarded anyway if the limitation period is imminent.

*"And, while the Code of Practice is not a
contractual document, it is in practice binding on the operator since its existence and
observance is a condition of his ability to obtain details of the registered keeper from
the DVLA."
Lord Neuberger & Lord Sumption
ParkingEye v Beavis [2015] UKSC 67
At 111

And this is just one scenario via one Trade Association.

[R0b]

I agree with you charity that limitation arguments are difficult to grasp but as I see it, this situation is pretty straight forward. Without getting too technical, the clock will start when the cause of action accrues which is understood to mean that all of the elements are met for the claimant to be able bring a claim. The accrual date will generally be the date of the breach irrespective of whether any damage or loss is suffered at the point of breach.

I do not believe that an appeal, an allowance for a payment period in relation to the breach or notices to the driver/keeper would prevent the cause of action from starting on the date that the OP breached the contract unless there was something in the terms that made it clear to displace the general rule (for example a contract for work to be performed will accrue when the work is completed not when payment is due uless otherwise agreed). Indeed from memory, there are cases that confirm the limitation clock can start to run even if the innocent party was unaware a breach had actually occurred.

Arguably, Highview would have to somehow explain why the clock didn't start on 03/05 which, when you think about it logically, their PCN letters would have explained that the driver failed to pay and there was therefore a breach of contract as a result. Sounds to me Highview have all the elements for a cause of action there.

Anyway, I digress. The main point is that the OP raises the limitation defence and put the ball in Highview's court to show otherwise.

[charitynjw]

R0b

Lol.....if it wasn't for differing opinions, there wouldn't be much need for litigation.

But I do agree to your point about raising the limitation argument as part of the defence.
Let the Claimant have the job of proving otherwise.