Horizon Parking - appeal rejected

Amberpunter

Would appreciate some advice. A friend of mine overstayed at a Sainsburys car park operated by Horizon - the overstay was an hour and a half over the initial paid for 2 hours, so quite significant.

I put in the standard appeal for her, based on one that has worked for me on 3 occasions with other companies, but this time it was rejected and a POPLA code provided. The driver of the vehicle has not been identified.

The charge they are levying is £60, reduced to £30 if paid next week (although this was not offered on the Ntk) and by purchasing a ticket I am concerned that this could indicate that she accepted the conditions, at least more so than parking in a free car park and relying on seeing the small writing on signs.

With a cost of £30 I am assuming that the GEOL argument will also be harder to win as that is closer to their losses of zero than something like £100 would be. But still greater of course, although PE v Beavis may have an influence.

So, any guidance on the best argument to put to POPLA in these circumstances would be most appreciated - which I think could possibly be the "Reminder" (or Ntk) not being fully POFLA compliant but not totally sure, or whether it is likely to be successful.

Thanks in advance.

bod1467

But what was the hourly rate? If it was £1 per hour then the most owed is £1.50 to £2.00 plus their (minimal) costs in pursuing the debt ... not £30+

So the usual POPLA appeal wording is still valid.

Plus, if she was shopping at Sainsburys .... complain to them too to get it cancelled.

Redx

get inspiration from here

http://forums.moneysavingexpert.com/showpost.php?p=62180281&postcount=15

using the usual legal arguments

Amberpunter

Would appreciate if someone could give this the once over before I send this off to POPLA. Many thanks

Dear POLPA etc

I am the registered keeper (the Keeper) of the above vehicle with registration number xxxxxx (the Vehicle), and I wish to appeal the above PCN from Horizon Parking (the Operator). I contend that I am not liable for the parking charge on the following grounds and would ask that they are all considered.

1. The amount demanded is not a genuine pre-estimate of loss.
2. No standing or authority to pursue charges or form contracts with drivers.
3. The Operator’s Notice to Keeper has not complied with the requirements of the Protection of Freedoms Act (POFA) 2012 to establish the Keeper Liability.
4. The signage was not compliant with the British Parking Association (BPA) Code of Practice so there was no valid contract formed between the Operator and the driver.

The detailed appeal points are described below:

1. The amount demanded is not a genuine pre-estimate of loss:

The Operator’s signs and written correspondence (Reminder Notice) states the charge is for 'a breach of the terms' so this Operator must prove the charge to be a genuine pre-estimate of loss.
The car park is provided “free” to all genuine customers of xxxxxx, xxxxxx and as the car was parked during an off-peak period there would have been many vacant spaces, so no denial of revenue can be claimed.
This Operator 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. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. 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.
The Operator’s charges are outrageously disproportionate, indeed punitive in nature and intent. Moreover the charges are entirely unjustifiable from a commercial perspective, other than merely to charge as much money as they think they can get away with.

2. No standing or authority to pursue charges or form contracts with drivers:

The Operator does not own the land mentioned in their Reminder Notice and have not provided any evidence that they are lawfully entitled to demand money from a driver or Keeper. Under the BPA CoP Section 7, a landowner contract must specifically allow the Operator to pursue charges in their own name in the courts and grant them the right to form contracts with drivers in their own right. I assert that there is no contract with the landowner that assigns such rights specifically to this Operator. This being the case, the burden of proof shifts to the Operator. A witness statement will not suffice as strict proof of this, nor will a site agreement with another non-landowning agent (such as a managing agent) since this shows no evidence of landowner authority nor any evidence of allegedly authorised 'charges', restrictions, revenue sharing, payments made/received between the parties or other terms

3. The Operator’s Notice to Keeper has not complied with the requirements of the Protection of Freedoms Act (POFA) 2012 to establish the Keeper Liability:

As the Keeper, I have not named the driver of the vehicle or provided a serviceable address for the driver of the vehicle. As the Keeper of the vehicle, I can only be held liable for the parking charge if the relevant provisions of Schedule 4 of the Protection of Freedoms Act 2012 have been satisfied. The Notice to Keeper, merely titled “Reminder Notice”, dated 31 March 2015 fails to comply with POFA2012 Schedule 4 on at least 5 specifics. It should be noted that this is the first communication that the Keeper has received from the Operator so it is therefore flawed that it is stated to be a reminder.

a) It fails to comply with Para 8(2)(a) of the Act.
Para 8(2)(a) states that a notice must:“…specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates”.

The Notice does not specify the vehicle, only the vehicle registration number. The Notice does not state the period of parking, merely the time of the alleged contravention and the wording of “Ticket Expired”.

b) It fails to comply with Para 8(2)(b) of the Act.
Para 8(2)(b) of the Act states that a notice must: “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; ”

The Notice merely states that a Parking Charge Notice was issued but does not state how this was served. The Operator does not fulfil the requirement to inform the keeper that the driver is required to pay the charge, nor that the charge has not been paid in full.
I can only infer from the limited information before me on the Reminder Notice that the driver had purchased a ticket and that it had expired. This does not create any certainty of terms, it leaves the Keeper to wonder what the hourly rate tariff was and whether the driver had actually exceeded the time permitted.

c) It fails to comply with Par 8(2)(e) of the Act.
Paragraph 8(2)(e) of the Act states that a notice to keeper must:“…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…”

The Operator has failed to state that they do not know both the name of the driver and a current address for service for the driver and does not request that specific information. Nor does the Reminder Notice notify me to pass on the notice to the driver.

d) It fails to comply with Para 8(2)(g) of the Act.
Para 8(2)(g) states that a notice must: “inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;”

The Operator’s Notice does not offer any discount for prompt payment and whilst it provides details on how to contest a charge it does not specifically reference arrangements for the resolution of disputes or complaints.

e) It fails to comply with Para 8(7) of the Act.
Para 8(7) of the Act states that: “When the notice is given it must be accompanied by any evidence prescribed under paragraph 10”

The Reminder Notice provides no evidence at all with the notice and therefore there is no basis for the charge. There is also no evidence that the Operator uses technology for its own use where any time-stamping they subsequently rely on is accurate, tamperproof and synchronised with other equipment such as each ticket machine.

The Notice to Keeper does not comply with the strict requirements of POFA2012 Schedule 4 and no keeper liability exists.

4. The signage was not compliant with the British Parking Association (BPA) Code of Practice so there was no valid contract formed between the Operator and the driver:

I submit that this signage failed to comply with the BPA CoP Section 18 and Appendix B. The signs failed to properly warn/inform the driver of the terms and any consequences for breach. In breach of Appendix B (Mandatory Entrance Signs) the Operator has no signage with full terms which could ever be readable at eye level, for a driver in moving traffic on arrival. In addition, the elements of a contract are not evident because there was no consideration flowing between the driver and the Operator, and no acceptance to pay any charge under circumstances where a ticket was indeed displayed.

I request that my appeal is upheld and for POPLA to inform the Operator to cancel the PCN.

Yours faithfully,

The Keeper

SnowWhiterThanWhite

Hi OP

I'm in a similar position, Sainsburys and Horizon, although in my case, overstayed in a free car park (car broken down)
I did appeal to Sainsburys, but they said despite calls to Horizon, they wouldn't budge.
I had my appeal to Horizon rejected of course, and have now submitted my appeal to POPLA

I will update on the POPLA appeals page here once a decision has been made, not due until end June.

My understanding is that Horizon are not currently litigious

Ralph-y

I would like to ask a question .... SnowWhiterThanWhite ...

however please do not answer it on this thread as it will distract from the OP thread.... but (if poss post on your own thread) what exactly did Sainsburys say?

Ralph:cool:

Amberpunter

Just bumping as my thread got semi-hijacked. If any of the regulars have a few minutes do you mind checking the POPLA appeal I have included.

Many thanks

Umkomaas

The problem with a hijack is that it is often ignored by some regulars and the thread slides down the forum rapidly.

Turning to your draft appeal. I'm a bit confused (it doesn't take much some days!).

I can only infer from the limited information before me on the Reminder Notice that the driver had purchased a ticket and that it had expired. This does not create any certainty of terms, it leaves the Keeper to wonder what the hourly rate tariff was and whether the driver had actually exceeded the time permitted.

Not sure what point you are making here if this was a free car park? Your appeal GPEOL para seems to suggest that.

The car park is provided “free” to all genuine customers of xxxxxx, xxxxxx and as the car was parked during an off-peak period there would have been many vacant spaces, so no denial of revenue can be claimed.

Other than that it looks ok to me. Tick 3 of the 4 'Reasons' boxes (obviously not the 'stolen' one.

Don't miss POPLA deadline - unrecoverable!

Amberpunter

Umkomaas wrote: »

The problem with a hijack is that it is often ignored by some regulars and the thread slides down the forum rapidly.

Turning to your draft appeal. I'm a bit confused (it doesn't take much some days!).



Not sure what point you are making here if this was a free car park? Your appeal GPEOL para seems to suggest that.



Other than that it looks ok to me. Tick 3 of the 4 'Reasons' boxes (obviously not the 'stolen' one.

Don't miss POPLA deadline - unrecoverable!

The car park is free by way of a refund from Sainsburys at the checkout but the only information on the NTK is that the ticket had expired. I was trying to point out that there would be no loss and as the keeper obviously wasn't the driver then they had no visibility of any charges that may or may not apply. I can rewrite that as it obviously needs some clarity and thanks for taking the time to review, it's appreciated.

Umkomaas

Thanks for clarification. I think you need to make sure the POPLA adjudicator doesn't has it clear in his/her mind, so probably a good idea to have a little re-working of the appropriate bits.

Amberpunter

Just to close this one off. I helped the registered keeper of the car draft an email to the manager at the Sainsburys store and received a very courteous reply back where he agreed to instruct Horizon to cancel the PCN. That is despite some other posters on here receiving a response (probably at a different store) saying that it is nothing to do with them and they can't cancel the PCN.

So, we emailed Horizon earlier today to confirm that the PCN has been formally cancelled and have just received an email back to confirm this.

Many thanks for the help with the POPLA appeal unkomaas, which will now be kept for another day, but it does go to show that appealing to the retailer (as it suggests in the Newbie thread I hasten to add) really does work.

So, until the next one :beer: