Horizon PCN - new template

Ineedhelp101

Hey guys received a PCN. Please see attached.

see my appeal below:

Appeal against Parking Charge Notice (PCN) no. xxxxxxxx

 I dispute your 'parking charge', as the keeper of the vehicle. I deny any liability or contractual agreement and I will be making a complaint about your predatory conduct to your client landowner.

There will be no admissions as to who was driving, and no assumptions can be drawn. Since your PCN is a vague template, I require a full explanation of the allegation and full evidence. You must include a close up actual photograph of the sign that you contend was at the location on the material date, including evidence that it was properly illuminated on the date and time in question, as well as your images of my vehicle showing beyond dispute that it was in the alleged location at the alleged time and date.

If the allegation concerns a PDT machine, the data supplied in response to this appeal must include the record of payments made - showing partial VRNs - and an explanation of the reason for the PCN, because your Notice does not explain it.

If the allegation involves an alleged overstay of minutes, your evidence must include the actual grace period agreed by the landowner.

I contest and appeal this ‘parking charge’, on the grounds that you have failed to comply with Schedule 4 of the Protection of Freedoms Act 2012.

 Additionally, you have clearly stated on your non-POFA compliant template “PCN” that - “If, after 28 days, we have not received full payment, we have the right to recover the outstanding charge from the driver and further costs may be incurred in pursuit of the outstanding balance”.  I admit to being the registered keeper of the vehicle but “There will be no admissions as to who was driving, and no assumptions can be drawn” as stated above, so I am unsure who it is you will be attempting to recover this payment from.

Yours sincerely,

———————

Ineedhelp101

Horizon have responded via email stating the below. Please advise what I should do now and what I should say

——

Dear Appellant, 

 

Parking Charge Notice:

 

Thank you for your recent correspondence concerning the above referenced Parking Charge Notice.

 Review of your Appeal

The Parking Charge Notice was issued lawfully and in full and proper accordance with the Code of Practice issued by the British Parking Association (the ‘BPA’).

There are signs located at the entrance to, and within the car park that state the terms and conditions that apply when parking.

As clearly stipulated on signage within the car park, payment or validation for parking must be made for the full duration of the vehicles stay.  Our systems do not show any evidence of payment or validation made against this vehicle on the incident date.

The signs throughout the car park are clear and comply fully with the BPA’s prescribed rules and regulations.  When parking on private land, it is the driver’s responsibility to ensure they adhere to the terms and conditions of the car park concerned.

As we have not been provided with the name and a serviceable address for the driver/hirer, under Schedule 4 of the Protection of Freedoms Act 2012, we do have the right, subject to meeting the requirements of the Act, to recover from the Registered Keeper the amount that remains outstanding. We have obtained the name and address of the registered keeper of the vehicle from the DVLA for the purposes of enforcing this charge.

Given the above, and whilst we have considered your representations carefully, on this occasion your appeal has been rejected.

  

The Charge Amount and Methods of Payment

In good faith, Horizon will hold the charge at the current amount of £42.00  for a further 14 days from the date of this correspondence to allow you further time to pay.

Payment of the outstanding charge can be made using our 24-hour payment line: 020 8106 0789 or online

Alternatively, payment can be made via cheque made payable to Horizon Parking Ltd and posted to Horizon Parking Ltd, Finitor House, 2 Hanbury Road Chelmsford, Essex CM1 3AE

 

Additional Types of Appeal

You have now reached the end of our appeals procedure.  Although we have rejected your appeal, the Parking On Private Land Appeals (POPLA) provides an independent appeals service. To use this service, you must appeal to POPLA within 28 days of the date of this correspondence. 

For full instructions of how to appeal to POPLA, please visit their website at ww. If you would rather progress this matter by post, please contact our Appeals Office and we will send you the necessary paperwork.

Your POPLA reference number is 

Please be advised that if you elect  for independent arbitration of your case, you will be required  to pay the charge at the full amount and as such will no longer qualify for payment at the reduced rate. Please also be advised that POPLA will not accept an appeal where payment is made against the Parking Charge Notice in question.

We are required by law  to inform you that Ombudsman Services provides an alternative dispute resolution service that would be competent to deal with your appeal;  however ,  Horizon has not chosen to participate in their alternative dispute resolution service.  As such, should you wish to appeal then you must do so to POPLA as explained above.

Yours sincerely

——

Ineedhelp101

I was thinking of appealing something like this:

Re PCN number: 

I dispute your 'parking charge', as the keeper of the vehicle. I deny any liability or contractual agreement and I will be making a complaint about your predatory conduct to your client landowner.

There will be no admissions as to who was driving and no assumptions can be drawn. Since your PCN is a vague template, I require an explanation of the allegation and your evidence. You must include a close up actual photograph of the sign you contend was at the location on the material date as well as your images of the vehicle.

If the allegation concerns a PDT machine, the data supplied in response to this appeal must include the record of payments made - showing partial VRNs - and an explanation of the reason for the PCN, because your Notice does not explain it.

If the allegation involves an alleged overstay of minutes, your evidence must include the actual grace period agreed by the landowner.

The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

In this case, no other party apart from an evidenced driver can be told to pay. As there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the Operator to show that (as an individual) I have personally not complied with terms in place on the land andshow that I am personally liable for their parking charge. They cannot.

Furthermore, the vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

Understanding keeper liability

'There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no 'reasonable presumption' in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.'

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA.

This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:

''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''

Gr1pr

Do not reply at all

Construct a Popla appeal similar to other recent Horizon thread Popla appeals, as explained in the newbies sticky thread in announcements 

Coupon-mad

And you'll already know from reading my thread of NTK pictures, EXACTLY how that NTK fails POFA. It's a small detail.  They've tried but that NTK does not pass.

No need for us to elaborate because it's in the NEWBIES thread already.

Ineedhelp101

Coupon-mad said:

And you'll already know from reading my thread of NTK pictures, EXACTLY how that NTK fails POFA. It's a small detail.  They've tried but that NTK does not pass.

No need for us to elaborate because it's in the NEWBIES thread already.

Gr1pr said:

Do not reply at all

Construct a Popla appeal similar to other recent Horizon thread Popla appeals, as explained in the newbies sticky thread in announcements 

Hey both. I have looked at the newbies thread - several times. I am finding it very confusing. I have searched up for horizon popla appeals to copy. I cannot find any.

i have done stage A: Asda said they are unable to remove it even though I have insisted.

i sent the first appeal based on what I saw on another thread for horizon. But I can’t see any POPLA appeal example for Horizon. Please point in the right direction - maybe I’m being stupid

Coupon-mad

Search the forum! Horizon POPLA.

Go back to the NEWBIES thread and read my thread of NTK pictures. 

Ineedhelp101

Dear POLPA,

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. Charge not a genuine pre-estimate of loss
2. No standing or authority to pursue charges or form contracts with drivers.
3. Inadequate and insufficient signage therefore no valid contract formed between the contesting parties
4. Punitive charge 
5. Non-POFA compliant wording????

The detailed appeal points are described below:

1. Charge not a genuine pre-estimate of loss

This car park is Pay and Display (P&D) and the cost of 3 hours parking would have been £5 so the only recoverable sum under the POFA 2012 is the sum of the alleged 'outstanding' parking charge, i.e. £5 at the most. Horizon Parking have not engaged me in discussing their losses, and are attempting to levy a punitive amount and arbitrary amount.

The demand for a payment of £70 (discounted to £42 if paid within 14 days) is punitive, unreasonable, exceeds an appropriate amount,and has no relationship to the loss that would have been suffered by the Landowner. The keeper declares that the charge is punitive and therefore an unenforceable penalty.

The BPA code of practice states: 

19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer. 

19.6 If your parking charge is based upon a contractually agreed sum, that chargecannot be punitive or unreasonable. 

I require Horizon Parking to provide a detailed breakdown of how the amount of the “charge” was calculated. I am aware from Court rulings and previous POPLA adjudications that the cost of running the business (such as the erection of signage, the provision of back office services, the maintenance of ANPR cameras, cost of membership of the BPA Ltd. Etc) may not be included in this pre-estimate of loss.

Neither is this charge ‘commercially justified’. In answer to that proposition from a PPC which had got over-excited about theParking-Eye v Beavis small claims decision, (now being taken to the Court of Appeal by Mr Beavis anyway) POPLA Assessor Chris Adamson has stated in June2014 that:

“In each case that I have seen from the higher court, itis made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach” This is most clearly stated in Lordsvale Finance PLc v Bank of Zambia [1996] QB 752, quotedapprovingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor vUnited International Pictures Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, if the increase could in the circumstances be explained as commercially justifiable, provided always thatits dominant purpose was not to deter the other party from breach”.

This supports the principle that the aim of damages is to-be compensatory, beginning with the idea that the aim is to put the parties inthe position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible,nevertheless it remains that a charge for damages must be compensatory innature rather than punitive.”

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

I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, Horizon Parking must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level.

A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. I therefore put Horizon Parking to strict proof to provide POPLA and myself with an un-redacted, contemporaneous copy of the contract between Horizon Parking and the landowner. Furthermore the contract must not be with another agent, retailer or other non-landholder, because it will not be clear that the landowner has authorised the necessary rights to Horizon Parking.

Horizon Parking and it’s affiliates must clearly demonstrate to all concerned that they are authorised to pursue this inflated charge of £70, and are not simply handing out speculative charges to members of the public, where no contract exists and cannot be demonstrated in a court of law. This method of speculation has no basis in any legal framework.

3. Inadequate and insufficient signage therefore no valid contract formed between the contesting parties

The signs are completely inadequate as they do not communicate the full contractual terms and conditions. The signs do not cover basic directions on what to do in various situations. For instance there is no information regarding who to speak to and what to do if the pay and display (P&D) machines are out of order, as was the case here. It is not reasonable to allow members of the public to park and then prevent them from paying and displaying, by not having working machines, thus failing to live up to the basic requirements of a P&D car park.

It should specifically state as part of the full terms and conditions of use that if the machine is out of order then you are not entitled to park. However the landowner would certainly require P&D machines to be working at all times, and would not allow Horizon Parking to invoice car park users for extortionate amounts (£70) simply because Horizon Parking have failed to maintain their P&D machines.

Firstly there is no contract in place due to inadequate signs. However more seriously if Horizon Parking are aware that their machines aren’t working, but decide to invoice members of the public arbitrary amounts which are not stated anywhere and are not agreed upfront, then this can only be classified as fraud or extortion. For example if you were attracted by an advert in a shop for a product, and you decided you wanted to buy. Upon getting to the checkout a random monetary figure was not proposed but demanded, then certainly you would walk out of the shop. Similarly if it clearly states it costs £5 for 3 hours parking then that is all that should be demanded by Horizon Parking, regardless of whether a formal contract has been agreed or not. Without a formal contract, Horizon Parking have demanded £70, therefore I propose that this is extortion.

If Horizon Parking state that their machines are fully operational while the car park is in operation, then this is a blatant lie, as there is ample evidence to the contrary.

The BPA Code of Practice states that on entrance signs must be clearly readable without a driver having to turn away from the road ahead. In this instance the signs are hidden to one side of the car park, and it would be impossible to read the signs upon entering the car park without looking away from the road. Also as there are no barriers or humps to slow cars down upon entering the car park, a car will almost certainly be travelling at a speed which would not allow them turn to their left to read the entire sign, digest the information and then think about whether it is appropriate for them to accept.

Furthermore it states in the cord of practice that the Notice is not imported into the contract unless brought home so prominently that the party ‘must’ have known of it and agreed terms beforehand. Clearly given the sign was unreadable upon entering the car park and do not provide basic contractual information, and the P&D machines were not working then it is completely impossible to form any kind of formal contract.

4. Punitive Charges

The charge of £70 compared with the actual cost of parking (£5 for 3 hours), would be considered as punitive, when considering the Unfair Terms Consumer Contracts Regulation 1999. Despite the fact that no contract was formed due to my previous points in section 3, even if Horizon Parkinh argue that a contract has been formed then they must request charges in line with legislation (fair and not disproportionate). It is not appropriate to claim a contract exists and to make up a figure, which they deem appropriate for themselves. This demonstrates a clear and calculating callousness on the part of Horizon Parking, and shows they are not adhering to basic consumer regulations. Even if they initially request a lower amount and then increase this over time, it is still punitive and in no way reflects any loss to them or cost of a service.

5. The 'PCN' fails to comply with the POFA 2012 and breaches various consumer contract

The PCN states that if after 28 days, Horizon Parking have no received full payment or the correct full name and serviceable address of the driver at the time of the breach, under schedule 4 of POFA 2012, they have the right, subject to the requirements of the Act, to recover the parking charge amount that remains unpaid from the keeper of the vehicle and further costs may incure.

Schedule 4 of POFA 2012 states that: Horizon Parking must “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”

NOT SURE WHAT ELSE TO SAY FOR THIS POINT!!!

—-

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

Yours faithfully,

Ineedhelp101

Please see my draft above. Please note number is wrong!

I have looked at legislation schedule 4, I’m unsure how my PCN is non-compliant.

Coupon-mad

But if you look at my thread of NTK pictures (as I advised you to do) you will see how Horizon ones are non-POFA.

It's covered there.  And that thread is linked in the NEWBIES thread already.

And: I've no idea why you are arguing a point with no legs, which was kicked out by the highest court in the land almost ten years ago.

This tells me you've searched and copied a very out of date POPLA Appeal dated 2014:

"now being taken to the Court of Appeal by Mr Beavis anyway"

No, it isn't. And he lost.

Stick to the template appeal points in post 3 of the NEWBIES thread.

paulstevens64

Hi I Need Help.

Link below to help you understand the POFA issue. Please do as Coupon Mad says and look at post 3 of Newbies thread, there are links to all of the key appeal points to cut and paste into a long POPLA appeal, Plus, obviously the Non POFA point from the link below.

Horizon Parking
Two 'non-POFA' versions here (one is trying hard but still fails keeper liability):
https://forums.moneysavingexpert.com/discussion/comment/80431472/#Comment_80431472