Driver doesn't want to pay Horizon fine, but registered keeper does...

Gr1pr

Which is only relevant if they don't cancel it. !

Even then, it's up to the claimant to prove their case, you don't have to prove anything 

Even if you lost at Popla, plan C, you could still name the driver at any time up to a court claim being issued 

Coupon-mad

I stand by my post on the NTK pictures thread that this is a POFA compliant NTK.

Castle

Coupon-mad said:

I stand by my post on the NTK pictures thread that this is a POFA compliant NTK.

The top paragraph on the back page is attempting to transfer liability to the Keeper a day early; the 28 days starts from the day after "the second working day after the date of this parking charge". 

Coupon-mad

True.  Worth a try at POPLA.  Needs to be explained well.

andromeda24

Castle said:

Coupon-mad said:

I stand by my post on the NTK pictures thread that this is a POFA compliant NTK.

The top paragraph on the back page is attempting to transfer liability to the Keeper a day early; the 28 days starts from the day after "the second working day after the date of this parking charge". 

Thanks Castle, this is the detail I couldn't wrap my head round! 

andromeda24

As expected, my Horizon appeal was rejected. I'll post a draft in here for the POPLA appeal as I suspect I will need everyone's expertise on the 28-day wording.  

LDast

Here is a way you could explain it to a dim witted POPLA assessor, for what its worth:

Under paragraph 9(2)(f), the Notice to Keeper (NtK) must include the following wording:

"The notice 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 to pay the unpaid parking charges or, if the keeper was not the driver of the vehicle, to provide the name of the driver and a current address for service for the driver and to pass the notice on to the driver."

It must also state:

"(i) that 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; and

(ii) the period of 28 days beginning with the day after that on which the notice is given."

Issue with the NtK's Wording:

The wording used on the back of operators NtK attempts to transfer liability to the keeper one day early by stating that "the 28 days starts from the day after the second working day after the date of this parking charge."

The Notice to Keeper (NtK) issued in this case incorrectly starts the 28-day period for transferring liability to the keeper one day too early. This makes the NtK non-compliant with the requirements of the Protection of Freedoms Act (PoFA) 2012, specifically Schedule 4, paragraph 9(6).

PoFA Requirements:

According to PoFA 2012, the NtK must clearly state that the keeper has 28 days to respond. However, the law also dictates when this 28-day period begins. Under paragraph 9(6) of PoFA, the notice is deemed to have been 'given' to the keeper on the second working day after the date it was issued. The 28-day period then begins the day after that.

For example, if the NtK was issued on Tuesday 1st October (We have no actual idea because you have redacted all the dates for some obscure reason):

1. PoFA says it is presumed to be 'given' to the keeper on Thursday 3rd October (the second working day).
2. The 28-day period should then start on Friday 4th October (the day after the second working day).

However, the NtK wrongly states that the 28-day period starts from the second working day itself (in this case, Thursday 3rd October). This is incorrect because PoFA clearly states that the 28-day period only begins the day after the notice is presumed 'given', which would be Friday 4th October in this example.

Why This Matters:

This early start to the 28-day period is significant because PoFA requires full and strict compliance with its wording to hold the registered keeper liable. By attempting to transfer liability one day too early, the operator has not met the legal requirements of PoFA, meaning that the keeper cannot be held liable for the parking charge.

The mistake in the NtK effectively cuts short the keeper’s response period and breaches PoFA’s clear requirements, which unfairly prejudice the keeper. POPLA must recognise that this premature attempt to start the liability transfer invalidates the notice, making it non-compliant with PoFA, and as a result, the parking charge should be cancelled.

To summarise:

• PoFA says the NtK is presumed 'given' on the second working day after issuance.
• The 28-day period starts the day after the second working day.
• The NtK incorrectly starts the period from the second working day itself, which is one day too early.
• As PoFA requires exact compliance, this error invalidates the attempt to transfer liability to the keeper.

This is a crucial detail that POPLA should fully understand, as it directly affects the legality of the parking operator's attempt to hold the keeper liable.

If the assessor doesn't get it after that explanation, don't be surprised. You'll have to use it to explain to a judge, if it were ever likely to get that far.

andromeda24

LDast said:

Here is a way you could explain it to a dim witted POPLA assessor, for what its worth:

Under paragraph 9(2)(f), the Notice to Keeper (NtK) must include the following wording:

"The notice 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 to pay the unpaid parking charges or, if the keeper was not the driver of the vehicle, to provide the name of the driver and a current address for service for the driver and to pass the notice on to the driver."

It must also state:

"(i) that 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; and

(ii) the period of 28 days beginning with the day after that on which the notice is given."

Issue with the NtK's Wording:

The wording used on the back of operators NtK attempts to transfer liability to the keeper one day early by stating that "the 28 days starts from the day after the second working day after the date of this parking charge."

The Notice to Keeper (NtK) issued in this case incorrectly starts the 28-day period for transferring liability to the keeper one day too early. This makes the NtK non-compliant with the requirements of the Protection of Freedoms Act (PoFA) 2012, specifically Schedule 4, paragraph 9(6).

PoFA Requirements:

According to PoFA 2012, the NtK must clearly state that the keeper has 28 days to respond. However, the law also dictates when this 28-day period begins. Under paragraph 9(6) of PoFA, the notice is deemed to have been 'given' to the keeper on the second working day after the date it was issued. The 28-day period then begins the day after that.

For example, if the NtK was issued on Tuesday 1st October (We have no actual idea because you have redacted all the dates for some obscure reason):

1. PoFA says it is presumed to be 'given' to the keeper on Thursday 3rd October (the second working day).
2. The 28-day period should then start on Friday 4th October (the day after the second working day).

However, the NtK wrongly states that the 28-day period starts from the second working day itself (in this case, Thursday 3rd October). This is incorrect because PoFA clearly states that the 28-day period only begins the day after the notice is presumed 'given', which would be Friday 4th October in this example.

Why This Matters:

This early start to the 28-day period is significant because PoFA requires full and strict compliance with its wording to hold the registered keeper liable. By attempting to transfer liability one day too early, the operator has not met the legal requirements of PoFA, meaning that the keeper cannot be held liable for the parking charge.

The mistake in the NtK effectively cuts short the keeper’s response period and breaches PoFA’s clear requirements, which unfairly prejudice the keeper. POPLA must recognise that this premature attempt to start the liability transfer invalidates the notice, making it non-compliant with PoFA, and as a result, the parking charge should be cancelled.

To summarise:

• PoFA says the NtK is presumed 'given' on the second working day after issuance.
• The 28-day period starts the day after the second working day.
• The NtK incorrectly starts the period from the second working day itself, which is one day too early.
• As PoFA requires exact compliance, this error invalidates the attempt to transfer liability to the keeper.

This is a crucial detail that POPLA should fully understand, as it directly affects the legality of the parking operator's attempt to hold the keeper liable.

If the assessor doesn't get it after that explanation, don't be surprised. You'll have to use it to explain to a judge, if it were ever likely to get that far.

Thanks for taking the time to write this out! I think I get it now, but let's check my understanding:

1. Notice is given on: October 3rd
2. The day after the notice is given: October 4th
3. Start counting the 28 days from October 4th

If we count 28 days from October 4th, the period ends on October 31st. According to the regulation, it is only after this period has concluded that liability can be transferred. Which would mean liability can be transferred from November 1st and not before then.

The way Horizon have worded it could be read like they're saying they can transfer liability from the October 31st, because of the use of 'from' in this sentence: ‘... after the period of 28 days from the second working day after the date of this Parking Charge.’ 

The only thing is... I feel like the 'after' at the start of the sentence might save them. 

andromeda24

Also, for totality of info, here's the dates from the notice: 

Coupon-mad

andromeda24 said:

Thanks for taking the time to write this out! I think I get it now, but let's check my understanding:

1. Notice is given on: October 3rd
2. The day after the notice is given: October 4th
3. Start counting the 28 days from October 4th

If we count 28 days from October 4th, the period ends on October 31st. According to the regulation, it is only after this period has concluded that liability can be transferred. Which would mean liability can be transferred from November 1st and not before then.

The way Horizon have worded it could be read like they're saying they can transfer liability from the October 31st, because of the use of 'from' in this sentence: ‘... after the period of 28 days from the second working day after the date of this Parking Charge.’ 

The only thing is... I feel like the 'after' at the start of the sentence might save them. 

No.

The notice was not deemed given on Oct 4th