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#Post#: 39525--------------------------------------------------
PCN to Company (RK) failure to pay at Water Gardens Shopping
Centre Harlow
DIR By: doggone
Date: October 6, 2024, 2:14 am
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Hi all,
PCN received for failure to pay at Water Gardens Shopping Centre
Harlow. Car is insured for multiple drivers and PCN is to the
company, the RK.
"Breach" date was 17th Sept, PCN issue date: Friday 27th Sept
but it wasn't delivered to RK until 4th October, 17 days after
the "breach".
Given the time "breach" it is hard to remember, let alone prove
payment, driver etc.
Just wanted to get advice on how best to deal with it. I've
never dealt with a company car ticket before.
Am I correct that Schedule 4 of Protection of Freedoms Act 2012
requires delivery of the PCN within 14 days and so the operator
are not able to use it to pursue the name of the driver? The PCN
is dated within 14 days but it 100% was not delivered by 1st
October. If it was posted in the 27th Sept (envelope doesn't
provide a date of posting), the assumption from Sched 4 states 2
working days after posting, which would by 1st October, the 14th
day. However, it appears that the PCN was not posted until
Monday 30th Sept at the earliest.
Thanks!
HTML https://i.imgur.com/KJmu8SD.jpeg
#Post#: 39526--------------------------------------------------
Re: PCN to Company (RK) failure to pay at Water Gardens Shopping
Centre Harlow
DIR By: doggone
Date: October 6, 2024, 2:14 am
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HTML https://i.imgur.com/xcMl7ui.jpeg
#Post#: 39535--------------------------------------------------
Re: PCN to Company (RK) failure to pay at Water Gardens Shopping
Centre Harlow
DIR By: mickR
Date: October 6, 2024, 4:16 am
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no mention of using pofa for keeper liability just an invite to
name the driver
#Post#: 39536--------------------------------------------------
Re: PCN to Company (RK) failure to pay at Water Gardens Shopping
Centre Harlow
DIR By: doggone
Date: October 6, 2024, 4:25 am
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Thanks. Does that mean that they can’t pursue the driver at all?
How is best to reply?
#Post#: 39538--------------------------------------------------
Re: PCN to Company (RK) failure to pay at Water Gardens Shopping
Centre Harlow
DIR By: b789
Date: October 6, 2024, 5:03 am
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--- Quote from: doggone link ---
>
> Thanks. Does that mean that they can’t pursue the driver at
all? How is best to reply?
--- End Quote ---
Not quite right. They can pursue the driver. Only the driver is
liable.
Do they know who the driver is? If they do, it will only be
because the Keeper blabbed the drivers identity.
The Notice to Keeper (NtK) is not compliant with all the
requirements of PoFA. Whilst the 14 day issue you raised is
irrelevant in this context, had the NtK even PoFA compliant, it
would not have negated the validity of PoFA as it would have
been deemed given on day 14 which is within the requirements.
However, the rest of the NtK is not relying on PoFA. So, what
that actually means is the there is no Keeper liability if the
drivers identity is unknown.
Simply appeal with the following, verbatim:
--- Quote ---
> My company is the keeper of the vehicle and I dispute your
'parking charge'. I deny any liability or contractual agreement
and I will be making a complaint about your predatory conduct to
your client landowner.
>
> As your Notice to Keeper (NtK) does not fully comply with ALL
the requirements of PoFA 2012, you are unable to hold the keeper
of the vehicle liable for the charge. Partial or even
substantial compliance is not sufficient. There will be no
admission as to who was driving and no inference or assumptions
can be drawn. Horizon has relied on contract law allegations of
breach against the driver only.
>
> The registered keeper (a company) cannot be presumed or
inferred to have been the driver, and I cannot pursued under
some twisted interpretation of the law of agency. Your NtK can
only hold the driver liable. Horizon have no hope at POPLA, so
you are urged to save us both a complete waste of time and
cancel the PCN.
--- End Quote ---
#Post#: 39637--------------------------------------------------
Re: PCN to Company (RK) failure to pay at Water Gardens Shopping
Centre Harlow
DIR By: doggone
Date: October 7, 2024, 4:03 am
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--- Quote from: b789 link ---
>
>
> Do they know who the driver is? If they do, it will only be
because the Keeper blabbed the drivers identity.
>
> The Notice to Keeper (NtK) is not compliant with all the
requirements of PoFA. Whilst the 14 day issue you raised is
irrelevant in this context, had the NtK even PoFA compliant, it
would not have negated the validity of PoFA as it would have
been deemed given on day 14 which is within the requirements.
>
>
--- End Quote ---
Thanks, b789. There has been no correspondence with Horizon
beyond the letter received and posted above.
So, is my understanding correct: unless the driver is
voluntarily identified (which the company will refuse to do),
they have no way of pursuing this?
I know it may not be relevant, but just for my understanding: in
regards the 14 days, wouldn't they need to show that it was
POSTED on the 27th Sept, not just dated/printed on that date?
Even if they did, the letter did arrive beyond the 14 days. We
have witnesses to that. I realise this won't be heard in court,
but how could/would someone PROVE a delivery date beyond witness
statements? Isn't it worth mentioning the late delivery just as
a further argument?
#Post#: 39640--------------------------------------------------
Re: PCN to Company (RK) failure to pay at Water Gardens Shopping
Centre Harlow
DIR By: DWMB2
Date: October 7, 2024, 4:14 am
---------------------------------------------------------
For now I'd just send what b789 suggests - Horizon often give up
when they're onto a loser.
--- Quote from: doggone link ---
>
> I know it may not be relevant, but just for my understanding:
in regards the 14 days, wouldn't they need to show that it was
POSTED on the 27th Sept, not just dated/printed on that date?
Even if they did, the letter did arrive beyond the 14 days. We
have witnesses to that. I realise this won't be heard in court,
but how could/would someone PROVE a delivery date beyond witness
statements? Isn't it worth mentioning the late delivery just as
a further argument?
>
--- End Quote ---
In civil court it's the claimant's job to prove their case, not
yours to disprove. Nevertheless, the court works on the balance
of probabilities. Horizon would state that they posted it on
[DATE], which is likely to be accepted absent any evidence to
the contrary. The notice is then presumed delivered 2 working
days later, unless the contrary can be proved. Proving so is
difficult, although of course witnesses help (especially if
they're independent, such as the postman for example).
The problem with proving when something was delivered is it
generally becomes a case of your word against theirs, and there
are usually stronger arguments to focus on.
#Post#: 39643--------------------------------------------------
Re: PCN to Company (RK) failure to pay at Water Gardens Shopping
Centre Harlow
DIR By: doggone
Date: October 7, 2024, 4:42 am
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Thank you both for your time, it is much appreciated!
#Post#: 39645--------------------------------------------------
Re: PCN to Company (RK) failure to pay at Water Gardens Shopping
Centre Harlow
DIR By: b789
Date: October 7, 2024, 4:58 am
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It is the "deemed" delivery date that counts, not the actual
delivery date unless, as mentioned above, it can be proven. Most
of these companies now use bulk mailing services and some of
these will be able to produce a "proof of mailing" certificate.
However, as far as POPLA is concerned, they wouldn't care. In
court though, it would be a different matter.
The operator would argue that the NtK was sent on a particular
date and show a copy of the NtK. However, without either a proof
of posting certificate or a signed for delivery receipt it would
be your word against theirs.
If you have an independent witness who could confirm the actual
delivery date, that would add much weight to your statement.
Also, you would have even more weight if you highlight that the
claimant has simply stated that the notices were sent but has
provided no proof of service, shifting the burden of proof onto
them. By referencing CPR 6.26, you emphasise that producing a
copy of the notice is not enough to establish service and that
they need to prove that the notices were posted and properly
delivered.
You would argue that the claimant has provided no proof of
postage or certificate of service, making it impossible for them
to rely on the presumption of service under CPR 6.26. The
claimant must show evidence such as proof of postage to assert
that the notice was actually sent.
The claimant might argue that if all the other correspondence
was received, then on the balance of probabilities, the NtK was
also received. By pointing out that this is speculative and not
based on evidence, you further weaken the claimant's position.
This also invites the court to consider whether the notices were
sent or properly delivered in the first place.
By summarising the failure to prove service, the court would
need to consider whether the claimant has sufficiently
demonstrated compliance with the relevant rules of service and
whether they can pursue the claim based on defective or missing
evidence. Add to that an independent witness statement, it would
be difficult for the court not to accept your version.
We are a long way off anything like that, if ever. Just keep
your powder dry for now and wait and see what POPLA decide.
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