Horizon Parking PCN Notes.
The Claimant is reliant on Protection of Freedoms Act 2012 (POFA) in order to invoke what is known as 'keeper liability'.
In order to invoke keeper liability, the Claimant (parking operator) issued Notice to Keeper (NtK) is required to meet ALL the requirements of POFA Schedule 4 Paragraph 9(2) conditions (a) to (i).
Partial compliance is not sufficient as the legislation requires total compliance - this is stated in the wording of Paragraph 9(1) and again within the wording of Paragraph 9(2)(f) which specifies that keeper liability only occurs 'if all the applicable conditions under this Schedule are met'.
The notice is not PoFA compliant for the following reasons;
Paragraph 9(2)(b) specifies that-
The 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 wording of Paragraph 9(2)(b) therefore sets out two requirements of the sentence which must be set out in the operators NtK, namely;
1. That the driver is required to pay parking charges in respect of the specified period
AND
2. That the parking charges have not been paid in full.
The operator's NtK contains no sentence which draws the keepers attention to either of the two requirements set out in Paragraph 9(2)(b).
This is immediately fatal to the Claimant's reliance on POFA as the notice does not meet the conditions of 9(2)(b).
Further,
Paragraph 9(2)(e) specifies that-
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—
(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;
We are therefore looking for the section of mandatory wording immediately followed by the two limbed 'invitation to the keeper' which Paragraph 9(2)(e) / 9(2)(e)(i) / 9(2)(e)(ii) sets out - the two limbs must be separated by the word "or" thus presenting the keeper with the invitation to do one OR the other.
An examination of the NtK reveals that the statutory wording is not present - the legislation specifies that the notice "MUST STATE" this information.
(Neither is there any other statement which fits the requirement of the mandatory wording)
Furthermore, the two limbed invitation to the keeper is never presented in the manner prescribed by the legislation - namely; a two limbed invite immediately following the prescribed wording.
Once again, this is fatal to the Claimant's reliance on POFA keeper liability.
Further,
Paragraph 9(2)(f) specifies that-
The notice 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;
The Claimants NtK does not replicate the required statutory wording or meaning.
The wording is significantly altered to such an extent that the statutory intent of 9(2)(f) is not conveyed - namely;
1. The Claimant's notice simply says, "If after 28 days...." when the legislation requires it to state, "If after the period of 28 days beginning with the day after that on which the notice is given"
2. The Claimant's notice says that they have the right, "to recover the parking charge amount that remains unpaid from the keeper of the vehicle and further costs may be incurred" when the legislation requires it to state 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" - the Claimant's revised wording materially alters the warning given since it warns the keeper that 'further costs may be incurred' when the legislation makes it clear that the Claimant may only recover so much of the amount that remains unpaid.
Once again, the non-present / incorrect wording / wrongly stated statutory intent is immediately fatal to the Claimant's reliance on POFA.
