Free Traffic Legal Advice

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!

no mention of using pofa for keeper liability just an invite to name the driver

Thanks. Does that mean that they can’t pursue the driver at all? How is best to reply?

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:

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.

For now I'd just send what b789 suggests - Horizon often give up when they're onto a loser.

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?

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.

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.