#2 Re: Smart Parking NTK appeal rejected despite no POFA keeper liability.
on 15 Jul, 2026 12:03 in Private parking tickets
Thanks all for your help, it is much appreciated.Having taken onboard your advice, I have pasted below my intended response to IAS which I plan to submit before the end of the week. If there is room for improvement or suggestions for refinement, I would be very grateful for your feedback.Independent Appeals Service (IAS)Parking Charge: Vehicle Registration: Operator: Smart Parking LtdAppealI am the registered keeper of the above vehicle and I deny any liability for this Parking Charge.This appeal is made on the following grounds:1. No keeper liability exists under the Protection of Freedoms Act 2012 (hereinafter referred to as 'PoFA')The operator expressly states in its rejection letter:"... the provisions of Protection of Freedoms Act 2012 Schedule 4 relating to keeper liability do not apply at this location..."Having admitted that Schedule 4 of PoFA does not apply, Smart Parking cannot recover this charge from the registered keeper unless it proves, on the balance of probabilities, that the keeper was in fact the driver.The operator has chosen not to rely upon the statutory mechanism provided by Parliament for transferring liability from driver to keeper.Accordingly, there is no statutory basis upon which liability can attach to me merely because I am the registered keeper.For completeness, I note that the Notice to Keeper was issued on 29 June 2026 in respect of an alleged parking event on 14 June 2026, a period exceeding the 14 calendar day limit prescribed by paragraph 9(4) of Schedule 4 to the PoFA for establishing keeper liability in the absence of a Notice to Driver. Whilst the operator has correctly accepted that Schedule 4 does not apply, this chronology further illustrates that Parliament’s statutory conditions for transferring liability to the registered keeper have not been satisfied.2. The operator has failed to prove the identity of the driverThe burden of proof rests with the operator.The operator has produced no evidence capable of identifying the driver.The front-facing ANPR photograph merely depicts an indistinct occupant behind the steering wheel.It is of insufficient quality to identify any individual and cannot reasonably be relied upon as evidence of identity.The operator therefore asks the IAS to infer that the registered keeper was also the driver.Such an inference is unsupported by the evidence.The standard of proof remains the civil standard of the balance of probabilities.No evidence has been produced which demonstrates that I was driving the vehicle at the material time.3. Elliott v Loake does not establish keeper liabilityThe operator relies upon Elliott v Loake.That reliance is misplaced.Elliott v Loake {1982) was a criminal case involving extensive forensic and circumstantial evidence linking the defendant to a collision.It did not establish any legal presumption that the registered keeper of a vehicle is presumed to have been its driver.Nor did it create a principle permitting parking companies to transfer liability to keepers in the absence of statutory keeper liability under PoFA.Numerous County Court judges have rejected attempts by private parking operators to rely upon Elliott v Loake in this manner.The operator's reliance upon that authority is therefore misconceived.4. The operator has failed to establish driver identity on the balance of probabilitiesThe operator invites the IAS to infer that, because I am the registered keeper and have not identified the driver, I must therefore have been driving the vehicle.That proposition has no basis in statute or binding authority.The operator's rejection letter relies upon Elliott v Loake, yet that case did not establish any legal presumption that the registered keeper of a vehicle is presumed to be its driver. It was a criminal case decided on its own particular forensic evidence and is wholly distinguishable from the present matter.By contrast, in Vehicle Control Services Ltd v Mark Edward, the court did not establish any presumption that a registered keeper is the driver. Rather, the court considered the totality of the evidence before it in deciding whether, on the balance of probabilities, the defendant had been driving.That case illustrates the correct legal approach. The issue is one of evidence, not presumption.In the present case the operator has produced no evidence capable of identifying the driver. In particular:- The front-facing ANPR image is of insufficient quality to identify the driver.- No witness evidence has been produced.- No admission has been made by me that I was driving.- No other circumstantial evidence has been produced linking me personally to the alleged parking event.The operator therefore seeks to invite the IAS to conclude that, simply because I am the registered keeper and have exercised my right not to identify the driver, I should be presumed to have been driving.That is precisely the type of presumption which neither Elliott v Loake nor Vehicle Control Services Ltd v Mark Edward establishes.Without the benefit of keeper liability under Schedule 4 of PoFA, the operator must prove, on the balance of probabilities, that I was the driver.It has failed to do so.5. The operator has impermissibly reversed the burden of proofThe rejection letter states that I have not produced evidence demonstrating that I was not the driver.That submission is legally unsustainable.The burden of proving the identity of the driver rests entirely with the operator. There is no legal obligation upon a registered keeper to prove a negative or to identify the driver where statutory keeper liability is unavailable.The operator's reasoning effectively reverses the burden of proof by suggesting that liability arises unless I disprove that I was driving.That approach is incompatible with ordinary principles of civil evidence. Where Parliament intended liability to transfer from driver to keeper, it enacted Schedule 4 of PoFA and imposed strict statutory conditions. The operator has expressly accepted that those provisions do not apply in this case. It cannot now circumvent Parliament's statutory scheme by inviting the IAS to create a presumption that Parliament itself chose not to enact.Accordingly, the operator has failed to discharge the burden resting upon it.ConclusionSmart Parking Ltd. Has expressly acknowledged the provisions of Schedule 4 to PoFA do not apply in this case. Accordingly, there is no statutory basis upon which liability can be transferred from the unknown driver to the registered keeper.The operator has produced no evidence capable of proving, on the balance of probabilities, that I was the driver at the material time. The front-facing ANPR image is incapable of identifying the driver, there is no witness evidence, no admission by me, and no other evidence linking me personally to the alleged contravention. Instead, the operator seeks to rely upon an impermissible presumption that, because I am the registered keeper and have exercised my right not to identify the driver, I must therefore have been driving. That is not the legal effect of Elliott v Loake, nor is it supported by Vehicle Control Services Ltd. V Mark Edward. Both cases turn upon their own facts and do not relieve the operator of its obligations to prove its case with evidence.The operator has also sought to reverse the burden of proof by asserting that I have filed to demonstrate that I was not the driver. That submission is fundamentally misconceived. It is for the operator to prove its case, not for the registered keeper to disprove it.In the absence of statutory keeper liability under PoFA, and in the absence of credible evidence identifying the driver, the operator has failed to establish that I am liable for this Parking Charge.For all the foregoing reasons, I respectfully request that the Independent Appeals Service allows this appeal and directs Smart Parking Ltd. To cancel the Parking Charge Notice.