Free Traffic Legal Advice

I am 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. Carflow has relied on contract law allegations of breach against the driver only.

The registered keeper cannot be presumed or inferred to have been the driver, nor pursued under some twisted interpretation of the law of agency. Your NtK can only hold the driver liable. Carflow have no hope at POPLA, so you are urged to save us both a complete waste of time and cancel the PCN.

6(1)The second condition is that the creditor (or a person acting for or on behalf of the creditor)—

(a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8; or

(b)has given a notice to keeper in accordance with paragraph 9.

(2)If a notice to driver has been given, any subsequent notice to keeper must be given in accordance with paragraph 8.

I am the registered keeper. There will be no identification of the driver and no inference or presumption may be drawn.

1. This appeal is advanced on the basis that the operator’s Notice to Keeper (NtK) fails to comply with the mandatory requirements of Schedule 4 to the Protection of Freedoms Act 2012 (PoFA). The operator therefore has no right in law to recover any sum from the keeper. In the absence of a driver admission, the appeal must be allowed.

2. PoFA Schedule 4 paragraph 4(1) creates a conditional and exceptional statutory right to recover “unpaid parking charges” from a keeper only where the creditor strictly satisfies each precondition in paragraphs 5 to 9. It is a complete code and substantial compliance is insufficient.

3. The NtK fails paragraph 9(2)(f). The prescribed warning must state that after “the period of 28 days beginning with the day after that on which the notice is given” the creditor will have the right to recover from the keeper any unpaid parking charges. The NtK instead warns of liability “after 29 days from the given date” and is addressed to/aimed at the “registered keeper”. This is not the statutory formulation. It misstates both the timescale and the trigger (“given” versus “given date”), and it misstates the legal person who may be liable (“keeper”, not necessarily the registered keeper). Paragraph 9(2)(f) is therefore not satisfied and keeper liability cannot arise.

4. The NtK also contains conflicting deadline language elsewhere (e.g. “no later than 28 days from the date of issue”), which is not the wording mandated by paragraph 9(2)(f). That inconsistency creates ambiguity and fails to give the precise statutory warning.

5. The NtK fails paragraph 9(2)(b). The statute requires a statement that the driver is liable for “the parking charges in respect of the specified period of parking” and that those charges “have not been paid in full”. The NtK merely asserts that the driver “is required to pay the parking charge”, omitting the statutory phrasing and context as to the “specified period of parking” and non-payment “in full”.

6. The NtK fails paragraph 9(2)(e). The invitation must be to pay “the unpaid parking charges” or to identify the driver and pass on the notice. The NtK instead invites payment of “this PCN”, which is not the statutory phrase and is ambiguous as to what is lawfully recoverable under PoFA.

7. The NtK repeatedly substitutes “registered keeper” for “keeper”. PoFA imposes potential liability upon the “keeper”, who may be a different legal person from the DVLA registered keeper. This persistent misuse of terminology is material because paragraph 9(2)(f) must be given to the keeper in the prescribed form. It was not.

8. The NtK further misstates the legal effect of PoFA by threatening that if the keeper identifies an individual who denies being the driver, the operator may nonetheless pursue the keeper. Once a keeper provides the name and current address for service of the driver, the statutory scheme does not permit keeper liability. That threat is a misstatement of law and is non-compliant with the Private Parking Single Code of Practice v1.1, clause 8.1.1(d), which prohibits misrepresentations about PoFA keeper liability.

9. Given the above defects, the operator has failed to meet the conditions in paragraph 5(1)(b) and 6(1)(a) read with paragraph 9. The exceptional right in paragraph 4(1) is therefore not engaged. The keeper cannot be liable.

10. For the avoidance of doubt, the operator bears the burden of proving strict PoFA compliance. It is not for the keeper to prove non-compliance. Any attempt to rely on “substantial compliance”, glosses on wording, or generic assertions about adhering to PoFA must be rejected. The statute is prescriptive.

11. Separately and in the alternative, if the operator seeks to recover the charge as a contractual sum from the driver, the operator must prove that the core term imposing the parking charge was prominently incorporated and met the transparency and prominence standards required by authority. The operator’s reliance on general signage packs and template confirmations is insufficient; contemporaneous evidence from the material date is required.

12. If the operator alleges a failure to pay a modest tariff for a short overstay, it must show a contractual basis for layering a triple-digit sum in addition to the tariff. The Supreme Court’s decision in ParkingEye v Beavis concerned a prominently disclosed deterrent charge in a very different factual and commercial context and does not create a blanket endorsement for all private parking charges.

13. The operator is put to strict proof of its locus standi. It must adduce an unredacted contemporaneous contract with the landowner granting it authority both to enter into parking contracts and to pursue charges and litigation in its own name at the material time. A witness statement or a site agreement with a managing agent of uncertain status is insufficient.

14. Any threat or attempt to add “administration” or “debt recovery” sums is unrecoverable and contrary to the private parking code regime and the general law of damages and penalties. Such add-ons are not “unpaid parking charges” within PoFA and cannot be recovered from a keeper in any event.

15. Service and address issues are noted. PoFA paragraph 9(4) requires the NtK to be “given by” handing to the keeper or sending it to a current service address so that it is delivered within the “relevant period”. Proof of posting or of a consignment number does not establish use of a current address for service. However, this point is secondary because paragraph 9(2)(f) non-compliance is dispositive.

16. In light of the above, the operator has no statutory cause of action against the keeper. POPLA should find that PoFA keeper liability is not established and allow the appeal on that basis alone. If necessary, POPLA should also find that the operator has failed to prove the contractual elements, signage prominence, and standing, such that no liability could arise even against a driver.

17. For the avoidance of doubt, nothing in this appeal should be taken as an admission as to the identity of the driver, nor as acceptance that the operator’s asserted contractual terms were incorporated or complied with. All rights are reserved.

Accordingly, the appeal should be allowed and the charge cancelled.