GSV is useless as the images are over 6 years old. What do the signs say now?
The question has to be asked... if the driver was unable to make payment, for whatever reason, why did they remain on site? You have to look at the legal points that will be raised should this ever escalate to litigation. A judge is likely to consider whether the driver had the option to leave. If they did, but chose to stay despite being unable to pay, the judge may find that the driver accepted the terms of parking by conduct. In other words, even if the payment system was not working, the driver still made a choice to remain, and that may be enough in the court's view to form a contract. That is the risk.
However, the counterargument is that no contract can be formed if the terms could not be accepted. If the operator failed to provide a working means of payment, then it was impossible for the driver to comply with the core term of the contract. That raises the possibility of a frustrated contract or that no valid agreement was formed at all. It would then fall on the operator to prove that the driver had a reasonable opportunity to accept the terms and pay, but chose not to.
So the key issue a court would need to consider is whether the driver had the ability to accept the contract but didn’t, or whether the operator’s system failed and made acceptance impossible. This distinction is crucial to determining liability.
Another point is that the operator has explicitly chosen to rely on paragraph 8 of Schedule 4 of the Protection of Freedoms Act 2012, as quoted in the Notice to Keeper (NtK). Paragraph 8 applies only where a Notice to Driver (NtD) has been served under paragraph 7. In that case, the operator is prohibited from issuing an NtK before 28 days have elapsed from the date of the alleged contravention.
This NtK is dated just five days after the parking event. Therefore, if an NtD was served, then this Notice to Keeper has been issued too early and is not compliant with the requirements of paragraph 8. As such, the operator cannot rely on PoFA to hold the registered keeper liable.
If no Notice to Driver was served, then paragraph 8 does not apply and the operator has cited the wrong statutory provision. Either way, the operator has failed to comply with the conditions of Schedule 4 and keeper liability does not apply.
For now, you only appeal as the Keeper of the vehicle. Do not point out the actual PoFA failure. Just use the following for the appeal, which will be rejected but you will then be able to ambush them at POPLA with the actual failure:
We are the Registered Keeper of the vehicle and we dispute your 'parking charge'. We deny any liability or contractual agreement and we 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. CSPM has relied on contract law allegations of breach against the driver only.
A company 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. CSPM have no hope at POPLA, so you are urged to save us both a complete waste of time and cancel the PCN.
