If you follow the advice, you will not be paying a penny to ECP. You can appeal to both the operator and POPLA once the initial appeal is rejected but the most likely way this will pan out is that a county court claim will eventually be issued and as long as you defend it with the template defence we provide, you are guaranteed with greater than 99% certainty that it will either be struck out or discontinued before they are required to pay the £27 trial fee.
As the Notice to Keeper (NtK) is not fully compliant with all the requirements of POFA 2012, they cannot hold the Keeper liable. As there is no legal obligation on the Keeper to identify the driver to an unregulated private parking firm, they would have no way of pursuing the Keeper.
The process is likely to drag on for many months. There is no legal obligation on the
known keeper (the recipient of the Notice to Keeper (NtK)) to reveal the identity of the
unknown driver and no inference or assumptions can be made.
The NtK is not compliant with all the requirements of PoFA which means that if the
unknown driver is not identified, they cannot transfer liability for the charge from the
unknown driver to the
known keeper.
Use the following as your appeal. No need to embellish or remove anything from it:
Easy one to deal with… as long as the unknown drivers identity is not revealed. There is no legal obligation on the known keeper (the recipient of the Notice to Keeper (NtK)) to reveal the identity of the unknown driver and no inference or assumptions can be made.
The NtK is not compliant with all the requirements of PoFA which means that if the unknown driver is not identified, they cannot transfer liability for the charge from the unknown driver to the known keeper.
Use the following as your appeal. No need to embellish or remove anything from it:
Subject: Appeal Against PCN – Keeper Liability Rejected Due to PoFA Non-Compliance
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 Schedule 4 of the Protection of Freedoms Act 2012 (PoFA), 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. ECP 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. ECP have no hope at POPLA, so you are urged to save us both a complete waste of time and cancel the PCN.
Specifically:
• PoFA 9(2)(e)(i) requires that the NtK must invite the keeper to pay the unpaid parking charges. Your notice fails to do so. It merely refers to the driver’s liability and requests the keeper to identify the driver, which is not sufficient. Without a direct invitation to the keeper to pay, the conditions for transferring liability are not met.
• PoFA 9(2)(a) requires the NtK to identify the relevant land. Walsall Waterfront is a non specific location and covers a large area. This ambiguity fails the statutory requirement for clarity and renders the notice invalid for the purpose of keeper liability.
Given these clear statutory failures, you must cancel this charge immediately. If you choose to reject this appeal, I will escalate to POPLA and include these points, along with a complaint to the DVLA regarding your misuse of keeper data without lawful basis under PoFA.
