PPS POPLA Appeal.
You will need to insert your registration mark below.
It is admitted that I am the Registered Keeper of vehicle AB12 CDE and I make this appeal as Keeper.
The parking operator has provided no evidence as to the drivers identity and I have chosen not to identify the driver in a circumstance where the law does not require it.
The Parking Operator has stated that they are therefore pursuing me as the Keeper using the provisions of Protection of Freedoms Act 2012 (POFA).
As you will be aware, POFA allows a Parking Operator to invoke what is known at 'Keeper Liability' in order to move liability for the parking charge from the unknown driver onto the keeper.
However, in order to invoke Keeper Liability the operator is required to send the keeper a PCN (Notice to Keeper) which must meet every condition of POFA Schedule 4 Paragraph 9(2) - each condition contains one or more requirements.
Paragraph 9(2)(f) confirms that, "the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid" - the paragraph therefore confirms that total compliance is needed.
Paragraph 9(1) also states that, "A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met" - once again the legislation confirms that total compliance is needed.
PPS are claiming that their NtK meets all requirements of POFA Schedule 4 Paragraph 9(2).
I am challenging that contention on the grounds that it is extremely obvious that the NtK omits a number of the requirements / conditions of 9(2) and therefore there is absolutely no way that the operator can claim that "all the applicable conditions under this Schedule are met".
In particular, in order to be compliant, the NtK must contain a series of paragraphs of wording which meet the requirements of the Schedule - the contents of these paragraphs constitute what is known as mandatory wording.
It is accepted that the parking operator may meet the requirements of mandatory wording in one of two ways;
1. They may simply quote, word for word, the mandatory wording exactly as it is set out in the statute
Or
2. They may formulate their own wording which replicates the requirements of the mandatory wording.
However, it is legally accepted that if the drafter chooses to formulate their own wording then the alternative wording must meet a number of extremely tight rules;
In the first instance the alternative wording must, on a correct construction, replicate EXACTLY the meaning of the mandatory wording.
Secondly, the alternative wording must replicate EXACTLY the presentation and format which the mandatory wording sets out.
Thirdly, it is legally accepted that the drafting party carries all the risk (when they use an alternative wording) in an instance where it can be demonstrated that the alternative wording either omits or mis-states ANY detail which is present in the statutory wording provided by the legislation.
It should be noted that legal professionals advise that the drafting party should therefore avoid alterations to the prescribed mandatory wording in all circumstances.
I will now demonstrate the non compliance within the PPS Notice to Keeper.
I will then present these as specific appeal points at the end of this document - the operator can then address these appeal points in the manner which POPLA require, one by one.
POFA Schedule 4 Paragraph 9(2)(b) specifies the following;
"The notice must inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full"
9(2)(b) therefore sets out two specific wording requirements.
I will admit that the operators notice does inform me that the driver is required to pay the charges in respect of the specified period of parking.
However, there is no wording (either verbatim or alternative) which specifies that "the parking charges have not been paid in full".
The condition of 9(2)(b) is not therefore met since the second part of the AND logic set out in the condition is not satisfied.
POFA Schedule 4 Paragraph 9(2)(e) specifies the following;
"The notice must state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—
(i)to pay the unpaid parking charges; or
(ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver".
9(2)(e) therefore sets out a number of requirements.
In this instance the legislation demands a sentence of mandatory wording immediately followed by a two limbed invite to the keeper with the two specific requirements of the invite specified by sub-paragraphs 9(2)(e)(i) and 9(2)(e)(ii).
The two limbs of the invite must be separated by the word "or" - in this instance the Boolean operator "or" is used as a conjunctive adverb to separate the two independent limbs of the invite.
Important - the word "or" (when used in this context) is a word with established legal meaning and therefore it cannot be substituted for any alternative wording - meaning the word 'or' must be present to satisfy the requirement of the invite.
In this instance, the operators NtK contains no wording (verbatim or alternative) which states that "the creditor does not know both the name of the driver and a current address for service for the driver".
The legislation specifies that the notice "must state" this sentence.
Furthermore, the NtK contains no two limbed 'invitation to the keeper' in any guise - additionally, the word 'or' does not appear and therefore the mandatory wording requirement can never be met since the word 'or' cannot be replaced since it is a word with defined legal meaning.
Additionally, the operators NtK specifies "If you were not the driver of the vehicle, you should notify us (in writing using the form attached) of the name of the driver and a current address for service for the driver and pass this Notice on to the driver"
The operator's statement does not meet the legal requirement of 9(2)(e)(ii) - the operator's alternative wording does not convey the fact that the keeper is merely 'invited' to nominate another driver - the word 'invite' is used in the legislation to provide the keeper with the opportunity to pay or nominate but the legislation does not make it an obligation to do one or the other - the operator's wording that "if you were not the driver you should notify us" conveys an obligation which is not present in wording of the statute.
POFA Schedule 4 Paragraph 9(2)(f) specifies the following;
"The notice must warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
(i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
(ii)the creditor does not know both the name of the driver and a current address for service for the driver,
the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid) have the right to recover from the keeper so much of that amount as remains unpaid".
In this instance the operator does attempt to recreate the verbatim wording but they omit a section of the required wording.
An examination of the NtK shows that it does not specify that the creditor will "if all the applicable conditions under this Schedule are met" - therefore the condition of 9(2)(f) is not met since this information is never conveyed either verbatim or in the alternative.
Specific appeal points;
Appeal Point One - That the notice does not meet the condition of 9(2)(b) - the second requirement of 9(2)(b) is never set out in the NtK - I therefore invite the operator to demonstrate compliance by either quoting or highlighting, verbatim, the wording on their NtK which specifies that "the parking charges have not been paid in full".
Appeal Point Two - That the notice does not meet the condition of 9(2)(e) - I therefore invite the operator to demonstrate compliance by either quoting or highlighting, verbatim, the sentence from their NtK which states that "the creditor does not know both the name of the driver and a current address for service for the driver".
Appeal Point Three - That the notice does not contain a two limbed invitation to the keeper which 'invites the keeper' to either pay the charges or nominate another driver - the word 'invite' must be used to provide opportunity but not to imply obligation.
Appeal Point Four - That the notice does not warn the keeper that the operator is required to meet "all the applicable conditions under this Schedule".
Many thanks,
xxxxx xxxxxxxxx
