Some breaches of POFA could be argued to be technical in nature - omitting the invitation to the keeper to pay is not.....it's a mandatory element and if it's missing then the NTK is non-compliant and liability cannot be transferred from driver to keeper.
@Brenda_R2 unless you can quote an authority or binding precedent on this point, then that
is still an opinion. I'm not saying I agree or disagree, but I'm saying we can't describe it as if it is established fact.
I am the registered keeper.
As your notice is not PoFA compliant I will not be accepting any liability for the outstanding parking charges.
The driver is not known to you and I will not be providing any driver details.
Your options are;
Cancel the notice
OR
Waste further money by providing a POPLA code.
Many thanks,
xxxxxx xxxxxxxx
Some breaches of POFA could be argued to be technical in nature - omitting the invitation to the keeper to pay is not.....it's a mandatory element and if it's missing then the NTK is non-compliant and liability cannot be transferred from driver to keeper.
@Brenda_R2 unless you can quote an authority or binding precedent on this point, then that is still an opinion. I'm not saying I agree or disagree, but I'm saying we can't describe it as if it is established fact.
Apologies.
You’re absolutely right that there’s no binding appellate precedent on this specific POFA omission, and I’m not suggesting otherwise. My point is simply that POFA Schedule 4 sets out mandatory requirements, and paragraph 9(2)(e) is one of them.
If a Notice to Keeper doesn’t include a mandatory element, then by definition it doesn’t comply with POFA, and keeper liability cannot arise. That isn’t a controversial interpretation — it’s the standard way statutory “must include” provisions are read.
So I’m not claiming an established precedent, just applying the statute as written. I’m happy to phrase it as:
“In the absence of 9(2)(e), the NTK does not meet the statutory requirements of POFA, and therefore cannot create keeper liability — although there is no binding authority specifically on this omission.”
I find the wording of Schedule 4 to be 'legally tight' - meaning that it is 100% mechanically objective in nature and therefore, subjectivity cannot be introduced in the normal course of events.
Of course, what could happen, theoretically, is a parking operator may issue an NtK which provides a significant variation in the mandatory wording but still transmits the required information.
Then some subjectivity could creep in.
This is why legal experts advise businesses NOT to vary from prescribed wording when setting out terms and conditions etc.
If you stray too far from mandatory wording then you risk leaving yourself exposed to the accusation of non compliance.
In the case of PoFA, the schedule uses the word "MUST" - this is a legally recognised word meaning 100% compliance and therefore there is little to no chance of a parking operator ever bringing a court case which would turn on the interpretation of "MUST".
Some statutes use the word "SHOULD" as apposed to "MUST" and this does cause legal wrangling as it is accepted that "SHOULD" does not require absolute compliance.
I'm mindful of this not becoming a broader discussion that ceases to become helpful to the OP.
The broad point I was seeking to make is that, in the absence of any precedent, all members must be careful to avoid using wording that suggests, either explicitly or by omission "this argument will work".
@Brenda_R2 &
@InterCity125 may have different experiences to me, as the court hearings they have attended (whether as a defendant or otherwise) will have been in front of different judges than mine. I have found that different judges often take very different views on "technical" arguments.
As long as OPs are aware (and accordingly, those offering advice ensure posters are made aware) that some arguments are more well-trodden than others, and none are devoid of risk, that's fine.
Agree x 1
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