OK. So the driver has not been identified as long as when you sent that appeal you didn't tick any boxes or drop-down menus that said you were the driver. As PCM have no idea who the driver is, the only way they can transfer liability from the unknown driver to the known Keeper is if they have not fully complied with all the requirements of PoFA. We don't know whether they have or haven't because you haven't shown us the Notice to Keeper (NtK) you received.
However, as PCM are a vexatious firm of ex-clampers who are in the IPC, no appeal is going to be accepted and u are going to have to fight this one all the way to a court claim. That is good, because that is where you will win. Any claim, property defended with our advice will either be discontinued, struck out or won, if it were ever to get as far as a hearing (unlikely).
The no return within a specified period is unenforceable. Even if their Notice to Keeper (NtK) is fully compliant with PoFA, they cannot simply hold the Keeper liable for an "unknown driver’s" liability unless they can prove that it was the same driver who returned. As there is no legal obligation on the Keeper to identify the driver (or drivers) to an unregulated private parking company, they would not have a chance of getting that past a judge.
So, even if the Notice to Keeper (NtK) is fully compliant with the Protection of Freedoms Act 2012 (PoFA), the private parking company cannot simply hold the Keeper liable for an "unknown driver’s" liability unless they can prove that the same driver returned.
Why Not?
PoFA Only Transfers Liability for the Driver's BreachUnder Schedule 4, Paragraph 4(1) of PoFA, the Keeper can only be held liable if:
• A parking charge was incurred by the driver; and
• The Keeper does not identify the driver within the required timeframe.
However, in the case of a "No Return" rule, if a different driver used the vehicle, no breach occurred by the original driver.
No Evidence That the Same Driver ReturnedANPR cameras only capture number plates, not who was driving. If a different driver returned with the vehicle, then the original driver (who was the one bound by the "No Return" restriction) did not breach the contract.
The parking company would have no evidence that the Keeper’s vehicle was driven by the same individual.
Keeper Liability Does Not Create a Blanket Responsibility for All DriversPoFA does not impose liability on the Keeper for any and all drivers who use the vehicle—only for the breach committed by a specific, identifiable driver. If the parking operator cannot prove that the returning driver was the same as the original driver, then no enforceable breach exists.
How Would This Work in Practice?If the Keeper receives a PoFA-compliant NtK for a "No Return" rule, they could respond as follows:
"The vehicle was not driven by the same driver when it returned, and as such, there has been no breach of contract by the original driver."
or...
[/indent]"You have provided no evidence that the same driver returned. As the Registered Keeper, I am under no obligation to identify the driver, and PoFA does not impose liability on the Keeper for an unidentified driver’s actions unless you can prove a specific breach by the same individual."[/indent]
or...
"As you cannot establish that the same driver returned, the parking charge is invalid, and no further correspondence will be entered into."
Conclusion:Even if PoFA applies, the parking company must prove that the same driver returned to enforce the "No Return" rule. Since ANPR cannot identify drivers, their case is fundamentally flawed. If challenged correctly, this type of charge is usually unenforceable against the Keeper.
Unfortunately your initial appeal did not cover all the points. You can always try a secondary appeal to the IAS but they are a kangaroo court with an extremely low successful appeal rate.
If it ever went as far as a court claim, you'd win.
