Free Traffic Legal Advice

P.S. I will try to attach a copy of the PCN in a reply as I am getting errors uploading..

This thread advises: READ THIS FIRST - Private Parking Charges Forum guide

Once we've got the relevant info we can provide further advice. In the meantime, was the driver a customer of the KFC?

What time did you park? - you've blanked it out, invoice claims the allowed parking time is 0 hours, which would suggest parking outside of the 'allowed' hours of 10am - 11pm.

So your issue was actually parking before 10am.

There is an argument sometimes made that the notice does not comply with the requirements of Schedule 4 of the Protection of Freedoms Act 2012, in order to hold the registered keeper liable for the charge, as it does not 'invite' the keeper to pay the charge, as required by 9(2)(e)(i) of the act. I'm not sure if this argument has been tested, and my personal view on it is that it would be a very brave person who sought to defend a charge solely on this ground.

I wonder if an argument could be made that as parking was forbidden during the times the vehicle was parked, no contract was formed, as no consideration was offered by ParkingEye (the sign isn't making a genuine offer to park for £100 when the store is closed).

The issue with both of the above suggestions is that neither ParkingEye nor POPLA would be likely to accept these arguments, so you would need to potentially be prepared to argue the matter in court.

Another thing to check, just to rule it out, is whether the land is within the boundary of the harbour, and thus potentially subject to byelaws. Given it's north of the motorway, I'd be surprised, but worth ruling out.

Why would you not wish to go to court? Do you feel that the PCN has been issued fairly? If so, you can pay it with a clear conscience.

However, if you feel it was issued unfairly, then simply paying it to take advantage of what is called the “mugs discount” is the equivalent of knowingly paying a scammer and therefore perpetuating the problem.

Having obliterated all the dates and times and not shown us the back of the NtK doesn’t help us to help you but invariably, PE fail to fully comply with PoFA 9(2)(e)(i). I have had extensive and continue to have discussion almost daily with a long serving district judge and he has confirmed that the argument about 9(2)(e)(i) is a perfectly valid defence point and, as is seen in the PE NtKs I have shown him, does not comply and only the driver can be liable.

If using that point, all you have to do is draw the judge to that point. If there are other possible PoFA failures as highlighted by @DWMB2, then you do the same. It is nothing about being “tested in court”. Judges make their decisions based on facts. If you can show a “fact”, then it is so. The only time a “balance of probability” comes into play is when there are no “facts” to prove a point.

If you present your point to a judge, there is nothing to interpret. This is the way to present the 9(2)(e)(i) point to the judge:

PoFA 9(2)(e)(i) failures

Schedule 4, Paragraph 9(2)(e)(i) of PoFA 2012

This paragraph mandates that for a parking operator to hold the vehicle's registered keeper liable for a parking charge, the Notice to Keeper (NtK) must include:

An "Invitation to Pay": The notice must explicitly invite the keeper to pay the unpaid parking charges.

Exact Wording: The wording must clearly convey this invitation and mere implication or indirect suggestions are insufficient. The act requires strict compliance, meaning that any failure to fully incorporate this invitation renders the notice non-compliant with the requirements of PoFA 2012.

Non-Compliance Issue

If the NtK fails to include a clear "invitation to pay", or any synonym of the word "invitation", this omission is a breach of Schedule 4, Paragraph 9(2)(e)(i). Even if the notice suggests that payment is required, without an explicit invitation directed towards the keeper to settle the charge, the notice does not meet the exacting requirements of PoFA 2012.

Significance of Full Compliance

Strict Liability: The law mandates full and exact compliance with the specified wording and content outlined in PoFA 2012.

Partial or even Substantial Compliance Insufficient: Even if the notice largely complies with other requirements, the absence of a clear invitation to the keeper to pay is a significant flaw. The operator cannot rely on partial or even substantial compliance — every element as specified in the legislation must be present and correct.

Consequences for the Operator

Challenge Basis: If the notice is found to lack this crucial element, it can be used as a basis to challenge the parking charge.

Keeper Liability: The operator cannot transfer liability to the keeper, which significantly weaken their case if the notice to the driver or other requirements are also flawed or if the driver is unknown.

Conclusion

In summary, a PCN that does not include an explicit "invitation" for the keeper to pay the charge is not fully compliant with Schedule 4, Paragraph 9(2)(e)(i) of PoFA 2012. Since the law demands strict adherence, any omission, even if minor, invalidates the notice and relieves the keeper of any obligation to pay. This should be raised in any appeal or legal response to the charge.

If the judge was left to interpret, then the advocate or LiP did not present their argument or point clearly enough.

I do not have any precedent to hand because not a single claim i have advised on has ever reached a hearing. Every claim has either been discontinued or struck out before a hearing. It’s a proud achievement and down to valid argument of the points and good advice from a very long serving district judge who I am in daily contact with.

I am still waiting for my first claim where I can actually argue the points as a lay rep on behalf of a defendant. For now, I practice on the judge.