Free Traffic Legal Advice

Why didn't the driver enter their VRM details into the terminal?

Then the only argument the Keeper has is to decline to identify the driver and rely on the fact that their Notice to Keeper (NtK) does not fully comply with all the requirements of PoFA 2012 and therefore the Keeper cannot be liable.

You would have to persuade ParkingEye, POPLA and, ultimately, a judge that their NtK does not comply with PoFA paragraph 9(2)(e)(i) for the following reason:

Schedule 4 paragraph 9(2) is binary (“MUST” means all or nothing) and this NtK omits the mandatory invitation to the keeper to pay under 9(2)(e)(i)

Schedule 4 paragraph 9(2) does not say the notice should include certain things. It says: “The notice must — (a)… (b)… (c)… (d)… (e)… (f)… (g)… (h)… (i)…”. “Must” is compulsory. PoFA 9(2) is a statutory gateway to keeper liability: either every required element is present or the gateway never opens. There is no such thing as “partial” or even “substantial compliance” with 9(2). Like pregnancy, it is binary: a notice is either PoFA-compliant or it is not. If one required limb is missing, the operator cannot use PoFA to pursue the keeper. End of.

Here the missing limb is 9(2)(e)(i). That sub-paragraph requires the NtK to invite the keeper to pay the unpaid parking charges. The law is explicit that the invitation must be directed to “the keeper”. It is not enough to tell “the driver” to pay; it must invite “the keeper” to pay if the creditor wants keeper liability.

What this NtK actually does is talk only to “the driver” when demanding payment, and nowhere invites “the keeper” to pay. The demand section of the NtK is framed in driver terms (e.g. language such as “the driver is required to pay within 28 days” / “payment is due from the driver”), and there is no sentence that invites “the keeper” to pay the unpaid parking charges. The word “keeper” (if used at all) appears only in neutral data/disclosure paragraphs or generic definitions, not in any invitation to pay. That omission is precisely what 9(2)(e)(i) forbids.

For the avoidance of doubt, 9(2)(e) contains two limbs: (i) an invitation to the keeper to pay, and (ii) an invitation to either identify and serve the driver and to pass the notice to the driver. Even setting aside 9(2)(e)(ii), the absence of the 9(2)(e)(i) keeper-payment invitation alone is fatal to PoFA compliance. The statute makes keeper liability contingent on strict satisfaction of every “must” in 9(2). Where a notice invites only “the driver” to pay, it fails 9(2)(e)(i), so it is not a PoFA notice. The operator therefore cannot transfer liability from an unidentified driver to the registered keeper. Only the driver could ever be liable; the driver is not identified. The keeper is not liable in law.

Would there be any poiny in also arguing that the time stamps don't reflect the length of parking or that the grace period hasn't been given?

No, the “grace period” is the extra time added to a valid payment for parking.

It is essentially the period of time required for a driver to identify and read the signs that display the parking terms and conditions – plus the time it takes to exit the car park should they decide not to accept the terms and conditions. If the driver decides to park, the consideration period falls away – it is not a period of ‘free parking’ before the parking event starts.

Unlike the grace period, the duration of the consideration period varies depending on the number of spaces in the car park and other factors, including exceptional circumstances. For detailed information, see the table in Annex B (page 35) of the Code of Practice.

The “consideration period” is the one about thinking about the contract and deciding not to enter into it.
See https://www.britishparking.co.uk/write/Documents/AOS/NEW%20Redesigned%20Documents/sectorsingleCodeofPractice.pdf

Consideration and grace periods have nothing to do with this PCN. The vehicle was on the private property in breach of the terms and conditions.

Read the alleged contravention:

Quote

By either not purchasing a valid pay and display ticket, by remaining at the car park for longer than permitted, or by not entering your registration details via the terminal, in accordance with the terms and conditions set out in the signage, the Parking Charge is now payable to ParkingEye Ltd (as the Creditor).

I specifically asked why did the driver not enter their VRM into the terminal and was told "They were not visiting either of the businesses it applies to".

The only defence the Keeper has is to not identify the driver and plead no PoFA liability as para 9(2)(e)(i) has not been complied with.

Ok, thank you. I was a bit concerned as you said this argument would ultimately need to convince a Judge. Does that mean ParkingEye will take me to court?

The bottom line is any appeal based on the defence given will be rejected, Parkingeye won't accept their PCN isn't POFA compliant. An appeal to POPLA is also unlikely to be successful. This is not because either body routinely reject appeals, it is because the defence relies on an interpretation of the legislation that even the experts on here disagree on.
 
After that you will get lots of letters from debt collectors. Eventually you will get a letter of claim. At that point it may go to court. I don't think we know of a case won on this defence, although that's often because cases don't reach court or there are stronger defence arguments.

The driver didn't follow the car park rules and unless you as the keeper name the driver they can  come after you for the PCN. Not paying the invoice is a breach of contract they can successfully pursue you for.

Parkingeye are known to be more litigious tha many private parking companies. The real question is are you feeling lucky and are you prepared to engage with the court process?

The bottom line is any appeal based on the defence given will be rejected, Parkingeye won't accept their PCN isn't POFA compliant. An appeal to POPLA is also unlikely to be successful. This is not because either body routinely reject appeals, it is because the defence relies on an interpretation of the legislation that even the experts on here disagree on.
 
After that you will get lots of letters from debt collectors. Eventually you will get a letter of claim. At that point it may go to court. I don't think we know of a case won on this defence, although that's often because cases don't reach court or there are stronger defence arguments.

The driver didn't follow the car park rules and unless you as the keeper name the driver they can  come after you for the PCN. Not paying the invoice is a breach of contract they can successfully pursue you for.

Parkingeye are known to be more litigious tha many private parking companies. The real question is are you feeling lucky and are you prepared to engage with the court process?

I didn't realise the prospects at POPLA were so bleak. I found some decisions that I thought were helpful, but to be clear you're saying they are not?

POPLA Appeal 6060637496 (2016)
POPLA Appeal 6061796103 (2016)
POPLA Appeal 6160338204 (2017)