Was the driver aware that they had entered private land that controlled by a private parking company? If not, why not? If yes, why did the driver not read the signs with the terms and conditions of parking?
The only flaw in the Notice to Keeper (NtK) I can find is the following:
PoFA 2012 Paragraph 9(2)(e)(i):
This section requires that the NtK must include an "invitation" to the keeper to either pay the outstanding parking charge or, if they were not the driver, to provide the name and address of the driver at the time of the alleged contravention. This is a critical point for the Notice to Keeper's compliance under PoFA if the parking operator wishes to hold the registered keeper liable.
Assessing the NtK:
Looking at the wording on the NtK:
Wording on the Keeper’s Liability:
The notice states: “If you were not the driver of the vehicle, you should notify us (in writing using the form attached or online) of the name of the driver and a current address for service for the driver.”
It also states: "The Driver of the above vehicle is now liable for a Parking Charge for the above amount."
Invitation to Pay:
The notice requests payment from the keeper if the charge remains unpaid.
However, it does not appear to explicitly "invite" the keeper to pay the charge if the driver does not, nor does it clearly explain that the keeper can pay the charge to settle the matter.
Conclusion:
The wording does not seem to comply with PoFA 2012 paragraph 9(2)(e)(i) because it requests the keeper to provide driver details but does not use the proper language to "invite" the keeper to either provide the driver's information or pay the charge themselves.
The key element missing is the proper "invitation" wording to the keeper, which is crucial under PoFA for establishing liability for the parking charge.
Under Paragraph 9(2)(e) of the Protection of Freedoms Act (PoFA) 2012, the law does not require that the exact word "invite" be used, but it does require that the NtK clearly conveys an "invitation" to the keeper to pay the charge. The intention behind this section is to offer the keeper a choice: either pay the parking charge or provide the name and address of the driver at the time of the alleged contravention.
The key requirements of Paragraph 9(2)(e)(i) are:
Invitation to Pay: The NtK must invite the keeper to pay the parking charge if they do not know the identity of the driver.
Alternative: The NtK must also invite the keeper to provide the name and address of the driver if they were not the driver.
Does the wording need to explicitly say "invite"? No, the word "invite" does not need to be used verbatim, but the wording must clearly communicate that the keeper has the option to pay the charge. The language should be framed as a choice for the keeper, not a demand or a request that implies only the driver is liable, with no option for the keeper to resolve the matter by paying.
Implied invitation vs explicit invitation:
If the wording implies that the keeper can pay the charge but does not clearly offer them the choice, it does not fully satisfy the requirement. To be compliant, the notice should either explicitly "invite" the keeper to pay or clearly communicate that the keeper can resolve the matter by making the payment if they do not provide driver details. If the wording feels like a demand or is unclear, it could be deemed non-compliant.
Example of compliant wording:
"AS the keeper, you are invited to (i) pay the outstanding parking charge or, (ii) if you were not the driver, provide the name and serviceable address of the driver at the time of the alleged contravention."
Example of non-compliant wording:
"We request that you provide the driver's details or pay the outstanding amount." (This might not sufficiently emphasise the invitation to the keeper and instead sounds more like a demand.)
In the case of your NtK:
If the NtK requests information from the keeper but does not clearly invite them to pay the charge in the event they do not know or decline to identify the driver, then it is non-compliant with Paragraph 9(2)(e)(i). A simple request for payment is not be sufficient to meet the legal standard of an "invitation."
Conclusion:
While the word "invite" itself is not mandatory, the wording must clearly communicate that the keeper is offered the choice to pay the parking charge or provide driver details. If the wording in the NtK does not give the keeper this clear option, it could be argued that it does not comply with PoFA and, therefore, keeper liability may not be properly established.
