Please don't imagine that this would ever get as far as a hearing in court. Even in the extremely remote possibility that it ever did, there is no way that it can be decided on the balance of probability that you were the driver. There is established persuasive appellate case law that does not allow any decision that the Keeper must also be the driver.
If you're unsure, just have read of
VCS v Edward (2023) to understand why it will not happen.
(not so) Smart Parking PCNs are never compliant with al the requirements of PoFA 2012 and can never hold the Keeper liable. As there can be no inference or assumption that the Keeper must also be the driver, you are worrying unnecessarily. I also note that the Notice to Keeper (NtK) is addressed to a company. In no known universe can a company be the driver.
The only downside is that (not so) Smart Parking have jumped ship from the BPA to the IPC which means that the only secondary appeals process is with the IAS. No initial appeal or secondary appeal with either company is going to succeed, which means that it will likely go all the way to a court claim. That is a good thing, not something you should be worried about.
As I mentioned, it will never get as far as a hearing. They know that they would be spanked if it ever went in front of a judge. They will rely on the powerless debt recovery letters to try and scare the low-hanging fruit on the gullible tree to pay up out of ignorance and fear. You can safely ignore all debt collector letters as they are powerless to actually do anything.
Eventually, you will receive a Letter of Claim (LoC) from one of their incompetent bulk litigators of choice. We will provide the necessary response. Once the N1SDT Claim Form arrives from the CNBC, again we advise on how to respond and provide the defence. As this progresses, the claim will either be struck out or discontinued.
So, what is your concern? If you follow our advice, you will not be paying a penny to (not so) Smart Parking.
For now, you appeal, ONLY as the Keeper. If the vehicle is registered in the company name, then you are simply acting on behalf of the company.
Easy one to deal with… as long as the identity of the
unknown driver is not revealed. There is no legal obligation on the
known keeper (the company receiving the Notice to Keeper (NtK)) to disclose the identity of the
unknown driver, and no inference or assumptions can be made.
The NtK is not compliant with all the requirements of PoFA which means that, if the
unknown driver is not identified, liability for the charge cannot be transferred from the
unknown driver to the
known company keeper.
Use the following as your appeal. No need to embellish or remove anything from it:
We are the registered keeper of the vehicle and we dispute your 'parking charge'. We deny any liability or contractual agreement and will be making a complaint about your predatory conduct to your client landowner.
As your Notice to Keeper (NtK) does not fully comply with ALL the requirements of PoFA 2012, you are unable to hold the keeper of the vehicle liable for the charge. Partial or even substantial compliance is not sufficient. There will be no admission as to who was driving and no inference or assumptions can be drawn. Smart Parking has relied on contract law allegations of breach against the driver only.
The registered keeper, being a company, cannot be presumed or inferred to have been the driver, nor pursued under any misapplied interpretation of the law of agency. Your NtK can only hold the driver liable. Smart Parking have no hope at should the IAS not uphold an appeal and we would defend any claim should you try and litigate this matter, so you are urged to save us both a complete waste of time and cancel the PCN.
When the appeal is rejected and we will give you a suitable IAS appeal. As I mentioned, this is not likely to succeed either but will force (not so) Smart Parking to pay of their privilege of using the IAS. (The IPC and the IAS both have the same director, which is why the IAS is a kangaroo court).
