Whatever you do, the drivers identity must NOT be revealed. There is no legal obligation on the Keeper to identify the driver. As the Keeper, do not inadvertently identify the driver by saying silly things like "I did this or that", only refer to the driver in the third person with "the driver did this or that".
The reason is because there is no legal obligation on the
known keeper (the recipient of the Notice to Keeper (NtK)) to reveal 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, they cannot transfer liability for the charge from the
unknown driver to the
known keeper.
Use the following as your appeal. No need to embellish or remove anything from it:
I am the keeper of the vehicle and I dispute your 'parking charge'. I deny any liability or contractual agreement and I 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 cannot be presumed or inferred to have been the driver, nor pursued under some twisted interpretation of the law of agency. Your NtK can only hold the driver liable. Smart have no hope at IAS, so you are urged to save us both a complete waste of time and cancel the PCN.
The appeal will be rejected but you will then be able to appeal to the IAS. Show us the rejection and we will provide a suitable IAS appeal.
(not so) Smart Parking will never let this go all the way to a court hearing and are relying on you being low-hanging fruit on the gullible tree who will eventually pay up out of ignorance and fear. Follow out advice, and you won't be lying a penny to (not so) Smart Parking.
