Yesterday, 02:52 PM
@Tezzy, this rejection is exactly the sort of nonsense we expected from (not so) Smart Parking. It does not alter your position and it does not create any liability on your part as the Registered Keeper (RK).
The most important sentence in the rejection is this admission:
That admission is fatal to any claim against you as Keeper.
The alleged parking contract could only have been entered into by the driver. The driver therefore remains the only person potentially liable for any alleged breach of that contract unless liability has been lawfully transferred to the Keeper under Schedule 4 of the Protection of Freedoms Act 2012 (PoFA).
PoFA is the only statutory mechanism by which a private parking operator can transfer an unidentified driver's alleged liability to the (RK). It contains detailed and mandatory conditions which the operator must satisfy before that transfer can occur.
Here, (not so) Smart Parking has expressly admitted that Schedule 4 Keeper liability does not apply. In any event, its Notice to Keeper (NtK) was not even issued until 16 days after the alleged event and was not deemed delivered until 18 days afterwards, well outside the 14-day relevant period required for an ANPR postal notice.
Accordingly:
The invented "keeper was probably the driver”" argument
Having admitted that it cannot use PoFA, (not so) Smart Parking has attempted to manufacture an alternative form of Keeper liability. It says that because you are the Keeper and have declined to identify the driver, it may "reasonably infer" that you were driving.
That is a mendacious sham.
There is no legal presumption that a vehicle's RK was its driver. Nor is an RK legally required to identify the driver to an unregulated private parking company.
Your refusal to provide that information does not:
The DVLA record proves only that you were the registered keeper. ANPR photographs showing the vehicle entering and leaving the car park prove only that the vehicle was present. Neither identifies the person driving it.
If a parking operator could avoid PoFA merely by saying, "The keeper has not named the driver, so we will treat the keeper as the driver", PoFA would be pointless. Parliament would not have needed to create a detailed statutory scheme governing the transfer of liability from an unknown driver to a known Keeper.
(not so) Smart Parking cannot obtain through an invented inference the precise transfer of liability that PoFA does not permit.
Why Elliott v Loake does not help them
(not so) Smart Parking's reliance upon Elliott v Loake [1982] Crim LR 36 is utterly ridiculous.
That case was not about private parking, Keeper liability or an alleged breach of contract. It was a criminal road-traffic prosecution arising from a collision after which the vehicle left the scene.
The prosecution possessed substantive evidence connecting Mr Elliott and his vehicle with the collision. That included forensic evidence concerning damage to the vehicle, evidence about his possession and control of it, and findings that the account he gave was untrue. The court reached its decision from the particular evidence in that criminal case.
The court did not decide that:
None of the evidence present in Elliott v Loake exists here. There has been no collision, police investigation, forensic examination, demonstrably false account or other evidence identifying you as the driver. There is only a Registered Keeper who has exercised the perfectly lawful right not to identify the driver.
The former Lead Adjudicator of POPLA, barrister Henry Greenslade, explained the position unequivocally:
He also confirmed that a Keeper's failure to name the driver does not mean that the Keeper has accepted being the driver.
Consequently, Elliott v Loake has absolutely no relevance to this parking charge. (not so) Smart Parking is citing an unrelated criminal case and pretending that it established a rule which it did not establish.
What happens next
The next stage will be an appeal to the IAS, submitted within 28 days of the rejection. We will prepare that appeal separately. You must continue to act only as the Registered Keeper and must not identify the driver.
The IAS may allow the appeal. However, it is more likely to accept (not so) Smart Parking's contrived argument and reject it. The IAS is a kangaroo court and is about as corrupt as you can imagine.
An IAS rejection would not make the charge lawful, transfer liability to you or bind you. An IAS decision is only binding on the operator if the motorist wins but is not binding on the motorist if the operator wins.
If the IAS rejects the appeal, the usual sequence is likely to be:
Debt collectors cannot determine liability, obtain a judgment, send bailiffs or affect your credit record. Their letters are simply powerless demands for payment designed to intimidate the low-hanging fruit on the gullible tree into paying out of ignorance and fear. Just ignore them. Absolutely nothing can or will happen because of them.
A Letter of Claim or an actual county court claim must not be ignored, but we would deal with either if one arrived.
Why this will not reach a claim hearing
(not so) Smart Parking may conceivably issue a speculative claim because issuing claims is relatively cheap and many recipients just panic and pay. Issuing a claim does not mean that (not so) Smart Parking possesses a legally sustainable case or intends to place it before a judge.
To reach a hearing against you, (not so) Smart Parking would have to maintain that you were personally the driver despite having no evidence identifying you as such. Its entire case would rest upon:
That does not establish that you entered the alleged parking contract. Nor does it transfer the unknown driver's alleged liability to you.
Once a proper defence makes those defects explicit, (not so) Smart Parking and its solicitors would face the prospect of appearing before a judge and attempting to explain:
They will have no satisfactory answers.
The commercial purpose of pursuing the charge is to frighten you into paying before judicial scrutiny becomes unavoidable. Once it becomes clear that you understand the distinction between driver and Keeper liability and will defend any claim properly, the commercial value of continuing disappears.
For that reason, although threatening debt recovery letters, a Letter of Claim or even a speculative county court claim are possible, this is not realistically going to reach a contested hearing. The highly likely endpoint, if (not so) Smart Parking persists that far, is discontinuance after a defence has been filed.
For now, there is nothing to worry about and nothing to pay. The immediate next step is the IAS appeal, which we will deal with separately.
The most important sentence in the rejection is this admission:
Quote:"The provisions of Protection of Freedoms Act 2012 Schedule 4 relating to keeper liability do not apply at this location."
That admission is fatal to any claim against you as Keeper.
The alleged parking contract could only have been entered into by the driver. The driver therefore remains the only person potentially liable for any alleged breach of that contract unless liability has been lawfully transferred to the Keeper under Schedule 4 of the Protection of Freedoms Act 2012 (PoFA).
PoFA is the only statutory mechanism by which a private parking operator can transfer an unidentified driver's alleged liability to the (RK). It contains detailed and mandatory conditions which the operator must satisfy before that transfer can occur.
Here, (not so) Smart Parking has expressly admitted that Schedule 4 Keeper liability does not apply. In any event, its Notice to Keeper (NtK) was not even issued until 16 days after the alleged event and was not deemed delivered until 18 days afterwards, well outside the 14-day relevant period required for an ANPR postal notice.
Accordingly:
- the driver has not been identified;
- you have made no admission that you were driving;
- (not so) Smart Parking cannot rely upon PoFA;
- the driver's alleged liability has not transferred to you; and
- you have no liability merely because you are the registered keeper.
- The invented "keeper was probably the driver" argument
The invented "keeper was probably the driver”" argument
Having admitted that it cannot use PoFA, (not so) Smart Parking has attempted to manufacture an alternative form of Keeper liability. It says that because you are the Keeper and have declined to identify the driver, it may "reasonably infer" that you were driving.
That is a mendacious sham.
There is no legal presumption that a vehicle's RK was its driver. Nor is an RK legally required to identify the driver to an unregulated private parking company.
Your refusal to provide that information does not:
- identify you as the driver;
- make you responsible for the driver;
- make you a party to the driver's alleged contract;
- transfer the driver's alleged liability to you; or
- require you to prove that somebody else was driving.
The DVLA record proves only that you were the registered keeper. ANPR photographs showing the vehicle entering and leaving the car park prove only that the vehicle was present. Neither identifies the person driving it.
If a parking operator could avoid PoFA merely by saying, "The keeper has not named the driver, so we will treat the keeper as the driver", PoFA would be pointless. Parliament would not have needed to create a detailed statutory scheme governing the transfer of liability from an unknown driver to a known Keeper.
(not so) Smart Parking cannot obtain through an invented inference the precise transfer of liability that PoFA does not permit.
Why Elliott v Loake does not help them
(not so) Smart Parking's reliance upon Elliott v Loake [1982] Crim LR 36 is utterly ridiculous.
That case was not about private parking, Keeper liability or an alleged breach of contract. It was a criminal road-traffic prosecution arising from a collision after which the vehicle left the scene.
The prosecution possessed substantive evidence connecting Mr Elliott and his vehicle with the collision. That included forensic evidence concerning damage to the vehicle, evidence about his possession and control of it, and findings that the account he gave was untrue. The court reached its decision from the particular evidence in that criminal case.
The court did not decide that:
- every registered keeper is presumed to have been driving;
- a keeper's silence proves that the keeper was driving;
- a keeper must identify somebody else to avoid liability; or
- an unidentified driver's contractual liability automatically passes to the keeper.
None of the evidence present in Elliott v Loake exists here. There has been no collision, police investigation, forensic examination, demonstrably false account or other evidence identifying you as the driver. There is only a Registered Keeper who has exercised the perfectly lawful right not to identify the driver.
The former Lead Adjudicator of POPLA, barrister Henry Greenslade, explained the position unequivocally:
Quote:"There is no 'reasonable presumption' in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort."
He also confirmed that a Keeper's failure to name the driver does not mean that the Keeper has accepted being the driver.
Consequently, Elliott v Loake has absolutely no relevance to this parking charge. (not so) Smart Parking is citing an unrelated criminal case and pretending that it established a rule which it did not establish.
What happens next
The next stage will be an appeal to the IAS, submitted within 28 days of the rejection. We will prepare that appeal separately. You must continue to act only as the Registered Keeper and must not identify the driver.
The IAS may allow the appeal. However, it is more likely to accept (not so) Smart Parking's contrived argument and reject it. The IAS is a kangaroo court and is about as corrupt as you can imagine.
An IAS rejection would not make the charge lawful, transfer liability to you or bind you. An IAS decision is only binding on the operator if the motorist wins but is not binding on the motorist if the operator wins.
If the IAS rejects the appeal, the usual sequence is likely to be:
- (not so) Smart Parking continues demanding payment.
- Powerless debt collectors send increasingly threatening debt recovery letters which can be safely ignored.
- The amount is artificially increased.
- A bulk-litigation solicitor may send a Letter of Claim (LoC).
- A county court claim might be issued as a further means of applying pressure.
- If properly defended, the claim is overwhelmingly likely to be discontinued before any hearing.
Debt collectors cannot determine liability, obtain a judgment, send bailiffs or affect your credit record. Their letters are simply powerless demands for payment designed to intimidate the low-hanging fruit on the gullible tree into paying out of ignorance and fear. Just ignore them. Absolutely nothing can or will happen because of them.
A Letter of Claim or an actual county court claim must not be ignored, but we would deal with either if one arrived.
Why this will not reach a claim hearing
(not so) Smart Parking may conceivably issue a speculative claim because issuing claims is relatively cheap and many recipients just panic and pay. Issuing a claim does not mean that (not so) Smart Parking possesses a legally sustainable case or intends to place it before a judge.
To reach a hearing against you, (not so) Smart Parking would have to maintain that you were personally the driver despite having no evidence identifying you as such. Its entire case would rest upon:
- your status as registered keeper;
- your lawful refusal to identify the driver; and
- its misuse of Elliott v Loake.
That does not establish that you entered the alleged parking contract. Nor does it transfer the unknown driver's alleged liability to you.
Once a proper defence makes those defects explicit, (not so) Smart Parking and its solicitors would face the prospect of appearing before a judge and attempting to explain:
- why PoFA does not apply;
- why the driver remains unidentified;
- what actual evidence identifies you as the driver;
- how keeper status supposedly makes you a contracting party;
- why your refusal to name the driver supposedly creates liability; and
- why an unrelated criminal collision case is said to establish a presumption that does not exist.
They will have no satisfactory answers.
The commercial purpose of pursuing the charge is to frighten you into paying before judicial scrutiny becomes unavoidable. Once it becomes clear that you understand the distinction between driver and Keeper liability and will defend any claim properly, the commercial value of continuing disappears.
For that reason, although threatening debt recovery letters, a Letter of Claim or even a speculative county court claim are possible, this is not realistically going to reach a contested hearing. The highly likely endpoint, if (not so) Smart Parking persists that far, is discontinuance after a defence has been filed.
For now, there is nothing to worry about and nothing to pay. The immediate next step is the IAS appeal, which we will deal with separately.
Never argue with stupid people. They will drag you down to their level and then beat you with experience. - Mark Twain
