Southampton PCN, POFA non compliant

[b789]

Welcome to the forum @Dom.mcck. Thank you for summarising the case so far.

What you have shown us is the fairly typical stupidity that Britannia can't help exposing. As matters presently stand, Britannia have not accepted the appeal. Their letter is, in substance, a refusal of the appeal, even though they have stated that the case will be placed on hold for 14 days. That temporary hold does not alter the underlying position. It simply means they are pausing further action for a short period, presumably to invite payment, driver nomination, or further correspondence, before moving on.

So, this should be treated as a rejection in substance, but not yet the final procedural end of the operator stage because they have left a short window open. In other words, the appeal has plainly not succeeded, the charge has not been cancelled, and Britannia are maintaining their demand, but they are momentarily holding their hand before the next step.

The important point is that their letter is legally and evidentially weak. They have effectively admitted that they cannot rely on PoFA to pursue the keeper, yet have then attempted to fill that gap with speculation and confused threats. That puts you, the Keeper in a strong position to respond firmly now and, if necessary, to rely on Britannia’s own words in any later POPLA appeal.

Their reference to insurance documents is so misconceived that it rather calls to mind the old saying that 'it is better to remain silent and be thought a fool than to speak and remove all doubt'. An insurance certificate could not prove who was driving on the material date, and Britannia’s decision to rely on such a point only serves to expose how confused their legal reasoning really is.

Use the following as your response to Britannia and then wait for the inevitable final rejection and POPLA code which will be the next step:

Dear Britannia Appeals Department,

I write further to your rejection of my appeal.

Your letter is an extraordinary piece of legal nonsense. It manages, in the same breath, to admit that this Parking Charge “is not POFA compliant” whilst still attempting to suggest that I may somehow be held liable as keeper regardless. That is not a tenable legal position. It is simply an admission that Britannia has failed to satisfy the only statutory route by which a private parking operator may, in prescribed circumstances, recover unpaid parking charges from a vehicle’s keeper.

You have therefore already conceded the central point. If your Notice to Keeper is not compliant with Schedule 4 of the Protection of Freedoms Act 2012, then keeper liability does not arise. It is as simple as that. There is no alternative doctrine of “probably the keeper, therefore probably the driver”. There is no common law shortcut. There is no special Britannia exception. There is only the statute, and by your own admission you have failed to comply with it.

Your assertion that there is “a probability” that the keeper was the driver if the keeper does not nominate anyone else is particularly legally embarrassing. That is not law. It is speculation. It is conjecture dressed up as if it were legal analysis. A private parking company does not get to replace statutory compliance with guesswork merely because it failed to serve a compliant notice in time.

Equally misconceived is your statement that it is “our choice” whether to refer to the keeper liability provisions in Schedule 4 of POFA 2012. Of course it is your choice whether to attempt to rely on PoFA. What is not your choice is the consequence of non-compliance. If you fail to comply with Schedule 4, you do not get keeper liability. You cannot simply opt out of the statutory requirements and then pretend that the statutory benefit survives for your convenience. That is a legally illiterate position.

Your most ridiculous assertion, however, is the threat that if this matter reached court you would ask a judge to review the insurance certificate for the vehicle “to determine who was able to drive the vehicle at the time of the contravention”. That proposition is so fundamentally misconceived that it calls into question whether the author of your letter has the slightest understanding of what an insurance certificate does.

An insurance certificate does not identify who was driving a vehicle on a given occasion. It does not prove who was behind the wheel at any material time. At most, depending on the policy wording, it may identify one or more persons insured to drive that vehicle, or in some cases it may say very little about who else could lawfully have driven it. Even then, that would still prove nothing about who actually drove on the day in question.

Worse still, your suggestion ignores the obvious fact that the ability to drive a vehicle and the fact of having driven it are two entirely different things. A person may be insured to drive a vehicle and not drive it. A person may also, depending on the terms of their own separate policy, have cover to drive other vehicles on a third-party basis. Many drivers are therefore lawfully capable of driving vehicles not specifically insured in their own name, subject always to the terms of the policy in question. Your simplistic notion that inspection of one vehicle’s insurance certificate could somehow identify the driver is therefore hopelessly naive.

In other words, even on its own terms, your threat is nonsense. It would not establish who was driving. It would not cure your admitted failure to comply with Schedule 4. It would not create keeper liability where none exists. It would merely expose, in even starker terms, the lack of any proper evidential basis for your assertions.

The fact that Britannia considered this worth putting in writing is astonishing. It is not a serious legal point. It is not persuasive. It is not even relevant. It is an empty and rather desperate threat apparently designed to intimidate the keeper into payment by invoking a pseudo-forensic exercise that could not prove what you claim it could prove.

You also state that the Parking Charge remains valid and that payment may still be sought under the “old implied-contract-with-the-driver” route prior to PoFA. That statement merely confirms the obvious: absent PoFA compliance, any cause of action you believe exists could only ever be against the driver. It does not assist you in pursuing the keeper. It simply underlines that your attempt to hold me liable as keeper is baseless.

For the avoidance of doubt, I deny any liability in this matter.

• You have expressly admitted that the Notice to Keeper is not compliant with PoFA.
  
• You have therefore admitted that keeper liability does not arise.
  
• You have provided no evidence whatsoever as to the identity of the driver.
  
• Your rejection instead relies on speculation, misunderstanding of the statutory scheme, and an especially misconceived threat regarding insurance documents that could not establish the fact you suggest.
  

Your letter is not a reasoned rejection. It is a confused and legally incoherent attempt to bluff the keeper into payment despite your admitted inability to invoke the only statutory mechanism capable of fixing keeper liability.

Unless you now confirm cancellation, I will rely on your rejection letter in full in any further appeal or complaint as evidence that Britannia Parking is knowingly pursuing keepers despite admitted non-compliance with Schedule 4 and is doing so by advancing legally illiterate and evidentially absurd assertions.

Yours faithfully,

Let us know their response when it arrives.