Keeper liability

With the introduction of the Protection of Freedoms Act 2012, a change in law was made to introduce keeper liability for parking charges incurred on private land. Normally in a private parking situation, the driver of the vehicle at the time would be liable for any tickets. However, since this could often not be proven, the POFA legislation makes the keeper liable if certain conditions are met,

Unfortunately there has been a lot of misinformation written about the impact of the Protection of Freedoms Act and people are confused about how it affects them. In response Parking Cowboys has worked with a legal expert to put this article together to provide an interpretation of the law.

So, the question we are answering is as follows: I am the registered keeper and not the driver who parked the car – can a private parking company make me pay a parking charge I have not incurred?

No, if you give that PPC the name and address of the driver of your car who allegedly parked it in a private car park contrary to the car park’s terms and conditions. The PPC must have served a notice on you asking you to provide that information.

If you do not wish to provide the name and address of the driver (and there is no legal obligation to do so), the PPC must have complied with all of the following procedural steps in order to be able to recover the parking charge from you. If you know that the PPC has failed to follow the steps below, then you can choose to decline to give the drivers details with impunity; the choice is yours. If you do choose to decline you should advise the PPC just where it has failed to comply with POFA, but after the end of the period for service of the notice to keeper. If you were to advise the PPC too early then the PPC can re-serve the notice to keeper which is compliant with the Act.

1. The vehicle must not have been stolen at the time that the Parking Charges were incurred. You must provide the PPC with evidence that it had been stolen.
2. From the date you receive a Notice to Keeper no action may be taken against you until at least 28 days have elapsed. (During that time you can either pay the charge, appeal or provide the name and address of the driver)
3. No more may be recovered from you than is specified in the Notice to Keeper (less any payments made towards the unpaid Parking Charges)
4. The creditor (person entitled to recover the parking charge) must have a contractual right to recover the parking charge from the driver and must be unaware of the name and current address of that driver.
5. Either

• The driver received what the Protection of Freedoms Act 2012 calls a Notice to Driver (parking ticket) , at the time the vehicle was stationary in the car park, followed by the Notice to Keeper both of which must comply with the requirements of the Protection of Freedoms Act 2012 (see below); or
• Where a notice to driver was not served e.g because of the use of ANPR, then just a Notice to Keeper has been served on you

6. The Creditor or its agent must have made application to the DVLA for your name and address either

• NOT EARLIER than 28 days after the vehicle was parked (where a Notice to Driver was issued); or
• NOT LATER than 14 days after the vehicle was parked (where a Notice to Driver was not issued)

7. Any requirements of any Regulations made under paragraph 12 of Schedule 4 of the Protection of Freedoms Act 2012 have been met (as to display of notices in the car park). No such Regulations have been made as at February 2013
8. Subject to Schedule 4 of the Protection of Freedoms Act 2012 where the vehicle was hired and the hire agreement includes an obligation on the hirer to pay all parking charges, if the hire company provides evidence of that liability to the Creditor within 28 days of the service of the Notice to Keeper, together with the name and address of the driver, then the hire company shall not be liable for the parking charges

The Parking Ticket (aka Notice to Driver)

Schedule 4 paragraph 7 of the PoFA stipulates the mandatory set of information that must be included on the parking ticket. If all of this information is not present then the Notice to Driver is invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with. Failure to comply with paragraph 6 means that the registered keeper cannot be held to account for the alleged debt of the driver.

• Which car the ticket relates to
• What land the car was parked on
• The period the car was parked
• When and how the parking rules were broken
• What the parking charges are for the infringement of the rules, and of the maximum additional costs they may seek to recover, and the date by which those parking charges should be paid
• Any discounts for paying within 14 days – which should be at least 40% of the full charge under the British Parking Association (BPA) Code of Practice (applies to BPA Members only)
• How to pay and to whom (this must be the person legally entitled to the money – the “Creditor”)
• The date the time the notice was issued
• How appeals and complaints can be dealt with – for parking companies who are members of the B PA.

If the ticket was issued to the driver it may also say that the PPC may ask for details of the registered keeper of the car from the DVLA. Note that the PPC cannot ask for registered keeper details until 28 days have elapsed since the issue of the Parking Ticket i.e. after the period within which the driver is required to pay or appeal the parking charge.

The Notice to Keeper

Schedule 4 paragraphs 8 and 9 of the PoFA stipulates the mandatory information that must be included in the Notice to Keeper. If all of this information is not present then the Notice to Keeper is invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with. Failure to comply with paragraph 6 means that the registered keeper cannot be held to account for the alleged debt of the driver.

• Which car the ticket relates to
• What land the car was parked on
• The period the car was parked
• Advise that the driver is liable for the parking charge and the amount and that it has not been paid in full
• State whether a notice to the driver was given either to the driver or placed on the vehicle and if so to repeat the information in that notice about paying the parking charge and when
• Specify the outstanding amount of the parking charge and of the maximum additional costs they may seek to recover, and of the dispute resolution arrangements
• Invite the registered keeper to pay the outstanding parking charge or, if he was not the driver, to provide the name and address of the driver and to pass a copy of the notice on to that driver
• Identify the “creditor” who is legally entitled to recover the parking charge
• Warn the keeper that if the parking charges remains outstanding after 28 days and the name and address of the driver has not been given, or otherwise known to the person entitled to the parking charge, that “creditor” will be entitled to recover the parking charge from the registered keeper.
• Details of the discount for payment within 14 days, The Discount should be at least 40% of the full charge under the BPA Code of Practice (applies to BPA Members only)
• Date of the notice

Schedule 4 paragraphs 8(5) or 9(5) specify the time limits for serving a Notice to Keeper. If this is not complied with then the registered keeper cannot be held to account for the alleged debt of the driver.

A Notice to Keeper can be served by ordinary post and the Protection of Freedoms Act requires that the Notice, to be valid, must be delivered either

1. (Where a notice to driver (parking ticket) has been served) Not earlier than 28 days after, nor more than 56 days after, the service of that notice to driver; or
2. (Where no notice to driver has been served (e.g ANPR is used)) Not later than 14 days after the vehicle was parked

A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.

The notice to keeper must be accompanied by any evidence prescribed in Regulations made under paragraph 10 of Schedule 4 of the Protection of Freedoms Act 2012. As at February 2013 no such Regulations have been made.

If a Notice to Keeper has been issued and the PPC knows who the driver is then the PPC may have improperly obtained the registered keeper details from the DVLA.