Operator failed to comply with PoFA Sch 4 — NO keeper liability AT ALL
PoFA 2012 Sch 4 is the ONLY route for an operator to recover from a registered keeper who was not the driver. If the operator fails ANY of the strict conditions (paras 5, 6, 8, 9, 11, 12), keeper liability is not established and the operator must prove who the driver was — which they almost never can. Common failures: (a) NTK does not contain prescribed warnings/wording (para 9(2)); (b) NTK out of time (para 9(4)); (c) signage not adequate (para 2(3)); (d) NTD given but NTK not given (paras 7-8 sequence); (e) operator not the 'creditor' / no contract with landowner. Each is a complete bar.
Legal basis
PoFA 2012 Sch 4 paras 4, 5, 6, 7, 8, 9, 11, 12; Excel Parking Services Ltd v Smith / various IAS/POPLA appeal decisions
How to identify this in your case
Recipient was not the driver; carefully check NTK content against para 9(2) checklist (10+ specific items required); check timing against para 9(4); check signage adequacy.
Sample appeal wording
Dear [OPERATOR], Re: PCN [REF] — Vehicle [REG] I was not the driver of the vehicle on [DATE] and I do not identify the driver. The only route to keeper liability is Schedule 4 of the Protection of Freedoms Act 2012, which has not been complied with: Para 9(2): the NTK must: (a) specify the vehicle, the relevant land and the period of parking — [DEFICIENT because ...]; (b) inform the keeper that a driver is required to pay the parking charges; (c) describe the parking charges, payments made, and outstanding amount; (d) state that creditor will (if pursued) seek to recover from keeper; (e) invite the keeper to either pay or, if not the driver, identify the driver and pass the notice on; (f) warn the keeper of liability and time limits; (g) specify date sent; (h) state how amount should be paid; (i) identify the creditor and address for service. Para 9(4): the NTK must be given (by post in the ordinary course) no later than 14 days after the period of parking [where no NTD has been given]. Para 5/6: a NTD if given must comply with para 7. Para 11: KADOE request for keeper details must be properly made. Para 12: the regulations on signage compliance. Your NTK fails [LIST defects with paragraph references]. Therefore you have no right to recover from me as keeper. To recover, you must prove I was the driver — which is your burden. I am not obliged to assist your case. The charge is denied. Please confirm cancellation within 14 days. Yours faithfully, [NAME]
Replace [PARKING DATE], [NtK DATE] etc. with your own dates before sending.
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- PoFA 2012 Sch 4 paras 4-12