Scotland — Cross-border: English keeper of vehicle in Scotland

Where an English-domiciled vehicle keeper receives a parking charge for a contravention in Scotland (private or council), Scottish substantive law applies (Rome I Regulation art 4; CJJA 1982 Sch 8). For a private parking charge: even though POFA 2012 applies as a matter of English law to the English keeper, the alleged contract was performed in Scotland and Scottish law governs whether a contract was formed. POFA cannot 'reach into' a Scottish-law contract. Combined with the fact that any operator action in the Sheriff Court must apply Scottish substantive law, an English keeper of a vehicle parked in Scotland enjoys most of the same protections as a Scottish keeper. For a council PCN: the SPAS process applies; English keeper appeals to SPAS, not POPLA, and Scottish procedural rules govern.

Legal basis

Rome I Regulation art 4 (applicable law to contractual obligations); CJJA 1982 Sch 8 (intra-UK jurisdiction); POFA 2012 s.115(2) (extent E&W); ParkingEye v Beavis [2015] UKSC 67

How to identify this in your case

You live in England but received a parking charge for an event in Scotland. Operator is treating you as if POFA applies.

Sample appeal wording

Dear [OPERATOR], Re: PCN [PCN_NUMBER] I am domiciled in [ENGLISH ADDRESS] but the alleged parking event occurred in Scotland at [SCOTTISH_LOCATION]. Under Article 4 of the Rome I Regulation the applicable law to any contractual obligation is the law of the country where the parking 'service' was performed — i.e., Scotland. Scottish substantive law therefore governs whether any contract was formed and whether keeper liability can be imposed. In Scotland, POFA 2012 keeper liability has no application (s.115(2) POFA 2012 — extent England and Wales only) and the equivalent Scottish provision (Part 8 Transport (Scotland) Act 2019) has never been commenced. Accordingly there is no Scottish-law basis on which to pursue me as keeper. You can only pursue the actual driver, and only if you can prove (not assume) who that was. If proceedings are raised in the English County Court / MCOL, I will challenge jurisdiction under CJJA 1982 Sch 8 r.1 (defender domiciled in England but cause of action wholly Scottish — proper forum is Scotland for a Scottish-law claim, or England under English law without keeper liability — operator gets no benefit either way). Please withdraw the demand. Yours faithfully, [NAME]

Replace [PARKING DATE], [NtK DATE] etc. with your own dates before sending.

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Sources

Rome I Regulation
CJJA 1982
POFA 2012 s.115(2)