Keeper Liability and POFA 2012 explained

What is keeper liability

Keeper liability refers to the lawful right of the car park operator to hold the registered keeper liable for a parking charge where the driver that incurred the notice cannot be identified.  This lawful right was introduced in 2012 in England and Wales as part of the Protection of Freedoms Act 2012 (known as POFA).  However, the right to make the keeper liable only applies if certain strict conditions, as defined under the Act, are met.

Firstly, let’s examine the scenario where all the strict conditions of POFA have not been met. In this scenario, the parking company operator has no legal right to enforce the charge against the keeper, and also has no legal right to require the keeper to name the driver.  And so in this scenario, the Operator only has the option to chase the driver for payment.   In practice, however, the Operator can only enforce the charge against the driver if they can find out the driver’s name and address. But provided that the keeper does not name the driver, then the parking company operator is left without a party to pursue.  The operator cannot legally purse the keeper for the charge, and has no way of finding out who the driver was.

The second scenario is where the strict conditions of POFA have been successfully met.  In this scenario, the car park operator can legally pursue the registered keeper for payment – irrespective of whether the keeper was the driver.  This doesn’t mean (as some car park companies might have you believe) that the keeper in this scenario must automatically pay the charge.  Rather, it simply means that the parking company can direct its claims for the parking charge to the keeper.  The keeper has the right, as the driver would have had, to appeal the charge and also, if necessary, to defend against the charge in court if the keeper so desires.

There are also a couple of special cases such as hire vehicles, that are explained in section 3 towards the bottom of this page.

The strict conditions that the car park operator must follow to enforce the charge against the keeper are described in the two sections below:

1.  For windscreen tickets

2. For ANPR tickets

If the car park operator does not meet all these strict conditions in the appropriate section, then the keeper cannot be held liable,  cannot be pursued, and cannot be forced to name the driver.

1. For windscreen tickets

The following are the conditions that must all be met for Keeper Liability to apply:

1. The ticket was issued to a car in a car park in England or Wales  (note that keeper liability does not apply in Scotland or Northern Ireland in any circumstances).

2. The car park was on “relevant land”.  Relevant land is defined as private land and specifically excludes the following land:
(a) a public highway
(b) a parking place which is provided or controlled by a traffic authority
(c) any other land where parking of a vehicle is subject to statutory control (such as airports and railway stations which are covered by byelaws).

3. There is some alleged liability of the driver to the Operator in respect to unpaid parking charges.

4. The vehicle was not stolen on the date of the parking event

5. The maximum sum that may be recovered from the keeper under keeper liability is the amount specified on the notice to keeper.

6. The creditor does not know both the name and current address of the driver.

7. A notice to driver has been given that contains the following mandatory information:
- 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 early payment.
- How to pay and to whom (this must be the person legally entitled to the money – the “Creditor”)
- The date and the time the notice was issued
- How appeals and complaints can be dealt with.

8. A notice to keeper must be served not ealier than 28 days after, and not more than 56 days after, the service of that notice to driver.

9. A notice to keeper has been given that contains the following mandatory information:
- 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,
- Date of the notice

2. For ANPR tickets

The following are the Conditions that must all be met for Keeper Liability to Apply:

1. The ticket was issued to a car in a car park in England or Wales  (note that keeper liability does not apply in Scotland or Northern Ireland in any circumstances).

2. The car park was on “relevant land”.  Relevant land is defined as private land and specifically excludes the following land:
(a) a public highway
(b) a parking place which is provided or controlled by a traffic authority
(c ) any other land where parking of a vehicle is subject to statutory control (such as airports and railway stations which are covered by byelaws).

3. There is some alleged liablity of the driver to the Operator in respect to unpaid parking charges.

4. The vehicle was not stolen on the date of the parking event

5. The maximum sum that may be recovered from the keeper under keeper liablity is the amount specified on the notice to keeper

6. The creditor does not know both the name and current address of the driver.

7. A notice to keeper must be served not later than 14 days after the vehicle was parked

8. A notice to keeper has been given that contains the following mandatory information:
- 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,
- Date of the notice

3. Special cases

Case 1. We have a scenario where keeper liability has been firmly established, the Keeper has refused to nominate the driver, and the Operator has begun pursuing the Keeper for payment.  Now what happens if the keeper decides to belatedly nominate the driver?  In this scenario the keeper ceases to be liable for the charge and the Operator must now pursue the driver instead, provided that the Operator has not yet filed a County Court claim against the Keeper.   In the situation where the operator has already filed a County Court claim against the Keeper, it is too late for the keeper to nominate the driver, and the keeper must either pay the claim, or defend it in court.

Case 2. We  have a scenario where a rental car has incurred a parking charge and the registered keeper is therefore the car hire company.   If keeper liability can be established under POFA, then the car hire company is liable for the parking charge.  However, the hire care company ceases to be liable if, within the period of 28 days starting from when the notice to keeper was given, the hire care company provides the parking company with:
a) a statement signed by the car hire firm stating that, at the material time, the vehicle was hired to a named person under a hire agreement; and
b) a copy of the hire agreement; and
c) a copy of a statement of liability signed by the hirer under that hire agreement.  The statement of liability must:
- contain a statement by the hirer that the hirer acknowledges responsibility for any parking charges that may be incurred while the car is hired to the hirer;
- include an address given by the hirer (whether a residential, business or other address) as one at which documents may be given to the hirer;

If the car hire company can provide the above documents, then the hire company ceases to be liable for the charge, and the car park company must now chase the hirer named in the documents.