This was yet another case concerning the unreliable ticket machines used by Vehicle Control Systems. Mr A had let his daughters borrow his car and they went to park at Albert Street. VCS claimed they had not purchased a ticket. The daughters thought otherwise. Mr A informed VCS he was not the driver and asked for photographic evidence so he could determine which daughter was the driver. VCS did not provide any. They filed a claim against Mr A through BW Legal.
The hearing
In court BW Legal's representative clearly explained the provisions of the Protection of Freedoms Act and the requirements of paragraph 9(2) needed to establish keeper liability. As these were not met, keeper liability did not apply.
The case then turned to whether Mr A was the driver. As he was not, the claim was dismissed.
The court did not need to consider the matter of the reliability of the ticket machines.
Prankster Note
BW Legal has a strategy of taking keepers to court when they know keeper liability does not apply and when they have been informed the keeper was not the driver.
This does not seem to be working out very well for them.
They quote the case of Elliott v Loake which they claim is case law which states that the keeper is presumed to be the driver. Regardless of the merits of that case, a moments thought would convince any competent legal practitioner that cannot be true. The Prankster has many times driven vehicles where he was not the keeper, and has many times allowed other drivers to use vehicles where he was the keeper. Most other motorists/keepers will have had similar experiences.
As it happens, Elliott v Loake has no merit whatsoever in this application, as in that case there was compelling evidence that the owner was the driver, and the appeal judge stated so in his judgment.
In my view there was ample evidence which justified the magistrates in this case arriving at the conclusion that this man was driving his blue sports car on the night when it collided with the stationary BMW
Legal practitioners like William Hurley and John Davies who do not understand this basic principle should not be practicing law, and should not be allowed to run a parking trade association.
As it happens the use of Elliott v Loake in this way has been debunked in subsequent criminal cases, where it is established that the burden of proof is on the claimant to prove the defendant was the driver, and it is not enough to merely state that the defendant was the registered keeper.
Happy Parking
The Parking Prankster
Despite my many thousands of miles over the years I have never been the registered keeper of a vehicle in my 26 years of driving.
ReplyDeletepark the bus carefully overnight
ReplyDeleteLucky Mr A... at least he had his moment in court and now has them off his back. Since BW Legal/VCS know I was not the driver and their Elliott vs Loake case has been blown out of the water, their end game is to halt proceedings for the next 5 years whilst VCS look for evidence that doesn’t exist. Why are they allowed to park the bus for 5 years in search of evidence they were unable to provide at the IAS appeal? Or should I direct this question to BW Legal/VCS?
ReplyDeleteIs there any more detail on why PoFA didn't apply in this case? Is it merely because the keeper stated he wasn't the driver within 28 days? Thanks
ReplyDeleteVCS made the deliberate choice not to use POFA, and changed their notice to keeper so they did not comply. They can therefore only ever pursue the driver. The exact reason is that the NTK does not contain at least the required information 9.2.e and 9.2.f
Delete