IT IS INAPPROPRIATE FOR THE COURT TO DRAW AN INFERENCE ON THE BALANCE OF PROBABILITY THAT THE REGISTERED KEEPER WAS DRIVING ON ANY GIVEN OCCASION, THE APPEAL COURT HAS SAID.

We delighted to announce that Mr Jackson Yamba, acting as an Advocate for Lawrence and Associates Solicitors has successfully appealed against a lower court case concerning Vehicle Control Services Limited v Mr Ian Edward.

This decision is a precise response on the way  many parking operators are pursing unlawful claims against registered keeper on the  balance of probabilities that they were drivers.  This has become a common practice when parking operators do not follow the procedure set out in Protection of Freedoms Act 2012 (“POFA”), namely by serving notices in breach of Schedule 4 para 7 and 8 or para 9 of POFA.

 In this landmark decision, HHJ Mark Gargan decided that

 I am persuaded by Mr Yamba that the evidential effect of establishing that the defendant was the relevant keeper, does not produce any inference, rebuttable or otherwise, that the defendant was driving on this particular occasion. Therefore, there is no material inference for the defendant to rebut. As there was nothing for him to rebut, it does not seem to me to be right to draw an adverse inference from his failure to engage in seeking to rebut it. Therefore, I find that the learned district judge fell into error in making the finding she did.

 I am fortified in my decision for three other reasons:

 35.1 the finding I make is consistent with the underlying purpose of Schedule 4 to the Protection of Freedoms Act, namely, that it was necessary to bring in keeper liability pursuant to that legislation, because liability could not be established. If this were not the case car parking companies could have simply have obtained the details of the registered keeper, launched proceedings and waited to see whether or not there was a positive defence put forward, and in the absence of a positive defence they would have succeeded. If the court took such an approach, it would have been imposing a duty on the registered keeper identify the driver, or at least set out a positive case in order to avoid responsibility himself. In my judgment that was not the position before the Protection from Freedoms Act was in force;

 35.2 my decision preserves and respects the important general freedom from being required to give information, absent a legal duty upon you to do so; and

 35.3 it is consistent with the appropriate probability analysis whereby simply because somebody is a registered keeper, it does not mean on balance of probability they were driving on this occasion, because one simply cannot tell. For example, there will be companies who are registered keepers of vehicles where many drivers have the use of the vehicle from time to time. There will be individual employers are the registered keeper but who allow a number of people who may drive their vehicles. There may be situations where husband and wife are each registered keepers of their respective vehicles but for some reason drive the other. Or there may be situations where husband/wife is the registered keeper of both family cars and the registered keeper regularly drives one car and their spouse regularly drives the other. These are all possibilities which show that it is not appropriate to draw an inference that, on balance of probability, the registered keeper was driving on any given occasion.

This judgment presents a persuasive answer to many unlawful claims from parking operators against registered keepers outside  the procedure of POFA.  For many years, parking operators have been misusing the Court process and personal data in pursuing registered keeper as driver with no evidence. 

 This decision is a clear reminder that the registered keeper are not under any legal obligation to nominate drivers or even themselves as drivers.  If a notice to driver or keeper is defective a claim should not  be pursued by parking operators.