Ticket when not driver

[Bernie_the_Bolt]

OP states that the owner is a vehicle manufacturer nowhere does he state that it is a vehicle hire firm.

 

OP also states (as new information) that he has a letter stating who the owner is and nowhere does he indicate that there is any assertion that the owner believes that they are exempt from the penalty under the exemption in question.

 

Where you state:

 

(3) Where the enforcement authority accepts that a ground specified in regulation 4(4) applies or that there are such compelling reasons it shall—

 

(a) cancel the notice to owner

 

 

- The owner is therefore absolved from liability. The local authority then issues a new Notice to Owner to the keeper, which it has done to the OP here. That's what is meant by "transfer of liability".

 

This is where I believe you are mistaken. The reasons for this are:

 

An NTO does not create a liability it is merely an allegation or assertion of liability. When there is a defence to an NTO that is accepted the NTO must be cancelled. There is therefore no liability under that NTO and a fresh one has to be issued where the law permits it. This is not a transfer of liability as none exists (under the original NTO).

 

The two key methods of a transfer of liability in English Law are Assignment and Novation. Neither of these are happening here.

[Jamberson]

OP states that the owner is a vehicle manufacturer nowhere does he state that it is a vehicle hire firm.

 

This is is an interesting point because you are correct that the regulation does specifically say the recipient can transfer if they are a vehicle hire firm. Perhaps technically they are not, and so the local authority ought not to have transfered it. Whether it will hold sway legally I don't know, because there is nonetheless a hire contract of some sort, so it might hinge on what is and is not considered to be a hire firm.

 

An NTO does not create a liability it is merely an allegation or assertion of liability. When there is a defence to an NTO that is accepted the NTO must be cancelled. There is therefore no liability under that NTO and a fresh one has to be issued where the law permits it. This is not a transfer of liability as none exists (under the original NTO).

 

The two key methods of a transfer of liability in English Law are Assignment and Novation. Neither of these are happening here.

 

OK, but if you substitute "assertion of liability" for "liability" in everything I said, the substance of what I said remains unchanged.

 

I do still believe that if the OP contests purely on the issue of legal ownership he is almost certain to fail. Your point about the nature of the owner's business may offer a tenuous route out of this - it's not a situation I have come across before.

[Bernie_the_Bolt]

I do still believe that if the OP contests purely on the issue of legal ownership he is almost certain to fail. Your point about the nature of the owner's business may offer a tenuous route out of this - it's not a situation I have come across before.

 

So help me understand this.

 

We know that it is the owner who is liable for PCNs other than (in this context) where there are two tests that are satisfied: 1) That the owner is a vehicle-hire firm and 2) there is a signed statement of liability.

 

I do not see here that either apply.

 

I have to confess that I am unclear whether a car under hire-purchase would meet the requirement of a vehicle-hire firm but that I suspect is irrelevant here as this car will almost certainly not be on HP. It may be on a lease agreement but that does not make it a vehicle-hire agreement and hence why lease companies incorporate clauses in their lease agreements to pay and charge their customer the costs.

 

The OP has a letter stating who the owner is and I see no reason why this should not be a slam-dunk win. I genuinely see no issue here and my guess is that the LA probably made a mistake in cancelling the original NTO!

[lamma]

I agree with Bernie. liability does not arise until the end of the legal process, if at all. These are just Notices, they are not bills. "I was never the owner of the vehicle" is a tick box isn't it ?

[saitken]

Thanks for all this. I am finding it a fascinating discussion.

 

I can confirm that the company I lease the vehicle from is NOT a hire company. It is a car manufacturer. Because I work for a separate car manufacturer, I get a lease car as a benefit (for business and personal use) and make a nominal monthly payment for the car. The scheme attacts no tax liability (don't ask me how they managed to convince the tax man on that!). The company leases cars to my company since it is affliated. This is not a hire agreement not is there any HP payment.

 

In the LA's submission to the Adjudicator, they state that 'while the council acknowledges that the appellant has advised that they were not the driver...legislation states the 'owner' means the person by whom the vehicle is kept...which is presumed (unless the contrary is proved) to be the person in whose name the vehicle is registered. The DVLA have confirmed the registered keeper's details on 28/8/2009 as myself, c/o XXXX Motor Co Ltd, Essex. As the contrary couldn't be proved under the grounds as stated in the NTO, as the owner could not provide details of the driver, the Council maintains that the registered keep/appellant remains liable'.

 

But as I say, the company who lease me the car, the XXXX Motor Co, have just written to me when I asked this specific questions confirming that 'The XXXX Motor Co' is registered keeper and also the owner. So I am at a loss as to why the DVLA has said that I am the registered keeper at all. And presumably the DVLA would simply be using information supplied to them by the XXXX Motor Co. So someone is telling fibs here. As Bernie suggest in post#22, 'This comes direct from the owner themselves and therefore should be irrefutable.'

 

Surely if the LA's submission is ONLY based on me being liable since I am the 'registered keeper' and I have a written statement to the contrary, this must be my clear defence and should be a slam-dunk win?

 

Would it be worth my writing to the DVLA to confirm who the registered keeper is? I am reluctant to do this and I am not sure if I am entitled to be given this information anyway when I am not the keeper or owner. And surely the owner's statement on this information trumps anything the LA claim they have from the DVLA?

 

But it does seems strange to me that there is a discrepancy on the keeper details and the case does seem to hinge on this fact.

 

So I am thinking that either writing to the Adjudicator with this information - as per Bernie's post#22 - or keeping it in my back pocket and producing it on the day as my defence, is my best bet. Presumably there is no advantage of one of these options over the other?

[Bernie_the_Bolt]

So I am thinking that either writing to the Adjudicator with this information - as per Bernie's post#22 - or keeping it in my back pocket and producing it on the day as my defence, is my best bet. Presumably there is no advantage of one of these options over the other?

 

Effectively this is new evidence and you are allowed to send this to the Adjudicator after your appeal has gone in but before it has been heard. But you sould not expect to be allowed to ambush the LA. Send it to the adjudicator now, they will forward it to the LA and give them a chance to look at it and respond. After all, if on the day of the hearing the LA presented evidence that you hadn't seen before you would request that it not be admitted (I would!) so why shouldn't the same apply to you?

[lamma]

"legislation states the 'owner' means the person by whom the vehicle is kep" Rubbish from the LA ! thats the keeper, the owner, the registered keeper and the keeper can be three diferent (legal) persons. as it seems to be the case here. even oif yuou are the RK it does not automatically make you the owner - tyhsat why they call it a Notice to owner. I would get the morons at the LA to quote the law that makes the Keeper the Owner."the person by whom the vehicle is kept" is not the same as the RK and the RK is only assumed to be the Owner - and it can be rebutted. don't know how many more ways there are of saying it. LA cobblers once again. this Owner/Keeper/Registered Keeper thing isn't hard at all. and the LA gets paid to know this stuff. Pathetic effort from them. Slam it back in their faces. make sure you use these terms correctly in your args, don't say keeper when mean registered keeper. RK is on the V5, Keeper just has the keys and drives/parks the car. Also I agree with Bernie's last post - don't wait, get it in now. lay it nice and simply as the LA is obviously quite hard of thinking.

Edited March 6, 2010 by lamma

[green_and_mean]

I can confirm that the company I lease the vehicle from is NOT a hire company. It is a car manufacturer. Because I work for a separate car manufacturer, I get a lease car as a benefit (for business and personal use) and make a nominal monthly payment for the car.

 

“vehicle-hire firm” means any person(s) engaged in hiring vehicles in the course of a business, since you pay money and in return have the use of a car I canot see how it cannot be a hire agreement.

[saitken]

Hi Lamma!

 

I am interested in your view that the LA is talking legal rubbish . Can you suggest a template letter I can send to them covering this or an ammendment to the letter as suggested by Bernie that I was intending to send? i.e.

 

Dear Adjudicator,

 

Re Case reference No: [#] (insert from letter they sent you)

 

Please find enclosed additional evidence relating to this appeal against a pcn. This confirms that I am not the owner of the vehicle and the identity of who the owner is. This comes direct from the owner themselves and therefore should be irrefutable.

 

This in support of my appeal against this pcn in the Statutory ground that "I never was the owner of the vehicle".

 

Yours faithfully.

[saitken]

On the basis that the LA have (1) supplied incorrect information to the Tribunal Adjudicator as to both the Registered Keeper and the owner, and (2) stated incorrect law in their submission to the Adjudicator, should I make a separate complaint to the Information Commissioner and perhaps the Local Government Ombudsman on this? If the LA are providing false information in this way in order to support their case, is this not a much more serious issue than a simple parking ticket? If I did this at my job I would be disciplined up to and including dismissal. I feel compelled to escalate this so as to ensure that they don't try it on other members of the public in my area. It's pretty disgraceful behaviour as far as I can see now.

 

Any thoughts?

[Bernie_the_Bolt]

"legislation states the 'owner' means the person by whom the vehicle is kep"

 

Don't quite know why you say that it is rubbish, this is the definition from the statute.

 

“owner”, in relation to a vehicle, means the person by whom the vehicle is kept, which in the case of a vehicle registered under the Vehicle Excise and Registration Act 1994 (c. 22) is presumed (unless the contrary is proved) to be the person in whose name the vehicle is registered;

[Bernie_the_Bolt]

“vehicle-hire firm” means any person(s) engaged in hiring vehicles in the course of a business, since you pay money and in return have the use of a car I canot see how it cannot be a hire agreement.

 

So why does this not apply to car lease companies? Perhaps the reason is that the following would have to apply but cannot be evidenced:

 

Schedule 2 of the Road Traffic (Owner Liability) Regulations 2000

Particulars required in a Hiring Agreement to comply with Section 66 of the Road Traffic Offenders Act 1988

A. Particulars of person signing statement of liability

1.Full Name

2.Date of birth

3.Permanent Address

4.Address at time of hiring (if different from 3 above and stay is likely to be more than two months from date of hiring)

5.Details of driving licence:

country where issued (if not UK)

serial number or driver's number

date of expiry (which should be no later than date specified in B7 below)

If the person taking possession of the vehicle is not the same as the person by or on whose behalf the statement was signed, the full name of that person should also be supplied (if known).

 

B. Particulars of hiring agreements

1.Vehicle registration mark of vehicle hired under the hiring agreement

2.Make and model of vehicle hired under the hiring agreement

3.Vehicle registration mark of any vehicle substituted for the above during the currency of the hiring agreement

4.Make and model of any vehicle substituted for the above during the currency of the hiring agreement

5.Time and date of any change of vehicle

6.Time and date of commencement of original hiring period

7.Expected time and date of expiry of original hiring period

8.Time and date of commencement of authorised extension of hiring period

9.Expected time and date of expiry of authorised extension of hiring period

10.Actual time and date of return of vehicle (or when vehicle returned out of hours; time and date on which vehicle hire firm next opened for business)

 

This, explains it pretty well.

Edited March 7, 2010 by Bernie_the_Bolt

[lamma]

Don't quite know why you say that it is rubbish, this is the definition from the statute.

 

“owner”, in relation to a vehicle, means the person by whom the vehicle is kept, which in the case of a vehicle registered under the Vehicle Excise and Registration Act 1994 (c. 22) is presumed (unless the contrary is proved) to be the person in whose name the vehicle is registered;

 

Agreed. perhaps I overspoke. But the fact remanls that Owner, RK and keeper can all be be three diferent people. It doesn't say the keeper IS the owner. And the Notice is to the Owner. Plus do not forget this "I wrote to my Company Vehicle department and they have confirmed in writing that (1) The XXXX Motor Co is the registered keeper and (2) The XXXX Motor Co is also the 'owner'." In light of this the LA's 'presumption' is clearly wrong. As we have been saying its down to liablity in a statement - and there doesn't seem to be one. I think we agreeing here Bernie though it may not seem it to the casual reader.

Edited March 7, 2010 by lamma

[Al27]

Some things that confuse me:

 

• you appealed to the Adjudicator but never heard anything and the council proceeded with the Order for Recovery?

 

So what has the TPT got to say? If the council proceeded with the OfR whilst this was undergoing Adjudication that does it for them, no?

 

But if the TPT has no record of your case you'd have to sort out a Witness Statement with Northampton?

[Jamberson]

I don't think I have much more to add. I've said how I see this, and I think the OP is almost certainly liable (apologies if that is not the correct word to use - it's the language I am used to using!). I agree with G&M, above.

 

To answer your specific question, since you ask Bernie:

 

So help me understand this.

 

We know that it is the owner who is liable for PCNs other than (in this context) where there are two tests that are satisfied: 1) That the owner is a vehicle-hire firm and 2) there is a signed statement of liability.

 

I do not see here that either apply.

 

Whether number 1) applied is dependent on the definition of "vehicle hire firm". If it means a company whose primary trade is hiring vehicles, it would not apply. If it means any commercial entity who as a business arrangement provide a car on lease for money, then it does.

 

And number 2) has been confirmed by the OP. He said himself earlier in this thread, "I HAVE signed an agreement saying that I am the owner and I am liable!!".

 

I tend to swing towards the latter definition of hire company. That's where I'm coming from on this.

[Bernie_the_Bolt]

Jamberson,

 

There is a danger in taking too much at face value. Have a wade through this and you will see that things are far from straightforward.

 

For example if OP keeps the vehicle for more than six months then it is most definitely not a hire agreement (the OP says they keep it for approx six months).

 

It just ain't straightforward and the OP has to go with what there is and this includes the fact that the OPs employer seemingly has the authority to direct who uses the vehicle.

[saitken]

Outcome!

 

I attended tribunal but lost! The key point was that the Adjudicator said he had to take the information as to who the owner was from the DVLA i.e. me, and that my email from my company to the contrary was not sufficient.

 

I also got a letter from my company advising that it is correct that I am the registered keeper when the order was sent to them after the tribunal. But this was contrary to what they emailed me! So in the end I had no chance! But it was fun trying!

[buzby]

But the DVLA have no idea who the owner is. You would think the Adjudicator would know this.

[lamma]

and why would the email not be enough, this is a balance of probabilities thing not criminal proof. The Owner is assumed to be the RK unless the contrary is shown. The council and the adjudicator know this. The adjudicator made a mistake in law. You got shafted. Which adjudicator is this ? You could appeal it within 14 days. No extra costs to you to do so.

[Bernie_the_Bolt]

I think you have to ask for a review in the interests of justice.

[Bernie_the_Bolt]

But the DVLA have no idea who the owner is. You would think the Adjudicator would know this.

 

What the Adjudicator knows is that the owner is presumed to be the RK unless the contrary is proved. The Adjudicator possibly took the view that it wasn't proven. This is what the OP needs to be asked to be reviewed in the interests of justice but it will need to be couched in a way that it is a challenge on a point of law rather than as a finding of fact.

 

IMV the way to do this is on the basis that the Adjudicator misdirected himself with regard to the burden of proof and the weight attached to the apellant's employer's letter.

 

Be interesting to see what others think.

[green_and_mean]

Who's name is the lease agreement in?

[lamma]

I agree. plus where there is doubt aren't they supposed to find for the appellant

[Bernie_the_Bolt]

Who's name is the lease agreement in?

 

Ref post no 9

 

[EDIT: Sorry, point misunderstood - I think]

[Bernie_the_Bolt]

I agree. plus where there is doubt aren't they supposed to find for the appellant

 

Depends how much.