DVLA lost case in small claims for crushing car

[Canucutit]

8)

Hi everyone,

This is my first time posting on any site but I really wanted to let you know that it is possible to bring these predators to book. I never really believed I could do it, it just goes to show !

 

It was my partners vehicle, he had declared it 'sorned' and had it parked just outside his garage, problem was two wheels were just over on to what was deemed a public road. I don't think he realised it would be a problem (his garage is more of a tool shed then a garage), he and his neighbours never gave it a thought it could be a problem, as their residences are situated in a cul de sac, no thru traffic whatsoever. It occurred just after the DVLA got the expanded powers in 2008.

 

Anyways to cut a long story short it appears we got them on trespass (at least that is what the judge seemed mostly concerned about, do not have the judgement yet from the court so can't be sure) as of course in order to seize the vehicle they had to go onto what is his private area/or curtilage of his property. They used case law to back their case - Randall vs Motor Insurers Bureau 1968; can you believe it ! I think they always use this case law to uphold the distinction between private vs public and jurisdication.

DVLA/their solicitors did not bother to respond to the allegation of trespass for the defence, they arrogantly relied on this case law which we were able to rubbish, as there was not the slightest resemblance to our case. Hope this little insight can help someone in a similar nightmare.

[miss muppet]

Well done! So my question is will the DVLA have to pay up?

[Canucutit]

Hi Miss muppet

Yep, but we went for max £5K (small claims max), they offered £2.5k.

Its either we negotiate directly with DVLA on this settlement or we go back to court with 'statement of loss' - a little bit more work to go !

[miss muppet]

Congratulations, just shows the little guy can win!

[Sir Drinkalot]

Congratulations, just shows the little guy can win!

 

It also goes to show what an arrogant bunch of barstewards the DVLA are:mad:

 

This "if it isnt down on our records/computer etc then it must be wrong" attitude really annoys the hell out of me and presumably a few others.

[Big Bill]

I hate to say anything in the DVLA's favour but:

 

The case law quoted does define that if any of the wheels of the vehicle are on the public highway then the whole of that vehicle is deemed to be on the highway. This stems from an insurer trying not to pay out to a victim because he was crushed by the rear wheels when only the front ones were on the road.

 

So all I can say is you were lucky to get away with it and the DVLA are lax if they allow that to be the end of the matter.

[Canucutit]

Hi Big Bill,

 

Randall v Motor Insurers Bureau 1968 - This clarification in the law arose out of a commericial interest that of: Motor Insurers Bureau - Third Party Risks, Mr Neville Anthony Scott (Insured Commerical Lorry Driver) v Mr Eric Frank Randall (Victim - Plaintiff). The vehicle was flly tipping, Mr Randall's injury was caused by the back wheels still on private property, whilst fleeing from the scene of the crime, but the greater part of the vehicle was on public highway at the time of incident, speeding to his getaway.

Legislation governing Sorn did not form any part of social consciousness in 1968. To use this case law as a defence in this instance is just the kind of bamboozle that DVLA rely on to get away with this crap.

 

I personally refuse to be mystified by the nonsense that they want us to accept as law........we are not criminals, therefore I do not accept punishment ! I don't think they were lax, thats all they had - simple as that, nor was I lucky, I just did some homework !

[Big Bill]

I am with you on any case against the DVLA (read my other posts).

Firstly the law of contiuous registration was introduced to curb the activities of some people who continually evaded exise duty. It was stated at the begining that it was never intended to be used against law abiding citizens who genuinely make mistakes.

However, a Court of first instance is supposed to abide by the precedents of superior courts who clarify the law. It is the way that English common law works. This is so that the courts deliver uniform judgements.

It does not prevent a court of first instance from varying that judgement in an individual case.

The 1969 Randall case deemed that if two wheels are in the road then the whole vehicle is in the road. This is independant of the "Offence" be it hit and run, simple parking or SORN.

 

As I said you were very lucky to get a court that applied common sense rather than blindly following a precedent that would normally be in the favour of the DVLA.

[Bookworm]

Hi Miss muppet

Yep, but we went for max £5K (small claims max), they offered £2.5k.

Its either we negotiate directly with DVLA on this settlement or we go back to court with 'statement of loss' - a little bit more work to go !

I don't see why. If you have won, then you have won on the amount you claimed. :-?

 

If they wanted to negotiate a smaller settlement, the time to do so was before it went to court, not after. If judgment has been granted in your favour, then it should be for the whole thing, unless the judge indicated a specific amount. :-?

[Canucutit]

I appreciate your point regarding precedents, how courts work etc., I knew this, so I made a point of outlining how 'unlike' our case was to this case law precedent. What was HELD in this case law: ' AT the time when the injury was sustained, the GREATER part of the lorry was on the road, therefore lorry was using the road and accordingly, the defendants were liable under the agreement of 17 June 1946'.

 

I think that we can't afford to just roll over for these rogues (DVLA) so readily, and have just a little faith that judges to 'can' use common sense.

 

But what really got them (DVLA) was when the judge wanted an answer to the 'trespass' allegation and they did not have one due to their arrogance and reliance on this case law.

[Canucutit]

Hi Bookworm,

 

I thought it worked just that way too, but each case is different I guess! In our case the vehicle in question was a classic Merc, with private no plate etc., it was a project that £xxx had already been spent on. This seems to be our problem, vehicle book value does not correspond with our claim ! So either we agree a figure with DVLA or return with proofs to court ? This is the whole reason we had it under 'SORN' it was not yet ready for the road. We are not really convential people, I mean look we like old things !

 

It was never really about the money for me, I remain deliriously happy having fought them and won !!!!

[Big Bill]

It does sound as though the recorder, or whoever, actually understands the laws of this land. The DVLA have been allowed free reign over the laws in order to collect revenue for the labour government and the saying “ he who pays the piper calls the tune “ is ever the case. The laws of trespass date back to as far as the Statute of Marlborough (1267), Chapter 15 is still in force, state that there can be no distress of goods unless a court orders it.

 

“It shall be lawful for no Man from henceforth, for any manner of cause, to take Distresses out of his Fee, nor in the King’s Highway, nor in the common Street, but only to the King or his Officers, [having special authority to do the same.] “

 

 

 

 

 

Thus the clamping, towing away and disposal of a car is a trespass against goods unless performed as a result of a court order. Why no-one has used this in their defence I know not.

 

 

In true muddledom style the secretary for transport issued an SI to allow the DVLA to seize cars without a court order. He even went further to allow distress against goods that the DVLA know is in all probability not the property of the offender.

 

The DVLA in a paper on the difficulties involved in finding the true ownership of a car have said that less than half of registered keepers are the actual owners. The vast majority of cars are actually owned by finance and other companies which makes it uneconomic to pursue them through the courts.

 

 

 

 

References to the "owner" of a vehicle at a particular time are to the person by whom it was then kept and the person in whose name the vehicle is registered at a particular time shall be taken, unless the contrary is shown, to be the person by whom the vehicle was kept at that time.

 

Subject to the provisions of this regulation, the custodian of a vehicle delivered to him in accordance with regulation 10(2) may dispose of it by selling it or dealing with it as scrap, as he thinks fit.

 

 

A vehicle shall not be disposed of pursuant to this regulation before the end of the period of 5 weeks beginning with the date on which the vehicle was removed in accordance with regulation 10(2) and until the custodian has, for the purpose of ascertaining the owner of the vehicle, taken such of the steps specified in Schedule 3 to these Regulations as are applicable to the vehicle and either—

(a) he has failed to ascertain the name and address of the owner; or

(b) the owner has failed to comply with a notice in accordance with paragraph (3) served on him by post.

 

 

STEPS TO BE TAKEN TO ASCERTAIN OWNERSHIP OF A REMOVED VEHICLE

 

1. If the vehicle carries a G.B. or N.I. registration mark the custodian shall ascertain from the G.B. or, as the case may be, the N.I. records the name and address of the person by whom the vehicle is kept.

2. If the vehicle does not carry such a registration mark, the custodian shall make such inquiries as appear to him to be practicable to ascertain the identity of the owner of the vehicle.

 

 

 

REMOVAL AND DISPOSAL OF VEHICLES

Removal of immobilised vehicles

10.—(1) This regulation applies in a case where—

(a) an immobilisation device is fixed to a vehicle in accordance with these Regulations, and

(b) 24 hours have elapsed since the device was fixed to the vehicle, and

© the vehicle has not been released in accordance with these Regulations.

 

(2) In a case where this regulation applies, an authorised person or a person acting under the direction of an authorised person, may remove the vehicle and deliver it to a person authorised by the Secretary of State to keep vehicles so removed in his custody (in these Regulations called a "custodian").

Disposal of removed vehicles

11.—(1) Subject to the provisions of this regulation, the custodian of a vehicle delivered to him in accordance with regulation 10(2) may dispose of it by selling it or dealing with it as scrap, as he thinks fit.

 

(2) A vehicle shall not be disposed of pursuant to this regulation before the end of the period of 5 weeks beginning with the date on which the vehicle was removed in accordance with regulation 10(2) and until the custodian has, for the purpose of ascertaining the owner of the vehicle, taken such of the steps specified in Schedule 3 to these Regulations as are applicable to the vehicle and either—

(a) he has failed to ascertain the name and address of the owner; or

(b) the owner has failed to comply with a notice in accordance with paragraph (3) served on him by post.

 

(3) A notice under paragraph (2)(b) shall be a notice addressed to the owner which—

(a) states—

(i) the registration mark and make of the vehicle;

(ii) the place where the vehicle was found before it was immobilised;

(iii) the place to which the vehicle has been removed;

(iv) the steps to be taken to obtain possession of the vehicle in accordance with regulation 13;

(v) that, if he is the owner of the vehicle, he is required to remove the vehicle from the custody of the custodian on or before a specified date (being not less than 21 days after the date on which the notice is served on him);

(vi) that unless the vehicle is removed by him on or before that date, the custodian intends to dispose of it; and

(vii) that, if he is the owner of the vehicle, he is required to remove it from the custody of the custodian; and

(b) requires the owner to remove the vehicle from the custody of the custodian within 21 days of the date on which the notice was served.

 

(4) Where it appears to a custodian of a vehicle that more than one person is the owner, such one of them as he thinks fit shall be treated as the owner for the purposes of this regulation.

Recovery of prescribed charges

12.—(1) Where a vehicle has been removed and delivered into the custody of a custodian in accordance with regulation 10(2), the Secretary of State or the custodian may (whether or not any claim is made under regulation 13 or 15) recover from the person who was the owner of the vehicle at the time the immobilisation device was fixed the prescribed charges for—

(a) its release, removal and storage; and

(b) if the vehicle has been disposed of, its disposal.

 

(2) Where, by virtue of paragraph (1), any sum is recoverable in respect of a vehicle by a custodian, he shall be entitled to retain custody of it until that sum is paid.

Taking possession of a vehicle

13.—(1) A person ("the claimant") may take possession of a vehicle which has been removed and delivered to a custodian and has not been disposed of under regulation 11, if the conditions specified in paragraph (2) are satisfied.

 

(2) The conditions are—

(a) the claimant satisfies the custodian that he is the owner of the vehicle or that he is authorised by the owner to take possession of the vehicle;

(b) except where the claimant produces a vehicle licence in respect of the vehicle which was in force when the vehicle was immobilised or the custodian is satisfied that the vehicle was immobilised in any of the circumstances specified in regulation 7(2) or that the vehicle was, at the time it was immobilised, an exempt vehicle, the claimant pays to the custodian—

(i) the prescribed charge in respect of the removal of the vehicle; and

(ii) the prescribed charge for the storage of the vehicle during the period whilst it was in the custody of the custodian; and

© the claimant either—

(i) produces to the custodian a vehicle licence in respect of the vehicle which is in force at the time the vehicle is claimed; or

(ii) pays to the custodian the prescribed charge for the surety payment.

 

(3) On giving the claimant possession of a vehicle pursuant to this regulation, the custodian shall give the claimant a statement of the right of the owner or person in charge of the vehicle at the time it was immobilised to appeal pursuant to regulation 18(2), of the steps to be taken in order to appeal and of the address to which representations to an authorised person made as mentioned in that regulation should be sent.

Offences as to securing possession of vehicles

14.—(1) Where—

(a) a person makes a declaration with a view to securing possession of a vehicle purported to have been delivered into the custody of a custodian in accordance with regulation 10(2);

(b) the declaration is that the vehicle is or was an exempt vehicle, and

© the declaration is to the person's knowledge either false or in any material respect misleading,

that person is guilty of an offence.

 

(2) A person guilty of an offence under paragraph (1) is liable —

(a) on summary conviction, to a fine not exceeding the statutory maximum, and

(b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.

 

Claim by owner of a vehicle after its disposal

15.—(1) If, after a vehicle has been disposed of by a custodian pursuant to regulation 11, a person claims to have been the owner of the vehicle at the time when it was disposed of and the conditions specified in paragraph (2) are fulfilled, there shall be payable to him by the custodian a sum calculated in accordance with paragraph (3).

 

(2) The conditions are that—

(a) the person claiming satisfies the custodian that he was the owner of the vehicle at the time it was disposed of; and

(b) the claim is made before the end of the period of one year beginning with the date on which the vehicle was disposed of.

 

(3) The sum payable under paragraph (1) shall be calculated by deducting from the proceeds of sale the prescribed charges for the removal, storage and disposal of the vehicle.

 

This somewhat long but it shows the license to print money awarded to the clampers. Even if he loses in court he still gets his fee out of the sale price and the actual value of the car is irrelevant.

[Canucutit]

What a great insight you have given here Big Bill, alot to take in for regular folk like me, (still reading through all of it) and so after all said and done are you saying TRESPASS could be the cure-all against the DVLA ?

 

In our claim I meant trespass in the literal sense of them going onto our private land, which they needed to do in order to lift our car (remembering only inches of the two wheels were on public road, leaves about 98% or more of car on our land).

 

I wonder if the new (incoming) government might re-look at these injustices meted out by the DVLA/Labour coalition !

[Big Bill]

If you read "DVLA are they the masters of the Universe" you will see why I am taking them on. At the ripe old age of 70 it has taken me a couple of years of research to even start to understand the laws. Perhaps by the time I get to 90 I will apply for the Bar exams.

5 Apr 2000

CA

Lord Justice Roch, Lord Justice Waller, And Lord Justice May

Land, Torts - Other, Road Traffic

The act of wheel clamping a car which was unlawfully parked is a trespass to goods. To avoid an action for damages, the clamper must show that the car parker consented to the clamping. He can do so by showing, in accordance with established principles, that the driver had had his attention brought to the fact that wheel clamping operated, through appropriate notices to that effect. Where, as here, the driver persuaded the court that she had not seen the notices, the clamping remained unlawful. No malice was intended, and no punitive damages could be awarded. "The act of clamping the wheel of another person's car, even when that car is trespassing, is an act of trespass to that other persons property unless it can be shown that the owner of the car has consented to, or willingly assumed, the risk of his car being clamped. To show that the car owner consented or willingly assumed the risk of his car being clamped, it has to be established that the car owner was aware of the consequences of his parking his car so that it trespassed on the land of another. That will be done by establishing that the car owner saw and understood the significance of a warning notice or notices that cars in that place without permission were liable to be clamped. Normally the presence of notices which are posted where they are bound to be seen, for example at the entrance to a private car park, which are of a type which the car driver would be bound to have read, will lead to a finding that the car driver had knowledge of and appreciated the warning." The Recorder had held, correctly, that the appellant by parking her car where she did was trespassing. Unhappily, he then jumped to the conclusion that the appellant had consented to, or willingly assumed, the risk of her car being clamped. In making that leap the Recorder fell into error.

[ Bailii ]

Edited May 2, 2010 by Big Bill