Interesting s.172 High Court case

[Pontoneer]

tangerine_sedge said:

The point is, I get enough info for the short period of the test drive, but I certainly don't keep records and I doubt that 99% of other private sellers do either.

This of course opens up a loop-hole, but one that requires some proof that you actually have the car for sale - hence the 'open' for sale advert

Although I would not have kept details of prospective buyers who did not buy from me , I do tend to keep name & address of anyone I do sell vehicles to , at least until I have acknowledgement from DVLA that I am no longer responsible for the vehicle .

[Pontoneer]

Puddenchucker said:

U T said:

You guys clearly know nothing about the motor trade. Garages keep a log of all trips their mechanics make in customers cars, as a matter of routine. If you get an NIP when your car was in for a service, the garage will check the log and find the driver responsible. If the garge don't put up a name, you just reply with evidence that the car was with the garage that day, and then it's between the authorities and the garage owner.

So, that argument well and truly despatched. Next....

I can only speak from personal experience, but earlier this year I took my car to a main dealer for a pre-booked service that included a courtesy car. I arrived on time and all went well until it came to locating the courtesy car. 10 minutes later they had come to the conclusion that one of three people had taken the car for reasons unknown. This was despite the fact that all of the paperwork for use of the courtesy car had already been filled out with that vehicles details. 5 minutes later I was in a different, and hastily arranged, vehicle.

So it appears that they don't even know which member of staff is using their own vehicles.....

In addition to the above , I have on many occasions test driven vehicles for sale from garages without being asked for details , sight of my licence or anything - sometimes these test drives have been unaccompanied although I have always left my own car either on or just outside the premises - they may have taken my registration number , but would not neccessarily have known whether it was even my car ( I could have stolen it for all they knew ) .

[Pontoneer]

U T said:

Garages are just like any other business, you get good ones and bad ones.

But in my work I have dealings with several garages and they all have a rigid system for booking cars in and out, and no mechanic drives anything without it being logged.

If the garage owner or manager has any sense, this is what they do, otherwise they have all the hassle when the NIP drops on the doormat.

If a cutomer comes into the garage with an NIP and says "this was the day my car was in for a service", what are the garage going to say when they check there records and find the customer is telling the truth?

If that happened to me , I wouldn't care who was driving the car : I'd just send the request for information back stating that the car was in the garage on the date in question , enclosing a photocopy of the invoice as evidence . After that it is the garage's problem to deal with it .

[streaky]

Flibble said:

complain at the government.

Full marks for use of the correct preposition ... given the lack of value in the process.

Streaky

PS - assuming it was intended - S

[U T]

Pontoneer said:

U T said:

Garages are just like any other business, you get good ones and bad ones.

But in my work I have dealings with several garages and they all have a rigid system for booking cars in and out, and no mechanic drives anything without it being logged.

If the garage owner or manager has any sense, this is what they do, otherwise they have all the hassle when the NIP drops on the doormat.

If a cutomer comes into the garage with an NIP and says "this was the day my car was in for a service", what are the garage going to say when they check there records and find the customer is telling the truth?

If that happened to me , I wouldn't care who was driving the car : I'd just send the request for information back stating that the car was in the garage on the date in question , enclosing a photocopy of the invoice as evidence . After that it is the garage's problem to deal with it .

Absolutely right. That's what we'd all do I guess. And that's why garages ususally keep a log of all test drives etc. So they can find the responsible driver. If they don't, the latest ruling I guess would give them a way out. I don't think it should. If the garage can't put up a driver name, make the M.D. take the points. He'll soon put a logging system in place then!!

[chriscpritchard]

U T said:

Absolutely right. That's what we'd all do I guess. And that's why garages ususally keep a log of all test drives etc. So they can find the responsible driver. If they don't, the latest ruling I guess would give them a way out. I don't think it should. If the garage can't put up a driver name, make the M.D. take the points. He'll soon put a logging system in place then!!

No it wouldn't, if the law states that a company should have a written log, or if they don't provide a valid reason as to why they don't, otherwise they haven't done their due diligence, it does not place this burden on a private individual.

[U T]

chriscpritchard said:

U T said:

Absolutely right. That's what we'd all do I guess. And that's why garages ususally keep a log of all test drives etc. So they can find the responsible driver. If they don't, the latest ruling I guess would give them a way out. I don't think it should. If the garage can't put up a driver name, make the M.D. take the points. He'll soon put a logging system in place then!!

No it wouldn't, if the law states that a company should have a written log, or if they don't provide a valid reason as to why they don't, otherwise they haven't done their due diligence, it does not place this burden on a private individual.

I don't think the law does say a company should have a written log. But that's what prudent companies do, in order to be able to identify the driver in the event of an NIP, parking ticket or whatever.

[Aretnap]

U T said:

Absolutely right. That's what we'd all do I guess. And that's why garages ususally keep a log of all test drives etc. So they can find the responsible driver. If they don't, the latest ruling I guess would give them a way out. I don't think it should. If the garage can't put up a driver name, make the M.D. take the points. He'll soon put a logging system in place then!!

No it wouldn't. RTA s172(6) provides

Where the alleged offender is a body corporate, or in Scotland a partnership or an unincorporated association... subsection (4) above (ie the reasonable diligence defence) shall not apply unless, in addition to the matters there mentioned, the alleged offender shows that no record was kept of the persons who drove the vehicle and that the failure to keep a record was reasonable.

With this section, parliament clearly intended that there should be a general expectation (though not an absolute requirement) that companies would keep a record of the drivers of their vehicles. Had it intended this expectation to apply to all keepers, s172(6) would be largely if not entirely redundant. This was part of the reason m'lud's concluded that the expectation didn't apply to all keepers.

[BertBert]

U T said:

I don't think the law does say a company should have a written log. But that's what prudent companies do, in order to be able to identify the driver in the event of an NIP, parking ticket or whatever.

Yes it does chrisprichard got it right.

[agtlaw]

U T said:

I don't think the law does say a company should have a written log. But that's what prudent companies do, in order to be able to identify the driver in the event of an NIP, parking ticket or whatever.

Completely wrong. The word should isn't used in the legislation but that's exactly what is implied; see s.172(6) above. If you meant 'must' rather than 'should' then you'd be right. The word must would imply something mandatory.

[10 Pence Short]

What's more intriguing than the finding in this case (seemed pretty straightforward the Mags were trying to read what they wanted to rather than what's written- fair play to them in going along with the appeal), is that the case falls down on the point of law, and the question of what the Keeper actually did to ascertain the driver appears to have fallen by the wayside.

That a person can be so careless in allowing any Tom, Dick or Harry to drive their vehicle, yet so diligent in their legal argument, doesn't square with me. In other words, justice has been done, but justice has not been done, as I see it.

[U T]

agtlaw said:

U T said:

I don't think the law does say a company should have a written log. But that's what prudent companies do, in order to be able to identify the driver in the event of an NIP, parking ticket or whatever.

Completely wrong. The word should isn't used in the legislation but that's exactly what is implied; see s.172(6) above. If you meant 'must' rather than 'should' then you'd be right. The word must would imply something mandatory.

Yes, quite right. There is nothing to say that companies must keep a log. But it's what they should do.
My original point in all of this is that I fail to see why an individual shouldn't be obligated in the same way. The keeper of the vehicle should be able to provide info on who was driving their car, and if they can't, then they must take the points. IMHO.

[10 Pence Short]

U T said:

The keeper of the vehicle should be able to provide info on who was driving their car, and if they can't, then they must take the points. IMHO.

I think the current setup is about right, in that the Keeper doesn't get the same points they would had they been driving, but a separate offence in itself that happens to carry them.

What this judgement could lead to, is an alteration to put the diligent onus from the time someone drove the car rather than once they were sought for an offence- as is the current responsibility of corporate bodies.

[Aretnap]

U T said:

The keeper of the vehicle should be able to provide info on who was driving their car, and if they can't, then they must take the points. IMHO.

Why a necessity for someone to "take the points"? It's a fact of life that sometimes the perpetrator of a crime can't be found. Crimes far more serious than speeding go unsolved every day. We don't find someone with a peripheral connection to them and send him to jail instead - we deal with it and move on.

Kenneth Parker's comment at towards of the judgement is eminently sensible I think. He points out that the purpose of s172 is deal with the keeper who "inexcusably fails to assist in the search for the driver's identity". It's (by implication) not there merely to ensure that the authorities have someone to punish when they can't find the actual offender.

[U T]

Aretnap said:

U T said:

The keeper of the vehicle should be able to provide info on who was driving their car, and if they can't, then they must take the points. IMHO.

Why a necessity for someone to "take the points"? It's a fact of life that sometimes the perpetrator of a crime can't be found. Crimes far more serious than speeding go unsolved every day. We don't find someone with a peripheral connection to them and send him to jail instead - we deal with it and move on.

Kenneth Parker's comment at towards of the judgement is eminently sensible I think. He points out that the purpose of s172 is deal with the keeper who "inexcusably fails to assist in the search for the driver's identity". It's (by implication) not there merely to ensure that the authorities have someone to punish when they can't find the actual offender.

In my view the owner or keeper of a car should have a duty to keep tabs on the use of the car, so that in the event of someone committing an offence in the car, the perpetrator can be identified and punished. If the owner/keeper can't do that, then they should be punished. Perhaps a new offence of failure to keep records on the use of the vehicle, with a £60 fine and 3 points on your licence.

If that makes you feel better about it. That way they are not being punished for an offence they didn't commit, but a separate offence of unsatisfactory recored keeping that they are guilty of.

[Jagmanv12]

U T said:

Perhaps a new offence of failure to keep records on the use of the vehicle, with a £60 fine and 3 points on your licence.

No thanks, there are too many laws, rules and regulations as it is. Thankfully as detailed on other threads a few of these regulations are going to be removed - SORN, paper driving licence, etc.

[IroningMan]

U T said:

Aretnap said:

U T said:

The keeper of the vehicle should be able to provide info on who was driving their car, and if they can't, then they must take the points. IMHO.

Why a necessity for someone to "take the points"? It's a fact of life that sometimes the perpetrator of a crime can't be found. Crimes far more serious than speeding go unsolved every day. We don't find someone with a peripheral connection to them and send him to jail instead - we deal with it and move on.

Kenneth Parker's comment at towards of the judgement is eminently sensible I think. He points out that the purpose of s172 is deal with the keeper who "inexcusably fails to assist in the search for the driver's identity". It's (by implication) not there merely to ensure that the authorities have someone to punish when they can't find the actual offender.

In my view the owner or keeper of a car should have a duty to keep tabs on the use of the car, so that in the event of someone committing an offence in the car, the perpetrator can be identified and punished. If the owner/keeper can't do that, then they should be punished. Perhaps a new offence of failure to keep records on the use of the vehicle, with a £60 fine and 3 points on your licence.

If that makes you feel better about it. That way they are not being punished for an offence they didn't commit, but a separate offence of unsatisfactory recored keeping that they are guilty of.

Do we really need more legislation, more rules for the unwary to break? Or is it more that it would just give you a warm feeling to know that every household sat down at the end of each evening to record a proper log of who drove which cars where, and at what times, that day?

I'm sure you could design a nice spreadsheet for everyone to use...but perhaps it's better if you stick to keeping your OCD to yourself, eh?

[agtlaw]

U T said:

In my view the owner or keeper of a car should have a duty to keep tabs on the use of the car, so that in the event of someone committing an offence in the car, the perpetrator can be identified and punished. If the owner/keeper can't do that, then they should be punished. Perhaps a new offence of failure to keep records on the use of the vehicle, with a £60 fine and 3 points on your licence.

If that makes you feel better about it. That way they are not being punished for an offence they didn't commit, but a separate offence of unsatisfactory recored keeping that they are guilty of.

if i take full contact details, driver licence number, of a test driver on 1st December who tells me on 10th december that he doesn't want to buy my car and i then bin those details, would you say i was guilty of an offence if on 14th december when a NIP/s.172 request arrives and I no longer have his details?

[davepoth]

They couldn't introduce it as a lesser offence to S.172 since it gives a guaranteed lower sentence than S.172, just by saying "I don't know" if you have more than one named driver.

[Pontoneer]

U T said:

In my view the owner or keeper of a car should have a duty to keep tabs on the use of the car, so that in the event of someone committing an offence in the car, the perpetrator can be identified and punished. If the owner/keeper can't do that, then they should be punished. Perhaps a new offence of failure to keep records on the use of the vehicle, with a £60 fine and 3 points on your licence.

If that makes you feel better about it. That way they are not being punished for an offence they didn't commit, but a separate offence of unsatisfactory recored keeping that they are guilty of.

I would not thank anyone for that .

My partner and I can drive any of each other's six private cars . Moreover I can drive any of my two sisters' vehicles and they in turn can drive any of ours ( using the driving other cars clauses of our insurances , besides being named drivers on some of the policies ) . Then there are various cars in my partner's side of the family which any of us could drive if need be , In as much as there are numerous authorised and legal drivers who have access to upwards of a dozen vehicles throughout the extended family , they are still private cars and no one would wish to be encumbered with logging journeys and drivers as such an idea would require . In fact I often do business mileage without claiming for it because I simply cannot be bothered with all the rigmarole of logging mileages etc .

It is one thing requiring logs to be kept of the use of company cars ; quite another with private vehicles . Actually an occasional £60 fine would be the lesser of the two evils in my view .