Law Report: Car owner liable for garage's parking fine

LAW REPORT v 7 November 1996

Regina v Parking Adjudicator, ex parte Wandsworth London Borough Council; Court of Appeal (Lord Justice Stuart-Smith, Lord Justice Morritt, Sir John May) 1 November 1996

Where a car was parked in contravention of parking regulations, it was the registered owner of the car who was liable to pay the fine, not its keeper at the time of the contravention. Where, therefore, a garage to whom a car was temporarily entrusted for repairs parked it illegally, it was the owner who had to pay the fine and not the garage.

The Court of Appeal allowed an appeal by Wands-worth London Borough Council against the refusal of the Queen's Bench Divisional Court, on 10 July 1996, to grant judicial review of decisions of the Parking Adjudicator on 18 October and 2 November 1995.

The adjudicator had allowed an appeal by Jane Francis against a "notice to owner" served by Wandsworth requiring payment of two penalty charges. It was contended that the "owner" of the vehicle at the time of the contraventions was not Miss Francis but the motor mechanic, M.D. Baker, into whose keeping she had entrusted it for repair, who had parked it illegally but had not told her of the penalty notices.

The Road Traffic Act 1991 provided by section 66(2) that "a penalty charge is payable . . . by the owner of the vehicle." By schedule 6, para 2, the person on whom a "notice to owner" has been served, following non-payment of a penalty charge, "may make representations" against the notice on grounds which included, by para 2(4)(a), "that the recipient . . . (ii) had ceased to be [the] owner before the date on which the alleged contravention occurred".

By para 3(2) the cancellation of the notice on such grounds "shall not be taken to prevent the London authority concerned serving a fresh notice to owner on another person".

By section 82 of the Act:

(2) For the purposes of this Part of this Act, the owner of a vehicle shall be taken to be the person by whom the vehicle is kept. (3) . . . it shall be presumed that the owner was the person in whose name the vehicle was at that time registered under [the Vehicle Excise and Registration Act 1994].

The Road Vehicles (Registration & Licensing) Regulations 1971 (SI 450) which continued in force by virtue of sections 22, 64 and schedule 4 of the 1994 Act, provided by regulation 12(1) that on change of ownership of a vehicle its previous owner should deliver registration documents and any vehicle licence to the new owner and notify the Secretary of State for Transport.

Richard Gordon QC (M.B.A. Walker) for Wandsworth; Alan Wilkie QC and Ranjit Bhose (Caroline Sheppard, Parking Appeals Service) for the adjudicator.

Lord Justice Stuart-Smith said the approach of the adjudicator, whose decision the Divisional Court had upheld, was that the presumption of ownership in section 82(3) was rebuttable, that the word "keep" was an ordinary English word, and that it was a question of fact and degree whether at any time another person or the registered person was the "keeper".

Wandsworth submitted that the only way the presumption in section 82(3) could be rebutted was by one of the grounds in paragraph 2(4)(a) of schedule 6. To satisfy paragraph 2(4)(a)(ii), the disposal must be such as would require notification of a change of ownership under regulation 12 of the 1971 Regulations. Merely entrusting a vehicle to a garage for repair was not such a disposal.

The adjudicator submitted that it was not possible to construe section 82(3) by reference to the regulations. The presumption did not colour or affect the nature of the inquiry by the adjudicator, which was simply to decide as a question of fact who was the keeper at the relevant time.

His Lordship agreed with Wandsworth. It was necessary, when considering whether there had been a sufficient disposal of the vehicle within section 2(4)(a)(ii) to rebut the presumption of ownership in section 82(3), to consider whether it was the sort of disposal that would require registration under regulation 12 of the 1971 Regulations. One had to look at the position as it was or appeared to be, and then see if there was any reason for it being otherwise.

If the adjudicator had adopted such an approach, he could not have decided as he had done. His decision must be quashed.

Paul Magrath, Barrister