Keeper liability – Rebutting the Elliot Vs Loake argument

The liability for a private parking ticket is with the driver of the vehicle at the time of the parking ‘event’. Since parking companies normally don’t know the identity of the driver, they will look up the registered keeper on the DVLAs database and send them a Notice to Keeper. They ask the keeper to pay the ticket, or name the driver so that they can be pursued instead. If certain conditions are met, the Protection of Freedoms Act 2012 allows the keeper to be held liable for the parking charge.

In cases where the keeper has not admitted they were driving and keeper liability has not been established, parking companies are left in a situation where they have nobody to pursue. If a parking company wants to attempt to make a keeper liable for a charge, they have to show on the balance of probability (the level of proof used in civil cases) that they keeper was driving. This is often very hard for the driver since they may not have any evidence to rely on at all.

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In trying to prove their case, parking companies often cite the case of Elliot Vs Loake, 1982, and claim it as a precedent for showing the keeper is most likely the driver of the vehicle in the absence of evidence to the contrary.

The summary of the case is as follows:

A car was involved in a collision and drove off. Ownership was traced to the defendant who denied driving and claimed the damage to his vehicle was caused by another accident. He was prosecuted for various offences including failing to provide information under section168 RTA 1972 (now section 172). On conviction he appealed by case stated on the grounds that the justices were not entitled on the evidence before them to find that the defendant had been the driver of the vehicle. Held, dismissing the appeal, that there had been ample evidence to justify the justices’ conclusion that the defendant had been driving the sports car on the night in question. There had been unchallenged evidence that debris taken from the damaged car exactly matched sample’s from the defendant’s car. The justices found from this that the defendant’s car had been involved in the accident, and they were then driven to conclude that what the defendant had told the police must have been untrue. There was a prima facie inference that the owner of a car was its driver.

In our opinion stating it is a precedent is absolutely not correct. This is because:

  • There was ample evidence that he was the driver, not because of a lack of evidence of who the driver was
  • There was forensic evidence that showed the keeper lied, and that there is a legal principle that once a witness has been proven to have lied, it is likely that their other evidence is also false
  • There were material facts that the keeper had the only set of keys in his possession that night, and that nobody else had permission to drive the car

Below is some wording that can be used for rebutting the Elliot Vs Loake argument in an appeal or defence statement:

You refer to Elliot v Loake (1982) as case law which supports the view that the owner of the vehicle, if there is no contrary evidence, is the driver.

This is an incorrect representation of the case for the following reasons:

The facts of the case are that the appeal judge ruled that the appellant was the driver because of the ample evidence that he was the driver, and not, as you incorrectly state, because of the lack of evidence as to who the driver actually was.

In the case there was ample evidence that justified the magistrates to conclude that this man was driving his blue sports car on the night when it collided with the stationary car.

Additionally, a crucial part of the case was that forensic evidence showed that the appellant lied. Other material facts were that the driver had the only keys in his possession that night and that no-one else had permission to drive the car.

This case does not therefore introduce any binding legal principal as this case turned on its own facts. If any principle can be adduced, it is the well known principle that once a witness has been proven to have lied in one respect, it is likely that their evidence elsewhere is also false.

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You are also reminded you of the general principle that the claimant has to prove their case. You have shown no evidence I was the driver. This is because you cannot, because I was not the driver.

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