DVLA SAR data reliable?

DVLA SAR data reliable?
Posted by guest968 on 07 Dec, 2023 23:37
I won't go through the ins & outs of the parking event, as this is pretty much a generic question, but I will list the key dates. The full details are on pepipoo for anyone who wants to look, http://forums.pepipoo.com/index.php?showtopic=149771 but the specifics of the alleged contravention are not what I'm writing about here.

My question is when a keeper asks the DVLA for details of third parties who have made requests for keeper information, do they always get it right in their replies? Never miss anything?

Timeline:

21/03/23 Notice fixed to windscreen from Parking & Property Management
13/04/23 Appealed as keeper
19/04/23 Appeal rejected
03/05/23 NTK issued
10/05/23 I requested enquirer details from DVLA
23/05/23 I provided more identity confirmation details to DVLA re Data Protection Act
05/06/23 DVLA replied, showing that my details had been requested -
16/02/2022
06/01/2023
and neither request came from P&PM
26/08/23 I made another request to the DVLA
18/09/23 DVLA replied, showing that my details had been requested -
16/02/2022 (same as before)
06/01/2023 (same as before)
09/06/2023 (not P&PM)

The reason I may come across as a bit paranoid is that I have told both P&PM and their debt collectors, BW Legal, that my details were clearly not requested from the DVLA by P&PM, at any time, let alone within the timescales laid down in PoFA, I have pointed out that that is undeniably a failure to comply with PoFA Schedule 4 Paragraph 11, which is a mandatory condition required if someone is to have the right to claim unpaid parking charges from the keeper of vehicle as provided in Schedule 4 Paragraph 4.

I did not just assert this, I sent them a copy of the DVLA letter of 5th June showing that P&PM did not request my details.

And yet they persist. The latest letter I've had from BW Legal said

You have stated that our Client has no rights under the Protection of Freedom Act 2012, Schedule
4, Paragraph 4 to recover any unpaid charges from you. Your reasons for this are that our Client
failed to request his details from the secretary of state via a Subject Access Request, to the DVLA
within a specified period
a. We maintain that the PCN was rightly issued under the Protection of Freedoms Act 2021 (sic) and
are Client is legally entitled to pursue you as the Registered Keeper of the vehicle for this
balance.
b. Our client's signage confirms they may request registered keeper's details from the DVLA
for the purpose of issuing a PCN. As an approved car park operator, our Client is able to
obtain details from the DVLA in the event the Terms and Conditions of the Car Park have
been breached. The extract below from the DVLA Release of Information document affirms
our Client's position. 'DVLA's vehicle register holds the details of a vehicle's registered
keeper. These details may be disclosed to law enforcement authorities, private litigants and
organisations as a first point of contact to establish where liability for an incident or event
may lie. Disclosure in these circumstances does not breach the DPA and the Information
Commissioner's Office is fully aware that data held on the DVLA's records is released in this way'

I don't dispute (b), but they simply didn't do that and therefore regarding "a. We maintain that the PCN was rightly issued...", either

i) BW Legal are not taking note of anything I tell them, or
ii) No actual solicitor there has read what I'm telling them, it's just some office admin person replying from a script, or
iii) They know full well that their client screwed up but are ploughing on regardless, maybe hoping to bully me into caving in.

So I just want to be sure, before I press on, that there's no chance that the DVLA could have messed up, and that P&PM did actually request my details, but that fact has got lost somehow.

PS - I'm going to post this on Pepipoo as well, as I'm still not clear to what extent ftla has taken over, or what the overlap of community experts is.

#1 Reply
Posted by The Rookie on 08 Dec, 2023 09:12
What difference do you think it would make if they accepted it?

The would still pursue you on the 'reasonable assumption' the keeper was driving.

Have BWL issued a letter of claim or acting as mere debt collectors (as seems likely), if the latter then why are you wasting breath on them, they don't know any facts and will just say anything in the hope you'll pay.

If it gets to court, will lack of PoFA compliance help you in the event they ask who was driving? Don't answer here, but consider that issue.

#2 Reply
Posted by slapdash on 08 Dec, 2023 10:19
If it hasn't gone to popla/ipc, and the driver hasn't been outed then not doing a DVLA request surely means they have not complied with POFA and that might (should) get a cancellation at that point.

If it isn't and it goes to court and the question is asked unless the answer can be no that is unhelpful.

Presumably they are using keeper details which were provided by the OP in the original challenge of the windscreen ticket.

#3 Reply
Posted by guest968 on 08 Dec, 2023 16:33
Quote from: The Rookie on 08 Dec, 2023 09:12
What difference do you think it would make if they accepted it?
The difference that a solicitor should advise his client that continuing to claim he has done something which he demonstrably has not will not go down well in court.

Quote from: The Rookie on 08 Dec, 2023 09:12
Have BWL issued a letter of claim
No.

Quote from: The Rookie on 08 Dec, 2023 09:12
or acting as mere debt collectors (as seems likely), if the latter then why are you wasting breath on them, they don't know any facts and will just say anything in the hope you'll pay.
I'd hope that common sense would prevail, and that them knowing the facts, attested to by the DVLA, would make them and the parking company give up this nonsense of pursuing me as keeper on the basis of a "right" which they failed to establish by failing to follow the legal process.

#4 Reply
Posted by guest968 on 08 Dec, 2023 16:41
Quote from: slapdash on 08 Dec, 2023 10:19
If it hasn't gone to popla/ipc, and the driver hasn't been outed then not doing a DVLA request surely means they have not complied with POFA and that might (should) get a cancellation at that point.
Driver has not been "outed".

P&PM are not POPLA members, but it's been appealed to IAS with predictable results.

Quote from: slapdash on 08 Dec, 2023 10:19
If it isn't and it goes to court and the question is asked unless the answer can be no that is unhelpful.
What question, and what's unhelpful about an answer other than 'no'?

Quote from: slapdash on 08 Dec, 2023 10:19
Presumably they are using keeper details which were provided by the OP in the original challenge of the windscreen ticket.
That's my assumption.

#5 Reply
Posted by H C Andersen on 08 Dec, 2023 16:59
Your timeline..

...03/05/23 NTK issued

After which you don't seem to have engaged with the creditor within their stipulated timeframes.

Is this correct?

In which case either:
1. You will bluff the creditor out of initiating legal proceedings because of their apparent failure, or
2. They will press on to court.

As regards 1, who's to know? If you could give them any case law which showed that if they did not obtain the keeper's details from DVLA then a court would find in your favour, fine. Do you have this? Does anybody?

As regards 2, what would a judge find? Yes, in theory the claimant should have used DVLA data, buy IMO they could take a more purposive approach to their interpretation and application of PoFA and conclude that the purpose of the DVLA provision is simply to ensure that the correct person is issued with a NTK and that because you had already admitted that you were the keeper(although we haven't seen the exact text) then them not contacting DVLA would not deny them the opportunity to pursue you as keeper given that you'd already claimed to be as much.

I would think hard about going to court simply on this basis.

#6 Reply
Posted by slapdash on 08 Dec, 2023 17:03
As intimated by rookie a judge may ask "well, were you driving".

I think your argument is simple: "They have not complied with PoFA and therefore cannot persue me in my capacity as keeper."

That may be true. But until you receive a statement of claim and skeleton argument you won't know what they are arguing. You would also need to keep the argument confined to that point.

Equally does an inability to persue you keeper prevent them from persuing you as driver ? The underlying contract was formed by the driver, whoever that may be.

Yes, of course you can state "but they don't know who the driver was", but if the judge ask the question it's a problem.

#7 Reply
Posted by guest968 on 09 Dec, 2023 18:57
What law compels a keeper to identify the driver?

#8 Reply
Posted by slapdash on 09 Dec, 2023 19:23
Probably none. But why does it matter?

I think the judge can probably ask whatever they like. I believe it has been asked.

#9 Reply
Posted by guest968 on 09 Dec, 2023 20:26
Quote from: H C Andersen on 08 Dec, 2023 16:59
Your timeline..

...03/05/23 NTK issued

After which you don't seem to have engaged with the creditor within their stipulated timeframes.

Is this correct?
I appealed to both the alleged creditor and the IAS within the timescales for those appeals.

Quote from: H C Andersen on 08 Dec, 2023 16:59
In which case either:
1. You will bluff the creditor out of initiating legal proceedings because of their apparent failure, or
2. They will press on to court.

As regards 1, who's to know? If you could give them any case law which showed that if they did not obtain the keeper's details from DVLA then a court would find in your favour, fine. Do you have this? Does anybody?
I don't have any, I can't speak for others.

Quote from: H C Andersen on 08 Dec, 2023 16:59
As regards 2, what would a judge find? Yes, in theory the claimant should have used DVLA data, buy IMO they could take a more purposive approach to their interpretation and application of PoFA and conclude that the purpose of the DVLA provision is simply to ensure that the correct person is issued with a NTK and that because you had already admitted that you were the keeper(although we haven't seen the exact text) then them not contacting DVLA would not deny them the opportunity to pursue you as keeper given that you'd already claimed to be as much.
So you're suggesting that someone could go to court and claim that they had a right to recover a debt from me because of an Act which says that they have such a right even though the Act says that they only have that right if they obtained my details from the Secretary of State, and they did not obtain my details in that way because what they did was good enough? That essentially the provisions in the Act did not apply to them because I'd appealed against the PCN?

Interesting.

#10 Reply
Posted by guest968 on 09 Dec, 2023 20:46
Quote from: slapdash on 09 Dec, 2023 19:23
Probably none. But why does it matter?
It matters hugely if a court may or may not compel me to do something which no law permits them to do.

Quote from: slapdash on 09 Dec, 2023 19:23
I think the judge can probably ask whatever they like. I believe it has been asked.
And if when asked I ask if there is a law which compels me to answer?

If there isn't (and so far I've only found that there is wrt prosecution for RTA offences), and I respond that as I am not compelled to I decline to?

#11 Reply
Posted by The Rookie on 11 Dec, 2023 16:21
Quote from: Scientist and Saint on 09 Dec, 2023 20:46
Quote from: slapdash on 09 Dec, 2023 19:23
Probably none. But why does it matter?
It matters hugely if a court may or may not compel me to do something which no law permits them to do.
This isn't a criminal matter its civil, the law permits them to ask you and if your there as a witness to answer, even if you aren't acting as a witness they can still ask you. This is about determining liability fairly, not hiding behind legal skirts.
If you won't answer the Judge is at liberty to imply whatever inference they feel like and may well (will very likely) on balance of probabilities determine you were driving.
Common sense by the way says they should keep harassing you hoping you'll pay, not just give up.

#12 Reply
Posted by guest968 on 12 Dec, 2023 13:12
One wonders then what is the point of them pursuing me on the grounds that PoFA says they can hold me liable.

One wonders then what was ever the point of Schedule 4 of PoFA if they can just initiate proceedings against the keeper and succeed in court because on the balance of probabilities the keeper would have been the driver.

#13 Reply
Posted by DWMB2 on 12 Dec, 2023 14:04
Quote from: Scientist and Saint on 12 Dec, 2023 13:12
One wonders then what was ever the point of Schedule 4 of PoFA if they can just initiate proceedings against the keeper and succeed in court because on the balance of probabilities the keeper would have been the driver.
One of the other Schedules of PoFA outlawed clamping on private land (finally!) - as an alternative to holding someone's car to ransom, Schedule 4 provided a mechanism to prevent those in receipt of a parking charge simply ignoring it, or saying "wasn't me driving guv'", and there being no mechanism to then recover the charge.

Compliance with PoFA is not mandatory, but without it, they can only hold the driver liable. They don't have any evidence of who that driver is, but some do proceed on what they describe as the "reasonable assumption" that the keeper and the driver are the same person. Their logic here is usually that if the keeper was not the driver, he would have said so, as this would strengthen his case considerably, and so the fact he has not implies that he was in fact the driver. How reasonable this logic is remains open for discussion, but if you're unlucky and get the wrong judge they may well agree with this logic. Equally, as has been suggested above, get the wrong judge, and they may have little patience for what they consider trivial technicalities and simply ask if you were indeed the driver. I'd suggest the chances of this might increase where this was the only defence point, and the driver was clearly in breach of the terms and conditions.

We only see a very small portion of all of the cases that go to court, and of those the results can vary even in cases with similar circumstances, so it's hard to predict what would happen, but it's important to be aware of the risks involved. Your arguments are not wrong as such, but going to court relying solely on an argument that is basically "prove it was me driving" carries risk, as the judge only has to find that you were on the balance of probabilities, a much lower bar than beyond reasonable doubt.

#14 Reply
Posted by H C Andersen on 12 Dec, 2023 15:38
The purposive approach has its roots in legal systems based on civil codes. It is a method of statutory interpretation which considers the purpose of the provision and interprets the provision in accordance with that purpose.

One of many definitions you will find.