Even in court, a defendant is under no legal obligation to answer any question that might tend to self-incriminate, including disclosing whether they were the driver. The burden of proof lies entirely with the claimant to prove their case; it is not for the defendant to disprove it.
While it is understandable that some defendants may feel intimidated if a judge were to ask directly, “Were you the driver?”, there remains no obligation to respond. It is perfectly reasonable to decline to answer. In practice, such direct questioning from a judge is exceedingly rare, and many experienced court users will never have seen it happen.
The judge must remain impartial and cannot assist the claimant. It is for the claimant or their representative to prove, on the balance of probabilities, that the defendant was the driver and that a contract was breached.
Should the defendant decline to answer that specific question, the judge must still determine the claim based solely on the evidence and legal arguments before the court. While the court is entitled to draw reasonable inferences, there is persuasive appellate authority confirming that refusing to answer does not in itself justify an inference of driver identity. If the judge were to find against the defendant solely on that basis, it could give grounds for appeal on the basis that the judge erred in law or reached a conclusion unsupported by the evidence.
Have read of the appellate case of
VCS Limited v Ian Mark Edward (2023) [H0KF6C9C] where the appeal was allowed because the original trial judge improperly inferred that the defendant was the driver purely because:
• He was the registered keeper.
• He did not provide any evidence to suggest someone else was driving.
The appeal judge (HHJ Mark Gargan) clearly ruled that:
• There was no evidence whatsoever identifying the defendant as the driver.
• The mere fact of being the keeper is not enough to infer driver liability.
• The lower court judge erred in law by shifting the burden of proof onto the defendant and by inferring driver identity without any evidential basis.
Therefore, to answer the original question directly: The case was appealed because the lower court wrongly inferred that the defendant was the driver without any evidence, and despite the claimant not satisfying the burden of proof.
