I would specifically set out the few paragraphs of VCS v Edward which specifically rebut the operators claim.
Paragraph;
34 I am persuaded by Mr Yamba that the evidential effect of establishing that the defendant
was the relevant keeper, does not produce any inference, rebuttable or otherwise, that the
defendant was driving on this particular occasion. Therefore, there is no material
inference for the defendant to rebut. As there was nothing for him to rebut, it does not
seem to me to be right to draw an adverse inference from his failure to engage in seeking
to rebut it. Therefore, I find that the learned district judge fell into error in making the
finding she did.
35 I am fortified in my decision for three other reasons:
35.1 the finding I make is consistent with the underlying purpose of Schedule 4 to the
Protection of Freedoms Act, namely, that it was necessary to bring in keeper
liability pursuant to that legislation, because liability could not be established. If
this were not the case car parking companies could have simply have obtained the details of
the registered keeper, launched proceedings and waited to see whether or
not there was a positive defence put forward, and in the absence of a positive
defence they would have succeeded. If the court took such an approach, it would
have been imposing a duty on the registered keeper identify the driver, or at least
set out a positive case in order to avoid responsibility himself. In my judgment that
was not the position before the Protection from Freedoms Act was in force;
35.2 my decision preserves and respects the important general freedom from being
required to give information, absent a legal duty upon you to do so; and
35.3 it is consistent with the appropriate probability analysis whereby simply because
somebody is a registered keeper, it does not mean on balance of probability they
were driving on this occasion, because one simply cannot tell, For example, there
will be companies who are registered keepers of vehicles where many drivers have
the use of the vehicle from time to time. There will be individual employers are
the registered keeper but who allow a number of people who may drive their
vehicles. There may be situations where husband and wife are each registered
keepers of their respective vehicles but for some reason drive the other. Or there
may be situations where husband/wife is the registered keeper of both family cars
and the registered keeper regularly drives one car and their spouse regularly drives
the other. These are all possibilities which show that it is not appropriate to draw
an inference that, on balance of probability, the registered keeper was driving on
any given occasion.
