3. 'Keeper' vs 'Registered Keeper' - PoFA
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The Rookie

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'Keeper' vs 'Registered Keeper' - PoFA
« on: January 10, 2024, 09:18:02 am »
Quote from: H C Andersen on January 09, 2024, 05:37:42 pm

We wish to confirm that SLtd is the hirer and keeper of the vehicle in question

No you are not. The 'keeper' is the registered keeper.

The hirer is the hirer, that's it, the hirer.
Erm, really not.
The registered keeper is assumed to be the keeper unless otherwise 'proven', the hirer is the keeper with respect to 'keeper liability' (funnily enough).
Quote
“keeper” means the person by whom the vehicle is kept at the time the vehicle was parked, which in the case of a registered vehicle is to be presumed, unless the contrary is proved, to be the registered keeper;
All in S4 of The PoFA.

Yes I realise that in para 13 then get's it's knickers in a twist when referring to the registered keeper as keeper with respect to naming the hirer, but that's because they are still the keeper until the hirer (and actual keeper) is named, just another example of the really bad drafting.
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H C Andersen

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Re: 'Keeper' vs 'Registered Keeper' - PoFA
« Reply #1 on: January 10, 2024, 06:22:52 pm »

No confusion. Para. 2, (effectively Definitions) states that the 'keeper' is presumed to be the RK. It then defines RK. That's it.

This is the last time that the RK is mentioned. Having disposed of who is the 'keeper' in s2, the rest of Sch 4 refers only to 'keeper' as it should, incl
para. 13.

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The Rookie

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Re: 'Keeper' vs 'Registered Keeper' - PoFA
« Reply #2 on: January 11, 2024, 08:28:25 am »
Quote from: H C Andersen on January 10, 2024, 06:22:52 pm

No confusion. Para. 2, (effectively Definitions) states that the 'keeper' is presumed to be the RK. It then defines RK. That's it.

This is the last time that the RK is mentioned. Having disposed of who is the 'keeper' in s2, the rest of Sch 4 refers only to 'keeper' as it should, incl
para. 13.
If the contrary is proved, then the registered keeper is no longer the keeper, that is surely self evident.

Nearly everywhere else it refers to whoever is proven to be the keeper, although the poor drafting means sometimes the entity who is the RK is referred to as the keeper. Para 4 makes the keeper liable, under your interpretation a Hirer could never then be liable, as nothing ever makes a hirer liable only the keeper.  It's just really shoddy drafting but it's clear once the hirer is proven to be the keeper ILO of the registered keeper they are then the keeper as well as the hirer.
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H C Andersen

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Re: 'Keeper' vs 'Registered Keeper' - PoFA
« Reply #3 on: January 11, 2024, 10:55:51 am »
Agreed.

But as regards the issue of what conditions are necessary to rebut the presumption of who is keeper, this judgment by the Supreme Court cannot be ignored(it's still on the ETA Key Cases 'meaning of keeper').

https://www.londontribunals.gov.uk/sites/default/files/keycases/francis-v-wandsworth.pdf

IMO, it is immaterial that this relates to a penalty charge notice and the presumption regarding who is to be considered the 'owner', because the court's reasoning refers to different Acts and regulations which remain in common use today. I have no doubt that any court would be obliged to apply this judgment in cases of PoFA-related claims.

Rebutting the presumption isn't just that A had it in their possession on the day but B was the registered keeper.

Until I was referred to this judgment some years ago my thoughts were aligned with The Rookie's, but not now. 

If others have subsequent case law which sets a different precedent then fine, I'd adopt those standards in future analysis.
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DWMB2

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Re: 'Keeper' vs 'Registered Keeper' - PoFA
« Reply #4 on: January 12, 2024, 11:53:21 am »
I have split this discussion off from "Euro Car Parks PCN – Parked longer than maximum – Sainsburys Ilford", as there seemed to be some appetite to continue the discussion, but doing so in the OP's thread would likely lead to confusion, and be of little benefit to his case.
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tonys

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Re: 'Keeper' vs 'Registered Keeper' - PoFA
« Reply #5 on: January 12, 2024, 01:26:50 pm »
Has anyone yet seen a case where this was a defence? Where the RK was not the "keeper" at the time?
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The Rookie

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Re: 'Keeper' vs 'Registered Keeper' - PoFA
« Reply #6 on: January 15, 2024, 04:07:11 pm »
Quote from: tonys on January 12, 2024, 01:26:50 pm
Has anyone yet seen a case where this was a defence? Where the RK was not the "keeper" at the time?
I know of cases where PoFA wasn't complied with and the keeper could show they were not the driver, the claims rarely get to an actual court.

But were the RK wasn't the keeper, can't recall any cases where this was used, or even could have been used.
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