Late Licensing Penalty.

Joe_Horner

Paradigm wrote: »

I have a slightly different view

The DVLA not receiving (losing) a V5 isn't enough to make me liable for a penalty, they must prove that I failed to notify/send said V5.

By placing the V5 in a suitably stamped/addressed envelope & posting in a post box I have complied with the law (road vehicles (registration & licencing) regulations 2002)

The interpretations act statement "that a document posted is deemed to be served by the time it would reasonably expected to have been delivered" is the clincher.

I believe the "offence" is failing to notify & not "we didn't get it", a subtle difference.

By posting it I have notified them, the law says so

As you rightly say, it's impossible to prove it was not sent which is why they employ Debt collectors, such as Intercredit, instead of going straight to court.

Not quite. You need to quote the full section f the Interpretation Act to see why:

Interpretation_Act_1978 wrote:

7 References to service by post.

Where an Act authorises or requires any document to be served by post (whether the expression “serve” or the expression “give” or “send” or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.

(My bold underline)

In other words, if they can prove that it didn't arrive then service hasn't been effected. Which means you haven't notified, which means you are liable for a penalty because there's no defence in the RV(RL)R against failing to notify.

So their inability to prove non-receipt is as important (if not more) as their inability to prove you didn't send it, because your sending it can be taken on your word under oath, whereas they can't say under oath that they definitely didn't receive a particular letter given that they're known to lose unknown quantities of post!

Paradigm

This is where I read it differently.....

the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved

Isn't the underlined/bold bit referring to the statement in red?

Joe_Horner

No. The posting creates a rebuttable presumption of delivery. In other words, once it's posted it's assumed that it gets there. If the recipient can prove that it never did, then the service is not effected.

Bear in mind that the Interpretation Act wasn't specifically designed for dealing with the DVLA. Its purpose is to give standard interpretations for things written in other Acts in general.

Many Acts allow notices to be served by post (such as a speeding NIP) and, if proof of delivery was required in every case, then every NIP, every Court summons and so on would have to be sent recorded delivery. Apart from being expensive, it would quickly become unmanageable for everyone. So the Interpretation Act says that if something is posted then the Courts can assume it's been delivered.

That would be grossly unfair with (say) an NIP that genuinely did get lost in the post, when the first thing you know about it is when the bailiffs come knocking because you haven't paid the fine. So the Act goes further and says that if you can prove it never turned up then that over-rules the presumption that it did.

In the case of an individual, it's assumed that you don't get that much mail so a sworn statement that you didn't receive it is enough to "prove" to the extent required (the Courts sill work on the basis that we all tell the truth on oath to avoid going to Hell). It won't get you off the speeding fine, but it will invalidate the initial hearing, and give you another chance to pay up, so the bailiffs won't take your telly.

In the case of the DVLA, they receive so much mail, and it's handled by so many different people as it arrives, that they can't possibly swear a statement that "we never received that one particular letter" and they have no other way to prove non-receipt of a not-signed-for letter. Which means they can't make use of the get-out clause in the Interpretation Act, so if you posted it then they received it.

Rover_Driver

DVLA know all about the Interpretation Act, I understand that one claim that they (successfully) have used is that the regulations require the document to be delivered to the Secretary of State, (no mention of 'By Post') and it was not delivered as required, and as it is not required by the regulations to be delivered by post, the Interpretation Act does not apply in that case - although the instructions on the V5C are to send the document to DVLA...and they supply a postal address!!!

Joe_Horner

They do know about it, and they don't like it much. As far as I'm aware, they had one success using the argument you've given but several failures in other cases. I'd imagine that the success was more to do with a poorly prepared defendant than anything inherently wrong with the IA defence.

The IA says that S7 applies when service by post is "authorised or required". If their position is that the RV(RL)R don't "authorise" postal service then they have a duty to bring failure to notify charges against every driver who's sent them a V5 in the post since the regs came out because every one of those (several million) drivers has failed to abide by what the regs require according to them - specifically for every single one of them to turn up on the Sec State's doorstep with the form in their hand and wait to be able to deliver it to him in person!

That's a clear absurdity that would be created by their position, and the law doesn't like absurdities.

Meanwhile, looking more closely at the regs themselves (surprised I didn't notice this before), if they want to play literal wordings with the Act, who can spot the problem for them if we take a literal reading of section 22 (when the last V5 was issued after march 1997)?

Compare sections 21 and 22 here:

http://www.legislation.gov.uk/uksi/2002/2742/part/IV/made

and think about lost or destroyed V5s.....



(hint: the law will never enforce an obligation that's impossible to comply with)

Paradigm

Joe_Horner wrote: »

No. The posting creates a rebuttable presumption of delivery. In other words, once it's posted it's assumed that it gets there. If the recipient can prove that it never did, then the service is not effected.

Bear in mind that the Interpretation Act wasn't specifically designed for dealing with the DVLA. Its purpose is to give standard interpretations for things written in other Acts in general.

Many Acts allow notices to be served by post (such as a speeding NIP) and, if proof of delivery was required in every case, then every NIP, every Court summons and so on would have to be sent recorded delivery. Apart from being expensive, it would quickly become unmanageable for everyone. So the Interpretation Act says that if something is posted then the Courts can assume it's been delivered.

That would be grossly unfair with (say) an NIP that genuinely did get lost in the post, when the first thing you know about it is when the bailiffs come knocking because you haven't paid the fine. So the Act goes further and says that if you can prove it never turned up then that over-rules the presumption that it did.

In the case of an individual, it's assumed that you don't get that much mail so a sworn statement that you didn't receive it is enough to "prove" to the extent required (the Courts sill work on the basis that we all tell the truth on oath to avoid going to Hell). It won't get you off the speeding fine, but it will invalidate the initial hearing, and give you another chance to pay up, so the bailiffs won't take your telly.

In the case of the DVLA, they receive so much mail, and it's handled by so many different people as it arrives, that they can't possibly swear a statement that "we never received that one particular letter" and they have no other way to prove non-receipt of a not-signed-for letter. Which means they can't make use of the get-out clause in the Interpretation Act, so if you posted it then they received it.

Sorry but we'll have to agree to disagree. The Interpretation act is quite clear... once a correctly addressed/prepaid document has been posted then it is deemed (not assumed) to have been sent/served/delivered.

Nowhere in the act is there any mention of rebuttal of service.

Rover_Driver

The one case I know of on another forum, the OP was found guilty at Magistrates Court, appealed to the Crown Court and his appeal was dismissed.

The judgement was that as section 7 of the Interpretation Act states "Where an Act authorises or requires any document to be served by post....", and that Section 22 of the Road Vehicles (Registration And Licensing) Regulations 2002 makes no mention of "service by post" then Section 7 did not apply.

There is no mention of a 'V5' in Reg.21/22, RV(R&L)R, only the different process for documents issued before or after 24th March 1997.

Joe_Horner

Paradigm wrote: »

Sorry but we'll have to agree to disagree. The Interpretation act is quite clear... once a correctly addressed/prepaid document has been posted then it is deemed (not assumed) to have been sent/served/delivered.

Nowhere in the act is there any mention of rebuttal of service.

Yes, the Act is perfectly clear. If someting is posted it's deemed to arrive in the normal course of the post unless the recipient can show that it didn't.

Look again at the wording:

[...]the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.


The service is deemed to be effected by [...] posting [...]

The Act is not talking about something that someone claims they posted (although it can be used in that was where the DVLA are concerned by people prepared to commit a small perjury). It's talking about what happens when something has been posted.

and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.


So, something has been posted and it's deemed to have been served at the time it would normally arrive unless the contrary is proved.

Given that the section is talking about something that has been posted, it makes no sense at all for there to be a sub-clause about "unless it's proved it wasn't posted" because it can't have been both "posted" and "not posted"!

EdGasket

You should have sent it by 'tracked' mail then all this could have been avoided. For the extra 80p or so it is worth it. Then you have proof that they have received it or if it is 'not delivered', you know to follow it up.