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Jo C.
Jo C., Barrister
Category: Law
Satisfied Customers: 70198
Experience:  Over 5 years in practice
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we are a used car dealer, customers often take cars for a test

Customer Question

we are a used car dealer, customers often take cars for a test drive, can you tell me what happens if a customer takes a car for a test drive, and then we get a notice of intended prosecution for speeding on a 30mph zone and doing 36mph, and is addresed to the company, and we do not have details of the driver, taking in consideration there is probably on average of 5 test drives daily.
Submitted: 3 years ago.
Category: Law
Expert:  Jo C. replied 3 years ago.
Hi.
Thank you for your question. My name is ***** ***** I will try to help with this.
What steps have you taken to discover who the driver of the vehicle was please?
Customer: replied 3 years ago.

we havent taken any steps, as people often walk in in view to buy, and they ask for test drive, in this case customer test drove and went, and said he will let us know, if this car was going to be big enough for his purpose as it was medium sized van.

Expert:  Jo C. replied 3 years ago.
No, but surely you would keep records of how takes the vehicle for a drive ?
Otherwise what would you do if they drop off with it?
Customer: replied 3 years ago.

correct but we do ask for their driving licence or keys for their vehicle.

Expert:  Jo C. replied 3 years ago.
Thanks.
You can always respond with that information.
Section 172 of the Road traffic act reverses the onus onto you. It does not ask whether you know offhand who was driving. Of course you do not. It does, however, place an obligation upon you to investigate the issue using reasonable diligence and to identify the driver.
With personal vehicles that are usually fairly easy to do is because we can all say with reasonable efforts who was driving our own personal car on any particular day.
“Reasonable diligence" has been considered is by the higher courts and it means doing things like checking your diary, retracing the journey etc.
If you genuinely cannot do so then it is a defence to say that you had used reasonable diligence and cannot say. Sometimes haulage companies are in that position. Whether a Court will accept this or not is another matter. I do see your difficulty. Any used car dealership involves a large number of test drives albeit not necessarily of the same car. Even 14 days afterwards it would be hard to identify any person.
Generally speaking, “reasonable diligence" at the magistrates court means doing everything humanly possible. Any imperfection or failing will be used as an excuse to convict you.
Also, you should remember that the law reverses the burden of proof on to you to show, on the balance of probability, that you have used reasonable diligence.
The reversal of the burden of proof has been considered at Europe and has been held the within reasonable limits.
In this case though, there isn't a great of investigation work you can do. Retracing steps, checking diaries etc will not help. You could check your records to see who was at work on that date and who would likely have deal with the customer and get a statement from that person to the effect they cannot say. A court may be unimpressed with this level of record keeping but there isnt a great deal they can do about that unless they say you are lying to avoid penalties which is why you need to gather as much evidence as possible.
Can I clarify anything for you?
Jo
Customer: replied 3 years ago.

ok thanks, ***** ***** tell me if it is law that we should keep names and adress of the people who test drive cars.

Expert:  Jo C. replied 3 years ago.
Not specifically but there is a requirement to complete a S172 form unless you can't identify the driver with reasonable diligence. A court could say that you haven't exercised reasonable diligence. I've had a couple of courts convict on that basis when I prosecuted. Personally though I would have appealed that conviction on the basis that its not the issue the law sought to address. S172 kicked in after a request has been made. Its not designed to prohibit poor record keeping generally.
Jo C. and other Law Specialists are ready to help you
Customer: replied 3 years ago.

ok, thanks finally this case driver was doing 36mph on a 30mph zone, and intended prosecution is on the company name not on the individual name, so who would they prosecute, and if there was a named driver, is there not a workshop course one can attend to avoid the points, we were not offered this, i suppose this is because there is no named driver.

Expert:  Jo C. replied 3 years ago.
They can prosecute the company for failing to identify but usually they add the directors as well.
This is a S172 form so they would not make any offers at this stage.
Customer: replied 3 years ago.

ok, thanks for all your help.

Expert:  Jo C. replied 3 years ago.
No problem and all the best.

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