The Warwickshire Storage Judgement

W

In the Warwick County Court

DEPUTY DISTRICT JUDGE MAJOR:

A. THE BACKGROUND

  1. This matter comes before the court today under an allocation by consent to the small claims track with a view to resolving the dispute between the parties which arises against the following background_ On 20th November 2008 there was a road traffic accident at a place described in the papers as Rowan Ringway, Nuneaton, which falls within the control of the Warwickshire police authority who appear as the first defendant. The claim now relates to recovery of storage charges in the circumstances set out below.
  2. The claimant is an insurance company as the result of honouring obligations pursuant to its policy of insurance held by the. original owner of the vehicle concerned. The claim was originally brought with a view to obtaining an order for damages for retention, an order for delivery up and a declaration that the vehicle in question was held pursuant to the provisions of the Police and Criminal Evidence Act 1984 (which I shall refer to hereafter as “PACE”). In the event that that declaration was appropriate and had been granted, it would lead to a situation where no storage charges would be recoverable by the first defendant from the claimant in respect of the vehicle in question.
  3. The original claim was brought against the police authority as first defendant and the second defendant, as the agent of the first defendant and which had been responsible for recovery of the vehicle following the accident and subsequent storage pending return of the vehicle to the claimant.
  4. I have indicated the basis of the original claim at the outset because, in the events which have occurred, those applications for relief are no longer relevant. As the result of a defence filed separately on behalf of each defendant and a counterclaim raised on behalf of the first defendant, the case before the court today has been narrowed to one where it has been pursued on the basis of the counterclaim only whereby the first defendant seeks to recover the cost of removal and storage charges incurred in respect of the vehicle in question arising between 22nd November 2008 and 9th February 2009.
  5. I was told today that during the course of the interlocutory procedure the claimant had paid the sums apparently due for the period up to 2 December 2008, but there remains a dispute with regard to the amount raised under the counterclaim for the period between 3rd December 2008 and 9th February 2009.

B. THE CLAIMANT’S CASE (THE LETTER OF 2nd DECEMBER 2008)

  1. The significance of 2nd December 2008 is that, on that date (and appearing at page 77 in the bundle) the first defendant sent a letter to the various interested parties involved in the original road accident. Which the claimant contends constituted a fundamental change in the status of the continuing custody of the vehicle by the first defendant. The claimant’s case is that, as the result of that change of status. no storage charges are payable from that date onwards because the continuing custody of the vehicle by the first defendant from that date was effectively under the terms of its right to retain the vehicle by reference to the provisions of PACE.
  2. That argument is raised on behalf of the claimant against the background that the counterclaim is brought on the basis that the original removal of the vehicle from the site of the accident on 20th November 2008 was pursuant to the provisions of section 99 of the Road Traffic Regulation Act 1984 (which I shall refer to as “RTRA” hereafter).

C. THE FIRST DEFENDANT’S CASE

  1. The first defendant’s case on the basis of that authority is that at all material times between the dates to which I have referred, the vehicle which was removed was in the custody of the police and subject to the right of the police to recover storage charges until such time as, in this case, the claimant (as owner) paid the amount of storage charges which the police had levied through their agent, the second defendant.

D. THIS INCIDENCE AND LAW APPLICABLE

  1. In approaching the dispute between the parties, the court has been referred to a substantial bundle or court papers, witness statements and documents, and it has been referred to the detailed provisions of RTRA I984 and the Provisions or PACE. l have in mind is the common ground that the vehicle in question was originally removed pursuant to section 99 RTRA 1984 and that, on 9th February 2009, the police were prepared to make the vehicle available to the claimant provided storage charges outstanding, up to that date were paid, In the absence of payment. the first defendant retained the vehicle, as they accept, under the provisions of PACE and no longer pursuant to the provisions of RTRA 1984.
  2. The court then looked closely at the sequence of events after the initial removal before the vehicle became available to the claimant on 9th February 2009. The sequence is important in order to understand the context in which the claimant submits that, on and after 2nd December 2008, it was no longer appropriate for the police to be entitled to recover storage charges, but rather no storage charges were recoverable because PACE was by then the defining authority whereby the police were retaining the vehicle.

E. THE WITNESSES

  1. The court considered the statements on behalf of each party and which included the evidence of Mr Hammond on behalf of the second defendant by way of supplement to his statement on the file. It is also right to record that the first defendant’s witnesses were not available to attend for reasons I do not need to refer to in detail. What actually happened today was that Karin! William Turner was offered to present formally the statements of the first defendant on the bundle and to offer any comments he could by way or clarification.
  2. It is right to say that, while I am sure Mr Turner did his best to assist the court, in reality he was of no help at all – not, in my judgment, for any reason for which l must blame him. Rather, he was very forthright in making it clear that he had only become aware of this case about three weeks ago, when it was realised that the first defendant’s. witnesses were unlikely to be available, and in any event he was a police officer who had spent most of his time in the traffic department with little or no pretension or actual knowledge of the legal basis under which the police seek to operate in these situations. While he did appear and was asked questions, I have no alternative but to proceed on the basis of the written evidence of the witnesses who were not present and make of them what I can.
  3. So far as the claimant is concerned, Mr Maycock gave evidence to supplement his written statement, and I also have before me the evidence of Mr Chatten. The relevant history is that Mr Maycock is a motor assessor. On 27th November 2008 his employer, Banwells, was instructed to inspect the ‘vehicle, which (for the record) was a Volkswagen Transporter, as he described it. It has been otherwise described as “a minibus” which had been involved in the accident. Although he had instructions on 27th November, he did not undertake any further action Until 16th December 2008 when he arranged to inspect the vehicle. By that date the vehicle was held at the premises of the second defendant, albeit at a set of farm buildings which they used for storage a mile and a half or so away from their normal place of business.
  4. Although he gave evidence of his belief that the vehicle in question was in (what he described as) an area designated as a police area (i.e. it contained vehicles being held on police instructions), that description of the area in question was denied by Mr Hammond, who accepted that they held a number of police vehicles in the course of their regular business for the first defendant, but it was in no way a designated area. In my judgment, that apparent inconsistency is not determinative of this case. It is relevant to record only that the second defendant was holding the vehicle, on behalf of the first defendant and that Mr Maycock inspected it on 16th December 2008. It was a visual examination which was, as he says, sufficient for his purposes.
  5. He then prepared an inspection report which went back to the insurers. It was not until 19th December that Banwells were again instructed – this time with a view to collecting the vehicle. The evidence is that they were intending to use one of their normal agents, known as HBC. So Mr Maycock’s involvement was no longer direct.
  6. The evidence of Mr Chatter], being a director of HBC, was that they have authority to incur storage and recovery charges without seeking prior ‘approval from insurers up to an amount of £500. He described the normal process and he indicated that on this particular occasion one of their staff contacted the second defendant on 22nd December with a view to establishing what the situation was with regard to the vehicle. It is common ground that, on or about 22nd December 2008, HBC was informed of the charges which it was contended were then payable before the police would feel able to allow the owner to recover the vehicle.
  7. In effect, the evidence on behalf of the claimant was that, from 22nd December 2008 until 9th February 2009 (the date at the end of the period with which 1 am concerned), it did nothing else. They made no enquiries as to precisely the basis upon which the vehicle was being held by the police, and they were, on the face of it content to allow the vehicle to remain where it was, against the background that they were being told (in terms which indicated that the vehicle was still to be held by the police) that the police were not prepared to allow recovery to take place.
  8. In the meantime,. as l have indicated, the letter of 2nd December had been sent. The claimant’s case is that, allied to the information which was being given on the telephone in December 2008, against the background of the terms of the letter of 2nd December 2008, their perception was that the police were now holding the vehicle pursuant to PACE rather than pursuant to RTRA 1984. In my judgment, it is significant that no attempt was mode to clarify that. A view was taken, upon which the claimants relied. In looking at whether that was a reasonable perception, I am asked to consider the wording of the letter of 2nd December 2008, The claimant says that, if you look at the terms of it, it is clearly a letter invoking the provisions of PACE rather than in any way associated with an RTRA removal.
  9. I note that there is no reference in the letter to PACE. Indeed, there is no reference to any formal authority upon which the police sought to write that letter. It has been referred to in the papers as a “Beckford letter” (which 1 am told is against the background of observations of a judge in a previous criminal decided case). Be that as it may, I further note that, amongst other things, it draws to the attention of anyone who might be interested to have the vehicle in question inspected the need to deal with that within 14 days. Failure to proceed on that basis will lead to steps being taken by the police which would prejudice the rights of such parties thereafter. It draws attention to the possibility that anyone who wishes the vehicle to be retained will be liable for any storage costs. In that respect I agree with the contention of counsel for the first defendant that the reference to storage charges is completely inconsistent with the provisions of PACE, which has the effect that no storage charges are directly payable if the police choose to use PACE as the basis for retention. So that in itself, in my judgment, mitigates against this matter being a PACE-based letter.

F. FINDINGS. AND JUDGMENT

  1. I find that it was inappropriate for the claimant to proceed on the basis of their perception, to which I have referred, on the basis of that very flimsy evidence. They, could, and in my judgment should, have taken up any uncertainty, particularly when they knew that storage charges were to be levied at a figure which had been clarified. If they wished to recover the vehicle under the provisions of section 99 RTRA, which on any view was the basis on which the vehicle had been initially removed, that should have been made clear.
  2. So I repel the claimant’s contention that PACE was by then relevant to whether or not storage charges were payable. Leaving, that argument aside., I have to decide, in my ‘judgment separately, whether there was a continuing right to storage charges under section 99 RTRA in the absence of any formal documentation emanating from the first defendant which would make it clear to any owner (and in this ease the claimant) how things stood. There was no such documentation – certainly not brought to my attention. In approaching the first defendant’s case, I must remind myself that in this matter, proceeding on the counterclaim, it is for the first defendant to satisfy the court by reference to the balance of probabilities test, that their claim is more likely to be correct than the case offered by the claimant in defence.
  3. In doing that, have looked closely at the legislation. The parties have directed the court in detail to various provisions of RTRA 1984, but in reality, in my judgment the position is clear. Having removed the vehicle. as they were authorised. to do following the accident, the provisions of section 101 come into play. It is clear, under section 101A (1), that if a vehicle is claimed by a person., in this ease the claimant, who (a) satisfies the authority that he is its owner, that owner must (b) pay the relevant charges. In my judgment, it is important to have in mind too the wording which continues: that the authority (in this case the first defendant) shall permit the owner to remove the vehicle from their custody “within such period as they may specify”.
  4. 1 refer to those words because I was troubled that there may be an open-ended ability for the police to charge storage charges almost without restriction, That point was not raised formally before me today, but it has troubled me in the process of hearing the case. I am satisfied that there is a discretion within section 101A for the police in this case to charge storage charges and to withhold the vehicle until payment, and separately, if they so wish, to say that they are not prepared to release the vehicle even if charges are paid.
  5. The situation here, however, is stronger. in my judgment, for the first defendant because, in the knowledge that charges were payable, the claimant chose not to make any payment; nor indeed any offer to do so. Indeed quite the reverse. The evidence before me is that, when faced with the prospect of making payments, they specifically declined to do so: firstly, in the sense that HBC (which had a degree of authority but was not able to exceed that authority when they became involved) referred it to the claimant, which not only took the matter no further after 22nd December 2008 but, when the time came on 9th February that they were told that they could have the vehicle, declined to pay any charges at all. It was only, as the result of subsequent action, I am told. that the payment on account was tendered.
  6. So, I have no difficulty in finding that the first defendant is entitled to recover the balance of the amount for which they originally contended in the counterclaim. I propose to make orders accordingly