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Responsibility for vehicles registered in our names

 Key themes in this article: vehicles sold without completing the transfer – administrative fines under SL.368.02 -  Bonnici v. Transport Malta – Pace v. Micallef – Proportionality principle 

 

 

Introduction

Recently, I was involved in a case involving a lady who claimed that she received a letter from Transport Malta, inviting her to regularise her position concerning a number of cars registerd in her name, the licence of which had not been paid for a number of years. She was invited to take an oath, declaring that she had scrapped the cars, which oath would be accepted against the payment of an administrative charge. Her reply was that she had not scrapped, but sold the cars in question. However, due to the lapse of time and also due to the fact that she had moved house, she did not have records of the persons who she sold the cars in question to. The lady expressed surprise at the fact that the cars in question were still in her name, after all these years, notwithstanding that she had signed the transfer form and entrusted the buyer to register the transfer with the transport authorities.

 

Assuming the lady to be saying the truth, and is acting in good faith, she has a serious problem on her hands. It is natural to not recall the details of the people one sells his / her car to (unless you sell your car to a member of the family or a friend). I personally have owned a number of cars over the years, and do not remember the names or the details of the people I sold them on to. Except that, thankfully, I have no reason to believe that the transfers were not completed and have no reason to believe that these cars are still on my name. 

 

The Christopher Bonnici v. Transport Malta case

 

The harsh truth is that at law, a vehicle is the responsibility of the person in whose name it is registered. Christopher Bonnici v. L-Awtorita ghat-Trasport f’Malta (Court of Magistrates, 14 January 2013) concerned precisely this matter. Transport Malta sought payment of 960.72 Euro. Mr Bonnici claimed that these were not due, because he had sold the vehicle in question and signed the transfer form at a Police Station. Mr Bonnici said that he was no longer responsible for the vehicle in question. The Court disagreed:

 

 ‘...mill-affidavit tar-Rikorrent jirrizulta li meta gie effettwat l-allegat trasferiment tal-vettura huwa accetta li jhalli f’idejn l-akkwirent biex jinforma lill-awtorita li dak iz-zmien kienet kompetenti b’dan it-trasferiment.. Jekk ir-rikorrent verament ghazel li jhalli din il-kwistjoni kompletament f’idejn l-akkwirent u ma ghamilx il-verifiki tieghu biex jaccerta ruhu li t-trasferiment gie debitament registrat ma’ l-Awtorita’ kompetenti u l-vettura giet registrata f’isem is-sid il-gdid u b’hekk ghaddiet taht ir-responsabilita’ tieghu, huwa llum ghandu jiffaccja l-konsegwenzi...’ (Translation: ‘... from the affidavit it transpires that when the alleged transfer of the vehicle was undertaken, the plaintiff accepted to leave the matter of informing the authorities and completing the transfer of ownership in the hands of the buyer. The plaintiff did not check that the transfer was completed and the registration in the name of the new owner undertaken, so now he must suffer the consequences...).

 

Such responsibility is not just limited to unpaid licences. If a contravention is incurred, it is sent to the registered owner.  Just imagine the trouble a person can get into, with a stranger driving a car in your name, committing a crime with the car, or involved in a hit and run ... Just imagine if you lose the details of the person you sold your car to five years ago, for example you are doing spring cleaning or moving house and say ‘I dont need these any more’.... and then after you have thrown away the papers you learn that the transfer of ownership was not completed, perhaps because you signed the log book and were too busy to accompany the buyer to the licensing department to register the transfer, and that person did not go to register it ! What do you do? Do you scour the streets of Malta hoping to catch sight of the car? Do you hire a private investigator to do this work? Unless you find the present owner of the vehicle and complete the transfer, you remain responsible for this car, indefinitely. A big responsibility indeed. And a potentially big liability too: as the law presently stands (January 2013) you are incurring a two Euro per day penalty for so long as the licences remain unpaid, apart from any unpaid contraventions (SL.368.02). Yet there is no solution to this from the authorities’ part. One cannot expect Transport Malta to look away or to write off the vehicle, presuming for example that it has been scrapped or otherwise is no longer in use. It is up to the individual to make sure that when selling his / her vehicle,  the transfer is registered. It is also advisable for the individual to make sure that he retains the details of the person to whom he transferred the car, and ideally also a copy of the transfer documents too. It is up to the individual to act diligently and to preserve his own interests. 

 

As regards the two Euro per day penalty for unpaid licenses, these can well and truly add up, possibly to well beyond the value of the vehicle. In the earlier Chris Bonnici case for example, Mr Bonnici informed the Court that he had sold the vehicle in question for 300 Maltese Liri (approx. 690 Euro). To incur such costs as Mr Bonnici did, plus legal costs, and possibly additional costs if the transfer of ownership remains uncompleted, is an undesirable scenario. The question at this point is, could Mr Bonnici have approached his court action differently? Could he have challenged the two Euro a day charge on the basis of disproportionality? Could he have taken a leaf out of the Court of Appeal judgement Michael Pace v. Richard Micallef noe (Appeal, 15.12.2004) ? 

 

The Michael Pace v. Richard Micallef case

 

Pace v. Micallef concerned a contract of works which involved payment of a daily fine of 100 Maltese Liri per day (230 Euro per day) if defendant fails to complete the works. Defendant left a few minor jobs undone, and plaintiff instituted court proceedings on the basis of this contract, to recover the daily penalty. The First Hall of the Civil Court condemned the defendant to pay Lm136,700 (approx.  314,400 Euro) ... on a contract of works worth Lm15,000 (approx. 34,500 Euro). At appeal, the Courts deemed the penalty to be both disproportionate to the shortcoming, and also unfair: 

 

‘Ma hemm l-ebda dubju ta’ xejn li hemm sproporzjon astronomiku bejn il-quantum ta’ l-inadempjenza tal-konvenut appellant... u l-quantum tal-penali likwidata... Din il-Qorti tifhem li fil-kuncett tal-bona fidi jidhol ukoll certu element ta’ ekwita’ kif ukoll ta’ sens prattiku u morali li jigi vjolat mhux biss meta konfrontat b’agir specifiku doluz biex jaghmel il-hsara, izda wkoll b’dak il-komportament li jkun ghal kollox sproporzjonat u li ma jkunx accettabbli skond in-normi stabbiliti tas-socjeta’ u tal-logika guridika...’ (Translation ‘One cannot doubt the astronomical disproportionality between the quantum of the shortcoming of the appealing defendant... and the quantum of the liquidated penalties... This Court deems that the concept of good faith involves an element of equity and practicality and morality, which is violated not only when certain action leads to damages, but also whenthe behaviour is completely disproportionate and unacceptable according to the norms established by society and according to juridical logic...’

 

 The 2 Euro per day administrative fine and the Principle of Proportionality 

 

SL.368.02, reg. 14(4), reads as follows:

 

‘Where the owner of a motor vehicle, licensed by the Authority, fails to renew the applicable licence for that vehicle within three months from the expiry of the said licence, he shall be liable to an administrative fine, payable to the Authority, of two Euro (€2) for each day the applicable licence fee remains unpaid notwishtanding any ohter action whcih may be taken in terms of the Clamping and Removal of Motor Vehicles and Encumbering Objects Regulations.’ 

 

The two Euro per day ‘administrative fine’ runs indefinitely. Without trying to lessen the importance of having one’s vehicle licence renewed on time, and certainly without making it seem as if there is nothing wrong with not paying your driving licence on time, it is possible that, at a certain point, the ‘administrative fine’ will become disproportionately large when compared with the shortcoming, with the failure to pay the licence. 

 

From time to time, Transport Malta commences action against persons with unpaid licences, claiming the 2 Euro per day. The cases I have come across involved old vehicles regulated by the old pre-circulation tax regime: the road licences were low because they are not linked with CO2 emissions. In certain cases, the 2 Euro per day administrative penalty claimed ran, literally, into thousands of Euro. The recipients of these letters were undoubtedly shocked and complained about the matter. Some complained to Transport Malta, others took the matter to the Parliamentary Ombudsman. The Parliamentary Ombudsman suggested that the 2 Euro per day penalty be capped, precisely because at a certain point it may become disproportionate to the shortcoming. A person should not be made to pay an administrative penalty running into thousands of Euro, for failing to pay a licence of about 100 Euro.  Some time later, Transport Malta came up with a scheme, whereby persons in such situations, could pay an administrative penalty of €135, thus regularising their position. This administrative penalty amounted to approximately one year’s unpaid licence, and therefore could not be considered as disproportionate. However, this scheme ran out on 31 December 2012. The element of proportionality expired too. 

 

Applying the lessons of Pace v. Micallef to the present scenario

 

The 2 Euro per day penalty is intended to encourage people to renew their licences if not on time, not inordinately late. The vehicle owner enjoys a three-month moratorium from when the licence expires, to renew it without incurring the administrative penalty. The vehicle licence is more than just a tax. With its payment comes the payment of the car’s insurance. In case of an accident, insurance cover could prove vital to the victims. Thus, it goes without saying that the vehicle must be covered by a road licence at all times. However, where unpaid licences come in, there comes a stage where the administrative fine becomes disproportionate to the shortcoming. One should not forget that, apart from this administrative fine, one may incur fines if caught driving a vehicle not covered by a licence. The vehicle may even be clamped, leading to more costs. This leads me to suggest that the administrative fine stipulated in SL.368.02 should be capped, thus respecting the principle of proportionality. The law should be amended to this effect. Until then, lawyers should raise this plea if defending people in the position which Christopher Bonnici found himself in.

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