Julian Seddon v Driver and Vehicle Licensing Agency
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hamblen,Lord Justice Newey,Lady Justice Macur |
| Judgment Date | 28 January 2019 |
| Neutral Citation | [2019] EWCA Civ 14 |
| Docket Number | Case No: A2/2018/0594 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 January 2019 |
[2019] EWCA Civ 14
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
JUSTINE THORNTON QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Macur
Lord Justice Hamblen
and
Lord Justice Newey
Case No: A2/2018/0594
John Black QC (instructed by direct access) for the Appellant
Raj Arumugam (instructed by the Treasury Solicitor) for the Respondent
Hearing date: 18 December 2018
Approved Judgment
Introduction
The question raised on this appeal is whether the DVLA, in circumstances where it has doubts which it has decided to investigate about the age or identity of a registered “Historic Vehicle” which it knows has been advertised for sale, owes a duty of care to prospective purchasers to inform the seller of its concerns.
The judge, Justine Thornton QC sitting as a judge of the High Court, held on the trial of a preliminary issue that no such duty of care was owed. The Appellant, Mr Seddon, appeals against that decision and, in particular, contends that the threefold test set out in Caparo Industries Plc v Dickman [1990] AC 605 is satisfied in the circumstances in the present case. As the judge held, the loss was reasonably foreseeable. As the judge ought to have held, there was a sufficient relationship of proximity and it is fair, just and reasonable to impose a duty of care.
The essential outline facts
The DVLA is an executive agency of the Department for Transport with responsibility for the collection of vehicle excise duty and the registration of vehicles.
In October Mr Seddon 2014 purchased a continuation AC Cobra 289 (“the vehicle”) for £250,000.
As set out in the registration document issued by the DVLA, the V5C, the vehicle was registered with a declared date of manufacture of 1964, a 1964 registration number (PTF 47B) and the taxation class of a “Historic Vehicle”.
In August 2014 the DVLA knew that the vehicle was on sale and being marketed by the registered keeper. It was in possession of a print-out of the advertisement for the sale of the vehicle on the “classic cars for sale” website. The advertisement described the vehicle as a 1964 “Historic Vehicle”.
On 13 August 2014, a Policy Adviser at the DVLA, by way of internal email, emailed another DVLA employee, referring to information in the sale advert that the car was built in 2002 and requesting that the vehicle's identity be investigated on receipt of notification of a change in keeper
Mr Seddon purchased the vehicle on 10 October 2014 for £250,000, relying in part on the existing V5C as evidence of the provenance of the car as a “UK registered 1964 Historic Vehicle”. Had Mr Seddon known that the registration of the vehicle was in doubt, and was liable to investigation on his application for a new registration document, he would not have purchased the vehicle.
In November 2014 the DVLA commenced an investigation into the registration of the vehicle. In March 2015 the DVLA decided to allocate a new Vehicle Identity Number and a “Q” plate to the vehicle. A “Q” plate is issued where the age or identity of the vehicle is not known. The DVLA's “Guidelines on how you can register kit cars and rebuilt or radically altered vehicles” (“INF 26”), states in relation to “Q” registration numbers that:
“Q”/“QNI” registration numbers are issued where the age or identity of the vehicle is not known. Although seen by many enthusiasts as a seal of disapproval, they have proved to be a useful consumer protection aid. The display of a Q/QNI registration number is a visible sign to a prospective purchaser that the age or identity of the vehicle is in doubt.”
Mr Seddon contends that the allocation of the “Q” plate had a significant effect on the value of the car. In mitigation of his losses he sold the vehicle for £100,000, resulting in a financial loss of £150,000 which he claims as damages.
The background facts
The above facts reflect the agreed facts upon which the preliminary issue was tried. These are set out in more detail in the judgment at [8]–[26], as summarised below with some additional facts taken from the documents.
In 2008, Adrian Hamilton of Duncan Hamilton and Co Ltd commissioned Brooklands Motor Company to construct a classic sports car, a continuation AC Cobra 289. The vehicle was allocated vehicle chassis number CSX 2620. It was granted a FIA ‘Historical Technical Passport’ (“HTP”) on 20 August 2009 stating that the vehicle had an “asserted” year of manufacture of 1964.
Mr Hamilton completed the requisite application for the vehicle to be registered with the DVLA as a “Historic Vehicle”. This included a Built Up Vehicle Inspection Report which stated that all the major components of the vehicle were “Refurbished Original”, a letter signed by John Owen, Chief Engineer of AC Cars stating that the vehicle “has been fully rebuilt by AC Cars, the original manufacturers, using the original refurbished major components and parts manufactured to the original 1964 specification” and the HTP. The application for registration stated that the date of original registration was “01/01/64” and that the year of manufacture was 1964.
In September 2009, the vehicle was inspected on behalf of the DVLA by Mr Tim Hanley, a vehicle inspection officer, who reported that he considered that “the vehicle is OK for a 1964 age-related mark”. Ms Joy Shumack of the DVLA's Standards and Compliance department confirmed that “the evidence is acceptable to allocate a 1964 age related mark”.
On 1 October 2009, the vehicle was allocated the Vehicle Registration Number PTF 47B, following the DVLA's investigation and physical examination. The V5C named Adrian Hamilton as the registered keeper. Section 3 of the document is headed “Special notes”. The notes include the statement “Was registered and/or used. Declared Manufactured 1964”. In section 4B, the date of first registration is cited as “01.01.1964”, which is not correct as the vehicle was first registered in 2009. The taxation class was “Historic Vehicle” which means that no tax is payable.
The car was subsequently advertised for sale. The vehicle was bought by an Austrian individual and exported to Vienna.
In October 2013, Mr Rod Leach, sole proprietor of his firm Nostalgia, acquired the vehicle and applied for its re-registration following importation back into the UK. The vehicle was registered and the V5C was issued by the DVLA describing the new keeper as “Rod Leach's Nostalgia”. The date of acquisition of the vehicle was recorded as 16 October 2013. The chassis number remained CSX 2620 and the registration of the vehicle remained PTF 47B. There is no evidence of any vehicle inspection by the DVLA at the time of Mr Leach's application to re-register the vehicle.
Mr Leach subsequently advertised the vehicle for sale.
On 13 August 2014, Ms Beverly Morgans, a Policy Adviser at the DVLA, by way of internal email, emailed another DVLA employee, referring to information in the sale advert for the vehicle and another AC Cobra, stating that:
“The above two vehicles are currently advertised for sale as ‘recreation’ vehicles built in 2002 using the 1960's original jigs. However, when registered in 2003 and 2009 they were both treated as original historic vehicles and allocated age related registration, historic tax exemption and 1966/1964 dates of manufacturer instead of newly built replicas.
Please can you set ITT 246 on both records with a note to refer to policy when a change of keeper is received. No changes should be made to the record”.
An ITT 246 involves an investigation into the registration of a vehicle.
Mr Seddon purchased the vehicle on 10 October 2014 for £250,000. He was a bona fide purchaser for value in good faith and relied in part on the existing V5C as evidence of the provenance of the car as a “UK registered 1964 Historic Vehicle”.
Mr Seddon applied to be registered as the new keeper of the car on 10 October 2014. His application was made on the basis that the car was a historic vehicle. He did not receive a new V5C as expected. He received no acknowledgement or written response from the DVLA, nor did the DVLA make him aware of their investigation.
Not having received any response, Mr Seddon telephoned the DVLA 14 days or so after his application when he was told that the vehicle's registration was under investigation.
On 21 November 2014, the DVLA commenced an investigation into the registration of the vehicle. The DVLA communicated with Mr Leach in connection with the investigation, despite having received Mr Seddon's application for registration as the new keeper (usually denoting a change of ownership).
Throughout their investigation of the vehicle, the DVLA did not communicate with Mr Seddon or make him aware that they were dealing with the matter via Mr Leach.
On 26 March 2015, a representative of the DVLA wrote to Mr Leach indicating that the DVLA had decided to allocate a new Vehicle Identity Number and the allocation of a “Q” plate to the vehicle. The original registration was now void. The outcome of the investigation was not communicated by the DVLA to Mr Seddon.
On 13 May 2015, Mr Seddon wrote to the DVLA querying the non-receipt of the new V5C. A representative responded on 21 May 2015, informing him that she had been conferring with Mr Leach throughout the investigation. She stated that following investigation the vehicle PTF 47B could no longer be classified as historic and would be allocated a new VIN and “Q” plate. She enclosed a copy of her letter dated 26 March 2015 to Mr Leach. This was the first item of correspondence by the DVLA to Mr Seddon.
Further correspondence took place in May and July 2015. In response to...
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