To offer test drive, nor not to offer test drive.

To offer test drive, nor not to offer test drive.

 

There has been some recent publicity in the trade press about “confusion” as to whether dealers can offer test drives in England.

 

The IMDA takes the view, having taken advice from Lawdata, that there should be no such confusion, and that dealers should not be offering test drives.

 

The relevant legislation is The Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020

 

The Tier 4 restrictions (Schedule 3A) state at paragraph 10(1), that “A person responsible for carrying on a restricted business, or providing a restricted service, in the Tier 4 area must cease to carry on that business or provide that service”

 

Note that it is the business that must close, not simply the premises.

 

Paragraph (4) states that “restricted business” and “restricted service” means a business or service which—

(a)          is of a kind specified in paragraph 15(2) or (7), or

(b)          is carried on from, or provided at, premises of a kind specified in paragraph 15(2) or (7).

 

“Showrooms and other premises, including outdoor areas, used for the sale or hire of caravans, boats or any vehicle which can be propelled by mechanical means” are included at paragraph 15 (7)(dd).

 

Paragraph 12 provides an exception, stating that Paragraph 10(1) does not prevent a person responsible for carrying on a restricted business or providing a restricted service (“the closed business”) from—

 

(a)          carrying on a business which is not a restricted business, or providing services which are not restricted services—

(i)            in premises which are separate from the premises used for the closed business,

(ii)           by making deliveries or otherwise providing services in response to orders received—

(aa)        through a website, or otherwise by online communication,

(bb)       by telephone, including orders by text message, or

(cc)         by post, or

(iii)          to a purchaser who collects goods that have been pre-ordered by a means mentioned in sub-paragraph (ii), provided the purchaser does not enter inside the premises to do so,

 

So car sales business, not just premises, must be closed, unless operating in accordance with paragraph 12.

 

In our view, in the context of  “making deliveries or otherwise providing services in response to orders received”, “”orders received” means a completed order, not one subject to inspection, test drive or later payment”.

We would not consider that offering a test drive is a service provided by a dealer. It is clearly part of a sales process intended to persuade a customer to place an order. Similarly a test drive after payment is not really a test drive, as the customer is driving a vehicle for which they have paid.

 

Any car sales business offering test drives is potentially open to a penalty charge or prosecution, and in the context of the current pandemic is unlikely to receive a sympathetic hearing to any challenge.

 

Businesses wishing to sail close to the wind should bear in mind the distinct risk of sailing into troubled waters.

England

People aged 18 or over can be fined:

• £200 for the first offence, lowered to £100 if paid within 14 days
• £400 for the second offence, then doubling for each further offence up to a maximum of £6,400

Wales

People aged 18 or over can be fined:

• £60 for the first offence, which may be lowered to £30 if paid within 14 days
• £120 for the second offence and for each further offence

Scotland

People aged 16 or over can be fined:

• £60 for the first offence, lowered to £30 if paid within 28 days
• £120 for the second offence, then doubling for each further offence up to a maximum of £960

Northern Ireland

People aged 18 or over can be fined:

• £60 for the first offence, lowered to £30 if paid within 14 days
• £120 for the second offence, then doubling for each further offence up to a maximum of £960

Businesses and venues that breach the regulations may be subject to fixed penalties of £1,000 or a fine in court of up to £10,000.

Prohibition notices may also be imposed.

Not closing a business as required £1,000 fixed penalty or punishable on summary conviction by a fine not exceeding £10,000.

Not implementing measures to maintain social distancing £1,000 fixed penalty or punishable on summary conviction by a fine not exceeding £10,000.