31 August 2016

Ignorance of the law excuses no-one

Mustafa from Morris Mustard on Vimeo.

Hello everyone, Mr Mustard, or in actual fact Mustafa, needs your help in the form of a donation to legal costs.

Mustafa is a polite and calm man in his twenties. He is studying and was doing some part time taxi driving work when he hit a problem, the bailiff illegally removed his car aided and abetted, in effect, by the police.

On 15 July 2016 Mustafa purchased a car for £2,700. He paid cash but received a comprehensive Car Sales Agreement, an A4 piece of paper containing the details of the vehicle, the buyer & the seller and the price paid which is receipted.

On 22 July 2016 it was clamped. Mustafa sat inside and phoned the bailiff, probably expecting rather naively that he would show the bailiff his paperwork and the clamp would be removed. Not so fast Mustafa.

Needless to say the bailiff wasn't being reasonable and called the police to attend. The police should have been innocent independent bystanders as the collection of a PCN is a civil matter not a criminal one. The bailiff has no power to smash his way into premises (and premises by definition includes a car) but the police stood by and watched as he did this very thing, the committal of a criminal act.

Once the window was smashed in Mustafa was arrested and taken to Colindale police station. The outcome of his time there was that the police decided that they had no right to detain Mustafa and hence they can't have had any right to arrest him either. A complaint has just been filed with the Met Police.

Why the police let the bailiff smash a window in when they had already said to Mustafa "Yes you own the car" is a question that the investigation will have to answer. Mr Mustard can tell them the answer. It is that the police considered the warrant as being against the car but warrants are always against a person or company and it is their assets which can then be distrained upon (grabbed), the warrant is not attached to the car per se.

This is what the Citizens Advice Bureau has to say on this subject.

It isn't the case either that the previous owner sold the car to Mustafa in the full knowledge he had a warrant outstanding because the previous owner only bought on 21 June 2016. There are 5 former keepers going back to 2009.

The warrants, it turns out, are from January and April 2016 but they haven't been seen and Mustafa isn't entitled to see them as his name is not on them. Strange but true. Here is part of the police custody record

Mr Mustard sent the bailiff firm, Collect Services Ltd, a claim to the car on behalf of Mustafa along with the V5 and the Car Sales Agreement. He then also sent them proof of insurance. It took 14 days and a nudge from Mr Mustard for Collect Services Ltd to refuse Mustafa's claim to have his own car back (possession really is nine points of the law). The informal approach having failed, and it is always sensible to try to agree matters without court action, a Third Party Claim will have to be made in accordance with Schedule 12 of the Tribunals, Courts and Enforcement Act 2007. The problem is that even if you win the day, and recover your car, you will not recover the costs of legal representation as these are not allowed for Small Claims (those under £10,000). It isn't sensible for a person to represent themselves in person if they want the best outcome and Mr Mustard isn't qualified to appear. A barrister is a wise investment. You can be sure that the bailiff will be supported by his firm who will have experienced legal representatives and they have deep pockets.

This is where you come in. Mr Mustard's solicitor is going to help out but there will be court fees to pay and a barrister to present the argument in Court.

£1,500 needs to be found and this is where you come in. Please send what you can afford to Mr Mustard's separate charitable purposes bank account:

Sort code: 16-00-38
Account number: 11395624
Account name: Mr Derek R Dishman

and use the reference 'Mustafa'.

Justice is hard to fund for the less well off especially when you have a student loan and your principal business asset has been forcibly removed from you. Please be generous.

Yours frugally

Mr Mustard

25 August 2016

what is the Overnight Waiting Ban in Barnet?

These are extracts from the relevant traffic order made in 1988:

"No person shall cause or permit any commercial vehicle to wait during the prescribed hours in any restricted street."

That is 99% of the borough - exemptions below

Read this as from 6.30pm to 8am i.e. Overnight

the vehicles which cannot be parked (wait) overnight
This is what the council have just written in their response which rejects a challenge that a 3.5 tonne 15 seater mini-bus, used by a large family to transport the numerous off-spring and their stuff:

but Mr Mustard reads the effect of the traffic order, in so far as which vehicles are caught by it, like this:

- any vehicle which exceeds 5 tonnes cannot park overnight

- but a mini-bus that has up to 13 seats and weighs over 5 tonnes can park overnight

- a mini-bus that weighs over 5 tonnes and has 14 seats cannot park overnight

- a mini-bus that weighs less than 5 tonnes can park overnight no matter how many seats it has, just 2 or 20.

Is he right or are the council?

Yours frugally

Mr Mustard

The exempted streets. Please do not park on the M1 overnight!


24 August 2016

Bailiff finds a PCN he doesn't want enforced

Mr Mustard keeps an eye on all Connell Crescent tribunal PCN decisions. It is a location where motor vehicles are banned from entering between 3 and 7pm during the week. Thousands of people have missed the badly placed & misleading signs although he could not get an adjudicator to agree that when he represented several motorists at once and he lost. He has since asked for a Review on two grounds. The tribunal software supplier, Northgate, accidentally booted the on time review request into the long grass. It is now on the pile of review requests awaiting the first sieve to see if they have any merit whatsoever.

One decision which tickled Mr Mustard's funny bone was one that concerned Marston Group, a very large firm of bailiffs, one of whose employees or self-employed agents, 'Milenkovic' (Miroslav Milenkovic does appear in the bailiff register & is registered by Hertford County Court) drove past the no motor vehicles signs at 3:27pm

The grounds of appeal were that Marston Group wanted to transfer liability to some other person which is allowed if the vehicle is on hire for less than 6 months, or on lease, or you can prove that there is a permanent transfer of keeper. The tribunal record is only a brief one so it might be the opposite, that Marston were objecting to the transfer from Zenith.

So, having asked for a hearing, the bailiffs were not respectful to the tribunal by dint of not showing up. Nor did the bailiffs produce any paperwork to show why the transfer might not be correct.

Mr Mustard could have told the bailiffs that the argument about signs would not have worked as he spent a whole afternoon in front of the adjudicator Mr McFarlane arguing about signs, which Mr McFarlane has visited site to see for himself.

Let's hope that Marston now settle the PCN at £130 as otherwise the bill will go up by 50% and then another £8 will be added for county court registration (the TEC) and then if payment is still not forthcoming a firm of bailiffs (probably Collect Services the main bailiff for Ealing Council) will be instructed and they will find the vehicle and clamp it in order to extract the payment.

Now that would be funny.

You have got to admit that Ealing Council are 'fair', they relentlessly chase every single Connell Crescent PCN as otherwise in their words

This is utter tosh, no decision by a council on a single PCN creates a precedent as they are not superior judges (except in their own 'Court') and even an adjudicator is not bound by any decision by another adjudicator or even of themselves. Ealing Council are fettering their discretion and thus being procedurally unfair by even thinking like this.

Yours frugally

Mr Mustard

19 August 2016

What does 5 tonnes look like?

With the advent of 24 hour enforcement in Barnet (you have been warned; don't take a chance) traffic wardens are out in force at night (mostly in pairs in a car) looking for any vehicle parked in contravention of anything, regardless of whether or not any real harm is being done, and Mr Mustard has noticed that there has been a surge in PCN for being in breach of the 5 tonne Overnight Waiting Ban. The purpose of this is so that your neighbour doesn't take up half the street bringing his cement mixer, or other large commercial vehicle, home every night and blocking up the parking as well as it being bad for fumes in residential areas etc.

Traffic wardens seem to have developed an enthusiasm for ticketing minibuses but doubtless they have been slapping PCNs on vans as well regardless of whether or not the vehicle weights more or less than 5 tonnes (mgw). To help the traffic wardens get it right, here is a guide to the sort of size of vehicle you need to be near to the 5t limit.

A monster length high roofed van might just reach the 5 tonne limit so clearly a short or medium wheel based van won't. As to mini-buses, they just don't make the weight

Mr Mustard thought about PCNs and the 6 PCN giving to his large family client who use a large mini-bus (mgw 3.5T) as the family transporter. On what grounds have traffic wardens (CEO) been issuing PCN? None at all was the conclusion he came to.

The PCN has to contain a statement to meet the following Regulation (a law)

Thus, in Mr Mustard's opinion the CEO (traffic warden) must have a solid reason to think that the vehicle in question exceeds the 5T limit, not just a vague notion that its a big vehicle so it might be over. Mr Mustard posed this question yesterday of parking management. He predicts it will be a while before he gets an answer but that in the meantime the number of PCN for code 55 contraventions will suddenly drop, especially for his large family with the minibus.

We'll see. Every single PCN will be argued all the way to the tribunal at a cost of £30 each for the council who like burning fees when faced with Mr Mustard.

Traffic wardens - you can print a pdf of this blog post below to carry with you on your beat and remind you of the rules.

Yours frugally

Mr Mustard

Update: Here is the answer to the question as to how a traffic warden has reason to believe that a vehicle is over 5 tonnes.

The Civil Enforcement Officer (CEO) would have been briefed on what type of vehicles would exceed the 5ton weight limit for commercial vehicles and for minibuses, they would count the number of seats within the vehicle to ascertain if it is over the 13 seat (including driver) limit. This as per the Traffic Management Order (TMO).

If a keeper requires to challenge that their commercial vehicle exceeds either the 5ton weight limit or minibus has over 13 seats, then they have the right to challenge the issue of the penalty as per the statutory process and provide supporting evidence i.e the vehicle registration V5, which contains the relevant information.

Two things:

1. The TMO (traffic management order) says this "commercial vehicle means any vehicle of which exceeds five tonnes maximum gross weight but does not include a motor vehicle constructed or adapted solely for the carriage of not more than 12 passengers…" so that means that any 13 seater bus or coach which exceeds the 5 tonne limit is not caught by the TMO, &

2.  It is not right that a motorist should have to defend a PCN which the council had no legal right to issue in the first place. In order to issue a PCN the traffic warden has to have a positive reason to believe that the vehicle exceeds the maximum gross weight not just a feeling in their water, which is nearly always going to be that the vehicle does exceed the 5T limit.

Mr Mustard, being of stubborn stock, has now asked to see the briefing given to traffic wardens. Mr Mustard can, within 1 minute, tell you the maximum gross weight (also known as the revenue weight) of any vehicle parked in Barnet by using the DVLA website. There is therefore no justification whatsoever for a council to make a mistake over this.

The council have no idea of the incalculable stress that receiving 6 PCN for not doing anything wrong has brought to the large family in question. They paid 3 PCN before Mr Mustard got involved. These must be refunded as they were paid under mistake and really they should receive monetary compensation (say £55 a PCN?) and a handsome apology.

18 August 2016

Wing on a prayer

Wing Parking seem to have become the default solution to councils in London to 'manage' parking on council estates (by 'manage' I mean to dish out Parking Charge Notices and, to be fair, to issue permits upon request, but the profit in this type of contract is in issuing as many penalties as possible).

Unfortunately the person who let the contract at Barnet Homes, had not seen a letter of advice from Sir Robert Goodwill MP:

Just to be clear the Protection of Freedoms Act (POFA) (a misnomer if ever Mr Mustard saw one) which was introduced to bring in a less harsh system than clamping (debatable if it has had that outcome what with private ticketing having become a growth industry) allows for parking charge notices to be issued on private land which is 'relevant land' and Barnet Council owned land simply isn't.

These are extracts from POFA which confirm what Mr Mustard has just written.

clearly as Barnet Council are the Highway Authority for the borough and as Barnet Homes manage the estates owned by Barnet Council what they should have done, and what other local authorities have done, was to introduce a CPZ for each housing estate so that only residents and their visitors can park there, which is the aim. For some reason councils tenants are only charged £15 for an annual permit whereas residents who live within a CPZ have to pay £40 / £70 / £100 (an emissions based charge which is itself unfair as only 10% of residents live within a CPZ, the rest can have a 5 litre engine if they wish) so either council tenants have been under-charged or CPZ residents have been over-charged, or both (or both overcharged? - in Newham the first permit is free - putting the community first).

Here is an extract from a recent witness statement made in a case which is ongoing at POPLA. You would hope that the Assessor would notice the illegality but they tend to decide only on points of appeal that are raised with them - this one is now being raised. Mr Mustard expects that a private parking expert who has good contacts at high level with POPLA will be bringing this matter to the attention of the chief assessor.

so Barnet Homes agree that the land belongs to the London Borough of Barnet, who are the traffic authority, so this is not 'relevant land'. The witness is a Neighbourhood Housing Officer who clearly doesn't know what she is signing.

Mr Mustard has heard on the grapevine that Wing have been banned from accessing the DVLA database because they are issuing PCN which are legally defective. If that is the case you can park freely on a council housing estate mismanaged by Wing and ignore the Notice to Driver (keep it safe in your glove box) as a Notice to Keeper will never arrive as Wing can't find out who the Keeper of the vehicle is. (It would be unhelpful to deliberately park in this way).

If you have received a Notice to Keeper, had your challenge rejected and are now heading towards POPLA then this should be the grounds of your Appeal, that the land is not relevant land. You should also complain to the DVLA about the release of your data.

Complaints Team

They like to use web forms rather than email (Mr Mustard hates web forms as he can't save them to his computer for his own records) but if you phone 0300 790 6802 you could ask for a real email address, one which ends in .gov.uk probably. If you give it to Mr Mustard he will edit this blog.

Just about everything is wrong with the use of Wing. Mr Mustard's final beef is the use of a PCN which looks like it was issued by an official body and Codes of Practice require that private parking companies do not pass themselves off as having any official status.

Mr Mustard notes that the Penalty was issued before the 15 minutes stipulated in the Contract. Barnet Homes not auditing their suppliers then?

Yours frugally

Mr Mustard

17 August 2016

NSL and/or Brent/Camden Council are losing days off the PCN timetable

If you miss a deadline about a PCN it can lead to you being liable to pay by default and August being a month when many people go on holiday for 14 days having 7 days delay on being sent an official Notice could run you out of time if you don't get out from under your jetlag and deal with the post pronto.

Mr Mustard has always been a bit suspicious of whether an item was posted when a council claim that it was and now he knows that the date of an item isn't necessarily the date on which it was posted, at least if it come out of the 'good' offices of NSL (who possibly/probably use a mail fulfilment house thus introducing a further possible cause for delay and more difficulty in auditing whether the service level agreement is being fulfilled) or Brent or Camden councils (it is always hard to know where the blame lies in a multi party set-up. If it isn't you NSL do let me know and I will add your right of reply to this post).

So when on 9 August Mr Mustard received four plain brown envelopes that were identical on the front and came with a Croydon 1666 prepayment code he guessed before he opened them that they were all produced by NSL. He looked on the back and two were from Camden Council and two from Brent.

Mr Mustard wielded his letter opener (surely it should be called an envelope opener?) and found items from councils dated as follows

Brent - both dated 5 August which was a Friday and so possibly these were printed after the last post had gone, were then actually posted on Monday 8th and duly arrived on the 9th.
Camden - a letter dated 28 July and a Notice of Rejection dated 1 August (for which 28 days is allowed from the date of receipt to make an Appeal to the tribunal). Although the tribunal usually regard an Appeal received by them within 35 calendar days to be on time, thus adding to the usual 28+2 which are officially allowed in the legislation, this does mean that the Appeal could have been, given an absence at the critical time, late and accordingly not registered by the tribunal leaving the motorist concerned to have to pay the PCN at its full value. It didn't help that the Notice of Appeal form was not enclosed although Mr Mustard was able to lodge an Appeal on line in this case. Mr Mustard will be raising this issue of postage delay with the parking manager at Camden Council as everything relating to a parking PCN must be sent first class and on the date of the item.

Council parking departments - can you trust them? Mr Mustard suggests being very careful with Camden.

Mr Mustard nearly always sends letters to councils by the Signed For service (if he can't email & he is allergic to webforms) so there is no doubt about when they were sent and received. It costs £1.74 to have peace of mind.

Yours frugally

Mr Mustard

16 August 2016

Sauce for the goose (sub-title: photographs are so yesterday)

Mr Mustard was once told by an Adjudicator that provided the council got things about 90% correct procedurally that was OK. Mr Mustard said that was inequitable as motorists have to get things 100% correct or suffer a PCN. 'You may well say that Mr Mustard*' said the Adjudicator. 'I just did' said Mr Mustard. After some months of delay Mr Mustard's remark has been seen to stick in the mind of the Adjudicator, who recently made this ruling:

Mr Mustard thinks this must have been a time when traffic wardens were using separate cameras, on which they could alter the time and date which left scope for trickery, although nowadays the camera is built into the hand held equipment so times and dates will correspond.

Note how the council unfairly expect their mistakes to be overlooked when they will pursue you to the bitter end for the tiniest mistake that you make. This decision does rather show that adjudicators are independent.

Yours frugally

Mr Mustard

* The Adjudicator will have used Mr Mustard's real name. Mr Mustard addressed the adjudicator as 'Sir' as that is the requirement at the tribunal (or 'Madam' for lady adjudicators). It is 4 years now since Mr Mustard started to represent people at the tribunal and the adjudicators and Mr Mustard know what to expect from each other. Some are more cordial than others and more prepared to listen to abstract technical arguments but everyone plays with a straight bat and there is humour. "I see you are here to amuse us again Mr Mustard" is one of the best remarks sent Mr Mustard's way. Whatever is thrown at him, Mr Mustard keeps his cool and polite demeanour as, to be fair, do the representatives of local authorities even when a curve ball lands in their lap.

15 August 2016

Changed your address - tell the DVLA on line

Update the address on your driving licence

Update the address on the vehicle logbook V5C

If you pay by Direct Debit for vehicle tax, phone DVLA on 0300 790 6802 to update the address.

It isn't the fine which is the real worry (whoever heard of anyone being fined for that) but the fact that documents about PCN may not reach you and your car could get uplifted by a bailiff.

Yours frugally

Mr Mustard