22 December 2022

How to get a bus lane PCN in London cancelled

It was a foul night but Ealing Council still wanted a bus lane PCN to be paid despite the terrible visibility causing a motorist to cut across the last part of a bus lane, one he knew was out there somewhere but couldn't see. This is a PCN that should either not have been issued or else cancelled exercising the council's discretion; no chance, they are desperate for your £130 or £65, the greedy fools.

This is the second consecutive blog in which Mr Mustard pays tribute to another PCN expert, one Ivan Murray-Smith, who unlike Mr Mustard didn't take it for granted that councils (& TfL) in London had done the necessary paperwork to properly authorise their use of bus lane cctv but checked and decided that officialdom had erred, big time.

The principal legislation which pertains to bus lanes is the London Local Authorities Act 1996 (as amended) which contains two provisions as to cameras.

The first is that it is a 'prescribed device' and the second is that it is 'approved' by the Secretary of State. Mr Mustard was going to set out the particulars for you but they are comprehensively discussed in the adjudicator's extremely well considered written decision in Duthieuw v London Borough of Ealing.


Before discussing the decision Mr Mustard just wants to ask all drivers to stay out of the bus lane during the hours of operation. No decision at the tribunal is a precedent and although this is a key case it is still possible that there will be a change in legislation which will change the legal position. (No decision by an adjudicator sets a precedent as that is what the legislation says but a key case on the tribunal website will almost certainly be followed by other adjudicators as the chief adjudicator must think it is of general application or it surely couldn't be so published).

Look at this, the seriousness of the challenge to one PCN worth £130 worried Ealing Council so much that they threw a barrister at the problem, a perfectly civil gentleman who Mr Mustard happened to see at the tribunal as he was there for another case. The barrister will have cost a pretty penny, far more than the £130 that Ealing would have not garnered if they had looked at the foul weather and cancelled the PCN in the first instance. Ealing weren't fighting Ivan alone, a whole host of experts were rowed up behind him in the shadows.

The barrister was given a hopeless case, the legislation is clear, and it would have been a travesty of justice if Ealing had won. There have been a dozen cases on this ground which each separate local authority had lost. Mr Mustard had deployed the argument to good effect in August against Barnet, some 3 months prior to the Duthieuw decision (and thank goodness for people like Davy Duthieuw who are prepared to risk losing £130 for the good of every other motorist and Ivan who spends a huge amount of his spare time helping the public for free).

Now you can see the argument, the camera is prescribed but not approved. The umbrella body for councils in London is called 'London Councils' (yes, not at all original). They covered this point in one of their committee meetings which Mr Mustard listened to on line as they are public. A small note was buried within the copious meeting papers

They left the word 'London' off the name of the legislation

and this simply didn't get discussed at the meeting.

This sets out the legal position. Councils in London and TfL can legally issue PCNs but if anyone makes representations against the Enforcement Notice and then, if rejected, starts an Appeal to an independent adjudicator at London Tribunals the council concerned can't produce any legally admissible cctv evidence so the Appeal must be allowed and the PCN must be cancelled (as a first step you will have to challenge the PCN and then get a rejection and wait for the Enforcement Notice some 30+ days later, so be patient). This is almost certain to be the answer if you enlist the help of an expert by posting your PCN on the sillily named but very useful website PePiPoo here where one of several selfless experts will step forward to help you for free, save for a charitable donation directly to their favourite charity.

The opinion of a solicitor friend of Mr Mustard's, a proper big city lawyer, now retired but helping various charities, was:

"With all due deference to Mr Rhimes, who did his best with what he had to work with, the 'it's not admissible, but I can fix that by watching it for you' argument is one of the daftest things I've read all year."

Now, let's assume you have a bus lane PCN or Enforcement Notice, what should you do? Fight it, you may have to fight both documents but the challenge to send is the same for both (you are allowed to repeat your arguments and need to for consistency). Go onto the council website, if they have one, otherwise email or write, and say this

'I deny the contravention occurred. I put the enforcement authority to proof that they have a valid Traffic Management Order and that signs were in place at the start of the bus lane which put me on notice of the time and days of operation of the bus lane.

Furthermore, I deny that the enforcement authority has the necessary approval of the Secretary of State in order to allow for their cctv evidence to be produced to an independent adjudicator and so ultimately the PCN must be cancelled. I rely on the key case listed on the London Tribunals website of Duthieuw v London Borough of Ealing - case 2220486482'

and add any other grounds which apply to your particular situation.

Any sensible enforcement authority will recognise a motorist who knows their rights and will cancel the PCN so as not to waste c. £30 of tribunal fees (which they can't get back from the motorist as you are not being frivolous, vexatious or wholly unreasonable and so costs cannot be awarded against you).

This failure by enforcement authorities won't last for ever. What are you waiting for, do your representations now, today, don't dilly dally.

The end.

p.s. outside Greater London you only get a PCN to fight, no Notice of Enforcement, as their bus lane legislation is different and this blog post does not apply.

This blog applies if you were filmed within this map and sent a Bus lane PCN and/or Enforcement Notice including by TfL.


16 December 2022

Lots wrong at the Kensington & Chelsea car pound

As readers will know, there is a risk in some boroughs that a car with a PCN on the windscreen can be removed to a secure pound (in Lots Road for this borough) and recovered only after paying 50% of the PCN (as you are hopefully paying within 14 days so get the discount) a £200 removal fee and £40 per night storage.

For parking PCNs (as opposed to other types) the pound may only demand payment of the PCN which led to the removal. This is the law and it is also stated in the Statutory Guidance of the Secretary of State which a council must know and follow.

How, therefore, did the car pound operated by NSL on behalf of the Royal (as in right royal cock up) Borough of Kensington & Chelsea ('K&C') decide to hold Mr Calm (not his real name) over a barrel and decide to simply refuse to follow the law. Lord Mustill, in the case of Doody, had this to say:

Where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances.

There is no exception to the law at the Lots Road Car Pound - well not after this episode there isn't.

So there you are late at night being right royally messed about and lied to by the senior staff at the pound and all credit to Mr Calm, he really was pretty calm under the most severe provocation and whilst his Human Rights were being trampled on.

This was a situation which was being managed late at night by telephone by a particularly knowledgeable pro bono PCN expert called Ivan Murray-Smith. He can quote parking laws faster than anyone Mr Mustard has ever met and in the background he was being guided by other experts although Mr Mustard had been working hard and was a bit jetlagged from a work trip so at 1am he went to bed.

Two complaints were made to K&C. Here is their response along with commentary by Mr Mustard

It is pleasing to see the Head of Parking take responsibility.

There needs to be a bit more flexibility in documentation for release. If you have the keys and can state what items are in the glove box, for sure you are closely connected to the vehicle. If you are visiting from Birmingham or Manchester you are unlikely to be carrying anything other than your driving licence. Mr Mustard leaves an insurance schedule in his car as others sometimes drive his car (yes, they are insured!).

At the end of this first page you can see that Mr Calm was 'asked' to pay for 4 other PCNs. That was an 'ask' where a metaphorical gun is at your head, it certainly wasn't asking nicely, it was an if you don't....

This is how to respond to a complaint. Admit you were wrong 'should not have asked Mr Calm to do this'.

Having had his nose pressed into the Traffic Management Act that empowers him the Duty Pound Manager has been awakened from his entitled slumber.

There is a world of difference between making motorists aware of something and refusing to release their car unless more money is handed over, a payment which brings the challenge process to an end.

When K&C refer to friend/solicitor they mean 'representative'.

Refusing to leave at midnight was fair enough. It wouldn't have made any difference if Mr Calm had objected to the police being called, the pound would have phoned them regardless. Did the pound give Mr Calm the name and number of a suitably senior officer, who did know parking law? no, of course they didn't. They are the public face of K&C and should have dealt with this situation much better.

What the police did isn't a matter for the parking manager who wasn't there. If he was on call for the pound this situation could have been prevented.

The police response seems to be entirely correct in the circumstances although K&C were breaking the law it isn't as clear cut as being called to a burglary and letting Mr Calm have his belongings from the car was helpful (Mr Mustard doesn't know what but it could have been important documents, medicines, money, whatever).

Here it is admitted that payment of £265 should have led to the release of the car.

When K&C say they 'discovered' the absence of an MOT they mean they looked it up on the DVLA website just like we all can. It had expired on 23 November and they nabbed the car on the 25th so out of date but not hideously so. It now has one.

K&C say they have 'internal processes' which enable paid PCNs to be challenged. Do they publish these anywhere as otherwise how would the public know? Mr Mustard had a look around the K&C web pages but couldn't find this policy. He will have to ask for a copy of it and any others they keep to themselves.

Having deliberately got things wrong at the pound the permit team then make matters worse by accidentally refusing a permit application and Mr Mustard doubts that there is a single road in the borough where you can easily park for free for 24 hours a day as the entire borough has controlled parking zone hours for some of each day on most days of the week. This was to compound Mr Calm's problems and expense.

'NSL were incorrect', say K&C, too right they were.

'NSL should not have insisted', correct again.

'I can assure you that NSL were not engaging in extortion or blackmail...' but what were they doing, it certainly wasn't lawful.
Mr Mustard's main takeaway from this shocking fiasco are the arrogant and contemptible statements of the staff who, safely ensconced behind their glass screens, think they can say and do what they like:

'We do not follow the law' and

'I don't want to listen to the law'

Mr Mustard thinks they will be following the letter of the law from now on as will the staff at any other NSL operated car pound.

Reprimands are the order of the day, without the tape recordings there would be an argument about what was said. Feel free if you end up at the car pound to leave your camera or voice recorder running.

Oh dear, there is no TMA 2008 (Traffic Management Act). What the manager meant to refer to is correctly identified on the K&C website, if only they had looked at it.

Second-hand apologies aren't worth much. Personal hand written apologies would be more valued, remember this one?

Mr Mustard thinks they will play with a straight bat at Lots Road from now on.

This was not a one off. Please come forward if you have been hoodwinked into paying more than one parking PCN (not bus lane or moving traffic) by any car pound in London.

The End.

20 November 2022

The wrong type of permit - not!

Right, you have a resident permit for the HC2 zone (part of Hendon Central). Can you park in this bay?

Yes, of course you can.

Can you park in this bay?

Yes, of course you can.

However, a traffic warden (CEO - Civil Enforcement Officer) having a very bad day (and someone back at base) thought otherwise. Here is the story from the resident.


Keen reader of the blog!

I live in NW4 Brampton Grove and witness a fair amount of nonsense from the CEO’s around Barnet. Today reached a new low.

I was parked in a bay where I have parked for the last 5 years. After seeing the CEO put a ticket on my car I ran downstairs from my flat to investigate. She then informs me that I was getting a PCN because car was parked in a bay which was labelled permit holders only and not resident permit holders only like the bays opposite. I then tried to explain that the reason it says permit holders only and not resident holders only because it also allows business permits under the HD code my resident permit code is HC2 which is clearly listed on the sign. She refused to listen to me and I argued that for the past five years the CEOs have not probably looked at my permit and that I should’ve been given PCN’s. She even called someone who confirmed wrongly that I should be given one.

Thought you’d like to hear about this one!

Oh yes. Here is the PCN.

Here also is the permit for the car and location in question.

Mr Mustard offered to sort it out but his reader is robust and well able to deal with it himself and in fact it is already cancelled.

Hi Mr Mustard

Thanks for the quick response.

Re - new to the job - that’s what I asked! But she said she’s been doing it for over a year. I said she may want to retrain or get her eyes tested. Almost want to put in an official complaint due to incompetence.

How do they get away with this! I was not the only car in those set of bays who got a ticket either…!! 

This PCN was ineffably stupid and to double down when challenged and be told the wrong thing by the office is just calamity upon calamity.

If you get a PCN in similar circumstances do not pay it. Make a complaint as unless enough complaints are made the CEO won't be retrained (except that Mr Mustard is going to ask for some to be given as goodness knows what other havoc is being perpetrated. Also, challenge the PCN or come to Mr Mustard, this sort of PCN is only a minute's work - email: mrmustard@zoho.com

The end.

9 November 2022

Barnet busted in a bus lane


Looking at the above image and deciding whether or not to issue a PCN for a bus lane contravention (always assuming a person actually looked at the footage rather than letting the computer automate the whole process) you would, as would any reasonable person, assume the car was in contravention (assuming the cctv was taken during the operative times of the lane). The person making the decision is probably in Dingwall (or another office of NSL) so will have no idea is behind the car as they would even have to look on a map to find the area and they know nothing about local traffic.
However, this was the view behind the car (cctv is sneakily set up to only cover the last section of a lane, the part most likely to be contravened).

Now you have a completely different view of the PCN question. The above photos have been borrowed from a PePiPoo post. The reason is to illustrate the next decision which is in a different part of the A5 and 3 months later. Clearly Highways should be telling the PCN issuing department (often simply referred to as the 'Parking service' although service is a misnomer) when a bus lane is partly closed (or the signs are obscured by building works, as below) and PCNs should not be issued. Mr Mustard will refer this topic to the relevant councillor.

Not a good day for Barnet Council burning £114 of our money and they gave Mr Chawla and Mr Wachal an unreasonably terrible time. It is an easy matter to check if a bus lane has roadworks going on alongside it.

Local authorities are required, at law, to be procedurally fair. To want to use the motorist's own photographs against them and to buttress the council's own case was to place them in an 'impossible position'. Had the council provided contemporaneous evidence of the bus lane signs, at the start of the lane, they would indubitably have disclosed the roadworks.

Here is the adjudication decision itself:

Costs awards are very rare but thoroughly deserved in this case.

Sadly, many motorists will have paid up in this situation, especially those with leased cars as bus lane PCNs in London cannot be transferred so the lease or hire company will probably just pay them.


6 November 2022

The sun goes down on a stupid venture

From the register of decisions taken by adjudicators at London Tribunals.

I am dealing with no fewer than sixty-two appeals against penalty charge notices (PCNs) served by the London Borough of Islington on Sunshine Ventures UKBD LTD, the appellant company, as the registered keeper of the two vehicles concerned. Sixty of those PCNs relate to the vehicle with VRM LS18 OSV. Of those sixty, fifty-eight are for moving traffic contraventions and, in particular, contraventions of prohibitions on motor vehicles. The remainder are for parking contraventions. Two appeals, both in respect of moving traffic contraventions, relate to vehicle with VRM DF65 GVN. The contraventions all occurred between 16 April to 12 July 2022. The fact of the contraventions has never been disputed and so, remarkable though it may seem, these appeals concern two vehicles (with LS18 OSV bearing most of the responsibility) that have accrued PCNs amounting to a total liability of £8,060 in that period. Even more remarkably, the enforcement authority (EA) says that when PCNs that are not before this tribunal are included, these two vehicles and one other vehicle have accrued PCNs with a total unpaid liability of £22,357 as at 25 July 2022. I am only concerned, however, with the sixty-two appeals before me and the evidence in respect of those matters. Although two of the PCNs concern parking contraventions, and their enforcement is governed by different legislation from the others, the legislation is materially the same and so there is no distinction in how I approach all these appeals.

In reality, these appeals stand or fall together, and it would be artificial to approach each appeal in isolation from the others. That is because the appellant company seeks to transfer liability for each PCN on the same basis (or bases) and to the same individual - a Mr. Siem Yared - in each case. In each set of representations against the PCNs the appellant company sought to transfer liability on the basis that the vehicle was, at the time of the contravention, subject to a hiring agreement with Mr. Yared. The EA, in each case, rejected the representations because it did not accept as genuine the document provided with the representations and which purports to be a hiring agreement with Mr. Yared for the vehicle concerned. Now, the appellant company in each appeal relies on a further document, a purported letter of termination of the agreement. It seems that the appellant company now argues that, whilst each vehicle was at some point subject to a hiring agreement with Mr. Yared, the appellant company (on a date that is unclear) exercised its right to terminate the agreement by virtue of Mr. Yared's repudiatory breach of it. On that basis, the appellant company appears to be arguing that on the occasion of the contraventions (or some of them) the vehicle was under the control of Mr. Yared without the consent of the appellant company. Those two grounds of appeal are mutually exclusive. Mr. Yared was either in control of the vehicle with the agreement of the vehicle's owner on the basis of the hiring agreement or, if the agreement had come to an end and Mr. Yared continued to retain the vehicle without the owner's permission, then he did not have the owner's consent to retain it. Given that the first contravention occurred on 16 April 2022, just eleven days after the purported hiring agreement began, I do not take the appellant company to be arguing that all of the contraventions occurred after the agreement had been terminated. Unfortunately, I do not know when the appellant company says that termination occurred.

Given that the appellant company is, on its own account and by legal presumption as the registered keeper of each vehicle, that vehicle's owner, it is for the appellant company to prove, on the balance of probabilities, that the vehicle was, as applicable, subject to a valid hiring agreement at the relevant time or was under the control of Mr. Yared without its consent

As I have indicated, I have approached these appeals globally. In so doing, however, I have undertaken the substantial task of reviewing the relevant evidence in each appeal. There was value in doing that because the evidence in each case is not precisely the same. Both the EA and the appellant company have, in some cases, provided evidence that was not provided in other cases. That evidence is, however, relevant to the overarching issues in all the appeals.

The EA's case and evidence

The EA disputes both bases upon which the appellant company seeks to transfer liability. In reality, what the EA alleges is that the purported hiring agreement and purported termination letter are a sham or contrivance. The EA does not positively assert - and nor does it need to prove - precisely what, if any, relationship the two vehicles and the appellant company had with Mr. Yared. However, it suggests that the documents and the case put forward by the appellant company and upon which it relies have, effectively, been fabricated to frustrate the enforcement of the numerous PCNs issued to the appellant company by sending the EA on a 'wild goose chase' to track down the person liable.

The EA makes, in particular, the following points, in addition to its observations on the appellant company's evidence, to which I shall return.

It says that, as I have indicated above, there is a very large outstanding liability for PCNs served on the appellant company for the two vehicles in this case and one other vehicle. These amount to 185 PCNs. The EA says that, in each case, it has proved difficult or impossible to confirm the existence or liability of the hirers in respect of these PCNs and no payment has been recovered. In particular, the EA says that in relation to the vehicle that is not subject to these appeals, when the EA contacted the purported hirer, he was able to demonstrate that he had not hired the vehicle and that his details had been used fraudulently. There is no direct evidence for this particular assertion that is made in the case summary and ideally some such evidence would have been provided for it. However, there are other pieces of evidence that support the general contention that the EA has been unable to confirm the existence and liability of persons that the appellant company has nominated as hirers of vehicles in respect of which the EA has served PCNs.

In its notice of rejection (NOR) dated 4 July 2022 in respect of PCN IZ22085081 the EA stated:

"You have asked us to transfer liability for this PCN and have provided a hire agreement. I am afraid that we will not transfer liability as our records show that where we transfer liability to a person you have asked us to transfer liability to, the PCN goes unpaid and progresses without any contact from the hirer. We have identified numerous vehicles and hire agreements supplied by you and as my colleague has advised, we have received complaints from some of the people you have stated have hired a vehicle."

NORs issued in respect of other PCNs on (at least) 5 and 6 July 2022 contained the same statement. In an NOR issued on 19 July 2022 in respect of PCN IZ21812996 the EA said:

"You have asked us to transfer liability for the penalty charge to the person you have identified as having hired the vehicle at the time of the contravention. We note that we have transferred liability for previous penalty charges involving your company and had no contact from the driver you declared had hired the vehicle. Examination of other PCNs issued to your vehicles shows a similar pattern, whereby only 1% of penalty charges are typically paid by the driver. In addition we have received representations from persons you had reported as having hired the vehicle where they declared they had never hired a vehicle from you, claiming identity fraud had occurred. Until such time that you can provide additional supporting evidence to support your claim that the vehicle had been hired by the person you identified, we will not transfer liability and you remain liable to pay the penalty charge."

Further, in a letter dated 4 August 2022 the EA's Parking Fraud Team informed the appellant company that as a result of an audit of outstanding PCNs issued to it, the EA would, as a matter of policy, no longer transfer liability for PCNs to purported hirers of the appellant company's vehicles because it was "difficult or impossible to confirm the existence or liability of the drivers".

Although those pieces of evidence are hearsay in respect of the assertions of fact made therein, I am able to give some, limited weight to those assertions as to the difficulties experienced by the EA in confirming the existence and liability of persons identified by the appellant company as hirers of its vehicles and that some persons so identified have positively asserted to the satisfaction of the EA that they were not the persons who hired the vehicles. The authors of those assertions of fact have, on the face of it, some familiarity with the records of the EA upon which the assertions are based. The evidence lends some, limited weight to the suggestion made by the EA that this appellant company has a tendency to furnish the EA with hiring agreements that are not genuine.

It seems to me, however, that the real value of this evidence is not what it positively proves, but to put the appellant company's case and evidence in context. By 4 July 2022 (and possibly earlier) the appellant company can have been under no illusions as to precisely why the EA was refusing to transfer liability. That date pre-dates all of the appeals before me. It follows that the appellant company knew, by the earliest of these appeals, what case it had to meet in order to discharge the burden of proving that the hiring agreements (and termination letter) were genuine. That the appellant company knew what the issues were, and what kind of evidence it needed to provide, was further re-enforced by the letter of 4 August 2022 and indeed by the EA's case summaries in each of these appeals. One would expect that any appellant, facing a potential liability of over £8,000, and knowing precisely what case it needed to meet, would serve on this tribunal all the evidence, and the best evidence, at its disposal to discharge the burden of proof upon it.

It is to that evidence that I now turn.

The appellant company's case and evidence

The ground of appeal entered into the tribunal’s system when each appeal was made varies, but the narrative notices of appeal contain a variation of the following:

"We are a car rental company, the [I]slington council rejected us saying the rentalagreement we have provided is invalid. It is totally untrue, and in fact, the person still using that car even after we send him the termination. Police investigation is ongoing on him as well. We, as a rental company, cannot do much more about it."

In one notice of appeal (case reference 2220625374), made on 22 August 2022, the appellant company says that it has been telling Mr. Yared to return the car "for two months now".

In some notices of appeal (e.g. case reference 2220581348) it is said that the agreement was terminated because of the number of PCNs accrued. In another (2220583795) it is said the agreement was terminated because Mr. Yared was "reckless". It is surprising and notable that the appellant company does not say in its notice of appeal precisely when it deemed the agreement to be terminated, and for what reason.

In each case (including, notably, the two appeals relating to vehicle DF65 GVN) the appellant company has provided the main, signed page in what it describes as the hiring agreement for vehicle LS18 OSV. This is a surprising error in respect of the two appeals concerning vehicle DF65 GVN.

With its representations in each case the appellant company provided a fuller version of the hiring agreement, purporting to include the full terms and conditions. Again notably, in the case of appeal 2220579787, which relates to vehicle DF65 GVN, the appellant company has provided the hiring agreement for vehicle LS18 OSV; again a surprising error.

Even more notable, however, is the different hiring agreement provided in respect of PCN IZ2218862A, issued for a contravention on 25 May 2022 in respect of vehicle DF65 GVN. Whilst this hiring agreement does indeed relate to the correct vehicle, and has Mr. Yared's name upon it, two aspects are very concerning. First, even to a lay person, the signature for Mr. Yared is radically different from the signature for him on the hiring agreement for vehicle LS18 OSV. Second, the agreements are almost precisely co-extensive in time, with just a few days difference either side. At the time of the contravention to which this PCN relates, if these two agreements are to be accepted, Mr. Yared would have been in possession of two different vehicles hired from this appellant company at once. No explanation is given as to why this one man would need two vehicles for a period of several months. That is particularly, odd when, on the face of the hiring agreements provided, clause 9 prohibits the subletting of the vehicle to another person.

Indeed, that highlights another problem identified by the EA; the complete lack of any corroborative evidence as to how Mr. Yared came to hire these vehicles or what happened once he did. There is no evidence (save for the termination letter, to which I shall return) of Mr. Yared's initial enquiry, no statement from the individual(s) at the appellant company who dealt personally with Mr. Yared, no evidence of the due diligence they did on him, or of e-mails or any other communications with him. The absence of such evidence which, it if exists, would be in the hands of the appellant company, is striking.

The hiring agreement

The main, signed page of the hiring agreements appears on its face to be fairly standard, apart from the odd phraseology in the text above the signature field. There is ambiguity in that text as to the precise circumstances in which the £25 fee is due. The £25 fee is dealt with slightly differently in clause 4D of the appended terms and conditions.

The main difficulties are indeed with the appended 'terms and conditions', to which the main, signed page refers and which, in turn, refer to the main, signed page as 'Exhibit A'. There are numerous issues but I shall I identify the main oddities with the contract, as a whole. I take into account that the terms and conditions were probably not drafted by a solicitor but, nonetheless, many of them do not even make sense as a matter of common sense, let alone law.

The first and, frankly, remarkable oddity is that the contract does not actually specify the cost of hire, i.e. the rate which the lessee must pay to hire the vehicle. Clause 6, which refers to the lessor's (the appellant company's) rights upon a default by the lessee, sets out the consequences if the lessee fails to make the weekly lease payments 'as required under item 3'. But item three does not specify the amount of the payments at all and, in fact, refers to the lessee's duties in respect of the registration and taxation of the vehicle.

Second, whilst clause 4C refers to deductions from a deposit, the contract does not specify what that deposit shall be.

Third, there is odd, inconsistent and imprecise language used throughout the hiring agreement (comprising 'exhibit A' as it is described, and the appended terms and conditions). Just to a few examples, clause 5 begins: "this contract shall be subject to the excessive jurisdiction of the United Kingdom laws". Perhaps this means 'exclusive jurisdiction'. The rest of the clause, concerning wear and tear, is very difficult to follow. Even if a non-lawyer might not know that, for the purposes of the law of contract there are no 'United Kingdom laws' other than statutes passed by Parliament that are intended to affect the laws of contract in England and Wales, on the one hand, and Scotland on the other, the effect of this clause is thoroughly ambiguous. By clause 5B, the lessee agrees not to use the vehicle "for any unlawful or wrongful activity which is in violation of UK laws guidelines..." What guidelines? Clause 10, concerning the termination of the lease says, "Termination of the lease shall only occur in conjunction with termination of the vehicle lease agreement with one months minimum notice". This clause, to the extent it makes sense at all, appears inconsistent with clause 6(ii), which provides for the appellant company to terminate the lease without notice in some circumstances. There are numerous other examples.

In short, the hiring agreement contains a number of oddities which are hard to reconcile with it being a document genuinely containing the terms of an agreement reached in good faith by the parties, which was intended to create legal relations and which could be adjudicated upon by a court if necessary. It occurred to me that it might be some kind of 'pro forma' contract that has been translated from a different language.

The termination letter

I did not think much of the EA's point about the place to which, according to the termination letter, the vehicle was to be returned. There is no evidence to back up its assertion that the address is on a narrow street with no forecourt and, in any event, the address is an address which is used by the appellant company on its letter of representations and the hiring agreement. The other points made by the EA about this strange document do, however, have merit.

As the EA points out, there is no evidence that this letter was even sent. It does not bear the address of Mr. Yared and, if it was e-mailed to him (given that his e-mail address was provided on the hiring agreement), the covering e-mail has not been provided.

The letter states:

"This Letter is to confirm that your contract with Sunshine Ventures UKBD Limited T/A Sunshine Automobiles is terminated, No Contact will deem this agreement voided, Reason for refusal of extension;

- Failure to comply with terms as stated in the contract"

The reference to a refusal of an extension does not make sense. Whilst on the face of it the letter appears to state that the agreement is terminated by 'no contact', there is no clause in the hiring agreement itself requiring a certain level of contact, or the consequences of a lack of contact. Nor, it should be said, is there any clause that expressly states that the appellant company is entitled to treat the agreement as repudiated if a large number of PCNs are accrued. On the contrary, the hiring agreement contains provision for the lessee to be liable for such PCNs and for the appellant company to charge a fee for administering them.

The termination letters provided in respect of the two appeals concerning vehicle DF65 GVN instead refer the other vehicle. A further surprising error.

There are further problems with this letter, and indeed with the appellant company's case that the agreement was terminated and the vehicle was thereafter under the control of Mr. Yared without its consent. Most notably, and entirely unaddressed by the appellant company since the matter was pointed out in the first of the EA's case summaries, is the lack of date on the letter, but the specification of the date of 30 July 2021 as the date by which the vehicle must be returned. It might be said that it was a typographical error, and that the year should be read as 2022. Although another surprising error, that would be broadly consistent with the appellant company's notice of appeal in case 2220625374, made on 22 August 2022, that the appellant company had been trying to get Mr. Yared to return the vehicle 'for a couple of months now'. However, there is no evidence that the threats referred to in the letter have been carried out. The letter refers to an immobiliser which, if operated, would have prevented the moving traffic contraventions at least. There is no evidence of what, if anything, happened with the immobiliser. There is no evidence of any civil claim for recovery of the vehicle. Although the letter refers to Police action, and the appellant company has alluded to this in its notices of appeal, there is no evidence of a crime reference number or anything of that nature.

In short, there is no evidence of any of the steps that the owner of a valuable asset, a motor vehicle, might be expected to take to recover that vehicle in circumstances in which the person in possession of it did not have the owner's consent.


Even the sharpest contract lawyer will sometimes make the odd mistake in drafting an agreement, and, similarly, lawyers' letters can sometimes contain errors. In this case, the sheer number of errors, inconsistencies, anomalies and matters that are entirely unexplained among the documents relied upon by the appellant company is remarkable, even taking into account that the documents might have been drafted by a lay person. After all, the author of the documents is a person of business, and the documents concern that business's valuable assets, namely motor vehicles.

Dealing with the purported hiring agreement, it is not only the number of oddities in the document that is remarkable, though, it is their fundamental nature. The agreement does not even state the amount to be paid for the hire of the vehicle(s). Nor is the agreement to be looked at in isolation. In determining whether the hiring agreement is probably a genuine agreement, and not a sham or contrivance, I have looked at all the surrounding circumstances. I find the fact of two concurrent hiring agreements for two vehicles, with apparently different signatures, but in respect of the same individual, very concerning. The further matters I have highlighted in my review of the appellant company's evidence add to my concern; the inconsistencies and anomalies detract from the credibility of the appellant company's case that the agreements are genuine.

The purported letter of repudiation is very odd and does not even state the date upon which the appellant company treated the agreement as terminated. The circumstances of the purported termination are unclear.

A genuine document or set of documents purporting to contain, or to arise from, an agreement, even if it contains the occasion error, is likely to be consistent with itself and with known facts and with common sense. That is because the parties to the agreement and documents arising from the agreement, acting in good faith, typically want to document their agreement, and each matter arising from the agreement, so each party clearly knows its rights and responsibilities under it. Further, in the event of a disagreement about those rights and responsibilities, a court can look at what has occurred and, by reference to the agreement, clearly determine the respective liabilities.

No such care or concern is typically found in a sham agreement or contrivance. That is because the documents merely have to provide a facade, to mislead a third party into thinking the parties have reached an agreement when they have not, or that an event has occurred when it has not. The parties are not genuinely documenting their agreement, and will not genuinely rely on the documents to resolve a dispute. They do not expect their documents to be pored over to resolve a contractual dispute because they do not anticipate such a dispute. They are merely for show, and often do not withstand scrutiny.

The number and nature of the anomalies in the documents provided by the appellant company in this case, and the fact that they are unexplained, is much more consistent with the purported hiring agreements not being genuine hiring agreements.

Taking the evidence as a whole, and bearing in mind that the appellant company knew full well of the issues raised by the EA as to the genuineness of the hiring agreement, it has fallen far short of proving on the balance of probabilities, that the hiring agreements relied upon in these appeals are genuine. The first ground of appeal fails.

The second basis upon which the appellant company seeks to transfer liability is parasitic upon the first, because it relies on the termination of an agreement that I have not found to be genuine. Nonetheless, I do not accept either, and for the same reasons, that the termination letter is a genuine letter. For the avoidance of doubt, given the paucity of the evidence as to the steps that the appellant company has taken to recover the cars, I further decline to find that the vehicles were at any time under the control of any person without the consent of the appellant company.

For all the above reasons, I reject the appeals and liability remains with the appellant company.

Pitting yourself against the state in an unorthodox manner (Mr Mustard will leave you to read between the lines as to his meaning) is likely to end badly as any of your vehicles can be seized once any of these 62, yes 62, PCNs reaches a bailiff. This is not the kind of motorist that Mr Mustard wishes to help.

Finances not looking so hot either, cash flow is already under strain.


Dumped on by Brent Council


Oh dear, boxes dumped in Brent, outside 226A Chapter Road, NW2 in fact. The name and address on them is an address within NW11 in Barnet.

You can guess what happened next. A Fixed Penalty Notice to a Mr Spring (not his real name).

This came with a lovely invite for a chat under PACE, the Police and Criminal Evidence Act.



Mr Spring hadn't dumped the boxes, he didn't know anything about them, other than the fact that his name and address was on them, as he hadn't purchased the mattresses, they were purchased by a family member and when they were delivered he was abroad. He contacted Brent Council and thought the matter would quickly be resolved (not when there is money involved!):
"The photographs show that the incident in question relates to a delivery that was made to my house in my absence. I was out of the country at the time and another family member was present to take delivery. We paid to have the packaging taken away (see attached email) so did all we could to discharge our Duty of Care. We could not have expected the waste to have been dumped illegally. I would therefore respectfully ask that the Fixed Penalty Notice is cancelled."
This wasn't quite accurate but understandably so. The buyer didn't pay to have waste removed as Eve, the mattress people, were actually paid to remove the old mattresses. If they were dumped they don't carry your name and address.
In fact, the boxes never entered the delivery property, as they were brought in like this, only in the plastic.

Did Brent listen to reason? No, of course not, this is all about the money.

The underlining is by Mr Mustard.

Mr Spring is not the owner of the waste. It never entered his property.

Waste being connected to you doesn't mean that it breaches this law.

The waste was not produced on the property occupied by Mr Spring.
The response is a blind, it bends the facts and is only intended to bully a resident into paying £120 (or £200 later on) rather than risk going to the Magistrates' Court and getting a criminal record. The chances of that happening to Mr Spring are very low indeed (Mr Mustard is not a lawyer but just look at the facts for yourself) as he wasn't even in the country when the delivery was made and he didn't place or pay for the order, a fact that he hasn't yet told Brent Council but they can read it here as the blog will be tweeted to the council and the CEO.
Of course it doesn't help that Eve has since called in the Administrators as they had financial problems and Bensons for Beds are now selling Eve mattresses but won't be liable for their debts. If anyone dumped the boxes it was the delivery company, which is usually a contracted out service (The 2021 Annual Report says that Eve Sleep operated an 'outsourced manufacturing and fulfilment model'). What Mr Mustard surmises happened is that the delivery company got to the next delivery, put the boxes on the pavement whilst they got the next delivery out then simply forgot to pick them up. Whatever happened Mr Spring is innocent.

Before starting a Magistrates' Court case the legal department of the council will put Mr Spring on notice and at that point a proper lawyer, without an interest in the outcome, and with a duty to assist the Court, should look objectively at the facts, which can be backed up by paperwork, and sling this FPN into the rubbish (and then hope the council disposes of it properly otherwise the whole merry-go-round will start again).
Oh dear, Brent Council have form for their actions on dropping litter, see this article.


Update: 9 November 2022
Before the pro bono lawyer (always very busy helping the public for free) had read all of the papers the council had decided yesterday to cancel the FPN. This was after they had been emailed proof that Mr Spring was out of the country and wasn't the buyer. Their cancellation was not gracious, the writer probably spent the afternoon crying over the loss of revenue, it included these words:

Thank you for your email and the extra information that you have provided.

Based on your version of events, I have decided, on this occasion, to cancel the fixed penalty notice.

Mr Spring's version of events is the truth as demonstrated by independently produced documentation. 'On this occasion' as if he has ever littered before and it will be a decade before he needs a new mattress.

Councils could be more gracious when an innocent member of the public is being written to. The lack of good manners which is often evident in parking departments is equally apparent here.