A load of nonsense in Bexley

Mr Mustard is going to take you step by step through a Regulation 10 PCN - one sent by post as the service of a PCN at the roadside was either prevented by violence (or the threat of) or by driving away (which is more common and is the case here. Mr Mustard advocates saying nothing to the 'traffic warden' give them a smile and a wave and get out of there as often councils get these situations wrong.

 

9 November 2023: a heavy parcel needs dropping off at the post office. The driver stops on a single yellow line just around the corner from the post office and on his way back from his mission sees the traffic warden, hurries to the car and drives away. The return and drive away is captured on the body worn camera of the traffic warden.

 

14 November 2023: A PCN is posted to the registered keeper who is the wife of the driver. The contravention time is given as 16:36

The notes of the traffic warden include 'VDA. Announced to driver it will be sent to his house'. It will but it won't be sent to him as it isn't his car.

 

24 November 2023: The driver makes a representation which is an error as he has no right to, his name not being on the face of the PCN. It was a well constructed challenge as he had taken advice on a forum of PCN experts who can't have been told of the fact of who was going to challenge:

You are absolutely entitled to wait for a reasonably short period on a single yellow line in order to load or unload provided that there aren't kerb marks across the kerb which prohibit such an activity some or all of the time.

 

This was a representation which the council should have accepted. They didn't.

 

12 January 2024: A Notice of Rejection is issued. Assuming it was posted the same day it would be deemed served two working days later which is 16 January. Thus the council had taken 54 days in which to serve their Notice of Rejection. 

 

They were only 2 days within the 56 day deadline.

 

Only one paragraph of the Notice of Rejection responded directly to the representation, viz:

Just because you express sympathy doesn't mean you have any and clearly the council didn't otherwise they would have cancelled the PCN. What is more, the rejection is based on the false premise that the car was not legally parked, when it clearly was.

 

22 January 2024: Mr Mustard stepped in and started an Appeal to London Tribunals, the home of the independent adjudicators. Mr Mustard hasn't shown you ground #2 as it was unlikely to succeed and he doesn't want you to rely on it alone.

At this point Bexley Council have a choice to make. Cancel the PCN because the Grounds of Appeal are likely to succeed or spend at least a couple of hours in producing the evidence pack which gives the adjudicator both sides of the story. 

6 February 2024: Bexley opted to contest the Appeal and duly produced the evidence pack.

14 February 2024: Mr Mustard went carefully through the evidence and filed a skeleton argument. The relevant parts follow (The motorist is not called Smith):

Now Mr Mustard has seen the Traffic Order which sets the council's rules for parking he has absolute proof that the parking was not unlawful (provided that the adjudicator accepts that the time taken to unload was not unreasonable) and so pokes Bexley Council firmly in the eye with their own rules.

As it happens Mr Oliver no longer sits as an adjudicator, his decisions were often followed by other adjudicators. Mr Chan is now the Chief Adjudicator and therefore his decisions are likely to garner respect. The adjudicator in this case is not bound by either of them as their decisions are not precedents but are legally persuasive. Here we had decisions in opposite directions on the same facts. That is the adjudicator lottery which sometimes faces Mr Mustard and why even having won before he cannot guarantee the outcome on an identical set of facts in another case. Mr Mustard is also obliged to point out cases both before and against his argument and his duty is to assist the adjudicator, not to be partisan.

The skeleton said that he would deal with the 'merely observing' argument on the day as he thought he would get a win on the other grounds so didn't need to spend further time in formulating and typing up his arguments.

In this case the bodycam footage was really useful to show exactly what happened at the time. Bear this in mind if you are thinking of exaggerating the truth in your representations.

14 February 2024: With the hearing set to take place on 22 February Mr Mustard emailed the skeleton argument to Bexley Council so that they were on immediate notice of it.

19 February 2024: Bexley Council emailed him to say they cannot disclose the case with me as I am not the registered keeper. The council had missed Mr Mustard's authority letter on file. It didn't notice the lack of authority when Mr Smith wrote in and wasn't authorised.

What happened next was unusual, the penny dropped with someone at Bexley Council, they have already done all the work but were perhaps concerned there might be a costs application for wholly unreasonable behaviour on their part.

Mr Mustard hasn't made a note of it but he probably received a phone call from the tribunal to tell him that the hearing on 22 February 2024 would not go ahead.

21 February 2024: the tribunal sent an email confirming the hearing would not go ahead.

What you can learn from this is that if you have a good argument a council will reject it regardless of merit and that you may have to go to an independent adjudicator to obtain justice. It costs you nothing and costs the council c. £30 which they never see again. Bexley Council have met Mr Mustard a time or two before and should have realised sooner that they were up against it.

Be persistent, forget about the 50% discount, you are aiming for a 100% discount. The odd loss is the price of learning.

The end.

Making up the rules in Bexley & Bromley

The Lord Chancellor went to a lot of trouble to write Regulations (laws) which define how the issue and enforcement of Penalty Charge Notices are to be processed. 96% of local authorities have moved onto this civil enforcement system which started in 2004. The Regulations include circumstances in which a PCN can be registered at the County Court as a debt and enforced by a certificated bailiff.

What the Regulations don't include is any role for Solicitors (apart from acting as a representative & without legal costs being payable except very rarely) in the process. Indeed, adjudicators undertake the judicial role of deciding if a PCN is payable or not, should you wish to contest a PCN.

This makes for a streamlined, well known and cost effective system of issuing & chasing millions of PCNs each year. The tribunal system in particular is quick and there is only a maximum of £30 in fees for the local authority to pay per PCN, about £5 less if they do everything on line. The county court would take longer, cost more and be less motorist friendly. Currently any motorist can take their argument to the tribunal (in person or by phone or on the papers alone) and not need to know any law as the adjudicator is independent and will cancel the PCN if the rules have not been followed e.g. if signage is not good enough.

It was at the end of March that Mr Mustard's attention was drawn to a letter before Claim by Gladstones Solicitors (who are well known for issuing Court claims for private parking charges which are correctly enforceable in the County Court) sent to a motorist who supposedly owed the London Borough of Bromley £129 from a PCN issued in August 2021. From the balance we know it was an £80 PCN to which a 50% uplift had been applied and then the £9 fee to register the debt with the County Court which allows for a warrant to be issued to a bailiff. Mr Mustard has the email address of a manager at Bromley Council so he fired a few questions at him and they got turned into a Freedom of Information request. The answers will be out early in May at the latest (hopefully).

One of the questions was if Bromley knew of any other council doing the same. He didn't have long to wait as another Gladstones letter crossed his desk. This time on behalf of Bexley Council which wasn't a surprise as parking is a shared enterprise across the two councils. Again the balance was £129 but this time Mr Mustard was instructed to act so he has more facts.

The PCN was issued on 8 October 2019

It was issued to a Romanian lorry.

Not many people know that the combination of letters and numbers is the same in England and Romania. Mr Mustard knew this from a previous case which was blogged about here.

(Bexley recorded the vehicle as a MANN)

There was, as luck (bad) would have it a DVLA registered vehicle of the same registration at that time. It was a Fiat Punto but was scrapped in November 2019.

The keeper lived in Tameside and had not been to Crabtree Manorway North (in Belvedere within the borough of Bexley) which is a road which serves industrial premises, the lorry being parked there is understandable.

In addition the keeper had not received any correspondence from Bexley Council and has not moved address since the date of the PCN.

Mr Mustard has asked Gladstones for a copy of their instructions. Mr Mustard also told Gladstones that any claim would be defended on the grounds of chasing the wrong party and as an abuse of process.

Mr Mustard has also asked London Councils if they know what Bromley and Bexley are up to.

Mr Mustard has also asked Bexley Council some searching questions. They have turned them into a Subject Access Request as they relate to a particular PCN rather than PCNs in general. Mr Mustard also asked Bexley to cancel the instructions to Gladstones Solicitors.

Having sent that request on Friday Mr Mustard checked the balance on Saturday and it was zero on the Bexley Council computer.

Mr Mustard would be delighted to act for anybody who has received a letter from Gladstones Solicitors on behalf of a council in London.

Mr Mustard does not act in private parking charge cases, only council, TfL etc.

The end.

Beastly in Bexley to the elderly

An independent adjudicator stopped the rotten treatment.

This is not the way that any council should treat an octogenarian, even one who clearly still has all of his faculties and fighting spirit, by rejecting representations and forcing him on a personal trip to Chancery Lane whilst covid still rages.

Mr Mustard salutes you, Mr Devine.

End.

Bexley Council - fettered discretion

 

The above tribunal case, one of seven that afternoon, didn't require Mr Mustard to say much to the adjudicator other than 'thank you' as he had done the spade work, argued the case consistently and placed a skeleton argument on file to boil the case down for the adjudicator to what was disputed.

It isn't only awful that Bexley Council has a policy of refusing representations if the blue badge holder isn't the driver given that the nature of some disabilities would hamper the safe driving of some (so you want them to be the passenger for the good of the community) but that having placed a bay outside the house of Mrs Sehmi for her convenience the council wanted to part her from £110 when she was suffering post operative pain following a major operation. 

It is morally repugnant of any council to enforce a PCN in such circumstances. A policy change is desperately needed. PCNs have got to stop being used as a vehicle for revenue raising.

End.

PCNs - exercise of discretion - #5 Bromley

You may recognise these policies as they are identical to those of Bexley Council with whom they share a back office. You would expect at least a few differences if councillors were involved in setting policy but perhaps they have abdicated control?

One would expect councillors to take more interest in an area which must form a large part of their incoming emails?