A costly bank statement

 

Mr Mustard had his attention drawn to this tribunal case by another expert. Both play with a straight bat with the tribunal as anything else would undermine your future credibility. Mr Mustard has accidentally said things which turned out not to be true and if that comes to light he puts his hand up during the hearing to admit he was wrong and to explain why or even in a later hearing with the same adjudicator. That is why his unsupported word as to facts can be accepted.

Not so in this case. One problem for the motorist is that if there were a league table of enforcement authorities and their diligence with PCNs Camden Council would generally be in the top 3.

The initial Appeal hearing did not go well for the motorist (often in the Court system an Appeal is against an earlier Court decision but in PCN circles it is an Appeal against the council's refusal to cancel).

The payment was thought of as a user error. The story could have stopped there with £160 to be paid. The motorist decided to ask for a 'Review'. These are rarely granted as that is how the system is designed because one hearing is proportionate to the penalty at issue. That hearing went badly for the motorist.

A back pedalling motorist isn't a good look. It looks like a narrow escape to me. Camden Council however, had done a lot of work and although costs are, by law, rarely awarded, they had put a lot of work in and wanted a contribution. There therefore had to be yet another hearing and the motorist was still keen to be heard:

The motorist's behaviour was found to be 'wholly unreasonable' which is one of the legal tests, frivolous or vexatious being the others.

Trying to hoodwink an adjudicator is pretty stupid, they do hundreds of PCN Appeals. They also have to be legally qualified and have been so for 5 years before they are eligible to become an adjudicator, they have doubtless assessed lots of evidence during their careers and won't easily be fooled. Just tell the truth and pay your PCN if you are bang to rights.

The end.

The judge is the judge (not you!)

 

This Appeal was about a lorry exceeding the Greater London 18 tonne weight limit without a permit. The penalty is £550 so is well worth fighting. The company in question has a lot of lorries and so Ivan has been retained to help fight the PCNs on a commercial basis.

That means that if there has been vexatious, frivolous or wholly unreasonable behaviour a costs application can be made as the company has incurred some. Mr Mustard no longer requests costs as his clients don't incur any, their outlay being a voluntary charity donation to the North London Hospice.

The main reason why Mr Mustard has brought this decision to your attention, another one that he read at random, is because of the final paragraph in which London Councils, the umbrella body for all the London boroughs, seem to have suggested that the adjudicator, a qualified lawyer, and a long serving adjudicator, will be told what to do by an Appellant's representative.

The main reason why Ivan wins about 97% of the time (a few % above Mr Mustard) is that he has an outstanding knowledge of parking and traffic law and puts huge time and effort into presenting his cases. The duty of a representative is not to be partisan but to assist the Adjudicator and the same goes for enforcement authorities. If therefore there are prior decisions both for and against your particular argument, if you present one you should present the other. They aren't precedents in any event although they may be legally persuasive. An adjudicator can decide two apparently identical cases in different ways.

Telling the Adjudicator what to decide is a stupid idea, you might be back in front of them next week and you want your borderline cases to go your way so best be polite and helpful at all times. Mr Mustard tries to be the same when he loses as when he wins.

What London Councils have shown here is a typical attitude of enforcement authorities that having issued a PCN, no matter how unjustified, it must be paid, they cannot possibly be wrong. Well, news for them, they can.

The end.

Costs application falls flat

Here is the fairly short tribunal decision:

but much more detail in the costs decision:

Mr Mustard has seen other breakdown challenges rejected for lack of battery maintenance and not only in Barnet. Batteries are now maintenance free until they fail at which point you replace not repair.

Mr Mustard rarely asks for costs but when he does so (and the litigant in person rate is £19 per hour which would be applicable to him as a representative with Solicitors being allowed to claim the usual hourly rate for their location and length of qualification) he breaks down the claim by time spent on each stage; research, drafting the Appeal, attendance at the tribunal, travel etc. 

It was hopelessly optimistic to claim £1,192.50 without any supporting information whatsoever.

Would you let a passer-by jump start your car and then clean up your own battery terminals with baking soda mixed with water or would you let a garage fix the problem which was implied by the garage report not being supplied? Mr Mustard thinks that the Appellant was lucky to even win this case but they did so & that is the end of the matter. Hopefully their car will not break down again.

End.

 

Barnet Council - a costly assumption

This decision has been brought to Mr Mustard's attention by a friend who is looking at all costs award cases in the last couple of years at the tribunal. Barnet only had the one which is more a reflection of how hard it is to get a costs award than of their good behaviour.

This is the yellow box near Sainsburys in North Finchley. If turning left off the High Road it is now in the Highway Code that a motorist should let a pedestrian cross so we might see some more PCNs like this one.

The amount awarded is still less than the value of the PCN (£130). Every PCN found to be wrong should be the subject of a fixed costs award, that would bring some balance to a lop-sided system.

End

Redbridge Council - Checkmate leads to cheque mate!

 

It is the law that costs in PCN Appeals are rarely awarded. A party has to be frivolous, vexatious or wholly unreasonable.  Mr Mustard hit the bar on an application he made, Barnet Council were found to be unreasonable but not wholly so. Not a great accolade though, merely unreasonable.

A friend is getting all of the 2021 costs case for his own learning and sharing them with Mr Mustard. Redbridge only suffered the one award due to their failure to properly consider the representations, a legal requirement.

The tribunal decision was a model of brevity and contained all that was required, the case number is 2200516219.

Mr Attalia applied for costs and that is reasonable given how his time had been wasted and given that 99% of motorists would have assumed the council knew what it was doing and paid up, which is the point of most rejections, councils might as well just write 'show us the money'. Luckily there are enough motorists who stand up and are counted to stop the PCN system becoming an even more unbalanced system. Costs were allowed but are a fleabite to the council who were themselves trying to obtain £130 by false pretences.

The end.

Redbridge Council - risibly optimistic

Mr Mustard's attention has been drawn to a recent decision involving Redbridge Council who wanted costs because a motorist was a bit slow in providing evidence which was not strictly necessary, most people telling the truth about their circumstances, as in this case, but parking departments treating everyone as rotten liars.

Clearly Redbridge Council didn't think very hard before making their application for costs and had both barrels of the gun clearly aimed at their feet.

The rule is that costs are rarely awarded. Here is Mr Mustard's experience from 2018.

Here is the outcome

Redbridge should know how bad things have to be before costs come into the equation, the answer is pretty bad.

The end.

TfL - sign of the times

Mr Mustard doesn't look tribunal decisions other than for Barnet but sometimes he stumbles over ones that are interesting, like this one. 6 December was a Sunday so the days on the sign are relevant.

Why TfL fought the Appeal is unclear as a motorist wouldn't make up a story about sign changes as they are all logged by whoever erects them. Also, they have all been photographed by the google streetview car, and others, and clearly this sign has been changed at some point.

 

Costs are rarely awarded but the adjudicator thought that the high bar had been reached on this occasion.

One can only hope that the effect of a modest costs order will make TfL more particular about facts in future.

Yours frugally

Mr Mustard

 

Redbridge - an alternative reality

Redbridge Council don't seem to have wasted any money on a stupid slogan such as 'Putting the Community First' but 'An alternative reality' seems to sum them up (Mr Mustard has a second example of them not knowing traffic law which he will tell you about soon).

Here is a very rarely awarded costs decision from the Enfironment & Parking Tribunal and richly deserved it was, the council clearly having been 'wholly unreasonable' which translates in this case as completely incompetent.

Mr Mustard's advice is to test anything that Redbridge Council have to say in a letter about parking.

If you want good free independent advice you can get it here which may include an opinion from Mr Mustard as he sometimes adds his tuppenceworth.

Stand up for yourself if you think you are in the right. The independent adjudicator truly is independent.

Yours frugally

Mr Mustard

Yeah but no but yeah

Not 100% certain this was the bay but the sign fits the decision

Mr Mustard keeps an eye on the decisions made each day by parking adjudicators. In the next decision the council ticketed a goods vehicle for being in a goods vehicle loading bay and then when the motorist points out that his was a goods vehicle the council change their argument, which never plays well with an adjudicator, being a slippery eel.

Not all adjudicators will cancel a PCN for the lack of adequate description reason, many will say that in combination with the sign, you know what you did. If the vehicle owner isn't the driver though and wasn't there it would not be obvious. The public is entitled to be told exactly why a penalty is due, you shouldn't have to guess.

The adjudicator slays the second argument about not being engaged in loading as that is not the allegation on the PCN so the council, in their desperation to extract £110 from the innocent Mr Joyce, blathered on about an irrelevance. Mr Mustard thinks the quality of correspondence has gone downhill since NSL moved the back office to Dingwall because it is cheaper, naturally, but cheap ain't often also good.

Rare though it is to see costs awarded Mr Joyce clearly felt he had been badly done by and applied for costs.

If a council don't oppose an application for costs it is more likely to be granted, it being assumed that the council has no objection whatsoever.

It doesn't matter if the council don't see you unloading. They rarely observe for even 5 minutes and so if the traffic warden is only there for one minute, they aren't likely to see much happening.

Barnet Council were adjudged to have been 'wholly unreasonable' - nothing new there then.

What Mr Joyce should have claimed for was the costs of preparing his Appeal i.e. from the moment he received the Notice of Rejection and his travel time in attending the hearing, at the litigant in person rate of £19 per hour.

Barnet Council are lucky to have got off with wasting £35.

Remember, just because the council state that the traffic warden didn't see something happening doesn't mean that it wasn't happening. If Lady Godiva had ridden down the street whilst the traffic warden was intent on his handheld equipment and didn't see her ride by, it doesn't mean she wasn't in East Finchley that day (although it is an unlikely event) only that the traffic warden didn't see her. The same goes for loading, please please do it properly dressed.

Yours frugally

Mr Mustard

City of London caught out and agree to pay costs

Mr Mustard read the above before he had seen the Appeal decision. His first thoughts were that it was refreshing to see the City of London accepting it had made mistakes and would improve their service. He was also pleased that they did not fight the costs claim which was in any sense a flea bite to the City.

Then he read the Appeal & he was less happy but hey what a time to be a security guard and have or leave a cctv camera trained on your car.

How unlucky for the City. What poor records they keep. How many people get caught by their late posting of suspension notices? Ironic that the suspension for filming was itself filmed.

Now you can't always have your car parked outside your place of work with a camera trained upon it.

What can you do? Well if you have a satnav with a fitted camera, or a pure crash cam, then you have cctv evidence yourself of the state of the signage upon arrival at your destination.

Yours frugally

Mr Mustard

p.s. The PCN in this case was for £130 which would take Mr S a few minutes over 13 hours to earn (gross before tax and National Insurance). Penalty charges affect the lower paid members of society quite brutally. They really need to be lower.

Barnet Council failure leads to costs against them

an awful lot of signs to take in whilst also watching for people crossing the road

This report concerns a motorist who got caught in Sunny Gardens Road on a Saracens Match Day. The decision of the adjudicator from the Appeal follows, the motorist attended and Barnet Council relied on their bundle of evidence.

The issue in the case is whether the signage was adequate.

The EA case is that the Appellant's vehicle had parked in a permit holder's bay, without displaying a permit, and so a PCN was issued to the vehicle.

The EA rely on contemporaneous notes and photographs.

The Appellant's case is that the signage is not adequate. He has specified the route taken to visit his friend, and taken a series of photographs illustrating the various challenges faced in trying to see/read the signage in place.

The EA case is that the road is within a CPZ, which applies during events, and which dates are posted.

Both parties have filed photographs and made written submissions.

I have heard from the Appellant and read the remaining evidence.

It appears from the EA map that the route taken by the Appellant means that he would encounter 4 possible sets of CPZ signs. His case is that the first set are a mile from when he was due to park (and the second set 3/4 of a mile from where he was due to park), and as he was not contemplating then parking could not reasonably be expected to have had to have regard to them. There is some force in that argument, because these are temporary restrictions - so that as well as reading that it was a CPZ, the motorist would have to take in the forthcoming dates. In my view this sets too great a burden on the motorist. In respect of the first sign I also note that the sign would easily be discounted / missed; at that point a vehicle would be turning off the A41, which is a busy and fast moving road.

In respect of the third sign the Appellant has provided evidence that there were two trees prior to the junction, one large, and then one small, so that the motorist's view would be obscured such that he would be non-sighted save at the point of turning left (and fortuitously looking at the sign).

In respect of the fourth sign, this was located very close to the house he was visiting, but again he has provided photographs showing that there were trees planted in front; even if not in leaf, they obscured the smaller plates which show the dates.

In summary, - bearing in mind that the motorist is not just looking for the CPZ sign, but for a smaller sign, with dates on it - I find that the signage for was not adequate on this day in these circumstances to communicate the restriction.

I therefore allow the appeal.

Having won his case the motorist then decided to apply for costs. These are awarded rarely, no more thar a dozen times a year per enforcement authority.  This motorist was logical, organised & determined and made out a good enough argument to convince the adjudicator that Barnet Council had been wholly unreasonable. Here is the decision.

I allowed this appeal on 4th April 2018, following an oral hearing, at which the Appellant attended but the EA did not.

The issue was the adequacy of signage; I found that the signage was not adequate; both parties had filed evidence on the point. I made findings as to inadequacy, as argued by the Appellant, on each of the 4 signs which the EA relied on to show that the motorist had fair warning of the restrictions. The decision was not subject to onward challenge by the EA. The decision does not set a precedent. There may well be decisions of other Adjudicators finding that the signage was adequate - as argued by the EA - but there is no test case on it, and I no specific decision was drawn to my attention and so cannot see what evidence those Adjudicators had access to.

The Appellant now seeks costs, on the basis that the EA were wholly unreasonable and vexatious. He relies on letters dated 5th and 6th April and 25th May. The EA have filed a response on 8th June 2018 disputing the claim.

The Appellant says that the following conduct engaged the Regulations: he disclosed his case in representations and adduced evidence, and yet the EA pursued and challenged it; the Council produced highly misleading photographs; there was poor pagination of the bundle which necessitated a personal hearing and additional letters; the Council produced a bundle of over 200 pages, which were not germane to the issue.

The EA say that the Appellant has failed to produce receipts for his expenses, that the decision does not set a precedent and has been found adequate by other Adjudicators, that the Adjudicator had wrongly found that the restrictions were temporary as they were in place since 2013 and the vehicle had been parked 3/4 of the mile from the sign, the Appellant could have had a postal hearing, and so the Appellant need not have opted for an oral hearing.

I start my consideration of the application for costs from the following point of view; I do consider that costs awards should be made sparingly, as parties should be able to come to the Tribunal and have their say, without the fear of costs orders being made, and which may otherwise deter them. It would be quite wrong for motorists who have simply misunderstood rules of signage to be subject to the penalty of costs if they are inevitably going to lose their appeal. The draftsmen clearly intended that costs should be awarded only in limited circumstances from the language of the Regulations.

On this occasion I allow costs for the following reasons.

The Appellant has discharged the burden of showing that the disputed decision was wholly unreasonable (Regulation 13(1)(b)) and that the EA were wholly unreasonable in resisting the appeal.

The Appellant has satisfied me that he made very detailed representations in response to the notice to owner, dated 12th December 2017, which set out his route, a description of the problems with the signage, and photographs in support. The notice of rejection dated 23rd January 2017 simply says that there is signage in place with which the motorist must familiarise himself, but does not address the question of adequacy and the specific points made. There was considerable force in the Appellant's view that his representations had not been properly addressed; inevitably an appeal was filed.

The EA seek in their submissions to rely on past appeals having been refused (and the EA decision upheld), to conclude this signage was adequate in respect of this appeal; however, any outcome will depend on the evidence adduced before the Adjudicator, and so the EA cannot simply resort to this without proper enquiry of the evidence in those other cases.

In this case the appeal was allowed before me on the evidence which was before the EA at the point that representations were made; so the EA should have considered it at that point, and concluded that the signage was not adequate.

The EA seek in the costs representations to say that the decision wrongly refers to "temporary" signs; I agree that this could have been better expressed, as signs which operate on event days only, so will frequently change. The point remains that as the signs with the dates on them are small, require careful reading, and which is more challenging when the vehicle is moving and on major roads, the more clear and obvious the signage.

The Appellant makes other points as to lack of pagination of the bundle and a large bundle of little relevance, but I do not consider these points to amount to evidence of unreasonably conduct.

As to assessment of costs, the Appellant can claim for time spent and costs incurred only from the date of the disputed decision (notice of rejection). Further, as the jurisdiction of the Tribunal is similar to the jurisdiction of the country court, the litigant in person rate of £9.25 is apposite. I allow time and expenses for travel: the Appellant does not have to justify why he wishes to attend an oral hearing; he is entitled to do so, and is indeed helpful where routes/photographs/signage/perspective are relevant to the decision.

I accept, in light of the Appellant's address, that his travel claim in terms of expenses of £55.10 is reasonable and reasonably incurred.

In light of the distance, the length of travel is reasonable, as is the time in the hearing, and preparation time for filing the notice of appeal, entering into correspondence, raising issues, drafting letters, and preparing for the hearing, I allow 9 hours in total at £9.25 per hour (£83.25).

I therefore make a costs award in the Appellant's favour of £138.35.

The litigant in person rate is now £19 per hour so even more could have been awarded.

Interesting points from Mr Musatrd's point of view is that a CPZ is only meant to cover a small number of streets not huge areas which lead to the vital signs being a long way away and this decision helps with the argument that signage is not adequate & often there will only be one sign that was passed about a mile away.

The evidence bundle of 200 pages does outface many motorists who don't then study it carefully. One day Mr Mustard will get around to dissecting and explaining an evidence bundle to you and suggest an order in which to tackle it and what to look for.

In this case the motorist put his cards on the table early and detailed his approach route so the only signs the council needed to produce were the ones between the edge of the zone and his stopping point. It was lazy of the council (or possibly NSL who do most of the back office work) to put every sign for the Saracens zone in the bundle as that was simply padding.

The Statutory Guidance of the Secreatary of State requires that a Notice of Rejection should be as follows

Thus merely saying that the signs are there and not explaining how they were adequate and how they could be seen despite the trees doesn't cut it and their arrogant and unhelpful summary dismissal has cost them dear. Mr Mustard sees numerous similar Notices of Rejection. Barnet Council need to improve their written responses.

Yours frugally

Mr Mustard

Newham council tax payers out of pocket

The general rule is that awards for costs, for parking PCN, are not normally made. Mr Mustard has made only one such application in 2016, this one, and this is why he did:

On 28 May 2015 the Appellant, let us call him Arthur, challenged the PCN  for parking in a very faded disabled bay with no sign outside 79 Geere Rd, and asked for details of the parking regulation on which Newham Council relied.

The response did not meet the question.

On 1 July Arthur, not one to give up, repeated his question.

The response answered a different question.

On 17 August Arthur got out his pen again and repeated his question for a third time.

The response was to ignore the question and to tell Arthur to wait for a Notice to Owner (which could have been issued 3 months earlier).

On 10 October in response to the Notice to Owner, Arthur pointed out the lack of a sign on the bay.

On 10 November the council rejected the representations and said that the bay outside 81 also covered 79. Arthur pointed out that he had made 3 written requests to parking, one to his councillor and one to the call centre for a copy of the relevant traffic order.

Newham decided to contest the Appeal. In their evidence pack they produced a Traffic Management Order. That disclosed a disabled bay outside of 81 that was only 5.2m in length so could only contain one car. There wasn't a bay outside of 79. The Appeal duly went the way of Arthur.

A costs application was made on the grounds of the wholly unreasonable and/or frivolous behaviour of Newham Council. 530 minutes had been spent on the Appeal and £9.50 in travel costs. £177.33 was claimed.

Newham, in their submissions as to why costs should not be awarded, said "The bay is correctly lined & signed" which the adjudicator had already decided was not the case. The adjudicator was clearly unimpressed and therefore awarded the entire claim as set out in his decision above.

Mr Mustard had put in the claim for costs that his share, £82.80, would be donated to the North London Hospice if it was granted. Arthur has said he will do the same.

If you have paid a PCN for parking in a disable bay outside 79 Geere Rd, London E15 it has been issued in error for what the council refer to an an 'informal parking bay' which is a creature unknown to man, there is either an enforceable bay or there isn't. there isn't. The income in the council's hands is therefore illegal and you should demand a refund as you have paid under mistake.

It is worrying and deeply unimpressive that a council should argue for so long when they were completely and utterly in the wrong. It is a breach of the council's general duty at law to be fair but what do (some) councils care, as long as enough worried people pay up they are in the money. It is a numbers game.

Yours frugally

Mr Mustard

The price of insolence, indolence or incompetence, is £236.35

The Adjudicator was not amused

Funny isn't it that motorists have to dance to the tune of the council, and their henchmen at NSL, as otherwise they end up in big trouble with the bailiff clamping a vehicle if a deadline is missed.

Somewhat arrogantly, perhaps, the council / NSL think they can ignore a tribunal. Whether it was deliberate or an accident Mr Mustard cannot say. He can only predict that if pressed they would say it was an administrative oversight for which, unless this blog comes to the attention of the parking manager and he asks NSL for the money, the taxpayer will bear the cost. This is another demonstration of how hard it is for the thin client side to effectively supervise a One Barnet contractor.

Here is what the adjudicator at PATAS had to say (and bear in mind how rare it is for costs to be awarded, a dozen times a year at most)

Mr G, the director of the Appellant company, appeared before me this morning in person. He had previously attended on 6 January 2014 when I made the following direction to the Council:

" The Council are to respond to the Appellants' submissions in his Notice of Appeal in writing and in particular address how and when they decided to start enforcing the contravention again and how they communicated this to the Appellant and other residents.  Further, they are to attend the adjourned hearing."

The Council has not responded and has not attended this hearing as directed. Mr G has submitted three sets of further correspondence and submissions - including as to the issue of costs - since the hearing in January and has clearly spent considerable time and effort in making his detailed arguments. I am unimpressed with the Council's failure to respond or to attend today as directed.

Given the abject failure by the Council, I assume that they no longer seek to contest this appeal and it is allowed.

In respect of Mr G's application costs, I note that, again, the Council has failed to respond.

Paragraph 13(1) in Part 2 of the Schedule to the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 provides that the Adjudicator shall not normally make an order awarding costs and expenses, but may make such an order-
(a)    against a party (including an appellant who has withdrawn his appeal or an enforcement authority which has consented to an appeal being allowed) if he is of the opinion that that party has acted frivolously or vexatiously or that his conduct in making, pursuing or resisting an appeal was wholly unreasonable; or
(b)    against an enforcement authority where he considers that the disputed decision was wholly unreasonable.

I consider the conduct of the Enforcement Authority to have been wholly unreasonable and therefore, I do exercise my power to award costs in this appeal.

The Regulation cited above does not contain any provisions as to the rate to be awarded when an order for costs is made. There is no provision for loss of earnings. However, Adjudicators take as their guidance the Civil Procedure Rules as applied to Small Claims in the County Court. These allow for an award of £18 per hour for a litigant in person (i.e. one not represented by a lawyer) in respect of preparation for and attendance at any hearing, together with reasonable expenses actually incurred.

Mr G has limited his claim to £11.06 per hour and I therefore apply that rate to Mr G's claim. The Regulation limits any award to "the costs and expenses incurred by that other party in connection with the proceedings".

I consider the hours claimed by Mr G in his "Table of Expenses" served with his correspondence of 3 February 2013 to be reasonable.
 

Accordingly I make the following award:

Travel costs: £12.80
Postage etc costs: £24.47
Travel and Preparation Time:  18 hours @ £11.06 = £199.08

Total: £236.35

I therefore direct the Local Authority to pay Mr. G the above sum of £236.35 forthwith.

Things to note:

It is rare to see a council voluntarily turn up at PATAS. In the 40 times Mr Mustard has been to PATAS a local authority has only been in evidence once and the staff were from Haringey to learn what happens at an Appeal hearing. All they learnt from Mr Mustard's case, which co-incidentally was in front of the adjudicator who made the above decision, was that Barnet Council's agent NSL aren't very good at PCN enforcement, as he was granted his appeal within 5 minutes even after the adjudicator tried to stretch it out to make a bit of a show for the visitors from Haringey.

If you win your case and if the council have been unreasonable, perhaps for continuing to enforce at a location they know to be doubtful, the Saracens CPZ say, then you can apply for your costs in writing within 14 days of the Appeal hearing. Go for the full £18 per hour. You can only claim for your time from the moment that you receive the Notice of Rejection. If you decide to have a personal hearing, and they are a new experience that is worth having at least once in your lifetime, you can make a bit of an outing of it and try one of the many excellent Islington restaurants that are within walking distance. The hearing centre is right next to Angel tube station so easy to reach on the Northern line.

If Barnet Council keep having to pay out money for dodgy PCN they might become a little more moderate in how they issue them.

Yours frugally

Mr Mustard

Barnet residents - champion appealers to PATAS

Mr Mustard wrote about the high number of Appeals registered at PATAS in the week of 17 February. He thought he would check the following week to make sure it wasn't a fluke. He hasn't distorted the figures as Mr Mustard only files about two Appeals a week to PATAS. Here are the daily numbers for the week of 24 February 14:

PATAS	Barnet	Londonwide
	Appeals	Appeals	%
Mon	23	271	8
Tues	18	282	6
Weds	30	358	8
Thurs	27	284	10
Fri	20	325	6
Sat	-	-
Total	118	1,520	8
PCN issued	Barnet	London	%
Year to March 13	165,569	4,283,964	4

The previous week saw 125 Barnet Appeals logged so if this rate of Appealing keeps up (and 21 were filed yesterday) there will be over 6,000 in a full year or about 3.7% of all PCN being appealed, a rate which will be 2 or 3 times the average across London.

If these statistics aren't proof that Barnet Council's agent NSL are doling out more doubtful tickets than is the case in other London boroughs, then what is?

Well done with all your appeals. Keep them coming.

Remember that there is a quick guide to appealing at the top left of this blog.

Remember that once you have the Notice to Owner your chance of a 50% discount has gone so you might as well appeal the Notice to Owner. If you then receive a Notice of Rejection you might as well complete the PATAS form as it costs you nothing, except 5 minutes of your time, and it costs the council the thick end of £40 in fees to fund PATAS which they never see again and are not added to the sum you have to pay. Costs only apply once in a blue moon if you have been wholly unreasonable, frivolous or vexatious which, if you have any sort of argument at all, you will not have been. Costs are only ever likely to be awarded against someone who has abused the TE9 procedure by making a false declaration to the TEC at Northampton.

Remember that the more PATAS Appeals go in the more likely it is that the council will decide not to contest even after having already refused you twice. It happened to Mr Mustard this week. He had what he thought was a quite tricky appeal about a person having paid by phone for the wrong vehicle registration and the council decided not to contest as soon as he filed the PATAS form. He did of course have his usual menu of arguments so he doesn't know which one hit the council for six, but one of them did. They said there was a BPO error (a processing error Mr Mustard thinks that means but he can't see one and it may not exist. The council/NSL don't like losing face so make up imaginary errors sometimes, Mr Mustard thinks).

Remember to appeal every Saracens Zone PCN as the signage is not good enough.

Remember to always stick to timetable so that you can avoid the TEC route.

Yours frugally

Mr Mustard

Maybe PATAS will fix the broken NSL parking enforcement contract

being hit in the pocket changes behaviour

Mr Mustard has just read all of yesterday's PATAS appeals for Barnet. Here is one of the decisions:

Mr. Young, the director of the Appellant company, appeared before me this morning in person. He had previously attended on 6 January 2014 when I made the following direction to the Council:

" The Council are to respond to the Appellant's submissions in his Notice of Appeal in writing and in particular address how and when they decided to start enforcing the contravention again and how they communicated this to the Appellant and other residents. Further, they are to attend the adjourned hearing."

The Council has not responded and has not attended this hearing as directed. Mr Young has submitted three sets of further correspondence and submissions - including as to the issue of costs - since the hearing in January and has clearly spent considerable time and effort in making his detailed arguments. I am unimpressed with the Council's failure to respond or to attend today as directed.

Given the abject failure by the Council, I assume that they no longer seek to contest this appeal and it is allowed.

In respect of Mr C's application costs, I note that, again, the Council has failed to respond.

Paragraph 13(1) in Part 2 of the Schedule to the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 provides that the Adjudicator shall not normally make an order awarding costs and expenses, but may make such an order-

(a) against a party (including an appellant who has withdrawn his appeal or an enforcement authority which has consented to an appeal being allowed) if he is of the opinion that that party has acted frivolously or vexatiously or that his conduct in making, pursuing or resisting an appeal was wholly unreasonable; or

(b) against an enforcement authority where he considers that the disputed decision was wholly unreasonable.

I consider the conduct of the Enforcement Authority to have been wholly unreasonable and therefore, I do exercise my power to award costs in this appeal.

The Regulation cited above does not contain any provisions as to the rate to be awarded when an order for costs is made. There is no provision for loss of earnings. However, Adjudicators take as their guidance the Civil Procedure Rules as applied to Small Claims in the County Court. These allow for an award of £18 per hour for a litigant in person (i.e. one not represented by a lawyer) in respect of preparation for and attendance at any hearing, together with reasonable expenses actually incurred.

Mr. Young has limited his claim to £11.06 per hour and I therefore apply that rate to Mr. Young's claim. The Regulation limits any award to "the costs and expenses incurred by that other party in connection with the proceedings".

I consider the hours claimed by Mr. Young in his "Table of Expenses" served with his correspondence of 3 February 2013 (2014?) to be reasonable.

Accordingly I make the following award:

Travel costs: £12.80
Postage etc costs: £24.47
Travel and Preparation Time: 18 hours @ £11.06 = £199.08

Total: £236.35

I therefore direct the Local Authority to pay Mr. Young the above sum of £236.35 forthwith.

It is very hard to get PATAS to make an award for costs. Mr Mustard has only ever made two applications, because he only does so on obviously egregious cases, of which one was granted. For context, in the year to March 13 there were 6 costs applications against Barnet Council of which only 2 were granted in the total sum of £170.89

Last week the sum of £63 was granted to a motorist who won her Saracens zone appeal and so last year's total payout has been passed as we are now on £299.35 (there may be other cases which Mr Mustard has missed and which will be in the annual report from PATAS in due course)

Mr Mustard can't be sure that it was only NSL at fault, and that the client side parking department were not involved but his experience of the department is that they are always polite and he thinks they would have responded in some way to PATAS if the papers had been brought to their attention in time. Mr Mustard is inclined to lay most of the blame at the door of NSL as it is they who receive the PATAS documentation in the first place.

If motorists fail to respond to documents about a PCN they end up with the bailiff. The council, probably acting (or not in this case) by their contractor NSL have made repeated failures and hence the costs order partly to teach them a lesson. The motorist hasn't profited, he lost his leisure time and claimed a modest hourly rate although an awful lot of hours. Claims for costs are measured from the point at which you start preparing the PATAS form, by the way.

The reason for the PCN in the first place was for having a wheel on the pavement. Evidently at this location, Victoria Rd in Hendon, there has been an agreement of some sort by the council not to issue PCN for this offence for some reason. Mr Mustard has asked the council to publish a list of such locations so that everyone knows where they stand and all of this palaver can be avoided.

Maybe being hit in the pocket like this will lead to improved behaviour and contract compliance by NSL?

Yours frugally

Mr Mustard

Best practice has to be the best

Saturday at PATAS saw Barnet Council, represented one would assume by NSL although only by post, have costs awarded against them because of not following best practice. Here are the notes of the adjudication.

Firstly; the adjudication itself:

The Appellant complained about the delay in the enforcement process. He has specifically denied that he received a Notice to Owner in 2012 and he has put the Authority to proof but the Authority did not produce a copy of the first Notice to Owner. Even if I were to accept that one was sent, there was no explanation as to why no action was taken to enforce the debt for six months. I note that the Authority has also failed, as required by PATAS, to provided a copy of the proceedings in the County Court (This would the the form TE9 witness statement to return the PCN back to the PCN stage when you have not received a Notice to Owner).

The Appellant also pointed out that there was no yellow line. The CEO's notes indicated that the vehicle was opposite no. 2 Shirehall Park. The Authority said that Google confirmed the presence of a yellow line. It then produced an image of the location which did not seem to have a yellow line or time-plate.

I have looked at Google myself and, I have to say, I have some concern about the way the Authority presented the evidence. The Authority had chosen an image which provided a rather distant view of the exact location. It placed a yellow box in the view and suggested that the vehicle was within the yellow box. A closer Google view would show that there was no yellow line where the silver vehicle was. The yellow line stopped about a car length in front of the silver vehicle.

I am not satisfied that there had been a contravention. I am allowing the appeal.

It is very rare for costs to be awarded. It happens less than a dozen times a year in Barnet. The test is that a party (costs can also be awarded against a motorist) has to have been wholly unreasonable, vexatious or frivolous in their behaviour (best not claim to have been bitten by a radioactive spider, unless you have!).

The motorist was evidently unhappy with the behaviour of Barnet Council, largely acting by their contractor NSL (the council itself has by law to make the decision about the formal appeal but NSL look like they do pretty much else. In theory the council check NSL's submissions to PATAS but Mr Mustard thinks that does not happen as he receives them postmarked Croydon). Thus the motorist made a claim for costs. This has to be in writing. Time spent dealing with the PCN at the beginning and responding to the Notice to Owner are ignored although if you didn't undertake them you wouldn't end up at PATAS in the first place, which seems like an odd decision which will doubtless get challenged at some point. I have read positive comments  about the adjudicator Mr Anthony Chan in other cases on the Pepipoo forum. Funny name Pepipoo but seriously good advice.

The costs application: (slightly tidied up by Mr M)

This is an application for costs by the Appellant after I allowed his appeal against a PCN issued on 12 March 2012. Both parties are aware of the high threshold before costs can be awarded and I shall not repeat it here.

I allowed the appeal on several points each one of which can potentially lead to a finding that the Authority had acted vexatiously, frivolously or otherwise unreasonably. I deal with each in turn.

Was the Appellant's vehicle on a yellow line?

The Appellant stated in his Notice of Appeal that there was no proof of the restriction. There were no photographs of the vehicle and, as far as I can see from the Authority's case, a description of the exact location of the vehicle. The Authority submitted an image from Google as a site photograph. It said that the Appellant's vehicle was in a yellow box in the image. I have already said that there was no evidence of the specific location of the vehicle so it is not clear how anybody can say that the yellow box marked the exact location of the vehicle. I have also pointed out that no yellow line can be seen on the yellow box. This meant that even if I were to find that the Appellant's vehicle was within the yellow box, I cannot possibly find that a contravention occurred. Mr Mustard objects to the use of google images in most of the appeals he deals with as they are not contemporaneous and so not reliable. His own photographs taken a week or two after the offence are likely to be more representative of reality.

The Authority now accepts that there was an "administrative error" with the site photograph. It submitted another image slightly further up Shirehall Park. It used a red box to identify a yellow line. I do not think that anybody doubted that there was a yellow line on Shirehall Park. The issue was whether the Appellant's vehicle was on it. A Google image on its own is never going to prove the point because a contravention is not proved by somebody putting a box on a Google image. There has to be some evidence to show that the vehicle was in the area marked by the box. The usual mealy mouthed explanation excuse from the council when caught with their pants down. A slapped bottom is often the result.

The delay

There was substantial delay between the issue of a Charge Certificate and the next stage of the enforcement process. The Authority said that best practice allowed six months and a technical issue took it to nine months. I am not aware of this best practice. Best practice is to enforce without undue delay and anything longer than six months is unlikely to be justified. I am not told what the technical issue is but the Authority has not explained why, as a public authority exacting a penalty, that it has not or would not consider that such a delay was unfair on the motorist.

As I am still none the wiser about the exact location of the vehicle, I do not know whether the service of the PCN and Notice to Owner was justified. The Authority said that it was, but rather missed the point that it has a responsibility to make progress with the enforcement action and that when it comes to an appeal, it should really have ensured that it has at least an arguable case supported by evidence. The point was the council wanted the motorist's money and they were blind to everything else.

Nothing that the Authority has said has persuaded me that its conduct of the proceedings was reasonable. I am making an award of costs.

The Appellant has set out his clam in detail. I allow the disbursements of £2.75. I am not entitled to allow cost for work done prior to the appeal. I am however allowing three hours of work in preparing and lodging the appeal, two and a half hours in studying the Authority's case, and one and a half hours preparation for the cost application. The last takes into account the Authority's conduct in the cost application. There is a total preparation time of 18 hours.

This Tribunal award costs on an hourly rate equivalent to the hourly late for a litigant in person at the small claims court. It is currently £18 an hour. This makes the cost of time spent £126 (7 hours allowed). The total costs allowed is £128.75 (ouch)

So Barnet council set out to make £110. They seem to have issued a marginal PCN, it used an invalid wording which the otherwise very able motorist did not pick up, the council let the PCN die and then brought it back to life, they left paperwork out of the evidence pack (a cynic would think that was deliberate and it does seem to have sent the adjudicator off-side)  used evidence that wasn't and then not argued very well (because they didn't really have a case).

Here is what the Secretary of State for Transport says in his enforcement guidance.

If the penalty charge is not paid the enforcement authority may issue a Notice to Owner (NtO). The purpose of the NtO is to ensure that the PCN was received by the vehicle owner and to remind the vehicle owner that the PCN is now due to be paid in full and if it is not paid within a further 28 days it may be increased. The NtO may be issued 28 days after serving the PCN, and we expect authorities to send them within 56 days after serving the PCN. The ultimate time limit, in exceptional circumstances, is six months from the “relevant date”. There should be a very good reason for waiting that long to serve a notice to owner. 

Mr Mustard has forgotten this point and can be sure to now use it in future cases. You can use it in your own appeals.

Now thinking about appeals generally. If you appeal to Barnet Council (NSL) informally in response to the PCN and then again formally in response to the Notice to Owner and then they turn you down both times but then file a Do Not Contest form at PATAS and simply give way; have they acted frivolously? Mr Mustard would say "possibly". Please write in to PATAS and ask for costs if this happens to you especially if you weren't told the council had given way and flogged to the Islington hearing centre. You can claim £18 per hour from the point where you receive a Notice of Rejection of representations.

Update: Next Monday 9 September sit yourself in front of the TV at 7.30pm and put on BBC 1 Inside Out on parking
and see if Barnet Council or NSL feature.

Yours frugally

Mr Mustard