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.

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.

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.

Newham Council - white paint shortage & other problems

A friend of Mr Mustard's, let us call him Mr L, received a PCN for being in a disabled bay, he isn't that sort of chap and was the victim of innocent error thanks to the paucity of the white lines.

He was parked at the zig zag end of the bay, the bay you can barely see:

This sign was alongside to the left but why would you look for it when you know you are within the PN zone as you live nearby (Portway E15)

Looking back on google street view we have these lovely pictures from 2015, the bay is pristine and was before the residents bays were introduced

Then by 2018, the lines had become worn away and pristine residents bays are in evidence (lazy and unhelpful not to repaint the other bay at the same time)
 

and here is the latest satellite view

which makes clear how unclear the separate bays are.

It is precisely this sort of unreasonable and predatory PCN which gives traffic wardens and councils a deservedly bad reputation. It is no consolation that there is a system of challenge, the PCN should not have been issued in the first place or a warning PCN for zero (you rarely see those) would have done the job of bringing the bay to Mr L's attention, the way the missing lines should have done. Mr L has had to waste an hour of his life getting photographs and emailing Mr Mustard who in his turn has spent an hour in research and making the informal challenge.

Until this sort of malicious nonsense PCN issuing stops the councils won't stop damaging their own reputations.

They won't stop, they need the money.

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

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

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