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Summons to Magistrate's Court for breaching Railway Byelaw
AnonymousMouse
post Wed, 12 Jun 2019 - 20:22
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Hi and thank you for having me...! I have posted the below (now tidied up after some questions) on MSN and the Rail forums and both sides suggested I ask for specialist advice here. I hope you can help...

I've received a summons to the Magistrate's court over 2 occasions on which my car was parked in a railway station carpark without paying. The TOC itself is taking me to court and there is no mention of any debt collectors or similar, although on searching through paperwork I have received 3 reminders about these occasions from 3 different companies (ZZP, Indigo) which I unfortunately did not engage with. The occasions referred to in the summons are still within the 6 month deadline and the court date is in 2 weeks.

I have no legal knowledge whatsoever and have been looking for advice on what to do/what can be done when you receive a summons to a magistrate's court. I have had answers to the following:

- The summons is for a court that is over 80 miles from where I live. Do I get a say in where this takes place?
I understand I do not.
- The summons is for a date which I cannot make because I have a work engagement. Do I get a say in when this takes place?
I understand I do not, although I can choose not to appear but then the case will carry on without me.
- Apart from reminders of the 'fines' which were raised to £170 each, I have not received any notice of an intention to prosecute or an opportunity to defend myself to the TOC (although I realise I should have asked the debt collectors questions). Have I missed a letter or is this step not necessary for a Magistrate's court?
I understand you can be taken to a Magistrate's court without many warnings.
- Does anyone have any advice on what to do next?
I understand that the Summons is a little odd because it confuses Criminal with Civil, and this influences the process. I also understand there may be a technicality around the missing legal entity after Govia in the summons. I have tried to seek some free advice locally which I was advised, but I cannot find anyone specialist enough and the general advice has been that it may cost more than the fine if I am found guilty (although this can be close to 4 figures). I have also had advice that I could risk pleading not guilty due to the odd summons but that I may not 'win'.

Could anyone help me understand how I could tackle this? The driver did not pay for the two tickets because they always pay by mobile app from the train (a habit that has become established after many years of doing so, and parking in the same place 3-4 times a week) and on those two occasions the app failed and the driver was already underway on the train. The driver has no evidence of this, just evidence that they do pay on all the other occasions via the app.

I have uploaded the 3 letters from debt collectors and the summons, hopefully suitably redacted, into a dropbox: https://www.dropbox.com/sh/ihctpv0mr9rwbtk/...mSUwI2HGza?dl=0
I kept getting this wrong and revealing my identity so I hope I have now done this right and it is all completely anonymous but still clear.

Thank you so much in advance!
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southpaw82
post Sun, 16 Jun 2019 - 17:32
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QUOTE (bobbione @ Sun, 16 Jun 2019 - 18:24) *
It is a private prosecution

Their burden of proof to establish gulir beyond reasonable doubt

Funny, there was me thinking it was a complaint.


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bobbione
post Sun, 16 Jun 2019 - 18:06
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QUOTE (southpaw82 @ Sun, 16 Jun 2019 - 18:32) *
QUOTE (bobbione @ Sun, 16 Jun 2019 - 18:24) *
It is a private prosecution

Their burden of proof to establish guilt beyond reasonable doubt

Funny, there was me thinking it was a complaint.


That's one way a private prosecution can start.The Boris Johnson private prosecution started as a complaint.

It's a summons . It's got summons on the top as well as complaint.
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southpaw82
post Sun, 16 Jun 2019 - 20:19
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QUOTE (bobbione @ Sun, 16 Jun 2019 - 19:06) *
QUOTE (southpaw82 @ Sun, 16 Jun 2019 - 18:32) *
QUOTE (bobbione @ Sun, 16 Jun 2019 - 18:24) *
It is a private prosecution

Their burden of proof to establish guilt beyond reasonable doubt

Funny, there was me thinking it was a complaint.


That's one way a private prosecution can start.The Boris Johnson private prosecution started as a complaint.

It's a summons . It's got summons on the top as well as complaint.

Do you know the difference between a complaint and an information?


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dramaqueen
post Mon, 17 Jun 2019 - 15:00
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Just switching tack: I think there may be a simple factual issue that could be used as a fall-back.

Supposing after all there were such a thing as a private pre-conviction penalty that the owner must pay and can be hanged if he doesn’t……. the penalty still must be “displayed in the area.” And it’s not. I had a look at Royston station car park on Google maps. It can be a difficult argument for a lot of car parks - judges seem to think you should park up and search for the signs. But Byelaws penalties are different because of those words “displayed in the area’ in Byelaw 14/4/i.

“Displayed”, as defined by the OED, means put in a prominent place in order that it may readily be seen. To this can be added ….by a motorist who will be catching a train. So tucked away in dark corners won’t do.

It’s a matter of judgement: what would readily be seen by a motorist rushing to catch a train? Of course there aren’t any regulations about warning notices for Byelaws penalties (seeing these penalties don’t exist) But if they did exist, the requirement to bring them to passengers’ attention would be no less than with penalty fares. So it’s reasonable to expect the display signs should be of an equivalent standard. Rule 4.3 of the Penalty Rules 2002 required the notices to be “noticeable, easy to read and easy to distinguish from other notices and from the general surroundings”. The Penalty Fares Regulations 2018 go even further. Schedule 1 requires a triangular scarlet-bordered penalty fares logo and the word “WARNING” in large letters at the top of the notice - http://www.legislation.gov.uk/uksi/2018/366/schedule/1/made


The warning notices at Royston car park do not come anywhere near to fulfilling the most basic definition of “displayed”, let alone the requirements of the Penalty Fares Rules and Regulations. The main sign is at the entrance where the motorist will still have his eyes on the road. The information about a penalty notice is written half way down, amongst a great deal of other information, and in small print. It could not possibly be picked out by the driver of a moving vehicle.

There appears to be no other signs within car park which mention the penalty, apart from one behind the pay machine which a motorist who intends to pay using the App will simply pass by. Again, the information about the penalty is written in small print amongst a great deal of other information.

So there is no "penalty as displayed in the area". End of story. Worth a shot, anyway.


@OP I suggest you take a photograph of the entrance sign, from a motorists’ eye view, and another of the Penalty Fare sign within the station (if it’s a penalty fare station. If not, try and find one that is). Then show them to the magistrates: “This is how a penalty should be displayed; this is how the TOC do it.”

This post has been edited by dramaqueen: Mon, 17 Jun 2019 - 15:23
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AnonymousMouse
post Sun, 23 Jun 2019 - 20:06
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Hi again,

Thank you so much for all your replies and apologies for being so slow to respond. PePiPoo is blocked at my place of work (!) so I have been reading on my phone but not able to reply. The hearing is this week and I have taken the day off for it and moved my work engagement.

I really appreciate everyone's input on the case and all the points made, I think I actually understand most of them (but definitely not all of them), although as someone else said they all do come across as highly technical legal points that I will find hard to put across and even harder to defend if challenged. Is it the case that there could be legal 'pingpong' so the other side could challenge me and I have to answer back.... or do I just say my thing and then they say theirs?

I will take the advice of dramaqueen and others and prepare 5 copies of 3 separate submissions: preliminary issues (addressing whether the whole summons is correct, using all of the points given above), my witness statement (I am not sure yet how to compose one but I am going to look around here to find a good example, or otherwise follow a template from MSN, and I will include the pictures you mention dramaqueen although I'm not 100% sure what you mean with a 'Penalty Fare Station'?), and final submissions showing why no-one can be liable for a pre-conviction private penalty.

I would also like to make a schedule of costs, which I know is a little optimistic and I am not even sure if that is possible in a magistrate's court? It has cost me a whole day's annual leave and will cost me fuel to drive all the way up to Nuneaton and back so if the case is dismissed or if I win, would it be reasonable to ask for these to be paid?

Last but not least, if the case is dismissed, can the TOC come back with a new tactic or try to pursue me in a different way (in other words, would that be the end of it?!).

Thank you again for all the super helpful advice and information, I am overwhelmed with the level of support and whatever happens I will of course report back!
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Sheffield Dave
post Sun, 23 Jun 2019 - 21:07
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Good luck!
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HappyHarry
post Mon, 24 Jun 2019 - 01:24
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Sending you positive vibes, Mouse. All your preparation will pay off. Very best of luck. x


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southpaw82
post Mon, 24 Jun 2019 - 09:33
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Don’t forget that your witness statement must comply with s 9 of the Criminal Justice Act 1967. Don’t use a civil court template as a base.


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AnonymousMouse
post Mon, 24 Jun 2019 - 16:40
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Thank you - having read up on this it seems it’s too late to enter a witness statement anyway. I also haven’t received anything from Govia, so I guess they are not entering any witness statements or evidence either.

QUOTE (southpaw82 @ Mon, 24 Jun 2019 - 10:33) *
Don’t forget that your witness statement must comply with s 9 of the Criminal Justice Act 1967. Don’t use a civil court template as a base.

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southpaw82
post Mon, 24 Jun 2019 - 17:31
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QUOTE (AnonymousMouse @ Mon, 24 Jun 2019 - 17:40) *
Thank you - having read up on this it seems it’s too late to enter a witness statement anyway.


When is your court date?

QUOTE
I also haven’t received anything from Govia, so I guess they are not entering any witness statements or evidence either.

Presumably they have some evidence otherwise they’re in a bit of difficulty.

Thinking about it, you’re summonsed for a complaint (i.e. civil debt) rather than on an information for a bye law offence (criminal prosecution) aren’t you? If so, s 9 doesn’t apply.


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AnonymousMouse
post Tue, 25 Jun 2019 - 19:54
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WARNING: Full report of my visit to the Magistrate, as promised! It’s ridiculously long because I have included every detail I can remember in case it’s relevant.

TLDR: I turned up and so did a solicitor from Wright Hassall, I raised a slightly confused bunch of technical legal points as preliminary issues in writing and when asked by the clerk, denied the claim. The clerk adjourned the hearing to allow time to address my points and the magistrate clarified at the end that ‘to be perfectly clear, this is not a private prosecution from the claimant but a civil case and what we will have to decide is ‘does the claimant have a right to demand this money’? The solicitor spoke to me afterwards and implied that I am foolish to go down this route and am in for his very high costs if he wins and that he has seen ‘lots of cases like that where people are surprised at the costs when they lose’.

So.... the long version – I got the date wrong for the hearing and only realised it was today last night!!! I had done some prep and read loads, but had not put a lot on paper and had not run it by anyone, so was deservedly on my own with it all due to my own disorganisation despite your kind offers of help.

I turned up with 5 copies of what I had decided to call ‘Statement of Preliminary Issues’ that contained 6 points: Mostly only slightly adapted from Sheffield Dave and some of what Anon54 had said. I fear I confused preliminary issues with a witness statement in my ignorance and rush to get something written down! No matter where I looked online, I could not find a template for this stuff.

There was a solicitor type waiting outside the courtroom who approached me when I got there and who said he had just been inside and had been asked to tell me how things would work in the court room as I was unrepresented. He explained we could go in when I was ready and would then sit down at the side of the horseshoe table.

He also at this stage asked me whether I intended to deny or accept the claim to which I said that I intended to raise preliminary issues. He seemed surprised about this and said he had not seen my preliminary issues. I said that was fine. (I had not seen anything from them either, was I supposed to send that through sooner? I don’t know! It felt strange that he asked me my position anyway literally 2 minutes before the hearing).

We then went in and sat down at the horseshoe; there was a criminal case ongoing with a lady actually in the dock. An usher came through when we were seated whilst this was all happening and told the solicitor off for seating me and himself at the horseshoe seats but left us, leaving the room rolling her eyes at him. The previous criminal case finished and they moved on to me.

The court clerk was really knowledgeable and friendly. Everything I had read about what to expect was that they would be annoyed with me self-representing and not following expected legal format or lingo, which is what I was most nervous about, but the clerk was really careful to explain everything to me as well as to the magistrates, of which there were 2, shortly after joined by one other.

The clerk explained to all of us that this was a civil case (and that I should therefore stay seated on the horseshoe) and that the claimant was there represented by Mr X (pointing at the solicitor), and she then asked me to identify myself by name, address, DOB and nationality. She asked me if I intended to deny or accept the claim and I said I had some preliminary issues that I had typed out after some advice from a legal friend and would it be appropriate to hand those out or read them out at this stage? The clerk said that would be fine and was super impressed with my 5 copies  and took one for herself, gave one to the solicitor and the other 3 to the magistrates. The clerk then asked me to give everyone time to read my statement.

After 5 minutes or so (in which the magistrates conferred a little and I heard the head magistrate mumble ‘good point’ at some stage), I can’t remember who spoke first but it revolved around the main magistrate asking whether the clerk could advise them on what their powers are in this case. I believe he was referring to my point 1 of 6, questioning whether we were in the right venue for an alleged civil debt and asking what enabling legislation or clause in the Railway Byelaws the claimant intended the Magistrates to use today and for what order.

The clerk advised the magistrate that this is a civil case and then said to everyone that the case would need to be adjourned to address the preliminary issues that I have raised. She asked the solicitor if he had any comments or answers on all of the points I had raised. The magistrate also asked if the solicitor had an answer to my point 1. The solicitor then said it would be hard to address all of my points without it sounding like he was cross-examining me and asked for the clerk to stop him if she felt ‘it sounded that way’.
He then came up with answers just as random as my own points as he tried to address each one, one by one. With regards to the first one about venue and what order they are seeking, he said something about this being a breach of Byelaw and therefore being exactly and simply the same as a case they would pursue for fare dodging on the trains and that he was claiming under those same laws.

He said it states in Byelaw 14(4)(i) that the owner ‘may be liable to pay a penalty as displayed in that area’ (which was written as my point too so up until then we agreed!) and that therefore they are pursuing the penalty under that Byelaw. He said (in answer to the magistrate) that he could not identify any further clause in the Railway Act then (that enables any sort of mechanism for the owner to become liable to Govia prior to conviction I guess) and that he had not had the opportunity to prepare for this question. (This was followed by an awkward silence). He said he did have a copy of the Railway Act or the Byelaw with him, he waved a piece of paper around and then apologised saying he had not made copies for anyone else to see it or for the Magistrates to have a look to see if they could find it.

He also responded to the fact that I said in point 2 that I have not received anything amounting to a reasonable amount of detail to allow me to defend myself by saying I had received 3 previous letters which I had not responded to, which had plenty of detail. That seemed to satisfy the magistrates and the clerk (who did not have any letters or evidence to look at although again the solicitor was constantly leafing in his big folder pointing to letters and ‘evidence’ in front of him only as he was talking). I had written that the summons did not contain any reasonable detail as to what order they are requesting but perhaps I should have been more specific about that, or perhaps the 3 letters that were sent in the past do amount to reasonable detail to allow me to defend myself? Or perhaps the solicitor was being obtuse.

I think he also said something about ultra vires – which I had put in point 4, and he just referred back to Byelaw 14(4)i. I have to say I lost track a little of what he was saying and it didn’t sound very coherent because, having reasonably understood my own points, he wasn’t really addressing them apart from pointing out 14(4)i and saying that he did not have the answer to what clause.

The point that I think had the most effect was my point 5, in which I said what anon54 wrote: “The supposed “penalty charge cannot be a statutory penalty charge, and ought to be properly considered as a demand for a sum of money not to prosecute, a demand which I was under no obligation to meet and accordingly, the correct course of action for Govia to take would have been to prosecute for the alleged offence. Govia’s failure to do so does not entitle them to claim a sum of money that was never due in the first place.” The solicitor did not address this point.

In point 6 (probably stupidly?), I had said that ‘I did not break any byelaw because the driver ‘followed instructions given by an Operator or authorised person’ at that place to pay for parking, by using their recommended mobile application once on the train. The app failed to take my offered payment on two occasions’. So I guess on this point I both went into WS mode, and also incriminated myself. In his warbling response regarding my previous preliminary points, the solicitor now went to town and took the opportunity to say that I have received previous fines for parking in breach of byelaws over the last 2.5 years and that I have received a fine more recently than the two they are choosing to pursuing me for – presumably to make me look like a persistent and deliberate offender. I am not because I pay every time I park via the app, but over the last 2.5 years of commuting there have probably been more occasions on which parking wasn’t paid, I calculated in my head that it’s roughly 460 days of parking in 2.5 years and there have been other occasions where the app failed that were over a year or two years ago, and one more recently. It did make me look bad though.

The clerk said that we would have to deal with the preliminary issues first anyway and then asked the solicitor what his answer was to my question of how he intends to hold me liable (owner/keeper/driver) and he said it doesn’t matter under the Byelaw. She asked me if I deny being the keeper of the car and I said I do not, I accept I am the keeper.
The clerk said to the solicitor that the case would be adjourned to give them a chance to address preliminary issues (I think she said this) and for both parties to submit witness statements and she asked the solicitor to bundle both of these up into a bundle for the court as I am self-represented, which he agreed to. The deadlines are in July and there is now a new court date in August.

Then, the Magistrate addressed me directly and said that it would be very important for me to show up at this new hearing (I am not sure why he stressed this so much but I reassured him I would), and he said that ‘to be clear, this is not a private prosecution from the claimant but a civil case and what we will have to decide is ‘does the claimant have a right to demand this money?’ I wrote this down so I would not forget! Then the clerk also offered to give me advice on the format of my witness statement if I stayed behind until lunchtime (she was really nice!).

Outside the court room, the solicitor asked me for 2 minutes of my time. I said okay and he said to me that he knows all about ‘the forums’ and he knows about the people on there and that it ‘makes him sad’ to see ‘intelligent people like you’ ‘fighting the fight for those people’. He ‘sees it all the time’ and ‘what people don’t realise is that if we win, the fine is up to £1000 and my cost too and they are surprised because they come in with arguments given by people from the forum and then lose and didn’t realise how much it would cost.’ He said he ‘had not even mentioned settling yet’ but that I should consider carefully what I do because his cost and hours on this case would be very high if he won in addition to the up to £1000 fine and that he would be very sad about that. So he basically said the same thing twice.

I have had nothing but great advice on here and on MSN and I think he just begrudges the fact that members of the public are now armed with a little bit of knowledge when – to all intents and purposes – I think he fully expected me to come in and accept the claim and be done with it.

If anyone is still with me, I have lots of questions now because he has caused some doubt in my mind of course, but also because I am still a little confused about what happens next.

1. Do the preliminary questions I raised get addressed off-line first before we proceed with the case? It didn’t sound like it because the clerk set deadlines for all WS submissions as well as a new hearing date and she set aside 2 hours for it! She also said that for my witness statement, I should just start with the points I raised today (pointing at her copy of my statement) and then carry on, then sign and date etc etc which again implies the preliminary issues will be addressed in August and not in the interim.

2. Shall I wait to see what the Witness Statement will say by Govia? The solicitor said it will be just one witness statement and that they will simply seek to link my name to the vehicle. The clerk said the solicitor must serve his WS on me and then I have a further 2 weeks to respond with my WS.

3. Is there anything I can do in the meantime to clarify these legal technicalities? If the case is to establish whether Govia have the right to demand this money from me, isn’t this quite a landmark case potentially with regards to Byelaws? And was the solicitor correct that - if they win “the right to demand this money from me” I will be liable for their costs (I kind of get that and assume also the parking fine?) but why would the magistrate then also impose a fine on me? Wasn’t the solicitor’s threat there irrelevant?

Hope this wasn’t too long….! I appreciate all the support you gave me, especially dramaqueen and Sheffield Dave (whose points I used almost word for word because I did not know how else to write my issues at such short notice!) and anon54 who has shared a lot of wisdom and whose point about the ‘supposed penalty charge’ I think made the most impact today.

I guess I am not sure if today was good or bad, or whether I am just in a holding pattern, or whether I have done damage to my case by not getting it dismissed summarily due to my own ignorance. I am also slightly worried whether I am going to be the test case for what is and isn’t allowed under Railway Byelaws!

Anonymouse
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Umkomaas
post Tue, 25 Jun 2019 - 20:47
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QUOTE
Then, the Magistrate addressed me directly and said that it would be very important for me to show up at this new hearing (I am not sure why he stressed this so much but I reassured him I would), and he said that ‘to be clear, this is not a private prosecution from the claimant but a civil case


QUOTE
I should consider carefully what I do because his cost and hours on this case would be very high if he won in addition to the up to £1000 fine

My understanding is that in a civil case, unless the defendant is totally unreasonable, costs are significantly restricted. His costs (for legal support) are capped at £50.

If it is a civil case, there is no fine per se.

Others might confirm my understanding.
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southpaw82
post Tue, 25 Jun 2019 - 21:04
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Your understanding of costs in civil cases isn’t correct. The only reason costs are restricted is due to the provisions of the Civil Procedure Rules in respect of costs on the small claims track. The CPR don’t apply in the magistrates court and this case isn’t on the small claims track.


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Sheffield Dave
post Tue, 25 Jun 2019 - 21:20
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First, well done! You stood your ground in what must have been a very stressful situation, and frankly from your description you made their solicictor look like a floundering idiot in front of the clerk and magistrates.

Yes, this is to a certain extent a test case, at least from the perspective of this forum - we've not had a TOC try a civil claim like this before for a byelaws offence, as far as I'm aware.

I can't really answer any questions about court procedure.

You should definitely leave submitting your witness statement as late as possible (but no later!), so that you can adjust it in response to anything in their WS. I don't know whether the preliminary matters will be "retried" so to speak, but best to assume they are and prepare for it. And certainly include in your WS that you have paid for parking 460+ times and only failed to pay a handful of times, due entirely to the poor quality of their software. (For which they should be compensating you, not dragging you through the courts.)

Notice how their solicitor was always trying to fudge the criminal / civil distinction as far as possible - e.g. talking about you getting a £1000 fine, which should only happen as a result of a criminal conviction. Or that a civil matter should be held in the magistrates court just because it relates to byelaws. They are trying to do an end-run around all the protections you are entitled to in the small-claims court, such as limited costs. His "helpful" chat with you afterwards may have been less to do with saving you from yourself, but because he knows he's in a bad position.

Did he ever get as far as stating how much money the civil claim was for? Or is that indeterminate, because again he is trying to fudge the distinction between a fine, whose amount the magistrates choose on the day, and a civil debt, which ought to be known in advance ("she owes us £100").

I think at the next hearing, bang on strongly about the point that the only thing in the enabling legislation which empowers them to fine you is a criminal conviction. Their solicitor was clearly blind-sided by that. (Make sure you bring 5 copies of the Railways Byelaws sections 14 & 26, and railways act schedule 9 with you).

I think today was a very good day for you. They could have easily just brushed your objections aside as being from someone legally illiterate and gone on to fine you and/or award a civil claim against you, as well as large costs. (This could of course still happen at the next hearing.)

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Umkomaas
post Tue, 25 Jun 2019 - 21:40
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QUOTE (southpaw82 @ Tue, 25 Jun 2019 - 21:04) *
Your understanding of costs in civil cases isn’t correct. The only reason costs are restricted is due to the provisions of the Civil Procedure Rules in respect of costs on the small claims track. The CPR don’t apply in the magistrates court and this case isn’t on the small claims track.

Thank you - appreciate your clarification. Obliged.
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southpaw82
post Tue, 25 Jun 2019 - 22:09
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QUOTE (Umkomaas @ Tue, 25 Jun 2019 - 22:40) *
QUOTE (southpaw82 @ Tue, 25 Jun 2019 - 21:04) *
Your understanding of costs in civil cases isn’t correct. The only reason costs are restricted is due to the provisions of the Civil Procedure Rules in respect of costs on the small claims track. The CPR don’t apply in the magistrates court and this case isn’t on the small claims track.

Thank you - appreciate your clarification. Obliged.

No worries.


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Mr.Consumer
post Tue, 25 Jun 2019 - 23:18
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I have read this thread with interest and lurking in the background but I just wanted to throw something into the ring which I don't think has been discussed - forgive me if it has but I did read the thread in the Flame Pit and Anon's link and couldn't find anything.

I've been doing some research of my own and on the question of whether the Mags' has jurisdiction to hear the complaint, s.52 of the MA 1980 says that the Mags have jurisdiction to hear any complaint subject to a provision made in any enactment.

S.150 then goes on to define an "enactment" as being "an enactment contained in a local Act or in any order, regulation or other instrument having effect by virtue of an Act."

Take the below example I have found to illustrate the point:

Taxes Management Act 1970 (s.65):

QUOTE
(1) Any amount due and payable by way of income tax, capital gains tax or corporation tax which does not exceed £2,000 shall, without prejudice to any other remedy, be recoverable summarily as a civil debt by proceedings commenced in the name of a collector.

(2) All or any of the sums due in respect of tax from any one person and payable to any one collector (being sums which are by law recoverable summarily) may, whether or not they are due under one assessment, be included in the same complaint, summons, order, warrant or other document required by law to be laid before justices or to be issued by justices, and every such document as aforesaid shall, as respects each sum, be construed as a separate document and its invalidity as respects any one such sum shall not affect its validity as respects any other such sum.


So as far as I can see, the main issue is for Govia/Wright Hassall to point to a specific enactment that treats this type of breach of byelaw (1) as a civil debt and (2) that recovery of the civil debt must/can be made by way of a complaint - I can't find anything that specifically states that a breach of the byelaws is treated as a civil debt, rather Sch. 20 of the Transport Act 2000 makes it clear that a breach of any byelaw may be guilty of an offence. The use of the word "may" would suggest the operators have discretion as to whether a byelaw is deemed an offence but I doubt that extends to them having the right to use the complaint procedure since the requirement is that the Mags only have jurisdiction where an enactment makes provision for it.
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southpaw82
post Wed, 26 Jun 2019 - 09:02
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Section 52 says

(1) A magistrates’ court has jurisdiction to hear any complaint.

(2) But subsection (1) is subject to provision made by any enactment.

That to me reads as a general power that can be removed by an enactment, not that an enactment needs to specify a power to confer jurisdiction. Otherwise magistrates could not hear complaints for breach of the peace at common law (unless an enactment confers that jurisdiction, using your interpretation).


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softwaremad
post Wed, 26 Jun 2019 - 09:28
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Wow you trooper. Sounds to me like you are doing a tremendous job of standing up for your rights in what is a horrifically stressful situation.

I can’t help re mag court as no knowledge there
Wright hassall however I have encountered in the past.

They always push for costs. Very large figures are demanded for attendance and paper work etc. Only once have they been awarded a portion of their demands. (Small claims)

Recently they tried a case providing fraudulent documents. They discontinued at directions questionnaire stage.

This firm along with many others are at times strangers to the truth. They think nothing of manipulating information to assist in their goal of winning.

Any information you have to present ensure that it is timed and dated.

A subject access request to the parking app company for all times payments made might help you here. This would show that you are not a flagrant abuser as they are seemingly insinuating

Your case in the civil arena would be a frustration of contract. You tried to pay and for reasons beyond your control payment was not taken. .
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Mr.Consumer
post Wed, 26 Jun 2019 - 10:11
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@Southpaw82, I understand your viewpoint but respectfully have to disagree with it. As I read sub(2) it says that the Mags have jurisdiction provided that an enactment makes provision for the Mags to have jurisdiction i.e. there has to be some kind of express reference to a complaint being made in the legislation. Otherwise, the Mags would in effect have jurisdiction to hear all civil claims by way of complaint and that's clearly not the intention.

On your point about magistrates not hearing complaints for breach of the peace, the MA 1980 does in fact makes provision for magistrates to have jurisdiction for any breach of the peace (s.115):

QUOTE
(1) The power of a magistrates’ court on the complaint of any person to adjudge any other person to enter into a recognizance, with or without sureties, to keep the peace or to be of good behaviour towards the complainant shall be exercised by order on complaint.


Although not expressly stated in the same terms as the Taxes Management Act the MA it still confers jurisdiction by making reference to a complaint being made. Another couple of examples of an express provision are council tax liability orders and civil banning orders under the Football Spectators Act 1989 (see below).

QUOTE
The Council Tax (Administration and Enforcement) Regulations 1992
34. Application for liability order
...
(2) The application is to be instituted by making complaint to a justice of the peace, and requesting the issue of a summons directed to that person to appear before the court to show why he has not paid the sum which is outstanding.


QUOTE
Football Spectators Act 1989
14B - Banning orders made on a complaint.

(1)An application for a banning order in respect of any person may be made by—
(a)the relevant chief officer, or
(b)the Director of Public Prosecutions,if it appears to him that the condition in subsection (2) is met.

(2)That condition is that the respondent has at any time caused or contributed to any violence or disorder in the United Kingdom or elsewhere.

(3)The application is to be made by complaint to a magistrates’ court.


I think all of the above reinforces the view that Mags have jurisdiction for civil claims, but it is limited.

Happy to hear any further thoughts on this.

Edit: Even if your interpretation was correct in that Magistrates can hear any complaint pending any enactment which removes that jurisdiction, that still wouldn't change my viewpoint in that complaints could only be made where legislation explicitly states that the complaint procedure is to be used.

This post has been edited by Mr.Consumer: Wed, 26 Jun 2019 - 11:01
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