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worth fighting this Penalty Charge Notice (PCN)?, A case to learn from? am Here to learn!
raf
post Fri, 16 Nov 2018 - 20:37
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Hi all and thanks in advance for helping!

the Contravention happened @ Box Jct-uxbridge Rd Approx 25yds West Of Holland Pk Rdbout
, my tail was in the box for 10 seconds flat!

I will the the video speak for it's self : https://streamable.com/u79nk

The car (BMW) infront stopped diagonally blocking the left lane with the head pointing towards the middle lane, we was both in motion

The map shows that there was ~19 meters of space (average family car length is 4.80m, a box van is 6.70m)
https://imgur.com/a/gwLctu2


Is there any angle for an appeal?


Cheers all,
Raf

This post has been edited by raf: Fri, 16 Nov 2018 - 20:45
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post Fri, 16 Nov 2018 - 20:37
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peterguk
post Fri, 16 Nov 2018 - 21:20
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Post up all sides of PCN.


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DancingDad
post Fri, 16 Nov 2018 - 21:39
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Started from static and entered the box without a clear exit, on that there is no defence.
Minimal stop is a possible but although I reckon less then ten seconds, not close enough for de minimis (too trivial to bother with) IMO.
I note it is a hire van, the hire company would have got the PCN first.
Is this a new one in your name or is it one the hire company have passed to you ?
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PASTMYBEST
post Fri, 16 Nov 2018 - 22:06
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I made quite a strong appeal at this location in another case with very similar circumstances. It lost


Appeal against the imposition of Penalty charge number xxxxxxxx
Vehicle registration mark aa 23 cde.

I made my representation against this PCN in the belief that the council, seeing that from the position my vehicle stopped, it could cause no obstruction to the flow of traffic and that the council would apply their own policy. I was sadly disabused by the rejection. Somewhat upset by this I undertook some research and sought advice and would appeal as follows. Firstly under the Statutory ground that

There was no contravention of a prescribed order

The video takes pictures from a hight looking down upon the traffic, unlike myself looking from road level. It appeared to me upon the traffic lights changing, there was both room for the range rover in front to move forward, and for me also to have moved slightly forward to clear the box. It is my submission that I believed that I had cleared the box, and that had I known differently, there was room for me to move forward and do so, Albeit this would be a tight fit.

I would contend that the second limb of the contravention is not made out. In the alternative, I submit that the principle of de minimis non curat lex can apply, both in respect of the amount of transgression of the box. Only the rear wheels being within the box. And also the amount of time stationary (approximately four seconds) is too trivial to warrant a penalty.

I also make a collateral challenge under the ground that

The penalty charge exceeded the amount applicable in the circumstances of the case.

That the council fail in their common law duty to act fairly. The council publish a guidance document for yellow box junction enforcement. At chapter 9 it says “ On larger type box junctions cars and vans with less than 50% of their length over the box junction should have discretion applied if they are not an obstruction.” For small boxes this is reduced to 25% I would refer the adjudicator to paragraph two of page two of the Notice of rejection. The statement that “The rigidity of enforcement is equal across every square metre of the box”. Whilst this must of course be the position in law, it make a mockery of the council guidance. This is followed by the statement “While your vehicle would not be be seen as causing as much of an obstruction as one in the centre of the box it would still cause an obstruction”. This as can be seen from the attached GSV, from the council video and stills taken from it, is disingenuous to say the least. No obstruction was or even could be caused to any vehicle that had a legal right of access to the box.

I would contend that this particular box falls into the definition of larger, but either way less than 25% of my car encroached into the box.

A council as a public body has an overriding duty at common law to act fairly at all times. For this reason once a guidance policy has been agreed by the council it is not for individual officers to arability step outside it. There must be good reason that policy is not followed, and this must be explained. The council have at best cited a spurious reason this is not acting fairly, nor is it taking the guidance at its word “SHOULD” have discretion applied This can only mean that the default position should be to apply this discretion not ignore it, as has been done here,

The council have failed in their common law duty. As such the cannot seek to enforce a penalty on the back of that failing.

I respectfully ask that having given consideration to these submissions, the councils policy document, video stills and attached GSV you will find either or both of these reasons sufficient to order cancellation of this PCN

https://www.google.co.uk/maps/@51.5044308,-...3312!8i6656

https://www.whatdotheyknow.com/request/5072...er%203.doc.html


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stamfordman
post Fri, 16 Nov 2018 - 22:12
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Yes, that Hammersmith guidance doc i found hasn't proved to be as useful as we might have hoped.

In this current case, the BMW clearly makes a mockery of anticipating an exit and if there was any common sense thsi PCN should be cancelled.

So apart from the roughly 50% in box there is:

5. Steady slow moving traffic over a box junction is probably the most difficult scenario to deal with especially if we are dealing with multiple lanes. Somebody suddenly slowing down or stopping short for no good reason may cause a judgement problem, when drivers in the vehicles behind, looking in advance of the vehicle in front of them thought they had judged it correctly and would make it off the box. An example maybe when there are 3 empty car spaces in one lane on the exit side of the box junction and 3 cars start to travel over the box towards them in one line. The first 2 cars may use up all 3 spaces due to leaving large gaps between them. This would be unfair to the third car driver who thought they would all fit in. The critical factor here is that the drivers have a reasonable line of sight to make their judgements. We should apply discretion. We have to weigh up the good momentum of traffic travelling freely over box junctions while not trying to make people treat it like a stop line or give way line unnecessarily. In time deterrence should make more drivers aware of how to treat their approach to a box junction.
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PASTMYBEST
post Fri, 16 Nov 2018 - 22:20
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I think I would still try it but need some case law on a councils public law duty and on legitimate expectation. I know its out there but no chance to look till next week at best


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hcandersen
post Sat, 17 Nov 2018 - 10:28
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If there is a policy document published by the council, then it binds officers of the enforcement authority.

In EVERY case where officers of the enforcement suthority have prima facie failed to comply with such a policy or where an owner's defence is that the exemption in such a policy applies then the question must be put in reps and full appeal, and keep asking until an answer is forthcoming.

Do not just say...they haven't complied, give the adjudicator more to go on.
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raf
post Sat, 17 Nov 2018 - 12:12
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QUOTE (DancingDad @ Fri, 16 Nov 2018 - 21:39) *
Started from static and entered the box without a clear exit, on that there is no defence.
Minimal stop is a possible but although I reckon less then ten seconds, not close enough for de minimis (too trivial to bother with) IMO.
I note it is a hire van, the hire company would have got the PCN first.
Is this a new one in your name or is it one the hire company have passed to you ?


The one the Company sent me. Attached

This post has been edited by raf: Sat, 17 Nov 2018 - 12:14
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DancingDad
post Sat, 17 Nov 2018 - 12:28
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QUOTE (raf @ Sat, 17 Nov 2018 - 12:12) *
QUOTE (DancingDad @ Fri, 16 Nov 2018 - 21:39) *
Started from static and entered the box without a clear exit, on that there is no defence.
Minimal stop is a possible but although I reckon less then ten seconds, not close enough for de minimis (too trivial to bother with) IMO.
I note it is a hire van, the hire company would have got the PCN first.
Is this a new one in your name or is it one the hire company have passed to you ?


The one the Company sent me. Attached



Not attached but at the moment, if the PCN is in the hire company name, you have no standing in the matter.

You can pay "on behalf of the company" but I suspect discount period may have expired.
You can ask company to challenge on "I am a Hire Company" ground and nominate you. You will then get new PCN in your name and at least have discount option and more time.
You can ignore it. Chances are that Hire Company will pay or challenge, billing you as needed. I say billing but likely a deduction on your credit card.
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PASTMYBEST
post Sat, 17 Nov 2018 - 12:43
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QUOTE (hcandersen @ Sat, 17 Nov 2018 - 10:28) *
If there is a policy document published by the council, then it binds officers of the enforcement authority.

In EVERY case where officers of the enforcement suthority have prima facie failed to comply with such a policy or where an owner's defence is that the exemption in such a policy applies then the question must be put in reps and full appeal, and keep asking until an answer is forthcoming.

Do not just say...they haven't complied, give the adjudicator more to go on.


Here's the decision for the case I appealed


2180222175

Mr. Campbell appeals against a Penalty Charge Notice (PCN) issued in respect of an alleged contravention of the requirements of a ‘box junction’, contrary to paragraph 11(1) of Part 7 of Schedule 9 to the Traffic Signs Regulations and General Directions 2016 (“the Regulation”).
The CCTV evidence shows Mr. Campbell’s vehicle entered the box junction fairly slowly at a green light. The traffic at the other side of the box junction was already stationary. Mr. Campbell slowed to a halt behind the vehicle ahead, with some of his car remaining stationary within the box junction for a few seconds. Mr. Campbell’s account was that, due to the nature of the rise and curvature of the road, it was very difficult to see if there was sufficient space between the far side of the box junction and the vehicle ahead. I accept that. I also accept that he stopped with a gap between his vehicle and the vehicle ahead so that the vehicles did not come into contact if the vehicle ahead rolled back a little.
I have had regard to the wording of the Regulation and to the case of Gillingham v. LB Newham et al which interprets it. The Regulation states:
“11 (1) Subject to sub-paragraphs (2), (3) and (4), the yellow criss-cross marking provided for at item 25 of the sign table in Part 6 conveys the prohibition that a person must not cause a vehicle to enter the box junction so that the vehicle has to stop within the box junction due to the presence of stationary vehicles.
(7) A reference in this paragraph (however expressed) to a vehicle which is stationary or stops within a box junction includes a vehicle which is stationary whilst part of it is within the box junction.”
The Regulation means in effect that the motorist must not enter the box junction unless there is sufficient space beyond it for him or her to clear the box junction entirely, even if the vehicle ahead were to stop unexpectedly. The motorist who enters the box junction when there is insufficient space beyond it takes the risk that, if the vehicle ahead were to stop, his or her vehicle would have to stop wholly or partially within the box. In those circumstances, the contravention would occur.
I have also had regard to the Highway Code, rule 150, which, although it does not have the status of law, is useful guidance. The Highway Code, at point 150, informs motorists that ‘you MUST NOT enter the box until your exit road or lane is clear’.
The CCTV evidence in this case demonstrates a clear contravention of the prohibition on stopping within a box junction. When Mr. Campbell entered the box junction the road ahead was not ‘clear’ - in the sense that there was demonstrably sufficient space beyond the box junction for Mr. Campbell to clear it without colliding with the vehicle ahead. Although I accept it may have been difficult to judge the space available, Mr. Campbell should have waited until his exit from the box was demonstrably clear for his whole vehicle before entering it. In entering the box junction without a clear exit the risk is, as transpired in this case, that insufficient space is available behind the vehicle ahead and the vehicle in question, or part of it, is ‘trapped’ in the box junction. The reason Mr. Campbell stopped partially within the box junction is, self-evidently, due to the presence of the stationary vehicle or vehicles ahead. But for the presence of stationary vehicles Mr. Campbell’s vehicle would have been able to move forward. I do not accept that the period in which the vehicle stopped was ‘de minimis’. In any event, it is not necessary for the enforcement authority (EA) to prove that the period in which the vehicle stopped was more than de minimis, or that an obstruction was caused, although these are relevant to the next point Mr. Campbell raises. The contravention is proved.
Mr. Campbell raises a further interesting point that arises from the EA’s regard (or alleged lack of it) to its guidance on the enforcement of penalties for alleged contraventions of the requirements of a box junction. Mr. Campbell says that the EA’s failure to have regard to its own policy or guidance, and to act fairly in accordance with it, renders the PCN unenforceable. Assuming that I have jurisdiction to entertain such a ‘collateral challenge’ to the PCN, I proceed to deal with the argument on its merits. I quote from the relevant guidance, which is the LBHF Box Junction Enforcement Guidance ver. 3 2007:
“9. On large type box junctions, cars and vans with less than 50% of their length over the box should have discretion applied if they are not an obstruction….”
It is Mr. Campbell’s case that, given it was a large type box junction, and less than 50% of his vehicle was over the box and was not causing an obstruction, the EA cannot have had regard to the guidance. If it had, acting fairly, it would have cancelled the PCN.
There is a presumption that a public body has had regard to its own policy unless the contrary is proved (see PCSU v. Minister for the Cabinet Office [2017] EWHC 1787 (Admin)). In the absence of any direct evidence of a failure to observe the policy I am reliant on the logic of Mr. Campbell’s argument to infer that the EA did not have regard to it, because no decision maker who had had regard to it could have reached the decision it did.
I accept that the box junction in question is ‘large’. I also accept, on my view of the evidence, that (slightly) less than 50% of the vehicle was over the box and it was not causing an obstruction. I am not able to accept, however, that no decision-maker who had regard to the guidance could have proceeded to enforce the PCN. It is quite marginal as to whether less than 50% of the vehicle was over the box; the decision maker was entitled to treat is as a marginal case. Even if s/he had accepted that less than 50% of the vehicle was over the box, as I read the guidance it requires the decision-maker to exercise a discretion. The guidance does not stipulate in which way the discretion should be applied. Some decision-makers would have exercised the discretion in favour of Mr. Campbell. In this case the discretion was exercised, perhaps strictly but fairly, against him. The guidance is, after all, just that. It is not a set of hard and fast rules. Despite Mr. Campbell’s diligent research and persuasive submissions, I am not, therefore, persuaded that, on the balance of probabilities, the EA failed to have regard to its own policy or guidance or to act fairly.




I think the OP in this case could fall foul of the same reasoning

This post has been edited by PASTMYBEST: Sat, 17 Nov 2018 - 12:46


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cp8759
post Sat, 17 Nov 2018 - 16:08
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QUOTE (PASTMYBEST @ Fri, 16 Nov 2018 - 22:20) *
I think I would still try it but need some case law on a councils public law duty and on legitimate expectation. I know its out there but no chance to look till next week at best

The case normally quote is Fayed, R (on the application of) v Secretary Of State For Home Department [1996] EWCA Civ 946 but I think it's a bit OTT for a case like this. For that ground to succeed you would have to show that choosing to enforce the PCN where less than 50% of the vehicle takes up the box is a decision that is so unreasonable that no reasonable decision maker would ever make such a decision.

Is enforcing this PCN a tad harsh? Sure. Is it so harsh that no reasonable enforcement authority would ever decide to enforce? Clearly not.

Also exercising discretion does not equate to cancelling the PCN. The council are entitled to say they have exercised their discretion and their discretionary decision is to pursue enforcement. So while I think the policy should be quoted at the reps stage, I would not recommend taking this any further if the discount is still on the table.


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hcandersen
post Sat, 17 Nov 2018 - 17:31
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Wih respect, the answer is in the decision:

In the absence of any direct evidence of a failure to observe the policy I am reliant on the logic of Mr. Campbell’s argument to infer that the EA did not have regard to it,


that no decision-maker who had regard to the guidance could have proceeded to enforce the PCN. It is quite marginal as to whether less than 50% of the vehicle was over the box; the decision maker was entitled to treat is as a marginal case. Even if s/he had accepted that less than 50% of the vehicle was over the box, as I read the guidance it requires the decision-maker to exercise a discretion. The guidance does not stipulate in which way the discretion should be applied

So do not let the matter rest with having to be determined by the adj, YOU MUST put the matter to the authority. The adj then has the authority's reply to consider and their guesswork is not needed.

Put the question smartly

Given that **** states **** and given that the facts of this case as shown in the video evidence show **** then I submit that my circumstances fall within **** and that the policy of the council requires that *******.

If the authority do not consider that **** applies then they must respond in detail to the following:
Do the authority:
Accept that the *** is 'large' for the purposes of the policy;
Accept that *******

OP, do you get my drift?

You do not leave it all until the last minute at adjudication, you would inevitably lose for the reasons above.
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stamfordman
post Sat, 17 Nov 2018 - 17:40
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I would use two grounds from the policy - the 50% and the free flow blocked by unforeseeable stupidity by a BMW driver (who'd a thought it).

I do seem to recall though that Hammersmith has said it was going to stop using that policy at some point but never mind.
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PASTMYBEST
post Sat, 17 Nov 2018 - 17:53
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QUOTE (hcandersen @ Sat, 17 Nov 2018 - 17:31) *
Wih respect, the answer is in the decision:

In the absence of any direct evidence of a failure to observe the policy I am reliant on the logic of Mr. Campbell’s argument to infer that the EA did not have regard to it,


that no decision-maker who had regard to the guidance could have proceeded to enforce the PCN. It is quite marginal as to whether less than 50% of the vehicle was over the box; the decision maker was entitled to treat is as a marginal case. Even if s/he had accepted that less than 50% of the vehicle was over the box, as I read the guidance it requires the decision-maker to exercise a discretion. The guidance does not stipulate in which way the discretion should be applied

So do not let the matter rest with having to be determined by the adj, YOU MUST put the matter to the authority. The adj then has the authority's reply to consider and their guesswork is not needed.

Put the question smartly

Given that **** states **** and given that the facts of this case as shown in the video evidence show **** then I submit that my circumstances fall within **** and that the policy of the council requires that *******.

If the authority do not consider that **** applies then they must respond in detail to the following:
Do the authority:
Accept that the *** is 'large' for the purposes of the policy;
Accept that *******

OP, do you get my drift?

You do not leave it all until the last minute at adjudication, you would inevitably lose for the reasons above.


this case if anyone's interested

https://www.google.com/url?q=http://forums....Z6egVqtFSUvioW8


HCA your point is well made . I have the council summary if it is of interest


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cp8759
post Sat, 17 Nov 2018 - 18:11
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I like hcandersen's approach.


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raf
post Sun, 18 Nov 2018 - 02:48
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Hi all,

I really appreciate the help and answers y'all provided, it's time for me to digest it all and maybe ask further questions/help if I have any.

Once again thank you everyone.

Raf
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DancingDad
post Sun, 18 Nov 2018 - 10:36
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Not wanting to be overly negative but I keep looking at the video.
Yes the BMW probably crossed the line on amber and could have pulled up closer to the bus.
But the van was off like Usain Bolt the moment the lights went green, despite the BMW (and a taxi) being in the box and static traffic ahead, the bus would have been visible even if cars weren't.
Then the van braked while front wheels in box and effectively stopped when fronts had only just left the hatching.
Admittedly was creeping as the camera zoomed in but came to full stop with cab only just clear.


Make the challenge, HCA's wording is good but please do not lose sight of discount.
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raf
post Wed, 21 Nov 2018 - 22:51
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QUOTE (DancingDad @ Sun, 18 Nov 2018 - 10:36) *
Not wanting to be overly negative but I keep looking at the video.
Yes the BMW probably crossed the line on amber and could have pulled up closer to the bus.
But the van was off like Usain Bolt the moment the lights went green, despite the BMW (and a taxi) being in the box and static traffic ahead, the bus would have been visible even if cars weren't.
Then the van braked while front wheels in box and effectively stopped when fronts had only just left the hatching.
Admittedly was creeping as the camera zoomed in but came to full stop with cab only just clear.


Make the challenge, HCA's wording is good but please do not lose sight of discount.



What would my challenge be?

hcandersen's template + the grounds you all suggested = good case.

Tho I do believe I was in the wrong....but am doing this as a learning experience.

This post has been edited by raf: Wed, 21 Nov 2018 - 23:30
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raf
post Wed, 21 Nov 2018 - 23:25
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Will share the draft soon!

Update just got the letter from LBHF!

Date of notice is 19/Nov/2018

This post has been edited by raf: Thu, 22 Nov 2018 - 01:04
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raf
post Thu, 22 Nov 2018 - 01:02
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As promised a draft of my challenge (please do chip in and improve, thanks):


Given LBHF Box Junction Enforcement Guidance ver. 3 states
a) On chapter 5 " slow moving traffic over a box junction is probably the most difficult scenario to deal with especially if we are dealing with multiple lanes. Somebody suddenly slowing down or stopping short for no good reason may cause a judgement problem, when drivers in the vehicles behind, looking in advance of the vehicle in front of them thought they had judged it correctly and would make it off the box. An example maybe when there are 3 empty car spaces in one lane on the exit side of the box junction and 3 cars start to travel over the box towards them in one line. The first 2 cars may use up all 3 spaces due to leaving large gaps between them. This would be unfair to the third car driver who thought they would all fit in.", The example given here is very similar to my circumstances, except there was two cars in motion while one was already stationary.
b) On chapter 9 it states "On large type box junctions, cars and vans with less than 50% of their length over the box should have discretion applied if they are not an obstruction" and given that the facts of this case as shown in the video evidence show that a) The car ahead (BMW) has caused a judgement problem due to a unforseen decision to park diagonally pointing towards a bus on a different lane. After measuring the road there was approx 20m (an avarge large family car is 4.80, a ford Luton box van is 6.70) doing the maths, it is clear there was enough space for all vehicles, with enough separation to account for roll back.
b) The vehicle was within the boundaries of less then 50% and wasn't an obstruction during the short stop then I submit that my circumstances fall within these considerations and that the policy of the council requires discretion to be applied.

If the authority do not consider discretion for both cases applies then they must respond in detail to the following:
Do the authority:
Accept that the junction box at Uxbridge Road Approx 25yds West Of Holland Park Roundabout is 'large' for the purposes of the policy;
Accept that the vehicle Infront (BMW) caused a judgement problem.
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