Out of time witness statement refused, Help appreciated on options and next steps Options

[TimG]

Hi all

I would appreciate any help/ advice you can offer on my next steps after out of time witness statement has been refused.

The situation is as follows:

- My wife and I bought a car in March 2018. At the time we transferred our Hackney resident's permit from our old car to the new one.
- There was an issue with Hackney council processing this change, which went on for several months. Over the course of this time we received four PCNs for parking without a valid permit. Each time we followed up with Hackney who said the issue had been resolved, which it wasn't until the last time (in June 2018 - which this PCN relates to).
- Three of the PCNs were overturned because of the error on Hackneys part. Until recently I had assumed the last had been as well.
- However, recently our car was clamped. When we rang the bailiffs they informed us it was in relation to a PCN form June 2018 and all correspondence had been sent to a flat we moved out of in March 2016 (two years before we owned the car). However, Hackney had given our current address as the address to recover the debt. The bailiff agreed not to remove the car and not to take any more action, but did not remove the clamp.
- At this stage my wife (who is the registered owner of the car) submitted TE7 and TE9 forms, as we had not received any correspondence from the TEC or bailiffs.
- The clamp was recently removed from the car
- However, last week we received a notice from the TEC stating our out of time application had been rejected.

We did appeal the PCN when it was first awarded but did not receive a response.

As far as I can see, we now have three options:

1. Request an appeal, at a cost of £100 without a hearing, or £255 with a hearing
2. Pay the charge, which is c£650
3. Wait for the car to get clamped/ removed

I have attached the "statement of truth" from Hackney, which states they randomly started posting things to our old address midway through the process. Given the other PCNs received in the same period for the same reason were overturned, this one should be as well. Even if that is not the case, I don't think I can be asked fro more than £203 as this is the amount after the last letter they set to is.

Is this what the judge will consider in any hearing or is it purely on whether the out of time should be granted?


Statement of Truth, TE7, TE9 and rejection letter here:









I would be grateful for any advice on the next steps and options I have.

Thanks

This post has been edited by TimG: Mon, 8 Jul 2019 - 12:57

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[cp8759]

Also, you must CC the application to the council.

No!
This a 'without notice' application, aiui.

Where in the Civil Procedure Rules does it say that?

Well that's a key issue.

CPR 23.4 applies to any application for a court order:

(1) The general rule is that a copy of the application notice must be served on each respondent.

(2) An application may be made without serving a copy of the application notice if this is permitted by –

(a) a rule;

(b) a practice direction; or

(с) a court order.

CPR 39.8 also confirms:

(1) Any communication between a party to proceedings and the court must be disclosed to, and if in writing (whether in paper or electronic format), copied to, the other party or parties or their representatives.

(2) Paragraph (1) applies to any communication in which any representation is made to the court on a matter of substance or procedure but does not apply to communications that are purely routine, uncontentious and administrative.

(3) A party is not required under paragraph (1) to disclose or copy a communication if there is a compelling reason for not doing so, and provided that any reason is clearly stated in the communication.
...
(7) Paragraph (1) does not apply to communications authorised by a rule or practice direction to be sent to the court without at the same time being provided to the other party or parties or their representatives.

Nothing in Part 75 provides an exemption from these rule so the application must be on notice unless we can identify an exemption in the rules that can be relied upon.

[Neil B]

You have an extensive knowledge of CPRs but, as I've said to you before, how the TEC juggernaut
operates in practice is a different matter.

One our esteemed 'B0gsy' always raises is, 'where, in any law, regulation or rule, does the
respondent become automatically liable for the £8 debt registration fee?'

It's not that I disagree but my priority on this forum is to safeguard appellants as far as possible and
advise them according to the procedures I know to be in use.
I'm all ears on new ideas but can't advise on them until confident.

By all means query TEC's behaviour with the MoJ.

----
One concern I have about a costs claim in the manner you suggest is that a DJ will feel Hackney should
have the opportunity to respond and transfer this to a personal hearing, at extra,initial cost to Tim.

And that reminds me of the only time either myself or Sheila have seen it happen; the 'markdown' case.
Did he, perchance, follow your advice after all and just omitted to tell us?

[cp8759]

You have an extensive knowledge of CPRs but, as I've said to you before, how the TEC juggernaut
operates in practice is a different matter.

I agree that by and large the TEC seems to operate in ignorance of many of the rules. However once the matter gets to a DJ, that issue does not arise because a district judge would have a far more extensive knowledge of the Civil Procedure Rules than you or me and the application of these rules is what they do as part of their job every day of the week, so I wouldn't expect them to simply ignore them.

One our esteemed 'B0gsy' always raises is, 'where, in any law, regulation or rule, does the
respondent become automatically liable for the £8 debt registration fee?'

CPR 44.2(2)(a): the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party

An application for an Order for Recovery is made without notice, so CPR 44.10(2) would appear to be the relevant rule:

(2) Where the court makes –
...
(с) any other order or direction sought by a party on an application without notice,

and its order does not mention costs, it will be deemed to include an order for applicant’s costs in the case.

It's not that I disagree but my priority on this forum is to safeguard appellants as far as possible and
advise them according to the procedures I know to be in use.
I'm all ears on new ideas but can't advise on them until confident.

By all means query TEC's behaviour with the MoJ.

I highly doubt anyone employed at the MoJ would understand the problem. Look at the racket the legal profession are making about the utter failure of the supposed digital court reforms if in any doubt. So far the MoJ hasn't even been able to fix the broken lift at the Reading County Court, see https://twitter.com/courtlift?lang=en

One concern I have about a costs claim in the manner you suggest is that a DJ will feel Hackney should
have the opportunity to respond and transfer this to a personal hearing, at extra,initial cost to Tim.

And that reminds me of the only time either myself or Sheila have seen it happen; the 'markdown' case.
Did he, perchance, follow your advice after all and just omitted to tell us?

By making the application on notice, this ensures Hackney does have a chance to be heard. No court is going to make an adverse costs order against a party which has not been heard unless there are reasons of exceptional urgency, which obviously don't apply here. So making the application on notice actually minimises the chances of an oral hearing. In principle the OP could claim for his time at £19 an hour as well, but by confining the costs to the court fee alone there are no issues of fact to be determined so the need for an oral hearing is greatly diminished.

[TimG]

I am not going to pretend I have followed most of the above, but just to let you know the N244 went in on Monday before 4pm with Hackney copied.

Thanks for all of your help getting the various parts together. I will let you know when I hear anything else.

[phantomcrusader]

deleted post.

This post has been edited by phantomcrusader: Sun, 7 Jun 2020 - 08:34

[Neil B]

Not sure why you deleted your input Phantom?

As far as the £8 is concerned, I stumbled across a FOIR about it while looking for something else. I didn't have
time to read just then but maybe it can be found again.

This post has been edited by Neil B: Sun, 7 Jun 2020 - 09:38