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Posted by: AnonymousMouse Wed, 12 Jun 2019 - 20:22
Post #1492040

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/AAD1n-DIuBBfNrHmSUwI2HGza?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!

Posted by: Gary Bloke Wed, 12 Jun 2019 - 20:42
Post #1492042

Are you aware that the same issue is being discussed in the Flame Pit:
http://forums.pepipoo.com/index.php?showtopic=128293

Posted by: ostell Wed, 12 Jun 2019 - 20:57
Post #1492045

So your defence is that a failure of their equipment meant you were unable to pay, a situation over which you had no control.

Posted by: Gary Bloke Wed, 12 Jun 2019 - 21:10
Post #1492047

See Dramaqueen's Post #4 in the Flame Pit thread linked to above:

So unless the TOC can prove, by referring to clear statutory authority, that the Magistrates have the power to make the order sought, the complaint should be dismissed - literally, summarily. And since there is nothing in the Byelaws to say the "penalty" is a sum recoverable summarily as a civil debt, such statutory authority will almost certainly not be forthcoming.

Therefore anyone this happens to should be advised to raise this as a preliminary issue at the start of the hearing.

This use of the keeper's personal data also looks like a breach of the GDPR, article 6 (1) - it not being a legitimate interest to pursue an order the Mags do not have power to make. It's extremely distressing to be summoned to the Mags. Court when the Complainant knows or ought to know that the grounds are spurious.

Posted by: dramaqueen Wed, 12 Jun 2019 - 23:17
Post #1492060

You are not being prosecuted for a criminal offence. The question of guilty/not guilty doesn’t come into it.

Though the Magistrates mostly deal with criminal prosecutions they also have limited powers to make civil orders, such as orders to pay child maintenance etc. Here, the train company is asking the Magistrates to make a “civil order”. Unfortunately they don’t actually state what order they are seeking, but they do mention Byelaw 14(4)1). They don't say which set of byelaws but presumably they are referring to the Railway Byelaws 2005, of which Byelaw 14(4)(1) says:
“The owner of any motor vehicle, bicycle or other conveyance used, left or placed in breach of Byelaw 14(1) to 14(3) may be liable to pay a penalty as displayed in that area.”
You can find it here:
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/4202/railway-byelaws.pdf

So it’s a pretty good guess they are asking for an order you pay the “penalty” they’ve been chasing you for. There are plenty of reasons why you don’t owe them this, which we can go into.

But first things first: do the Magistrates have the power to make such an order anyway? What sort of “debts” can the Magistrates order a person to pay? For example, if a builder is owed money for work he’s done, can he ask the Magistrates to adjudicate? No. Magistrates don’t have jurisdiction over civil cases like that - it's a matter for the County Court.

As discussed on the other thread, for GTR’s “penalty” to be recoverable in the Magistrates’ Court the statute would have to state that it’s “recoverable summarily (ie in the Mags) as a civil debt.” Nowhere does it say this in either the Byelaws or in the Railways Act 2005.

It’s up to GTR to persuade the Magistrates they have this power. Otherwise their Complaint is going nowhere.

Posted by: Sheffield Dave Wed, 12 Jun 2019 - 23:20
Post #1492061

I think the TOC have just shot themselves in the foot. In their own complaint that say that they are acting in accordance with paragraph 2 of Schedule 9 of the Railways Act 2005. That paragraph says:

Spot the word conviction. Since you haven't been convicted, nor are they seeking a private prosecution, there cannot possibly be a civil debt owed.

Posted by: Sheffield Dave Wed, 12 Jun 2019 - 23:35
Post #1492062

... or to put it another way, the TOC have tacitly agreed with us that there's nothing in the enabling legislation which enables the decriminalised penalty scheme envisaged by 14(4)(i). So there isn't a civil debt, and even if there was, as pointed out by dramaqueen et al, it can't be recovered in magistrates court.

Whether the magistrates will "get" this is another matter.

Posted by: dramaqueen Fri, 14 Jun 2019 - 14:03
Post #1492497

They’re also quite technical legal arguments for the OP to put across.

@OP: I think you should go pre-armed with 3 copies each of:-
i) a statement of preliminary issues, querying exactly what order the TOC is seeking, and asking where the Magistrates' Court is given the power to make it (ie where does it say the sum is "recoverable summarily as a civil debt"?);
ii) a brief witness statement along with exhibits; and
iii) final submissions showing why no-one, not even you, can be liable for a pre-conviction private penalty (assuming that's what the TOC is asking for).

If you’re not allowed to hand them over, at least you’ll have something to read out. I’m happy to draft something for you – I’ve sent you a private message. Perhaps a small email group to pool ideas would be a good idea?

Posted by: southpaw82 Fri, 14 Jun 2019 - 14:15
Post #1492500

5 copies, unless he’s in front of a district judge, no?

Posted by: HappyHarry Fri, 14 Jun 2019 - 14:54
Post #1492511

Are any of the legal experts here able to accompany AnonymousMouse on her day in court? I know this is asking a lot but I totally feel for her. I have no legal background or I would offer.

Posted by: southpaw82 Fri, 14 Jun 2019 - 17:34
Post #1492552

You're implying there is more than one...

Posted by: dramaqueen Fri, 14 Jun 2019 - 19:44
Post #1492574

You misunderestimate yourself....

Posted by: Sheffield Dave Fri, 14 Jun 2019 - 23:01
Post #1492617

Given that this section of the forum is concerned almost exclusively with private parking tickets and district courts, you might want to go somewhere like Legal Beagles to get specific help in how to represent yourself in a magistrates court: what paperwork should be submitted in advance, what paperwork you should expect to receive from Govia in advance, what paperwork needs to be presented on the day, how to handle the "incorrect venue for civil debt" preliminary matter, whether and how you can get costs if you win or if they agree its the wrong venue, etc.

We've been able to give you some advice about the specifics of byelaws and parking etc. But note that this business of a civil debt at a magistrates court appears to be a novel tactic by Govia, and what you've been told on this forum is mostly speculation by people (like me) who have no legal training. We may well have sussed it correctly and Govia may get shot down on the day, or they might make a cogent argument that we hadn't considered.

But I think what you present to the magistrates should be something along the lines of:

1) As a preliminary matter: this is the wrong venue. Civil debts are always handled by the county court unless there is specific legislation: but there is no such clause in the Railway Byelaws, nor its enabling legislation, the Railways Act 2005, schedule 9.

2) Govia have not (assuming they don't supply further paperwork in the meantime) provided anything amounting to a reasonable amount of detail to allow you to defend yourself - they haven't said what order they are requesting or even how much money they want, nor in what capacity (driver/keeper/owner) they are trying to make you liable.

3) Even if you had broken a byelaw (which you deny) there can be no debt owed to Govia. The clause of the Railways Act 2005 which Govia are relying on - 9(2) - is explicit that there would be a fine payable only on conviction. But you haven't been convicted, nor are you on trial today. And even if you had been convicted, the fine would be payable to to the state, not Govia.

4) They will argue that Byelaw 14(4)(i) applies. This merely states that the owner "may be liable to pay a penalty". If this clause is enabled by section 9(2) as they claim, then the penalty would only be due after conviction. There is no other part of the Railway Act 2015 that provides or enables any sort of mechanism for the owner to become liable to Govia prior to conviction, or even after. And Govia have conspicuously failed to identify any such clause in the Railways Act.

5) In any case, such a byelaw, even if in place, would be ultra vires. The railway byelaws are there to regulate the behaviour of persons while on railway property - they can't possibly apply to a third party (the owner) who may not even have been on railway property at the time of the alleged offence.

6) You didn't break any byelaws. As per Byelaw 14(3), the driver followed "instructions given by an Operator or authorised person at that place" to pay for parking, by using their recommended phone app once on the train. That their app failed to take your offered payment on a couple of occasions is their problem, not yours.

Costs (assuming you are allowed claim any): they picked an improper venue and one that is a 160 mile round trip from where you live. This has given rise to much unnecessary stress and expenses, including
train and taxi fares, a day's lost salary, preparation time etc.

Finally, if any of the driver, registered keeper and owner are not all the same person, then you could mention that in the places above where driver/owner are mentioned - e.g. "Byelaw 14(3) applies only to the driver, but i was not the driver", or "section 14(4)(i) applies only to the owner, but I was not the owner".

(Again, I am not a lawyer, nor do I have any experience with magistrates court. Hopefully others will chip in too)

Posted by: anon45 Sat, 15 Jun 2019 - 06:38
Post #1492631

Regarding witness statements in particular, there is a danger that giving a witness statement is tantamount to a confession that the 'failure to pay' offence was committed, and committed by the defendant (the problems with the app are, sadly, likely to be seen as mitigation rather than a defence, with the TOC asking "why didn't the OP use an alternative payment method)?

The supposed "penalty charge" cannot be a statutory penalty charge, and ought properly to be considered as a demand for a sum of money not to prosecute, a demand which the OP was under no obligation to meet, and, accordingly, the correct course of action for the TOC to take would have been to prosecute for the alleged offence- their failure to do so does not entitle them to claim a sum of money that was never due in the first place.

I would also add that, if any charge at all should be ordered to be payable, it should be the original £x parking charge (which the driver attempted to pay at the time).

Finally, I wondered whether the OP might consider hiring a local criminal defence solicitor (local to the court) to represent her, and to advise the solicitor on the arguments she wishes him/ her to present, (I say this because it appears that many general solicitors have little knowledge of this specialised matter)?

Being represented would avoid having to take a day of work (a day on which the OP has a prior engagement) to make a long, expensive, trip to answer awkward questions, and would likely result in the defence being presented in a more skilled manner, increasing the chances of success (in actual practice, some magistrates seem to be more receptive to legal arguments from solicitors, (or, in theory, barristers) than to the same arguments put forward by laymen).

With luck, the OP should be able to recover some or all of these costs once the case is dismissed. I'm not sure whether the usual (lamentable, IMO) cap on costs borne by an acquitted defendant would apply to a civil claim brought by a TOC in the wrong venue, where the TOC themselves had asked for hundreds of pounds of costs which were never actually incurred. Perhaps southpaw82 could advise on this point?

Posted by: dramaqueen Sat, 15 Jun 2019 - 08:57
Post #1492638

The choice is not whether to produce a witness statement, but whether or not to give evidence. If she chooses to give evidence, it may help her to have a prepared statement to read out/hand out.

Should she give evidence? True, it pushes her into admitting what happened. That’s not necessarily such a bad thing. Being open and honest - specially admitting something that might be detrimental to your own case - can help to get the Bench to trust you and draw them on side; whereas not giving evidence can not only appear evasive, it can also leave the Bench suspecting you're a persistent and deliberate non-payer. They won't know there was a reasonable excuse.

It's a difficult choice. On balance, I'd say giving evidence would do less damage than not giving it.

Posted by: bobbione Sat, 15 Jun 2019 - 09:58
Post #1492644

Without the summons to read then all very unsure

burden is on prosecution to prove meaning they need to produce evidence or question witness to establish beyond reasonable doubt the offence or ,as here, the debt

http://www.legislation.gov.uk/ukpga/1980/43/section/58

if recoverable summarily.

If courts are going to accept on evidence the byelaw offence occurred as part of the recovery summons then the OP pleas guility or not guility.

If the case shouldn't be heard it must be settled before a plea is heard.

I'd leave evidence huting to them . Make witness statement if attending with understanding to be questioned about not guilty plea.

Big question is is the money recoverable summarily? Look into Party Wall Act and any cases heard as they appear to be an instance of a civil debt that can be heard by a Magistrates Court. Pethaps a Party Wall solicitor is a good choice to defend this.

Posted by: dramaqueen Sat, 15 Jun 2019 - 11:03
Post #1492658

The summons is in the Dropbox attachment in post 1. It's a summons on complaint, not a prosecution following the laying of an information.

The standard of proof in civil cases in the Magistrates' Court is a balance of probabilities - see Stones, para 1.299.

Posted by: anon45 Sat, 15 Jun 2019 - 11:34
Post #1492669

In this specific case, Govia are claiming before the magistrates that the charge is a statutory penalty imposed because the OP purportedly committed a (as yet-unproven) criminal offence, albeit one for which they have chosen not to prosecute. Putting to one side the questions of whether byelaw 14(4)(i), if not ultra vires, actually provides statutory authority for such penalties, this raises the question of whether the criminal offence itself (and also the identity of the vehicle *owner*) needs to be proven before the alleged debt may be said to be due, and, if so, by what process and to which standard?

Posted by: dramaqueen Sun, 16 Jun 2019 - 07:46
Post #1492806

I think the TOC would point to the wording of the Byelaw (the owner of a vehicle parked in breach of Byelaws 14 (1-3) may be liable …..) and argue they don’t have to prove the driver has committed an offence – which would mean prosecution under the criminal rules including criminal standard of proof. Instead, they’ll say, all they have to prove, on a balance of probabilities, is that the vehicle was parked without the necessary fees being paid; and that the Defendant is the owner.

If the magistrates had the power to make an order on that basis, it would produce the absurd result that the perpetrator of the alleged offence is presumed innocent but the owner still has to pay a penalty. This also highlights one of the crucial differences between TOC private penalties and council ones, with which they are often confused: with council penalties no-one is being accused of a criminal offence and the presumption of innocence doesn’t come into it. Nor, with council penalties, does the driver remain vulnerable to prosecution even though the owner has already paid the penalty.

But the magistrates don’t have the power, and this is one very good reason why not.
.

Posted by: bobbione Sun, 16 Jun 2019 - 17:24
Post #1492881

Read the dropbox letters

It is a private prosecution

Their burden of proof to establish guilt beyond reasonable doubt

OP needs to

- challenge the summons
Whether the ingredients of an offence known to the law are prima facie present;
Whether the offence is ‘out of time’;
Whether the court has jurisdiction;
Whether the informant has the necessary authority to prosecute; and
Whether in all the circumstances the allegation is vexatious.


or
- establish innocence or sufficient doubt for a not guilty plea

Posted by: southpaw82 Sun, 16 Jun 2019 - 17:32
Post #1492885

Funny, there was me thinking it was a complaint.

Posted by: bobbione Sun, 16 Jun 2019 - 18:06
Post #1492898

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.

Posted by: southpaw82 Sun, 16 Jun 2019 - 20:19
Post #1492935

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

Posted by: dramaqueen Mon, 17 Jun 2019 - 15:00
Post #1493142

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.”

Posted by: AnonymousMouse Sun, 23 Jun 2019 - 20:06
Post #1494596

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!

Posted by: Sheffield Dave Sun, 23 Jun 2019 - 21:07
Post #1494608

Good luck!

Posted by: HappyHarry Mon, 24 Jun 2019 - 01:24
Post #1494633

Sending you positive vibes, Mouse. All your preparation will pay off. Very best of luck. x

Posted by: southpaw82 Mon, 24 Jun 2019 - 09:33
Post #1494654

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.

Posted by: AnonymousMouse Mon, 24 Jun 2019 - 16:40
Post #1494833

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.

Posted by: southpaw82 Mon, 24 Jun 2019 - 17:31
Post #1494852

When is your court date?


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.

Posted by: AnonymousMouse Tue, 25 Jun 2019 - 19:54
Post #1495186

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

Posted by: Umkomaas Tue, 25 Jun 2019 - 20:47
Post #1495191

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.

Posted by: southpaw82 Tue, 25 Jun 2019 - 21:04
Post #1495194

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.

Posted by: Sheffield Dave Tue, 25 Jun 2019 - 21:20
Post #1495197

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.)

Posted by: Umkomaas Tue, 25 Jun 2019 - 21:40
Post #1495200

Thank you - appreciate your clarification. Obliged.

Posted by: southpaw82 Tue, 25 Jun 2019 - 22:09
Post #1495205

No worries.

Posted by: Mr.Consumer Tue, 25 Jun 2019 - 23:18
Post #1495212

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):

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.

Posted by: southpaw82 Wed, 26 Jun 2019 - 09:02
Post #1495249

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).

Posted by: softwaremad Wed, 26 Jun 2019 - 09:28
Post #1495256

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. .

Posted by: Mr.Consumer Wed, 26 Jun 2019 - 10:11
Post #1495264

@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):

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).





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.

Posted by: The Rookie Wed, 26 Jun 2019 - 11:42
Post #1495276

Great effort and well done for not being bullied.

Just to clarify one thing, under Byelaw 14 the KEEPER has no liability ever, at all, the Owner is the one mentioned in 14 (4) i and iii.

Posted by: southpaw82 Wed, 26 Jun 2019 - 12:35
Post #1495292

I agree - I just don’t think s 52 is the mechanism whereby that result is achieved.

Posted by: Mr.Consumer Wed, 26 Jun 2019 - 13:37
Post #1495318

Fair enough, I think we can agree to disagree and I don't think it's fatal.

Anyhow, my research has taken me to a case called London County Council v Betts [1936] 1 K.B. 430. It's a bit of an old case and based on now-repealed legislation but there is a one liner which might be of assistance as authority for proving that the Mags' do not have jurisidiction to either hear the complaint, or have the power to make an order for recovery under s.58 of the MA 1980 - it's the only relevant authority I am able to find, can share the judgment to those who are interested.

Talbot J.

In this case the London County Council, as Poor Law authority, complained to one of the metropolitan police magistrates that certain payments ordered under the Poor Law Amendment Act, 1868 , by another magistrate at the same court in 1910, to be made by the respondent for the maintenance of his wife by the Poor Law authority then existing, were in arrear to the amount of 2l. 8s., and applied for an order for payment of the said arrears. The learned magistrate held that he had no jurisdiction to hear the complaint or to make the order, and dismissed the complaint accordingly. To found the magistrate's jurisdiction the money must be due under some Act (whether passed before or after 1879) which makes it recoverable on complaint.

Posted by: Sheffield Dave Wed, 26 Jun 2019 - 18:54
Post #1495428

A further observation / defence point: Byelaw 14(4)(i) says "The owner of any motor vehicle, bicycle or other conveyance used, left or placed in breach of Byelaw 14(1) to 14(3) may be iable to pay a penalty". Even if this clause is enforceable (and we think it isn't, due to lack of enabling legislation and ultra vires), a penalty would be paid to the state - nowhere does it state that it goes to the TOC. So why on earth are they illegally trying enrich themselves here?

Posted by: AnonymousMouse Wed, 26 Jun 2019 - 20:29
Post #1495448

Thanks SD. I am not sure the solicitor looked that floundering although he did a little; everyone seemed to flounder a bit but I have no comparison of course and it could be because my coming up with my statement completely threw proceedings? Not sure.

Thanks for the advice on the witness statement, I will get working on it and also contact my bank to see if I can get a download of all the payments made (the car park and app has been run by different companies for Govia over time, it was Apcoa, then Indigo and now Saba (allthough I think the latest change is just a re-brand).

You suggested previously I visit Legal Beagles for some more advice on procedure; I think I might do that because I still have so many questions, for example what do I do now?? I am just making preparations for the time being I guess.

And re the solicitor, yes he was fudging criminal vs private although a small part of me thinks (naievely?) that maybe he didn't fully understand either. Unless he knew that - having been challenged on authority - frightening me into settling was the only way out for him now. Perhaps wishful thinking on my behalf!

Thanks again for the support.

Thanks Mr Consumer! I am following your discussion on this but don't have anything valuable to contribute....




Thanks for the advice! I might try a SAR actually; I wonder how far back they go? I am also curious if the magistrates have the power to decide what costs they could charge if they win. For that, the magistrates would have to agree that the civil case can proceed, find for the complainant and presumably then award the amount they are asking for although the summons has not clarified what they are asking for. If that happened, they would be entitled to costs too - as per your message they could only be awarded a portion of their demands but then that is based on small claims/county court. I am not sure I understand whether there is a difference in how this would work in a Magistrate's court.




Thanks the Rookie. What is the difference between the owner and the keeper? I saw on someone else's thread that if a car is owned by a lease company or the motability scheme, that would make the owner different to the keeper. How would they go about proving who the owner was? Or is that your point?




That is the question - although the solicitor definitely mentioned the 2 x £100 so in their mind they are gunning to win the case, get their penalty paid and win lots of costs I think. Based on most of the regulars' opinions here of the summons, maybe they weren't so sure themselves how to pursue this under Byelaws and they got it wrong/didn't expect push-back? As I said earlier, that might be wishful thinking!

Posted by: southpaw82 Wed, 26 Jun 2019 - 20:36
Post #1495456

The magistrates have a very wide discretion as to costs.

Posted by: Gary Bloke Wed, 26 Jun 2019 - 21:31
Post #1495472

The letters from ZZPS will have referred to the fact that the "penalty" is an *offer* to avoid prosecution, which they *invite* you to accept. It beats me how the TOC expects to extract payment of such penalties, when an offer (by definition) can be accepted or declined by the offeree.

Posted by: dramaqueen Thu, 27 Jun 2019 - 08:49
Post #1495533

Exactly. All correspondence from ZZPS was along the lines of "we urge you to accept this offer or we'll prosecute for failing to obtain a valid voucher or ticket". Since the Royston website invites motorists to pay using the App and "park on-the-go" - without any voucher or ticket being issued - the threat to prosecute for failing to obtain one is clearly absurd. The website's here: https://www.sabaparking.co.uk/car-park/royston-station-car-park

The situation changed without any warning whatsoever. It's now alleged to be a debt which must be paid - and for a different reason: failure to pay. Different allegation, different defence, different procedure. Nor was there even a letter before action from the TOC saying they would civil recovery proceedings. Apart from anything else this should have costs implications.

Perhaps the OP should also seek a wasted costs order against Wright Hassall (s145A, MCA). The first thing a proper solicitor should do before applying to the court for an order is make sure the court has power to make that order. It seems pretty clear from what the OP says that he came totally unprepared. He was very dismissive about this forum, but even we know there's a jurisdiction problem here.

And while on that point, here's an email which shows how the Magistrates’ Court needs to be satisfied it has the requisite power to make an order regarding an alleged civil debt – and how prospective complainants have been told the Court has no jurisdiction unless there is statutory provision for it to be “summarily recoverable as a civil debt”. It’s at the bottom of this guidance:
https://fpws.org.uk/wp-content/uploads/2014/07/Guidance_Notes_re.Civil_proceedings_in_Magistrates_Courts_June_2010.pdf

Posted by: The Rookie Thu, 27 Jun 2019 - 09:27
Post #1495538

The Keeper is the person who 'keeps' the vehicle, I'm the keeper of my company car but am most certainly not the owner - or registered keeper for that matter.

There are a number of cases where the keeper may not be the owner, company cars, lease cars, mobility cars, cars on certain types of finance*. The registered keeper also may not be the owner (as it tells you on the registration document), Motability cars for example have the 'hirer' as the registered keeper but they are not the owner.

If one of those is relevant to you, then you could add it in as well. There is of course no register of owners and as noted even the registered keeper may not be the keeper!

While you could challenge them to prove you are the owner, personally I wouldn't do so unless you had a good argument you were not. As I said the byelaw makes no mention of liability on the keeper at all.

*Under nearly all HP or PCP schemes the finance company is the owner until the last payment is made.

Posted by: dramaqueen Fri, 28 Jun 2019 - 09:09
Post #1495815

I agree. If you are the owner (eg you bought the car outright and not under an hp agreement), then challenging them to prove it can look as if you are relying on technicalities and it can make you look evasive. You have plenty of other, much better arguments.

Re the preliminary issue as to whether magistrates have the power to make the order sought, I suggest you write to Govia or their solicitors (presumably it's Wright Hassall who have conduct of the case?) and say something like this:
In order to narrow the issues between us and save court time and costs, please would you let me know the statutory provision upon which you rely which gives the magistrates' court the power to make the order your clients are seeking”.

If they come up with it, you can graciously concede the point. If they don't, but continue with their action regardless, it's something you can raise when it comes to the question of costs.

Posted by: AnonymousMouse Thu, 4 Jul 2019 - 09:40
Post #1497069

Thanks Gary - would the fact that I did not engage with these letters (eg did not reply to say I declined the offer) work against me do you think?



Thanks dramaqueen - the challenge here with reference to the 'offence' being 'failing to obtain a valid ticket or voucher' could be that when you pay via the app, you receive an email notification with a 'Parking Pass' which you can view or download?

With regards to the Magistrate's Court jurisdiction, I imagine that is what the new hearing will be all about?

Posted by: AnonymousMouse Thu, 4 Jul 2019 - 10:44
Post #1497086

Thanks for this - unfortunately I am the owner and keeper of the car and it did not belong to any HP company so it would probably be a moot point. I have however today drafted an email and letter to WH with the following:

"Dear Mr X (WH solicitor),

Further to the case above, scheduled to be heard on X, I am writing to you to seek clarification. In order to narrow the issues between us and save court time and costs, please would you let me know the statutory provision upon which you rely which gives the magistrates’ court the power to make the order your clients are seeking?

Furthermore, as the only letters I have received from you previously contained an offer of disposal and I did not receive a Letter before Action, nor did your Complaint contain details around this, please would you let me know the amount you are seeking?

Yours sincerely,


X"

Any comments?

Posted by: Gary Bloke Thu, 4 Jul 2019 - 10:47
Post #1497088

No it doesn't matter that you did not reply to the ZZPS letters.
The standard NTO letter wording about "tickets or vouchers" is a bit behind the advances in mobile payments technology. Usually there is wording on the signs saying something like "...or purchase a valid cashless parking session".
Yes I think the Magistrates have probably gone away to think about what their jurisdiction is.

Posted by: AnonymousMouse Sun, 7 Jul 2019 - 20:33
Post #1497921

Thanks Gary! I hope they have....

Posted by: Spudandros Tue, 3 Sep 2019 - 08:29
Post #1512246

Any update on this?

Posted by: AnonymousMouse Wed, 9 Oct 2019 - 09:05
Post #1521104

As you may recall from my thread above, I received a summons on complaint for a “civil order” relating to two occasions where they alleged I had parked without paying. At the first hearing in June the mags confirmed it was a civil matter and I raised the question of jurisdiction. For the next 3 ½ months it progressed as a civil matter. I had the staunchest of allies in dramaqueen and an absolutely solid defence: the Mags have no jurisdiction to make the order sought. Four times I asked Wright Hassall to identify the law they were relying upon which gives the Mags jurisdiction – so that in case we were wrong, at least we’d be protected on costs. They never answered.

In the run up to the hearing which was moved to October, I prepared submissions with the help of dramaqueen. Then a week before the final hearing the Complainants served a Skeleton Argument saying: “the Defendant is under the mistaken impression this is a civil matter. It’s not. It’s a prosecution”. It was to be for 4 offences: 2 as driver for not paying the parking fee; 2 as owner for not paying the penalty. Then the day before the hearing they served their costs schedule: £6,800. Dramaqueen had agreed to be there on the day to support me and I was extremely grateful for that, because by this stage it had become so technical I felt rather out of my depth.

The hearing:

The DJ called us in ‘to talk to all parties’, allowed dramaqueen to act as a lay representative, and immediately dropped his bombshell: these are criminal proceedings. He accepted i) the summons was a summons on complaint, but said it was a computer error; ii) that it asked for a “civil order”: again, computer error; iii) that the court at the first hearing said it was a civil hearing: error on the part of the court and the legal adviser/clerk. Dramaqueen fought hard to point out how defective proceedings had been to get to this stage and the DJ both accepted this….and ignored it.

The DJ explained I could plead guilty (with an encouraging smile) to the two driver offences, reminding us I did not have much of a defence for those (correct, I had not denied parking without paying the charge), or …. I could have a full trial. As an indication of his thinking on costs, he asked WH what the costs would have been up to and including the first hearing where they should have just sorted it out – he reminded the other side that byelaw prosecutions are so straightforward, it’s what law graduates cut their teeth on – implying their solicitor was in the wrong. They couldn’t answer that of course. We were sent out to consider.

Dramaqueen and I discussed the options which based on what the DJ had said were pretty limited. Grudgingly, I decided to plead guilty and trust his encouraging indication of costs.


The outcome

I pleaded guilty. Then the argument on costs began.

The DJ again pointed out that GTR could have put things right at the first hearing. When the clerk said it was a civil matter, their solicitor (from Wright Hassall) could have stepped in to say “no it’s not”. He didn’t. The DJ then asked how many letters the Prosecution had written expressly telling me this was a prosecution. None. He also pointed out their statements were a) not in s9 format, as required for criminal proceedings; b) referred to me throughout as “the Respondent” which would apply in a civil context, not a criminal one. Dramaqueen had written about all of this extensively in my last-ditch submissions following their surprise Skeleton Argument which I believe really did spell all of this out for convenience.

The other side also argued that they should be able to prosecute for non-payment of the penalties. The DJ explained, several times and in clear terms, that this was an either/or situation. They could have pursued the penalty charges in a county court – the scheme being there to keep these sorts of small issues out of the mags court. OR – they could pursue a conviction in a mags court, but then the penalty element goes away.

The DJ said he could order me to pay between £1 and £1000 per offence and ordered £50 each, so £100. He then ordered a standard victim surcharge of £30, and awarded the prosecution just £10.90 in compensation (the cost of the two days parking, one peak and one off-peak).

He turned to the other side and said their costs were disproportionate, that choosing to go this route meant that HE would decide what the fine was, and that it was not for them to try to punish me through their costs… and that he was there to protect citizens. He then awarded them a total of £740 of their £6,800 cost claim.


For this forum, where I know many have been watching, dramaqueen and I agree two things have been confirmed now:

1. The DJ wasn’t having it that not paying the private penalties could be charged as compensation. Once the prosecution route is taken, those penalties “fall away”. They are replaced by the fine.

2. Nor could not paying the private penalties be charged as a criminal offence. He said they are entirely a civil matter, and the proper forum for civil matters is the County Court. The other side then hopped up and asked him to rule, formally, that penalties can be pursued in the County Court. He refused.

So there is the final report! I would like to publicly say thank you to dramaqueen who I have already thanked profusely in person of course. The other side had thrown so much at it, and had shown up with a barrister, a solicitor from Wright Hassall and a witness from ZZPS, I would have been seriously outnumbered and outwitted. Luckily, dramaqueen is not only super experienced, knowledgeable and professional (which I could tell the DJ appreciated), she was also a good-humoured, calm and supportive ally at a time where even the most steely-nerved would have felt un-nerved. Thank you again dramaqueen!

Anonymousmouse

Posted by: Sheffield Dave Wed, 9 Oct 2019 - 09:25
Post #1521107

All I can say is what utter scumbags: a week before the hearing suddenly deciding it was a criminal prosecution. I'm amazed the DJ allowed them. Anyway, well done for fighting through to the end: at least they've found that a civil complaint can't be used as sneaky way to extract money.

Posted by: Dave65 Wed, 9 Oct 2019 - 09:46
Post #1521109

So, it was a criminal prosecution, and dealt with in the CC?

Posted by: Gary Bloke Wed, 9 Oct 2019 - 09:50
Post #1521110

Unbelievable that they refused to admit this was a criminal prosecution!!!!!

Am gutted that you had to plead guilty, Mouse. However, this case has clarified some very important points about home-made penalties versus Court-imposed fines.

Am also wondering whether there is now sufficient evidence to force SABA to remove the statements on their signage that "failure to pay [the £100 charge] is an offence under Railway Byelaw 24(1) and offences may be subject to a penalty not exceeding level 3 on a standard scale..." etc.

Posted by: The Rookie Wed, 9 Oct 2019 - 10:12
Post #1521111

Disappointed in the DJ, he should have capped costs at something like £85 (standard CPS costs) based on the fact you had now plead guilty to the correct charges at the earliest opportunity.

Shame they knew you were the driver or they would have had no leg to stand on at all.

I would argue that the costs are excessive compared to the fine based on the case law*, but as it risks an increase in costs perhaps not worth doing.

R v Northallerton Magistartes Court ex parte Dove https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Admin/1999/499.html

Posted by: Sheffield Dave Wed, 9 Oct 2019 - 10:23
Post #1521112

Just a point of clarification: was this hearing at the magistrates court and heard by a magistrate, or what?

Posted by: AnonymousMouse Wed, 9 Oct 2019 - 10:51
Post #1521120

Hi,

It was in the Magistrates Court, having been adjourned from the normal mags where the follow-up hearing had been scheduled to a DJ in Birmingham Mags. We thought the Magistrates had requested it due to the technical nature of the case, and because I only received notification that the court had been 'vacated' on the original date. In their 'week before' SA, the other side wrote it had been moved on their request (not that I had seen any comms!).

Mouse

Posted by: HappyHarry Wed, 9 Oct 2019 - 12:42
Post #1521148

I’m so sad that you’ve had to go through all this Mouse. You were put in an appalling position by Wright Hassell. Thank you for your detailed reports.

Posted by: Sheffield Dave Wed, 9 Oct 2019 - 14:02
Post #1521172

And well done to dramaqueen to for the support.

Posted by: Dave65 Wed, 9 Oct 2019 - 15:09
Post #1521187

So, where does it leave similar cases NOW?

Posted by: Sheffield Dave Wed, 9 Oct 2019 - 15:28
Post #1521194

Well it appears that their toe dip in the water of going down the "decriminalised penalty" route has been a fiasco, and if their costs request was realistic then they've just lost in the region of £5000. So in future I should imagine they won't try this again. They'll either go for a classic byelaw prosecution or perhaps try their hand with breach of contract in the county court. or just give up after lots of bluster.

Posted by: anon45 Wed, 9 Oct 2019 - 22:50
Post #1521324

I don't agree that the case has been a fiasco for Saba/ Wright Hassell; on the contrary, they'll be absolutely ecstatic at the outcome of the case, both by the criminal convictions of the OP and huge costs imposed to 'pour encourage les autres' into simply paying their fraudulent fake byelaw 14 penalties. I also don't believe for one moment that their costs were even one tenth of the amount claimed (so they've likely made a nice profit from the prosecution), and, insofar as they might have been slightly higher than this, this was their own fault.

To repeat, they brought a prosecution in an attempt to punish the OP for not paying a ransom that they had no right to demand, and in an attempt to make an enormous profit, whilst not having any evidence at the time of bringing the prosecution that the OP personally committed the offence.

They'll probably try the same thing again, using the same threats, the same bully-boy tactics and the same discredited arguments- after all, this case does not set case law, and given that they've extracted c. £800 from the OP, why would they not want to try the same again to browbeat future defendants into pleading guilty, and future RKs into paying their unenforceable ransom demands masquerading as fake byelaw 14 penalties.

In retrospect, as I suggested in my previous post, it might have been better for the OP to plead not guilty, not make any admissions at any point, including in the original hearing, and put the prosecution to strict proof, beyond reasonable doubt, that he/ she personally committed the offences. Indeed, this would have been the course of action which I would have advised; it is a great pity that the OP was advised to make a full confession to two criminal offences at a time when Saba had no evidence at all, let alone sufficient evidence, to prove the case beyond reasonable doubt.

Guidance issued by the Magistrates Association, quoting extensively from case law, suggests that simply being the RK is insufficient to prove on its own, to the required standard in a criminal case, that the defendant was the driver, and it is often said on this forum that, in the absence of a forced confession under s. 172, the CPS are unlikely to be able to prove speeding or similar camera-detected offence to the required standard. Here, the prosecution does not even have the circumstantial evidence/ adverse inference of a failure to respond to a lawful s. 172 request that the CPS would have in a motoring related/ s. 172 case.

Furthermore, detailed and lengthy advice from a retired barrister, as provided to the OP prior to the case, is very clear that the TOC or agent will almost likely find it impossible to prove the case to the required standard in the absence of an admission.

However, it's too late now, although I agree with The Rookie that the costs order is unreasonably high under all the circumstances, perhaps to the point of being challengeable on appeal.

Was any attempt made to stay the proceedings as an abuse of process, based on:
1) repeatedly bringing the case in the wrong venue and on the wrong grounds, repeatedly misleading the court(s) in the process;
2) the repeated adjournments- caused solely by fundamental and basic prosecution errors, rather than by any error or delay on the part of the defendant;
3) the associated rescheduling without proper notice, and the detrimental* and disproportionate impact of such adjournments on the defendant's case preparation and on her everyday life, particularly given the relatively trivial nature of the underlying offence,
4) the likely fraudulent attempt to inflate their costs to several multiples of the actual figures, and;
5) by pursuing part of a prosecution against the "owner" which was both frivolous and vexatious, and could never succeed?

*The OP had admitted to being the driver, and been directed to file witness statements, in the context of what she was told by Wright Hassell and by the court was merely a civil proceeding- only to then find that evidence taken and used against her in a criminal prosecution. At a minimum, this evidence as to driver identity should have been struck out as an abuse of process, if the whole case was not, as it ought to have been, stayed as an abuse of process.

Posted by: dramaqueen Thu, 10 Oct 2019 - 00:52
Post #1521333

Of course it was argued it was an abuse of process. That’s what the last-minute skeleton argument was all about. The arguments didn’t succeed.

As for giving evidence: the OP was actually directed by the Magistrates to file and serve a witness statement (which of course wouldn’t have happened if they’d been treating it as a criminal case).

But supposing she had made no admissions before coming to court, and had pleaded not guilty. Would she have been acquitted? Extremely unlikely.

ZZPS had evidence of non-payment on a number of occasions (only when the payment facility failed, I hasten to add). The Court knew she had received multiple penalty notices in the past - that evidence was already before the court, before the question of its admissibility could be raised. In any event, the chances of it being admitted as similar fact evidence were high.

A half-time submission of no case to answer would therefore almost certainly have failed. Nor could she have defended herself by giving evidence. Remembering rsooty, who was convicted with no evidence at all as to who was driving, she would have been taking an enormous risk with the odds stacked much more heavily against her.

As it was, the judge clearly accepted her mitigation - as reflected in the low fines ( he accepted she was not a deliberate non-payer, but commented she was aware of the risk she was taking by continuing to use such a dodgy app).

As for costs - yes, painful. But the other side certainly got a bloody nose too, if that’s any consolation. Their barrister told the court the £6800 was an under-estimate and their true costs were a great deal higher. Certainly, as their schedule of costs showed, their London barrister did not come cheap.

The OP was badly let down by the system. The complaint should have remained as a civil matter and been dismissed. But it wasn’t. I can assure you it wasn’t for the want of trying. So your remarks, anon45, are a little bit unhelpful.

Posted by: Sheffield Dave Thu, 10 Oct 2019 - 08:16
Post #1521342

Did the DJ provide any rationale as to why the civil case was retrospectively a criminal case all along?

Posted by: Sheffield Dave Thu, 10 Oct 2019 - 09:05
Post #1521355

Apart from the stress and cost to AnonymousMouse, the upside to the community as a whole, as I see it, is:

The TOC initially tried a novel approach, one which is uniquely hostile to defendants: a civil matter involving only civil burden of proof, but (unlike small claims) one where the costs aren't strictly limited, and the defendant doesn't the have choice of venue location. Also one where (apparently) the TOC rather than the state get to pocket the penalty fee.

This new approach has been soundly seen off due to robust standing-of-ground by AnonymousMouse - the fact that they changed it at the last minute to a standard byelaws prosecution is a tacit admission that that the new approach was doomed.

So, I think that (a) they won't try this approach again, and (b) if they do, we'll have a much better idea how to handle it, e.g. demanding right from the start for the TOC to declare whether they are pursuing a civil or criminal matter.

Then again, IANAL.

Posted by: The Rookie Thu, 10 Oct 2019 - 09:11
Post #1521360

I think with hindsight a number of things could have been done differently (hindsight clearly not available at the time)
Never revealing driver ID
Wasted costs order at every step where Govia/WH had not got their act together.
Asking for the WS to be struck out as being obtained via a clear abuse of process (so no driver ID).
Application on 'trial day' for an adjournment (and wasted costs order) due to the fundamental change in the process.
Application for there to be no jurisdiction as the correction to a criminal charge was outside the 6 months limit and amounted to a completely new 'summons', I don't believe this change would fall within the 'slip rule' as the defendant was clearly disadvantaged to a massive degree. I think that alone could warrant an appeal.

Wasted costs order could well have come to a greater amount than the costs awarded even if the rest was unsuccessful.

Posted by: dramaqueen Thu, 10 Oct 2019 - 10:13
Post #1521378

Ah c’mon guys, don’t get blinded by the strength of your own arguments,

Everything - everything - was tried that could have been tried. The suggestion the amendment to the summons did not fall within the slip rule was indeed argued. So was the fact that the OP was unfairly disadvantaged. So was abuse of process. So was WH’s failure to do or say anything for 4 months although they knew both the OP and the Court were proceeding as for a civil case. All these arguments were put forward, I can assure you. They did not succeed.

It’s all very well to talk about adjourning/appealing but that would have involved immense financial risk to say nothing of the stress. Even if she’d had a 90% chance of succeeding, the costs and fines would have soared if she’d lost. Isn't the first rule of gambling: never lay a bet that you can’t afford to lose?

To answer Sheffield Dave: the DJ’s basis for ruling it was a prosecution was that an Information had been laid shortly before the summons on complaint was issued. Presumably it was in addition to the civil complaint, ready to pounce if the civil proceedings failed. Who knows? The OP knew nothing about it until ZZPS exhibited it to their statement.

Posted by: The Rookie Thu, 10 Oct 2019 - 12:52
Post #1521420

Thanks for the extra information.

I still think there is scope for an appeal based on the jurisdiction and abuse of process (multiple) not least if they witheld the fact they had a summons for the criminal charge that wan't initially progressed and not served for muliptiple months so they could try and progress the civil claim first, which from the posts seems to have been claimed as a mistake yet one you now say they well knew about having already raised 'the correct' paperwork - laughable really.

Posted by: anon45 Thu, 10 Oct 2019 - 20:46
Post #1521525

I profoundly disagree with the statement that an acquittal would have been extremely unlikely in the absence of any admission.

Based on the case law, and on the Magistrates Association statutory guidance, rsooty was clearly wrongly convicted with, as you correctly state, no evidence at all as to who was driving- and therefore no evidence at all that the defendant committed the alleged offence; the unfortunate outcome in that one erroneously decided- and perhaps weakly defended- case, which did not set a binding precedent, should not have been used as a reason to roll over and plead guilty. If rsooty had appealed against conviction to Crown Court, and hired a local solicitor to represent her and remind the Crown Court of the correct burden of proof, she almost certainly would have had her conviction quashed.

I don't understand why so many people seem to treat the rsooty case outcome as binding Supreme Court case law that TOCs and PPCs are exempt from the usual burden of proof imposed on the prosecution in all other criminal cases, and will secure byelaw 14 convictions even wihout providing any evidence at all- when actual case law so clearly states to the contrary.

Even if Wright Hassell had produced evidence of previous unenforceable fake penalty invoices previously issued to the RK/ defendant (as held by the court itself to be inherently unenforceable "offers of out-of-court settlements"), so what? This proves absolutely nothing whatsoever, either as to who was driving in the past incidents, whether the parking in the past incidents actually amounted to a offence rather than an unproven allegation of an offence, or, most pertinently of all, whether the OP was driving on these two specific occasions for which she was charged?

Finally, given that ambiguous criminal statute must be interpreted in the manner most favourable to the defendant- and given the unfortunate admission as to driver identity- was any attempt made to argue that, under the proper construction of byelaw 14, the offence of "failure to pay" is committed when and only when there is an opportunity to pay, such that no offence is committed if the driver is unable to pay through no fault or neglect of their own?

As for the comment on gambling, all I can say is that, in that case, if she couldn't afford to fight the case- to appeal if necessary-, she might as well as simply rolled over and paid the fake byelaw 14 penalties in the first place, rather than folding as soon as put under pressure. I don't believe for one moment the claim of £6,800 in costs, let alone that it was an underestimate, and I doubt that the costs would have been substantially higher if convicted regardless after a not guilty plea (if they were, that would be yet another ground for appeal). If there was, or is a 90% chance of succeeding with an appeal, then, rationally, the increase in costs would have to be enormous to make an appeal inadvisable.

The apparent failure to pursue an adjournment or appeal, or indeed to hire a solicitor to ensure some form of 'equality of arms', sits uneasily and at odds with the statement that "everything- everything was tried".

I'm told that the forum has a 'fighting fund'- would it not be possible even now to use this fund to try to appeal against the erroneous refusal to strike out the unfairly obtained evidence, against the clearly incorrect decision that the "protective" summons was not an abuse of process (as discussed in more detail in this 2013 thread: http://forums.pepipoo.com/index.php?showtopic=76441&st=0&p=781573& , and as in other historic cases where a CoFP has, unwisely, been issued in such timescales as to render a subsequent summons time-barred, and the CPS has unlawfully attempted to lay a "protective" prosecution in anticipation whilst the CoFP is still outstanding), and against the wrongful acceptance of the major time-barred amendment to the summons (oh, and also as to sentence/ costs)?

After all, what are the appeal courts for, if not to correct glaring legal errors and injustices such as here?

The Government previously made noises about limiting the ability of private organisations to bring prosecutions- apparently based on a handful of overzealous prosecutions by the RSPCA- but this is far, far worse, in so many levels, with the prosecution being brought- against a person whom they had no real evidence against at the point of bringing the prosecution- to punish for not paying a fraudulent ransom demand, to (try to) profit vastly, and to intimidate others into paying fake and likely fraudulent phantom byelaw 14 penalties.

Wright Hassall's apparent strategy was to maximise their claimed costs bill, in order to intimidate the OP (with whom I have every sympathy) into pleading guilty, not seeking an adjournment, and not seeking to appeal the clearly erroneous decision of the magistrates that no abuse of process had occurred.

Posted by: Dave65 Thu, 10 Oct 2019 - 21:45
Post #1521537

The "fighting fund" was a topic a few years ago and was headed by Lyndzer.

He dropped of the radar a year or so ago and has appeared recently on and off.

I think the fund idea was for a court case such as this.

Posted by: dramaqueen Fri, 11 Oct 2019 - 15:33
Post #1521690

I think I should respond to some of the points raised in Anon45’s last post. I’m not sure how to do multi-quotes so I’ve put the quotes in italics:-

1. “I don't understand why so many people seem to treat the rsooty case outcome as binding Supreme Court case law that TOCs and PPCs are exempt from the usual burden of proof imposed on the prosecution in all other criminal cases, and will secure byelaw 14 convictions even wihout providing any evidence at all- when actual case law so clearly states to the contrary”.

People come here for advice. Even if the law appears to be on the Defendant’s side, they should be warned that the Court might not see it that way. Rsooty is an example of just that, nothing more.

2. “Even if Wright Hassell had produced evidence of previous unenforceable fake penalty invoices previously issued to the RK/ defendant (as held by the court itself to be inherently unenforceable "offers of out-of-court settlements"), so what?”

For criminal proceedings, the enforceability or otherwise of the private penalties is irrelevant. There was prima facie evidence that the vehicle was parked without paying on a number of occasions. If she had pleaded NG, and then remained silent – not even saying “it wasn’t me” – the magistrates would have been entitled to draw adverse inferences. In my view they probably would have done. I accept that you disagree.

3. “Finally…..was any attempt made to argue that, under the proper construction of byelaw 14, the offence of "failure to pay" is committed when and only when there is an opportunity to pay, such that no offence is committed if the driver is unable to pay through no fault or neglect of their own?”

She pleaded guilty. That means not maintaining a defence. And if she had pleaded not guilty, how would the court have known there was no opportunity to pay unless she gave evidence - and therefore disclosed who was driving?

Anyway, to put your mind at rest: yes, this argument was indeed raised in the submissions for the civil case which never got heard. She argued that the obligation to pay must be subject to the proviso that once on the train (and therefore committed to parking) the means to pay would be available; and that since the proviso was not fulfilled, no breach of the Byelaws occurred. She also quoted the words of Sir Greg Knight at the 2nd reading of the Parking Bill: “If there are a number of payment machines and one of them is not working, that is not an excuse, but if there is only one machine or all the machines are out of order, that ought to be a perfect defence.” See column 1152, here:
https://hansard.parliament.uk/commons/2018-02-02/debates/CC84AF5E-AC6E-4E14-81B1-066E6A892807/Parking(CodeOfPractice)Bill
- 1152 Hansard

The OP’s problem was that this had happened on a number of occasions. As the DJ said, she took the risk. In any event, you will also remember that you advised (post 14) that the problems with the app would likely to be seen as mitigation rather than a defence.

4. “I doubt that the costs would have been substantially higher if convicted regardless after a not guilty plea ....”

Certainly the fines would have been higher. If an offence is not serious, the defendant knows he did it, and the chances of conviction are high, it’s usually advisable to plead guilty at the first opportunity.

5. “The apparent failure to pursue an adjournment or appeal, or indeed to hire a solicitor to ensure some form of 'equality of arms', sits uneasily and at odds with the statement that "everything- everything was tried".

OK I’ll amend that: everything within reason was tried.

6. “…..the prosecution being brought …to punish for not paying a fraudulent ransom demand, to (try to) profit vastly, and to intimidate others into paying fake and likely fraudulent phantom byelaw 14 penalties.”

Yes, there can be no doubt that many prosecutions are brought pour encourager les autres. Other TOCs do it too. The threat of prosecution is a very powerful weapon and no doubt many people are intimidated into paying up. Sadly that is the position.

Posted by: instrumentsofjoy Fri, 11 Oct 2019 - 17:17
Post #1521713

I think that it was originally for a court case at LJA, should one happen. I am still happy to chuck in the tenner I originally promised for something like this which I regard as a disgrace; and finally I think it was Lynzzer.

Posted by: AnonymousMouse Fri, 11 Oct 2019 - 21:12
Post #1521747

Hi,

Thanks everyone for the support and the lovely PMs. :-)

With regards to a few of the posts, I think that as someone said previously, hindsight was not available on the day. I for sure was grateful that dramaqueen had supported me so much in the run up to the day, spent hours researching and helping me draft submissions, and then rescheduled her life to suit the new date and travelled quite some way to be there with me in person and speak for me. Maybe we didn't get everything right (we certainly tried everything) but without dramaqueen it could have been A LOT worse! I have no legal knowledge whatsoever and up until a week before the hearing, I thought we were defending a civil case (which is why I didn't hire a solicitor). I am surprised the DJ ignored all the clear errors dramaqueen pointed out and let the case go ahead, but once that happened there were no other sensible options.

If there is a way, I am up for an appeal but it would have to be done off-forum because unsurprisingly WH and a lot of other vested parties read these forums.

AnonymousMouse

Posted by: anon45 Sun, 13 Oct 2019 - 22:45
Post #1522092

Firstly, I wish to acknowledge the heroic efforts of dramaqueen.

It’s often said, with justification, that the magistrates’ courts look dimly on ‘technical defences’ (c.f. Gidden, of this forum, having to appeal to the High Court to get his speeding conviction quashed owing to the NIP being time-barred owing to late service) https://www.bailii.org/ew/cases/EWHC/Admin/2009/2924.html, and that they sometimes carry the prosecution’s burden for them, or even, as in the rsooty case, disregard the burden of proof altogether and convict despite the total absence of prosecution evidence.

It sounds like an appeal to the High Court on the abuse of process (and related) arguments would have reasonable prospects of success- a matter on which professional advice would presumably have to be taken- likely at a price in itself- but I would understand if the OP is not willing to pursue the matter further and wish her well in any event.

I understand that not all OPs have the same level of resources as Peter Gidden- or James Mayhook (http://forums.pepipoo.com/index.php?showtopic=64994).
Future OPs who receive ransom demands aka ‘demands for money not to prosecute’ masquerading as byelaw 14 statutory penalties will need to consider their position carefully. Matters to be considered will include the facts (an RK who was genuinely not driving is in a strong position), the likelihood of a prosecution (greater for apparent ‘repeat offenders’- as the OP may have been perceived as being), the prospects of the prosecution being able to prove the identity of the driver to the required standard, and the OP’s attitude to risk, including financial risk. This in turn includes the possibility of having to appeal a conviction in order to get a fair hearing in the first place.

It is clear that the fake byelaw 14 statutory penalties are not enforceable, and claims to the contrary by Govia/ Saba/ Wright Hassall are false. As to contract law and claims that the charge is akin to the Beavis charge, the distinctions are that:
1) The signage and paperwork all insist that it is a statutory charge rather than a contractual charge, making it difficult to later argue the contrary in court;
2) In any event, a person cannot enforce a contract to do that which is a criminal offence, such as, in this case, parking in circumstances forbidden by byelaw 14.

I expect Govia/ Saba/ Wright Hassall to try the same thing again, either by prosecuting directly or by pursuing the fake byelaw 14 penalty (and unlimited “costs”) at a civil hearing in the magistrates’ courts, before switching to a ‘conventional’- and perhaps, less profitable, prosecution in the event of resistance. I hope that a future OP will be able to take a similar defence on and win.