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

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

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

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

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

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

Thank you so much in advance!
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The Rookie
post Wed, 26 Jun 2019 - 11:42
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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.


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southpaw82
post Wed, 26 Jun 2019 - 12:35
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QUOTE (Mr.Consumer @ Wed, 26 Jun 2019 - 11:11) *
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.

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


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Mr.Consumer
post Wed, 26 Jun 2019 - 13:37
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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.

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Sheffield Dave
post Wed, 26 Jun 2019 - 18:54
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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?
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AnonymousMouse
post Wed, 26 Jun 2019 - 20:29
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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. smile.gif

QUOTE (Sheffield Dave @ Tue, 25 Jun 2019 - 22:20) *
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.)



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

QUOTE (Mr.Consumer @ Wed, 26 Jun 2019 - 00:18) *
I have read this thread with interest and lurking in the background but I just wanted to throw something into the ring which I don't think has been discussed - forgive me if it has but I did read the thread in the Flame Pit and Anon's link and couldn't find anything.

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

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

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

Taxes Management Act 1970 (s.65):

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

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


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



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.

QUOTE (softwaremad @ Wed, 26 Jun 2019 - 10:28) *
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. .



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? smile.gif

QUOTE (The Rookie @ Wed, 26 Jun 2019 - 12:42) *
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.



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!

QUOTE (Sheffield Dave @ Wed, 26 Jun 2019 - 19:54) *
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?


This post has been edited by AnonymousMouse: Wed, 26 Jun 2019 - 20:44
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southpaw82
post Wed, 26 Jun 2019 - 20:36
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The magistrates have a very wide discretion as to costs.


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Gary Bloke
post Wed, 26 Jun 2019 - 21:31
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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.
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dramaqueen
post Thu, 27 Jun 2019 - 08:49
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QUOTE (Gary Bloke @ Wed, 26 Jun 2019 - 22:31) *
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.



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/roys...tation-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...s_June_2010.pdf


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The Rookie
post Thu, 27 Jun 2019 - 09:27
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QUOTE (AnonymousMouse @ Wed, 26 Jun 2019 - 21:29) *
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? smile.gif

QUOTE (The Rookie @ Wed, 26 Jun 2019 - 12:42) *
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.


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.

This post has been edited by The Rookie: Thu, 27 Jun 2019 - 09:29


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There is no such thing as a law abiding motorist, just those who have been scammed and those yet to be scammed!

S172's
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Council PCN's
Rookies 1-0 Warwick
Rookies 1-0 Birmingham

PPC PCN's
Rookies 10-0 PPC's
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dramaqueen
post Fri, 28 Jun 2019 - 09:09
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QUOTE (The Rookie @ Thu, 27 Jun 2019 - 10:27) *
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.



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.
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AnonymousMouse
post Thu, 4 Jul 2019 - 09:40
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QUOTE (Gary Bloke @ Wed, 26 Jun 2019 - 22:31) *
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.


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?

QUOTE (dramaqueen @ Thu, 27 Jun 2019 - 09:49) *
QUOTE (Gary Bloke @ Wed, 26 Jun 2019 - 22:31) *
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.



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/roys...tation-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...s_June_2010.pdf


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?
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AnonymousMouse
post Thu, 4 Jul 2019 - 10:44
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QUOTE (dramaqueen @ Fri, 28 Jun 2019 - 10:09) *
QUOTE (The Rookie @ Thu, 27 Jun 2019 - 10:27) *
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.



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.


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?
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Gary Bloke
post Thu, 4 Jul 2019 - 10:47
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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.
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AnonymousMouse
post Sun, 7 Jul 2019 - 20:33
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QUOTE (Gary Bloke @ Thu, 4 Jul 2019 - 11:47) *
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.


Thanks Gary! I hope they have....
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Spudandros
post Tue, 3 Sep 2019 - 08:29
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Any update on this?
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AnonymousMouse
post Wed, 9 Oct 2019 - 09:05
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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
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Sheffield Dave
post Wed, 9 Oct 2019 - 09:25
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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.
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Dave65
post Wed, 9 Oct 2019 - 09:46
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So, it was a criminal prosecution, and dealt with in the CC?
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Gary Bloke
post Wed, 9 Oct 2019 - 09:50
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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.
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The Rookie
post Wed, 9 Oct 2019 - 10:12
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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?d...n/1999/499.html


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There is no such thing as a law abiding motorist, just those who have been scammed and those yet to be scammed!

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