Railway Byelaws - Summons on Complaint, Meaning of "money recoverable summarily as a civil debt" |
Railway Byelaws - Summons on Complaint, Meaning of "money recoverable summarily as a civil debt" |
Fri, 7 Jun 2019 - 10:13
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#1
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Member Group: Members Posts: 334 Joined: 1 Jul 2014 From: east sussex Member No.: 71,587 |
There's a thread over on MSE about Govia Thameslink Railway issuing a Magistrates' Court summons because car reg xxxx "was parked without paying the necessary charge." - https://forums.moneysavingexpert.com/showth...ighlight=indigo
It's important to note, it's not a prosecution. It's a Summons on Complaint for a civil order. The summons is very poorly worded (unfortunately the poster has removed the picture but I've got a screen shot). It doesn't specify what order is being sought, or on what basis the Defendant is involved (owner? keeper? driver?). The chances are they'll be asking for an order that she pay the PPC's homemade parking penalty. This is a startling departure from their usual bullying tactics. There are plenty of arguments why this pre-conviction penalty is unenforceable but I suspect, judging from the poster's lack of engagement, that she is going to settle. Or she may turn up, not know what to say, and lose. Either way, Saba (previously known as Indigo) will have been handed an extremely effective new gun. Perhaps that's the real motive behind this whole charade. So we have to reassure people the gun isn't loaded. As a starting point, what about the Magistrates' power to make such an order? Does it exist? Certainly they have the power to "make an order on complaint for the payment of any money recoverable summarily as a civil debt" - see s58, Magistrates' Courts Act 1980, here: https://www.legislation.gov.uk/ukpga/1980/43/section/58 But does anyone know what "money recoverable summarily as a civil debt" is? I imagine it has to be specified as such under the relevant legislation - like, for example, party wall awards under s17 Party Wall Act https://www.legislation.gov.uk/ukpga/1996/40/section/17 If that's the case, this particularly unpleasant sort of bullying can be squashed without poor defendants having to stand before the Beaks to argue the niceties of Byelaws parking law. This post has been edited by dramaqueen: Fri, 7 Jun 2019 - 10:19 |
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Fri, 7 Jun 2019 - 10:13
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Fri, 7 Jun 2019 - 11:44
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#2
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Member Group: Members Posts: 56,200 Joined: 9 Sep 2003 From: Warwickshire Member No.: 317 |
Interesting, as failure to pay is a clear bye-law offence then surely that should be the action they are taking, although I understand why they may want to be greedy.
I will expect Govia to try and get the court "make an order on complaint for the payment of any money recoverable summarily as a civil debt" for the penalty charge even though its not established as a civil debt, a counter going in 'defence' would be to argue that the sum owed was the original parking fee, that approach would be more likley to succeed than a full defence I would suggest (and would probably pee Govia off even more than losing as it would be a somewhat Pyrrhic victory!). -------------------- There is no such thing as a law abiding motorist, just those who have been scammed and those yet to be scammed!
S172's Rookies 1-0 Kent Council PCN's Rookies 1-0 Warwick Rookies 1-0 Birmingham PPC PCN's Rookies 10-0 PPC's |
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Fri, 7 Jun 2019 - 12:17
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#3
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Member Group: Members Posts: 33,610 Joined: 2 Apr 2008 From: Not in the UK Member No.: 18,483 |
AFAIK the procedure in the Magistrates’ Courts Act 1980 is not a replacement or alternative to county court proceedings in all cases, but only if a statute gives a power to do so, normally by making any sum recoverable summarily as a civil debt. It’s been touched on in a few court decisions but none is particularly relevant as all concerned a statute authorising recovery summarily.
-------------------- Moderator
Any comments made do not constitute legal advice and should not be relied upon. No lawyer/client relationship should be assumed nor should any duty of care be owed. |
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Fri, 7 Jun 2019 - 14:40
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#4
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Member Group: Members Posts: 334 Joined: 1 Jul 2014 From: east sussex Member No.: 71,587 |
AFAIK the procedure in the Magistrates’ Courts Act 1980 is not a replacement or alternative to county court proceedings in all cases, but only if a statute gives a power to do so, normally by making any sum recoverable summarily as a civil debt. 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. This post has been edited by dramaqueen: Fri, 7 Jun 2019 - 14:41 |
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Fri, 7 Jun 2019 - 21:21
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#5
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Member Group: Members Posts: 1,114 Joined: 7 Aug 2009 Member No.: 31,007 |
I refer to my post on this thread:
http://forums.pepipoo.com/index.php?showtopic=128264 I personally have access to detailed advice from a retired barrister on the matter of byelaw 14. Although the advice in general, apart from being exceptionally detailed and thus lengthy, is typically nuanced and cautious, as might be expected from a barrister, the advice on the specific point on 14(4)(i) 'owner liability' is absolutely categorical, unambiguous and emphatic in stating that no such civil or criminal 'owner liability' can possibly exist, and that any attempt to claim such a liability is a nonsense, likely an aggressive commercial practice, and perhaps even a fraud. The advice gives a series of detailed and well-reasoned bullet points as to his/ her reasoning for this. Byelaw 14(4)(i) does not actually create such a debt, and certainly does not make any such debt recoverable summarily as a civil debt. This post has been edited by anon45: Wed, 12 Jun 2019 - 20:40 |
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Sat, 8 Jun 2019 - 09:09
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#6
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Member Group: Members Posts: 4,126 Joined: 31 Jan 2018 Member No.: 96,238 |
How will Govia explain a letter stating that the charge is an offer to avoid prosecution and why, when the offer wasn't accepted, they didn't prosecute but changed the offer to a debt ?
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Sat, 8 Jun 2019 - 09:35
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#7
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Member Group: Members Posts: 1,114 Joined: 7 Aug 2009 Member No.: 31,007 |
How will Govia explain a letter stating that the charge is an offer to avoid prosecution and why, when the offer wasn't accepted, they didn't prosecute but changed the offer to a debt ? They can't, so they must be hoping for a clueless defendant or magistrate(s). A person cannot be deemed by our judicial system to have parked in breach of byelaw (14)(1)(2) or (3) until this has been officially decided by a competent court, (including by a judgment made by default or conviction imposed in absentia), and decided beyond reasonable doubt if considered by a magistrates court considering an alleged offence. Until then the driver (who may well not be the owner or RK) remains in alleged breach only, and accordingly any purported debt owed by the person being summonsed (who is not necessarily the driver, although apparently was in the case), is an alleged debt rather than a summary debt within the meaning of s. 58. The proper venue for deciding whether the alleged debt is a real debt is the county court. Furthermore, since Govia have not prosecuted for the alleged substantive breach, it is doubtful that the magistrates court have the jurisdiction to unilaterally decide that the alleged parking breach indeed occurred- it would be like convicting for murder when the defendant is charged only with littering! If Govia claim that the defendant committed the substantive parking offence, they should prosecute, but, of course, have no knowledge of who personally committed the offence. If Govia claim that the defendant owes them money as a alleged contractual debt, then the correct course of action would be do what PPCs do and file a county court claim. Either way, the course of action undertaken by Govia is an abuse of the court system (even more so since they are apparently asking the court to order the defendant pay a separate company, Saba, who is not a claimant or prosecutor in the case), and bound to fail if a proper defence is put forward and the magistrates are fair minded. Using Google, it appears that southpaw82 is correct (he usually is!) and that this section 58 is only for use where another statute authorises its use (e.g. with wall disputes). This post has been edited by anon45: Wed, 12 Jun 2019 - 20:39 |
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Sat, 8 Jun 2019 - 20:39
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#8
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Member Group: Members Posts: 2,053 Joined: 20 May 2013 Member No.: 62,052 |
As I understand it, the Railway Byelaws contain two relevant powers related to enforcement and penalties:
24 (1) "Any person who breaches any of these Byelaws commits an offence [...] and may be liable for each such offence to a penalty not exceeding level 3 on the standard scale." 14 (4) (i) "The owner of any motor vehicle, bicycle or other conveyance used, left or placed in breach of Byelaw 14(1) to 14(3) [parking etc] may be liable to pay a penalty as displayed in that area." The first applies to the "person in charge of the vehicle", i.e. usually the driver. The second applies to the owner. The bye-laws are enabled by Railways Act 2005, which in Schedule 9.2 allows the Bye-laws to include fines on conviction up to level 3, but doesn't empower the byelaws to include what amounts to council-style decriminalised penalties. |
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Mon, 10 Jun 2019 - 08:01
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#9
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Member Group: Members Posts: 6,963 Joined: 19 Dec 2006 From: Near Calais Member No.: 9,683 |
Surely only the court can determine these penalties, not GoVia.
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Mon, 10 Jun 2019 - 08:57
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#10
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Member Group: Members Posts: 1,705 Joined: 20 May 2004 From: Lincolnshire Member No.: 1,224 |
it would be like convicting for murder when the defendant is charged only with littering! Other way round, they're prosecuting for littering (you left the knife sticking out of their back) rather than murder because they prefer the sentence (money instead of jail).
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Mon, 10 Jun 2019 - 15:23
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#11
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Member Group: Members Posts: 38,006 Joined: 3 Dec 2010 Member No.: 42,618 |
it would be like convicting for murder when the defendant is charged only with littering! Other way round, they're prosecuting for littering (you left the knife sticking out of their back) rather than murder because they prefer the sentence (money instead of jail).A littering fine is imposed for a criminal prosecution so the fine goes to the court, not the prosecuting authority. -------------------- If you would like assistance with a penalty charge notice, please post a thread on https://www.ftla.uk/index.php
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Sun, 7 Jul 2019 - 16:52
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#12
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Member Group: Members Posts: 28,931 Joined: 29 Nov 2005 Member No.: 4,323 |
As I understand it, the Railway Byelaws contain two relevant powers related to enforcement and penalties: 24 (1) "Any person who breaches any of these Byelaws commits an offence [...] and may be liable for each such offence to a penalty not exceeding level 3 on the standard scale." 14 (4) (i) "The owner of any motor vehicle, bicycle or other conveyance used, left or placed in breach of Byelaw 14(1) to 14(3) [parking etc] may be liable to pay a penalty as displayed in that area." The first applies to the "person in charge of the vehicle", i.e. usually the driver. The second applies to the owner. The bye-laws are enabled by Railways Act 2005, which in Schedule 9.2 allows the Bye-laws to include fines on conviction up to level 3, but doesn't empower the byelaws to include what amounts to council-style decriminalised penalties. plus check what the enabling act allows the byelaws to regulate. "persons while on the premises" Bylaws have limited geographical application, they can not reach out beyond their boundary to reach the owner (should the owner not be the driver. so they need to prove to the criminal standard of proof who was driving) Barrister advice is spot on. Sounds to me that a challenge to jurisdiction is on the cards for this latest wheeze by the parking company. I would odds that they are firmly in the land of torts-a-plenty (tm pending) with this wheeze. -------------------- Which facts in any situation or problem are “essential” and what makes them “essential”? If the “essential” facts are said to depend on the principles involved, then the whole business, all too obviously, goes right around in a circle. In the light of one principle or set of principles, one bunch of facts will be the “essential” ones; in the light of another principle or set of principles, a different bunch of facts will be “essential.” In order to settle on the right facts you first have to pick your principles, although the whole point of finding the facts was to indicate which principles apply.
Note that I am not legally qualified and any and all statements made are "Reserved". Liability for application lies with the reader. |
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Thu, 1 Aug 2019 - 22:44
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#13
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Member Group: Members Posts: 482 Joined: 13 Jan 2014 Member No.: 67,950 |
Is Paragraph 24 (4) of the Railway Byelaws also relevant to Saba's parking penalty notices?
No person shall be subject to any penalty for breach of any of the Byelaws by disobeying a notice unless it is proved to the satisfaction of the Court before whom the complaint is laid that the notice referred to in the particular Byelaw was displayed. |
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