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PCN code 12R, Threads merged
poboskie
post Tue, 3 May 2016 - 09:54
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Hello to all,

Some advice would be greatly appreciated on this matter please.

I received a PCN from the council with code 12R on 04/03/16. I challenged the penalty by email on 15/03/16 asking for consideration as I did have a ticket but I mistakenly scratched the wrong month on the weekly visitor permit. I scratched February instead of March. I also provided the council with the 5 previous weekly visitor permits, hence they could see that I had valid permits on those dates and I was not trying to pull a fast one by using the same permit twice. I appealed to their good nature as at the time of scratching the ticket I was dealing with my autistic child who was unsettled. I received an email confirmation stating that they will respond within 10 working days. However, the council responded by mail over a month later (letter is dated 18/04/16) and denied my appeal. They gave me the option of paying the amount of £65 within 14 days of the letter after which case the penalty will revert to the full amount of £130.

Do I have a positive chance of contesting this PCN after the issue of the notice to owner? Please kindly help as a cannot afford this fine.

Thank you
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post Tue, 3 May 2016 - 09:54
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hcandersen
post Thu, 10 Aug 2017 - 18:07
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I think NeilB's caution is in keeping with the ethos of this forum as regards risking an OP's money.

And we cannot distil our knowledge into a simple probability of success.

What I think we could agree upon is that were you to get to adjudication you should succeed for the very reason that I believe that you should succeed with the DJ: the procedural impropriety of the authority.

Take whatever consumer legislation you like, the common them is that when there is a clear mismatch between the knowledge of the two principals, the consumer should be given additional protection.
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Neil B
post Thu, 10 Aug 2017 - 20:14
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QUOTE (poboskie @ Thu, 10 Aug 2017 - 18:11) *
The deadline to appeal to a DJ is August 12th.


I make it 16th.

"75.5A
(1) Any party may request any decision of a court officer to be reviewed by a district judge.
(2) Such a request must be made within 14 days of service of the decision.
"

Dated Sunday 30th
Can't be posted until Monday 31st.
Deemed by law 'served' 2nd August. (unless different for Court Orders?)
Add (in this instance) 14 = 16th.

HCA, do you concur?

This post has been edited by Neil B: Thu, 10 Aug 2017 - 20:15


--------------------
QUOTE (DancingDad @ Fri, 11 May 2018 - 12:30) *
Neil is good at working backwards.

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poboskie
post Fri, 11 Aug 2017 - 07:41
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Thank you both for your advise. I have decided that I will go ahead with completing the N244. I won't be at peace with myself if I don't try to fight this. Aside from the procedural impropriety of the authority, I believe that they are also trying to benefit financially from this which is immoral.

This is what I have so far, from your input. Please let me know where it can be elaborated further. Should I ask to be refunded for the £100 fee? Below is the statement:



"I now realise that I did not fully explain my reasons for needing to file a Witness Statement outside the normally
permitted time. I apologise for this and ask the Court to consider the more detailed information I offer.

On November 22nd 2016, TEC issued a revoking order in respect of PCN LX11132905 on the grounds that I had made representations to the authority but not received a response.

Pursuant to this decision, the authority were required to refer the matter to the adjudicator.
They did not.

Instead, they claim that they issued a fresh NTO, which itself was procedurally improper/unlawful.
I did not receive this alleged NTO which the authority then followed with a charge certificate and Order for Recovery.

I completed the witness statement on May 28th 2017, within the permitted period, but mistakenly put forward two grounds, not realising that this was not permitted - despite the fact that in the circumstances of my case both actually applied (i.e. I had still not received a response to my original representations and had not received the alleged NTO) - I was supposed to submit only single grounds.

My witness statement was not processed, being rejected but I was not notified of this until 31/05/2017 which was beyond the period allowed to submit a witness statement.
Seeking advice from TEC Customer Services by e-mail, I received no satisfactory response. I attach proof of my email and acknowledgement receipt from TEC.

It was only when phoning them to enquire why and my options on June 22nd 2017, after receiving a Notice of Enforcement, that it was made clear I needed to submitted a modifed witness statement with a single ground and an application to file 'out of time'.

My application was refused.

I believe that explains my need to file the Witness Statement outside the normally permitted time and ask the Court
to revoke the Order of July 30th 2017."

This post has been edited by poboskie: Fri, 11 Aug 2017 - 08:04
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hcandersen
post Fri, 11 Aug 2017 - 07:54
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OK. I would add that you respectfully request that given the authority's unlawful procedural action in not referring the matter to the adjudicator and then issuing a second NTO (which gave rise to your initial confusion) and therefore denying you your right to a fair hearing the District Judge would in the interests of justice and fairness allow you to present your case at adjudication by allowing you to submit this witness statement late.

One point though.

Go back to your photo of your 'amended' witness statement. This cannot be dated as it is because that date applies to the first WS, the one with only single grounds was submitted separately and later. Don't submit anything that's not correct.
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poboskie
post Fri, 11 Aug 2017 - 08:03
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QUOTE (hcandersen @ Fri, 11 Aug 2017 - 07:54) *
One point though.

Go back to your photo of your 'amended' witness statement. This cannot be dated as it is because that date applies to the first WS, the one with only single grounds was submitted separately and later. Don't submit anything that's not correct.


Thank you, i wasn't planning on submitting the witness statement simply a proof of my email query to TEC and their acknowledgement. Do you think I should provide copy of all the paperwork?

Another thing, should the DJ find in my favour, any chance to get refunded the N244 fee?
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hcandersen
post Fri, 11 Aug 2017 - 09:16
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Probably not, but this would be for the adjudicator later.

The reason you need the DJ is because you filled out the WS incorrectly. The authority's actions were the trigger for the WS but not the reason for the N244.

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Bailiff Advice
post Fri, 11 Aug 2017 - 09:22
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I have read this thread twice and I am still very confused and I would suspect that a District Judge reviewing the rejection (by way of an N244 application) would feel the same way.

In the first instance, this case is yet further proof that individuals should take advice before submitting an Out of Time witness statement. These are County Court applications, the purpose of which, is to 'rewind' the PCN back to the initial stage to allow the individual to pay the charge at the earlier discounted rate or alternatively, to appeal the contravention. If the application is accepted, the warrant is revoked (meaning all bailiff fees are cancelled) and the charge certificate cancelled. In most cases, such applications are made because the individual had only become aware of the PCN when they received a letter or visit from a bailiffs (many times, at their current address). Don't get me started on this subject !!

The way that I see it, in late May, an 'in time' witness statement was submitted. TEC rejected this a few days later (presumably because the date for filing an 'in time' application had expired). If that witness statement had been submitted 'in time' then the PCN would automatically (no questions asked) be rewound back to an earlier stage (depending on what box had been ticked).


The OP did not realise for a while that she needed to resubmit the witness statement (TE9) ...but here comes the difficult part:

Even though it is late, a witness statement (TE9) can still be submitted, but unlike in the scenario above, the PCN will not be automatically rewound. Instead, the individual has a submit a second form (TE7) entitled: Application to file a Statement Out of Time. The entire purpose of the TE7 is to outline the reason why the individual was late in submitting the witness statement TE9. There is no other criteria.

The reason for submitting the witness statement late can vary enormously (which is why I will not provide a 'template'). Having assisted with thousands of these applications, the most common reasons are as follows:

QUOTE
I only became aware of this contravention when I received a letter from a firm of bailiffs at my current address etc

I only became aware of this contravention when I received a text message from the landlord/tenant/letting agent/ex partner etc from my previous address advising of a bailiff visit etc

Less common would be:

I only became aware of this contravention when I returned back home after being overseas (death of family, travelling, working etc).

I only became aware of this contravention when I was released from hospital etc.


Along with the opening paragraph, the individual would need to provide as much supporting details/evidence as possible.

On receipt of the completed TE7 and TE9, the Traffic Enforcement Centre will send both forms to the local authority. Their role is to decide whether or not they are satisfied that a good reason had been given on the TE7 for the witness statement being sent in late (out of time). Their role is purely to consider the reason given (which is why any application that merely says "I moved address and did not receive any letters' will be rejected).

If the local authority are not satisfied with the reason given (for sending the witness statement late), they must respond to TEC to advise that they wish to refuse to give their permission for the court to accept the application.

If an application is rejected (as in this case), the individual can request a 'review'. There is a huge problem with this:

Firstly there is a fee to pay of £100. I have only come across two cases where a court have awarded this fee to be refunded.

Secondly, the regulations are very clear in that the District Judge is very limited in what he can review. He can only look at whether the reason given (by the local authority) was the right one or not. He would be required to consider what had been put on the TE7 (Application to file a witness statement Out of Time) and the local authorities reply. He should not be considering additional information that the individual realises they should have included in their original application.

This post has been edited by Bailiff Advice: Fri, 11 Aug 2017 - 09:30
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poboskie
post Fri, 11 Aug 2017 - 11:01
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@ Bailiff Advice,

The WS was filed in time in late May. It was rejected because 2 grounds were selected instead on 1. However this was not made clear by TEC and they did not reply to my email query.

It wasn't until over a month later that they elaborated on what happened and led me to believe that the out of time application was a simple process. In fact they told me what to put on the form.

I realise now that I was gullible in taking their advise.

Another piece of information is that a WS was also filed in late November 2016 and courts awarded my application by revoking the charge certificate. What was the council lawfully to do after that?
In my case, they claimed to have sent another NTO (which was never received, followed by another charge certificate and subsequently an other Order for recovery.
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Neil B
post Fri, 11 Aug 2017 - 11:17
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I spoke with BA, at some length yesterday and this is one aspect that cropped up.
QUOTE (Bailiff Advice @ Fri, 11 Aug 2017 - 10:22) *
Secondly, the regulations are very clear in that the District Judge is very limited in what he can review.

He should not be considering additional information that the individual realises they should have included in their original application.

I've already said that an N244 Judge may well feel constrained by the above limitation but I also believe some may be
prepared to look at the bigger picture, in the interests of justice.
That, if true, makes it a gamble on a Judge's perspective.

But - given the seriousness of the unlawful behaviour/actions of Lewisham, I think a Judge might be persuaded to take
matters into account.
To put it in a perspective that should be of concern and interest to the Judge there is a single fact that might be
highlighted:-
That you only find yourself at this advanced stage of proceedings because Lewisham disobeyed the first Order made
by the Court; the same Court where the Judge themself sits.

I find it difficult to believe a Judge would entirely ignore that.

--
What I think is going to be important is format and the order in which matters are presented.
That should, if possible, cover the core issue the Judge is 'allowed' to look at but make prominent the other
matters we know to be relevant.
I need time.

--
We also need to highlight that we do not know if the Council objected to the OOT application, as BA mentioned. and if they
did that we have not been furnished with a copy of that objection by Lewisham, as is required by TEC Code of Practice
for Local Authorities (I'm told).
It is unfair that we cannot address any matters raised by the Council, that may have influenced the TEC Court
Officer's decision.

----
One for HCA to wriggle us out of?
QUOTE (hcandersen @ Thu, 10 Aug 2017 - 17:02) *
Instead, they claim that they issued a fresh NTO, which itself was procedurally improper/unlawful.

"The review will not be a review of the validity of the notice of the amount due or any order within the meaning of paragraph 1.3(3) of this Practice Direction."


--------------------
QUOTE (DancingDad @ Fri, 11 May 2018 - 12:30) *
Neil is good at working backwards.

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poboskie
post Fri, 11 Aug 2017 - 11:34
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QUOTE (Neil B @ Fri, 11 Aug 2017 - 11:17) *
We also need to highlight that we do not know if the Council objected to the OOT application, as BA mentioned. and if they
did that we have not been furnished with a copy of that objection by Lewisham, as is required by TEC Code of Practice
for Local Authorities (I'm told).
It is unfair that we cannot address any matters raised by the Council, that may have influenced the TEC Court
Officer's decision.


The council did object. Their response is picture number 4, where they give their account of the chain of events.

Where the TEC court officer could have been influence is on paragraph 6, where the council states to have received correspondence on 07/11/2016. This was in fact a copy of my representation to the NTO made on 24/05/2016. They state that: "A copy of the Notice to Owner was also enclosed." But they make no mention of my representation.

This post has been edited by poboskie: Fri, 11 Aug 2017 - 11:46
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Neil B
post Fri, 11 Aug 2017 - 11:46
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QUOTE (poboskie @ Fri, 11 Aug 2017 - 12:34) *
QUOTE (Neil B @ Fri, 11 Aug 2017 - 11:17) *
We also need to highlight that we do not know if the Council objected to the OOT application,


The council did object. Their response is picture number 4, where they give their account of the chain of events.

Ah yes.

So how does it refer to WS 25/11/16, box 1 ticked when yours says 4/11/16, box 2 ?

and TEC say 22/11/16

This post has been edited by Neil B: Fri, 11 Aug 2017 - 11:49


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QUOTE (DancingDad @ Fri, 11 May 2018 - 12:30) *
Neil is good at working backwards.

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poboskie
post Fri, 11 Aug 2017 - 11:50
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QUOTE (Neil B @ Fri, 11 Aug 2017 - 11:46) *
QUOTE (poboskie @ Fri, 11 Aug 2017 - 12:34) *
QUOTE (Neil B @ Fri, 11 Aug 2017 - 11:17) *
We also need to highlight that we do not know if the Council objected to the OOT application,


The council did object. Their response is picture number 4, where they give their account of the chain of events.

Ah yes.

So how does it refer to WS 25/11/16, box 1 ticked when yours says 4/11/16, box 2 ?


They are wrong, box 2 was ticked. The picture of the WS (second to last picture) clearly shows that box 2 was ticked.
I think I had completed the WS at the same time I had sent a copy of my representation to the council, hoping that the council will deal in my representation in time. However, that did not happen so I had to file the WS in time, which was by 20/11/2016 (date sent and accepted by TEC).

That's a misrepresentation on their part and they also make no mention of my representation. This is where the TEC court officer was misled.

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Neil B
post Fri, 11 Aug 2017 - 12:13
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I'll take that as read.

You asked about sending docs and the answer is yes, crucial.

For that one then you should perhaps annotate the copy you send so as to explain to the Judge.

and presumably you realise you now have a stronger case, for the reasons you've just said.
You must get this across to the DJ.


--------------------
QUOTE (DancingDad @ Fri, 11 May 2018 - 12:30) *
Neil is good at working backwards.

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poboskie
post Fri, 11 Aug 2017 - 12:20
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QUOTE (Neil B @ Fri, 11 Aug 2017 - 12:13) *
I'll take that as read.

You asked about sending docs and the answer is yes, crucial.

For that one then you should perhaps annotate the copy you send so as to explain to the Judge.

and presumably you realise you now have a stronger case, for the reasons you've just said.
You must get this across to the DJ.


Thank you. Could I have some help on the wording to add to the statement already formulated please?
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Neil B
post Fri, 11 Aug 2017 - 12:25
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QUOTE (poboskie @ Fri, 11 Aug 2017 - 13:20) *
Thank you. Could I have some help on the wording to add to the statement already formulated please?

Ideally I would but I'm struggling to find time at the mo.

I'll try to find time tonight or tomorrow.

Easiest if you do an updated draft and people here comment and edit.


--------------------
QUOTE (DancingDad @ Fri, 11 May 2018 - 12:30) *
Neil is good at working backwards.

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Bailiff Advice
post Sat, 12 Aug 2017 - 00:14
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QUOTE (Neil B @ Thu, 10 Aug 2017 - 01:04) *
When your first WS, last year, was successful, the Council were required to refer the matter to the adjudicator for
directions (normally resulting in a hearing on the original issues) NOT issue a new NtO as they claim they did on 29/11/16.

So really, your original thoughts were correct, you've been tucked up by a cock-up that originated at the Council.


It was only yesterday that I became aware that last year, changes were imposed to the procedure that should be followed by local authorities in cases where a witness statement had been accepted on ground number 2. It would seem that the amendment was outlined in the Environment and Traffic Adjudicators Annual Report 2016 (page 23)

http://www.londontribunals.gov.uk/sites/de...-16%20final.pdf


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Neil B
post Sat, 12 Aug 2017 - 00:48
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QUOTE (Bailiff Advice @ Sat, 12 Aug 2017 - 01:14) *
QUOTE (Neil B @ Thu, 10 Aug 2017 - 01:04) *
When your first WS, last year, was successful, the Council were required to refer the matter to the adjudicator for
directions (normally resulting in a hearing on the original issues) NOT issue a new NtO as they claim they did on 29/11/16.

So really, your original thoughts were correct, you've been tucked up by a cock-up that originated at the Council.


It was only yesterday that I became aware that last year, changes were imposed to the procedure that should be followed by local authorities in cases where a witness statement had been accepted on ground number 2. It would seem that the amendment was outlined in the Environment and Traffic Adjudicators Annual Report 2016 (page 23)

http://www.londontribunals.gov.uk/sites/de...-16%20final.pdf

Yes and this is what I told you about on the phone.

But it has no bearing on this case since this, dubiously lawful, attempt to streamline has also been ignored by
Lewisham here.
It does not include any remit to re-start enforcement at NtO stage.


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QUOTE (DancingDad @ Fri, 11 May 2018 - 12:30) *
Neil is good at working backwards.

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Bailiff Advice
post Sat, 12 Aug 2017 - 07:33
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QUOTE (Neil B @ Sat, 12 Aug 2017 - 01:48) *
QUOTE (Bailiff Advice @ Sat, 12 Aug 2017 - 01:14) *
QUOTE (Neil B @ Thu, 10 Aug 2017 - 01:04) *
When your first WS, last year, was successful, the Council were required to refer the matter to the adjudicator for
directions (normally resulting in a hearing on the original issues) NOT issue a new NtO as they claim they did on 29/11/16.

So really, your original thoughts were correct, you've been tucked up by a cock-up that originated at the Council.


It was only yesterday that I became aware that last year, changes were imposed to the procedure that should be followed by local authorities in cases where a witness statement had been accepted on ground number 2. It would seem that the amendment was outlined in the Environment and Traffic Adjudicators Annual Report 2016 (page 23)

http://www.londontribunals.gov.uk/sites/de...-16%20final.pdf

Yes and this is what I told you about on the phone.

But it has no bearing on this case since this, dubiously lawful, attempt to streamline has also been ignored by
Lewisham here.
It does not include any remit to re-start enforcement at NtO stage.


Thanks must go to you NB for this new procedure coming to light.

One particular local authority that I spoke to informed me that regardless of whether box 1,2 or 3 had been ticked, their understanding of the amendment is that they can merely revert the PCN back to the NtO stage. They referred me to this sentence:

QUOTE
Whatever stage the matter may previously have reached, if either party, on considering the evidence decides that they do not wish to proceed further (for example, an appellant decides to pay the penalty charge or an enforcement authority accepts the evidence now submitted by an appellant) there is nothing to be gained by the matter then being considered by an adjudicator. Accordingly, if the matter is resolved between the parties, the case is simply referred to the adjudicator with no further action required, with a consequent saving of public funds.


The bottom line though is that it appears to be the case that by ticking box number 2, the local authority are not under an obligation to automatically refer the case to the adjudicator. My personal feeling is that if nothing else, it does weaken the OP's grounds for submitting an N244. Personally, I would save the £100 court fee and settle the matter with the enforcement company by paying £278 (or thereabouts).
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hcandersen
post Sat, 12 Aug 2017 - 10:18
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????

Nothing in the amended procedures affects the law, all they've done is to join up the sparse dots of the regs with sensible procedure.

Conceptually, the whole purpose of the 'Invalid notice' provisions is to address what is essentially a breakdown in communication between the parties.

Taking grounds 2 because they apply in this case, the authority have two options:
To aim to resolve the matter BY AGREEMENT, or
To refer to an adjudicator who could hold a 'for mention' hearing.

Neither has occurred in this case. Do not mistake the reference in the report to 'if either party decides they do not wish to continue further' as referring to an authority not referring the matter to an adjudicator, it means nothing of the sort. It refers to the authority choosing to not pursue the penalty (the appellant makes an appeal, not the authority!) and settle or the owner deciding to not appeal. But the obligation for the next action under the amended procedure stays with the authority and is triggered by the revoking order:

Revoking order
Authority notify the owner of the options which are can the authority and owner come to an agreement on the basis of and only the basis of the evidence in play at that time or if not then the owner must be advised that the matter will be referred to the adjudicator as per the procedure.
Owner decides what to do and authority act in accordance with this decision.

OP, I would support your decision to carry on. I cannot see a DJ siding with an authority which comes to court with such unclean hands, it's not the law's task to support unlawful acts.

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Neil B
post Sat, 12 Aug 2017 - 10:29
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QUOTE (hcandersen @ Sat, 12 Aug 2017 - 11:18) *
????

Nothing in the amended procedures affects the law,

+1


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QUOTE (DancingDad @ Fri, 11 May 2018 - 12:30) *
Neil is good at working backwards.

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