PePiPoo Helping the motorist get justice

Welcome Guest ( Log In | Register )

back from court - 2 dates
contractor
post Fri, 30 Mar 2007 - 10:49
Post #1


Member


Group: Members
Posts: 52
Joined: 21 Aug 2006
From: London/Kent
Member No.: 7,279



I put in a small claims form for the 2 dates issue bask in October. Council contested juristriction of County Court. The council put in a motion to dismiss back in December which was rejected in chambers and I had to do a reply to defence. Finally went to court proper this morning where the judge ruled on their application to dismiss due to the court's juristriction.

Strauss v. Kensington very useful for me here (the old pay or contest but not both argument). Judge ruled to deny their motion and ruled that the county court did in fact have juristriction to rule, although the Judge seemed to have already laid into them on other parts of thier argument (I just shut up during that part!).

I will now get my day in court to discuss the matter proper. It's been a hard slog so far (court twice without discussing the real issue) and I wonder what else Bexley will try to put in the way during allocation. (Council solicitor asked for 28 days rather than 14 for submission of defence proper, Judge gave them to 20/4).

Onwards we go....

This post has been edited by nemo: Fri, 19 Oct 2007 - 14:35
Go to the top of the page
 
+Quote Post
2 Pages V   1 2 >  
Start new topic
Replies (1 - 19)
Advertisement
post Fri, 30 Mar 2007 - 10:49
Post #


Advertise here!









Go to the top of the page
 
Quote Post
Teufel
post Fri, 30 Mar 2007 - 16:12
Post #2


Member


Group: Members
Posts: 6,783
Joined: 6 Jul 2006
Member No.: 6,518



keep at 'em !
Go to the top of the page
 
+Quote Post
DW190
post Fri, 30 Mar 2007 - 19:14
Post #3


Member


Group: Members
Posts: 4,433
Joined: 19 Oct 2003
From: Lancashire
Member No.: 436



QUOTE (alennon @ Fri, 30 Mar 2007 - 11:49) *
I put in a small claims form for the 2 dates issue bask in October. Council contested juristriction of County Court. The council put in a motion to dismiss back in December which was rejected in chambers and I had to do a reply to defence. Finally went to court proper this morning where the judge ruled on their application to dismiss due to the court's juristriction.

Strauss v. Kensington very useful for me here (the old pay or contest but not both argument). Judge ruled to deny their motion and ruled that the county court did in fact have juristriction to rule, although the Judge seemed to have already laid into them on other parts of thier argument (I just shut up during that part!).

I will now get my day in court to discuss the matter proper. It's been a hard slog so far (court twice without discussing the real issue) and I wonder what else Bexley will try to put in the way during allocation. (Council solicitor asked for 28 days rather than 14 for submission of defence proper, Judge gave them to 20/4).

Onwards we go....


Good on yah.

Keep a written record of all the time you have spent on the matter including researching. Your time can be claimed at £9.25 per hour. Travel at 40p per mile is reasonable. All your aprking costs and postages. Time soon mounts up when researching.


--------------------
DW190

BLUNT PENCILS ARE MORE RELIABLE THAN SHARP MEMORIES

|^^^^^^^^^^^\||
|www.PePiPoo.com_||'""|""\_____
|_________________||__ |__|____|)
|(@) |(@)""**|(@)(@)**|(@)|(@)

Frequently Asked Questions
Go to the top of the page
 
+Quote Post
chriss
post Mon, 2 Apr 2007 - 03:05
Post #4


Member


Group: Members
Posts: 59
Joined: 20 Mar 2006
Member No.: 5,060



QUOTE (DW190 @ Fri, 30 Mar 2007 - 19:14) *
Keep a written record of all the time you have spent on the matter including researching. Your time can be claimed at £9.25 per hour. Travel at 40p per mile is reasonable. All your aprking costs and postages. Time soon mounts up when researching.


Does "parking costs" include further PCNs because it's more convenient and cheaper to park on double yellows than waste more of the £9.25/hour walking from the closest council carpark?

I am trying to work out how to legitimately claim a PCN back as a cost of attending a hearing against the council for unlawfully issued PCNs. I think it's a legitimate parking charge.
Go to the top of the page
 
+Quote Post
contractor
post Mon, 17 Sep 2007 - 18:35
Post #5


Member


Group: Members
Posts: 52
Joined: 21 Aug 2006
From: London/Kent
Member No.: 7,279



I have finally got a date for my case:) 10am, 19th October 2007 @ Dartford CC.

Time to get my skeleton watertight.

I am going with:

Restitution due to Ultra Vires/ticket not a PCN therefore outside of stat based on LBB vs. Ajudicator. To me this trumps any argument around ticketing process/
Negligence by council (not an honest mistake) - Wandsworth vs Al's Bar/Adjudicators Annual report
Onus is on issuer to ensure thier process is legal. Misunderstanding of legality is never an acceptable argument (well it has never worked for drivers)

I guess I don't need to argue juristriction as we have done that to death and the court has already agreed I can argue my case in CC.

ho ho ho
Go to the top of the page
 
+Quote Post
DW190
post Mon, 17 Sep 2007 - 20:02
Post #6


Member


Group: Members
Posts: 4,433
Joined: 19 Oct 2003
From: Lancashire
Member No.: 436



QUOTE (contractor @ Mon, 17 Sep 2007 - 19:35) *
I have finally got a date for my case:) 10am, 19th October 2007 @ Dartford CC.

Time to get my skeleton watertight.

I am going with:

Restitution due to Ultra Vires/ticket not a PCN therefore outside of stat based on LBB vs. Ajudicator. To me this trumps any argument around ticketing process/
Negligence by council (not an honest mistake) - Wandsworth vs Al's Bar/Adjudicators Annual report
Onus is on issuer to ensure thier process is legal. Misunderstanding of legality is never an acceptable argument (well it has never worked for drivers)

I guess I don't need to argue juristriction as we have done that to death and the court has already agreed I can argue my case in CC.

ho ho ho


You may wish to make a not of the time you have spent on the matter @ £9.25 per hour and note all you out of pocket expenses.


--------------------
DW190

BLUNT PENCILS ARE MORE RELIABLE THAN SHARP MEMORIES

|^^^^^^^^^^^\||
|www.PePiPoo.com_||'""|""\_____
|_________________||__ |__|____|)
|(@) |(@)""**|(@)(@)**|(@)|(@)

Frequently Asked Questions
Go to the top of the page
 
+Quote Post
contractor
post Tue, 18 Sep 2007 - 10:42
Post #7


Member


Group: Members
Posts: 52
Joined: 21 Aug 2006
From: London/Kent
Member No.: 7,279



Hi all.

One of the things I am worrying about is that the council says that Jackson's ruling does not apply retrospectively. I saw an earlier post (Teufel) that said RvR (marital rape) could be used. I have read it and am struggling to apply it to my circumstances. Is there any one here who can explain it in laymans terms? I also wonder if there is another counter-argument available too?

I thought that all J. Jackson did was give his interpetation of the law rather than change what the law was. Surely that means that his ruling applies to all PCNs under section 6 RTA 1991 irrespective of the date they were produced (or their respective template created)?

Thanks,

Andy
Go to the top of the page
 
+Quote Post
The Rookie
post Tue, 18 Sep 2007 - 13:23
Post #8


Member


Group: Members
Posts: 39,426
Joined: 9 Sep 2003
From: Warwickshire
Member No.: 317



ALL case law merely clarifies the interprtation of the legislated law, legistlated law cannot legally be applied retrospectively, case law can right back to when the legislated law it applies to was first introduced. HOWEVER in your case its different as you are seeking restitution based on their negligence, so if something was accepted as 'lawful' at the time and since made unlwful by case law (thinking of the parallel with unsigned NIP's!) it MAY be taken into account, but a number of factors such as how accepted it was as being lawful, and how they would justify it as being lawful even if it was subsequantly proven it wasn't!

However if the PCN was NOT inherently compliant with the legisation (2 dates) I think you are on good ground as that was one of teh first rulings made and has been clear in its application.

Simon


--------------------
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 8-0 PPC's
Go to the top of the page
 
+Quote Post
Wayne Pendle
post Tue, 18 Sep 2007 - 16:13
Post #9


Member


Group: Members
Posts: 1,038
Joined: 24 Mar 2006
Member No.: 5,088



\
Legal definition of restitution

restitution n. 1) returning to the proper owner property or the monetary value of loss. Sometimes restitution is made part of a judgment in negligence and/or contracts cases. 2) in criminal cases, one of the penalties imposed is return of stolen goods to the victim or payment to the victim for harm caused. Restitution may be a condition of granting defendant probation or giving him/her a shorter sentence than normal

In other words, the council, by not using a document called a Penalty Charge Notice as required in law, had no lawful right to extract monies as a result; in other words, the money is actually still yours and not the councils, all you are doing, is asking for your money back.

I'm sure Tony_medusa may be able to add to this, you might like to speak with either Tony or Neil Herron, it is highly likely that the Council will turn up with a Barrister who will attempt to get his client off on a CPR. You will need to be forewarned and forewarned should this be the case.

It is likely cool.gif because the Councils are using the same argument, that the Councils have been discussing the issue of restitution privately.
Go to the top of the page
 
+Quote Post
contractor
post Tue, 16 Oct 2007 - 16:50
Post #10


Member


Group: Members
Posts: 52
Joined: 21 Aug 2006
From: London/Kent
Member No.: 7,279



Hi,

Latest update.

The directions from the court were to serve skeleton arguments by 5th Oct (14 days before the case). I made sure mine were served in accordance with CPR rules. I had them hand delivered and signed for.

I only received my package today. I am in Court on Friday. I shall be hoping to get summary judgement based on non compliance of the Court's directions. Admission of late service is recognised by way of apology in their covering letter.

Their skel arg concentrates on Barnet, and how it doesn't apply to me as there was no prejudice against me????
Defence using Estoppel, quoting RE Jones v Waring/Gillow 1926 and Natwest v Somer, 2002
They try to make out that because I paid I accepted liability!
As I didn't complain before, I cannot complain now.
Abuse of process, quoting the Hayward vs Tunbridge Wells case (02/08/06) - but not the Southend one funnily enough!
The old "floodgates/interests of justice"

If anyone can advise on Estoppel I would be very grateful. I have washed/scanned the council's defence skel if anyone wants a copy.

Cheers,

Andy
Go to the top of the page
 
+Quote Post
legaladviser
post Tue, 16 Oct 2007 - 18:04
Post #11


Member


Group: Members
Posts: 1,358
Joined: 11 Apr 2007
Member No.: 11,552



QUOTE (contractor @ Tue, 16 Oct 2007 - 17:50) *
Hi,

Latest update.

The directions from the court were to serve skeleton arguments by 5th Oct (14 days before the case). I made sure mine were served in accordance with CPR rules. I had them hand delivered and signed for.

I only received my package today. I am in Court on Friday. I shall be hoping to get summary judgement based on non compliance of the Court's directions. Admission of late service is recognised by way of apology in their covering letter.

Their skel arg concentrates on Barnet, and how it doesn't apply to me as there was no prejudice against me????
Defence using Estoppel, quoting RE Jones v Waring/Gillow 1926 and Natwest v Somer, 2002
They try to make out that because I paid I accepted liability!
As I didn't complain before, I cannot complain now.
Abuse of process, quoting the Hayward vs Tunbridge Wells case (02/08/06) - but not the Southend one funnily enough!
The old "floodgates/interests of justice"

If anyone can advise on Estoppel I would be very grateful. I have washed/scanned the council's defence skel if anyone wants a copy.

Cheers,

Andy

They are talking out of their rear ends. The leading case on estoppel as a defence to restitution is Avon CC v Howlett, which laid down 3 very difficult tests for the defence to succeed:

(1) You must have represented in some way to the defendant that he can keep the money. Mere payment is not such a representation (the authority for this is Waring-Gillow which they have cited themselves). It must be some sort of collateral representation.

(2) the defendant must have acted in good faith to his detriment on the representation.

(3) the defendant must not be primarily at fault in causing the mistaken payment to be made.

I cannot see how the council can satisfy any of these elements. I would be very surprised if you have made any collateral rep that they can keep the money. I can see no detriment for the council. And it would be very hard to argue that they have done anything other than cause the mistaken payment to be made in the first place.

Go blow them out of the water! I'm surprised they even raised estoppel as it is extremely difficult to make out after Howlett.

This post has been edited by legaladviser: Tue, 16 Oct 2007 - 18:05
Go to the top of the page
 
+Quote Post
contractor
post Tue, 16 Oct 2007 - 18:19
Post #12


Member


Group: Members
Posts: 52
Joined: 21 Aug 2006
From: London/Kent
Member No.: 7,279



Legaladviser,

Yes, I finally got the gist of estoppel after reading through their argument. What they are saying is that because I paid it is an admission of liability (which is of course incorrect) and that I have in some way agreed they are entitled to the money, which again is a fallacy.

Thanks very much for confirming what I thought.

Andy
Go to the top of the page
 
+Quote Post
bama
post Tue, 16 Oct 2007 - 19:18
Post #13


Member


Group: Members
Posts: 28,898
Joined: 29 Nov 2005
Member No.: 4,323



Councils are desperate to resist restitution. If was not for their mass blatant fcuk ups running into many millions this would not be an issue. I am not a lawyer but they seem to be floundering with their arguements to me. Good words about this from the wise and good here I believe.
Every case like yours that goes on to win is another barrel in the hold. Nail 'em !.

I am getting the t-shirts (hall of fame) printed in advance...


--------------------
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.
Go to the top of the page
 
+Quote Post
bmwman
post Tue, 16 Oct 2007 - 21:30
Post #14


Member


Group: Members
Posts: 95
Joined: 14 Sep 2007
From: Eastbourne
Member No.: 13,749



Hi contractor

very interested to find out as much as I can on restitution and sequence of events. I am going to try seeking restitution on a PCN I received from Hasting council back in 2005 that only has one date. This was eventually paid to a collection agency can I claim the full amount from Hastings or just the £60.

Thank You
Go to the top of the page
 
+Quote Post
DW190
post Wed, 17 Oct 2007 - 01:00
Post #15


Member


Group: Members
Posts: 4,433
Joined: 19 Oct 2003
From: Lancashire
Member No.: 436



QUOTE (bmwman @ Tue, 16 Oct 2007 - 22:30) *
Hi contractor

very interested to find out as much as I can on restitution and sequence of events. I am going to try seeking restitution on a PCN I received from Hasting council back in 2005 that only has one date. This was eventually paid to a collection agency can I claim the full amount from Hastings or just the £60.

Thank You


QUOTE
res·ti·tu·tion (rst-tshn, -ty-)
n.
1. The act of restoring to the rightful owner something that has been taken away, lost, or surrendered. See Synonyms at reparation.
2. The act of making good or compensating for loss, damage, or injury; indemnification.
3. A return to or restoration of a previous state or position.


I would say all of it would be needed to put you back in the position before.


--------------------
DW190

BLUNT PENCILS ARE MORE RELIABLE THAN SHARP MEMORIES

|^^^^^^^^^^^\||
|www.PePiPoo.com_||'""|""\_____
|_________________||__ |__|____|)
|(@) |(@)""**|(@)(@)**|(@)|(@)

Frequently Asked Questions
Go to the top of the page
 
+Quote Post
Tony-Medusa
post Fri, 19 Oct 2007 - 16:25
Post #16


Member


Group: Members
Posts: 294
Joined: 17 Sep 2006
Member No.: 7,697



Congratulations!

Absolutely a fabulous one.
Good for the community, good for Justice to be SEEN to be done, and BE DONE.

After all they are paying back £8 million to the chat show fraudsters, why not the motorist. Floodgates? that is all their fault not ours.
Go to the top of the page
 
+Quote Post
Howard0181
post Sun, 21 Oct 2007 - 09:32
Post #17


Member


Group: Members
Posts: 616
Joined: 11 Feb 2007
Member No.: 10,571



Well done. Thats brilliant.

Last month I tried the same argument in county court. I had the same case law. Transport for London never even turned up. I lost. The judge just would not listen to any arguments.

My case was early September 2007. I wish there was something I could do.
Go to the top of the page
 
+Quote Post
Wayne Pendle
post Sun, 21 Oct 2007 - 16:15
Post #18


Member


Group: Members
Posts: 1,038
Joined: 24 Mar 2006
Member No.: 5,088



The thing is there is something you can do. We need to expose the inconsistancy of the County Court system by compiling a list of cases and the arguments used. Like adjudicators, the inconsistancies at this level are great, with Judges and adjudicators allowing one appeal in one area, then by using exactly the same arguments in other, it gets thrown out. Once we expose these Judges and their inconsistancies and allow people to see that the Court system is pretty much a lottery, then people will begin to see our legal system for what it really is.

Even though the 'campaign' isn't what you might call organised, you'll be surprised with what cases like yours has acheived. The authorities are struggling to hold it together and it's up to all of us to keep up the pressure, each Court case is a victory in that people are willing to stand up for themselves, regardless of whether one wins or not; Councils think that they can hold on for another 5 years then it will all go away, it's not going to, more Judicial reviews are imminent , the best the Government and the Councils can hope to do, is begin to operate within the law and in a fair, consistant manner.

This post has been edited by Wayne Pendle: Sun, 21 Oct 2007 - 18:51
Go to the top of the page
 
+Quote Post
Driver22
post Sat, 29 Nov 2008 - 03:12
Post #19


Member


Group: Members
Posts: 163
Joined: 28 Jun 2007
Member No.: 12,616



QUOTE (Wayne Pendle @ Sun, 21 Oct 2007 - 16:15) *
We need to expose the inconsistancy of the County Court system by compiling a list of cases and the arguments used. Like adjudicators, the inconsistancies at this level are great, with Judges and adjudicators allowing one appeal in one area, then by using exactly the same arguments in other, it gets thrown out. Once we expose these Judges and their inconsistancies and allow people to see that the Court system is pretty much a lottery, then people will begin to see our legal system for what it really is.


Here is a failed "two dates" case. Theme Traders v City of Westminster at Willesden County Court 12th October 2006 was thrown out as an abuse of process. The judge agreed with the council that the claimant should have appealed at the time the pcn's were issued. This appears to be a common defense by councils.
Go to the top of the page
 
+Quote Post
Teufel
post Sat, 29 Nov 2008 - 15:11
Post #20


Member


Group: Members
Posts: 6,783
Joined: 6 Jul 2006
Member No.: 6,518



but tye are not pcns and saldy it seems only a high cout atcion will rule on this issue
Go to the top of the page
 
+Quote Post

2 Pages V   1 2 >
Reply to this topicStart new topic
1 User(s) are reading this topic (1 Guests and 0 Anonymous Users)
0 Members:

 



Advertisement

Advertise here!

RSS Lo-Fi Version Time is now: Wednesday, 19th September 2018 - 12:03
Pepipoo uses cookies. You can find details of the cookies we use here along with links to information on how to manage them.
Please click the button to accept our cookies and hide this message. We’ll also assume that you’re happy to accept them if you continue to use the site.