http://forums.pepipoo.com/index.php?showto...iew=getlastpostI am not really the expert! Just used it more than anyone else I guess.
QUOTE (shizo @ Sun, 30 Oct 2022 - 12:26)
QUOTE (cp8759 @ Fri, 28 Oct 2022 - 21:04)
Those are all interesting questions but none of them give you a defence and frankly I think the contravention cannot be reasonably contested.
There is a conflation issue in the wording of the PCN, so if you fancy a technical challenge we can draft something for you.
I would love a technical challenge, at least i can appeal it and see how it goes. Although i don't have high hopes because the system is designed to milk the motorists as much as it possibly can and they probably will send one of their fob off replies. Any draft is appreciated and will let you know the outcome, thanks.
The PCN is a nullity and unenforceable because of its wording defects. According to the relevant legislation, there are two distinct periods in which the recipient may either pay the penalty charge or make representations. However, on the same page of the said PCN the two periods are conflated which results in confusion and prejudice, at least, and culminating in illegal confluence. I refer to the following citation verbatim: - "If you fail to pay the Penalty Charge or make representations before the end of the period of 28 days beginning with the date of service of this notice, an increased charge of £195 may be payable." While there have been numerous decisions upon this issue, I do believe it to be a simple matter of syntax in that the conditional phrase "if you fail to pay the penalty charge notice or make representations...." clearly refers to and governs grammatically both periods and I contend that any other interpretation would fall under Wednesbury unreasonableness. I refer to the Barnet case at the High Court, which set a legal precedent, of course, in terms of the statutory obligations placed upon an Authority in its production of penalty charge notices, what they must contain in order to justify their legal enforcement and, lastly, that prejudice does not need to be proven i.e. R (Barnet) v The Parking Adjudicator (2006) EWHC 2357 (Admin): "Prejudice is irrelevant and does not have to be established. The 1991 Act creates a scheme for the civil enforcement of parking control. Under this scheme motorists become liable to pay financial penalties if certain specified statutory conditions are met. If the statutory conditions are not met, then the financial liability does not arise." While I accept that the period is correctly stated on page1 of the said PCN, the fact remains that the conflation of the two periods in the statement on page 3 creates ambiguity, confusion and could even be interpreted that a charge certificate may be served even if representations have been made. In light of the above I would be most grateful if the Representation is given due consideration and the PCN cancelled on this occasion.
Or:
The wording on the Penalty Charge Notice produced does not comply with the legal requirements since there is a clear, and incorrect, confluence/conflation of the two provisions regarding payment and making representations.
"If you fail to pay the Penalty Charge or make representations before the end of the period of 28 days beginning with the date of service of this notice, an increased charge of £195 may be payable ."
Therefore, this PCN appears to me to conflate the 28 period for payment, which begins with the date of the penalty charge notice, with the 28 days with the making of representation, which begins with the date of the service of the notice. It also is ambiguous. It may easily be read as a threat of a charge certificate being issued for failure to pay or in the circumstances where representations have been made. The notice would more appropriately "if you fail to pay the penalty charge notice and do not make representations within 28 days beginning with the date of service of this notice…".
In my view there is a serious possibility of real prejudice here. The fact that I may not have been prejudiced by this is not a "cure" to the substantive defect. The defect renders the penalty unenforceable. The decision in R (Barnet) v The Parking Adjudicator (2006) EWHC 2357 (Admin) make clear the importance of complying with the requirements of the legislation. Mr Justice Jackson said in that case "Prejudice is irrelevant and does not have to be established. The 1991 Act created a scheme for the civil enforcement of parking control. Under this scheme motorists become liable to pay financial penalties if certain specified statutory conditions are met. If the statutory conditions are not met then the financial liability does not arise."
In view of the above, I request that the PCN be cancelled.