Help - Search - Members - Calendar
Full Version: Very sad today
FightBack Forums > Queries > Council Tickets & Clamping and Decriminalised Notices
Pages: 1, 2, 3, 4
mashkiach
Just lost this one. I think it unfair.
PRg
Any chance you can post it up as an image (screenshot perhaps)? I, and a lot of members here wont touch PDF files.
mashkiach
QUOTE (PRg @ Thu, 11 Nov 2010 - 15:28) *
Any chance you can post it up as an image (screenshot perhaps)? I, and a lot of members here wont touch PDF files.

just done it with http://www.convertpdftoimage.com/Default.aspx

dave-o
Does this relate to a previous thread? One case, one thread.

Difficult to comment on it without knowing the full story too.
mashkiach
QUOTE (dave-o @ Thu, 11 Nov 2010 - 15:47) *
Does this relate to a previous thread? One case, one thread.

Difficult to comment on it without knowing the full story too.


This one has never been on this forum.

This is what I had sent.

I was trying to go to this parking place but prevented from proceeding by circumstances beyond my control i.e. the other person took his time to vacating this spot. This I understand is allowed under rule 85 (7) (a) of the Traffic Management Act 2004.

Please give me a full explanation if I have by any chance erred but understand why I had done so in the first place.

And then this


There has been a procedural impropriety on the part of the enforcement authority.

The PCN served on me states as its definition of the payment period, “The full amount of the penalty charge is £120. The penalty charge is payable not later than the end of the period of 28 days beginning with the date on which this notice was served (the date it was delivered).”

By stating that the date on which this notice is served as the date it was delivered, the PCN fails to comply with The Civil Enforcement of Parking Contraventions (England) General Regulations 2007, Regulation 3(2) as quoted below.

“Service by post
3. — (1) Subject to paragraph (5), any notice (except a penalty charge notice served under regulation 9) or charge certificate under these Regulations —
(a)may be served by first class (but not second class) post; and
(b)where the person on whom it is to be served is a body corporate, is duly served if it is sent by first class post to the secretary or clerk of that body.
(2) Service of a notice or charge certificate contained in a letter sent by first class post which has been properly addressed, pre-paid and posted shall, unless the contrary is proved, be taken to have been effected on the second working day after the day of posting.
(3) In paragraph (2), “working day” means any day except—
(a)a Saturday or a Sunday;
(b)New Year's Day;
©Good Friday;
(d)Christmas Day;
(e)any other day which is a bank holiday in England and Wales under the Banking and Financial Dealings Act 1971 F1 .

(4) A document may be transmitted to a vehicle hire firm (as defined in regulation 5(4)) by a means of electronic data transmission where—
(a)the vehicle hire firm has indicated in writing to the person sending the notice or document that it is willing to regard a document as having been duly sent to it if it is transmitted to a specified electronic address; and
(b)the document is transmitted to that address.
(5) Nothing in this regulation applies to the service of any notice or order made by a county court.”

The effect of this non-compliance with Regulation 3(2) is that it creates uncertainty in the payment periods for both the 28 day and the 21 day payment periods. For example as Regulation 3(3)(a) excludes Saturday as a “working day”, a PCN that was posted on a Friday and subsequently delivered by post on a Saturday would not be deemed in law to be served until the following Tuesday. The wording as used on the TFL PCN has effect that service takes place on the Saturday and is contrary to the requirements of statute. Not only is Saturday service proscribed in law, this has a second and a far more prejudicial effect of shortening the prescribed payment periods by three days each.

The need for certainty in the payment period has been establish in the High Court and I refer to the binding ruling of Jackson J in R v The Parking Adjudicator (ex p Barnet) , who at paragraph 39 states:

"There are good policy reasons why PCNs should comply with the statuary requirements. These documents are issued in large numbers. They often change hands. A PCN may for example, be issued to a driver on one date and handed to the owner on a later date. When a PCN reaches the owner, he or she may wish to pay the discounted charge. There must always be certainty about the date when the notice was issued and the dates when the various periods for payment will expire."

Jackson J, further goes on to state in R v The Parking Adjudicator (ex p Barnet), paragraph 41:

"Mr Lewis submits that even if there was non-compliance in this respect, nevertheless no prejudice was caused, PCNs should not be regarded as invalid. I do not accept this submission. Prejudice is irrelevant and does not need 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 when certain specified statutory conditions are met. If the statutory conditions are not met, then the financial liability does not arise."

It is my contention that the TFL PCN that was served, is fataly flawed as it fails to meet the statutory conditions and therefore creates no financial liability, any attempt at enforcement would thus be ultra vires. I light of this I require that the PCN be cancelled forthwith.



dave-o
Shame we didn't have the chance to find you more points.
strollingplayer
Where did he get the idea that you can use CCTV to determine where 50cm from the edge of the carriageway is? My understanding is that for the contravention to be made out, the vehicle must be "at rest" - engine off, doors locked, windows closed. By the interpretation given here, it would seem to create a contravention of stopping your vehicle anywhere.
J_Edgar
I can't argue with his logic on the Saturday service issue, so back to the drawing board on that point. sad.gif

I do see a lack of common sense in his finding on the first point, maybe you were in contravention according to the letter of the law but a common sense approach would dictate that any reasonable person would wait a short period for a parking place that is obviously becoming vacant. This is the sort of trivial enforcement that Caroline Sheppard was talking to recently.

I am guessing this is TfL, so there probably was a fettered TWOC issue to be used but even so you may not have got that by the adjudicator in question.

DancingDad
The adjudicator has missed that all paperwork and the enforcement process flows from the presumed service date, as defined by the regs.
If a notice is delayed in the post by a week, the recipient may think that they ought to query it, and hence have a chance to query the presumed date.
But if the notice clearly says the delivered date is the date of service with no regard to the presumed or the regs, the recipient is likely to think ah, ok, everything starts from now...and therefore misses deadlines with no opportunity to "prove" the late delivery.

Wandering if we can work this into a review appeal for you ???

Thoughts anyone ?
J_Edgar
It is an interesting point DD.

I make the adjudicator correct in law but how correct is this in the real world of what actually happens. How easy is it to provide proof of late delivery, it predominantly relies on the good word of the appellant. An affidavit from the postman maybe, seems to be a lot of hassle.

It does raise questions vis a vis delivery date for the appellant and presumed date of service for the EA not being the same.

In the interests of justice maybe but as I see it a difficult argument to make against a closed shop.

Bogsy
That's a very harsh decision and lacks common sense in my view. Personally I would have included s.85(7)(b) in my defence as well.

(7)References in this section to parking include waiting, but do not include stopping where—
(a)the driver is prevented from proceeding by circumstances beyond his control or it is necessary for him to stop to avoid an accident, or
(b)the vehicle is stopped, for no longer than is necessary, for the purpose of allowing people to board or alight from it.

The purpose the vehicle was stopped was to faciltate alighting (there is no precedent to suggest this cannot apply to a lone driver) but it was not safe to alight until the other vehicle moved off.
Alexis
Spelling is all over the place!
dave-o
I'm sure seen "Edward Houghton" in another unfair adjudication.

Should we get a fund together for a "Independent?" mug to send him for Christmas?

Or a "My mum went to PATAS and all I got was this lousy adjudication" T-shirt.

Perhaps a "Hougton's conscience, at night" black postcard.
clark_kent
QUOTE (strollingplayer @ Thu, 11 Nov 2010 - 16:39) *
Where did he get the idea that you can use CCTV to determine where 50cm from the edge of the carriageway is? My understanding is that for the contravention to be made out, the vehicle must be "at rest" - engine off, doors locked, windows closed. By the interpretation given here, it would seem to create a contravention of stopping your vehicle anywhere.



I expect that he was doubled parked and since most cars are wider than 50cms its not that hard to judge it on cctv.

QUOTE (dave-o @ Thu, 11 Nov 2010 - 17:21) *
I'm sure seen "Edward Houghton" in another unfair adjudication.

Should we get a fund together for a "Independent?" mug to send him for Christmas?

Or a "My mum went to PATAS and all I got was this lousy adjudication" T-shirt.

Perhaps a "Hougton's conscience, at night" black postcard.



Why is it unfair? You haven't even seen the evidence.
hcandersen
Did your PCN also state the presumptions regarding "service", they often do? If not, the adjudicator seems to have presumed knowledge on your part that you would not have.

HCA


strollingplayer
QUOTE (clark_kent @ Thu, 11 Nov 2010 - 17:43) *
I expect that he was doubled parked and since most cars are wider than 50cms its not that hard to judge it on cctv.

I'm assuming that if the OP was waiting for a vehicle to leave a space, the engine was still running and therefore the vehicle was not "at rest". This clearly must be relevant, otherwise it effectively creates a contravention of "causing a vehicle to stop" outside of places where an actual prohibition on stopping isn't in force, which is absurd.
clark_kent
QUOTE (strollingplayer @ Thu, 11 Nov 2010 - 20:51) *
QUOTE (clark_kent @ Thu, 11 Nov 2010 - 17:43) *
I expect that he was doubled parked and since most cars are wider than 50cms its not that hard to judge it on cctv.

I'm assuming that if the OP was waiting for a vehicle to leave a space, the engine was still running and therefore the vehicle was not "at rest". This clearly must be relevant, otherwise it effectively creates a contravention of "causing a vehicle to stop" outside of places where an actual prohibition on stopping isn't in force, which is absurd.



If a vehicle is at rest its waiting having an engine running does not means it not waiting any more than having the hazards on would. If you are stopped in traffic, stuck at lights etc you are prevented from proceeding by reasons beyond your control or to prevent an accident anything else is 'waiting'. If you stopped in order to carry out a manouvre then that would be different from waiting for someone to vacate a parking space.
DancingDad
QUOTE (J_Edgar @ Thu, 11 Nov 2010 - 17:01) *
It is an interesting point DD.

I make the adjudicator correct in law ..........


I'm not so sure I do having thought on it a little.

I reckon he's confused the requirement of service actualy happening and the timing requirements.
The requirement of service is that a notice is actually received or at least believed to have been...So a PCN is served by fixing it to a car with the assumption that the driver will receive it or a postal notice is served by posting with the assumption of delivery and hence receiving rather then the actual act of having to hand it to the recipient.

But in many cases and certainly under decriminalised acts the date of service is a trigger point for fixed periods and deadlines that govern the enforcement process. It has to be a clearly defined date that both parties can work on else chaos would ensue.
The draftsman who wrote the rules on postal service obviously had this in mind when they wrote Para 3(2)

QUOTE
2) Service of a notice or charge certificate contained in a letter sent by first class post which has been properly addressed, pre-paid and posted shall, unless the contrary is proved, be taken to have been effected on the second working day after the day of posting.


With that there is a clear definition in law on when the notice is served...with the caveat "unless proven to the contrary"
The caveat is there to protect people who for whatever reason will not have received the notice on the defined date. They may have been on holiday, post may have been delayed and there has to be a burden of proof on the recipient given the wording.
There is no caveat or rider of any kind that says "when delivered" as the draftsman realised that such a definition can be too variable to be used as a critical timing point. And delivered does not mean the same as received and it is the act of receiving which is the true meaning of serving a document.

If an authority incorrectly gives the date of service by wrongly calculating the end date or leaves it in doubt by adding "When delivered" they are not only ignoring the prescribed defined date but are giving conflicting dates which could adversly affect the recipient. Which is I believe predjudicial.
With the "when delivered" added to a PCN or any other paperwork flowing from the PCN, there is not only the definite possibility that a person can be robbed of days but also can have days added, without any warning or clue that they really ought, in fact have, to query the date or risk running foul of deadlines.

If someone phones TPT (as I did a few weeks ago) and queries the deadline for submitting appeal reps, the guy at the far end simply asks for the date of notice and either counts very quickly on his calender or more likely uses a simple calculation program on his computer. Working out the date of service from the rules and thus the 28 day period. He doesn't ask for the date delivered, has no interest in if it was delivered early or indeed late, only the date of notice.
I would assume PATAS does the same, perhaps the OP would like to ring up and query it?

But what about the guy who has a TfL PCN which includes "when delivered" ??
He reads that and doesn't need to check further if there are defined dates of service, after all, an enforcement authority like TfL wouldn't get it wrong would they? Submits his reps and in the fullness of time has an NOR sent.
Which for some reason gets delayed in the post and arrives 2 weeks after the date of the NOR. He now firmly believes he has 28 days to appeal to PATAS but in reality could receive the CC in less then 3 weeks and now be out of time to submit an appeal or supply "proof to the contrary".

Not only unlawful but predjudicial and fails to meet the criterea of common law of fairness and proportionality.
mickR
QUOTE (clark_kent @ Thu, 11 Nov 2010 - 20:58) *
QUOTE (strollingplayer @ Thu, 11 Nov 2010 - 20:51) *
QUOTE (clark_kent @ Thu, 11 Nov 2010 - 17:43) *
I expect that he was doubled parked and since most cars are wider than 50cms its not that hard to judge it on cctv.

I'm assuming that if the OP was waiting for a vehicle to leave a space, the engine was still running and therefore the vehicle was not "at rest". This clearly must be relevant, otherwise it effectively creates a contravention of "causing a vehicle to stop" outside of places where an actual prohibition on stopping isn't in force, which is absurd.



If a vehicle is at rest its waiting having an engine running does not means it not waiting any more than having the hazards on would. If you are stopped in traffic, stuck at lights etc you are prevented from proceeding by reasons beyond your control or to prevent an accident anything else is 'waiting'. If you stopped in order to carry out a manouvre then that would be different from waiting for someone to vacate a parking space.


unless the person vacating the space was interfereing with passing trafic causing it to stop, whereby the first vehicle in the que may they deside to take the vacant space
clark_kent
QUOTE (DancingDad @ Thu, 11 Nov 2010 - 21:11) *
QUOTE (J_Edgar @ Thu, 11 Nov 2010 - 17:01) *
It is an interesting point DD.

I make the adjudicator correct in law ..........


I'm not so sure I do having thought on it a little.

I reckon he's confused the requirement of service actualy happening and the timing requirements.
The requirement of service is that a notice is actually received or at least believed to have been...So a PCN is served by fixing it to a car with the assumption that the driver will receive it or a postal notice is served by posting with the assumption of delivery and hence receiving rather then the actual act of having to hand it to the recipient.

But in many cases and certainly under decriminalised acts the date of service is a trigger point for fixed periods and deadlines that govern the enforcement process. It has to be a clearly defined date that both parties can work on else chaos would ensue.
The draftsman who wrote the rules on postal service obviously had this in mind when they wrote Para 3(2)

QUOTE
2) Service of a notice or charge certificate contained in a letter sent by first class post which has been properly addressed, pre-paid and posted shall, unless the contrary is proved, be taken to have been effected on the second working day after the day of posting.


With that there is a clear definition in law on when the notice is served...with the caveat "unless proven to the contrary"
The caveat is there to protect people who for whatever reason will not have received the notice on the defined date. They may have been on holiday, post may have been delayed and there has to be a burden of proof on the recipient given the wording.
There is no caveat or rider of any kind that says "when delivered" as the draftsman realised that such a definition can be too variable to be used as a critical timing point. And delivered does not mean the same as received and it is the act of receiving which is the true meaning of serving a document.

If an authority incorrectly gives the date of service by wrongly calculating the end date or leaves it in doubt by adding "When delivered" they are not only ignoring the prescribed defined date but are giving conflicting dates which could adversly affect the recipient. Which is I believe predjudicial.
With the "when delivered" added to a PCN or any other paperwork flowing from the PCN, there is not only the definite possibility that a person can be robbed of days but also can have days added, without any warning or clue that they really ought, in fact have, to query the date or risk running foul of deadlines.

If someone phones TPT (as I did a few weeks ago) and queries the deadline for submitting appeal reps, the guy at the far end simply asks for the date of notice and either counts very quickly on his calender or more likely uses a simple calculation program on his computer. Working out the date of service from the rules and thus the 28 day period. He doesn't ask for the date delivered, has no interest in if it was delivered early or indeed late, only the date of notice.
I would assume PATAS does the same, perhaps the OP would like to ring up and query it?

But what about the guy who has a TfL PCN which includes "when delivered" ??
He reads that and doesn't need to check further if there are defined dates of service, after all, an enforcement authority like TfL wouldn't get it wrong would they? Submits his reps and in the fullness of time has an NOR sent.
Which for some reason gets delayed in the post and arrives 2 weeks after the date of the NOR. He now firmly believes he has 28 days to appeal to PATAS but in reality could receive the CC in less then 3 weeks and now be out of time to submit an appeal or supply "proof to the contrary".

Not only unlawful but predjudicial and fails to meet the criterea of common law of fairness and proportionality.



In criminal and civil law a document is 'served' when delivered by post to the correct address.



http://www.justice.gov.uk/civil/procrules_...06.htm#IDA0CPVB



strollingplayer
QUOTE (clark_kent @ Thu, 11 Nov 2010 - 20:58) *
If a vehicle is at rest its waiting having an engine running does not means it not waiting any more than having the hazards on would.

So what is the difference between "waiting" and "stopping" in that case? Those are different restrictions with different signage.
clark_kent
QUOTE (strollingplayer @ Thu, 11 Nov 2010 - 21:57) *
QUOTE (clark_kent @ Thu, 11 Nov 2010 - 20:58) *
If a vehicle is at rest its waiting having an engine running does not means it not waiting any more than having the hazards on would.

So what is the difference between "waiting" and "stopping" in that case? Those are different restrictions with different signage.



Stopping is coming to a halt, waiting is what happens when stopped.
J_Edgar
I will spend some time giving further consideration to this but in terms of the argument I made in the appeal used by the OP, it is flawed in just the way the adjudicator interprets it. There is an argument that goes to prejudice but if prejudice occurs it is due to the wording of the legislation rather than the use of "date of delivery" on the PCN.
SchoolRunMum
I will just add my twopenn'orth that clearly the law is an ass if an independent adjudicator really thinks someone should pay 120 smackers for waiting for a manouevring car to vacate a parking space. This is surely outside of the intention of parking enforcement (and it just proves it's purely a money-making exercise as most of us know it is).

By that adjudicator's logic, we would all have to drive past a space where we've seen a driver get in and start a car. Why not just let the tenth driver in the queue have the space once old Mr Can't-Park-Won't-Park in his hat and tweed jacket has finally managed a seven-point turn to get his ridiculously unnecessary estate car out of the space.

Daft, daft, daft.
DancingDad
QUOTE (clark_kent @ Thu, 11 Nov 2010 - 21:21) *
...............In criminal and civil law a document is 'served' when delivered by post to the correct address.



http://www.justice.gov.uk/civil/procrules_...06.htm#IDA0CPVB



Not sure the law agrees with you, I certainly don't.

QUOTE
Method of service Deemed date of service
1. First class post (or other service which provides for delivery on the next business day) The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day; or
if not, the next business day after that day.


It's the substantialy same basic meaning as the date of service for postal PCNs.
Nowt about actually delivering to the correct address, only triggered by the act of posting.
And clearly shows a document is deemed served on posting plus a defined period to allow for delivery.

And reading through the link you provided, there are procedures for certifying method of posting, date of posting, alternative postal methods, email, fax and even personal service but nowhere can I see with a quick looksee that actual delivery comes into it or is refered to.
If I've missed that section, please post it so I can correct my belief.

In fact it seems to spend a great many words on the point I was trying to make...that there must be certainty of the date. And how to calculate and prove that date so all parties are working from the same hymn book.
Without that certainty, prescribed timings and deadlines cannot be certain.
A loose phrase on a PCN defining the date of service as the date delivered does not come anywhere near satisfying what criminal or civil law (from your link) requires nor what decrim acts specify
Bogsy
I've always found the "unless proved to the contrary" in regard to service not particularly helpful. How can you prove a letter was served a day or so later than the presumed service date? It's not as if dear old postie makes you sign for any notice served. All you have is your word which a council never accepts.

What bothers me in this case is that the adjudicator admits that the contravention is brief yet makes no attempt to apply the de minimis factor. It is quite obvious to any reasonable person that the double parking contravention was not intended to be used in this manner, it was to assist councils against bad parking or as the TMA clearly identifies the growing trend of "double parking". This case is another perfect example of why the public don't trust councils to enforce parking. In my view it is reasonable where you spot someone is about to vacate a parking place (particularly in an area where parking is difficult) to wait briefly on the carriageway in readiness to reverse into the parking place. Such an act is a common occurence so why penalise a person for doing something that is reasonable.

clark_kent
QUOTE (SchoolRunMum @ Thu, 11 Nov 2010 - 22:30) *
I will just add my twopenn'orth that clearly the law is an ass if an independent adjudicator really thinks someone should pay 120 smackers for waiting for a manouevring car to vacate a parking space. This is surely outside of the intention of parking enforcement (and it just proves it's purely a money-making exercise as most of us know it is).

By that adjudicator's logic, we would all have to drive past a space where we've seen a driver get in and start a car. Why not just let the tenth driver in the queue have the space once old Mr Can't-Park-Won't-Park in his hat and tweed jacket has finally managed a seven-point turn to get his ridiculously unnecessary estate car out of the space.

Daft, daft, daft.



a) we don't know how long he waited and b) since its on a red route stopping is prohibited anyway and for a reason
DancingDad
QUOTE (J_Edgar @ Thu, 11 Nov 2010 - 22:15) *
I will spend some time giving further consideration to this but in terms of the argument I made in the appeal used by the OP, it is flawed in just the way the adjudicator interprets it. There is an argument that goes to prejudice but if prejudice occurs it is due to the wording of the legislation rather than the use of "date of delivery" on the PCN.


Keep thinking on it JE.
While there may be a flaw in the argument presented I still cannot reconcile that a date which is defined by law in such a way to provide a certain trigger point for further actions can be replaced with a date which is uncertain to one or both parties.

Date of delivery is uncertain to the EA as Royal Mail cannot and does not guarantee timed delivery for anything but special delivery. They do not even regard a postal package as lost before 15 working days have elapsed.
Date of delivery can be uncertain to the recipient for many reasons. On holiday and finds the notice on the mat with all the junk mail on their return...pick which day out of a fortnight it was delivered on ?

Legislation provides the certainty, the caveat may provide some predjudice in that it can be difficult to prove the actual rather then deemed service.
But creating an uncertain date has to be predjudicial...and that is done with the term "date of delivery"
Bogsy
QUOTE (clark_kent @ Thu, 11 Nov 2010 - 22:43) *
a) we don't know how long he waited

We know it was brief as the adjudicator confirms this


b) since its on a red route stopping is prohibited anyway and for a reason

That's irrelevant if the contravention is code 26

big_mac
doesn't this ruling imply that you could be done for allowing someone out of a parking space / bus stop / side street?

If you could have continued along the highway, and were not actually prevented from making any forward progess, then it says even a brief stop may be a contravention.

sigh.
Bogsy
QUOTE (big_mac @ Thu, 11 Nov 2010 - 23:08) *
doesn't this ruling imply that you could be done for allowing someone out of a parking space / bus stop / side street?

If you could have continued along the highway, and were not actually prevented from making any forward progess, then it says even a brief stop may be a contravention.

sigh.


Yep.......unbelievable is'nt it. Morons!

If there is to be a review of this decision then it should be based on the interest of justice because de minimis should apply as well as the purpose behind the 50cm rule, the TMA does not make reference to "double parking" for no reason.
strollingplayer
QUOTE (clark_kent @ Thu, 11 Nov 2010 - 22:09) *
Stopping is coming to a halt, waiting is what happens when stopped.

That's not a helpful definition, since by this definition stopping always results in waiting.

QUOTE (Bogsy @ Thu, 11 Nov 2010 - 22:54) *
That's irrelevant if the contravention is code 26

I have to agree here - potential de minimis if it's off a red route, and possible "wrong contravention" (vs 48) if it's on a red route.
Neil B
I'm struggling to get a good image of what 'Uncle Ted' actually said (always had him down as a good guy from previous - but Dave says he recalls bad). All balances I suppose so give him the benefit of the doubt on independence maybe?

On the 'service issue' I have to agree with JE. I see what DD is saying but I can't see anywhere that the OP attempted to dispute or 'show otherwise' a date of service. Hence the point is lost.

If the suggestion there is that by (helpfully) explaining the Reg on service (not a requirement) they have created the potential for prejudice then it could only be the law itself that would need to be challenged. The Adjudicator could not possibly find on that point as far as I have read.

-
As for the rest. Pics or full circumstance would maybe help.
DancingDad
QUOTE (Neil B @ Fri, 12 Nov 2010 - 00:11) *
.............If the suggestion there is that by (helpfully) explaining the Reg on service (not a requirement) they have created the potential for prejudice then it could only be the law itself that would need to be challenged. The Adjudicator could not possibly find on that point as far as I have read. ..........


Sorry to labour this but they haven't helpfully explained the rules on service. They have incorrectly defined it as the date of delivery.
It isn't the date of delivery.
It is the prescribed assumed date unless proven to the contrary.
Neil B
QUOTE (Bogsy @ Thu, 11 Nov 2010 - 23:14) *
QUOTE (big_mac @ Thu, 11 Nov 2010 - 23:08) *
doesn't this ruling imply that you could be done for allowing someone out of a parking space / bus stop / side street?

If you could have continued along the highway, and were not actually prevented from making any forward progess, then it says even a brief stop may be a contravention.

sigh.


Yep.......unbelievable is'nt it. Morons!

If there is to be a review of this decision then it should be based on the interest of justice because de minimis should apply as well as the purpose behind the 50cm rule, the TMA does not make reference to "double parking" for no reason.


Having now read Uncle Ted's short, dismissive opening paragraph I now need no pics and concur with all those that find this ridiculous.

-------------

On the dates --- quick about turn.

I was wrong, the Regs regarding service were not described as being on the PCN (some do). They were quoted to attempt a point in appeal.

I still agree with JE though. The 'date it was delivered' is wholly correct and in line with legislation.

Bogsy makes the point that the Regs are ridiculous. Yes, all difficult to prove as he says but all we have and, as I said earlier, only a challenge to the legislation itself would resovle that.
Neil B
QUOTE (Neil B @ Fri, 12 Nov 2010 - 00:34) *
I still agree with JE though. The 'date it was delivered' is wholly correct and in line with legislation.


Oooooo - another about turn. Is it though?? Regs don't avtually say anything about delivery -- BUT I think the act of 'service' being delivery kinda covers it?

QUOTE (Bogsy @ Thu, 11 Nov 2010 - 23:14) *
QUOTE (big_mac @ Thu, 11 Nov 2010 - 23:08) *
doesn't this ruling imply that you could be done for allowing someone out of a parking space / bus stop / side street?

If you could have continued along the highway, and were not actually prevented from making any forward progess, then it says even a brief stop may be a contravention.

sigh.


Yep.......unbelievable is'nt it. Morons!



Isn't there some law against driving off if you run someone over?? Not for Councils with CCTV or, and I really wouldn't be surprised, an enthusiastic CEO !!!!!
Scaramouche
QUOTE (mashkiach @ Thu, 11 Nov 2010 - 15:47) *
QUOTE (PRg @ Thu, 11 Nov 2010 - 15:28) *
Any chance you can post it up as an image (screenshot perhaps)? I, and a lot of members here wont touch PDF files.

just done it with http://www.convertpdftoimage.com/Default.aspx





I have read every single word from each contributor, and reply using the OP's quote for everyone's convenience when this post is read, though not mine at present, since it does not appear as I write this, so I refer to my handwritten notes, copied verbatim from the decision. Now would seem the time to be proactive rather than reactive..................

1. Assuming the OP wishes to contest this and seek a review, either at PATAS or a JR at the High Court, it would be essential to be privy to all documents concerning this matter. OP, what do you say to that suggestion?

2. I am not prepared to take a stab in the dark; but, obviously, I share everyone's disappointment regarding this decision for reasons already eloquently expressed.

3. It would seem to me that, in order to be able to even obtain a review of this decision, thereby strongly suggesting that the adjudicator has fallen into error, and it is in the interests of justice that a review should take place, we really do need to see those documents urgently and introduce fresh evidence and arguments in support.

4. I have my own views regarding the issues, in particular the wholly unreasonable and, indeed, presumptuous reasoning surrounding the service/date of receipt issue. And, indeed, there has been a famous case regarding this concerning the issue of a NIP some years back, which involved a postal strike, and which was resolved in favour of the appellant - please note, PATAS, if you are watching, the correct spelling of this epithet. From experience last May, quid multa - to cut a long story short, DD! - I, myself, delayed going to work, thus losing money, for a whole two weeks in order to be at home when the post was delivered so as to obtain a witness statement from the postman as, according to a perceived threat from my favourite Council, I wanted proof of date of service - rather, receipt - of a NIP. (Thankfully, this never arrived.) Therefore, the adjudicators remarks in this regard are not just wholly unreasonable, but also totally impractical, as has already been expressed.

So, if we or a few trusted members could receive what is necessary in order to assist - and I trust that others will include me in that category - I am prepared to help, as is my best mate who, as fate would have it, was a solicitor and is now a postman! - in the preparation of any application for a review. Indeed, as a down-to-earth Cambridge graduate etc and maverick such as I am, having helped me in all sorts of legal areas over the last ten years, not least a similar case such as this, which is still live, we would both relish the challenge.

Regards

S. (Son of a Welsh miner and practitioner of "the universal language of mankind" i.e. musician!)



QUOTE (DancingDad @ Fri, 12 Nov 2010 - 00:19) *
QUOTE (Neil B @ Fri, 12 Nov 2010 - 00:11) *
.............If the suggestion there is that by (helpfully) explaining the Reg on service (not a requirement) they have created the potential for prejudice then it could only be the law itself that would need to be challenged. The Adjudicator could not possibly find on that point as far as I have read. ..........


Sorry to labour this but they haven't helpfully explained the rules on service. They have incorrectly defined it as the date of delivery.
It isn't the date of delivery.
It is the prescribed assumed date unless proven to the contrary.


No apologies needed, as far as I am concerned, pater!

Just posting this again, as it seems to be positioned at the top of my list, in case it is missed.
DancingDad
QUOTE (Neil B @ Fri, 12 Nov 2010 - 00:34) *
...........I still agree with JE though. The 'date it was delivered' is wholly correct and in line with legislation.
............


Which legislation Neil ?

Not the rules on postal service
QUOTE
(2) Service of a notice or charge certificate contained in a letter sent by first class post which has been properly addressed, pre-paid and posted shall, unless the contrary is proved, be taken to have been effected on the second working day after the day of posting.

Nor the criminal and civil rules that CK helpfully posted a link to.

To be fair I accept the concept of service being when delivered but still maintain that the written law says different, and I believe for good reason.
So I firmly believe that an adjudicator basing an argument on the the delivery, except in regard to the proved to the contrary bit, and openly disregarding the presumption that is enshrined in the regs is totally and utterly wrong.
Neil B
QUOTE (DancingDad @ Fri, 12 Nov 2010 - 00:53) *
QUOTE (Neil B @ Fri, 12 Nov 2010 - 00:34) *
...........I still agree with JE though. The 'date it was delivered' is wholly correct and in line with legislation.
............


Which legislation Neil ?

Not the rules on postal service
QUOTE
(2) Service of a notice or charge certificate contained in a letter sent by first class post which has been properly addressed, pre-paid and posted shall, unless the contrary is proved, be taken to have been effected on the second working day after the day of posting.

Nor the criminal and civil rules that CK helpfully posted a link to.

To be fair I accept the concept of service being when delivered but still maintain that the written law says different, and I believe for good reason.
So I firmly believe that an adjudicator basing an argument on the the delivery, except in regard to the proved to the contrary bit, and openly disregarding the presumption that is enshrined in the regs is totally and utterly wrong.


Yes. I already posted a retraction at 00.50. I am more open minded -- BUT -- concerned that your argument may actually undermine some of those we frequently use in other cases.

you seem to have since found at least one ally to the view!!
strollingplayer
The important part of those definitiions is that they give the date on which service is presumed. The actual date of service will indeed be the date on which it is delivered.
Neil B
QUOTE (strollingplayer @ Fri, 12 Nov 2010 - 01:02) *
The important part of those definitiions is that they give the date on which service is presumed. The actual date of service will indeed be the date on which it is delivered.


Yep. That's where I'm at. What else could it be? Intention of Regs seems clear.

QUOTE (DancingDad @ Fri, 12 Nov 2010 - 00:19) *
QUOTE (Neil B @ Fri, 12 Nov 2010 - 00:11) *
.............If the suggestion there is that by (helpfully) explaining the Reg on service (not a requirement) they have created the potential for prejudice then it could only be the law itself that would need to be challenged. The Adjudicator could not possibly find on that point as far as I have read. ..........


Sorry to labour this but they haven't helpfully explained the rules on service. They have incorrectly defined it as the date of delivery.
It isn't the date of delivery.
It is the prescribed assumed date unless proven to the contrary.


Back again!

No it isn't! Where do Regs say that? The Schedule on contents of a Reg 10 are clear ''service''. Service is delivery and the Reg on service is just a guide for processing purposes IMO. Nothing is ''prescribed''.I see the OP as challenging on the contents of PCN. The PCN was correct in its description of the deadlines.
Scaramouche
edited
J_Edgar
To throw a cat amongst the pigeons.

The actual date of service is the date a notice is delivered, it can be a Saturday.
The presumed date of service is the second working day after posting, it cannot be a Saturday. Caveat, unless shown otherwise.

If a notice is posted on a Friday and delivered on a Saturday that states the date of service is the date it is delivered, then to the recipient day 1 is Saturday.
However the EA cannot know that the notice was delivered on the Saturday and they must presume that day 1 is the following Tuesday. They are not in a position to show otherwise.

Thus we have two different start points and ergo we must have two different end points for the payment period.
This is untenable as the High Court has ruled that there must be certainty in the payment period. There cannot be certainty in the payment period if the EA and the recipient believe that the start point and end points are different dates.

QUOTE
The need for certainty in the payment period has been establish in the High Court and I refer to the binding ruling of Jackson J in R v The Parking Adjudicator (ex p Barnet) , who at paragraph 39 states:

"There are good policy reasons why PCNs should comply with the statuary requirements. These documents are issued in large numbers. They often change hands. A PCN may for example, be issued to a driver on one date and handed to the owner on a later date. When a PCN reaches the owner, he or she may wish to pay the discounted charge. There must always be certainty about the date when the notice was issued and the dates when the various periods for payment will expire."


The only logical way to restore certainty in the payment period, remembering the fact that the EA cannot know of the Saturday delivery is to remove from the PCN, that the date of service is the date it is delivered. Stating the date of service as the date of delivery may not be in conflict with the adjudicators interpretation of the law, however the adjudicators interpretation of the law cannot be correct if it leads to uncertainty in the payment period as such uncertainty is proscribed by the High Court.
Scaramouche
The date of service may well equal the date of delivery; however, neither the date of service nor the date of delivery, or the two taken together to mean the same concept, necessarily equal the receipt by the addressee. Hence, the caveat.

To my mind, the reasoning re irrebuttable presumption is unreasonable in terms of his basic premise.

Sorry, but here is another cat: http://www.fsp-law.com/article.aspx?id=114
DancingDad
QUOTE (strollingplayer @ Fri, 12 Nov 2010 - 01:02) *
The important part of those definitiions is that they give the date on which service is presumed. The actual date of service will indeed be the date on which it is delivered.


I'm still at it.... wink.gif

Only, according to the regs if "proved" re the bit I've put in bold

IMO the concept of service is historical and stems from times when papers had to be served in person directly to the recipient.... so not only delivered but also received.But it's totally impractical to serve papers in person given the numbers of legal documents that are created every day so allowance is given to send by post, email, fax and there are rules of service defined in law governing service in these cases.
And in the case of postal service these rules do not include delivery except loosly or inferred in the unless proven otherwise caveat

So not only IMO does defining date of service as the date of delivery create (as JE has pointed out in more measured terms then I) two conflicting dates but unless it can be supported by summat in leglislation IMO it is incorrect for an adjudicator to dismiss any argument simply on the grounds that date of service is the date of delivery

To me, the rules of service give a clearly defined date that a recipient can contest if they can show reasonable grounds they didn't receive on that day. ie on holiday, postal strike.
But service cannot be simply taken as the date of delivery except in a loose, not legislative way
Scaramouche
QUOTE (DancingDad @ Fri, 12 Nov 2010 - 08:50) *
QUOTE (strollingplayer @ Fri, 12 Nov 2010 - 01:02) *
The important part of those definitiions is that they give the date on which service is presumed. The actual date of service will indeed be the date on which it is delivered.


I'm still at it.... wink.gif

Only, according to the regs if "proved" re the bit I've put in bold

IMO the concept of service is historical and stems from times when papers had to be served in person directly to the recipient.... so not only delivered but also received.But it's totally impractical to serve papers in person given the numbers of legal documents that are created every day so allowance is given to send by post, email, fax and there are rules of service defined in law governing service in these cases.
And in the case of postal service these rules do not include delivery except loosly or inferred in the unless proven otherwise caveat

So not only IMO does defining date of service as the date of delivery create (as JE has pointed out in more measured terms then I) two conflicting dates but unless it can be supported by summat in leglislation IMO it is incorrect for an adjudicator to dismiss any argument simply on the grounds that date of service is the date of delivery

To me, the rules of service give a clearly defined date that a recipient can contest if they can show reasonable grounds they didn't receive on that day. ie on holiday, postal strike.
But service cannot be simply taken as the date of delivery except in a loose, not legislative way


I agree that the inclusion of the "date of service" on the PCN is/was potentially prejudicial; however, I am yet to see it in its whole context! Can the OP give some input here, please? I doubt very much that, under the current regime and changing of the guard(ess!), that PATAS would be interested in overturning this decision on this point alone - they look after their own. I reiterate my request for the paperwork.
J_Edgar
Based on the logic in my post above there can be two stings to an argument that "date of delivery" cannot be used on a PCN.

Ultra Vires.

It is incumbent on the EA not to misinform the recipient of the PCN of their true position in law any information they provide to the recipient must be wholly consistent with the systems they have in place to trigger dates.

Wednesbury unreasonableness.

The EA has the option to send notices by means of recorded/signed for delivery they chose not to. It is wholly unreasonable for them to inform a recipient of a date for service that they cannot know and have no right to find out, they must therefore inform the recipient in a manner that is wholly consistent with the systems that they themselves have in place.
hcandersen
QUOTE
This one has never been on this forum.


So we've only got one side of the story, in particular the information included within the PCN.

Suggest as a min. that this is posted.

As regards the contravention, the TMA makes it absolutely clear that the exemption of stopping may only be relied upon when the driver is prevented from progressing - not that he chooses not to, but is prevented from. This wasn't the case here, on the basis of what's been posted, so this is not an available defence.


HCA
Scaramouche
IMO as a basic minimum, if the OP wants to pursue this, and as quite a few people are attempting to assist, a few more documents as well should be posted as have occurred in the pipeline in this matter.
hcandersen
Spot on.

HCA
This is a "lo-fi" version of our main content. To view the full version with more information, formatting and images, please click here.
Invision Power Board © 2001-2024 Invision Power Services, Inc.