Free Traffic Legal Advice

Quote from: H C Andersen on June 19, 2024, 09:22:23 pm

For fear of sounding like a record stuck in a groove, it matters not.

If the full penalty of £70 was paid before a CC was served (which the council's evidence shows is the case) then that's it, there is no further penalty to pay.

It's the law.

Really that's a point for the Adjudicator, assuming the case ever gets to the Adjudicator. Which seems unlikely as the PCN was fully paid and should have been closed.

Right now the issue is how to word the Out of Time application to ensure that it gets accepted, and no review will be required. So that the OP can recover the £464 already paid to the bailiff.

The Witness Statement has a box to tick to the effect that payment was made, when, how, to whom. The court officer won't be interested in the lawfulness or otherwise of the Penalty Charge, only whether the OP has a valid reason for being late with the Witness Statement. And whether the payment was made within the 28 day relevant period or not.

The OP is late because he believed his in-time payment had closed the case. He did not receive any Charge Certificate or an Order for Recovery that would have informed him that the matter was not closed. And hence did not know that a Witness Statement was required.

You may revise the wording of the communication to ensure it can be used as evidence if the council does not cooperate and you need to present this letter to the Ombudsman or make a claim for a breach.




Dear Parking Services

I refer to the above matter and the applicable PCN enforcement timetable you recently provided. I emphasise that this is your evidence.

My frustration at being pursued for a penalty is now compounded by my annoyance at the council's blatantly unlawful demand, which should have been evident with proper oversight. Your timeline is attached, from which I have concluded the following:

An entry indicates that a Notice to Owner (NTO) was dated and posted on 25 Oct.
Another entry shows a second NTO was produced, dated, and posted on 26 Oct.
An entry states a Charge Certificate (CC) was produced, dated, and posted on 27 Nov.
An entry shows payment of £70 received on 27 Nov.
An entry shows a CC posted on 27 Nov., citing and relying upon the NTO issued on 26 Oct., which, based on the council's evidence, was an unlawful notice.
A copy of the NTO dated 26 Oct. is provided in the council's evidence.
A copy of a receipt issued by the Council for payment of £70 dated 26 November 2023.

The following points are evident from the above:

a. The unlawful act of issuing a second NTO on 26 Oct.
b. Even if the CC was legitimate, the council's legal right to demand the surcharge penalty arose only on 29 Nov. when the CC (posted on 27 Nov.) was served.
c. The council acted unlawfully by refusing payment of the extant, unsurcharged penalty on 27 Nov.
d and pursuing the owner based on an unlawful NTO and CC.

The Enforcement Agent has taken an unlawful money transfer of £514 under the pain of removing my car. I will now file an Out of Time application to the Traffic Enforcement Centre.

Given the council's actions to date, I expect a successful outcome and anticipate that the council will not object to my application. However, considering the above, it would be in the authority's best interest to cancel the Charge Certificate and Order for Recovery now rather than referring the matter to the adjudicator.

In this context, having been made aware of your actions, should the council object to my submission and it be refused, I will refer this matter to your Complaints Procedure and, if necessary, the Ombudsman. Such action could only be seen as a failure to discharge the council's public duty to act fairly and reasonably.
My bank details for the return of the money are as follows [provide bank details here]. Once the money is returned, I will consider the matter solved.

I have copied your enforcement agent for their information.

OP, it's not really 'either' 'or'

You have paid the debt and this closes procedural matters unless you re-open them by submitting an OOT. There is no set time for this.

So, you could write to the authority and give them, say, 7 days in which to confirm that the sums paid to the enforcement agents will be refunded in full failing which you would submit an OOT. TEC's normal practice is to accept an OOT unless the authority object.

I see 3 scenarios:

1. They realise their error and refund the debt.
2. They continue to act as if they were judges in their own cause and do not comply and object to your OOT, which would probably be refused;
3. They do nothing.

1. They save themselves embarrassment which would arise with an adjudication hearing.
2. You receive their objection and raise the matter through the council's complaints procedure. IMO, an objection in light of the irrefutable facts puts them in the realm of failure to comply with their public law duty to act fairly and has nothing to do with enforcement of road traffic contraventions.
3. TEC approve your OOT at which point the authority must refer the matter to the adjudicator and any hearing would IMO carpet them for abusing their power.

My draft would need amending depending on which route you choose to take, I leave this to you.

Great news.

Write back.

Thank them for replying so quickly and clarifying that a NTO was posted on THURSDAY 26 October 2023. However, you can see that the error made by the authority in 2023 has been repeated in their last reply with their inability to calculate 28-day periods as follows:

Date of posting: Thursday 26 Oct.
Date deemed served: Monday 30th October.
Latest date of the 28-day period beginning on date of service: Sun. 26th Nov. and not 25 Nov. as stated by the council.

You would ask that the authority consider their position in this matter and accept that payment of £70 (which the council acknowledge was made on 26 Nov.) discharges the owner's legal obligation in this matter.