In the present case the penalty charge notice issued by Birmingham City Council for an alleged bus lane contravention has progressed to the stage of enforcement under a warrant of control issued pursuant to Part 75 of the Civil Procedure Rules and the Traffic Enforcement Centre procedure. The sum of £190 now demanded by the enforcement agent represents the principal penalty, statutory surcharges, and the £75 compliance stage fee prescribed by paragraph 1 of Schedule 1 to the Taking Control of Goods (Fees) Regulations 2014. If payment is not made before the expiry of the compliance stage, the enforcement agent is entitled to attend the debtor's address and add a further £235 enforcement stage fee under paragraph 2 of the same Schedule, irrespective of whether any goods are removed.
The only lawful method to prevent the enforcement process from continuing and to reopen the underlying merits of the PCN at this stage is to submit a statutory declaration or witness statement to the Traffic Enforcement Centre under CPR 75.5 and 75.8, accompanied by an application to file it out of time under CPR 75.8(2). The grounds on which such an application can be made are limited to the statutory categories set out in the relevant form (TE9 or PE3 for moving traffic contraventions), typically that the original PCN was not received, that a representation was made but not responded to, or that an appeal was lodged but not determined. In your case the explanation that the correspondence was mislaid or left unopened is unlikely, without more, to amount to good reason for an extension of time. The court will require a credible account supported by evidence explaining why you were prevented from responding within the statutory period, in accordance with the guidance in cases such as Hackney LBC v Okoro [2011] EWHC 3566 (QB).
If the out-of-time application is granted, the warrant of control is automatically revoked pursuant to CPR 75.8(5) and the enforcement agent must cease action. This would enable you to revert to the earlier stage of the statutory process and advance a substantive defence that entry into the bus lane was unavoidable due to roadworks or that signage indicated decommissioning of the lane. The evidential burden would then be upon you to produce contemporaneous proof of the obstruction and signage, supported if possible by photographs, video evidence, or traffic management orders obtained from the local authority under the Local Government (Access to Information) Act 1985. The relevant test for signage adequacy is derived from the principles in London Borough of Camden v The Parking Adjudicator [2011] EWHC 295 (Admin), namely whether the signage complied with the Traffic Signs Regulations and General Directions 2016 and was sufficient to inform the reasonable motorist.
Should the out-of-time application be refused, you may apply for a review under CPR 75.5(5) and CPR 75.8(6) by filing an N244 application within 14 days, seeking a hearing before a District Judge. This will attract a fee but will provide the opportunity to give sworn evidence as to why the statutory declaration could not be filed in time and why the refusal should be set aside. The District Judge will assess whether refusal would result in injustice in light of all the circumstances.
Strategically, you should lodge the out-of-time statutory declaration immediately to prevent further enforcement escalation, while also making a protective payment of the current £190 if you have the means to do so. This payment will prevent the £235 enforcement stage fee from being added, and if your application succeeds, the council will be required to refund the payment. The risk in paying now is that recovery of the sum will be contingent upon success in the statutory declaration process, but the risk in not paying is that you will be liable for an irrecoverable additional £235 plus possible removal and storage fees under paragraphs 3 and 4 of the 2014 Fees Regulations.
The remedies therefore are, in combination, to submit a TE9 statutory declaration and TE7 application to file out of time with detailed evidence of the misdelivery or misplacement of the correspondence, to prepare contemporaneous evidence for the substantive defence on signage and roadworks if the matter is reinstated, and to make a protective payment to limit exposure to further enforcement fees. This approach preserves your legal position under the statutory scheme, avoids unnecessary escalation of enforcement costs, and maximises the prospect of both revoking the warrant and succeeding on the substantive merits.
