Free Traffic Legal Advice

hi All,

I am so glod to find this forum. Briefly speaking I lived in a flat and royal mail service here was unreliable. The original PCN was lost, I got a charge certificate, waited for order or recovery but never got one.

The best evidences I have for the missing order of recovery is that I have sent a mail to TEC querying whether order of recovery has been servied or not, and that happened to be within 21 days of the alledged date of order of recovery (If I had got the order of recovery, why asking order for recovery instead of sending the TE9 directly?). I have also followed a TE9 sent blindly, without getting any response from TEC, without knowing whether an order for recovery has been sent or not, but that was outside of 21 days. Then at last I have to file the TE7 out of time application.

Unfortuantely the TE7 was objected by local authority. Searching in the forum it looks like most TE7 will be objected by local authority and TEC will most likely allow the objection.
And then I will face the hard choice of whether to go with the N244 or not due to the preventive fee.

This is the lastest response I got from local authority, objecting the out of time witness statement. This is the first time I know the exact date of order of recovery was served is 18 Jan, which proved my first letter to TEC is withint 21 days.





-------- Line of events -----------
15/09/2023 PCN (lost), 14/11/2023 charge certificate (recieved), 10/11/2023 representation sent by email, 13/12/2023 Too late for Reps (received), 18/01/2024 Order of recovery served (lost).

05/02/2024: This my first letter to TEC, querying the order of recovery because I am wondering the order of recovery might get lost again.


27/02/2024: Without any response from TEC, I send a second letter with a TE9 from their website, hoping it could hit whether the order of recovery is served or not.


06/03/2024: Then on 6 March I got a response from TEC, indicating the TE9 is out of time and I have to fill a TE7:


06/03/2024: I reacted promptly on the same day:


With the TE7


10/04/2024: Then on 10 April I got the reciept from TEC:


11/04/2024: And on 11 April I got the objection from local authority as posted above.
------- End of events ----------

So my question is:
1. Is there anything I can do at the moment to persude TEC to allow my TE7?
2. If the TE7 is rejected as I expected, what is the chance to win if I file a N244, with my correspondence with TEC as the proof of not recieving the order of recovery? Judging from common sense, there is no point asking for order of recovery if I did get it. However, I am not familiar with British laws so I am not sure whether it will stand on court.
3. If I go with the N244, hearing or not? Is a judge without hearing as fair as one with hearing?
4. If there is a chance to win the N244, then is there a further chance to challegne the £100 or £255 fees and to get them back? It looks to me these non refundable fees are deliberately designed to prevent the N244, so that TEC and local authorities can freely object and reject the TE7 without duely consider the actual circumstances, thus deprive us our legal rights. Regarding the lost of mails, I can understand local authorities did nothing wrong, it is the problem with roymal mail. However, there is also nothing wrong from my side, so disregarding my TE7 does looks to be something wrong on the part of local authority and TEC. I am a bit surprised that these preventive fees run for so many year without being challanged.

Thanks a lot for any help!

Unless you're on a low income in receipt with a qualifying benefit for "fee remission" then there is zero chance of recovering your N244 fee.

I can't figure out from the documents posted what the alleged contravention is, or where it happened, or when it happened. So I can't really offer an opinion on whether or not you would prevail if the case got to the Adjudicator. However if you did get the case to the Adjudicator and then lost, the likely outcome is £70. £70 because the OfR will be revoked and the Charge Cert cancelled saving you £34.

As things stand the bill is £104 to close the matter. Versus an outlay of £212 (£108 + £104) if your N244 is not successful; for N244 fee plus PCN. Or a likely outcome of £178 outlay (£108 + £70) if your N244 is successful.

It's not about justice, it's about indirect taxation and the collection of it. Unfortunately you're unlikely to do better than £104.

It pains me to suggest such, but perhaps this is a case of cut your losses.

You're right about the type of hearing. A £108 on the papers requires a snappy well written submission to succeed. A £255 (uneconomic) hearing in person is very likely to succeed.

Thanks for all the helping advices!

@cp8759 I am interested to do the hearing if you all are waiting for a case to run the cost argument. Please do evaluate my evidences to see whether they are strong enough to back it.

From what I've seen from other people's experience, it's not difficult to win the N244 at hearing. But I am not quite familiar the relevent laws and procedures, without a McKenzie friend the chance to win the cost back is close to zero, then probably I will just pay the OfR.

On the other hand, if you have already considered the cost argument before and do find my case to be a suitable one then I will be happy to run it. The TE7 process is supposed to give people like me a fair chance, but by using the preventive court fees TEC and local authorities can arbitualy deny any application and leaving cost to us.

I will post the TEC's decision once I get it, and please let me know whether a McKenzie friend is available.

Thanks!

@Nosy Parker would you be able to assist with this one if @Neil B and I provide the arguments?

hi @Neil B, this is also the question I am concerning, because in order to claim the court fee back we not only need to prove my original OoT application is reasonable but also the local authority and TEC are at fault  by not allowing it.

My defence is like this: The first letter I sent to TEC asking whether my debt has been registered was sent on the 18th day after the order for recovery was sent. The window of TE9 submission is 21 days, so the enquiry letter was sent within the window. If I had received the order for recovery, I would send the TE9 directly. So this should be a valid proof I didn't receive the order for recovery although I am eagerly awaiting. While the local authority's argument is that they have sent the order for recovery and royal mail didn't return it, so they consider I received it, even though it is not a signed for mail and I am still asking TEC for whether the debt was registered at the same time. At least it looks to me that my proof should be the stronger one and should be accepted.

I believe if I go to hearing the judge will most likely allow the N244. But whether the judge will deem ignoring my proof as a fault, I am not sure. This is what I would like to hear from you. Thanks!

Quote from: cp8759 on June 14, 2024, 07:57:05 pm

@Nosy Parker would you be able to assist with this one if @Neil B and I provide the arguments?

Who is Nosy Parker?
I'm keen to see how your costs argument goes with a case one day but dubious about this one.
What are the known problems with mail and what evidence of that was submitted with OOT; because I can't see how the EA are at fault here with their SoT?
[/quote

@cross_legend the standard rule in county court proceedings is that the unsuccessful party has to pay the costs of the successful party, there is no requirement to show fault or unreasonable behaviour or anything of the sort. Part 27 of the Civil Procedure Rules disallows most costs in the small claims track, but these are Part 75 proceedings and not Part 27 proceedings, so the small claims track rules are irrelevant.

@Nosy Parker is a solicitor so if he's available it avoids any questions around rights of audience. In the alternative I could attend as your McKenzie friend, but whether I would be allowed to speak on your behalf would be at the absolute discretion of the judge.

As long as we can put together a proper witness statement exhibiting all the key documents, including in particular your correspondence with TEC, we should have more than enough to persuade the judge that on the balance of probabilities the OfR was not received and therefore an out-of-time application should be allowed. The point that then needs to be argued is that as the unsuccesful party, the applicant (i.e. the council) should pay the respondent's costs (i.e. your costs).

However we cannot guarantee that you will recover your costs, so ultimately you need to decide whether you want to take the risk of pursuing this further.

I am just wondering whether it is CCC or TEC that will be the unsuccessful party suppose the judge is willing to grant the cost?

The relevant practice direction in CPR 75 says -
"Any review of that order by a district judge will only be a review of the decision to refuse the application for further time for filing a statutory declaration or witness statement."

Based on that I would say the unsuccessful party would be TEC as your application has been refused by a TEC Court Officer.

I checked Part 75.2 of CPR, it states:

(a) the Centre is deemed to be an office of the County Court; and
(b) any officer of the Centre, in exercising its functions, is deemed to act as an officer of the County Court.

So it seems to be right that TEC is part of HMCTS and the fee is for the review. The local authority should be "the other party". I checked the letter from TEC, it appears TEC poses themself between local authority and me and make a "court decision without hearing". So even TEC has made a faulty decision it doesn't seem to be possible to get the fee back from them.

I also checked Part 44.2 of CPR. It does state in 2(a) that:

(a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party

as @cp8759 has mentioned.

But judging from the context around, this order of costs is fully at the judge's discretion. And in 4) it also states:

(4) In deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including –
(a) the conduct of all the parties;
(b) whether a party has succeeded on part of its case, even if that party has not been wholly successful; and
(c) any admissible offer to settle made by a party which is drawn to the court’s attention, and which is not an offer to which costs consequences under Part 36 apply.

This might explain what @Enceladus provided that the judge rarely does this. Inspired by 4(c), I wonder whether it's good idea to write to CCC to ask them to settle the PCN at it's initial value £35? If they refuse or do not respond, may be it will add to our ammunition if we want to run the cost argument?

I doubt if you will get the N244 fee refunded, even if your review application is granted. Not unless you qualify for EX160 fee remission.

HMCTS (HM Courts and Tribunals Service) take the view that it is a fee for a review and won't refund. The TEC is part of the HMCTS. The Adjudicator can award costs against the Enforcement Authority but very rarely does. And certainly won't if you lost an appeal at the Tribunal.

The N244 fee issue was extensively discussed on PePiPoo and nobody has ever produced a solid case where a refund was actually received.

I vaguely recall that somebody traced the matter back to a memorandum from the Lord Chancellor's Office but that doesn't seem to be in the public domain.

Bailiff Advice Online should know.