Looking in depth at many of the PCNs currently on our forum, it seems to me that mandatory information is missing as provided at Para. 4 (8 ) (v) of
https://www.legislation.gov.uk/ukla/2003/3/section/4/enacted(v) that, if the penalty charge is not paid before the end of the 28 day period, an increased charge may be payable;
Clearly, this refers to Para. 4 (8 ) (iii):
(iii)that the penalty charge must be paid before the end of the period of 28 days beginning with the date of the notice;
I brought this up at a hearing v Hounslow recently.
https://drive.google.com/file/d/1mpB3obxgDkbzTrC_YbGNPC7K3vhqqKIt/viewAnother point to make is that, when combined with the "old" conflation argument in which many PCNs state "If you do not pay the PCN or make representations before the end of 28 days beginning with the service of the PCN, we may serve you a Charge Certificate", this means that it adds force to the latter argument.
I shall try and give examples later.
Doesn't
London Borough of Barnet Council, R (on the application of) v The Parking Adjudicator [2006] EWHC 2357 (Admin) say documents only need to be substantially complaint, when read as a whole?
It seems to me that "
If you do not pay the PCN or make representations before the end of 28 days beginning with the service of the PCN, we may serve you a Charge Certificate" is substantially complaint.
If your argument is advanced then the issue of substantial compliance must be put to the adjudicator together with an explanation of how / why the case in issue can be somehow distinguished, otherwise you'd be misleading the tribunal and any decision would be
per-incuriam.
On the other hand, Hackney Drivers
https://drive.google.com/file/d/1mUzdpSgEg7LZ0N9njiuLCbM4aTgVPlfC/viewstates there must be clarity. I don't think making a valid argument re missing information is misleading. It's mandatory. And one can mention the said case law as part of the argument, unless the adjudicator knows it already, of course.
It seems to me that "If you do not pay the PCN or make representations before the end of 28 days beginning with the service of the PCN, we may serve you a Charge Certificate" is substantially complaint.
Well, we have both won cases on this as you know. How can it be compliant whether the "or" is interpreted conjunctively or disjunctively when the first part is missing? Again, I raised this in the Harrow case a few weeks back. The adjudicator did not accuse me of misleading him. I simply made the points.
https://drive.google.com/file/d/1mpB3obxgDkbzTrC_YbGNPC7K3vhqqKIt/view
Well, we have both won cases on this as you know. How can it be compliant whether the "or" is interpreted conjunctively or disjunctively when the first part is missing? Again, I raised this in the Harrow case a few weeks back. The adjudicator did not accuse me of misleading him. I simply made the points.
The adjudicator might not know of any contrary authorities, it's the duty of the representative to draw all relevant authorities, favourable and unfavourable, to the attention of the tribunal.
In short your argument needs to be "
it could be said that I am wrong because of (substantial compliance etc), but I say that that is not the case because of (reasons)".
Quite.
But we are jumping the gun here. Let's see what the council says first because this is a novel argument. There is no reason at all why this cannot form part, at least, of the initial formal representations. The likelihood is that they will take some time to consider, if at all.
I will be using it very soon. And have told the powers that be/who must be obeyed.
For future ease of reference:
I make this collateral challenge against the validity of the PCN as it is missing mandatory information as provided at Para. 4 (8 ) (v) of
https://www.legislation.gov.uk/ukla/2003/3/section/4/enacted(v)that, if the penalty charge is not paid before the end of the 28 day period, an increased
charge may be payable.
Clearly, this refers to Para. 4 (8 ) (iii):
(iii)that the penalty charge must be paid before the end of the period of 28 days beginning
with the date of the notice;
Therefore, it follows that the statement: "If you fail to pay the Penalty Charge or make representations before the end of a period of 28 days beginning with the date of service of this notice an increased charge of £240 may be payable” adds to the lack of clarity by its omission. Even on its own, whether the required information was included or not, it is also arguable that it conflates the two periods using the word "or" which many would view as being conjunctive. Furthermore, even if the statement were to be interpreted disjunctively, there is still no clarity due to the missing information. So, it follows that it cannot possibly be interpreted disjunctively.
Sorry to be pedantic,
"It seems to me that "If you do not pay the PCN or make representations before the end of 28 days beginning with the service of the PCN, we may serve you a Charge Certificate" is substantially complaint."
Complaint or compliant?
Sorry to be pedantic,
"It seems to me that "If you do not pay the PCN or make representations before the end of 28 days beginning with the service of the PCN, we may serve you a Charge Certificate" is substantially complaint."
Complaint or compliant?
De minimis typo. Anyway, I shall be arguing this tomorrow at 10.00 hrs. Merton.
For future ease of reference:
I make this collateral challenge against the validity of the PCN as it is missing mandatory information as provided at Para. 4 (8 ) (v) of
https://www.legislation.gov.uk/ukla/2003/3/section/4/enacted
(v)that, if the penalty charge is not paid before the end of the 28 day period, an increased
charge may be payable.
Clearly, this refers to Para. 4 (8 ) (iii):
(iii)that the penalty charge must be paid before the end of the period of 28 days beginning
with the date of the notice;
Therefore, it follows that the statement: "If you fail to pay the Penalty Charge or make representations before the end of a period of 28 days beginning with the date of service of this notice an increased charge of £240 may be payable” adds to the lack of clarity by its omission. Even on its own, whether the required information was included or not, it is also arguable that it conflates the two periods using the word "or" which many would view as being conjunctive. Furthermore, even if the statement were to be interpreted disjunctively, there is still no clarity due to the missing information. So, it follows that it cannot possibly be interpreted disjunctively.
The PCN is missing mandatory information as provided at Para. 4 (8 ) (v) of
https://www.legislation.gov.uk/ukla/2003/3/section/4/enacted(v)that, if the penalty charge is not paid before the end of the 28 day period, an increased
charge may be payable.
Clearly, this refers to Para. 4 (8 ) (iii):
(iii)that the penalty charge must be paid before the end of the period of 28 days beginning
with the date of the notice;
Therefore, it follows that the statement: "If you fail to pay the Penalty Charge or make representations before the end of a period of 28 days beginning with the date of service of this notice an increased charge of £240 may be payable” adds to the lack of clarity by its omission. Even on its own, whether the required information was included or not, it is also arguable that it conflates the two periods using the word "or" which many would view as being conjunctive. Furthermore, even if the statement were to be interpreted disjunctively, there is still no clarity due to the missing information. So, it follows that it cannot possibly be interpreted disjunctively.
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