Hello Every One
Third time of trying
Receive a PCN from Hastings back 2005 that got over-looked due to family problems and paid to Hastings agents CCS Enforcement under duress. Then received a PCN from Brighton (fort and Won). During fighting the Brighton one I can across the old Hastings PCN. Now armed with some information I looked into the validity of the Hastings PCN. It appears to me to fail compliance of the RTA 1991 Section 66 3a, 3c, 3d, 3e and 3f. So I have decided to seek restitution on this PCN. Yet it is not only the PCN at fails to comply.
The PCN
The Front
This is Hasting old format PCN that I am seeking restitution on.
No date of contravention, You are therefore required, (incorrect term of the legal Position), within 28 days (from when) within 14 days (from when), no direction to back,
The Back
Paragraph 5
Please note that unless you have acted within 14 days (from when), you will be required to pay the full charge (what charge). If the appropriate payment (what Payment) or representation is not received within 28 days (from when), the registered keeper (should be Owner) will receive a formal notice (what notice) asking for full payment of £60.00 (for what). This notice will also describe how you may appeal against the PCN.
Payment address only appears on tear off slip.
Sent letter to Hastings asking for restitution on this PCN and received this reply
I managed to obtain a copy of the new format PCN. Yet this stills fails to comply with the RTA 1991 section 66 (3e) and 3f.
See Below
New format Front still has (You are therefore required)
Hastings new format PCN back still fails to state when 14 days and 28 days start, and payment address still only appears on tear off slip. This means Hastings have never issued a valid PCN
Most of this covered by Justice Jackson Wandsworth judicial review.
The NtO
Obtained under FOI letter to Hastings along with charge certificate. These are copies.
The NtO
This fails to comply with RTA 1991 schedule 6 (2c)
In that it has if you fail to pay the charge or make representation to the council by (then there is a box with a date)
(2c) that the penalty charge must be paid before the end of the period of 28 days beginning with the date on which the notice to owner is served;
The charge certificate
This states that the NtO was sent out 2 day before the NtO was issued and fails to state when the 14 days start from as per Lukha case.
RTA 1991 schedule 6 section 7
Where a charge certificate has been served on any person and the increased penalty charge provided for in the certificate is not paid before the end of the period of 14 days beginning with the date on which the certificate is served, the authority concerned may, if a county court so orders, recover the increased charge as if it were payable under a county court order.
I then requested a copy of the notice of debt recovery (I now know this wrong document) under FOI and received this letter
I then phoned Lesley George on Wednesday 9th Jan 2008 and after a brief discussion agreed the documents I required where the Notice of Debt Registration I requested these on the phone and Lesley told me that they had been advised by there legal department not to send out copies as they only had DATE AS POST MARK on them. I then requested them under the DPA and two letters latter received the following documents. These I cannot ever remember having received. It also took Hastings * months to register the debt.
First Document
This now has a date on it contrary to Lesley George’s statement on the phone and secondly it is not
signed. Therefore I suspect NOT copy of original.
Second Document
I have not been able to find anything as to wording on these but suspect this is NOT a copy of the original
Defiantly not a copy of the original. Applicant filled as Hastings Borough Council and grounds for appeal have been changed. Therefore TEC would have refused application.
Wrote to Hastings again
Mark Vincent
17 Brading Close
Langney
Eastbourne
East Sussex
Parking Services BN23 8DY
Century House
100 Menzies Road
St Leonards on Sea
East Sussex
TN37 9BB Date 12/02/2008
Letter Before Action
Dear Mrs S Ragan
Further to my letter dated 12/09/2007 with reference to Penalty Charge Notice (Number HS55046555. On further investigation I can now reply to your reply dated 24th October 2007. As I stated as a parking regulation authority you have very specific guidelines to adhere to. Thus gaining the trust and respect of the motoring public in exercising those regulations.
These are as follows:-
Section 66 Parking penalties in London
(3) A penalty charge notice must state—
(a) the grounds on which the parking attendant believes that a penalty charge is payable with respect to the vehicle;
(b) the amount of the penalty charge which is payable;
(c) that the penalty charge must be paid before the end of the period of 28 days beginning with the date of the notice;
(d) that if the penalty charge is paid before the end of the period of 14 days beginning with the date of the notice, the amount of the penalty charge will be reduced by the specified proportion;
(e) that, if the penalty charge is not paid before the end of the 28 day period, a notice to owner may be served by the London authority on the person appearing to them to be the owner of the vehicle;
(f) the address to which payment of the penalty charge must be sent.
(4) In subsection (3)(d) above “specified proportion” means such proportion, applicable to all cases, as may be determined by the London authorities acting through the Joint Committee.
(5) A penalty charge notice fixed to a vehicle in accordance with this section shall not be removed or interfered with except by or under the authority of—
(a) the owner, or person in charge, of the vehicle; or
(b) the London authority for the place in which the vehicle in question was found.
(6) A person contravening subsection (5) above shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 2 on the standard scale.
(7) Schedule 6 to this Act shall have effect with respect to penalty charges, notices to owners and other matters supplementing the provisions of this section.
On closer study of the PCN I find that it does not comply with the above and therefore unenforceable and the action to recover the PCN through the TEC and Recovery Agency where therefore unlawful.
1 That a PCN must state the date of contravention and date of issue:
Jim Keiller v Bolton Council National Parking Adjudication Service Case No: BO 05339M (Copy Supplied)
2 Your PCN states
You are therefore required to pay a penalty of £60 within 28 days. The charge will be reduced to £30 pounds if payment is received with 14 days.
You are therefore required
But there is another point on this element. Under section 66(1) the parking attendant effects service of the Penalty Charge Notice by either fixing it to the vehicle or giving it to 'the person appearing to him to be in charge of the vehicle'. Under section 66(2) the person legally liable for payment of a penalty charge is the owner. It may or may not be that the person in charge of the vehicle is the owner. Therefore, the person who receives the Penalty Charge Notice may or may not be the person legally liable to pay the penalty charge. It is no doubt for this reason that the draftsman chose the impersonal 'that the penalty charge must be paid'. For the notice to say 'You are required to pay' will be an inaccurate statement of the legal position in a great many cases.
In those circumstances, it cannot to my mind be said that the formulation in the PCN constitutes substantial compliance.
As per Wandsworth v Alsbar and Restaurant Case Number: 2020106430
Penalty Charge Notice: WA04516186 Review Decision dated 28 October 2002.
Aspire Loft Conversions v Camden Case Ref 2070172175 Decision date 24 May 2007
To pay a penalty of £60 within 28 days.
Turning to the next element, the prescribed period for payment is 'before the end of the period of 28 days beginning with the date of the notice'. The PCN says 'within 28 days'.
The general rule is that where a period is fixed for the taking of some step, the day of the act or event from which the period runs is excluded in calculating the period. Mr Pitt-Payne conceded that 'within 28 days' fell to be construed in accordance with this rule as excluding the date on which the PCN was issued. The wording does not literally comply with paragraph (c), but does it substantially comply?
Mr Pitt-Payne referred me to Trow v Ind Coope (West Midlands) Ltd [1967] 2 All E.R. 900, which he conceded was against him. This concerned the interpretation of the Rules of the Supreme Court Order 6 rule 8(1), which provided that a writ was valid 'for twelve months beginning with the date of its issue'. The Court of Appeal held that 'beginning with the date' included the day on which the writ was issued and ousted the general rule.
Mr Pitt-Payne urged me to construe this case narrowly; to treat it as authority for the meaning of 'beginning with' only in the context with which the Court was concerned and as not applying to a penal or quasi-penal administrative penalty. This is a most unappealing proposition. If the term's meaning is dependent on context, it would mean that in every context where the term appeared there would be likely to be uncertainty as to its meaning. I would in any event have decisively rejected it, but in any case it seems to me to be inconsistent with the decision in Trow.
Furthermore, another authority, Hare v Gocher [1962] 2 Q.B. 641, is to the same effect as Trow: In Hare, where the words in question were 'beginning with the commencement of this Act' and 'beginning with the date on which it is passed', Winn J concluded that the phrase 'beginning with' was especially used to avoid equivocation and to exclude the ordinary rule.
In Trow, Harman LJ said 'I see no escape from the conclusion that where the word "with" is used, the first day is included'; and Salmon LJ said that 'Any period of time to be calculated as commencing or beginning with a certain day must include that day.' I emphasise: 'Any period'. This makes clear that this is a matter not of context but of the ordinary meaning of the language.
Mr Pitt-Payne argued that if the draftsman had intended the first day to be included, he could have made that clear by including words such as 'including the day of issue of the notice'. The answer to that is that given that the meaning of the phrase chosen by the draftsman is well established, any such embellishment would have been verbiage.
Mr Pitt-Payne also argued that if the wording of the PCN differed from the language of the statute, the effect was to give an extra day for payment to be made. If there was an error, it was in favour of the person liable to pay; so nobody was prejudiced by the error. This argument might well be relevant to the second substantive question - the effect of non-compliance - but it does not support the argument that the PCN is compliant. The Local Authority has no power to extend the statutory period as a matter of law. The fact that it may as a matter of administrative practice allow longer than the prescribed periods (an issue I will return to) is a different point and cannot justify a misstatement of the legal position, which is the purpose of the requirements of section 66(3).
The PCN therefore fails the compliance test in this regard also.
As per Wandsworth v Alsbar and Restaurant Case Number: 2020106430
Penalty Charge Notice: WA04516186 Review Decision dated 28 October 2002.
3 That, if the penalty charge is not paid before the end of the 28 day period, a notice to owner may be served by the London authority on the person appearing to them to be the owner of the vehicle.
Yours states
If you wish to object to this PCN please send your written representation to the address shown below (there is an addressed envelope attached). The charge will be put on hold until the matter has been investigated and a response sent to you. Please note that unless you have acted within 14 days, you will have to pay the full charge. If the appropriate payment is not received within 28 days, the owner will receive a formal notice asking for payment of £60.00. This notice will also describe how you may appeal against the PCN.
Again, the relevant period is incorrectly stated.
The second point the Appellant takes on this paragraph is that the PCN says that the NTO may be sent to 'the registered keeper' whereas the Act refers to 'the person appearing to [the London authority] to be the owner of the vehicle'.
Mr Pitt-Payne submitted that there is no difference in substance between the two. He said that the point made in the PCN is that the way in which the Council will determine the identity of the apparent owner is by finding out who is the registered keeper.
I do not accept these submissions. It is not the case that there is no difference in substance between 'the registered keeper' and 'the person appearing to the [London authority] to be the owner'. As I have said above, the Act places liability for penalty charges on the owner. Section 82 provides as follows:
'S. 82(2) (For) the purposes of this Part of this Act, the owner of a vehicle shall be taken to be the person by whom the vehicle is kept.
((3) In) determining, for the purposes of this Part of this Act, who was the owner of a vehicle at any time, it shall be presumed that the owner was the person in whose name the vehicle was at that time registered under the [1971 c.Vehicles (Excise) Act 1971.'
The scheme of the Act does not therefore place liability on the registered keeper. It places liability on the owner; the owner is to be taken to be the keeper; and there is then merely a presumption that the owner was the registered keeper.
That presumption is rebut table; under paragraph 2(4) of Schedule 6 to the Act, one of the grounds on which the recipient of a NTO may make representations to contest liability is:
'(a) (that) the recipient-
(never) was the owner of the vehicle in question;
ceased to be its owner before the date on which the alleged contravention occurred; or
its owner after that date'
Paragraph 2 (5) and (6) go on to provide, in substance, that where (a)(ii) or (iii) are relied on, the person making the representations must supply the name and address of the person to whom the vehicle was disposed of or from whom it was acquired, if they have that information. Paragraph 3(2) empowers the Local Authority to serve a further NTO on that person.
The power to serve a NTO is prescribed in paragraph 1 of Schedule 6, which empowers the Local Authority to serve such a notice on 'the person who appears to them to have been the owner of the vehicle when the alleged contravention occurred'; not, it is important to note, on the registered keeper. The power is clearly expressed in these terms because it may or may not be that the registered keeper was the owner at the relevant time; and it is possible that at the point of deciding on whom to serve the notice the Local Authority is in possession of information that the registered keeper was not the owner.
Let me give one example. It may occur that more than one PCN is issued to a vehicle over a period of time. Say two are issued to a vehicle. The Local Authority eventually serves a NTO on the registered keeper in respect of the first. It receives representations from the registered keeper on the basis of which it accepts that he had disposed of the vehicle before the date of the contravention and therefore was not the owner at that time. The Local Authority then comes to consider service of the NTO in respect of the second, later, PCN. It could hardly be that at that point the registered keeper could be 'the person who appears to them to have been the owner of the vehicle when the alleged contravention occurred.'
The draftsman constructed a carefully thought out scheme of liability and chose his words with equal care to reflect it. He chose the more elaborate expression 'the person appearing to the [London authority] to be the owner' rather than 'registered keeper' for the very good reason that to empower the Local Authority to serve the NTO on the registered keeper would not reflect the more complex scheme of liability.
As per Wandsworth v Alsbar and Restaurant Case Number: 2020106430
Penalty Charge Notice: WA04516186 Review Decision dated 28 October 2002.
4 The address to which payment of the penalty charge must be sent
This only appears on the payment slip which is NOT part of the PCN and therefore contravenes section 66 paragraph 3 sub paragraph (f)
Therefore it occurs to me that you have not complied with the (Road Traffic Act 1991 as Amended) or the guidelines set down. I therefore request full restitution of the monies £325.87 paid through a mistake in law to your agents CCS Enforcement Services Limited on the 20/02/2007 within 14 days of receipt of this letter. Failure to comply will result in my filing Statutory Declarations with the TEC whereby I shall seek restitution for the monies paid plus interest and costs using all legal options open to me.
I look forward to your reply on this matter.
Yours Faithfully
Mark Vincent
To this day I have not received a reply
Filled Stat Dec at TEC received Reply
Now need to file N244 to overturn Court Officer Decision