QUOTE (fight4rights @ Thu, 7 Jul 2022 - 11:37)
Thanks. Can anyone from the law experts spot anything on the PCN to make it challengeable?
If you look at the link provided,
http://forums.pepipoo.com/index.php?showtopic=145051 it is arguable that the PCN conflates the two distinct time periods. I have listed several cases which have won on this point. However, it depends on the adjudicator. Having said all that, it is worthwhile to make a representation in any case as they must consider along the lines of:
Dear Council
Ref: PCN
I make these representations as follows:
The wording on the Penalty Charge Notice produced does not comply with the legal requirements since there is a clear, and incorrect, confluence/conflation of the two provisions regarding payment and making representations.
"If you fail to pay the penalty charge notice or make representations before the end of the period of 28 days beginning with the date of service of this notice, an increased charge of £195 may be payable ."
Therefore, this PCN appears to me to conflate the 28 period for payment, which begins with the date of the penalty charge notice, with the 28 days with the making of representation, which begins with the date of the service of the notice. It also is ambiguous. It may easily be read as a threat of a charge certificate being issued for failure to pay or in the circumstances where representations have been made. The notice would more appropriately "if you fail to pay the penalty charge notice and do not make representations within 28 days beginning with the date of service of this notice…".
In my view there is a serious possibility of real prejudice here. The fact that I may not have been prejudiced by this is not a "cure" to the substantive defect. The defect renders the penalty unenforceable. The decision in R (Barnet) v The Parking Adjudicator (2006) EWHC 2357 (Admin) make clear the importance of complying with the requirements of the legislation. Mr Justice Jackson said in that case "Prejudice is irrelevant and does not have to be established. The 1991 Act created a scheme for the civil enforcement of parking control. Under this scheme motorists become liable to pay financial penalties if certain specified statutory conditions are met. If the statutory conditions are not met then the financial liability does not arise."
In view of the above, I request that the PCN be cancelled.
Yours faithfullyYou can mention the cases if you like. This is a quickie I am afraid and taken from some decisions! And it is only a guide, not a template!
Alternative:
Dear Council
Ref: PCN
I make these representations as follows:
The PCN is a nullity and unenforceable because of its wording defects. According to the relevant legislation, there are two distinct periods in which the recipient may either pay the penalty charge or make representations; however, on page 1 of the said PCN, the two periods are conflated which results in confusion and prejudice, at least, and culminating in illegal confluence. I refer to the following citation verbatim :-
"If you fail to pay the penalty charge notice or make representations before the end of the period of 28 days beginning with the date of service of this notice an increased of £195 may be payable."
While there have been numerous decisions upon this issue, I do believe it to be a simple matter of syntax in that the conditional phrase "if you fail to pay the penalty charge notice or make representations...." clearly refers to and governs grammatically both periods and I contend that any other interpretation would fall under Wednesbury unreasonableness. In this regard, further support for this view is contained in Case Number 2110335439 in the first instance; however, I also refer to the Barnet case at the High Court, which set a legal precedent, of course, in terms of the statutory obligations placed upon an Authority in its production of penalty charge notices, what they must contain in order to justify their legal enforcement and, lastly, that prejudice does not need to be proven i.e. R (Barnet) v The Parking Adjudicator (2006) EWHC 2357 (Admin):
"Prejudice is irrelevant and does not have to be established. The 1991 Act creates a scheme for the civil enforcement of parking control. Under this scheme motorists become liable to pay financial penalties if certain specified statutory conditions are met. If the statutory conditions are not met then the financial liability does not arise."
While I accept that the period is correctly stated on page 1 of the said PCN, the fact remains that the conflation of the two periods in the statement on page 1 creates ambiguity, confusion and could even be interpreted that a charge certificate may be served even if representations have been made. I refer you to Case No 2120618382 in this regard from which I seek further support.
In view of the above, I request that the PCN be cancelled.
Yours faithfully
They will, of course, reject this but it would be interesting to see what their response will be. You could always mix and match the two versions: true conflation and pun intended!
Afterthought, it is arguable that the Taken Without Consent ground limits to theft. See what others think. Here is a case:
Case Reference: 2110212199
Appellant: Mr Chidi Egenti
Authority: Islington
VRM: EA02WFR
PCN: IS2284987A
Contravention Date: 12 Feb 2011
Contravention Time: 12:06
Contravention Location: Drayton Park/Horsell Road N5
Penalty Amount: £120.00
Contravention: Entering and stopping in a box junction when prohibited
Decision Date: 07 Jul 2011
Adjudicator: Teresa Brennan
Appeal Decision: Allowed
Direction: cancel the Penalty Charge Notice.
Reasons: Mr Egenti appeals and raises a number of issues both in his initial representations and in the Notice of Appeal.
One of the issues that Mr Egenti raised was wither the Penalty Charge Notice was enforceable as he states that the third ground of appeal, box C on the Penalty Charge Notice inaccurately reflects the statutory ground. Further he says that by stating that the insurance claim or crime report be provided that this fetters the basis on which a representation on this basis can be made. In his initial representations Mr Egenti specifically raised the issue of circumstances in which a relative might have taken the keys to the car without his consent.
In the Notice of Rejection issued on 30 th March 2011 the local authority stated: 'If relative takes the car without permission the registered keeper of the vehicle is still liable for the charge unless they report the matter to the police' Whilst it may be that a local authority would not accept a representation made on this basis without a crime report there is no obligation on a registered keeper to provide a crime report and it is incorrect in law to state that a registered keeper must provide a crime report when relying on this ground of appeal. I find that the Notice of Rejection wrongly states the law and that it is therefore misleading.
The London Local Authorities Act 2003 imposes a duty on an enforcement authority to consider representations made and to then serve a notice indicating the decision that has been made. In this case I find that the London Borough of Islington has failed to properly consider the representations because the Notice of Rejection inaccurately states the law. As this could have misled the appellant into not putting forward a particular basis of appeal I find that the local authority failed in its duty to consider the representations. Therefore I find that the local authority cannot enforce this Penalty Charge Notice and I allow this appeal.
Tactically, do not cite this case. Rather, try to engineer the situation in which they reply with a similar notice of rejection!