Success against the Parking Bandits

What follows is a slightly sanitised version of the Skeleton Argument that I used while representing my father under powers of attorney in a matter involving an unlawful imposition of a fine by the parking bandits of Nottingham.

 

In the County Court

Between

NOTTINGHAM CITY COUNCIL (Claimant)

&

A (Defendant)

Claim Number: #########

SKELETON ARGUMENT of the DEFENDANT

THE FACTS

EXTRACT FROM THE WITNESS STATEMENT OF THE DEFENDANT

“1. My son and agent in this matter was issued with a PCN by the claimant while in charge of a vehicle which I am the owner of, which was parked on deserted street in Nottingham city centre at 11:31pm, causing no obstruction. The PCN was refused by return within three days, following which a private, without prejudice administrative process was initiated, in which the following documents were served by post office recorded delivery on the claimant:

a. NOTICE OF CONDITIONAL ACCEPTANCE dated 31/01/11 b. NOTICE OF DISHONOUR & OPPORTUNITY TO CURE dated 07/03/112. The notices were ostensibly ignored by the claimant, who refused to enter reasonable discussions with a view to settling the matter without having to resort to legal proceedings and failed to provide material evidence demonstrating that:

a. The person responsible for the vehicle in question at the time of the alleged offence consented to or accepted NOTTINGHAM CITY COUNCIL’s offer of a Penalty Charge Notice.
b. NOTTINGHAM CITY COUNCIL has the legal right or lawful recourse to issue its offer of a Penalty Charge Notice to the person responsible for the vehicle in question at the time of the alleged offence.
c. The person responsible for the vehicle in question at the time of the alleged offence has consented to the Traffic Management Act 2004, the Civil Enforcement of Parking Contraventions (England) General Regulations 2007 or the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007.
d. NOTTINGHAM CITY COUNCIL has not negligently misrepresented the facts of the matter by portraying an overtly aggressive offer of contract as a mandatory fine prescribed by law, in contravention of Article 12 of the Bill of Rights, which clearly states: “That all Grants and Promises of Fines and Forfeitures of particular persons before Conviction are illegal and void.”
e. All offers of contract from NOTTINGHAM CITY COUNCIL pertaining to this matter have not been “REFUSED FOR CAUSE WITHOUT DISHONOUR WITHOUT PREJUDICE WITHOUT RECOURSE” and therefore cannot be used as evidence in any court action against the Respondent.
f. NOTTINGHAM CITY COUNCIL has not spent any of the revenues it has received on the waging of illegal wars in Afghanistan and Iraq, during which millions of innocent people have been murdered.

3. Notwithstanding the foregoing, the claimant issued proceedings against the defendant and obtained an Order for Recovery from Northampton County Court Bulk Centre, who received by way of a defence, NOTICE OF APPLICATION TO STRIKE OUT ORDER FOR RECOVERY OF UNLAWFUL PENALTY CHARGE dated 04/04/11, along with form TE9, stating that no NOTICE TO OWNER had been received by the defendant, which the claimant has subsequently challenged by making this application to have the fine reinstated on the ground that the defendant is in contempt of court.”

NO LEGAL BASIS FOR CONTEMPT OF COURT

4. There is simply no legal basis to bring allegations of contempt of court against the defendant, on the ground that no substantive evidence has been submitted by the claimant, merely hearsay and subjective interpretation. In Dean v. Dean [1987] F.L.R. 517, C.A. (Civ. Div.), the court said that: “Contempt of court, whether civil or criminal, is a common law misdemeanor and it had long been recognised that proceedings for contempt were criminal or quasi-criminal in nature and that the case against the alleged contemnor must be proved to the standard of criminal proof namely, beyond reasonable doubt.”

5. The validity of the allegation of contempt of court in this instance turns on the ability of the claimant to demonstrate that the defendant has misled the court by claiming that the PCN/NOTICE TO OWNER were not ‘received’, on the basis that they were delivered by hand and 1st class post respectively. For the purposes of clarifying why this position is entirely misconceived, I refer the court to the definition of “to receive” from Bouviers Law Dictionary, upon which the defendant relies without limitation, since no alternative definition has been furnished in this regard, either on the form itself or by the claimant:

“TO RECEIVE. Voluntarily to take from another what is offered.

2. A landlord, for example, could not be said to receive the key from his tenant, when the latter left it at his house without his knowledge, unless by his acts afterwards, he should be presumed to have given his consent.”

5. It is obvious that the inclusion of the word “voluntarily” in the above definition necessarily restricts the meaning of “received” to that which a party has willingly and knowingly accepted upon delivery, which in no way bears any resemblance to the delivery and immediate refusal by return of unsolicited offers of contract by the claimant, in its attempts to impose a fine upon the defendant without the judgment of a competent tribunal, in contravention of Article 12 of the Bill of Rights 1688, which unequivocally prohibits such an action and renders these proceedings void. For this reason the defendant is entitled to have the hearing set aside, whether by the court of issue or judicial review.

6. The defendant also stated in his WITNESS STATEMENT that: “within three days of it being issued, the PCN was duly returned to the issuer’s address marked “REFUSED FOR CAUSE WITHOUT DISHONOUR WITHOUT PREJUDICE WITHOUT RECOURSE” by the defendant’s son, following instructions to refuse it on his behalf. This was done on the basis that there is no legal obligation for anybody to consent to or accept any terms that can be regarded as prima facie evidence of a breach of extant constitutional law; in this case, Article 12 of the Bill of Rights 1689, which unequivocally states:

“That all Grants and Promises of Fines and Forfeitures of particular persons before Conviction are illegal and void.”

7. It also seems self-evident that if there was a general obligation to receive any and all items that are delivered to one’s address, the courts would be bound to accept every application that could be deemed to have been served by the post office, which is clearly not the case, since the courts regularly refuse to accept any applications which they consider as having no legal merit, which is exactly what the defendant did in this instance. Indeed, the effect of such an inequitable rule would mean that any party could unilaterally impose its terms of contract upon another simply by proving that a document was delivered following its posting, which appears to be what the claimant is attempting to do in this case, subsequent to its refusal to enter reasonable discussions following its failure to provide the evidence requested in the notices served by the defendant. In an almost identical matter with another CITY COUNCIL, who chose instead to enter reasonable discussions rather than evade them, the submission of the same points resulted in its legal representatives withdrawing the claim and closing the matter, without reissuing proceedings against the defendant, which demonstrates that the defendant has prima facie evidence that the points made are legally valid ones.

8. The defendant also sated that: “It should also be stressed that never at any point was I in possession of the PCN, having been furnished with the knowledge of its issue verbally by my son. Therefore, in both a literal and legal sense, the PCN was not received by the defendant, thereby rebutting the allegations of contempt of court for misrepresenting the facts, which, for the avoidance of doubt, is strenuously denied without equivocation by the defendant.”

9. In any event, the PCN itself as inadmissible as evidence, since it is clearly marked “WITHOUT PREJUDICE” to the court proceedings and presenting such an item as evidence in these proceedings may well be deemed an abuse of process, on the ground that even if the court determines with sufficient authorities in support that the Bouvier’s definition of ‘received’ is incorrect, there is no sustainable evidence in existence that sustains the allegation of the claimant that the facts were misrepresented by the defendant or his agent on the TE9 form submitted to Northampton County Court Bulk Centre and the application should be dismissed as totally without merit.

10. Moreover, the defendant has been presented with no evidence that the NOTICE TO OWNER was even delivered to his address, since, in the absence of a recorded delivery receipt from the post office, there is no way of proving that delivery of the document submitted as evidence by the claimant [Exhibit SB 2] was effected and neither the defendant nor his agent have any recollection of any such event taking place. The defendant also takes the position that the evidence submitted by the claimant should not be adduced by the court, except for the purposes of establishing the honesty, consistency and good faith of the defendant’s actions, and should therefore be deemed inadmissible as evidence in support of the application for the fine to be reinstated.

AUTHORITIES IN SUPPORT OF THIS APPLICATION

12. In the event a witness statement is successful in demonstrating that a NOTICE TO OWNER was not received by the defendant, as in this instance, the claimant must be able to prove that delivery of a new NOTICE TO OWNER took place, which it appears has not even been attempted in this matter, which renders the position taken by the claimant legally defective in and of itself. In support of this I refer to court to the following statement from the Traffic Penalty Tribunal website:

“The Witness Statement form offers four options:
1. I did not receive a Notice to Owner
If no Notice to Owner was received, there was no opportunity to make formal representations to the council against the penalty.
If a successful Witness Statement is made on this ground, the council is obliged to set the penalty back (put it on hold) and to serve a new Notice to Owner.”

13. Furthermore, in Customs and Excise Commissioners v W Timms & Son (Builders) Ltd, Macpherson J clearly expressed the legal distinction between ‘received’ and ‘dispatched’, which stands as an unequivocal support for the defendant’s position:

“… there is an express distinction drawn between the word ‘received’ and ‘dispatched‘… on the ordinary meaning of the language used the word ‘received’ by the commissioners must refer to actual receipt by the commissioners rather than to posting…A return is dispatched when it is posted… It is received only when actually received.”

14. In support of the defendant’s contention that PCN’s are unlawful, I refer the court to the case of NEIL ANDREW HERRON & another v THE PARKING ADJUDICATOR and SUNDERLAND CITY COUNCIL [2009], in which Keith J stated in paragraph 9 of the Approved Judgment [2009 EWHC 1702 (Admin)]:

“The allegation of lack of independence on the part of parking adjudicators was considered by Collins J in R (De Crittenden) v National Parking Adjudication Service [2006] EWHC 2170 (Admin) and on appeal by Scott Baker LJ at [2006] EWCA 1786 (Civ). […] the principal point taken in that case was that the whole system of penalty charges was unlawful because it contravened the prohibition in the Bill of Rights against fines or forfeiture before conviction or judgment against the persons upon whom the fines and forfeiture were to be levied.”

15. With all due respect to Collins J in De Crittenden, in which he contended that Article 12 of the Bill of Rights has been impliedly repealed by subsequent statutory instruments dealing with parking regulations; any argument that the Traffic Management Act 2004, the Civil Enforcement of Parking Contraventions (England) General Regulations 2007 or the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 have impliedly repealed British constitutional law is entirely misconceived, as described in detail by Lord Justice Laws in the Divisional Court in the case of the “Metric Martyrs” (sections 62 and 63), upon which the defendant relies without limitation and by which the county court is bound:

“The special status of constitutional statutes follows the special status of constitutional rights. Examples are the Magna Carta, the Bill of Rights 1689, the Act of Union, the Reform Acts which distributed and enlarged the franchise, the HRA, the Scotland Act 1998 and the Government of Wales Act 1998. Ordinary statutes may be impliedly repealed. Constitutional statutes may not. For the repeal of a constitutional Act or the abrogation of a fundamental right to be effected by statute, the court would apply this test: is it shown that the legislature’s actual – not imputed, constructive or presumed – intention was to effect the repeal or abrogation? I think the test could only be met by express words in the later statute, or by words so specific that the inference of an actual determination to effect the result contended for was irresistible. The ordinary rule of implied repeal does not satisfy this test. Accordingly, it has no application to constitutional statutes. I should add that in my judgment general words could not be supplemented, so as to effect a repeal or significant amendment to a constitutional statute, by reference to what was said in Parliament by the minister promoting the Bill pursuant to Pepper v Hart [1993] AC 593. A constitutional statute can only be repealed, or amended in a way which significantly affects its provisions touching fundamental rights or otherwise the relation between citizen and State, by unambiguous words on the face of the later statute.”

16. Therefore, since there appears to be no evidence in existence that Article 12 of the Declaration of Rights 1688, as acknowledged by Parliament in the Bill of Rights of the same year, has been expressly repealed by any subsequent Act, nor is it ever likely to be, it is simply not sustainable to argue that said article does not render the entire proceedings void and illegal.

17. In Re Pritchard (deceased) [1963] Upjohn LJ confirmed that:

(i) a fundamental defect in proceedings will make the whole proceedings a nullity;
(ii) a nullity cannot be waived;
(iii) it is never too late to raise the issue of nullity; and
(iv) a person affected by a void order has the right – ex debito justitiae – to have it set aside.

18. In Firman v Ellis [1978] Lord Denning confirmed that: (i) a void act is void ab initio. It has been the defendant’s contention since these matters arose that the proceedings are void and illegal by virtue of Article 12 of the Declaration of Rights 1688, as was acknowledged by Parliament in the enactment of the Bill of Rights of the same year.

19. A person affected by both a void or voidable order has the right – ex debito justitiae – to have the order set aside (which means that the Court does not have discretion to refuse to set aside the order or to go into the merits of the case) (Lord Greene in Craig v Kanssen [1943]).

20. The procedure for setting aside a void order is by application to the Court which made the void order, although it can also be set aside by appeal although an appeal is not necessary (Lord Greene in Craig v Kanssen [1943]) or it can quashed or declared invalid by Judicial Review (where available) and where damages may also be claimed.

21. In Wiseman v Wiseman [1953] 1 All ER 601 – Lord Denning confirmed that:

(i) The issue of natural justice does not arise in a void order because it is void whether it causes a failure of natural justice or not; (ii) a claimant or defendant should not be allowed to abuse the process of court by failing to comply with a statutory procedure and yet keep the benefit of it and for that reason also a void act is void even if it affects the rights of an innocent third party.

The application by the claimant should therefore be dismissed as totally without merit, disclosing no reasonable grounds and having no realistic chance of success, in addition to bringing issues before the court that have already been determined by another court; and, in any event, the entire proceedings are void. Therefore, the order for the hearing of the 20th of February 2012 should be set aside without a hearing and costs should also be awarded to the defendant.

THE VERDICT

The hearing went ahead but an experienced district judge made an order granting the defendant’s application to have the proceedings set aside, in the absence of any evidence supporting the allegations of contempt or the establishment of the court’s jurisdiction to act. The judge agreed with many of the points made in the skeleton argument, but insisted that no costs would be awarded and refused to even discuss the constitutional issues that understandably sent his eyebrows due north. Nevertheless, this result must stand as prima facie evidence that the argument is an emphatically winnable one.

It was also agreed between the parties before the judge that Nottingham City Council are statute-barred from reissuing a Notice to Owner. Despite this compelling point of law and the fact that the unlawful claim has now been set aside by two county courts, the claimant proceeded to file yet another application to enforce the PCN.

FAO: The Chief Executive
Nottingham City Council (the applicant)

Served by email
CC: Senior Legal Team

05 July 2012

NOTICE OF FINAL DEMAND FOR WITHDRAWAL OF CLAIM

NOTICE TO AGENTS IS NOTICE TO PRINCIPAL
NOTICE TO PRINCIPAL IS NOTICE TO AGENTS

Dear Chief Executive,

RE: PENALTY CHARGE NOTICE – #########

In response to you continued attempts to enforce the above referenced unlawful fine; for and on behalf of the respondent, I hereby serve NOTICE OF FINAL DEMAND FOR WITHDRAWAL OF CLAIM, on the following grounds:

1. The original “Order for Recovery of Unpaid Penalty Charge”, pursuant to a PCN issued by the Applicant for an alleged parking contravention on 27/10/2010, was cancelled by Northampton County Court, following service of the respondent’s “NOTICE OF APPLICATION TO STRIKE OUT ORDER FOR RECOVERY OF UNLAWFUL PENALTY CHARGE”, received by the court on 06/04/2011.
2. Further proceedings were subsequently issued by the applicant against the respondent in Morpeth County Court, spuriously alleging contempt of court on plainly unsustainable grounds in a misconceived attempt to have the fine reinstated.
3. After agreeing with the majority of the defendant’s points of law and fact, the District Judge dismissed the claim in a hearing of the application on 20/02/2012, during which it was agreed between the parties that the claimant was statute barred from issuing a new “Notice to Owner”, even if Nottingham City Council should wish to proceed further in the manner.
4. The claim should have been discontinued at that juncture, but not long afterwards, Nottingham City Council continued its attempts to enforce payment of the unlawful fine by making another application to Northampton County Court, having already purported to have spent in excess of £1,600 at the time of the hearing, in its unreasonably aggressive and constitutionally unlawful attempts to enforce a claim for £112. If this unsustainable policy was applied to every unpaid PCN issued by Nottingham City Council your organisation would soon face bankruptcy and inevitable allegations of the misappropriation of public funds, especially in these times of economic hardship and government imposed austerity.
5. Given these facts, the respondent may invite the county court to consider whether the applicant must be considered a vexatious litigant and ordered to immediately cease and desist, as the actions of Nottingham City Council would appear to be bordering on harassment with malice. In other words, the respondent contends that the applicant seems to be engaged in some form of vendetta, which might only be terminated by an order of the court or by private prosecution.
6. Since the PCN was issued on 27/10/2010, around 18 months before the applicant’s application for another Order for Recovery, the second order is void and must also be cancelled, on the basis that the instant application is in breach of the provisions of section 20 of the Civil Enforcement of Parking Contraventions (England) General Regulations 2007, which allows only six moths from the date on which the PCN was served for the claimant to reissue a “Notice to Owner”: “(1) A notice to owner may not be served after the expiry of the period of 6 months beginning with the relevant date.(2) The relevant date— (d)… is the date on which the relevant penalty charge notice was served under regulation 9.” The Order for Recovery, therefore, must be regarded as a nullity, along with these proceedings, because due process of law has not been followed.
7. It also appears that your legal representatives have breached their professional codes of conduct by failing to disclose to the court under CPR Part 31 that the notice could not be reissued, which they were obliged to do. The respondent will therefore be reporting these facts to the Solicitors Regulation Authority and making an official complaint to the BAR, in the event that you do not comply with the terms of this notice, to which equitable estoppel conditions will apply.
8. Given your clear breach of the 2007 Regulations, the respondent has a cause of action to apply to a competent court or tribunal for damages, in which he would invite the presiding judge or arbitrator to consider whether the your application also represents breaches of court process and section 2 of the Misrepresentation Act 1967, on the ground that Nottingham City Council cannot reasonably claim that it did not know that this matter was statute barred, it having been agreed by your barrister with myself in the presence of a District Judge at Morpeth County Court that this was and remains the case.

Wherefore, Nottingham City Council has 7 days in which to confirm that it has withdrawn every aspect of your claim against the respondent and to make an appropriate offer of compensation for the costs and injuries incurred, in order to avoid further action being taken by the respondent without further notice.

Without malice, mischief, ill-will, frivolity or vexation; in sincerity and honour,

For & on behalf of the Defendant under Powers of Attorney
All Rights Reserved – Without Prejudice – Without Recourse
Non-Assumpsit – No usage permitted under Usufruct
Errors & Omissions Excepted

Incredible though it may sound to most, NCC completely ignored the notice and attempted to enforce the PCN by making a second application to Northampton County Court Bulk Centre, which claimed it did not have the jurisdiction to set aside the resulting Order for Recovery. The claimant then apparently obtained a Warrant of Execution from the kangaroo court of Northampton, notice of which was served upon the defendant by Marston Group bailiffs, who received the following warning in response.

FAO: The Directors of the Marston Group
High Court Enforcement Officers & Certificated Bailiffs

Served by email
CC: Senior Legal Team NCC

27 July 2012

TRESPASS WARNING

VOID WARRANT OF EXECUTION

NOTICE TO AGENTS IS NOTICE TO PRINCIPAL
NOTICE TO PRINCIPAL IS NOTICE TO AGENTS

To the Directors of the Marston Group,

RE: PENALTY CHARGE NOTICE – #########

In response to Nottingham City Council’s failure to respond to the NOTICE OF FINAL DEMAND FOR WITHDRAWAL OF CLAIM dated 05 July 2012, as well as your company’s notice dated 20th July 2012, in relation to the above referenced unlawful parking fine; for and on behalf of the defendant, whom I have represented in this matter in the county court under power of attorney, I hereby serve notice that any warrant of execution issued in this matter is void and unenforceable on the following grounds:

1. The original “Order for Recovery of Unpaid Penalty Charge”, pursuant to a PCN issued by your client for an alleged parking contravention on 27/10/2010, was cancelled by the Traffic Enforcement Centre at Northampton County Court (TEC), following service of the respondent’s “NOTICE OF APPLICATION TO STRIKE OUT ORDER FOR RECOVERY OF UNLAWFUL PENALTY CHANRGE”, on or around 06/04/2011.
2. Subsequently, at a hearing of a totally misconceived application before Judge Atherton in Morpeth & Berwick County Court on 22/02/12, it was spuriously alleged by your client that the parking fine should be reinstated on the basis of an alleged contempt of court by the defendant, who was wrongly and unfairly accused of making a false statement to have the fine cancelled.
3. The judge agreed with all of the main points made in the defendant’s skeleton argument and dismissed the claim for lack of evidence and plausible argument. It was then agreed by the barrister representing the claimant and the defendant before the judge that the claimant is statute barred from reissuing a “Notice to owner” [under section 20 of the Civil Enforcement of Parking Contraventions (England) General Regulations 2007, which allows only six moths from the date on which the PCN was served for the applicant to reissue a “Notice to Owner”: “(1) A notice to owner may not be served after the expiry of the period of 6 months beginning with the relevant date.(2) The relevant date— (d)… is the date on which the relevant penalty charge notice was served under regulation 9.” ]
4. The matter should have been considered res judicata upon the issue the judge’s order dismissing the claim dated 20/02/12, but your client appears to have issued a second “Notice to owner” more than 18 months after the original PCN was served, in a clear and knowing breach of the agreement of the parties before the court and the 2007 Regulations, other sections of which your client is now seeking to enforce under a purported “Warrant of Execution” which your company claims to have been issued with by TEC. As yet, no copy of such a warrant has been served on the defendant, which may well comprise another breach of due process, but in any event such a warrant is considered void and unenforceable.
5. Therefore, it is self-evident that these facts render your company liable for a claim of trespass in the event that you fail to immediately cease and desist from the enforcement of this invalid claim following service of this notice.
6. Official complaints are being made to the local government ombudsman, the Solicitor’s Regulation Authority and the BAR Council as a result of the misconduct of those responsible for these vexatious and malicious proceedings that have already caused great stress and anxiety to the defendent and members of his family.
7. Having made an application to TEC on 27/05/12 to have the PCN cancelled on the grounds laid out in this missive, the defendant was informed that such an application could not be accepted by TEC for lack of jurisdiction, thereby giving rise to the defendant’s right to file an urgent application to vary the order issued by Judge Atherton to include the following direction:” It has also been agreed between the parties that the claimant is statute barred [under section 20 of the Civil Enforcement of Parking Contraventions (England) General Regulations 2007} from reissuing a “Notice to owner” on the basis that more than 6 months has transpired since the PCN was originally served. Any attempts to do so by the claimant or its agents will be regarded as a wilful breach of this order and any subsequent proceedings will therefore be void and legally unenforceable by warrant of execution. In such circumstances, the defendant shall be at liberty to ask the court to consider whether to issue a Limited Civil Restraint Order against the claimant and its agents, whilst the defendant’s initial application for costs on an indemnity basis shall be granted upon its renewal.”
8. This application will only be filed in the event that your company or your client fails to comply with the terms of this notice, your company’s acceptance of must be emailed to michaeljw@hush.com by midnight at the latest.

Failure to cease and desist from the enforcement of this invalid claim will result in default charges of FIFTEEN HUNDRED POUNDS STERLING, nunc-pro-tunc, for every attempt to contact the defendant, whether by mail, telephone, mobile, text, fax or in person, each of which will be considered a wilful act of trespass, as well as breaches of the Malicious Communications Act 1988 and the 2007 Regulations. An official complaint will also be made to your regulatory body and the Ministry of Justice. Any implied right of access to the above address is emphatically and irrevocably denied to any representative of your company or your client.

Nevertheless, I look forward to hearing from you at your earliest opportunity in order to settle and close this matter without having to resort to further legal proceedings or official complaints and in the most expedient manner possible, since your company has threatened further action if payment is not received by the end of today. Therefore, it would be greatly appreciated if you could return a read receipt to the email bearing this attachment by way of an acknowledgement of service.

Without malice, mischief, ill-will, frivolity or vexation; in sincerity and honour,

For & on behalf of the Defendant under Powers of Attorney
All Rights Reserved – Without Prejudice – Without Recourse
Non-Assumpsit – No usage permitted under Usufruct
Errors & Omissions Excepted

Nothing of the nature of an appropriate response was received from the claimant, who, along with the directors of the Marston Group, was duly served the following notice by email.

FAO: CHIEF EXECUTIVE & SENIOR LEGAL TEAM, NOTTINGHAM CITY COUNCIL
THE DIRECTORS OF THE MARSTON GROUP

RE: PENALTY CHARGE NOTICE – #########

Sirs,

In the absence of assurances from NOTTINGHAM CITY COUNCIL and MARSTON GROUP that both parties have withdrawn the unlawful claim made against the defendant, by and through the termination of enforcement proceedings in relation to the above referenced disputed PCN; an ex-parte application has been made to Morpeth & Berwick County Court for a variation of the order of Judge Atherton
dated 20/02/2012, to include an acknowledgement of the unequivocal fact that the claimant was and remains statute barred from re-issuing a “Notice to Owner”, as was agreed by the parties before the court, and that any further enforcement proceedings are to be regarded as breaches of that order.

Upon the granting of this application, the defendant may renew an application for costs on an indemnity basis, whilst the court has also been asked to consider whether to issue a Limited Civil Restraint Order against NOTTINGHAM CITY COUNCIL.

In sincerity & honour,

For & on behalf of the Defendant under Powers of Attorney
All Rights Reserved – Without Prejudice – Without Recourse
Non-Assumpsit – No usage permitted under Usufruct
Errors & Omissions Excepted

Here are the two draft orders applied for.

DRAFT ORDER 1

The defendant requests that the following directions be added to the existing order:

“As agreed by the parties before the court, the claimant is statute barred [under section 20 of the Civil Enforcement of Parking Contraventions (England) General Regulations 2007} from reissuing a “Notice to owner” in this case, on the basis that more than 6 months has transpired since the PCN was originally served. Therefore, any attempts to do so by the claimant will be regarded as a willful breach of this order and any subsequent proceedings will consequently be legally unenforceable by warrant of execution, which, if issued, shall be considered void for the want of due process of law.

In such circumstances, the defendant shall be at liberty to ask the court to consider whether to issue a Limited Civil Restraint Order against the claimant, whilst the defendant’s initial application for costs on an indemnity basis shall be granted upon its renewal.”

DRAFT ORDER 2

In the event that the court requires a hearing to consider the issues, the defendant respectfully asks that the following be ordered in the interim:

“It is hereby ordered that the claimant must cease and desist with immediate effect all enforcement proceedings related to the disputed PCN in this case, pending the outcome of the defendant’s application to vary the original order, which shall be served upon the claimant within 7 days. ”

Within just a few hours of receiving the last notice, one of the claimant’s legal team sent the following email:

Further to your email received today and Notice dated 27 July 2012, I write to confirm that the Council is in the process of withdrawing enforcement proceedings in respect the above mentioned Penalty Charge Notice.

Please accept my apologies for the delay in responding to your Notice.

Regards,

Chartered Legal Executive

 

The above email, which represented the end of unlawful proceedings that lasted more than 18 months and spanned three separate attempts by Nottingham City Council to enforce a PCN for sixty quid, was soon followed by a letter from the bailiffs confirming that the claim had finally been withdrawn against the defendant. A claim for compensation looms…

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Posted in Case Studies.