Brighton and Hove Council have a steady stream of potential 'customers' visiting the south coast tourist resort and the NCP vultures can most certainly fill their boots to the tune of £5m - £10m a year.
However, many local residents and businesses are wanting to run NCP out of town as the report in the local newspaper reports
Motorists Want a New Direction on Parking
Argus 27th Feb 2006
But more recently the whole business of parking enforcement has escalated to a new level with Brighton and Hove Council attempting to force the winding up of a successful local business, Glowzone Ltd. over £3,000 worth of outstanding parking fines.
The Council has issued a High Court winding up order which could have the effect of closing the business and putting its 13 staff out of work.
The story made front page last Saturday
'All parking fines invalid'
Argus 10th June 2006
A call to our office from a campaign supporter put us in contact with Glowzone Ltd.
Their solicitor was ready to use the Section 66(3) of the 1991 Road Traffic Act defence in the High Court with regard to Brighton's PCNs...as Brighton, as in Sunderland, Westminster, Camden and many other local authorities, amongst other flaws, had no 'date of notice' on their PCNs (as had been uncovered in MacArthur v Bury, Moses v Barnet and Aldridge v Westminster).
I requested a copy of a Brighton Charge Certificate and one was faxed through to our office by Mike Gurney Glowzone's MD.
What we were able to reveal to Mike was that the Charge Certificate was not correctly worded. We were able to refer to and provide a copy of Lukha v Aylesbury Vale decision of 9th May 2006.
NPAS Chief Adjudicator Caroline Sheppard confirmed today that the Lukha decision had not been released as a NPAS Circular nor had any local authority been passed the information. Indeed, we only became aware after Wayne Pendle's decision in the case of Westover v High Wycombe made reference to Lukha and I submitted a Freedom of Information request to NPAS as it would be used as the ultimate defence in the pending Sunderland appeals.
Brighton and Hove's Charge Certificate states
"Failure to pay the full balance outstanding above within 14 days of the date of this Notice will result in the council registering the outstanding balance as a debt at the County Court. A warrant will then be issued to bailiffs to recover payment. "
However, the legislation (paragraph 7 Schedule 6 1991 Road Traffic Act) states
Enforcement of charge certificate
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.
Therefore, the Charge Certificate does not comply with paragraph 7.
This was confirmed by the National Parking Adjudication Service Chief Adjudicator Caroline Sheppard in Lukha.
She goes on to state that Mrs Lukha is under no obligation to pay a Penalty Charge demanded on a non-compliant notice.
Now a number of problems follow on from this and a number of questions arise. I will deal with them in no specific order, but each will be interconnected:
1. It is apparent from this ruling that Mike Gurney and Glowzone Ltd. are under no obligation to pay any of the outstanding PCNs therefore, the problem for Brighton Council is that they must now admit this to be the case OR face a very costly defeat at the High Court and then face an action for harassment, intimidation, loss of business, defamation and any loss of reputation etc.
2. Problem for Brighton Council is if they are forced to back down they will be forced to admit that ALL their Charge Certificates (and possibly Notices of Rejection as we haven't yet had sight) are not correctly worded and therefore will be deemed not to have been served...in EVERY instance... a dilemma which will not only be costly but could result in investigation by the Local Government Ombudsman for maladministration or more seriously for the criminal offence of Misfeasance of Public Office.
3. Problem for enforcement contractor NCP and their shareholders is the fact that they have a corporate responsibility to take account of advice and legal instructions from the DPE authorities. With regard to the 'Date of Issue' problem following MacArthur v Bury they were instructed by Sunderland City Council Solicitor on 16th June 2005 to change the PCNs 'without delay.' They were instructed to change Langdale's electronic version (software firm). This they finally did in Sunderland on 30th November some 5 months later. However, it was another four months before they changed Westminster's and we are awaiting for confirmation for their other contracts.
4. Questions must now be raised regarding the competence of NPAS who has deliberated and adjudicated on tens of thousands of cases for over 5 years and yet it was not until 9th May 2006 that they spotted the flaw in most local authorities Notice of Rejection and Charge Certificate and potential flaws in the Notice to Owner.
5. Have Brighton Council unwittingly committed perjury by issuing a 'statement of fact' to Northampton County Court with regard to notices which are non-compliant? It looks like all the other DPE authorities are in the same position and the Association of London Government Transport and Environment Committee's Notices of Rejection and Charge Certificates are similarly incorrectly worded.
6. How will the Department for Transport fare when it is investigated because Local Authority Circular 1/95 Guidance on Decriminalised Parking Enforcement gives a specimen Notice of Rejection which is wrongly worded (Annex 14.4 p. 126) and a specimen Charge Certificate which is also wrongly worded (Annex 16.1 p. 130).
However, the local authorities cannot be heard to complain as all have supposedly competent legal departments and all should have checked the legislation and not simply relied on the 'guidance' issued by the Department for Transport...and it should not be down to a former market trader to advise them, and the court of the law!!!
7. As for the Northampton County Court Traffic Enforcement Centre blindly rubber-stamping paperwork from Local Authorities (1.7m registrations during 2004-5) without anyone ever checking whether the Statement of Facts or paperwork complied with statutory requirements. To fail to check the compliance with Section 66(3) regarding the wording of a PCN is bad enough but to fail to check that a Charge Certificate was correctly worded is unforgiveable especially in light of the subsequent implications for anyone on the receiving end of a warrant of execution and bailiff action. It appears that there has been a gross dereliction of duty by Northampton County Court TEC and there must be an immediate suspension of all its activities.
Traffic Enforcement Centre Northampton Codes of Practice (June 2006) requires:
5.4 Rules of court require certain details to be certified for each registration. As it is considered impracticable to require individual certificates to be filed, a 'global' certificate, covering all items in a batch of requests, certifying:
- that 14 days have elapsed since service of the charge certificate(s) by the local authority
As Chief Adjudicator, Caroline Sheppard stated in Lukha "there is no obligation to pay a non-compliant notice..." yet the Traffic Enforcement Centre has failed to check IN EVERY INSTANCE whether the Charge Certificate is compliant with paragraph 7 of Schedule 6 of the 1991 Road Traffic Act and therefore failed to perform any checks as to whether it has been served.
This 'Global Certificate' (5.19) verifies the validity of the data submitted.
Charge Certificate: A document served on a respondent by the LOcal Authority after a Penalty Charge Notice and a Notice To Owner have been issued and no response received. It informs a respondent of the consequences of not paying a penalty charge notice. If ignored, the charge certificate may be registered at the TEC 15 days after the date of service of the charge certificate.
Annex 2 Registration Details
The following details for the registration of an unpaid penalty charge shall be given to the TEC:
- Date Charge Certificate served (this means that if the Charge Certificate is non-compliant then it has not been served and therefore the global certificate verifying the validity of the data is also incorrect aand the TEC should not be in a position to complete the rest of the process).
Annex 3 Global Certificate for Batch of Registrations Request to Register a Batch of Penalty Charge Notices
I certify that
- 14 days have elapsed since the service of the charge certificates listed in the batch ( therefore, if the Charge Certificate states " failure to pay the full balance outstanding within 14 days of this Notice will result in the Council registering the outstanding balance as a debt in the County Court" it means that the statement issued to the Court is a false one and misrepresents the situation. It is expected that most local authorities have made this fundamental error and the TEC has failed to spot the error...which must amount to a gross dereliction of duty and an absoloute failure of process. For the many hundreds of thousands of people who have suffered at the hands of bailiffs as the result of the draconian enforcement of DPE across the country and who have been deemed to have committed parking contraventions this evidence will be absolutely staggering ... that the local authorities had no right to do what they did as they failed to observe due process).
This is only a first draft analysis of the problems about to face Decriminalised Parking...and has massive ramifications for every local authority operating DPE, Transport for London, PATAS, NPAS, Northampton County Court Traffic Enforcement Centre and all the certificated bailiffs in the process, the Department for Transport, and at the top of the tree...the Secretary of State who must now issue a statement along with the Lord Chancellor.
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