from: Nick Lester - Head of Transport & Environment Committee. Director

of Transport, Environment and Planning ALG

Dear Colleague,

London Borough of Barnet Judicial Review

I am writing further to my letter of 3 May 2006 now that the result of

the judicial review requested by LB Barnet with respect to the Moses

case has been decided. The judgement in the High Court upheld the

adjudicator’s decision in the Moses case, with no substantial

differences. In particular, the judge held that if a PCN did not have

the date of issue (or date of notice) as well as the date of

contravention explicitly shown then the PCN becomes a nullity. I attach

a brief note of the judgement as we have yet to receive a transcript.

As my letter of 3rd May said, those boroughs where PCNs have complied

with this requirement to the effect that they have no open cases with

non-compliant PCNs will not be affected. Boroughs with open

non-compliant PCNs do need to give careful consideration to their future

actions and are recommended to seek their own legal advice. This letter

should not be taken as formal legal advice. My own views are:

Boroughs should ensure that their PCN format complies with the Al’s Bar

decision as a matter of urgency (ie that the PCN contains both a date of

issue (or notice) and a date of contravention, even where these are the

same).

Boroughs should ensure that they do not issue any further PCNs that do

not comply, even if this means suspending

enforcement pending a redesign of the notice. The court’s decision makes

clear that any non-compliant PCNs are a nullity. It is also clear that

by “substantially compliant” the court means that the PCN must wholly

comply with the Act in substance (but not necessarily literally) rather

than meaning that if it almost meets the requirements (say to 90% or

95%) then that is sufficient.

Boroughs may not enforce non-compliant PCNs. This means that no NtOs or

charge certificates should be sent out, nor

should debt registrations or bailiff’s warrants be sought with respect

to non-compliant PCNs. Boroughs may continue to receive payments made

against non-compliant PCNs and do not need to refund any payments

already made. The adjudicators have already considered, and rejected, a

bid to re-open previously closed cases on this issue.

Some boroughs have also raised with me the question of whether the

adjudicator can allow appeal on the basis of an argument which has not

been raised by the appellant at any stage. The Moses case judgement did

not touch on this matter and this has not been raised as a focus of any

judgements so far. Where court rulings have referred to this matter the

references are conflicting. Clearly a further judicial review would be

needed to settle the issue once and for all but in view of the outcomes

of judicial action so far, I would not recommend this course of action

as part of this case as, whatever the outcome, it would not reflect well upon the boroughs. As always, should anyone wish to discuss this issue,

please feel free to contact me.

Yours sincerely

Nick Lester

Director, Transport, Environment and Planning

Enc.

BARNET JR JUDGEMENT 02 AUGUST 2006

1. INTRODUCTION Mr Justice Jackson set out the requirements of a Penalty

Charge Notice, as defined in S66(3) of the Road Traffic Act 1991, and in

the extension of decriminalised enforcement by the LLA Act 2000 to

include service of PCNs by post.

2. THE FACTS Mr Justice Jackson went through the wordings of the PCNs at

issue in detail. He pointed out that all the parties had agreed that, in

the case of the second PCN, the motorist (Mr Moses) had driven away

before the PCN could be issued. In both cases, the motorist made

representations to Barnet, which were rejected. He then appealed to the

Parking Adjudicator. The Adjudicator allowed the appeals against both

PCNs, on the facts of each case and because he found that the wording of

the PCNs (failure to specify a date of notice) made them invalid. Barnet

accepted the direction on both decisions, but applied for review on the

grounds that the Adjudicator had erred in his interpretation of the law

and that the PCNs were valid. Barnet did not request an oral hearing of

the review application, and did not submit further evidence. The

application was dismissed by another Adjudicator, who drew on an earlier

decision (Al’s Bar v. Wandsworth) in stating that the wording of a PCN

needed to show substantial compliance with the statutory requirements.

He emphasised the need for certainty.

3. PRESENT PROCEEDINGS Barnet claim that their PCNs were “substantially

compliant”. They said that the way time limits were described on the

Notice effectively added an extra day to the statutory requirement, but

that this did not matter as it did not cause prejudice to the motorist.

Mr. Justice Jackson noted the “helpful background” set out in the Chief

Adjudicator’s acknowledgement of service and noted that Barnet’s new PCN

does comply with the statutory requirements.

4. DATE OF NOTICE The judge referred back to the RTA ’91 requirements of

s.66(3) and confirmed that the date of notice must be on the charge,

otherwise the statutory purpose of sections 66((3) c-e is thwarted. He

went on to explain that the date of contravention and the date of notice

are usually the same, but not always because of the question of postal

issue and if a contravention was observed just before midnight, but the

PCN issue just after. He also indicated that the date of notice had to

appear on the main body of the ticket rather than just in the tear-off

payment slip. To illustrate this, he mentioned in detail the example

contained in the Al’s Bar decision of a motorist returning the slip with

payment, and then wishing to dispute the Council’s refusal to accept a

discounted payment. Mr Justice Jackson mentioned that the requirement of

the two dates, (contravention and notice), had been mentioned by

Adjudicators on more than one occasion. He emphasised that the statutory

requirement of the form of the PCN were simple and clear – compliance

was not difficult and a specimen form had been available for more than

10 years. Enforcing authorities therefore had no excuses for

non-compliance. The Barnet PCN showed the date of the contravention, but

not of the notice, therefore was not substantially compliant. Mr Justice

Jackson concluded this section of his judgement by stating that the

question of relevance did not arise because the statutory conditions of

the notice were not met, therefore financial liability did not arise.

5. EFFECT OF EXTRA DAY The judge stated that, in the light of his

decision, there was no need to pass judgement on the “effect of the

extra day” in the wording of Barnet’s PCN. He stated that it would be

necessary to consider further evidence to discover whether, in the case

of Barnet enforcement procedures, a prejudice did occur, but that this

was not necessary as he had already found that the PCNs were non-compliant.

6. CONCLUSION Barnet’s application for Judicial review was dismissed. Leave to appeal against the judgement was refused.

Excellent a Judge who's on our side AT LAST

I wonder what Justice Collins will think of his fellow Judge after that. To be a fly on the wall