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    • Hi @BankFodder
      Sorry for only updating you now, but after your guidance with submitting the claim it was pretty straight forward and I didn't want to unnecessarily waste your time. Especially with this guide you wrote here, so many thanks for that
      So I issued the claim on day 15 and they requested more time to respond.
      They took until the last day to respond and denied the claim, unsurprisingly saying my contract was with Packlink and not with them.
       
      I opted for mediation, and it played out very similarly to other people's experiences.
       
      In the first call I outlined my case, and I referred to the Contracts (Rights of Third Parties) Act 1999 as the reason to why I do in fact have a contract with them. 
       
      In the second call the mediator came back with an offer of the full amount of the phone and postage £146.93, but not the court costs. I said I was not willing to accept this and the mediator came across as a bit irritated that I would not accept this and said I should be flexible. I insisted that the law was on my side and I was willing to take them to court. The mediator went back to Hermes with what I said.
       
      In the third call the mediator said that they would offer the full amount. However, he said that Hermes still thought that I should have taken the case against Packlink instead, and that they would try to recover the court costs themselves from Packlink.
       
      To be fair to them, if Packlink wasn't based in Spain I would've made the claim against them instead. But since they are overseas and the law lets me take action against Hermes directly, it's the best way of trying to recover the money.
       
      So this is a great win. Thank you so much for your help and all of the resources available on this site. It has helped me so much especially as someone who does not know anything about making money claims.
       
      Many thanks, stay safe and have a good Christmas!
       
       
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    • Hermes and mediation hints. https://www.consumeractiongroup.co.uk/topic/428981-hermes-and-mediation-hints/&do=findComment&comment=5080003
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    • Natwest Bank Transfer Fraud Call HMRC Please help. https://www.consumeractiongroup.co.uk/topic/428951-natwest-bank-transfer-fraud-call-hmrc-please-help/&do=findComment&comment=5079786
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Hi, 
My girlfriend and I were driving in East London a couple of days back when a crazy hail/rain storm passed over, like Biblical crazy.
The visibility dropped to about 5m as the rain and hail lashed down.

My girlfriend pulled over to the side/curb of the road (the bus lane) as it was unsafe to continue travelling, after about 30seconds the storm had passed and visibility returned and she continued her journey.

 

She got a PCN through that shows a picture of her in the bus lane.
The picture shows the rain the puddles look like there are boiling.
It also shows another car taking the same precautionary action.

I've had a look through the Highway code, but cannot see anything about what happens if adverse weather temporarily restricts your vision.

Can anyone help out?
 



 

IMG_0310.jpg

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Well of course if you want to challenge this then you will probably have to go to court.

The prosecution authorities are stupid enough to decide to make an issue of it and to take you to court – but I can scarcely imagine that the magistrates would be stupid enough to confirm the penalty.

It seems to me that you can call in aid https://www.highwaycodeuk.co.uk/driving-in-adverse-weather-conditions.html which doesn't specifically tell you to stop if driving becomes impossible, but clearly it makes an issue of heavy weather and tells you to do almost everything else – except to stop. However, this is an omission. It doesn't actually say "do not stop".

Second thing I would rely upon would be a defence of "self defence". This is a common law defence – and seems exclusively to be used in terms of using reasonable force – but why "force" should be limited to physical force – I don't think that there is any particular reason that it should be.

I think that if you reasonably apprehended danger or imminent harm to yourself or maybe to other road users then I think you are entitled in those circumstances to break the law – and take prudent action.

I think that any reasonable magistrate could find you not guilty – and if they felt a bit hemmed in by all then maybe they would simply give you a conditional discharge. No fine. No points.

 

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Might be worth writing to the motoring organisations AA and RAC and see if they offer an opinion.  Could help you with the magistrates if it gets that far.

 

My own opinion for what it is worth (not a legal or driving expert) is that in exceptional circumstances where you don't believe it is safe to continue then you are right to stop.  The fact that another motorist took the same decision is a good indication of how bad the conditions were.

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This is a moving traffic offence and is dealt with by appealing to the council and subsequently to an adjudicator at the London Tribunals. There is no magistrates court involved and no chance of points on your licence.

 

The crucial evidence is the video, which can be viewed on the council's website. Does this show you actually stopping ?

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Whoops! Thanks for that, I think I must have been getting a bit overdramatic.

However the principle still stands – put all the arguments that I suggested to the adjudicator. There is even less chance that the decision to give you the penalty will be upheld

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Put the arguments anyway

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On ‎11‎/‎06‎/‎2020 at 18:40, Michael Browne said:

This is a moving traffic offence and is dealt with by appealing to the council and subsequently to an adjudicator at the London Tribunals. There is no magistrates court involved and no chance of points on your licence.

 

The crucial evidence is the video, which can be viewed on the council's website. Does this show you actually stopping ?

 

And does it show how torrential the rain was, suggesting it was safer to stop than to continue driving?  It might be a problem if the council could still see well enough on the camera feed to identify your reg. number.  But without seeing the video (as opposed to a screenshot) impossible to judge.

 

I'd be making reps to the council along the lines that the rain was so heavy that your vision was so obscured that you considered it too risky and dangerous to continue moving, so that circumstances outside your control forced you to stop, and that you should not be penalised for acting in the interests of safety.  Also ask them to use their residual discretion to cancel the ticket (they aren't forced to charge you...)

 

The PCN should give details of how to make representations to the issuing council.

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31 minutes ago, spaceman61 said:

No, don't "put the arguments anyway". Not to an adjudicator. They are barred by the High Court from considering mitigation.

 

Think of something else.

Thank you for this. Maybe you can link us to your source of information which will tells us about the adjudicators powers.

in any event this is not mitigation. It is a defence.

Mitigation would be a plea which attempts to reduce the severity of the harm which might have been caused. For instance you might want to say that yes you did stop there but it was only for a minute. Or yes, you had stopped there but there was nobody else around so you didn't get in anybody's way.

These would be good examples of mitigation.

We are advising the OP to say that they stopped there for the reasons of safety and also to avoid carrying out a more serious offence which might have been dangerous driving in view of the the weather conditions and the lack of visibility.

This would be a defence. Not a mitigation.

the reason for the stopping was apart from anything else based on the regulations contained in the highway code

 

 

 

 

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I think spaceman might be right that adjudicators can't consider mitigation*.  But I agree I'd be putting forward "I had to drive into the bus lane in order to pull over because I couldn't see through the rain and it would be dangerous to continue" as an outright defence (ie the offence never happened) and not as mitigation.  If you had to stop on a red route because the road ahead was blocked and you couldn't continue because it would be dangerous to do so, I'd say that was a cast-iron defence to stopping on a red route - not that you'd committed the offence but had mitigation.

 

*I think it's either the traffic offence was committed or it wasn't.  If it was, the penalty is prescribed - no mitigation.  But the enforcing council always has discretion not to enforce - if they consider it appropriate.  The current example might be appropriate.

 

(I'd missed in my post last night it wasn't a stopping offence but a bus lane offence.  I think the same arguments still apply)

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Well there must be some document somewhere which explains the extent of adjudicator powers. And in any event, the argument should be put. And once again, it's not mitigation it's a defence

 

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Yes, it's a defence. But it is not one that can be put to an adjudicator. Pulling to the side of the road in the rain, no matter how heavy, is not one of the statutory grounds of appeal.

 

And yes, there is a document which sets out the limit of an adjudicators powers. It's been around for 15 years and I attach it.

 

It's well worth a read by those who do not understand these limitations.

 

 

 

 

WalmsleyJudgmentCA171205.pdf

Edited by spaceman61
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Thank you. This case refers to congestion charge and also refers to a judgement relating to a parking ticket.

There are makes it clear that an adjudicator has no discretion.

Do you have any access to the regulations or requirements relating to moving traffic offences?

I'm still going to say that the argument should be put.

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you could look up force majeure and see if there are any cases that fit in with your circumstance.

Usually this applies to contract but can apply to a situation where an irristible force or compulsion applies. 

Now if the place was struck by an earthquake the argument would be impossible to refute but what you will be trying to argue is the same but to what degree? did anyone else pull over for example? I see a second vehicle in the bus lane so possibly not a unique action.

On the plus side you dotn have to pay more if you lose the appeal but you do lose the discount.

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