...and also issue a charge certificate whilst considering an appeal.
Register Kept Under Regulation 20 of the Road Traffic (Parking Adjudicators)(London) Regulations 1993, as amended or Paragraph 21 of the Schedule to the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007, as applicable
Case Reference: 2120364502
Penalty Amount: £80.00
Contravention: Parked after the expiry of paid for time
Decision Date: 20 Aug 2012
Adjudicator: Neeti Dhanani
Appeal Decision: Allowed
Direction: cancel the Penalty Charge Notice and the Notice to Owner.
Reasons: The appellant attended the hearing before me. He reiterated the statements made in his appeal and he complained that he had received a letter telling him that the penalty had increased to £120. He produced a copy of a Charge Certificate dated 7 th June.
It is of some concern that the Authority has made no mention of the fact that a Charge Certificate had been issued. In addition the date of issue of the Notice to Owner is not clear from the evidence produced by the Authority. Fortunately the appellant was able to assist and produced a full copy of the Notice to Owner. The Notice to Owner is dated the 8 th May, the Charge Certificate is dated 7 th June and the Notice of Rejection is dated 2 nd July.
I would remind the Authority of the principle expressed in Miah v Westminster (PATAS Case No. 2050339777) where the issue of a Charge certificate when an appeal was pending was found to be a procedural impropriety. The principle expressed in Miah applies equally to this case.
The issue of a Charge Certificate whilst the appellant awaits a response to its representations is an unlawful demand for money, coupled with the threat of court action. For a public authority to issue such a document is utterly unacceptable. The Authority is required to produce the full correspondence folder, if certain items of correspondence have been omitted, an explanation should be given. To fail to include a copy of a formal notice issued as part of the enforcement process in the evidence folder is unacceptable as it is a failure to disclose material evidence and is tantamount to misleading the adjudicator.I find that there has been a procedural impropriety on the part of the Authority and so I allow the appeal.
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Costs Decision
Application By Appellant
Decision Date 11/2/2012 3:50:42 PM
Adjudicator Neeti Dhanani
Decision Allowed
Direction The Local Authority is directed to pay a sum of £95.00 to the Appellant
Reasons
The Appellant appeared at a personal hearing of his appeal before me. The Appellant has submitted an application for costs.
Paragraph 13 of Part 2 of the Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007 provides:
"(1) The adjudicator shall not normally make an order awarding costs and expenses, but may, subject to subparagraph (2) make such an order-
(a)against a party (including an appellant who has withdrawn his appeal or an enforcement authority which has consented to an appeal being allowed) if he is of the opinion that that party has acted frivolously or vexatiously or that his conduct in making, pursuing or resisting an appeal was wholly unreasonable; or
(b)against an enforcement authority where he considers that the disputed decision was wholly unreasonable.
(2) An order shall not be made under subparagraph (1) against a party unless that party has been given an opportunity of making representations against the making of the order.
(3) An order under subparagraph (1) shall require the party against whom it is made to pay to the other party a specified sum in respect of the costs and expenses incurred by that other party in connection with the proceedings."
The appellant contends that the Authority acted wholly unreasonably and frivolously in resisting an appeal and in failing to disclose to the Tribunal that a Charge Certificate had been issued prior to the Notice of Rejection.
The Authority has made no submissions on the application for costs.
Having considered the matter, I find that although the Authority's reliance on the evidence recorded by the civil enforcement officer to issue the Penalty Charge Notice was not wholly unreasonable, frivolous or vexatious, I find their pursuit of the enforcement of the Penalty Charge Notice and their conduct in relation to the appeal to be wholly unreasonable, frivolous for the reasons stated in my decision.
I therefore find that the appellant is entitled in principle to an order for costs and expense in this case.
The above regulations provide that the sum specified in an order for costs should be in respect of the costs and expenses incurred by that other party in connection with the proceedings. Thus the order for costs is limited to the costs and expense in connection with the appeal.
The appellant has claimed costs in the sum of £235 as set out in his application.
I allow the following sums:
Travel costs 160 mile @ £0.45 per mile = £72
Parking =£08
Postage (not supported by receipts) =£15
The claim for loss of earnings is disallowed. This tribunal has a flexible hearing system and parties may have their cases heard early mornings, evenings and on Saturdays. There should not be a need to take time off work in order to attend a hearing.
I direct that the Authority pay the sum of £95 to the appellant.
