Deeming & Restitution of unjust enrichment
There is a near-universal unlawful refusal of Civil Parking Enforcement councils to refund paid parking penalties following a revelation that some illegality is associated with the issuing of those PCNs.
These notes summarise facts material to this issue and explain the gross misconduct on the part of such councils who energetically seek to sustain the profitable illegality of their actions. Reference here to councils applies equally to any authority engaged in CPE.
Specious and false council statements
The basis of these notes is the stereotyped statement frequently issued by spokespersons for these councils (not least by Nick Lester on behalf of all London boroughs). It is:
“Payment of the penalty is deemed to constitute an admission of guilt”
(or - “an admission of liability”)
The spokesperson of such statements reprehensibly is:
ignorant, should not make proclamations about matters of which he/she knows nothing, and should not purport that he/she does, or
is blatantly dishonest for making a statement with wilful intent to deceive the recipient(s) by making a misleading false implication
Deeming
With one exception , “deeming” means holding an opinion – and nothing more. An enforcing council is free to deem what it likes, however foolish or irrational; it has no more validity and effect than an aggrieved motorist who deems council officers to be charlatans.
In fact it has less effect because, in the statement in question, the meaning implied by such a council statement cannot possibly be established because it is untrue, whereas the example opinion deemed by an aggrieved motorist can sometimes be correct and provable.
What a council is purporting by their meaningless statement that “payment of a penalty is deemed to be an admission of liability” is that it is actually established in law that payment of a penalty does actually constitute an admission of liability.
This nonsense is false for impossibility so it inevitably constitutes misconduct on the part of those who seek to imply that such statements are based on legal fact or, where such statements are recklessly made in ignorance by spokesmen such as councillors, then misconduct lies with their officer colleagues who never refute such false assertions uttered in the council’s name.
Liability
The financial liability to a council on the part of a motorist in respect of a PCN arises ONLY if all of several statutory conditions necessary to enable the issuing of a lawful PCN have been met by the council. The traffic order and the traffic signs on the street must comply with and be implemented in accordance with all statutory conditions. Further, the creation and presentation of the subject PCN, together with all subsequent enforcement documentation, must also comply with all statutory provisions including textual content and omissions, and time issues, otherwise the PCN is inevitably invalid.
If ANY of these statutory conditions has not been met by an enforcing council then no financial liability on the part of a motorist can possibly arise.
The dictum of Mr Justice Jackson in the High Court in August 2006 made this explicitly clear in LB Barnet v The Parking Adjudicator :
“The 1991 Act creates a scheme for the civil enforcement of parking control. Under this scheme, motorists become liable to pay financial penalties when certain specified statutory conditions are met”.
“If the statutory conditions are not met, then the financial liability does not arise”.
(the Road Traffic Act 1991 has been superseded by the Traffic Management Act 2004 -since 31st March 2008 – with no change to this situation)
Of the massive number of motorists in receipt of PCNs where not all of the statutory conditions were met by the enforcing council, many will be persuaded (usually mischievously) by the council that they HAD been in contravention of some traffic order parking restrictions. Some motorists genuinely, but wrongly, believe that they had actually been in a contravention legitimately subject to a penalty whereas they were misled into that erroneous opinion by appearances or wrongful persuasion.
Liability or not to pay a penalty turns on the facts and ONLY the facts of the situation. The opinion of a motorist as to his assumed liability is immaterial as is the opinion of the council.
After a PCN is found to be unenforceable
The commonplace situation (on which these notes are based) arises when some PCN is cancelled at a tribunal appeal because the adjudicator has established, for example, that the subject parking bay(s) were non compliant, or that there was a procedural impropriety in the enforcement process, this leading automatically to the situation that others (often very many others) who paid demanded penalties were inevitably in the same situation having been penalised when the statutory conditions essential for the lawful demanding and taking of penalty payments had not been met by the enforcing council.
In automatic consequence of such an appeal decision the following facts arise:
1. None of the other motorists who paid the penalties (and any consequential further penal payments) could have incurred a financial liability to the council.
2. The “deeming” of anything by the council in relation to the matter is irrelevant opinion of no legal substance or effect.
3. All penalty monies taken by the council will have been demanded and taken in error as a mistake in law.
4. Despite prior erroneous assumptions, the total of penalty money received by the council had never come lawfully into the possession of the council which, accordingly, cannot have acquired a lawful title to this money.
5. The council will have become “unjustly enriched” by the total of the penalty payments now established to be not in the council’s ownership, possibly innocently, the council having been unjustly enriched at the expense of the motorists who paid the penalties.
6. Any established situation of any unjust enrichment automatically invokes the common law remedy of restitution to those at whose expense the unjust enrichment occurred.
7. Because, in almost all cases, the payers of the penalties and their last known addresses are discoverable, there is no necessity for action on the part of payers of the penalties to seek restitution, the onus automatically lies with the council proactively to establish the payers’ identities and make the necessary restitution by refunding not less than the penalty sums wrongly taken and held on the payers’ account by the council.
8. A very small minority of councils and enforcement agencies have made such proactive restitution but the great majority who have not, by wilfully retaining the penalty money to which they have no title, have embarked voluntarily on criminal activity.
9. An enforcing council that wilfully retains money unlawfully-derived from penalties after it has been established that the penalties were wrongfully-demanded is knowingly in the unlawful possession of property they do not own, this inevitably constituting theft contrary to the Theft Act 1968 or some variant of this crime.
10. Not only does criminal intent and its consequences arise from an council’s refusal to remedy their unjust enrichment, a situation of financial compensation to the penalty payers arises in addition to refunding of the penalties, compensation entitlement accruing from the date of establishing the obligation to make restitution (or soon afterwards).
11. It is a material aspect of a council’s refusal to refund wrongly-taken and retained penalty monies that the council has no power whatsoever to decide any matter relating to the unlawfully-derived income of which it has no ownership, it being incumbent on such a council to divest itself of the monies to the known or knowable lawful owners without delay.
Legal opinion on the matter
Apart from, and more serious, than the meaningless irrelevance of what an enforcing council purports to “deem” on these matters as if it were factual, some counsel advice procured by or on behalf of enforcing councils has actually suggested (note “suggested”) that “there is no need to refund penalty payments made in the unlawful circumstances in which there was no legal liability on the part of motorists to make payment”. By the same reasoning, a person who acquires a valuable antique innocently from a dubious supplier and later discovers it to be property stolen from a discovered owner “has no need to take any action” !
It should be realised that councils frequently procure legal advice on various matters, often at great expense, with sight of this advice being either systematically refused to persons affected by it or bowdlerised with significant redactions (omissions). This procurement of legal advice is frequently not for the purposes of enlightenment; it is for the objective of resisting and suppressing objections to the councils’ unlawful conduct.
In such circumstances, counsels providing such legal advice in these circumstances will state, to the maximum extent that is not actually untruthful and often in a specious manner, what the councils want them to state in support of their entrenched position. That is what the advising counsels are paid to do.
The main objective of these exercises is to enable the councils to claim support for their unlawful or tenuous position with the magic words that “they have taken legal advice”, this having been speciously and mischievously to purport that a council’s position on the issue is correct and unassailable “because their legal advice has confirmed it”.
These pronouncements by councils of legal support for their unlawful position on refunding wrongly-taken and retained penalty payments can sometimes be seen to constitute misconduct in support of their indefensible positions. They are frequently unmeritorious and of little or no worth – except to deny massive numbers of penalty payers the overdue return of their own money.
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