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#Post#: 26329--------------------------------------------------
Re: Cambridge PCN OoT TE7 objected by local authority, waiting
TEC decision. N244 or not if rejected?
DIR By: ivanleo
Date: June 16, 2024, 4:18 pm
---------------------------------------------------------
[member=1502]cross_legend[/member] the standard rule in county
court proceedings is that the unsuccessful party has to pay the
costs of the successful party, there is no requirement to show
fault or unreasonable behaviour or anything of the sort. Part 27
of the Civil Procedure Rules disallows most costs in the small
claims track, but these are Part 75 proceedings and not Part 27
proceedings, so the small claims track rules are irrelevant.
[member=634]Nosy Parker[/member] is a solicitor so if he's
available it avoids any questions around rights of audience. In
the alternative I could attend as your McKenzie friend, but
whether I would be allowed to speak on your behalf would be at
the absolute discretion of the judge.
As long as we can put together a proper witness statement
exhibiting all the key documents, including in particular your
correspondence with TEC, we should have more than enough to
persuade the judge that on the balance of probabilities the OfR
was not received and therefore an out-of-time application should
be allowed. The point that then needs to be argued is that as
the unsuccesful party, the applicant (i.e. the council) should
pay the respondent's costs (i.e. your costs).
However we cannot guarantee that you will recover your costs, so
ultimately you need to decide whether you want to take the risk
of pursuing this further.
#Post#: 26384--------------------------------------------------
Re: Cambridge PCN OoT TE7 objected by local authority, waiting
TEC decision. N244 or not if rejected?
DIR By: cross_legend
Date: June 17, 2024, 3:58 am
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hi let me answer [member=13]Neil B[/member] 's question first:
The reason why I didn't do ... all boils down to one answer "I
didn't know". This is the first time I got a ticket. If I get
one in the future then I will know that to follow the payment
portal should be the most effective way...
As to whether the mail should be considered served, I found a
reply from law stackexchange
(
HTML https://law.stackexchange.com/questions/16452/is-there-a-legal-requirement-in-the-uk-to-receive-physical-post),<br
/>where it says "The case made it clear that the same law also
sets a condition, where if the letter was not received at said
mailbox, or too late received, the notice is to be deemed not
served. The receiver is not required to prove that the letter
has not arrived in the mailbox.". The article it refers to is
not accessible now, but by searching with keywords in the link I
managed to find the case: Calladine-Smith v Saveorder Ltd [2011]
EWHC 2501 (Ch)
(
HTML https://www.bailii.org/ew/cases/EWHC/Ch/2011/2501.html,
and an
interpration here
HTML https://www.casemine.com/judgement/uk/5a8ff7bc60d03e7f57eb1a9e).<br
/>In my case my correspondence with TEC might be deemed as
"contrary intention" perhaps?
Then back to [member=1]cp8759[/member], my general feeling is
that TE7 is routinely denied and the higher cost of N244 becomes
a utility to prevent people from reviewing rather than give them
a fare chance. This doesn't seemed to be right and I will be
glad to do my share to make a counter case. I understand no one
can guarantee it will work, but if you do think we have a fare
chance to win then I can take the risk. Just please do make the
argument strong and make sure either [member=634]Nosy
Parker[/member] or you will be present.
Your reasoning about Part 27 and Part 75 seems to be convincing.
I am just wondering whether it is CCC or TEC that will be the
unsuccessful party suppose the judge is willing to grant the
cost? Will that become a problem for the county judge to come
to a decision and for me to collect the fee back later?
#Post#: 26392--------------------------------------------------
Re: Cambridge PCN OoT TE7 objected by local authority, waiting
TEC decision. N244 or not if rejected?
DIR By: Neil B
Date: June 17, 2024, 4:43 am
---------------------------------------------------------
--- Quote from: cross_legend link ---
>
> I am just wondering whether it is CCC or TEC that will be the
unsuccessful party suppose the judge is willing to grant the
cost?
--- End Quote ---
The relevant practice direction in CPR 75 says -
"Any review of that order by a district judge will only be a
review of the decision to refuse the application for further
time for filing a statutory declaration or witness statement."
Based on that I would say the unsuccessful party would be TEC as
your application has been refused by a TEC Court Officer.
#Post#: 26394--------------------------------------------------
Re: Cambridge PCN OoT TE7 objected by local authority, waiting
TEC decision. N244 or not if rejected?
DIR By: Enceladus
Date: June 17, 2024, 4:50 am
---------------------------------------------------------
I doubt if you will get the N244 fee refunded, even if your
review application is granted. Not unless you qualify for EX160
fee remission.
HMCTS (HM Courts and Tribunals Service) take the view that it is
a fee for a review and won't refund. The TEC is part of the
HMCTS. The Adjudicator can award costs against the Enforcement
Authority but very rarely does. And certainly won't if you lost
an appeal at the Tribunal.
The N244 fee issue was extensively discussed on PePiPoo and
nobody has ever produced a solid case where a refund was
actually received.
I vaguely recall that somebody traced the matter back to a
memorandum from the Lord Chancellor's Office but that doesn't
seem to be in the public domain.
Bailiff Advice Online
HTML https://bailiffadviceonline.co.uk/
should know.
#Post#: 26421--------------------------------------------------
Re: Cambridge PCN OoT TE7 objected by local authority, waiting
TEC decision. N244 or not if rejected?
DIR By: cross_legend
Date: June 17, 2024, 7:58 am
---------------------------------------------------------
I checked Part 75.2 of CPR, it states:
--- Quote ---
> (a) the Centre is deemed to be an office of the County Court;
and
> (b) any officer of the Centre, in exercising its functions, is
deemed to act as an officer of the County Court.
--- End Quote ---
So it seems to be right that TEC is part of HMCTS and the fee is
for the review. The local authority should be "the other party".
I checked the letter from TEC, it appears TEC poses themself
between local authority and me and make a "court decision
without hearing". So even TEC has made a faulty decision it
doesn't seem to be possible to get the fee back from them.
I also checked Part 44.2 of CPR. It does state in 2(a) that:
--- Quote ---
> (a) the general rule is that the unsuccessful party will be
ordered to pay the costs of the successful party
--- End Quote ---
as [member=1]cp8759[/member] has mentioned.
But judging from the context around, this order of costs is
fully at the judge's discretion. And in 4) it also states:
--- Quote ---
> (4) In deciding what order (if any) to make about costs, the
court will have regard to all the circumstances, including –
> (a) the conduct of all the parties;
> (b) whether a party has succeeded on part of its case, even if
that party has not been wholly successful; and
> (c) any admissible offer to settle made by a party which is
drawn to the court’s attention, and which is not an offer to
which costs consequences under Part 36 apply.
--- End Quote ---
This might explain what [member=38]Enceladus[/member] provided
that the judge rarely does this. Inspired by 4(c), I wonder
whether it's good idea to write to CCC to ask them to settle the
PCN at it's initial value £35? If they refuse or do not respond,
may be it will add to our ammunition if we want to run the cost
argument?
--- Quote from: Enceladus link ---
>
> I doubt if you will get the N244 fee refunded, even if your
review application is granted. Not unless you qualify for EX160
fee remission.
>
> HMCTS (HM Courts and Tribunals Service) take the view that it
is a fee for a review and won't refund. The TEC is part of the
HMCTS. The Adjudicator can award costs against the Enforcement
Authority but very rarely does. And certainly won't if you lost
an appeal at the Tribunal.
>
> The N244 fee issue was extensively discussed on PePiPoo and
nobody has ever produced a solid case where a refund was
actually received.
>
> I vaguely recall that somebody traced the matter back to a
memorandum from the Lord Chancellor's Office but that doesn't
seem to be in the public domain.
>
> Bailiff Advice Online
HTML https://bailiffadviceonline.co.uk/
should know.
>
--- End Quote ---
#Post#: 26453--------------------------------------------------
Re: Cambridge PCN OoT TE7 objected by local authority, waiting
TEC decision. N244 or not if rejected?
DIR By: H C Andersen
Date: June 17, 2024, 3:03 pm
---------------------------------------------------------
OP, can we leave 'costs' to one side pl and get back to notices.
You say:
Postal PCN not received;
Charge Cert received;
Council's response to your late reps(you omitted these from you
account but the council's objection shows they were made) not
received;
OfR not received;
Council's objection received;
TEC's refusal letter received.
Shouts a problem with your address, not Royal Mail. They might
deliver late, but 2 notices and a letter sent first-class??
Get out your V5C and check this address against postcode
finder(
HTML https://www.royalmail.com/find-a-postcode).
Is your V5C
address the same in all particulars as listed on the RM site and
is the V5C address the same in all respects as those on the CC
AND is the address used on the council's objection - which you
received- the same as the CC AND is the address you wrote on
your OOT the same as the V5C?
#Post#: 26466--------------------------------------------------
Re: Cambridge PCN OoT TE7 objected by local authority, waiting
TEC decision. N244 or not if rejected?
DIR By: ivanleo
Date: June 17, 2024, 5:05 pm
---------------------------------------------------------
Well you obviously won't ever get any sort of refund from TEC,
TEC has judicial immunity because it exercises a judicial
function.
It is correct to say that costs are a discretionary remedy, but
then all costs in all cases are discretionary. There are enough
books on the question of costs to fill several libraries, there
are specialist costs lawyers and specialist cost judges, so
there's no point in trying to summarise the immense body of law
that exists on the question of costs. There are 64 pages of
cases on
HTML https://www.civillitigationbrief.com/category/costs-2/<br
/>if you fancy reading some case law on the subject.
Suffice to say, the starting position is always that costs
should follow the event and that rule only seems to be departed
from when there is some truly compelling reason.
As for why costs are never awarded in Part 75 proceedings,
that's because as far as we are aware nobody has ever asked, let
alone provided a properly structured argument as to why they
should be awarded (which is hardly surprising given how many
people who deal with Part 75 have little to no familiarity with
any over part of the CPR). Costs are very much a "don't ask,
don't get" scenario.
#Post#: 26507--------------------------------------------------
Re: Cambridge PCN OoT TE7 objected by local authority, waiting
TEC decision. N244 or not if rejected?
DIR By: cross_legend
Date: June 18, 2024, 1:14 am
---------------------------------------------------------
Actually it's 2 notices missing. the 3rd one, council's response
to late representation was received. I didn't post it here since
I think it is irrelevant, but I've marked in the picture with
red font that it was received.
The address on V5C is always correct, otherwise I won't get the
charge certificate or anything else. The last 2 notices,
council's objection and TEC's refusal came to the new address I
am living now. The moving was after the order for recovery date,
I updated V5C records on time and so far I haven't have any post
issues here.
I can't explain why royal mail first class is not reliable, the
fact I know is that all post services around the apartment I
lived are awful.
- The first day I moved in, there was a notice on the bulletin
board from estate management: "check your mailbox regularly or
you risk having them picked, especially those containing bank
cards"
- When I returned home I often found mail with envelope sticking
out of the mailbox so anyone can take them easily.
- In the facebook group we constantly see people shouting "where
is my parcel?", "whose parcel is this?". I've personally
forwarded a parcel delivered to my address while it should be
others.
- I once subscribed to a magazine, 2 out of 12 issues were
missing.
Around last September when the PCN was served I checked up my
mailbox every several days. But by the time the order for
recovery was issued, that's January, I did check my mailbox
daily because I was expecting the order for recovery to arrive.
But no, it was not there.
--- Quote from: H C Andersen link ---
>
> OP, can we leave 'costs' to one side pl and get back to
notices.
>
> You say:
> Postal PCN not received;
> Charge Cert received;
> Council's response to your late reps(you omitted these from
you account but the council's objection shows they were made)
not received;
> OfR not received;
> Council's objection received;
> TEC's refusal letter received.
>
> Shouts a problem with your address, not Royal Mail. They might
deliver late, but 2 notices and a letter sent first-class??
>
> Get out your V5C and check this address against postcode
finder(
HTML https://www.royalmail.com/find-a-postcode).
Is your V5C
address the same in all particulars as listed on the RM site and
is the V5C address the same in all respects as those on the CC
AND is the address used on the council's objection - which you
received- the same as the CC AND is the address you wrote on
your OOT the same as the V5C?
>
--- End Quote ---
#Post#: 26510--------------------------------------------------
Re: Cambridge PCN OoT TE7 objected by local authority, waiting
TEC decision. N244 or not if rejected?
DIR By: cross_legend
Date: June 18, 2024, 1:44 am
---------------------------------------------------------
hi [member=1]cp8759[/member], thanks for your explanation.
Yesterday afternoon I sent a email to CCC, asking whether they
are willing to settle it at the original amount of £35, together
with all the evidences (TE7, TE9, correspondence with TEC). I
have suspected that TEC might not have forwarded all the
evidences to CCC, because they are sent to TEC as mail
attachments with the TE7 form. If CCC still reject my proposal
then it could be something the judge will consider while
assessing the cost, at least from my understanding of the CPR.
Here is what I an going to do: I will wait until next Monday
which is 24th June (TEC rejection dated 12th so this should be
the 12th day, leaving some room for processing) for CCC's
response. If they reject or no response is received then I will
file the N244 with hearing.
The problem is that can I send the N244 to TEC by email and pay
online (this way I can do it on 24th), or I have to do this by
royal mail? If it has to been done by royal mail then I have to
leave more room for the time of delivery? Does anybody have any
experience with it?
Another issue is that if I am away from home, will this become a
problem for the hearing? For example the notice for the hearing
is not received while I am away or the hearing is scheduled at a
date I can't attend?
--- Quote from: cp8759 link ---
>
> Well you obviously won't ever get any sort of refund from TEC,
TEC has judicial immunity because it exercises a judicial
function.
>
> It is correct to say that costs are a discretionary remedy,
but then all costs in all cases are discretionary. There are
enough books on the question of costs to fill several libraries,
there are specialist costs lawyers and specialist cost judges,
so there's no point in trying to summarise the immense body of
law that exists on the question of costs. There are 64 pages of
cases on
HTML https://www.civillitigationbrief.com/category/costs-2/<br
/>if you fancy reading some case law on the subject.
>
> Suffice to say, the starting position is always that costs
should follow the event and that rule only seems to be departed
from when there is some truly compelling reason.
>
> As for why costs are never awarded in Part 75 proceedings,
that's because as far as we are aware nobody has ever asked, let
alone provided a properly structured argument as to why they
should be awarded (which is hardly surprising given how many
people who deal with Part 75 have little to no familiarity with
any over part of the CPR). Costs are very much a "don't ask,
don't get" scenario.
>
--- End Quote ---
#Post#: 26544--------------------------------------------------
Re: Cambridge PCN OoT TE7 objected by local authority, waiting
TEC decision. N244 or not if rejected?
DIR By: H C Andersen
Date: June 18, 2024, 6:29 am
---------------------------------------------------------
Actually it's 2 notices missing. the 3rd one, council's response
to late representation was received. I didn't post it here since
I think it is irrelevant,
Doesn't help when info is withheld from a timeline.
My previous post asked you to compare your V5C with postcode
finder because this is RM's database and represents the
'correct' version of addresses. DVLA don't cross-check, they
simply record what's submitted. If, perhaps out of custom and
practice, an occupier chooses to use a form of address which
does not correspond to the finder database then that's their
choice and risk. So..
..would you pl confirm that your V5C address is exactly as found
in the finder database and that the CC was addressed to your
first V5C address.
You've confirmed that your V5C address is 'always up to date'.
However, experience suggests that this can take on different
meanings.*
As regards other aspects of process which are implied by your
account, the authority are required to use the DVLA RK address
in all notices unless you notify them formally to the contrary.
However, correspondence does not follow this rule. So, their
objection to your OOT would be sent to the address you used in
the OOT, similarly with other simple correspondence.
*- I had a case recently where the address used by an authority
was not as per DVLA. The authority made simple mistakes in that
they mis-formatted the address so that it took up an additional
line in the address block and this meant that when entered on to
the PCN the post code was missing. However, the CC had more room
and was delivered, but the OfR didn't and wasn't.
In this process there is no substitute for physically checking.
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