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#Post#: 43985--------------------------------------------------
Woking Railway Station - Railway byelaw
DIR By: FaeLLe
Date: November 4, 2024, 3:44 pm
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Hello everyone,
I came across a post about a PCN similar to the one rhw
registered keeper of a vehicle I know received and wanted to see
what the latest advice is.
The registered keeper got a 'PENALTY NOTICE' in the post today
stating APCOA as the Creditor. The alleged Offence was said to
take place on 02 AUGUST 2024 with the Notice being issued on 28
OCTOBER 2024.
The driver indicated the signs at the Railway station were
defaced on the day and there is no evidence of valid signs in
the APCOA notice.
They are seeking enforcement through Railway Byelaw 14 and have
indicated that the keeper is assumed to be the driver unless
proven otherwise. This seems very strange to me...
Either way since Byelaw offences are summary offences they can
only be tried in the Magistrates and hence there is a six month
time limit to bring proceedings, I believe APCOA is now chasing
close to the deadline to make sure they dont miss it. MSE forum
seems to indicate a few people have now been prosecuted under
Byelaw 14.
What should I do next? I should engage them under Pre Action
Protocol per CPR to avoid further costs for sure?
What are the key points of defence?
HTML https://i.imgur.com/Ya0UglH.jpeg
HTML https://i.imgur.com/QdQTrUq.jpeg
#Post#: 43987--------------------------------------------------
Re: Woking Railway Station - Railway byelaw
DIR By: DWMB2
Date: November 4, 2024, 3:51 pm
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--- Quote from: FaeLLe link ---
>
> MSE forum seems to indicate a few people have now been
prosecuted under Byelaw 14.
>
--- End Quote ---
Can you share a link to any such cases? It would be the first
time I'd ever seen APCOA take any sort of court action, civil or
criminal.
#Post#: 43989--------------------------------------------------
Re: Woking Railway Station - Railway byelaw
DIR By: FaeLLe
Date: November 4, 2024, 3:54 pm
---------------------------------------------------------
--- Quote from: DWMB2 link ---
>
> [quote author=FaeLLe link=topic=3750.msg43985#msg43985
date=1730756655]
> MSE forum seems to indicate a few people have now been
prosecuted under Byelaw 14.
>
--- End Quote ---
Can you share a link to any such cases? It would be the first
time I'd ever seen APCOA take any sort of court action, civil or
criminal.
[/quote]
Not sure if it was APCOA but this post said Railway Byelaw 14
protection took place (2014 post):
HTML https://forums.moneysavingexpert.com/discussion/4928095/railway-byelaw-14-ntk
#Post#: 44082--------------------------------------------------
Re: Woking Railway Station - Railway byelaw
DIR By: b789
Date: November 5, 2024, 8:12 am
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APCOA will not and cannot initiate a prosecution under railway
bylaws. The thread from 2014 you referred to is about the actual
"authority", the Train Operating Company (TOC), initiating a
prosecution in the magistrates court. They are entitle to do so.
APCOA have issued what is, in effect, an "offered contract",
that if you bribe them £100, they will not prosecute you. The
fact that they can't prosecute you is because they have no
authority to do so.
Under which authority is it stated in the Penalty Notice (PN)
you received that APCOA are acting as an agent of? Any penalty
paid under a bylaw, must go to the authority that is authorised
ti enforce the byelaws, not APCOA's company bank account. If you
want to dispute the penalty, ultimately, it must be disputed as
a criminal matter in the magistrates court and the penalty still
goes to the authority and any additional fine goes to the public
purse.
In other words, it is a fake Penalty Notice. The only action you
should take is to report them to Action Fraud
HTML https://www.actionfraud.police.uk
.
Ignore any reminders and debt collector letters. After 6 month
this will all be over as there is a statute of limitation on
real bylaw penalties of 6 months. APCOA cannot and would never
prosecute this in a magistrates court because they don't have
the authority to do so and they would be exposed for the
fraudsters they really are.
#Post#: 44253--------------------------------------------------
Re: Woking Railway Station - Railway byelaw
DIR By: FaeLLe
Date: November 6, 2024, 10:43 am
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Hi [member=26]b789[/member] I would appreciate some information
on which legislation indicates that revenue obtained from
'railway byelaws' need to be collected by the Railway Operator
('RO') and not their agent such as APCOA.
I have been looking at some legal sources and cannot find any
reference that indicates there is such an intent. This includes
some authoritative texts such as,
--- Quote ---
> Halsbury's Laws of England > Railways and Tramways (Volume 86
(2023)) > 1. Railways(1) > Historical and Administrative Context
> (iii) Railway Byelaws > 11. Provision for the making of
byelaws under the Railways Act 2005.
--- End Quote ---
I am hoping to get some references to the view which enforces
that APCOA cannot bring legal proceedings on behalf of the rail
operator.
---------------------------------------------------------
Especially since historical caselaw demonstrates,
- A and D below: A railway company is not a public authority in
controlling vehicular activity at the station.
- B below: Any legal actions against a railway company must
differentiate where they are acting as a public body (not when
they are performing a private function).
- C below: Railway operators are permitted to use byelaws to
maximise revenues and become financially independent (they could
argue that if APCOA was not performing parking enforcement then
it would place additional financial burden on the railway
operator).
- [E] below: Railway companies/operators giving contracts to a
private company was merely ancillary to the provision of railway
services and was not part of its body function and was not
statutorily underpinned and contained no sufficient public law
element to be amenable to judicial review.
---------------------------------------------------------
Some relevant extracts from case law mentioned above:
---------------------------------------------------------
A:
A railway company is not a public authority within the meaning
of that term as used in the Public Authorities Protection Act
1893, s 1.
--- Quote ---
> Swain v Southern Railway Co [1939] 2 All ER 794
--- End Quote ---
---------------------------------------------------------
B:
Only actions directly linked to public duties are protected
under the Public Authorities Protection Act, courts provide a
clearer demarcation for plaintiffs seeking redress against
public entities.
So actions covered under a private contractual obligation are
not related to those acts performed by execution of a public
duty or authority[/u]
--- Quote ---
> [u]Bradford Corporation v. Myers (53 SLR 776)[/u]
--- End Quote ---
---------------------------------------------------------
C:
Railway operators are permitted to use byelaws to maximise
revenue.[/u][/u][/u]
--- Quote ---
> Jones and another v First Greater Western Ltd - [2013] EWHC
1485 (Ch),
> [2014] LLR 16, [2013] All ER (D) 166 (Aug)
--- End Quote ---
- Charging to comply with terms at a site is justifiable if it
has valid intentions, such as improving layout, alleviate
congestion etc.
- Commercial opportunities can be exploited to raise revenue.
Quoting the case above:
[center][u][u][u][u][209] [i]Moreover, I am of the view that FGW
would have wished to introduce the scheme, even if none of the
revenue derived therefrom, or merely a very minimal part of it,
was used to improve facilities for taxi drivers and taxi users
of BTM. It was the commercial opportunity which FGW felt it
could and should exploit. Why should it not generate some income
from those who traded from its premises, in the same way as it
charged shopkeepers or store
holders?[/i][/u][/u][/u][/u][/center]
[center][u][u][u][u][i][397] The scheme introduced is, in my
judgment, necessary and proportionate to the aim pursued. The
Claimants are not being denied access to BTM. Tthey are being
asked to sign up to terms and conditions of appropriate
behaviour and asked to pay, currently, some £400 for the
privilege of earning up to £24,500 on that land, on the
Claimants' own calculations. The Defendant is not simply
pocketing the money. The significant costs of implementing and
policing the scheme and monitoring and policing the ranks were
referred to in the evidence as, indeed, have been the intentions
to improve the layout, the facilities and to alleviate the
congestion, all ultimately, in my judgment, to the benefit of
taxi drivers, as well as others.
[/i][/u][/u][/u][/u][/center]
---------------------------------------------------------
D:
An operator of a railway station was not acting as a public
authority in respect of the control of vehicular access to
private land, notwithstanding that the land was the station
approach.
--- Quote ---
> [u][u][u][u][u]Jones v First Great Western Ltd [2013] EWHC
1485 (Ch), [2013] 4 WLUK 599[/u][/u][/u][/u][/u]
--- End Quote ---
---------------------------------------------------------
E:
Great Western Trains Co Ltd, giving the contract to do so to one
particular company, was merely ancillary to the provision of
railway services and was not part of its body function and was
not statutorily underpinned and contained no sufficient public
law element to be amenable to judicial review.
--- Quote ---
> [u][u][u][u][u][u]R v Great Western Trains Co, Ltd, ex parte
Frederick, (QBD, Popplewell J, 19 May
1997),[/u][/u][/u][/u][/u][/u]
--- End Quote ---
[center][u][u][u][u][u][u]At para [53][i] Applying the factors
and tests from those cases, any claim that the Defendant is
carrying out a 'public function' when controlling access to its
land at the station approach must fail. The Defendant is a
private company limited by shares, and lessee of that land.
Whatever arguments one might make about the running of trains
and similar core functions of the railway industry being of a
public nature, and therefore the Defendant being a 'hybrid' body
with some 'public functions; (but cf the Railtrack case below),
the control of vehicular access to private land consisting of a
station approach is par excellence a private act and private
aspect of the Defendant's
operations.”[/u][/i][/u][/u][/u][/u][/u][/center]
#Post#: 44257--------------------------------------------------
Re: Woking Railway Station - Railway byelaw
DIR By: b789
Date: November 6, 2024, 11:37 am
---------------------------------------------------------
The first simple question you need to ask, if APCOA are issuing
a "Penalty Notice", under which authority are they acting. APCOA
are not an authority. They are an unregulated private parking
company.
If they are acting as an agent of the landowner (the TOC or
Network Rail for example) they why is there no mention in the PN
on whose behalf they are operating?
Please see this letter from the DfT from 2018 when POPLA queried
whether they could adjudicate on PNs:
HTML https://i.imgur.com/DD1rGeI.jpeg
HTML https://i.imgur.com/phzB3Hb.jpeg
The last sentence of the third paragraph is the one that should
be noted. Apart from the misuse of terminology in the DfT letter
where it conflates the word "penalty" with "ticket", the DfT
obviously expects parking infringements that would be covered
under Bylaws 14(1) to (3) should be dealt with as civil matters,
not prosecuted under bylaw 24(1).
The distinction is that there is absolutely nothing to stop a
private company contracted by the landowner to issue PCNs under
civil contract law. No one is arguing about that. The issue is
that APCOA (and SABA) are issuing what they purport to be
Penalty Notices under bylaw 24(1) which can be prosecuted as
criminal matters in the magistrates court.
By issuing what they call a Penalty Notice, they are using
language that is totally inappropriate and unlawful for a civil
matter.
If the Penalty Notice were not fake, any revenue from the
penalty would go to the landowner. APCOA are suggesting that
they could bring a private criminal prosecution in the
magistrates court to recover the penalty. How can they do that
without disclosing who the landowner is that has given them the
authority to a) issue a penalty notice in the first place and b)
not disclose that the penalty payment is going into their own
bank account and not that of the landowner.
In civil law, remedies are compensatory rather than punitive.
Civil charges, such as those related to parking breaches, are
intended to compensate for losses or to enforce compliance with
contractual terms, not to punish or penalise in the same way as
criminal fines. The term “penalty” implies punishment, usually
in response to a legal offence. This punishment-oriented
terminology is inconsistent with civil law principles, where
charges must be proportionate and cannot be punitive.
Using “civil penalty” blurs the line between civil and criminal
enforcement. It suggests that private operators have the power
to impose punitive fines, akin to those imposed by statutory
bodies, which they do not. In contract law, “penalties” are
generally unenforceable because they are considered punitive and
disproportionate. A charge that is punitive rather than
compensatory can be struck down in civil courts as an unlawful
penalty. Private operators, under civil law, cannot impose
penalties—they can only seek reasonable charges linked to actual
loss or deterrence.
Instead of “civil penalty,” the DfT should have used terms like
“parking charge” or “civil charge.” These terms more accurately
describe the nature of the charge in civil law, clarifying that
it is intended as a deterrent or compensation, not a punishment.
“Parking Charge Notice” (PCN) is the established terminology in
the parking industry for civil charges imposed by private
operators, and it avoids the punitive implications associated
with “penalty.”
By using the term “civil penalty,” the DfT inadvertently
suggests that these charges carry a statutory or punitive weight
that they do not legally have. This may lead the public to
perceive these charges as quasi-criminal fines, which they are
not. The DfT’s language has obviously been misinterpreted by
APCOA/SABA as a license to impose punitive fines, when their
legal authority only extends to civil enforcement within the
bounds of proportionality.
The DfT’s use of “civil penalty” is, in effect, an oxymoron and
a misuse of legal terminology. In civil law, the correct terms
are “parking charge” or “civil charge,” which accurately
describe a compensatory measure rather than a punitive penalty.
This distinction should have been made to prevent confusion and
ensure that parking operators, POPLA and the public understand
that these charges are civil in nature, without the punitive or
statutory implications associated with true “penalties.”
The DfT specifically state that the ability to render a charge
under byelaw 14(4)(i) is distinct from the general enforcement
power in byelaw 24(1), under which a person can be prosecuted in
the Magistrates Courts. The only logical interpretation of that
is infringements of Bylaw 14 should be dealt with as civil
matters by way of a PCN and not a Penalty Notice.
Notwithstanding this, there was a case recently with APCOA where
they had issued a "Penalty Notice" under railway bylaws and it
went to POPLA. They were put to strict proof that they were
permitted to issue Penalty Notices at the location. It came to
light after reviewing the contract, even though heavily
redacted, there was no authority for APCAO to issue Penalty
Notices, only Parking Charge Notices.
#Post#: 44259--------------------------------------------------
Re: Woking Railway Station - Railway byelaw
DIR By: FaeLLe
Date: November 6, 2024, 11:55 am
---------------------------------------------------------
Thanks for your detailed response, the arguments seem quite
logical to me. Especially, the amount being claimed as a
'penalty'.
If ever this ends up in court, it will be interesting to see how
APCOA intend to prove the case using this limited evidence,
beyond resonable doubt (criminal standard of proof).
The case will most likely fail the first (no evidence that the
crime has been commited) or at the very least second limb
(evidence is tenuous or inconsistent in nature) of the The
Galbraith Test and will result in a 'no case to answer'
situation.
#Post#: 44261--------------------------------------------------
Re: Woking Railway Station - Railway byelaw
DIR By: DWMB2
Date: November 6, 2024, 11:56 am
---------------------------------------------------------
--- Quote from: FaeLLe link ---
>
> If ever this ends up in court
>
--- End Quote ---
I'd put money on it not doing - APCOA have never in my
experience taken anyone to court. They don't even go to County
Court, where they'd get to keep the money if they won, let alone
Magistrates Court, where they would not.
#Post#: 44578--------------------------------------------------
Re: Woking Railway Station - Railway byelaw
DIR By: Gary Bloke
Date: November 8, 2024, 7:36 am
---------------------------------------------------------
Byelaws ANPR tickets which are delivered to the keeper more than
14 days after the alleged breach, are considered by POPLA and
BPA to have been incorrectly issued. This appears to be thd case
here. Too late to appeal to POPLA. I would just ignore it.
#Post#: 44581--------------------------------------------------
Re: Woking Railway Station - Railway byelaw
DIR By: b789
Date: November 8, 2024, 7:46 am
---------------------------------------------------------
The Penalty Notice issued is not a real PN. It is a fake PN. It
is not a Parking Charge Notice (PCN) either. POPLA have no
jurisdiction to adjudicate on a PN even if were a real one. If
it were a real PN, then if the recipient wanted to dispute it
all the way as far as it could go, it would have to be in the
Magistrates court under a criminal prosecution brought by the
landowner authority such as the Train Operating Company (TOC).
The DfT has already pointed out back in 2018 that they expect
breaches of bylaw 14 which relate to parking issues to be dealt
with by means of a PCN and not a PN. A PCN is a contractual
issue and is dealt with under civil contract law. The DfT has
stated that they do not expect beaches of bylaw 14 to be
prosecuted under bylaw 24 which is a criminal matter.
This is the exact quote from the DfT:
--- Quote ---
> The ability to render a charge under byelaw 14(4)(i) is
distinct from the general enforcement power in byelaw 24(1),
under which a person can be prosecuted in the Magistrates
Courts.
--- End Quote ---
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