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Case No 225005055
By: Hippocrates Date: September 17, 2025, 12:25 pm
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HTML https://youtube.com/shorts/NUU8f_LL1o4
Even the JCIO do not know that he is a judicial office holder.
This is going further.
ETA Register of Appeals
Register kept under Regulation 20 of the Road Traffic (Parking
Adjudicators) (London) Regulations 1993, as amended and
Regulation 17 of the Civil Enforcement of Road Traffic
Contraventions (Representations and Appeals) (England)
Regulations 2022.
Case Details
Case reference 2250050555
Appellant Mohammed Miah
Authority London Borough of Bromley
VRM LD19VLO
PCN Details
PCN BY97170086
Contravention date 06 Dec 2024
Contravention time 18:50:00
Contravention location Croydon Road /Eden Road
Penalty amount GBP 130.00
Contravention Entering and stopping in a box junction
Referral date -
Decision Date 30 Apr 2025
Adjudicator Andrew Harman
Appeal decision Appeal refused
Direction Full penalty charge notice amount stated to be paid
within 28 days.
Reasons
The appellant's authorised representative, Mr Morgan, attended
the video hearing of this appeal on 8 April 2025. The council
did not attend the hearing, it not being expected to do so. The
hearing was adjourned to give the council an opportunity to
respond to the submissions made by Mr Morgan on behalf of the
appellant, supported by previous decisions of the adjudicator,
which had only very recently been uploaded to the case. Mr
Morgan confirmed that he would also be uploading to the case
further submissions, on a different point, which I suggested the
council may wish to respond to.
The appeal has been listed before me today for determination.
The council has not responded to the adjournment notice.
This is a box junction case.
Mr Morgan argues that this incident amounts to no more than a de
minimus breach of the prohibition the council seeks to enforce.
My having viewed the council's video footage of the incident, I
am unpersuaded by that submission.
Mr Morgan further submits that the PCN is not compliant, the 28
day day period for the making of representations being misstated
therein.
He also submits, by way of collateral challenge, that the
statutory grounds as given on the council's website are
confusing.
Neither of these submissions raise or fall within a statutory
ground of appeal in a box junction case.
That being so, I am not satisfied that I have the power to find
in Mr Morgan's favour in respect of either.
I find this contravention proved.
The appeal is refused.
Decision Date 16 Sep 2025
Adjudicator Anthony Chan
Previous decision Appeal refused
Appeal decision Appeal refused
Direction Full penalty charge notice amount stated to be paid
within 28 days.
Reasons
This is an application by the Appellant for a review of the
adjudicator’s decision. The application was heard over a video
link. The Appellant attended as did Mr Morgan who represents the
Appellant. The Authority was not represented.
The Notice of Appeal was admirably succinct. The Appellant
argued that the stopping in the box junction was de minimus. The
Appellant also argued that the PCN was invalid because it stated
that:
“Any representations received by the authority outside the
28-day period mentioned above may be disregarded.”
Mr Morgan said, and I accept, that the 28-day period referred to
a period commencing with the date of the Notice.
Mr Morgan submits that Schedule 1, para. 1(3) of the 2003 Act
provides that the 28-day period commences from the date of
service. Therefore, the statement flies in the face of the law.
The appeal was heard on 8 April 2025. Mr Morgan added at the
hearing a third point which was that the Authority’s website
advised two lists of grounds at least one of which may be
incorrect and confusing. Mr Morgan had not provided a screenshot
of the page at the appeal or at this application.
The adjudicator adjourned the matter to invite submissions from
the Authority. The Authority had not responded.
At the resumed hearing, the adjudicator rejected the submission
regarding de minimus, and this was not pursued at the review
application. The adjudicator found that neither of the other
submissions raised or fall within a statutory ground of appeal
in a box junction case. The adjudicator did not think that he
had the power to find in Mr Morgan's favour in respect of
either. The appeal was refused.
Mr Morgan seeks a review on the basis that the adjudicator
“appears to dismiss a collateral challenge from the outset and
without making any finding as to the merits of either of his two
submissions.
Mr Morgan supplemented his application by further correspondence
dated 28 August 2025. He said:
“I was ambushed by his taking a point not raised by Bromley re
collateral challenges not being a ground of appeal and he didn't
hear me out. He just said he had changed his mind re collateral
challenges to the best of my recollection. He then adjourned the
case for the council to respond. Clearly, they failed to do so.
And he has changed his mind on that issue too viz the website
failings.”
On 1 September 2025, Mr Morgan asked that I recluse myself
because he has made a complaint about my conduct in another
matter and it is currently before the appropriate body. I am
aware of a complaint made about me by Mr Morgan to London
Councils. He has withdrawn that complaint before the 1
September. I am not aware of any other outstanding complaint by
Mr Morgan about me and Mr Morgan has not identified which other
body is in receipt of such a complaint. I do not think that I
must recluse myself.
Before I deal with the merits of the application, I need to
comment on Mr Morgan’s approach to the case. Mr Morgan complains
that he was ambushed by the adjudicator. I wonder why Mr Morgan
did not consider that raising a fresh point at an appeal where
the other party was not present was not an ambush. Furthermore,
it is Mr Morgan who seeks to make a collateral challenge. It was
therefore up to Mr Morgan to set out why his challenge amounted
to a collateral challenge and to establish the legitimacy of a
collateral challenge in these proceedings. It is not an ambush.
If a party seeks to engage on detailed legal points, they cannot
complain that they are required by the adjudicator to engage in
a detailed legal discussion. It is what Mr Morgan was obliged to
do and so should have been prepared for.
A similar point, always advanced by Mr Morgan in this and other
cases, is that if a point is not challenged by the authority,
the adjudicator may not take it upon himself or herself to take
issue with the point.
I do not accept this argument. Proceedings before the
adjudicator are informal in nature. There are no pleadings. In
most cases, parties are not legally represented. They do not
even have to attend. The Regulations say: “… the adjudicator
shall conduct the hearing of an appeal in such manner as he
considers most suitable to the clarification of the issues
before him and generally to the just handling of the
proceedings; he shall so far as appears to him appropriate seek
to avoid formality in the proceedings.”
So, an adjudicator may, and often does, intervene when they see
an expired Traffic Management Order, or if a body of case law
against a point being made, even if the Appellant does not raise
the point. It will of course be necessary for the adjudicator to
make it clear that he or she is concerned about a point is under
consideration and to allow both parties to make submissions
thereon.
Appellants often complain that the Authority and or the
adjudicator has not “played by the rules.” They need to be
mindful that the same rules apply to them. One cannot exploit
the informality of the adjudicator’s proceedings but seek to
impose strict compliance to rules on the other party or the
adjudicator.
Collateral challenge
I asked Mr Morgan to explain why a collateral challenge should
be entertained. Mr Morgan’s answer, as I understood it, was that
because the two issues (non-compliant PCN, confusing website)
did not amount to a ground of appeal under the 2003 Act. Mr
Morgan submits that a consideration of a collateral challenge
does not involve prejudice.
I can understand what lies behind the submission. The
adjudicator’s power to allow an appeal has been considered in
Walmsley v TfL and others [2005] EWCA Civ 1540and R (on
application of Lord Mayor and the Citizens of Westminster) v the
Parking Adjudicator [2002] EWHC 1007 (admin). Both cases
established that the adjudicator’s power to allow an appeal is
limited to one or more statutory grounds having been
established.
At page 55 of the Walmsley decision, Chadwick LJ said:
“I am conscious that I have left open the question whether an
adjudicator has power to entertain a challenge to TfL’s decision
to pursue payment on grounds which would found an application
for judicial review – as Mr Justice Scott Baker suggested in the
Bexley case. We were taken to the decision of Mr Gary
Higginbottom, sitting as a parking adjudicator, in Davis v The
Royal Borough of Kensington and Chelsea (PAS Case No 1970198981,
30 March 1998) which provides a helpful analysis of the
arguments. We were shown decisions made by adjudicators since
the decision of Mr Justice Stanley Burnton in this case in which
they have, in terms, treated themselves as having that power:
the adjudicator’s reasons for his decision in Chess v Transport
for London (Case No 9050067211, 9 July 2005) provides a good
example. For the reasons that I have given I do not think that
we can or should address that question on this appeal. It can be
expected that, sooner or later, there will be an appeal to this
Court in which that question will arise and will need to be
decided. But it may be that the rule maker will think it
sensible to consider the question as a matter of policy and put
it beyond doubt by an appropriate provision to the Enforcement
and Adjudication Regulations.”
Then came the decision in R (on application of the London
Borough of Camden) v the Parking Adjudicator [2011] EWHC 295
(admin) in which the Court held that: “ the policy maker has
heeded the suggestion of Chadwick LJ and made clear the nature
and extent of collateral challenges that may be considered by
Parking Adjudicators whilst adhering to the principle found in
the judgment of Elias J in the Westminster case, that the four
corners of their powers are contained within the Appeals
Regulations.”
The Court had in mind the changes brought about by the Civil
Enforcement of Road Traffic Contraventions (Representations and
Appeals) (England) Regulations 2022 so that procedural defects
can amount to a ground of appeal, and the adjudicator can make
recommendations to cancel a PCN when there are compelling
reasons.
The 2002 Regulations only cover parking (in London) so Chadwick
J’s question in Walmsley remains unanswered in the 2003 Act
jurisdiction. It can give rise to an argument that in the 2003
Act jurisdiction, adjudicators can entertain arguments that one
or more statutory grounds apply as well as a collateral
challenge.
I do not think that collateral challenges are or are intended to
be a tool to sweep up all arguments not pertaining to a ground
of appeal. While the 2003 Act does not have procedural
impropriety as a ground of appeal, it cannot mean that all
challenges based on alleged procedural defects are collateral
challenges.
The classical collateral challenge is to challenge a prior
unlawful act or decision. The basis of the challenge is that the
unlawful act or decision impedes a proper argument in the case.
So, in the leading case of Boddington v British Transport Police
[1998] UKHL, the House of Lords approved a collateral challenge
by Boddington against the lawfulness of a byelaw under which
Boddington was charge with a criminal offence. Similarly, the
Court approved a collateral challenge in R (on the application
of Bexley) v the parking adjudicator 29 July 1997) by the
motorist against the lawfulness of a Traffic Management Order
which he is alleged to have contravened.
It seems to me therefore that the basis of a collateral
challenge must be that there was a previous unlawful decision or
act (in the public law sense) which impedes the mounting of a
defence that the allegation has no lawful basis.
In the instant case, the alleged unlawfulness is the wording in
the PCN. It does not impede the argument that the PCN is
non-compliant. It creates the argument. The impediment is the
series of cases culminating in the Camden case. To challenge the
impediment, one would and could challenge or distinguish the
case law.
Accordingly, I reject the submissions that the adjudicator erred
in not hearing the collateral challenges.
Unfairness
I am aware that there is an appreciable number of appeals in
which the Appellant has sought to argue that the adjudicator has
a right to ensure general fairness, and this includes any
perceived unfairness before the appeal is made. I do not agree
that such wide powers exist. To hold otherwise would mean that
the adjudicator does have an independent roving commission to
identify public law failings with consequent power to allow
appeals outside the relevant Regulations. Camden made it clear
that no such powers exist.
Challenges based on procedural requirements in the 2003 Act
Despite the above, I am not satisfied that Camden can be
interpreted that procedural defects cannot be challenged in an
appeal concerning a 2003 Act PCN. The Camden case is
substantially based on the availability of a procedural
impropriety in the 2002 Regulations. If and when the 2002
Regulations do not apply, is the motorist completely unprotected
against any act or omission by the enforcing authority? For
example, if an Authority enforces a 2003 Act PCN which was
issued out of time, or mis-states the date and time of the
alleged contravention, or fail to issue a Notice of Rejection,
must the motorist:
· Apply for a judicial review at the High Court?
· Persuade the adjudicator to extend the boundary of a
collateral challenge?
· Seek an order from the adjudicator that the PCN cannot be
enforced so that the appeal has to be allowed?
I do not think that one has to seek judicial reviews on all
perceived procedural defects. I also do not see, for reasons
that I have given above, that the adjudicator should seek to
extend the ambit of a public law argument when the alleged
defect does not affect a person’s rights against a public
authority.
I am satisfied that the third course of action is available, on
a narrow ground that upholding the PCN would mean that appellant
would not receive a fair hearing, and an adjudicator is obliged
to ensure a fair hearing.
I am not advocating that all procedural defects come within the
fair hearing argument. The point is that if a procedural defect
deprives an Appellant of a fair hearing, the adjudicator may
intervene. For example, if an authority issues a Charge
Certificate before it is allowed by legislation so that the
Appellant is pressed into paying the penalty before the appeal
takes place, it is difficult to argue that the adjudicator
cannot intervene.
Was the PCN defective?
The point has been argued on numerous occasions. Section 4 (8 )
of the 2003 Act provides that the PCN must:
(a)state-
(i)the grounds on which the council or, as the case may be,
Transport for London believe that the penalty charge is payable
with respect to the vehicle;
(ii)the amount of the penalty charge which is payable;
(iii)that the penalty charge must be paid before the end of the
period of 28 days beginning with the date of the notice;
(iv)that if the penalty charge is paid before the end of the
period of 14 days beginning with the date of the notice, the
amount of the penalty charge will be reduced by the specified
proportion;
(v)that, if the penalty charge is not paid before the end of the
28 day period, an increased charge may be payable;
(vi)the amount of the increased charge;
(vii)the address to which payment of the penalty charge must be
sent; and
(viii)that the person on whom the notice is served may be
entitled to make representations under paragraph 1 of Schedule 1
to this Act; and
(b)specify the form in which any such representations are to be
made.
Paragraph 1 (3) of Schedule 1 to the Act provides that the
enforcing authority may disregard any such representations which
are received by them after the end of the period of 28 days
beginning with the date on which the penalty charge notice in
question was served. Paragraph 5 of Schedule 1 to the Act goes
on to provide, inter alia, that the enforcing authority may
serve a charge certificate if the penalty charge is not paid
before the end of a 28-day period beginning with the date of
service.
Mr Morgan submits that the PCN was invalid because it had stated
that the period of 28 days in which to make representations
starts from the date of the PCN.
I accept that the start of the 28-day period is mis-described
but there is no specific provision that the start of the 28-day
period be stated in the PCN. I accept however that a purposive
interpretation of Section 4 (8 ) (a)(viii) and Section 4 (8 )(b)
read together must be that the correct start of the 28-day
period must be stated to avoid the motorist running out of time.
The PCN is, to this extent, defective.
Is there a need for prejudice?
Mr Morgan had submitted that when challenging the contents of a
PCN by way of collateral challenge, he did not need to establish
prejudice. I do not agree.
As I have stated above, the classical collateral challenge is
aimed at a finding that an infringement has not occurred because
the creation of the infringement was unlawful. A successful
challenge in Donnington led to the striking down of the byelaw
or the relevant provision so that Mr Donnington has not
committed a criminal act. Prejudice is irrelevant. Similarly,
the striking down of the requirement to display a tax disc in
Bexley means that the motorist has complied with the remaining
terms and conditions of the car park and so was allowed to park.
Prejudice does not come into it.
The challenge that Mr Morgan has in mind is not aimed at, nor
could it lead to, the argument that the instrument which created
the alleged contravention should be struck down. It is based on
an argument that something has gone wrong in the enforcement
process. If I am correct in my analysis that it is not a
collateral challenge but a challenge to the fairness of the
proceedings, which is permissible, then prejudice is relevant.
In the parking jurisdiction (and other matters considered under
the Traffic Management Act 2004), the legislation has defined a
procedural impropriety, and this does not include prejudice. An
allegation of procedural impropriety if accepted will lead to
the PCN being cancelled.
Procedural impropriety is not a ground of appeal in the 2003 Act
jurisdiction, and it cannot be argued. Mr Morgan is seeking to
label his argument a collateral challenge to enable a
“procedural impropriety argument” to take place in the 2003 Act
jurisdiction while also seeking to enjoy the benefit of not
having to establish prejudice. I do not think that it works.
I asked for Mr Morgan’s submission regarding R v Soneji [2006] 1
AC 340 and on the Court of Session’s decision in Glasgow City
Council against a decision of the Upper Tribunal for Scotland
[2025] CSIH 2. Mr Morgan does not say that the cases are not
relevant save to make a rather uninformed comment that the
latter is a Scottish case.
Mr Morgan complains again that these cases had not been
mentioned before in this and other cases. Here again, Mr Morgan
is raising the argument that a PCN should not be enforceable
because of a procedural defect, it is therefore he (and the
respondent authority) who must set out the argument and identify
authoritative decisions for and against this submission. As far
as I can see in the cases cited by Mr Morgan in which the
adjudicator found a defective PCN must result in the appeal
being allowed, there was no reference to Soneji and/or Glasgow
even when these cases appear to say the contrary. It is rather
astounding that Mr Morgan having failed to discharge his
obligation, sought to argue that I should ignore a Court of
Appeal decision, a Court of Session decision, and a Supreme
Court decision.
Soneji posed the question as to whether a confiscation order
must be quashed on the ground that there was a defect or
omission in the procedure connected with a confiscation
application. In Glasgow, the question was whether the Tribunal
should have allowed an appeal by a motorist because the Council
had not served a PCN by recorded or registered post as required
under the relevant Scottish legislation.
My understandingof the Soneji and Glasgow decisions is that
where Parliament had not prescribed a consequence for a failure
to comply with the requirements prescribed by legislation, a
court or a Tribunal needs to consider whether Parliament had
intended that total invalidity must result.
The Glasgow case included a helpful review of English cases,
which rather weakened Mr Morgan’s submission to me that I should
not rely on a Scottish case. In particular, the Court in the
Glasgow case referred (at paragraph 43) to A1 Properties
(Sunderland) Ltd v Tudor Studios RTM Company Ltd [2024] 3 WLR
601 at the Supreme Court and said:
“The Supreme Court ruled that the starting point for analysis
was the guidance given in Soneji. Lord Briggs and Lord Sales
(with whom Lord Hamblen, Lord Leggatt and Lord Stephens agreed)
explained that the point of adoption of the revised analytical
framework in Soneji was to move away from a rigid category-based
approach to evaluating the consequences of a failure to comply
with a statutory procedural requirement and to focus instead on
(a) the purpose served by the requirement as assessed in the
light of a detailed analysis of the particular statute and (b)
the specific facts of the case, having regard to whether any
(and what) prejudice might be caused or whether any injustice
might arise if the validity of the statutory process is affirmed
notwithstanding the breach of the procedural requirement.”
The Court held that the first question is whether examination of
the purpose of the procedural rule, which has admittedly been
breached shows that Parliament intended that the rule should
operate strictly, as a bright-line rule. If that question falls
to be answered in the affirmative, other issues such as whether
there has, in any event, been substantial compliance with the
rule and whether non-compliance has given rise to any concrete
prejudice do not arise for consideration.
In seeking to answer the question, the Court of Session agreed
that the PCN has to contain important information and guidance
for the person to whom it is sent. It requires to include all
the information set out in the legislation. Without such
information there is no guarantee that the recipient will have
been made aware of his alleged liability to pay a penalty, its
amount, by when it is due and how and within what timescales he
is entitled to challenge it. However, the Court concluded, at
paragraph 55,
“But again, all this says and implies nothing about the method
of service of the PCN and whether it must be served in a
particular way in order to be effective. In addressing the first
question one must look more deeply into whether the purpose
served by the procedural rule indicates that Parliament intended
the rule to work strictly in every case, whatever the factual
position might be. The question then comes to be whether the
statutory scheme yields the inference that Parliament must have
intended the PCN to be unenforceable on account of its having
been invalidly served, even in circumstances where there is no
doubt that a properly framed PCN has in fact been timeously
received by the person to whom it was issued. This seems an
inherently unlikely interpretation of Parliamentary intention.
It would mean that Parliament intended in every case to put the
procedural cart before the substantive horse to such an extent
that an inconsequential lapse in procedure would inevitably
defeat the substantive purpose of the legislation; form would be
allowed always to triumph over substance.
In cases where it is undisputed that the purpose of serving the
PCN has in fact been fulfilled, there seems no reason to suppose
that Parliament would nonetheless have intended the PCN to be
unenforceable, essentially on the basis of a technicality.''
I would add that in the instant case, the 2003 Act does not say
that the 28-day period is an absolute bar to making
representations. All it does is to give the authority a
discretionary power to disregard the representations. It is not
a bright line rule as envisaged in A1 Properties.
The Court of Session went on to consider the second question. It
noted that the recipient of the PCN was made fully aware of what
he needed to know about the contravention. He was also made
aware of his rights under the enforcement process and duly did
so in accordance with the prescribed procedure. The purpose of
the rule’s governing service has accordingly been fulfilled. The
motorist’s interests have not been adversely affected to any
extent. So, on any realistic view, the procedural protections
inherent in the scheme have been entirely satisfied. That being
the case, the Court did not consider that Parliament had
intended that the PCN should nonetheless be treated as a legal
nullity.
I am posing questions similar to the ones considered by the
Court of Session. I would respectfully answer them in the same
way. The Appellant had made his representations in time, had
received a Notice of Rejection, exercised his right to appeal to
the adjudicator, and his appeal was heard.
I am of course aware of the decision in R (on the application of
the London Borough of Barnet Council) v the Parking Adjudicator
[2006] EWHC 2357 (admin). It is unfortunate that this case was,
as far as I know, not considered in Soneji or Glasgow and a
reconciliation of the decisionsis not easily achievable. In so
far as they conflict, I prefer the approach in Soneji and
Glasgow.
The website inaccuracies
There is a clear distinction between a defective PCN and
inaccuracies on a website. There is no legal requirement to
publish any information on the web. There is no requirement any
information must spell out in verbatim requirements for a PCN,
it seems to me that not only must the two questions proposed in
Glasgow must be asked, but the answers examined in vigour to
understand why any confusion invalidates the PCN.
There is no evidence that the Appellant relied on anything said
on the website. There is no evidence that he had even seen the
information. The Appellant made his representations on 26
December. The Appellant made only one point which was that his
rear wheel slightly touched the markings, so he was not causing
an obstruction. The confusing website point was not made until 8
April at the hearing.
Furthermore, Authorities are often reminded that it has a public
law duty to consider cancelling a PCN even though a ground of
appeal is not established. The webform on which the
representations are made encouraged and allowed the Appellant to
“explain in as much details as possible why you think your PCN
be cancelled.” How are they to indicate this to motorists if
they can say nothing more than the statutory grounds?
Given that there was no breach of a rule and there was nothing
which could suggest that the Appellant was prejudiced, I am not
satisfied that there is any lawful basis to find that the PCN is
not enforceable because of what is said on the website.
I am not satisfied that the interest of justice requires a
review. The application is refused.
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