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Jo C.
Jo C., Barrister
Category: Law
Satisfied Customers: 70696
Experience:  Over 5 years in practice
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Good morning, We are a Courier Company based in Essex. We

Resolved Question:

Good morning, We are a Courier Company based in Essex. We use self employed owner drivers who occasionally use vehicles registered to our Ltd Company. The Company received a PCN 25/06/14 on what we now know is the infamous box junction (Reported on BBC's Panorama as the money box) at New Kings Rd/ Bagleys Lne, London. A self employed driver using our vehicle allegedly stopped in the box junc. Their video evidence clearly showed the driver had been obstructed from leaving the box junction by the driver who had initially been behind our driver. With this strong evidence in our favour, as a Company, we appealed the pcn. On receiving their rejection, dated 14 August, we asked them to write to our logistics department, to obtain the drivers identity. They responded by saying that we had given up the right to nominate, by appealing, and that the amount now due is now £130, originally it was £65. This was dated 18th Sept. This arrived whilst I was on holiday. I returned and had received a further letter saying "No response had been received, charge increased to £195." We have now paid this, to prevent further charges, but wish to appeal and have it returned. Reasons 1/ We were not aware that our original appeal relinquished my rights to nominate the driver. 2/ the law states that a driver who has a visible exit from the box, may enter. regardless of what happens next or which lane he chooses to continue in. He had a visible exit. 3/ The date they informed me that we had lost the right to nominate the driver was dated 18th Sept Increases were applied immediately and before 28 days of that letter and before I had the time to write to the adjudicator. My questions are: (A) is there an ombudsman separate to the adjudicator that I can contact. (B) Can we ask for our appeal to be heard in court. (C) Does our original appeal lose us the right to nominate the driver.
Submitted: 3 years ago.
Category: Law
Expert:  Jo C. replied 3 years ago.
Jo C. :

Hi. Thank you for your question. My name is ***** ***** I will try to help with this. What was the visible exit you refer to?

Jo C. : Can you respond?
Customer:

I will try to send you the video evidence. The driver turned right at a single lane set of traffic lights onto a***** the inside lane was clear. there is no indication at the lights from whence he came that the inside lane he approached, is a filter lane for a left hand turn some 50 yards further on. this only becomes evident once you are inside the box. the right hand lane for straight on, his intended direction, was blocked. he attempted to move in to the spaces that were on the inside lane only to have it blocked by the car that had been behind him at the red lights. the council claim he should not have been trying to go into the left hand lane as this was a filter lane. one cannot know this until you have made the turn.

Customer:

Do you have an email address that I can send the video evidence to.

Expert:  Jo C. replied 3 years ago.
Hi
Can you respond now?
Customer: replied 3 years ago.
I did respond. You went off line to quick I
Expert:  Jo C. replied 3 years ago.
Sorry?
Are you able to respond in Q and A ?
Customer: replied 3 years ago.

I will try to send you the video evidence. The driver turned right at a single lane set of traffic lights onto a***** the inside lane was clear. there is no indication at the lights from whence he came that the inside lane he approached, is a filter lane for a left hand turn some 50 yards further on. this only becomes evident once you are inside the box. the right hand lane for straight on, his intended direction, was blocked. he attempted to move in to the spaces that were on the inside lane only to have it blocked by the car that had been behind him at the red lights. the council claim he should not have been trying to go into the left hand lane as this was a filter lane. one cannot know this until you have made the turn.


<strongCustomer:

Do you have an email address that I can send the video evidence to.


Customer: replied 3 years ago.

Please respond

Expert:  Jo C. replied 3 years ago.
I don't need the video evidence at this stage. Can we just deal with one thing at once?
Is your driver the permanent keeper of this vehicle?
Customer: replied 3 years ago.

no

Customer: replied 3 years ago.

he is not the keeper of this vehicle

Expert:  Jo C. replied 3 years ago.
OK. Judging from the amount, this would seem to have already reached the adjudication stage and been decided against you?
Customer: replied 3 years ago.

it has not gone to the adjudicator. you need to read my question again. I did not appeal to the adjudicator as I imagined the next stage wad to give them the drivers name. they bypassed that by telling me I had given up that right. whilst I was waiting for their response they increased the amount twice.

Expert:  Jo C. replied 3 years ago.
If this is £195 now then it must have reached Adjudication.
Your original post suggests a charging certificate which means it has gone to Adjudication.
Customer: replied 3 years ago.

Yes the paperwork they have sent does say "charge certificate" but we have not been to the adjudicators, we put an appeal into The London Borough of Hammersmith & Fulham?

Expert:  Jo C. replied 3 years ago.
No, I realise you haven't been to a hearing but the matter has been considered by the Adjudicator which is a problem.
When you originally appealed, you would have received a letter of rejection of representations?
Then a notice to owner?
Customer: replied 3 years ago.

We received a " notice of rejection", my response was " as a company we are not responsible for the actions of an individual self employed driver... you need to apply to our logistics department for the drivers name". They replied that we gave up that right by appealing in the first place & that the charge was now £130.. this letter was dated 18/09/14.

we then received the charge certificate on the 22/09/14 stating that we now owed £195

Expert:  Jo C. replied 3 years ago.
You are responsible actually as the registered keeper but there might be another option.
Are you saying that you did not get a notice to owner?
Customer: replied 3 years ago.

never had "notice to owner" after "rejection of representation" letter.

Expert:  Jo C. replied 3 years ago.
Thanks.
The difficulty with this is that it has gone to the Adjudicator and there has been a finding against you. Your primary defence therefore is no issue now.
You can try to get the finding set aside by making a statutory declaration to the effect that you didn't get a notice to owner. Obviously you can only do so if it is true but you say it is and that is a ground.
If that is accepted then it will be for the Council to issue the fine again. They can do that but it will open up your appeal options.
The registered keeper is liable for PCNs not the driver. There is some case law that suggests that a person in his circumstances might be considered the keeper. It depends what your arrangement was with him over the possession of the vehicle.
However, if the footage shows him enter when the box junction was clear and the position changed while he was in transit then that is a factual defence to the charge of entering a box junction which can be raised by the registered keeper.
Can I clarify anything for you?
Jo
Customer: replied 3 years ago.

I believed that I followed the correct procedure. the order of correspondence was as follows

25/06 received pcn and video evidence.

27/06 responded on line with appeal

14/08 appeal rejected

not sure of date: replied that they need to contact logistics dept to obtain drivers details as a limited Company was an entity and can not be held responsible.

18/09 received letter informing me I had given up the right to nominate driver. charge £130

22/9 received charge certificate £195

I did not receive a notice to owner.

As the company is the registered owner can I now ask for a notice to owner form and start the procedure again.

can I take this further as I was not permitted to appeal to the adjudicator or prove our case to an independent ombudsman.

Expert:  Jo C. replied 3 years ago.
Well, only in the way I suggested above.
There is no other ombudsman.
Customer: replied 3 years ago.

how can I get them to re-open it or re issue the fine when I have already paid it. (I did so to avoid further increases or actions from them) not because I agreed or accepted it. they only have to say that they did send (which they did not) the notice to owner. I feel that I need to involve someone who is totally unbiased and I have not been given the opportunity to do so.

Expert:  Jo C. replied 3 years ago.

Those points are a non issue I'm afraid at this stage.

You can try to get the finding set aside by making a statutory declaration to the effect that you didn't get a notice to owner. Obviously you can only do so if it is true but you say it is and that is a ground. If that is accepted then it will be for the Council to issue the fine again. They can do that but it will open up your appeal options.

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