9:00pm Monday 8th February 2010
By Jeremy Grimaldi
SWINDON Council could have to pay back thousands of pounds to motorists after one of its traffic codes was deemed unenforceable by an adjudicator.
Barrie Segal – Britain’s foremost expert on parking law – said Swindon Council “will soon be tied up in knots” if motorists begin asking for their money back.
He said the council was left badly exposed after an adjudicator ruled in September that it had failed to properly create an article restricting motorists, under contravention 82, from overstaying paid for visits.
On the back of this case he believes anyone fined for the “offence” since parking was decriminalised in 2003 can claim their money back.
“I think the council should be very worried,” said Mr Segal, who set up AppealNow.com.
“In law this is referred to as undue enrichment.
“I would suggest if motorists are within the 28-day appeal period they should appeal, otherwise people must write to the council and ask for their money back.
“In legal terms if one party is unjustly enriched by another they should refund the cash.
“From the looks of this appeal the council has never been entitled to the proceeds of contravention 82.
“Therefore, if they hadn’t misled the motorist by issuing the ticket they would have never been paid.
Mr Segal said in law the burden of proof always rested with the council.
“In any appeal it is the authority that must show that a contravention took place and that it had the power to issue the ticket,” he said. “But the council has never had that power.
”I must warn anyone attempting to do this that you have to be steadfast – it could result in a trip to the small claims court.
“The good news is that I fought a similar ticket in the county court years ago and won.”
The story was brought to the Adver’s attention after a former parking warden who had been made redundant said the council was no longer fining people for contravention 82.
A council spokesman denied this, adding: “Adjudicators from the Traffic Penalty Tribunal have been satisfied with the wording of contravention 82 of the council’s Traffic Regulation Order of 2003.
“An adjudicator recently upheld an appeal against a penalty charge notice issued in respect of contravention 82.
“The council’s legal department is considering the decision.
“In the meantime, the council will be issuing penalty charge notices under contravention 83 of the order.
“Contravention 83 relates to drivers who do not display a valid ticket. If a ticket has expired it is no longer valid.”
However, Mr Segal does not believe using one code to supplement the other is legal.
He said: “I would strongly suggest people fined for this infraction appeal – section 83 refers to penalties due to ‘invalid tickets’.
“However, overstaying a paid-for ticket doesn’t make it invalid.
“Article 18, which outlines the validity of tickets, clearly states that tickets are valid if purchased from a machine, placed in an appropriate place and if all details are clearly visible.”
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