(page update 23 September 2019)
Main Mersey Gateway Penalties page
WARNING. IN FEBRUARY 2023 A HIGH COURT JUDGE REVERSED THE DECISIONS MADE BY ADJUDICATORS OVER THE PREVIOUS FIVE YEARS. HE RULED THAT THE ENFORCEMENT OF THE PENALTIES WAS LEGAL.
THIS HUMPTY DUMPTY DECISION MEANS THAT SOME OF OUR PREVIOUS ADVICE NO LONGER APPLIES. WE HAVE TRIED TO REFLECT THE NEW SITUATION IN OUR OTHER PAGES DEALING WITH THE PENALTIES BUT THE PAGE BELOW HAS NOT BEEN REVISED.
MERSEY GATEWAY PENALTIES - TRAFFIC ENFORCEMENT CENTRE
This page describes what seems to be the illegal use of the facilities of the Traffic Enforcement Centre by Merseyflow.
Summary
Background
Issues
Chronology And Some Of The Documents, on a separate page
Summary
It has so far been accepted by the Traffic Penalty Tribunal that the Mersey Gateway tolls are not enforceable due to various errors in the way the tolls were implemented and have been enforced.
Whether the tolls are potentially enforceable or not, this page is about a separate issue- the use by Merseyflow of the special court known as the Traffic Enforcement Centre. Merseyflow is a company and only local authorities can use the TEC, so it seems that the rules are being ignored.
This issue has been raised with both the TEC and the Ministry of Justice who have failed to give proper answers on what is happening. In the absence of proper answers we believe that there has been a cover up.
Unless there is something that we are not aware of, all the recovery orders issued for Mersey Gateway penalties are invalid and all the actions taken by the court, Merseyflow and the 'bailiffs' are illegal.
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Background
When the registered keeper of a vehicle receives a penalty for allegedly not paying a toll on the bridge, the first stage of fighting it is to make a 'representation' to Merseyflow. If this is rejected then drivers can appeal to the Traffic Penalty Tribunal. Every appeal to the Tribunal so far has been won because of various errors in the way that the tolls were implemented and are enforced.
The most recent test case was won in March by a Widnes man, Damian Curzon. Despite this Merseyflow have continued to issue and try to enforce penalty notices.
Where the person penalised has neither challenged, as above, nor paid the penalty charge, then Merseyflow issue a 'Charge Certificate'. If after 14 days from 'service' of the certificate, it is unpaid, then Merseyflow apply to the Traffic Enforcement Centre (based at Northampton County Court) to authorise the issue of an "Order for recovery of unpaid penalty charge", otherwise known as a TE3.
The TE3 is the equivalent of a County Court Order. Though the orders appear to come from the TEC they are actually issued by Merseyflow, though they seem to further delegate the printing and posting of the orders to another firm - Capita.
For each crossing the amount payable is now £68 (including £8 for the Traffic Enforcement Centre's fee) plus the unpaid toll. Note that there may be no unpaid toll as the toll may have been already paid, but paid late.
Up to the end of May the Traffic Enforcement Centre had authorised the issue of over 170,000 of these recovery orders.
If payment is still not made at the Recovery order stage then the Traffic Enforcement Centre issues warrants of execution - over 83,000 had been issued by May. The amount payable is now £143 plus any unpaid toll.
Note that as with the Recovery Orders, the Traffic Enforcement Centre does not really issue a warrant. There is only a virtual warrant in electronic form.
Even at this late stage it is still possible to fight the recovery action by submitting certain forms to the Traffic Enforcement Centre. The Traffic Enforcement Centre seemed to be accepting all these forms, even though many of them are submitted late (in many cases the forms will have been submitted late because the first that the driver knows about the penalty is when they receive demands from 'bailiffs').
The acceptance of the forms meant that if Merseyflow wanted to continue with the recovery action then they have to go back to square one and reissue the penalty charge notice.
Unfortunately this all changed from about the start of May 2019, as Merseyflow must have decided to start asking the Traffic Enforcement Centre to refuse at least some of the late applications (this did not affect those applications which are made on time).
Scrap Mersey Tolls have asked the Traffic Enforcement Centre for figures to show the extent of what is now happening, but they have refused to supply figures.
THIS WHOLE PROCESS IS ILLEGAL FROM THE POINT AT THE START WHERE MERSEYFLOW ASK THE TRAFFIC ENFORCEMENT CENTRE TO AUTHORISE THE ISSUE OF A RECOVERY ORDER - AS UNDER THE RULES UNDER WHICH THE TRAFFIC ENFORCEMENT CENTRE WAS SET UP IN THE 1990s, IT IS ONLY FOR USE BY LOCAL AUTHORITIES AND 'MERSEYFLOW' IS NOT A LOCAL AUTHORITY.
The Merseyflow name is used by Emovis Operations Mersey Ltd, a Spanish owned toll company, and so it should not be allowed to use the TEC facilities.
Unless there is something that we are not aware of, all the recovery orders issued for Mersey Gateway penalties are invalid and all the actions taken by the Traffic Enforcement Centre, Merseyflow and the 'bailiffs' are illegal.
Scrap Mersey Tolls only gradually became aware of what is happening. We started raising queries with the TEC in November 2018. We have failed to get clear answers to our queries and have tried to resolve it in various ways. This includes various information requests and complaints to the Traffic Enforcement Centre.
We also wrote to the Lord Chancellor on 1st May 2019- LETTER ATTACHMENT TO LETTER. We also tried to interest local MPs and others to little effect, except that Justin Madders MP has raised it with the Lord Chancellor.
We have been in contact with the press but they are not interested and either do not understand or do not believe what we say has been happening.
A reply dated 26th June was received from the HM Courts & Tribunals Service but it completely failed to answer the issues raised. It even suggested that we contact Citizen's Advice for help.
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Issues
The issue about Merseyflow's use of the TEC has various sub points or questions.
FUNDAMENTAL POINT - Only a local authority can use TEC facilities
The TEC was set up to make it easier for local authorities to enforce various penalties. Originally this was only for parking offences but later added to that were- bus lane violations and penalties in respect of road user charges under The Transport Act 2000.
Merseyflow is not a local authority and so it can not legally use the Traffic Enforcement Centre. Unless there is something that we are not aware of, all the recovery orders issued for Mersey Gateway penalties are invalid and all the actions taken by the court, Merseyflow and the 'bailiffs' are illegal.
It is clear that the TEC facilities are only meant to be used by local authorities. The rules that govern the TEC are PART 75 - TRAFFIC ENFORCEMENT. Those rules clearly indicate that they only apply to local authorities. And given that these are law enforcement powers they can not be delegated to a company such as Merseyflow (which is the name being used by Emovis Operations (Mersey) Ltd.
There are two other documents that also make it clear that only local authorities can use the TEC. TEC User Guide version 5 and TEC presentation.
(There is a separate issue as to whether the tolls / charges for crossing the Mersey Gateway actually come under the Transport Act 2000 provisions. In brief that is because the provisions of the 2000 Act were in respect of charges on existing roads. The Mersey Gateway is a new road and the tolls / charges are intended to cover the costs, so the 2000 Act provisions should not be used even if they were being used by a local authority. For the purpose of this page, this issue has been ignored.)
(Even if the 2000 Act provisions could be used to pay for a new bridge. There is a question of who can use those powers generally (i.e. not just that part that enables the use of the TEC). It is absolutely clear from the Act and subsequent regulations that only a local authority (or the Government - if it is a road that comes under Highways England) can use the provisions. Again for the purpose of this page, this issue has been ignored.)
OTHER POINTS
Applicant name on Recovery Orders is wrong
Until June 2019 the applicant name was shown as 'Mersey Gateway Crossing'. As that is neither a person nor a corporate body it can not be an applicant for a court order. We raised this with the TEC who did not give a proper answer. Then during June, the name on the Recovery Orders was changed to 'Halton Borough Council'. That is a corporate body but there are now two points.
Changing the applicant name was virtually an admission that it was previously wrong, and that the orders were invalid for this reason apart from others. Though in any case it is not true that the Council have been applying for the Orders, so this seems to be a half baked attempt at a cover up.
At the end of June we asked the TEC-
"1. Did the TEC approve the change of the applicant name on the TE3 and TE9?
If so then who exactly requested for the name to be changed? When was the request made and when was the change approved? By "who" we want the full details of who the request for a change came from and we hope that you are not going to use the excuse of data protection to try and avoid revealing who the request came from.
2. The warrants of control also give or gave the applicant name as 'Merseyflow'. It seems to be rare for the people being chased by the enforcement agents to be shown these warrants and even rarer for someone to take a picture of one. So we do not know whether the applicant name has also been changed on the warrants. Has it been changed? If so then we want the same information as at (1)- Who exactly requested for the name to be changed? When was the request made and when was the change approved?
On the 19th July the TEC replied-
"TEC processes applications for Halton Borough Council as provided for under the terms of the Civil Procedure Rules.
Any questions relating to the administration of applications to TEC or the issue of warrants should be addressed to Halton Borough Council."
On the 2nd August we sent another email to TEC about Applicant name on TE3 and TE9 forms for Mersey Gateway.
We said "It seems clear that the TEC and the MoJ are covering up what has really been happening." We pointed out that what they said was not correct and that they were in effect refusing to supply the requested information, so we asked that they review that refusal.
The TEC have in effect failed to respond.
Name on Warrants and all documents from Marston is 'Merseyflow'
The warrants of execution issued by the TEC show the 'applicant' as 'Merseyflow'. Merseyflow are not and can not be authorised to use the TEC facilities, so all these warrants are illegal and invalid.
Similarly all documents (Notices of Enforcement, Reminder notices, Removal notices and Final notices) issued by Marston (the debt enforcement agents commonly referred to as 'bailiffs') show the 'Client' as 'Merseyflow'. And the 'Notice After Entry Or Taking Control Of Goods' shows 'who you owe the money to' as 'Merseyflow'. None of these documents are valid.
We raised this at the end of June with the TEC. See the previous section (Applicant name on Recovery Orders is wrong).
Applications to TEC from people who have been fined are being refused
This only started to happen about May 2019. There are various issues here-
The TEC does not give any reason for the refusal and when asked it emerged that the TEC does not record the reason for the refusals and does not know why an application has been refused by them.
Instead the refusal letters say "The response from the local authority with regards to your out of time application should already have been served to you."
In practice there is no response from either the 'local authority' or Merseyflow.
The reference by the TEC to 'the local authority' seems to be another part of a cover up.
And the lack of any response from anybody means that the person fined has no idea why the application has been refused.
At our suggestion, a number of people have contacted Halton Borough Council. They have said something like - "After submitting TE forms to the TEC in respect of PCNs xxxxxxxx, I had a refusal letter from them which said “The response from the local authority with regards to your out of time application should already have been served to you." I received no such response. Will you forward it to me without delay."
The answers that have been received from the Council are fairly standard and say- "Thank you for your enquiry. Unfortunately, Halton Borough Council do not deal with the Mersey Gateway Bridge and any complaints or queries need to be directed to Merseyflow. You can contact them on 01928 878878 or by emailing them at info@merseyflow.co.uk."
This is further proof that the whole system is a sham, and that the TEC are hiding the truth.
Applications are only refused by the TEC, if the 'applicant' asks them to. The refusals have been a lottery in that identical applications (for different PCNs) made at the same time by the same person have resulted in some being accepted and some being refused.
We have asked the TEC for figures so that we can see whether they are just rubber-stamping what Merseyflow asks them to do and also to see whether this lottery is due to inconsistency at Merseyflow or the TEC. The TEC have refused to give the requested figures as they say that it would be too difficult / expensive to arrive at figures. We made a different request but they again refused to supply figures.
The various correspondence on this can be seen here.
It is possible to contest a refusal but the fee if you want a court hearing is £255, this is more than the Recovery order demand of £143 (excluding any unpaid toll). This is even more forbidding if more than one application has been refused as the fee is apparently per PCN application refused. There is not even any indication that if successful you will get your money back. The one person who we know has so far been to court did not get her money back even though she won. This is very expensive 'justice' and seems to be designed to deter people from challenging what the TEC does.
There is a less expensive way of challenging the refusal at a cost of £100. But this is not an independent review of the refusal and it seems likely that this would be money down the drain as the TEC will merely confirm their refusal.
TEC have not said what regulations they operate under
We think that we know what regulations govern the way that the TEC operate, but when we have asked them they have given non answers. Their non answer included referring us to a Mersey Gateway Order that had been revoked. We pointed this out to them, but as recently as 11th July they still quoted this dead Order to us. There is a suspicion that they are quoting a dead Order as no one has bothered to tell the TEC that the older Mersey Gateway Order is not valid. This may be another reason why the TEC Orders are invalid
TEC will not say who they agreed the Mersey Gateway TE arrangements with
We believe that the arrangements were illegally made with Merseyflow. The TEC refuse to admit this and have wrongly claimed that their refusal is covered by 'data protection'. When asked for contact details of who they agreed this with at Halton Council, instead of admitting that there are no such contact details they have given us contact details for Merseyflow.
There are errors on the TE forms
There are errors on the forms. The errors have not been corrected and the TEC refuse to say who, if anyone, they have asked to correct the errors.
Though oddly the TEC seem to have corrected the error on on of the forms about August- but this is only for those people who ask the TEC to send them the form. The version available for downloading is still incorrect.
TEC will not say what the authorisation is for use of electronic warrants
The TEC warrants used by Marston for their client 'Merseyflow' are not on paper, they are electronic and the format is so basic that it could be copied or forged by anybody. We have asked what the authority is for this. The TEC have quoted regulations which in fact do not give such authority and have not said what the real authority, if any, is.
TEC will not say why many of the documents issued by Marston do not have a meaningful reference
The Notices of Enforcement and warrants show the PCN number. None of the other documents issued by Marston show the PCN numbers, instead they quote reference numbers which only mean anything to Marston and their client 'Merseyflow'. The system is wide open to fraud and abuse. The TEC will not say why this is allowed.
Are the bailiffs certified?
The men and women who come round, and nominally work for Marston, could not be found on the register of bailiffs. We asked the TEC how you can check on this and they said "bailiffs are usually given their certification by their local county court. Therefore you may wish to check the geographical location of the individuals and contact the relevant court."
This of course raised the question of how you know which court? We abandoned getting anywhere on this, but in any case around August all of a sudden we were able to find names on the register. It seems that either the search facility on the register had been faulty and was now corrected or that the names had only recently been put on the register.
Whether you can view the register of not, the 'bailiffs' seem to be shy of showing their identification. The notices that they leave at people's homes, usually give a surname like 'Mr Jones' or are blank. We have commented to the TEC that they seem to be quite happy that enforcement agents do not clearly identify themselves on these notices.
Chronology And Some Of The Documents, on a separate page
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