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lamma

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lamma last won the day on November 28 2012

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  1. I explicitly referred to CPE. that means TMA. 1991 Act is irrelevant. I have no idea why you brought it up. Especially as this is about the analysis of Sch 12. We can progress if posts focus on the matter without sidetracks. So let us proceed with the correct focus. In a nutshell. My initial two points - as yet unrebutted, are:- 1) Sch 12 does bite for CPE (the "as if" is all important) 2) Bailiff can't sell on a seized vehicle that is subject to HP as they cannot pass good title. (What is more they must know they cannot pass good title in that circumstance as they are qualified, trained and tested.) As per BA, I too would welcome Fair Parking contributing.
  2. 104 2 (b) enables TCE through the CPE enforcement S.I.s which as quoted, use "as if"
  3. 1) I have at no time contended that the TCE does not permit enforcement of CPE Penalties. ("Traffic penalties" is the wrong term, we need accuracy of expression or it becomes rather Queen of Hearts). As a matter of plain fact I quoted the paragraph that enables this in my first post. It is 104 (2) (b). And added a specific paragraph to explain how it engages - the reference to the "as if" in the enforcement regs. So that you and other readers may be clear, double quotes denotes a exact quotation, single quotes denote an expression of doubt. You may have simple inferred something that was not implied. That doesn't help analysis but it can happen. Your belief that I contended otherwise is therefore completely misplaced. 2) As for you latter question: 51 (2) that you requoted. the pains that EAs take (and don't take) isn't relevant to the subject.
  4. That contention has not been raised in this thread. Operative word is "analysis".
  5. Exactly my point. The EA selling the car would be a stupid thing to do. They would be doing it knowingly being trained in this area.
  6. Enclose proof with the appeal letter. You must evidence your claim to the exemption (should it exist) or the council will bat the appeal away in the blink of an eye.
  7. Thread titled "analysis" for that reason. Subject has potential impact enough to warrant it being bottomed out.
  8. Much has been spoken of this. I have not (yet) done any detailed analysis but the ball needs to start rolling. So I 'kick off' with these two (extremely) cursory observations:- 1) 104 (2) means that the Act bites for parking tickets viz:- “judgment debt” means either of the following— (a) a sum which is payable under a judgment or order enforceable by the High Court or a county court; (b) a sum which, by virtue of an enactment, is recoverable as if it were payable under a judgment or order of the High Court or of a county court (including a sum which is so recoverable because a court so orders); Specifically the "as if it were payable" part of (b). I am assuming that we are all familiar with the "as if" nature of the regulations around the TEC and CPE enforcement. and (on the assumption that Schedule 12 does bite) 2) Schedule 12 51 51 (1) A purchaser of controlled goods acquires good title, with two exceptions. (2) The exceptions apply only if the goods are not the debtor's at the time of sale. So, paradoxically the EA's do not want Schedule 12 to apply to hire purchase vehicles taken for CPE debts. Of course there are many amendments to this portmanteau Act that I have not (yet) read. There is also much case law on this subject, how much of that that still applies is open to question of course. Anyway, the ball is rolling
  9. I must look into Fair Parking's point re applicability as if it holds then the EA is acting in a private capacity and could be in a world of hurt. Although the courts do protect their own.. To the issue:- Was it slipshod draftsmanship ? Errata do occur... or intentional (chaos) ? Either way its deep waters. e.g. 955. Hire purchase etc. Goods let to a hirer on hire purchase remain the property of the owner1 but they are not thereby necessarily protected from distress2. Goods bailed under a hire purchase agreement3 or a consumer hire agreement4 or agreed to be sold under a conditional sale agreement5 are, where the relevant agreement has not been terminated6, excluded from the general protection to the goods of strangers given by the Law of Distress Amendment Act 19087, except during the period between the service of a default notice8 in respect of the goods and the date when the notice expires or is earlier complied with9. Goods comprised in an agreement made by the tenant's husband or wife are not excluded from protection10, but, if such an agreement is made by one of two joint tenants, the goods are excluded from protection11. Goods comprised in a bill of sale are excluded from the general protection of the Law of Distress Amendment Act 1908 except during the period between service of a default notice12 in respect of goods subject to a regulated agreement13 under which a bill of sale is given by way of security and the date on which the notice expires or is earlier complied with14. A creditor or owner is not entitled to enforce a term of a regulated agreement by recovering possession of any goods or treating any right conferred on the debtor or hirer as terminated, restricted or deferred except by or after giving the debtor or hirer not less than seven days' notice in a prescribed form of his intention to do so; similar notice is to be required of an intention to terminate a regulated agreement otherwise than on the ground of a breach by the debtor or hirer15. Express provision is frequently made in hire purchase agreements for the automatic termination of the agreement if the landlord of the hirer levies or threatens to levy a distress. It seems that the operation of such a provision may be affected by the statutory restrictions on termination16. It has been held that at common law, even where an express provision for termination is made, the goods remain comprised in a hire purchase agreement if any contractual right or agreement still subsists after a purported termination17. Even if there is a termination, goods remaining in the possession of the hirer may be within the reputed ownership of the hirer and so liable to distress18. Goods let on hire purchase may be exempted from distress by express agreement between the owner and the landlord19. Goods let on hire purchase may be protected from distress under provisions relating to goods delivered for the purpose of a public trade20, fixtures, goods in use21, wearing apparel, bedding and tools of trade22, agricultural machinery and breeding stock23, gas fittings24, water fittings25 and electricity fittings26. 1 See generally consumer credit vol 9(1) (Reissue) para 23 et seq. 2 Cf para 928 ante. 3 'Hire purchase agreement' means an agreement, other than a conditional sale agreement, under which: (1) goods are bailed in return for periodical payments by the person to whom they are bailed; and (2) the property in the goods will pass to that person if the terms of the agreement are complied with and one or more of the following occurs: (a) the exercise of an option to purchase by that person; (b) the doing of any other specified act by any party to the agreement; © the happening of any other specified event: Law of Distress Amendment Act 1908 s 4A(3) (s 4A added by the Consumer Credit Act 1974 s 192(3)(a), Sch 4 para 5); and see consumer credit vol 9(1) (Reissue) para 23 et seq. 4 A 'consumer hire agreement' is an agreement made by a person with an individual ('the hirer') for the bailment of goods to the hirer, being an agreement which: (1) is not a hire purchase agreement; (2) is capable of subsisting for more than three months; and (3) does not require the hirer to make payments exceeding £25,000: Consumer Credit Act 1974 s 15(1) (amended by the Consumer Credit (Increase of Monetary Limits) Order 1983, SI 1983/1874, art 4, Schedule Pt II; and the Consumer Credit (Increase of Monetary Limits) (Amendment) Order 1998, SI 1998/996, art 2); definition applied by the Law of Distress Amendment Act 1908 s 4A(3) (as added: see note 3 supra).The Consumer Credit Act 1974 s 15(1)© (as amended) (see head (3) supra) and the word 'and' preceding it are repealed by the Consumer Credit Act 2006 ss 2(2), 70, Sch 4 as from a day to be appointed under s 71(2). At the date at which this volume states the law no such day had been appointed. As to consumer hire agreements see consumer credit vol 9(1) (Reissue) para 82. 5 'Conditional sale agreement' means an agreement for the sale of goods under which the purchase price or part of it is payable by instalments, and the property in the goods is to remain in the seller (notwithstanding that the buyer is to be in possession of the goods) until such conditions as to the payment of instalments or otherwise as may be specified in the agreement are fulfilled: Law of Distress Amendment Act 1908 s 4A(3) (as added: see note 3 supra). 6 See the text and notes 15-17 infra. 7 See paras 951 ante, 956 et seq post. 8 See note 15 infra. 9 Law of Distress Amendment Act 1908 s 4A(1) (as added: see note 3 supra). 10 Shenstone & Co v Freeman [1910] 2 KB 84, DC; Rogers, Eungblut & Co v Martin [1911] 1 KB 19, CA. 11 AW Gamage Ltd v Payne (1925) 134 LT 222, DC. 12 Ie under the Consumer Credit Act 1974: see generally consumer credit. 13 'Regulated agreement' means a consumer credit agreement, or consumer hire agreement, other than an exempt agreement: ibid s 189(1); definition applied by the Law of Distress Amendment Act 1908 s 4A(3) (as added: see note 3 supra). See consumer credit vol 9(1) (Reissue) para 2. 14 Ibid s 4A(2) (as added: see note 3 supra). As to bills of sale generally see financial services and institutions vol 50 (2008) para 1620 et seq. 15 See the Consumer Credit Act 1974 ss 76, 98; and consumer credit vol 9(1) (Reissue) paras 234, 262. As to default notices see ss 87-89 (s 88 as amended; prospectively amended); and consumer credit vol 9(1) (Reissue) para 263 et seq. 16 See the text and note 15 supra. 17 See eg Hackney Furnishing Co v Watts [1912] 3 KB 225, DC; Jay's Furnishing Co v Brand & Co [1915] 1 KB 458, CA; Smart Bros Ltd v Holt [1929] 2 KB 303; Drages Ltd v Owen (1935) 52 TLR 108; Times Furnishing Co Ltd v Hutchings [1938] 1 KB 775, [1938] 1 All ER 422. 18 Times Furnishing Co Ltd v Hutchings [1938] 1 KB 775, [1938] 1 All ER 422; cf para 654 note 4 ante. See further consumer credit vol 9(1) (Reissue) paras 23-44. 19 See note 2 supra. 20 See paras 932-936 ante. 21 See paras 937-938 ante. 22 See para 942 ante. 23 See para 943 ante. 24 See para 945 ante. 25 See para 946 ante. 26 See para 947 ante.
  10. I agree wholeheartedly that the Stat Dec should not be abused. And in the instance of the case in this thread it seems that a Stat Dec is validly called for. As for the new multi £100s "criminal charges" I dare not vent my spleen in public. I will for now merely say that the name says it all - they ARE criminal charges. But let us focus on this case.
  11. The revised procedure - immediate retrial - is somewhat disconcerting to say the least. A Litigant In Person (LIP) has no chance of seeking and obtaining advice in an hour. I would argue that the LIP does not understand the paperwork - and frankly they won't - and needs time. For the same reasons an informed plea is impossible. And where is the witness for the re-trial ? Interestingly, to me at least, the British Transport Police (BTP) are paid for by the Train Operators. I know of cases being dropped after fifteen minutes or so of astute questioning of the BTP witness - the case suddenly being transformed to one of 'not being in the public interest' after the CPS request an adjournment and make a phone call. Of course we do not know if the BTP are involved in this case. And neither will the OP until the declaration/ 're-trial'. Which brings me back to my point about the LIP. Sufficient illustration I believe. For the avoidance of doubt I am neither suggesting nor implying that a solicitor should be taken along on the day.
  12. Thank you for this mickeymack. It will take time to digest but one thought springs to mind immediately. What about instances of ANPR equipped bailiff vans enforcing CPE where the bailiff is acting in their private capacity ? Of course there is a tendency for the courts to 'overlook' many bailiff issues....
  13. yes, but the recipient does not want this public, even anonymised, at this stage. But will provide you a suitable copy. Probably doable tomorrow. tt, your box is full.
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