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Everything posted by Beamengine

  1. The use of minimal details in the claim is significant as it makes no mention that the charges was for stopping rather than parking. The Keeper At Date Of Event (KADOE) contract allows DVLA to provide personal data under the DPA and conventiently defines Parking Charge as: “Parking Charge” means: (a) a sum in the nature of a fee or charge, arising under the terms of a contract (including a contract arising only when the vehicle was parked on the land) between: the driver and the owner or occupier of the land; or a person authorised, under or by virtue of arrangements made by the owner or occupier of the land, to enter into a contract with the driver requiring the payment of parking charges in respect of the parking of the vehicle on the land; and (b) a sum in the nature of damages arising as a result of trespass or other tort committed by parking the vehicle on land, provided that adequate notice of the sum was given to the driver of the vehicle (when the vehicle was parked on the land). Adequate notice means the display of one or more notices that: specify the sum as the charge for unauthorised parking and are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land, and comply with any applicable requirements prescribed in regulations under paragraph 12 to Schedule 4 to the Protection of Freedoms Act 2012. ES Parking are not on the list provided by DVLA for the number of KADOE enquiries up to October 2015 so they may be a new company and on probation. Their letters are careful to avoid state that the charge is for stopping rather than parking as did the POC. I very much doubt that this is anything other than a speculatice claim and that filing a defence will mean that it will not go to a hearing. If they could be shown to have issued the charge without reasonable cause this would be a good basis for a claim for distress under the DPA as well as putting in jeopardy their ability to obtain keeper data from DVLA.
  2. Your defence only needs to be the issues that the claimant must prove as the burden of proof rests with them. They must convince the judge on all four lines of your defence to succeed. I doubt that they will take the matter any further. In any case even if they do decide to go for allocatin to a track there will be more time to gather the counter arguments so don't panic.
  3. DX, I was wary of going the 31:14 route unless there was an argument that it should be allocated to the fast track. Now that we have a much clearer understanding of the issues, especially the complex question of whether or not the area constitutes an adopted highway, I would argue that there are a number of complex issues at least one of which involves a point of law. As such the small claims track would not be appropriate. The maxim "once a highway always a highway" would appear to have been circumvented if the whole of Gartside Street is no longer a public highway. Resolving that issue alone will be a point of law if rights can be extinguished because they are no longer necessary only to be reinstated a short time later. Will ES Parking pay the hefty £545 hearing fee for a fast track claim for a £100 charge? The defence needs only to be a skeleton argument. How about: 1. Gartside Street is an adopted highway and private contracts governing its use are ultra vires. 2. The area claimed to be private land is not clearly delineated and the notices could apply to the footways. 3. The signs cannot be read by a driver unless they stop to read the signs and park thereby breaching the terms and conditions. 4. The vehicle was not parked in Gartside Street at any time, stopping does not constitute parking. Anything else?
  4. I think that would be a reference to the part of the Street that remained adopted. In any case it is a partnership so ownership is not really an issue but whether it is a public highway is. Apologies, I have just found all of your pictures in post 17, my browser only displayed the first but opening it in a viewer showed them all. I run non standard software so this is the price I pay for being secure. I think that the section in the Gazette notice is the raised part and this would make sense if it is intended to be a pedestrian area. However, the warning signs are place on convenient council standards and bear no relation to the actual area claimed to be private land The taxi in your first picture is probably not stopped on the raised area so would not be on the private land. In the absence of any road markings the extend is impossible to determine so that should be part of your defence as well.
  5. My online Citizens Adviceguide says that the AOS must be served within 14 days and the defence 14 days after thatand not 28. Have they got it wrong?
  6. The Gazette search facility is most confusing, tonight I could only find entries for 2004/5 but this one is of interest https://www.thegazette.co.uk/notice/L-57536-125 It is an application to stop up part of the road in about the right area following the Planning consent given in 2002. In effect stopping up the road because it was no longer necessary is often used to restrict access to and from residential areas. Its effect would be to allow the land to revert to use by its owner without the need to extinguish the highway. Sneaky! I can't find the relevant application in the Manchester archives but that is even more difficult to search than the Gazette. I suspect that this is what they will try to rely on in court. Their problem, and I hope they are watching, is that Gartside remains a through route as it has a car park in the middle. Quite how that fits in with the access no longer being necessary I would be interested to know. Of course there may be later applications which may turn up. I believe that your best defence would be to claim that the notices were not readable from your car so you had to stop to read them only to discover that you would be charged for stopping. You should also challenge them on the claim that it was a parking charge and request evidence that your vehicle was parked especially as there does not appear to be a warning about parking charges. Does this not mean that the MCOL claimant will fail to respond until the track is allocated and the date for filing the defence has passed? Would a judge not simply wait until the track is allocated before making an order for disclosure? Defendants are unlikely to opt to move away form the small claims track because of the risk of costs.
  7. Surely Part 31 does not apply to the small claims track. Scope of this Part 31.1 (1) This Part sets out rules about the disclosure and inspection of documents. (2) This Part applies to all claims except a claim on the small claims track.
  8. If I have interpreted the law correctly a highway can only be extinguished by the application of the council to a Magistrates Court. Before they can do that they must advertise in the London Gazette. I can find only two notices relating to Gartside Street in the London gazette in 2001 and 2002 . There relate to stopping up portions of the street on a temporary basis to allow building work. It would appear that the whole of the remains a public highway so ES Parking have no cause of action unless they have been authorised by the highway authority. What exactly do the signs say? Given your circumstances you might even cite the Vento v South Yorkshire Police and claim £750 compensation for the distress which was set by the Court of Appeal as the starting point.
  9. The latest revision to the masterplan dated 2014 states : "Allied London, the Council’s development partners in the scheme" It would appear from this that Allied London are the landowners and are working with the council to implement the development. That may explain the reluctance of the council to provide information on the status of the highway. Try phoning Allied London and asking them if they have a contract with ES Parking, it will be a lot quicker than an FOI request! You might also consider a counterclaim against ES Parking for distress caused by their pursuit of this invoice. If their claim is thrown out this would demonstrate that ES Parking did not have reasonable cause to obtain your personal details from DVLA and are therefore in breach of the Data Protection Act. How about £250 compensation for all of this?
  10. Search the Manchester City Council online planning applications. There is a Spinningfields masterplan which shows the development of the 22 acre site. As far as I can see it does not displace the road system but the are is going to be a boulevard with what looks like a raised section for pedestrians and a ramp for cars. I suspect that the developers have acquired the rights to maintain that section of the road which means that it is no longer maintained by highways. An interesting legal point as to whether it remains a public highway.
  11. As an adviser for Citizens Advice I would tend to agree with you unless they have someone who takes an interest in the activities of such companies who are only interested in extorting money. I have just made a claim for distress caused by their inability to comply with DVLA's requirements. Ginger As you are defending the claim you should point out that you have asked for the landowner's details and you should question their right to claim that setting down is parking, This would be a defence if it remains the public highway. You should have time before the hearing to make a Freedom of Information request to the council highways about whether the rights of way were extinguished and when. If you can discover the landowner you could also ask them, it looks as though a whole strip was developed with that part of the road intended as a pedestrian area to connect the two parts.
  12. Google Earth is particularly good for this type of investigation as it shows how the area has evolved. It does look as though there has been extensive development over that short length of road where it narrows. The warning signs are visible and include the No Stopping warning. As it is only a small part of the road that has been privatised by the sale of the land you must ask the local Highway Authority (not the national one) whether they extinguighed the highway rights as part of the sale. Local authorties often sell large parcels of land for development which includes the public highway but they will usually extinguish the rights when they do so. In this case they should have provided an alternative route as it effectively means that the road is closed. If it remains a public highway they there is no case to answer so the key question must be the identity of the landowner. You have asked this question and failed to get an answer. Even if the highway was extinguished legally then there should be signs to indicate that it is now private land with no right of way. Only where there is no right of way can the landowner restrict behaviour in the way in which they have claimed.
  13. Did the solicitor act as executor and did his duties include the sale of the house? If so then he is acting as the deceased personal representative and is responsible for the proper distribution of the estate. It seems likely that Npower assumed that summer2016 had inherited the house so that the contract for supply passed with it. Do Npower have the right to do this or should they have a new contract with the new owner? If there is no contract they should not be claiming that the account is in debt let alone defaul. In any case the latest "guidance" states that debts should not be entered on CRA reports after death. Even so it is arguable that utility debts should be entered which was brought in with the 2014 guidance that was issued by the CRAs. Sounds more like the foxes guaring the chickens. As a speedy soluton is required and Npower have woefully failed in the handling of the account I would go through the small claims process which could also challenge the guidance on utilities being included of credit reports as they shoudl be treated as a pay as you go serivce.
  14. Surely the point is that before it could get to that stage there would have to be a judgment that made npower's action unlawful under the DPA. Irrespective of whether a sum is awarded or not the facts determined by the lower court would stand i.e. npower acted unlawfully. Would htey then wish to publicise this by a Supreme Court appeal?
  15. It can only be overturned by the Supreme Court which woul dmean that it would have to go through the High Court, and the Court of Appeal before getting to the Supreme Court. That would take several years by which time the DPA will be obsolete and its replacement should be implemented by 2018. Even if we totally leave the EU the financial institutions will insist that we have an equivalent to the new Directive which includes the same remedy as the original one. Get the small claims in now! This includes personal injruy clams up to £1000 which should cover most cases.
  16. Excellent advice but I should add that the interpretationof the DPA changed a couple of weeks ago when Google withdrew their appeal from the Supreme Court. The Court of Appeal ruled in Vidal Hall v. Google that not only was the claimant's personal data unlawfully processed but that the DPA did not conform to the requirements of the EU DPA Directive (it still applies at least until we leave). They disapplied the requirement in section 13(1) for a financial loss before a claim for personal injury to me made. I have already just sent several LBAs to companies that have acted unlawfully under the DPA including incorrect the supply of credit reference data.
  17. A good question but it doesn't mean that they do have permission. It took 17 years before the Court of Appeal picked up the defect in the DPA that meant that it did not implement the EU Directive. Their IP was cancelled fairly recently, probably this year but the FCA Register doesn't give the date. Robway and MKDP have retained their IP and they are part of the group.
  18. I am aware that HPH2 are part of Hoist Finance UK who do have IP. However, the FCA register does not sho any affiliated companies or trading names associated with the company. In all of the other examples I have found the affiliates and/or trading names are included. As HPH2 are registered outside the EEA and the English courts do not have jusrisdiction I can't see how they should be able to trade as a DCA in England.
  19. Does this mean that BC will now stop this practice that is blighting the credit score? It seems to be an approach that is deliberately aimed at making it difficult for debtors to recover rather than helping them. One significant point is that HPH2 is currently registering the activity on an ex-BC account that has been assigned to them but their FCA Interim Permission has been cancelled. I wonder about the status of all of the court claims they have made since the cancellation as I doubt that they can legally trade without permission.
  20. From memory ICO's guidelines were that the AP markers should only be used where there was a realistic probability that the arrears would be cleared within a six month period and normal contractual payments reinstated. The also stated that arrears should be for a maximum of six months before it was reported as a default. The problem is that Barclays insisted that a default could only be marked once the final demand had been made and the time for payment had elapsed. That meant that they believe that they could issue a number of Default Notices and still comply with the guidance. I wonder what a judge would make of a s140 CCA claim on this.
  21. Barclaycard deliberately defer defaults so that the markings remain long after they should. I have sent a letter before action to them on the basis that they have failed to follow the ICO guidelines and their incorrect markings are contrary to the requirement of the DPA that data should be accurate. In my case they wrongly claimed that a repayment plan should be classifed as an Agreement to Pay for some years. They defaulted the account only when the repayment plan was stopped and entered a default. As a result of the Vidal Hall v Google Appeal Court ruling it is now possible to make a claim even though there is no financial loss but the claim may be stayed until the Supreme Court ruling due in October 2016. I believe that a claim for personal injury less than £1000 can be made under the small claims track and a CCJ against MKDP might affect their credit rating
  22. Perhaps it is time to change my number for an 0845 to 0844 and let them pay me to call
  23. BC last week offered me a settlement on two accounts totalling £9000 of 60% claiming that this is the lowest they will accept. They have a number of problems as they had previously acknowledged that one on the agreements was unenforceable but they have now changed their mind on this. I have been advised that both of their agreements provided under s78 were unenforceable and asked them to seek a CCJ, Apparently it is their policy not to take court action but to sell it on to a DCA who will. I offered to buy the debt for the assignment value and threatened a claim under s140a if they sold it on - they had already rejected a 60% offer in 2011. Most intrigued by the Mercer reference as they were a non trading company and last June I was informed that they had stopped using that name as the result of customer feedback!
  24. Thank you OMH for both the determination and the ability to accept the outcome. I too am querying the appalling reconstructed CCA agreement that they were able to successfully use in your case. I am surprised by this as it was a pre 2007 agreement and para 38 in Grace & Anor v Black Horse Ltd [2014] EWCA Civ 1413 indicated that the contract was unenforceable on a purely technical infringement. I am currently threatening BC with a claim under s140a of acting unfairly in relation to a similar account transferred from Egg. A minor part will be their reconstructed agreements and the fairness of their use. More significantly I will challenge their use of Mercer's name as I have a notice issued by them despite their status as a non trading company who were listed as dormant by Companies House. Does anyone have an examples of headed letters from them in 2013? That is just the tip of the iceberg as they took over Egg card accounts in April 2011 but did not migrate them to BC until November which would explain the muddle they were in over your account. The problem was that they then failed to keep the Egg/Barclays records and have yet to realise that two accounts migrated to BC as live accounts were defaulted on 1 November 2011! This probably needs a new thread as the correspondence is now being handled by (removed) Assistant Vice President, Legal Counsel.
  25. Since November 2011 creditors inviting debtors to call them should not have been using numbers that cost more than the standard geographic rate. Last year, as a result of the highly critical PAC report on the use of 0845 numbers by DWP all government departments were mandated to offer alternative geographic numbers. The Consumer Rights Directive which came into force last June should have meant the end of 084 and 087 numbers for most consumer calls. The FCA has consulted on the use of geographic numbers and appears to have accepted a business argument that mobile numbers are now acceptable. Apart from my local CAB I am not aware that any other consumer bodies have objected to this proposal. Unfortunately a recent urgent contact request from Sainsbury's Credit card only gave an 0870 number so there is still a long way to go!
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