Jump to content

FEP

Registered Users

Change your profile picture
  • Posts

    10
  • Joined

  • Last visited

Reputation

1 Neutral
  1. Er...NO! Unfair Terms in Consumer Contract Regulations 1999: 4.— Terms to which these Regulations apply (1) These Regulations apply in relation to unfair terms in contracts concluded between a seller or a supplier and a consumer . (2) These Regulations do not apply to contractual terms which reflect– (a) mandatory statutory or regulatory provisions (including such provisions under the law of any Member State or in [ EU ] legislation having effect in the United Kingdom without further enactment); ...
  2. I have been reading through all the new law - Part 3 of the Tribunals, Courts and Enforcement act 2007 (TCEA); Schedule 12 of TCEA (Sch. 12); the Taking Control of Goods Regulations 2013 (TCGR); and The Taking Control of Goods (Fees) Regulations 2014 (TCGFR). A number of points arise and I would be very grateful for the viewpoints of the experts here. I know that I don't post here often (and never before with regard to bailiffs as the area has been a bit of a black hole for me in the past), but I do genuinely hope that my questions will be helpful and spark valuable debate. 1. Reading paragraph 14 of Sch. 12 very carefully, does it not give an enforcement agent (EA) the right to enter premises without a warrant? 'Relevant premises' are defined without any statement that the 'debtor' must be the debtor on the relevant warrant. Am I missing something? 2. What on earth is a vulnerable person in Regulations 10 and 23 of TCGR and Regulation 12 of TCGFR? Or at least what is a vulnerable person for the purposes of this law? Is there not huge scope for litigation over this point with complete lack of certainty until the upper courts have set a precedent? The parent Act (TCEA) gives no definition. Is there a current common law definition that will still be effective? 3. For that matter, what is "adequate opportunity to get assistance and advice" in TCGFR 12? More bothering of the courts? 4. What happens if an EA secures a vehicle on the highway, on say - a double yellow line. It has to be left there for a minimum of 2 hours before he can remove it. Who is liable for the resulting PCN and indeed potential removal by police or local highway authority/council? How is this resolved pre April 6th if it indeed comes up? 5. In TCGR Regulation 19 what is a 'reasonable distance away' for the purposes of storing goods removed? 6. What is to stop an EA charging 'unreasonable' fees for disbursements? So, for example, if they inform the debtor that vehicle storage is £100 a day AND they fail to arrange a sale for three months. The statute does not appear to provide any mechanism to stop this OR to allow a court to deem such fees excessive. 7. How will the percentage fees be worked out in the case of multiple enforcement where both County Court and High Court warrants are involved? The TCGFR (Regulation 11) suggest that the total amount of sums to be recovered would be used to calculate the percentages. How does that work with different thresholds? 8. How on earth will the £1,350 limit for exempt goods in TCGR Regulation 4 work? If the only goods available is a £10,000 van, can it be taken or not? The 'aggregate' value of the van is more that £1,350. Does that mean that the wholle van is not exempt? If the same van has 11 tools in the back, 10 worth £135 and 1 worth £8,650, can the bailiff choose to take the van and leave the tools? (Assuming he debt is circa £10,000). 9. On the thorny issue of 3rd party goods, whilst one theory is that EA's will have to be very cautious about taking goods that with reasonable enquiries they would have had notice were not the debtor's, don't the various rules about transfers of title and requirements for good faith, mean that it would be easy for an EA to argue that they had ENOUGH reason to believe that the goods MAY have belonged to the debtor. Clearly a debtor would be likely to claim that goods either never belonged to them, or have been recently transferred (without notice and for good consideration etc). An EA could surely argue that it would be very hard for them to be certain that the goods did not at least in part belong to the debtor. 10. Does Regulation 10(2) of TCGR mean that if a motorist (stopped by a police/EA joint action) makes it clear that he is going to run around screaming at the top of his voice if his car is taken, that the EA cannot really take it (or take control of it)? That's about all for now! Regards, FEP
  3. Not sure exactly where to post this - sorry if this is the wrong place. My experience is with Nat West but I believe the issue is of wider relevance. I have just sent Nat West the following complaint, after they sent me a 'Contactless' debit card without me asking for it and with a leaflet that tries to claim that the technology is safe and secure. Any thoughts? "You have just sent me a replacement Visa Debit card after I left my last one in a shop and subsequently cancelled it. With the card you sent me a leaflet telling me that the card includes 'contactless' technology and explaining how it works. My very first thought was that if I were to lose my card again, a criminal would now be able to make transactions for up to £20 without the need to know my pin number. How many such transactions could they make? The leaflet doesn't say. The leaflet says that 'from time to time' the pin number will be needed. How many transactions could be made fraudulently before the requirement for a pin is triggered? 3, 10, 50? Again, it doesn't say. I telephone the bank and your operator said that I should report any card loss immediately and that the bank would then be responsible for any fraudulent use. What if I didn't know that the card had been lost or stolen? Well, he said, the bank security team would block any apparently fraudulent uses. What if they didn't do so or didn't realise that it wasn't me using the card? What was the maximum number of £20 transactions that I could be liable for? HE DIDN'T KNOW! I have asked the bank to replace this card with one without the contactless technology and that has been agreed. However I am shocked and totally disgusted with the Bank's ethical position in this. Your leaflet explains that 'Contactless is very safe. Your card comes with the same secure technology used in all our cards....." The leaflet makes no attempt to spell out the potential liability that customers may now be exposed to. It appears to me that you are keen to increase the number and value of transactions that your cards process but that you couldn't really care less about the increased potential losses for your customers. YOU DON'T EVEN HAVE THE DECENCY TO SPELL OUT THE FACTS OR BRIEF YOUR TELEPHONE STAFF ON THE MATTER. And then there is the social damage. Prior to the mass use of this technology, people are aware of the attractiveness of the cash that they carry to petty-criminals. But cards at least had the protection of pin numbers. By introducing this technology on a mass basis, without engaging in ANY kind of debate with customers or even offering informed choice, you are actively fuelling petty crime / muggings. How do the managers of the bank live with themselves?"
  4. You say that you know the company through the scooter scene. I would have thought that the biggest lever that you have against the company is the threat to publicise their behaviour in the same scooter scene. Work out the most effective way that you could do that (eg appropriate web forums/ website etc). Then write to the company setting out what you believe they have done wrong and how you want matters rectified. Include a copy of the material that you propose to use to publicise the issue and explain very politely that you are happy to give them x days to rectify the situation after which you will have no choice but to publicise the issue. Make sure that your threatened publicity is 100% accurate - if they don't lilke it then any legal action they may try to take in defamation would then mean that they would have to dis-prove your claims. They are not likely to try to do that if they know that you have not lied. Good luck.
  5. Indeed, I was quoting the gist of the guidance from memory - thank you G&M for the clarification. Here is the link to the statutory guidance. dft.gov.uk/publications/tma-part-6-cpe-statutory-guidance G&M, your cunning advocate's line of thinking may be right, but I note that the use of the word 'and' in the section that you quote. Surely that would mean that the LA would need to show not only the impracticality of enforcement at the loading bay, but also how CEO enforcement would have been 'difficult' or 'sensitive'. Alternatively of course, the LA could just point out that they don't have to follow the Statutory Guidance, but as already stated, arguably they'd have to show that they had 'had regard' to it. The following comes from the Operational Guidance to Local Authorities: Parking, Policy and Enforcement (dft.gov.uk/publications/tma-part-6-cpe-guidance/) "Enforcement on trunk roads and other high speed roads 13.17 It has, in the past, been considered inappropriate for local authorities to use their enforcement powers on high speed roads (including trunk roads) because of the dangers to CEOs. However, the power given in the TMA to use approved devices, which are best suited for use in situations such as on high speed roads where stopping and parking are banned, makes local authority enforcement of parking on these roads more practical. Some authorities may now wish to include some high speed roads in their designation orders." Of course it has even less weight than the Statutory Guidance, though I would argue that if you end up in the higher courts, arguing a Judicial Review of the adjudicator's failure to accept your appeal, the judge would be entitled to consider such guidance in formulating his/her understanding of the statute and the Statutory Guidance. Good luck
  6. I was passing on a bus so I can't be sure, but I believe I just saw a Hackney Civil Enforcement Officer with a CCTV camera attached to their hat! Anyone know about this? What do they use the footage for? Is the CCTV camera an approved device? What about Data Protection issues? Do they still get arsey if you try to film them with a mobile phone? The world has truly gone mad! FEP
  7. No of course not. The requirement a) to advise you on the PCN of your right to view the video footage at a council office of your choosing and b) to then, within a reasonable time, let you see the footage at a council office of your choosing, is a non-negotiable and perfectly un-ambiguous statutory requirement. However, like I've said before, don't expect the council to do anything but laugh at your detailed reliance on statute - after all they seem to be quite happy to ignore their statutory obligations in the first place. The problem you've got, given that you've been seduced by the discount, is that in the run up to any PATAS hearing, when your case gets considered by a slightly more experienced council officer, there's now a chance that they'll wise up and offer you the chance to view the video at the office of your choosing. Strictly speaking, that wouldn't fix the procedural impropriety of the PCN being contrary to statute, but it would be one less bullet in the magazine. It's true, as alluded to on the other forum, that even an adjudicator MAY try to give the council some wriggle room on these points, arguing for instance that if you've been sent the footage at home then you haven't been prejudiced. Strictly that would be wrong and appealable / judicially reviewable. This then is why you should have only brought up the 'can I view at xxx office' a couple of weeks before a PATAS appeal. You make them jump through as many procedural hoops as possible - they will always mess up somewhere - that's if they don't just give up and roll over before the hearing. Also, as correctly pointed out on the other forum, you've got the second class post PI. On the substantial issue the law is stacked against you. You have to use all these details to level the playing field.
  8. There are different levels of procedural contravention. 1. Against an absolute requirement of statute. The requirement to tell you on the PCN that you may view the video at a council office of your choice is non negotiable statute. 2. Against a requirement of statute that is open to interpretation. The requirement to tell you the grounds of the offence committed (and arguably then the location). 3. Against a code of practice orguidance document. Might help persuade a judge or adjudicator, but ultimately compliance is purely voluntary. I believe that you have something in category 1. so you should be OK, but don't expect the council to back down without you doing the PATAS appeal. There then is the heart of the confidence trick - you have to resist the council's bribe to abandon exerting you full legal rights. As regards the length of time stationary. Yes, it would be ridiculous to attempt to fine you for being stationary in your car for a short period. Ridiculous but probably quite legal. Because there is no absolute definition of parking, it would be down to the whim of an adjudicator or Judge as to whether to rule in your favour on that basis. So I don't think we can give you very much help on resisting the substantial alleged parking offence, but you can use the arcane detail to level the playing field. FEP
  9. Search online for The Civil Enforcement of Parking Contraventions (England) Representations and Appeals Regulations 2007. The first hit should bring it up from Legislation.co.uk. I'd post the link but I'm apparaently not allowed to! Have a look at Regulation 3, sub-paras (4),(5) and (6). Regulation 10 of the General Regulations relates to PCN's served by post. 10(1)(a) is CCTV tickets. So there you have it - invalid PCN. If you point this out to the LA they will ignore you and you may flag up the fact that you want to view at a council office of your choosing. I reckon you'll have to go to PATAS so again, forget the bribe. (BTW, there is a high chance that in the week or so before the PATAS hearing the LA will announce that they are not contesting the case - they often do that.) Strengthen your position, by very politely asking to view the footage at xyz housing office or whatever (make sure it is definitely a Council office). Don't go into why. When they again tell you that you have to go to the town hall, decline politely and then explain to the adjudicator that you haven't been able to see the evidence at the office of your choosing. They could then adjourn the hearing to let you see the footage but there would still be the issue of the plain invalid PCN and procedural improprieties. As you see, they have to comply with your request regards viewing the footage within a reasonable time, so if it were me, I wouldn't make the request until about two and a half weeks before the PATAS hearing date. FEP
  10. Of course you are right. Issuing a ticket in the circumstances that you describe is a typical local authority outrage. The good news is that there are numerous things that you can do to put the LA back in their box. First - try not to think about the 'discount' figure. I would put it this way. You have been issued a fine (£120 or whatever) and the LA have offered you a bribe of £60 to just pay up without asking any awkward questions or questioning the validity of their attempt at extortion/blackmail. My attitude is ALWAYS, thanks but no thanks, lets make it £120 and go all the way to PATAS if you'd like. Grean and Mean is very forceful in his/her approach but not entirely correct. PATAS 'case law' is not really case law at all in that it does NOT set a binding precedent. When you take your circumstances to the adjudicator they could find the exact opposite to what went before though clearly the adjudicator may find previous decisions persuasive. I do not believe that there is any definitive definition of 'parking' even in proper case law from the higher courts - at least I've never managed to find any. Legislation does give some clues but they are sometime slightly contradictory. In some circumstances, but not. I believe, yours, it could be possible to resist the allegation of 'leaving the vehicle in a prohibited parking place' by pointing out that you did not leave the vehicle. So unfortunately, you are probably barking up the wrong tree, though an understandable one, with your attempt to use the law to prove the common sense position that you were not parked. In fact, in terms of general highway law, the base position is that you may drive a vehicle on the road and stop for the purposes of traffic hold ups, traffic lights etc and sometimes for setting down or picking up passengers / loading, but not otherwise. In that regard, the LA, MAY be able to make a legally sound (if morally unsound) case for issuing your ticket. Now the good stuff. Statutory guidance tells the LA that they should only use CCTV enforcement where CEO enforcement is dangerous / unpractical. LA's must 'have regard' to this guidance. If you can satisfy the adjudicator that they didn't have regard, you should win. But of course that would be a difficult thing to prove but if at a PATAS hearing (which the LA almost definitely wont attend), if they have not bothered in their evidence to pick up this point and don't make the point that they did have regard - you (should) win. A CCTV camera used for enforcement purposes must be an approved device. In your case it may well be, but if the LA have tripped up with this, they lose. There is a deeper issue around that questions the validity of ALL CCTV approvals as approved devices, but that's probably best left alone for now. There is also an argument that the use of 'unnecessary' CCTV (they should have used a CEO), renders the processing of your DATA unfair for the purposes of the Data Protection Act. This is particularly so if there weren't adequate signs in the immediate vicinity of the camera warning you that your data was being processed, by whom and for what purpose. DPA breaches won't per se invalidate your ticket, but they may make the LA think carefully when considering your representations. On your PCN it MUST say that you may view the CCTV footage at one of the LA's offices of your choosing. If it does not say this, the PCN is invalid. If you request to see the footage at whichever LA office you choose and they insist on you going to some designated viewing suite, they have not complied with the statutory requirements and the PCN is invalid. For all that, the last CCTV PCN that I dispatched into the ether, was ultimately tripped up by the fact that when I requested a copy of the relevant traffic order, demonstrating the correct existence of the allegedly contravened order, I was sent the wrong document. I asked them to send the correct one, before the PATAS hearing and they declined to do so. I won the hearing. This is why you must forget the 'bribe' and dig in. The whole process is unbelievably complex, and in my experience, the LA's are not capable of jumping through all the hoops correctly, if you make sure that you know all the relevant law. (There are probably other legal issues relevant to your PCN, that you can use to good effect). Also, be careful to make the relevant notice periods work to you best advantage and ALWAYS send stuff to them recorded - if they claim not to have something you send and you have the post room signature, they're donald ducked. I have not at this stage given you the references to the relevant law and regulations. If you decide to take them on I will do. FEP
×
×
  • Create New...