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    • OK thanks for that.   I have no prior correspondence with EXCEL and therefore have not admitted being the driver. As it happens, I wasn't.   They have not responded to my initial request for documents and therefore I have no details on planning permission. I guess I'll assume and assert that they haven't in the absence of them providing proof to the contrary.   Meanwhile, I've had a letter from EXCEL offering a reduced payment. I will attach this.   I'm wondering whether I should ignore the letter or respond. I will not accept the offer.   
    • Thanks for all responses I’ve been looking at other threads and now feel totally confused as I’m scared of actually having to go to court as I have no idea how to defend this! Torn between just setting up a payment plan and not wanting them to win! 
    • Thanks so much!    1. on planning permission my WS says: The signs did not have planning permission under the Town and County planning.  I have an email stating there was no planning permission from the council. The signs do not fall under deemed consent.  * Their WS says they do not need planning permission by being an approved operator of the trade association, and it is not for the  county court to determine planning permission.   2. Excel are trying to say I’m dishonest.  Their WS states my defence appears to be cut and pasted from websites relating to parking whose aim is to assist motorists on contesting PCN's. Large portions are non sensical and irrelevant to the claim   This is Unacceptable as the defendant has signed a statement of truth whilst clearly not being the defendants knowledge    Q Any comments?      Their WS states that I alleged I received no correspondence, and the onus is on the driver to update DVLA. I did update DVLA, but I moved numerous times due to domestic abuse. This was in my set aside and part of why it was granted. Evidence was provided at that time. Q Is this going to come up again?    *Also they question how I would be able to comment on the signs if I’m not the driver of the vehicle, as she would not have first hand knowledge, therefore it is the claimants position that she is being disingenuous.    I state that photos will be provided in my bundle. I actually haven’t submitted any but I do also know somebody who had PCN from the same carpark,   He gave me all his evidence etc, Mr Booth and he won his case. I linked to the parking pranksters article on it.  Q So is it ok to use such websites and to use photos from someone else?    Thanks    I put Excel to strict proof that any contract can exist  *Their WS states it falls foul of the unfair terms in consumer contracts regulations 1999(UTCCR 1999). Claims the regulations don't apply   This is the link to Mr Booth case who won on the signage  Also the PCN is completely blurred and illegible in their WS evidence  Is this another point?    I have his his email regarding planning consent, Mr Booth had an email from the town planning officer stating that in his opinion the signage would require planning consent     http://parking-prankster.blogspot.com/2017/01/excel-parking-v-booth.html?m=1   He had a number of lines of defence, but focussed on the poor signage in the car park. Excel Parking used BW Legal who hired a local solicitor to turn up. She wasn't that well prepared and had not bothered to bring printed copies of the case. When the Judge asked her to refer to defence photographs provided of poor signage she used her phone. Mr Booth admitted that he never bought a ticket - but this was because he never saw the signage signage in the first place and so no contract was entered into. Excel provided pictures of the signage, date stamped for August 2015, but the event was in March 2015. They also provided at the last minute a witness statement from the landowner stating he gave authority, date stamped September 2015. The PCN they sent in their Witness statement was a photocopy and completely blurred and illegible. Mr Booth's arguments were that; 1. Poor signage - there were "staff only" parking signs on the building wall next to where he parked - he questioned the claimant's right to sue someone parked against these bays 2. He questioned their authority to act on behalf of the landlord 3. He questioned whether the signage had planning consent. The Judge followed this through with Excel's representative: "Did they have a contract which said these bays were exempt or not exempt from Excel issuing tickets on the vehicles parked? As Excel had not bothered to supply a copy of the actual contract, the solicitor could not confirm either way. Regarding. planning consent, Mr Booth had an email from the town planning officer stating that in his opinion the signage would require planning consent, and that there was no planning application on file. The judge said if Mr Booth had only brought this point up he may have found differently. The judge clearly had doubts about the signs where any reasonable person would think the same and that the "staff only" signs would not lead them to think there was a requirement to buy a ticket. He took a recess for 10 mins then made his judgment. Claim refused - the parking signs cause confusion , and there was prof there was a contract which allowed the charges claimed. He went on to state that he was staggered that serial claims companies like Excel do not take a photo of the signs at the time of erection. Why do they wait until litigation to take photos. There was no evidence that the signs were there at all on the date.    
    • Not anymore now that the right have manipulated voters into voting for a conservative dictatorship.   All of what you've said is just another worrying aspect of what the future holds 
    • Just like all the rubbish spouted over the past 4 years, would, would, would.  What you really mean is COULD.    
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Bailiff Advice

Goods on HP - a Judge says they can be sold

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As mentioned above, the correct procedure should be to make an initial 'informal' claim by letter to the enforcement company outlining the reason why the debtor considers that their vehicle should be 'exempt' and provide evidence. This evidence could be a copy of the finance agreement or supporting documentation outlining the reason why the vehicle is considered 'necessary' to the debtors self employments etc.

 

Yesterday I heard from two debtors who had wrongly been advised to issue injunctions and in both cases, the court were extremely annoyed at the way in which the cases had been dealt with.

 

Case number one

 

The debtor used her car to drive to work. The car was worth approx £4,500 and she had 5 unpaid parking tickets. Her car was clamped, notices given and as she could not pay her car was taken. She paid £395 in total for an injunction and in court the judge was very harsh indeed and advised her that she had made the wrong application and that the correct procedure was under CPR 85.8. and he read her the opening sentence from CPR 85.8 which states:

"A debtor making a claim to exempt goods
must
, as soon as practicable and in any event within 7 days of the removal of the goods, give notice in writing of the claim to exempt goods"

The Judge advised her that as she failed to give the local authority an opportunity to address her claim using CPR 85 that she would not be able to reclaim her courts costs. He ordered that the case be transferred to her local court under CPR 85. The judge also stated that she should reconsider her position very carefully as a vehicle that is used for work cannot normally be considered exempt as otherwise everyone in paid or self employment would claim exemption. Her car will now remain at the sale location awaiting a further court date and directions.

 

Case number two.

 

Once again this debtor issued an injunction. He has a small self employed building company. He has two vehicles and a car that he and his wife drive. One of the vehicles was clamped and eventually removed. He paid for an injunction. In court on Monday the judge questioned him as to why he had not used CPR 85 as expensive court time should not be taken up with such matters and that injunctions should be reserved for very important emergency applications. He allowed the injunction (to stop his vehicle being sold) and listed the case to be heard at the next available open date.

 

He too advised the debtor that he should consider his position very carefully given that he has two vehicles that he uses in his self employment and furthermore, that the vehicle that has been taken is valued at approx £3,600 and that under the new regs vehicles may only be considered 'exempt' if the aggregate amount is under £1,350. The Judge agreed to the injunction (to stop his van being sold) but ordered that the vehicle remain with the bailiff company and if he loses his case when it eventually goes to a full hearing he will also be liable for daily storage fees of £25 per day.

 

Sadly, yet another debtor was encouraged by internet sources to foolishly issue an injunction and not only lost in a London court this afternoon but worse still, his case will have very serious repercussions indeed for all debtors who consider that a vehicle subject to finance is supposedly 'exempt' from seizure.

 

The new regulations have only been in place for one year and it simply beggars belief that debtors are being led into court proceedings with new and untested regulations. In the first instance, it was unknown why the person advising the debtor to issue an injunction would have suggested such a risky course of action given that the debtor had already filed an Out of Time witness statement and accordingly, all enforcement was already on hold !!!

 

The debtor's vehicle (a sports car) was supposedly 'used' to transport a disabled person (not the debtor). This of course does NOT make the vehicle exempt (exemption only applies if the vehicle was 'displaying a valid Blue Badge' (which it was not).

 

The debtor claimed in his injunction that the vehicle should be 'exempt' as it was subject to finance and accordingly, was not considered by him to be 'goods of the debtor'. The judge disagreed and instead, referred the debtor to Regulation 3.(2) (a) (General Interpretations) of Schedule 12 which provides that in Schedule 12 of TCEA 2007, any references to goods of the debtor or another person are references to goods in which the debtor or that person has an interest.

 

The implications of this judgment for all other debtors (and companies) is truly awful and this is evidenced by the various emails and calls that I have been receiving about this case since early evening. The bailiff industry are overjoyed with this result.

 

The debtor was ordered to pay the enforcement agencies costs of over £3,200. This was in addition to the court fees for the injunction of £395 and the fees paid to the individual who drafted his legal case (approx £1,000).

 

Given the seriousness of this judgment I will start a new thread on the subject over the weekend.

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If I am not mistaken BA then

 

"The judge disagreed and instead, referred the debtor to Regulation 3.(2) (a) (General Interpretations) of Schedule 12 which provides that in Schedule 12 any references to goods of the debtor or another person are references to goods in which the debtor or that person has an interest."

 

Vehicles on HP might by application of this if confirmed in the Higher Courts, become available for seizure and sale as although not the absolute property of the debtor, the debtor "has an interest" in the vehicle as per the judge's reasoning in the case you quoted BA. I wonder what the Finance Companies will make of this one if they can potentially lose out. This is going to be interesting.


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Sadly, yet another debtor was encouraged by internet sources to foolishly issue an injunction and not only lost in a London court this afternoon but worse still, his case will have very serious repercussions indeed for all debtors who consider that a vehicle subject to finance is supposedly 'exempt' from seizure.

 

The new regulations have only been in place for one year and it simply beggars belief that debtors are being led into court proceedings with new and untested regulations. In the first instance, it was unknown why the person advising the debtor to issue an injunction would have suggested such a risky course of action given that the debtor had already filed an Out of Time witness statement and accordingly, all enforcement was already on hold !!!

 

The debtor's vehicle (a sports car) was supposedly 'used' to transport a disabled person (not the debtor). This of course does NOT make the vehicle exempt (exemption only applies if the vehicle was 'displaying a valid Blue Badge' (which it was not).

 

The debtor claimed in his injunction that the vehicle should be 'exempt' as it was subject to finance and accordingly, was not considered by him to be 'goods of the debtor'. The judge disagreed and instead, referred the debtor to Regulation 3.(2) (a) (General Interpretations) of Schedule 12 which provides that in Schedule 12 of TCEA 2007, any references to goods of the debtor or another person are references to goods in which the debtor or that person has an interest.

 

The implications of this judgment for all other debtors (and companies) is truly awful and this is evidenced by the various emails and phone calls that I have received about this case since early evening. The bailiff industry are overjoyed with this result.

 

The debtor was ordered to pay the enforcement agencies costs of over £3,200. This was in addition to the court fees for the injunction of £395 and the fees paid to the individual who drafted his legal case (approx £1,000).

 

Given the seriousness of this judgment I will start a new thread on the subject over the weekend.

 

This is crazy and must be challenged.

 

The hirer does not have an interest in a vehicle on HP nor does he have title, any more than any other goods that may be on hire,.

The HP act 1965 and the subsequent CCA 1974 is very clear that title to the vehicle does not pass until either the last payment or the optional purchase fee(conditional sale).

Untill this payment is made the goods are 100% the property of the lender


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The debtor claimed in his injunction that the vehicle should be 'exempt' as it was subject to finance and accordingly, was not considered by him to be 'goods of the debtor'. The judge disagreed....

That would depend on the type of finance. A car on hire purchase cannot be put into the class of the 'debtor having an interest in it'. The car is solely owned by a finance company and hired to debtor and must be treated in the same manner as any other hire goods.

If goods are going to be classed as the debtor having an interest, then nothing is exempt and the only way to keep them will be by way of an injunction.

 

 

Yet another judge making judgement above his station and who obviously does not have a clue about the law. He should be sacked immediately.

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You have to wonder if it was not a case of a judge being "miffed" at the debtor for coming into court and using the incorrect procedures. (it does happen).

 

On a HP agreement the debtor/ hirer can return the goods and terminate the agreement at any time before the last payment, since only goods of the debtor are bound, the answer would be presumably for the debtor simply to return the car to the lender, and then sort out the remaining contractual obligations for the finance.


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I've created a new thread as to not take the other off track. Please remember this is only to do with the rights & wrongs of whether goods on HP can be seized & sold.


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He has no right to be 'miffed', personal feeling don't enter into it at all. By what he is saying, does that mean the bailiff can clamp a bus where a bus driver has a debt, would it include company cars.

I have never ever heard anything so stupid come from a court.

 

 

Are you classed as having an interest in your kids moped because you maintain it, utter crap.

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He has no right to be 'miffed', personal feeling don't enter into it at all. By what he is saying, does that mean the bailiff can clamp a bus where a bus driver has a debt, would it include company cars.

I have never ever heard anything so stupid come from a court.

 

 

Are you classed as having an interest in your kids moped because you maintain it, utter crap.

 

We know that he has no right but sometimes they are nevertheless.

 

This goes against the thinking of all the authorizes on bailiff law, i know for that John Kruse for instance believes that HP vehicles are exempt.

 

The fact is that particularly in the early stages f a HP agreement the hirer is in negative equity, so even if he were to return the car he would owe money to the lender, the idea of taking control of goods was to seize assets, or so I always thought.


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I know they do, because a lot of them believe themselves to be a class above the rest of us.

 

 

I can just picture the courts being full of finance companies if they try that one on.

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I struggle to understand how the Judge made this decision. For the past hour or so I have been speaking with the litigant (Mr O R) and during the call I noticed that Schedule 2 states that an 'interest' is a 'beneficial interest'. Way outside of my limited training I'm afraid !!!

 

What is difficult to understand as well is that the finance agreement had only been in place for little more than 6 months !!!

 

The debtor is an extremely nice person and he realises that he should not have issued an injunction without first issuing a proper legal notice (Notice to Claim to Exempt Goods) under CPR 85 etc but that to one side, we are where we are and on Tuesday he will speak with the Finance Company given that any claim should really have come from them (as owners of the vehicle) and not him personally. Another error I'm afraid.

 

The litigant has given me permission to state that despite what may be written elsewhere, he has not decided to appeal the case and will not be making any decision until after speaking with the finance company on Tuesday.

 

Given the subject matter I will post back later (going out for the day) but would like to stress that any discussions should only be on the subject of whether a vehicle subject to finance can legally be taken.

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There is also the problem of section 90 of the Consumer credit act to consider, which says that goods under a hire purchase agreement, once over one third of he contractual payment have been made become"protected goods".

 

This means that they cannot be reclaimed by the lender without an order form the court. The act goes on to say that should the lender ignore this and reclaim the car in any case he will have to reimburse the lender all payment made on the contract up until that date.

 

There is case law which states that the status of protected goods also permits action for the commencement of proceedings under the tort of conversion should the goods be removed from the hirer.


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I struggle to understand how the Judge made this decision. For the past hour or so I have been speaking with the litigant (Mr O R) and during the call I noticed that Schedule 2 states that an 'interest' is a 'beneficial interest'. Way outside of my limited training I'm afraid !!!

 

What is difficult to understand as well is that the finance agreement had only been in place for little more than 6 months !!!

 

The debtor is an extremely nice person and he realises that he should not have issued an injunction without first issuing a proper legal notice (Notice to Claim to Exempt Goods) under CPR 85 etc but that to one side, we are where we are and on Tuesday he will speak with the Finance Company given that any claim should really have come from them (as owners of the vehicle) and not him personally. Another error I'm afraid.

 

The litigant has given me permission to state that despite what may be written elsewhere, he has not decided to appeal the case and will not be making any decision until after speaking with the finance company on Tuesday.

 

Given the subject matter I will post back later (going out for the day) but would like to stress that any discussions should only be on the subject of whether a vehicle subject to finance can legally be taken.

 

Good to hear the litigant is in safe hands finally.

 

The protected goods issue is one that needs to be raised with the finance company, as they cannot give authority for the vehicle to be removed without an order of the court, to do so would leave them open to an action for conversion.(section 90 consumer credit act)


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....on the subject of whether a vehicle subject to finance can legally be taken.

 

 

If someone decides it can, then that 'must' open collections up to everything. So and so is not home so we will take possessions from their neighbour.

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I am glad that someone else has picked up what I stated ages ago that "the debtor has an interest in the goods" may be liable to action. This is covered in many Acts and is complicated.

 

 

In some Acts its a breach of contract in others, like the PoCA its different and so on the CPS lists one version the Sherriff's list another the Police yet another where does it all end?

 

 

One rule for one and another well you know the rest....


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In TCG its schedule 12 Part 1 (3)©(a)/(b)

 

 

See here http://www.legislation.gov.uk/ukpga/2007/15/schedule/12

 

 

Partial quote

 

 

"General interpretation

 

 

3(1)In this Schedule

 

  • “amount outstanding” is defined in paragraph 50(3);
  • “control” (except in paragraph 5(4)(a)) means control under an enforcement power;
  • “controlled goods” means goods taken control of that—
    (a) have not been sold or abandoned,
     
    (b) if they have been removed, have not been returned to the debtor (unless subject to a controlled goods agreement), and
     
    © if they are goods of another person, have not been returned to that person;
  • “controlled goods agreement” has the meaning given by paragraph 13(4);
  • “co-owner” in relation to goods of the debtor means a person other than the debtor who has an interest in the goods, but only if the enforcement agent—
    (a) knows that the person has an interest in the particular goods, or

    (b) would know, if he made reasonable enquiries;
  • “the court”, unless otherwise stated, and subject to rules of court, means—
    (a) the High Court, in relation to an enforcement power under a writ of the High Court;
     
    (b) a county court, in relation to an enforcement power under a warrant issued by a county court;
     
    © in any other case, a magistrates' court;


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I agree that on the face of it, this should be challenged. It appears an incorrect judgment.

 

I would like to understand better the term 'beneficial interest', as I know enough to know it is not as simplistic as being being owner or part owner of something (which the debtor here was not). It covers other areas like beneficial usage and is an area of law which is way beyond what I will ever understand.

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I have come across the term in relation to land mortgages and charges, where the owner of the title creates a charge on his property and assigns it to the lender, who then has a beneficial interest in his land, although not the title.

 

In the case of a HP agreement the hirer does not have title but he does have use of the car, is that a beneficiary interest in the goods, not sure TBH.


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That is what I'm wondering - as beneficial usage comes under the umbrella of beneficial interest, does that cover this event? As stated above, I'm out of my depth and know enough to know that, so it would be daft of me to try to comment.

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What is beneficial interest?

 

Beneficial interest is an interest in the economic benefit of property. It can give you a right to live in a property, a financial share in it, or both. Beneficial interest can arise if some form of trust has been created.

This can be a very complex area of law and you'll need the help of a solicitor if it applies to you.

 

 

Referenced from https://www.citizensadvice.org.uk/wales/relationships/relationship-problems/relationship-breakdown-and-housing/if-you-live-with-your-partner-relationship-breakdown-and-housing/if-you-live-with-your-partner-and-you-own-your-home-relationship-breakdown-and-housing/relationship-breakdown-and-housing-beneficial-interest-if-you-own-your-home-jointly-with-your-partner/

 

 

Then it really gets complicated in as much as it can go to trust

 

 

See In TCG its schedule 12 Part 3(2)(a)(b)

 

 

(2)In this Schedule—

(a)references to goods of the debtor or another person are references to goods in which the debtor or that person has an interest, but

(b)references to goods of the debtor do not include references to trust property in which either the debtor or a co-owner has an interest not vested in possession.


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The above can be used for "goods" as well so as I said very complicated lol


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See In TCG its schedule 12 Part 2(11)(2) what are your thoughts on this part?

 

 

11(1)Subject to paragraphs 9 and 10 and to any other enactment under which goods are protected, an enforcement agent

(a)may take control of goods anywhere in England and Wales;

(b)may take control of any goods that are not exempt.

(2)Regulations may authorise him to take control of exempt goods in prescribed circumstances, if he provides the debtor with replacements in accordance with the regulations.


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What if either the creditor of the goods or the debtor then uses the Valuable Consideration argument?


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It seems to me that the question of if the use of the car forms a beneficial interest is irrelevant.

 

The creditor will want to recover money from the debtor, so it is the financial interest in the property which would be the relevant factor.

 

If the car went to auction and was sold all money recovered would have to go to the finance company because it is their property, none would go to the creditor. It would be a farce.

 

The only purpose of using this loophole(if there is one) would be to inconvenience the debtor, IMO.


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It will be interesting to see how any appeal or precedent setting case pans out, lets hope that it doesn't turn out to be a can of worms we wished we had not opened.


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See In TCG its schedule 12 Part 2(11)(2) what are your thoughts on this part?

 

 

11(1)Subject to paragraphs 9 and 10 and to any other enactment under which goods are protected, an enforcement agent

(a)may take control of goods anywhere in England and Wales;

(b)may take control of any goods that are not exempt.

(2)Regulations may authorise him to take control of exempt goods in prescribed circumstances, if he provides the debtor with replacements in accordance with the regulations.

 

I suppose if the exempt goods are of a value which would merit them being removed and replaced with one of a cheaper but equally functional quality.


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