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    • I'm trying to work through this step-by-step as I read the story again. There was a dispute over a will in respect of your grandfather's house but the dispute was eventually abandoned and it seems that the house was apportioned to your mother and her brother who presumably were the only two children. The will was unsigned and so we could say that the house passed to the two of them under the rules of intestacy. You then decided to buy the house for £50,000 and presumably the money you paid was divided between your mother and your uncle – you are the owners of the house. This was in 1999. We talking about 30 years ago here and so in respect of most legal questions I would have thought that some limitation period applied. (However the issue of the trust has been raised – and this wouldn't be affected by limitation) However, presumably the house was bought at a proper value given the market at the time and any work that it needed doing. Presumably the house was properly conveyed. Although a lot of things have passed – including home improvements, tenancies et cetera, from the store you have told us, neither your parents nor your uncle have been involved in this at all. Now you have received a letter from your parents saying that the house is really theirs and that you have simply been holding it on trust for them and they now want it back. Is this a reasonable summary of what has happened?   Although you have written a fair bit about bills, tenancies, and that you have lived in your parents home for some of this 30 years, I'm not sure what relevance that has to the problem. I have to say that your explanation is very unclear. A bit rambling in fact. If you think that part of the story is relevant then maybe you'd like to express it all a little more clearly and say in what way you think it is relevant to the problem. You are much more familiar with the story then I am but I don't see that those factors are terribly important on the brief understanding that I have. if if any money is owed to your parents because of you having lived with them et cetera then it seems to me that that is a separate matter and has nothing to do with your ownership of the property. You say that you have received a letter from solicitors claiming first of all that there is a constructive trust or that you might be subject to a proprietary estoppel. In terms of the estoppel, that doctrine is only available in very particular circumstances and could not be used to attack you in any event. Estoppel, whether it is proprietary or promissory can only be used as a defence. So the question of estoppel in this situation is completely irrelevant, in my view, although I don't see any basis for one in any event. So what remains is the possibility of a constructive trust. It seems to me to be highly unlikely that there is such a trust and I think that the first question needs to be asked is on what basis they consider that there is a constructive trust. Secondly, of course, even if there was a constructive trust, on the basis of what you have told us, it wouldn't only be your mother who was the beneficiary, it would also be your uncle. Furthermore, if you were a constructive trustee then at the very least you would be entitled to recover all of the expenses that you had laid out over 30 years – including the cost of the property plus interest – less any financial benefit that you had accrued from renting it out and so forth. I'm not sure how good this analysis is. This is well out of my experience – but I would suggest that you consider it and see whether any of it rings true. I would also start making a very detailed account of all the money which you have spent over the years on the property and also a detailed account of all the benefits you have accrued from it. I would supply this to their solicitor that if you end up having to instruct your own lawyer then I'm sure that you may be asked for this if there is any suspicion that a constructive trust may exist. Frankly it sounds like a load of rubbish to me that we will be very interested if you will keep us up to date. So there you have it. No particular answers. Just a few unsupported and unqualified opinions    
    • Hello and welcome to CAG.   I agree with dx, hiring a lawyer is unlikely to help as most of them don't understand fare matters, so you end up paying for their learning curve.   Your idea about involving your GP is a good one, it sounds as if you need their input with how you're feeling. And if they would write a supporting letter that could help too. Hopefully your medical information will be through in time.   HB
    • In the very first claim thread it mentions contacting the claimant is encouraged by the court etc. I was thinking about contacting them and asking about a Tomlin order to put an end to all this, at least I'd be able to stop worrying and maybe get some sleep (currently 4.52am) 😴
    • Hi I'm looking for a bit of help to deal with a claim form from Hoist/ Cohen referencing an old Capital One account please. I have filled out the details below as requested and submitted an acknowledgement of service intending to defend.   In 2007 I sent a SAR and requested a copy of the original CCA from Cap One on this account.    In 2014 Lowells sent a claim form for the same account. I have a copy of a notice of allocation to the small claims track hearing and a copy of the front sheet of ack of service with intent to defend but I have no recollection of its outcome and there are no CCJs on my credit file.    Name of the Claimant Hoist Finance UK Holdings 2 Ltd   Date of issue – 5/11/2019   Date of issue 05/11/19 + 19 days = 24/11/2019 + 14 days to submit defence = 7/12/2019 (33 days in total)   Particulars of Claim This claim is for the sum of £294 arising from the Defendants breach of a regulated consumer credit agreement referenced Under no XXXXX. The defendant has failed to remedy the breach in accordance with a default notice issued pursuant to ss. 87(1) and 88 of the Consumer Credit Act 1974. The Claimant claims the sums due from the Defendant following the legal assignment of the agreement from Hoist Portfolio Holding 2 Ltd (EX CAPITAL ONE). Written notice of the assignment has been given. The Claimant claims 1. The sum of 294  2. Costs   What is the total value of the claim? £369   Have you received prior notice of a claim being issued pursuant to paragraph 3 of the PAPDC I received a letter of claim & income / exp forms.   Have you changed your address since the time at which the debt referred to in the claim was allegedly incurred? yes   Did you inform the claimant of your change of address? Not sure claim is for Credit card   When did you enter into the original agreement 2003   Do you recall how you entered into the agreement not sure   Is the debt showing on your credit reference files yes, as closed   Has the claim been issued by the original creditor. Assigned   Were you aware the account had been assigned – did you receive a Notice of Assignment?  from HPH2 to HFUKH2L, I don't have anything from Cap One.   Did you receive a Default Notice from the original creditor? Yes (2007) Have you been receiving statutory notices headed “Notice of Sums in Arrears” or " Notice of Arrears "– at least once a year ? Not sure, I’ve had letters from Robinson Way.   Why did you cease payments? illness and inability to deal with my debts, I had no money no job and my mental health was in a terrible state.   date of your last payment? 07/2014 paid to Robinson Way   Was there a dispute with the original creditor that remains unresolved? No (PPI and bank charges refunded)   Did you communicate any financial problems to the original creditor and make any attempt to enter into a debt management plan? Yes   Do I send a CPR 31.14 next asking for the agreement, notice of assignment and the Default notice?   Thanks.
    • It states the charge as: 'did enter a compulsory ticket area without having with you a valid ticket. Contrary to Byelaw 17 (1) of the Transport for London Railway Bylaws Made under paragraph 26 of Schedule 11 to the Greater London Authority Act 1999 and confirmed under section 67 of the Transport Act 1962.'   Then a brief statement of facts that the pass did not belong to me, and that I had stated it was due to financial reasons. It then contains information about making my plea and then the statement of the revenue officer.   I am of course planning on pleading guilty before the cut off point and attending court (I'm hoping to be well enough to attend anyway). I'm just concerned about the consequences and if there is any point in trying to still reason with TfL now that court application costs are at least involved.   I have debated getting a solicitor solely because of what I've read on the internet and what it says about ruined job prospects, I know it's probably scare tactics to get me to hire someone but it is the driving fear behind everything at the moment. 
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milneg

London Congestion Charge is unlawful?

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Hi,

 

I received a PCN the other day for failing to pay the London Congestion Charge in time (within 24 hours).

 

 

I decided to look into the legality of the whole scheme and have come to the conclusion

(1) that the PCN issued to me is void (of no legal effect) and

(2) that elements of the scheme are unlawful and, in fact, void.

 

 

This means that many, if not all, congestion charge fines will have to be refunded.

 

 

My logic is as follows, but I will be grateful for comments (I might have got it wrong):

 

1. With regard to the PCN itself, the Road User Charging (Enforcement and Adjudication) (London) Regulations 2001, 'Penalty charge notices', 12(3)(h) states that a PCN must state 'the effect of regulation 16'. Regulation 16 covers adjudication by an adjudicator. The PCN issued to me does not state the effect of regulation 16, as required by law, and it us therefore void. In other words, in law the document sent to me is not a PCN at all (it can't be because it doesn't fulfil the requirements for a valid PCN as stated in the regulations). If other PCNs are the same (do not explain the effect of regulation 16) then any fines paid on the basis of them were paid on the basis of an unlawful demand (being the PCN in question).

 

==================================================

 

2. With regard to the legality of the overall scheme, parliament is presumed to legislate in accordance with the principle of legality. In short, this means that, while Parliament can remove a fundamental legal right, it is presumed not to intend to do so unless it says so in a statute (Act of Parliament) in express terms (clear words) which allow no other interpretation. Of course, while Parliament can expressly remove a fundamental legal right in such a way (by express words), it is certain that no other body can do so (by means of secondary legislation for example) without the express authority of Parliament (and, even then, I doubt that the courts would allow such a delegation of power). This has been stated by courts at the highest level. For example, Lord Steyn in Secretary of State for the Home Department, Ex Parte Pierson, R. v. [1997] UKHL 37 said:

 

'For at least a century it has been "thought to be in the highest degree improbable that Parliament would depart from the general system of law without expressing its intention with irresistible clearness . . .": see the 4th ed. of Maxwell on the Interpretation of Statutes, (1905) at 121, and the 12th ed. of the same book, (1969), at 116. The idea is even older. In 1855 Sir John Romilly observed that ". . . the general words of the Act are not to be so construed as to alter the previous policy of the law, unless no sense or meaning can be applied to those words consistently with the intention of preserving the existing policy untouched . . .": Minet v. Leman (1855) 20 Beav. 269, at 278. This observation has been applied in decisions of high authority: National Assistance Board v. Wilkinson [1952] 2 All E.R. 255, at 259, per Lord Goddard, C.J.; Mixnam's Properties Ltd. v. Chertsey U.D.C. [1963] 2 All E.R. 787, at 798, per Diplock L.J. In his Introduction to the Study of the Law of the Constitution; 10th ed., London, (1968), Dicey explained the context in which Parliament legislates as follows (at 414): "By every path we come round to the same conclusion, that Parliamentary sovereignty has favoured the rule of law, and that the supremacy of the law of the land both calls forth the exertion of Parliamentary sovereignty, and leads to its being exercised in a spirit of legality."'

 

just about the most fundamental of all legal rights is a person's right not to be punished for a crime/offence that he did not commit (Can you see where I am heading with this one?). Of course, Parliament, being supreme, can pass a law which punishes a person for a crime/offence that he did not commit, BUT IT CAN ONLY DO SO BY EXPRESS WORDS IN A STATUTE WORDS WHICH ALLOW NO OTHER INTERPRETATION. Apologies, for the use of capitals.

 

PCNs are issued to the registered keeper of the vehicle on the basis that the registered keeper is liable in law to pay it (with certain exceptions) and, in most cases, the registered keeper will be the person who was driving the relevant vehicle at the relevant time. But does the law make the registered keeper liable, in accordance with the principle of legality explained above, if he was not driving the relevant vehicle at the relevant time - and, in fact, may not have given his permission for the car to be driven in the congestion charge zone?

 

To comply with the principle of legality in such a case, the relevant Act of Parliament MUST make the registered keeper liable WITH NO POSSIBILITY THAT ANY OTHER PERSON (THE ACTUAL OFFENDER) COULD BE HELD LIABLE. This is because, as quoted above, if an altenative interpretation of the words in the statute in accordance with the principle of legality is possible, then that alternative interpretation MUST be adopted. In the context of the congestion charge, therefore, it is clear that, where the registered keeper was not actually driving the relevant vehicle at the relevant time (or is otherwise repsonsible), the registered keeper can only be made liable if the words of the relevant Act of Parliament make him liable TO THE EXCLUSION OF ANYONE ELSE. In other words, the registered keeper can only be made liable where he is the only person who can be made liable (under the Act of Parliament).

 

Does the Act of Parliament actually do this (make the registered keeper liable to the exclusion of anyone else)? No, s.163(2) Transport Act 2000 states:

 

'(2) Charges imposed in respect of any motor vehicle by a charging scheme under this Part shall be paid —

 

(a) by the registered keeper of the motor vehicle, or

 

(b) in circumstances specified in regulations made by the appropriate national authority, by such person as is so specified.'

 

Now this is quite clear. s.163 allows some person other than the registered keeper to be held liable for a charge. It follows that where the registered keeper did not commit the 'offence' (and it is an offence, since it incurs a penalty), he cannot be held liable (in accordance with the principle of legality as explained above) because it is possible to hold someone else liable (the person who committed the offence) and so this must be done. In short, the registered keeper cannot he held liable for an offence he did not commit because the Act does not expressly say he must be.

 

==================================================

 

3. Further, it appears to me the requirement to pay the charge within 24 hours is also unlawful. The Greater London Authority Act 1999, Schedule 23 (Scheme to conform with Mayor’s transport strategy), Section 5 states:

 

'A charging scheme must [note use of the word 'must] be in conformity with the Mayor’s transport strategy.'

 

The Mayor’s Transport Strategy states (p. 37) that the strategy includes an objective to 'enhance the quality of life for all [note the use of the word 'all] Londoners', including 'improving journey experience' and 'improving road user satisfaction (drivers, pedestrians, cyclists)'.

 

So the question is whether the requirement to pay the charge within 24 hours complies with these objectives. Does imposing a 24-hour time limit improve the 'journey experience' and the 'road user satisfaction' of ALL Londoners, including those who incur the penalty charge because they failed to pay the congestion charge within 24 hours? If not then the requirement fails to conform with the Mayor's transport strategy and so is unlawful under Sch. 23. Furthermore, the question has to be asked whether such a short time limit is either necessary or just. If the 24-hour time limit is not necessary for the purpose of collecting the original charge (as opposed to a penalty) then the requirement is merely an exercise in extortion. Can it be part of the Mayor's transport strategy to extort money from Londoners - and how does such extortion improve the 'journey experience' and the 'road user satisfaction' of ALL Londoners? Such an exercise in extrortion must, in any event, be ultra vires; that is, the Mayor has no legal power to extort money from people - it is beyond his lawful authority.

Edited by milneg

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1. With regard to the PCN itself, the Road User Charging (Enforcement and Adjudication) (London) Regulations 2001, 'Penalty charge notices', 12(3)(h) states that a PCN must state 'the effect of regulation 16'.

Does your PCN mention making representation and adjudication, (which covers reg. 16)?

========================= =========================

 

2. Does the Act of Parliament actually do this (make the registered keeper liable to the exclusion of anyone else)? No, s.163(2) Transport Act 2000 states:

 

'(2) Charges imposed in respect of any motor vehicle by a charging scheme under this Part shall be paid —

 

(a) by the registered keeper of the motor vehicle, or

 

(b) in circumstances specified in regulations made by the appropriate national authority, by such person as is so specified.'

 

Now this is quite clear. s.163 allows some person other than the registered keeper to be held liable for a charge.

S163 only allows another person to be liable in regulations made by a national authority, if there are no such regulations, the registered keeper is liable.

========================== =========================

3. Further, it appears to me the requirement to pay the charge within 24 hours is also unlawful. The Greater London Authority Act 1999, Schedule 23 (Scheme to conform with Mayor’s transport strategy), Section 5 states:

'A charging scheme must [note use of the word 'must] be in conformity with the Mayor’s transport strategy.

Is there any mention in the Mayor’s Transport Strategy in respect of a time limit for paying the charge?

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1. There is a difference between making representations and adjudication.* (Do you think they are the same thing?) The PCN does not explain adjudication therefore it does not comply with the requirement in 12(3)(h). Simple. The issue of making representations is a red herring in this context.

*You make representations TO TFL whereas adjudication involves a third party adjudicating BETWEEN you and TFL

2. If the registered keeper did not commit the offence then liability can only be imposed on the him if it CANNOT be imposed on the person who did commit the offence. The section allows liability to be imposed on the person who did commit the offence (by regulations) and therefore it cannot be imposed on the registered keeper in such circumstances. The question is 'Does the law allow no alternative to making the registered keeper liable if he did not commit the offence?' The answer is 'No'.

3. The law does not allow any time limit that contravenes the mayor's strategy, since the scheme has to comply with the strategy. Therefore the answer to your question is that the matter is covered indirectly.

Edited by milneg

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If the registered keeper did not commit the offence then liability can only be imposed on the him if it CANNOT be imposed on the person who did commit the offence. The section allows liability to be imposed on the person who did commit the offence (by regulations) and therefore it cannot be imposed on the registered keeper in such circumstances. The question is 'Does the law allow no alternative to making the registered keeper liable if he did not commit the offence?' The answer is 'No'.

 

 

There would need to be regulations made by a national authority that any person could be liable for the charge. In the absence of any such regulations, the registered keeper is liable for the charge - even if someone else was was driving at the time.

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No, the law simply asks whether there is no alternative; it is not concerned with how that alternative is carried out (by means of regulations or otherwise). You are trying to introduce a requirement that is not there.

 

The authority I cited says that the conclusion must be unavoidable ('irresistible'); this is not the case if there is some other means by which transgressing the principle of legality can be avoided. If some other means is possible then that other possible means must be used; it effectively imposes an obligation to introduce regulations that allow the fundamental legal right not to be transgressed.

 

The authority can avoid transgressing the principle of legality, therefore it must do so.

Edited by honeybee13
Paras.

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I hope one day someone with balls (and money) would challenge these money making schemes in the high court so to set a precedent.

My main anger is against all restrictions like resident parking, parking restrictions, time limits and restricted access to public roads.

My argument is: If I have paid road tax, insured and MOTed my car, why should I be charged again to be on a public road maintained with my contributions?

I feel taxed twice.

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No, the law simply asks whether there is no alternative; it is not concerned with how that alternative is carried out (by means of regulations or otherwise).

 

 

What 'Law' are you referring to (the congestion charge is not a crime or an offence)?

It is the regulations that are relevant. The registered keeper is liable for paying the congestion charge, unless there are regulations that pass the liability to another person.

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No (again), it is how the statute and any regulations are interpreted by the courts that matter.

 

 

How the courts do this is determined by case law.

That is the 'law' that I am referring to; the case law that I cited.

 

 

I suggest that we just agree to disagree;

I am not running a law course for your benefit.

 

 

Others can make their own minds up on the basis of what I have said

- which is, essentially, that the courts will not allow a person's fundamental legal rights to be violated if this can be avoided. s.163(2)(b) is that means in this case so it must be used.

 

 

It cannot be argued

 

 

'We didn't want to not violate fundamental legal rights so we just adopted the easy expedient of not having any regulations at all.'

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urm..wonder why no other law expert has spotted this then..urm....

 

 

dx


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No (again), it is how the statute and any regulations are interpreted by the courts that matter. How the courts do this is determined by case law. That is the 'law' that I am referring to; the case law that I cited. I suggest that we just agree to disagree; I am not running a law course for your benefit. Others can make their own minds up on the basis of what I have said - which is, essentially, that the courts will not allow a person's fundamental legal rights to be violated if this can be avoided. s.163(2)(b) is that means in this case so it must be used. It cannot be argued 'We didn't want to not violate fundamental legal rights so we just adopted the easy expedient of not having any regulations at all.'

 

There is no violation of anyone's legal rights, the legislation makes it quite clear who is liable for payment of the congestion charge (it is not an offence involving courts) - the registered keeper (if they were the driver at the time or not) or, by regulations, another person.

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The law does make it clear. It allows two options; one involves violating a fundamental legal right, the other does not. On the basis of the authority I have cited, the courts will not allow the first option if the second is available. When you say that 'there is no violation of anyone's legal rights', do you accept that you are asserting (1) that a person (the registered keeper) can be held liable for an offence he did not commit and (2) that it is fundamental legal right not to be punished for an offence you did not commit? Over to you.

Edited by milneg

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The moon causes the tides. I wonder why no-one worked that out for thousands of years. It's sort of obvious.

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When you say that 'there is no violation of anyone's legal rights', do you accept that you are asserting (1) that a person (the registered keeper) can be held liable for an offence he did not commit and (2) that it is fundamental legal right not to be punished for an offence you did not commit?.

 

The non-payment of the congestion charge is not an offence, it is a liability which lies with the registered keeper, or if other regulations apply, another person.

 

 

Of course a registered keeper, or anyone else, should not be punished for an offence they did not commit.

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The non-payment of the congestion charge is not an offence, it is a liability which lies with the registered keeper, or if other regulations apply, another person.

 

 

Of course a registered keeper, or anyone else, should not be punished for an offence they did not commit.

 

So we have a penalty (which it undoubtedly is) without an offence? It gets worse.

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So we have a penalty (which it undoubtedly is) without an offence?

 

 

Yes, in a similar way to penalty charges for parking contraventions which are not offences.

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Wrong again. A penalty for not paying the congestion charge is a penalty for NOT PAYING. You are confusing an original liability to pay with a penalty for not paying a liability. This is basic stuff.

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Wrong again. A penalty for not paying the congestion charge is a penalty for NOT PAYING. You are confusing an original liability to pay with a penalty for not paying a liability. This is basic stuff.

 

So, I park on a council meter space and fail to pay.

 

How is the PCN I receive not a penalty for failing to pay?

How does this differ from failing to pay the congestion charge??

 

Or (since you are claiming there is no liability to pay the congestion charge penalty) are you also claiming that all those council PCN's (for not paying for metered parking) are also invalid?

 

It is a penalty for a contravention (and, technically, not an offence).

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That is why I said 'in a similar way'. The liability for not paying the congestion charge, and penalty charge for parking contraventions are not offences.

 

 

The liability for paying the congestion charge, and the penalty for not paying the congestion charge, both lie with the registered keeper, or if other regulations apply, another person.

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Fotl......... :whoo:


Any advice i give is my own and is based solely on personal experience. If in any doubt about a situation , please contact a certified legal representative or debt counsellor..

 

 

If my advice helps you, click the star icon at the bottom of my post and feel free to say thanks

:D

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yep


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