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Towing and fees, Split from hijacked thread
Asif Nazir
post Fri, 8 Jun 2018 - 14:47
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QUOTE (cp8759 @ Fri, 8 Jun 2018 - 12:34) *
For once I have to completely disagree with Mad Mick V, Kking parked in a restricted zone outside of a marked bay so 01 is the correct contravention code, as the situation is analogous to parking in a CPZ on a yellow line.

Put it another way, the permit is irrelevant because there is no permit that would allow Kking to park where he did.

Personally I would concede the contravention but argue that the tow was disproportionate.



Where is the advantage in conceding anything if a release fee has been paid?

I would start by asking them what law they think allows them to charge a release fee.
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PASTMYBEST
post Sat, 9 Jun 2018 - 19:32
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https://www.londontribunals.gov.uk/sites/de...and_Chelsea.doc


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southpaw82
post Sat, 9 Jun 2018 - 19:34
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QUOTE (Wretched Rectum @ Sat, 9 Jun 2018 - 19:47) *
If it was complete nonsense and had no chance, I'm sure the moderators would say so.

I have neither the time nor the inclination to research the matter. That it’s never succeeded at adjudication is an issue though.


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DancingDad
post Sat, 9 Jun 2018 - 20:03
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QUOTE (southpaw82 @ Sat, 9 Jun 2018 - 20:34) *
QUOTE (Wretched Rectum @ Sat, 9 Jun 2018 - 19:47) *
If it was complete nonsense and had no chance, I'm sure the moderators would say so.

I have neither the time nor the inclination to research the matter. That it’s never succeeded at adjudication is an issue though.



I suppose I am classed as a denier. Though I do not deny the theory or that there are arguments with legs.
The (limited) research I have done convince me that there is merit.

But I am a pragmatist and will not recommend a course of action that will likely lose and worse, get up an adjudicator's nose, almost guaranteeing a loss even if there are grounds that could win.
If those that want to prove the theory want to put their money on the line and follow it through as far as necessary (or their pockets allow) I wish them well and hope they succeed.
Success, as always in parking, will be limited, loopholes are closed, paperwork and systems corrected.
And we will still be guiding people with the more common issues and problems.
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Wretched Rectum
post Sat, 9 Jun 2018 - 20:23
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QUOTE (southpaw82 @ Sat, 9 Jun 2018 - 20:34) *
QUOTE (Wretched Rectum @ Sat, 9 Jun 2018 - 19:47) *
If it was complete nonsense and had no chance, I'm sure the moderators would say so.

I have neither the time nor the inclination to research the matter. That it’s never succeeded at adjudication is an issue though.


From what I gather from others the human rights aspects have never been in front of any adjudicator. It is the HR side of things that mainly attract me and seem to attract an encouraging degree of agreement amongst posters interested in this subject.

From the adjudication decisions available, I don't see that this has been answered

QUOTE
when is it appropriate to charge the "owner" pursuant to s.101A RTRA 1984 and when is it appropriate to charge the "person responsible" pursuant to s.102(2A) RTRA 1984?


The answer to this is relevant to the application of section 3 HR Act 1998.

I see that bogsy also asked questions about Police removals from civil enforcement areas. viewable here.

No one seems to strongly argue against him.

Does anyone know if there has there been other threads or off forum discussions/decisions on this?

@DancingDad

QUOTE
If those that want to prove the theory want to put their money on the line and follow it through as far as necessary (or their pockets allow) I wish them well and hope they succeed.


I just stumbled on bogsy's, Asif's, Chitlord, EDW, 101, etc line of thinking and it seems credible. The flame pit is the right place for it. I'm not suggesting any poster uses any of it. I just like the discussion on it for now. It's not my fight but there may come a day when it is. I'm lucky, my inheritance, investments and pensions mean I can comfortably afford a judicial review should I find it necessary. I've retired to Dartmouth and I rarely see a CEO or Police. I appreciate many are not so lucky and so I will not encourage others.

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Asif Nazir
post Sat, 9 Jun 2018 - 20:57
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All London Trib Adjs. now follow Ian Thomson v Camden because it is a Key Case. They are not independent as they claim to be.

TPT or Scotland is the only hope.



https://www.londontribunals.gov.uk/sites/de...B%20Camden.docx


17) While the statutory provisions are far from straightforward, I cannot adopt Mr. Thomson's analysis. Simply stated, section 101 of the Act does not require the abandonment to be evident at the time of contravention or removal. It requires the abandonment to be evident at the time of disposal. An enforcement authority has power to remove a vehicle that is parked unlawfully. Once the vehicle is removed, it may be returned to the person who appears to the enforcement authority to be the owner, on payment of the release fee. Alternatively, if it appears to be abandoned after it has been removed, the enforcement authority may sell it. Should the owner "come to light" after the sale, he or she may be eligible for a refund of part of the proceeds of sale. Denial of right to make representation against the PCN


So, London Tribunals picked a decision for a Key Case when the Ajd. admitted being confused.

London Tribunals is a joke. They do what London Councils expects of them.


Ask yourself why no council operating under the TMA ever sues for removal or storage charges?

(2A)If the place from which the vehicle is removed is in an area that is a civil enforcement area for parking contraventions, the enforcement authority is entitled to recover from any person responsible such charges in respect of the removal, storage and disposal of the vehicle as they may require in accordance with Schedule 9 of the Traffic Management Act 2004.
(3)Any sum recoverable by virtue of this section shall, in England or Wales, be recoverable as a simple contract debt in any court of competent jurisdiction or, in the case of a sum not exceeding £20, summarily as a civil debt.


If s100/101A is for abandoned and UNabandoned vehicles then why is s102 there?

Ask an Adj. at LT this and you will get tumbleweed reply. They will tell you to apply for JR.
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DancingDad
post Sat, 9 Jun 2018 - 21:33
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http://forums.pepipoo.com/lofiversion/index.php/t84519.html

This is the one Scottish case I have been thinking on, no final result though I suspect it was not positive.
Another one mentioned within the thread, not searched for that one.
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Wretched Rectum
post Sat, 9 Jun 2018 - 21:48
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Asif you posted this from another decision

QUOTE
While I accept the ingenuity of Mr. Sugarwhite's argument, and acknowledge that the statutory provisions are complex and sometimes apparently contradictory, I do not accept his analysis of them. If he is correct, and an enforcement authority is required to rely on section 102(2A) of the 1984 Act to remove a vehicle that does not appear abandoned from a civil enforcement area, they would have no authority to retain the vehicle; the motorist would have a right of appeal against the Regulation 9 PCN under the provisions of Part 2 of the Appeals and Representations Regulations; and any further sum payable would have to be collected through the civil courts. That would be a truly cumbersome process, and would substantially negate Regulations 11 and 12 of those Regulations.


He accepts that with the use of Section 102(2A) there is no authority to retain a car until payment and any challenge would fall under the TMA 2004 (this being Part 2 of the appeal regs) and that if removal and storage charges are not willingly paid, the local authority must chase them through the court as a debt.

He then says the use of section 102(2A) would be cumbersome and negate regs 11 and 12 and uses this as reason to dismiss the appeal.

What nonsense.

The use of s.102(2A) is no more cumbersome that the procedure for a non towing unpaid penalty charge. If not paid a local authority must pursue the removal debt through the county court. Nothing cumbersome about it. It is the same process as an unpaid PCN.

Regulation 11 and 12 would not be negated because they remain relevant for situations where the removed car does have the appearance of being abandoned but is recovered either prior to disposal or a claim made after disposal. Invoking section 101A RTRA 1984.

What is negated with that adjudicator's outlook is primary legislation. This being section 102 RTRA 1984. Why would the TMA 2004 insert section 102(2A) into the RTRA 1984 and schedule 9 TMA refer to it, if it has no purpose relevant to CPE?

He clearly makes a mistake with this

QUOTE
If he is correct, and an enforcement authority is required to rely on section 102(2A) of the 1984 Act to remove a vehicle that does not appear abandoned from a civil enforcement area,


It was not argued that section 102(2A) was relied on to remove. For section 102 does not concern the actual removal process. Section 99 RTRA 1984 and the removal and disposal of vehicles regulations 1986 concern the removal process. Section 102(2A) simply concerns what can be charged for following removal and who is liable for payment.

This post has been edited by Wretched Rectum: Sat, 9 Jun 2018 - 22:13
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southpaw82
post Sat, 9 Jun 2018 - 22:21
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QUOTE (Wretched Rectum @ Sat, 9 Jun 2018 - 22:48) *
The use of s.102(2A) is no more cumbersome that the procedure for a non towing unpaid penalty charge. If not paid a local authority must pursue the removal debt through the county court. Nothing cumbersome about it. It is the same process as an unpaid PCN.

It’s not though, is it? With an unpaid PCN the enforcement authority issues a charge certificate that can then be enforced as if it was a county court debt. Where something is merely declared to be recoverable as a debt then the enforcement authority would have to issue a claim form in the county court and litigate the claim before any recovery could commence.


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cp8759
post Sat, 9 Jun 2018 - 22:35
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QUOTE (Asif Nazir @ Sat, 9 Jun 2018 - 21:57) *
All London Trib Adjs. now follow Ian Thomson v Camden because it is a Key Case. They are not independent as they claim to be.

TPT or Scotland is the only hope.

Given the decision in Gareth Robinson v The City of Edinburgh Council, I think the Scottish adjudicators are out of the question.

QUOTE (southpaw82 @ Sat, 9 Jun 2018 - 23:21) *
QUOTE (Wretched Rectum @ Sat, 9 Jun 2018 - 22:48) *
The use of s.102(2A) is no more cumbersome that the procedure for a non towing unpaid penalty charge. If not paid a local authority must pursue the removal debt through the county court. Nothing cumbersome about it. It is the same process as an unpaid PCN.

It’s not though, is it? With an unpaid PCN the enforcement authority issues a charge certificate that can then be enforced as if it was a county court debt. Where something is merely declared to be recoverable as a debt then the enforcement authority would have to issue a claim form in the county court and litigate the claim before any recovery could commence.

Quite.


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Wretched Rectum
post Sat, 9 Jun 2018 - 22:42
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QUOTE (southpaw82 @ Sat, 9 Jun 2018 - 23:21) *
QUOTE (Wretched Rectum @ Sat, 9 Jun 2018 - 22:48) *
The use of s.102(2A) is no more cumbersome that the procedure for a non towing unpaid penalty charge. If not paid a local authority must pursue the removal debt through the county court. Nothing cumbersome about it. It is the same process as an unpaid PCN.

It’s not though, is it? With an unpaid PCN the enforcement authority issues a charge certificate that can then be enforced as if it was a county court debt. Where something is merely declared to be recoverable as a debt then the enforcement authority would have to issue a claim form in the county court and litigate the claim before any recovery could commence.


QUOTE (cp8759 @ Sat, 9 Jun 2018 - 23:35) *
Quite.


No. A charge certificate cannot be enforced as a county court debt. Court permission is not required to serve a charge certificate. An unpaid charge certificate though can be registered as a debt with the county court and permission sought to serve an order for recovery. This is when the debt becomes a county court debt.

I see where you are coming from but a county court fast track for PCN debt does not justify dismissing the application of section 102(3) RTRA 1984 for removal charge debt just because it is not as fast track as PCN debt. There is still nothing cumbersome about it. Even if it were, if that is what the law demands an adjudicator cannot rule against it.

QUOTE (cp8759 @ Sat, 9 Jun 2018 - 23:35) *
Given the decision in Gareth Robinson v The City of Edinburgh Council, I think the Scottish adjudicators are out of the question.


Possibly, but one adjudicator's decision is not binding on another or so we are often told. Can you post the decision?

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cp8759
post Sat, 9 Jun 2018 - 23:21
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QUOTE (Wretched Rectum @ Sat, 9 Jun 2018 - 23:42) *
QUOTE (southpaw82 @ Sat, 9 Jun 2018 - 23:21) *
QUOTE (Wretched Rectum @ Sat, 9 Jun 2018 - 22:48) *
The use of s.102(2A) is no more cumbersome that the procedure for a non towing unpaid penalty charge. If not paid a local authority must pursue the removal debt through the county court. Nothing cumbersome about it. It is the same process as an unpaid PCN.

It’s not though, is it? With an unpaid PCN the enforcement authority issues a charge certificate that can then be enforced as if it was a county court debt. Where something is merely declared to be recoverable as a debt then the enforcement authority would have to issue a claim form in the county court and litigate the claim before any recovery could commence.


No. A charge certificate cannot be enforced as a county court debt. Court permission is not required to serve a charge certificate. An unpaid charge certificate can be registered as a debt with the county court and permission sought to serve an order for recovery. This is when the debt becomes a county court debt.

We all know that the Traffic Enforcement Centre treats the registration of Charge Certificates as nothing more than a rubber stamping exercise, and there is no way for the debtor to even object until after the Order for Recover has been served. This can hardly be compared to a Part 7 Claim where the council would need to plead a case, pay significantly higher court fees, and face the risks and costs of litigation with no prospect of recovering the full costs as CPR Part 27 would almost always apply. Putting it another way, have you ever heard of the TEC refusing to register a CC and issue an OfR?

QUOTE (Wretched Rectum @ Sat, 9 Jun 2018 - 23:42) *
I see where you are coming from but a county court fast track for PCN debt does not justify dismissing the application of section 102(3) RTRA 1984 for removal charge debt just because it is not as fast track as PCN debt. There is nothing cumbersome about it. Even if it were, if that is what the law demands then why would an adjudicator object to the law?

This adjudication http://forums.pepipoo.com/index.php?s=&...t&p=1032539 suggests that, while this argument *might* have some prospects of success at the Traffic Penalty Tribunal in England, this is not an advisable route in Scotland, unless one is willing to escalate the matter to the Court of Session, which is not realistic for 99% of people seeking advice on this forum.

Now don't get me wrong, if someone comes along who is willing to take it all the way, and can afford the costs of a judicial review and a possible appeal to the ECHR, I'll be the first to cheer them along the way and provide what support and advice I can (bearing in mind my limited knowledge of Scots law, I've lived in England all my life). I would definitely try and attend the case and watch from the public gallery, celebrate with them if they win or buy them a consolation drink if they lose.

But for a motorist in Scotland who realistically doesn't want to go any further than the Scottish Parking Appeals Service, we cannot advice this course of action because, as DancingDad says, the chances of success are remote and we just risk distracting the adjudicator from other arguments that have better prospects.


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southpaw82
post Sat, 9 Jun 2018 - 23:33
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QUOTE (Wretched Rectum @ Sat, 9 Jun 2018 - 23:42) *
No. A charge certificate cannot be enforced as a county court debt. Court permission is not required to serve a charge certificate. An unpaid charge certificate though can be registered as a debt with the county court and permission sought to serve an order for recovery. This is when the debt becomes a county court debt.

I see where you are coming from but a county court fast track for PCN debt does not justify dismissing the application of section 102(3) RTRA 1984 for removal charge debt just because it is not as fast track as PCN debt. There is still nothing cumbersome about it. Even if it were, if that is what the law demands an adjudicator cannot rule against it.



QUOTE (cp8759 @ Sun, 10 Jun 2018 - 00:21) *
We all know that the Traffic Enforcement Centre treats the registration of Charge Certificates as nothing more than a rubber stamping exercise, and there is no way for the debtor to even object until after the Order for Recover has been served. This can hardly be compared to a Part 7 Claim where the council would need to plead a case, pay significantly higher court fees, and face the risks and costs of litigation with no prospect of recovering the full costs as CPR Part 27 would almost always apply. Putting it another way, have you ever heard of the TEC refusing to register a CC and issue an OfR?

What he said. Furthermore:

QUOTE
Where a charge certificate has been served on any person and the increased penalty charge provided for in the certificate is not paid before the end of the period of 14 days beginning with the date on which the certificate is served, the enforcement authority may, if a county court so orders, recover the increased charge as if it were payable under a county court order.



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Wretched Rectum
post Sun, 10 Jun 2018 - 00:25
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QUOTE (cp8759 @ Sun, 10 Jun 2018 - 00:21) *
This adjudication http://forums.pepipoo.com/index.php?s=&...t&p=1032539 suggests that, while this argument *might* have some prospects of success at the Traffic Penalty Tribunal in England, this is not an advisable route in Scotland, unless one is willing to escalate the matter to the Court of Session, which is not realistic for 99% of people seeking advice on this forum.


So another adjudication decision that does not deal with the HR points raised or answer bogsy's question. I notice no member has answered it.

I've never suggested anyone attempt to succeed on what we are debating. This is simply a debate not a thread giving advice.

QUOTE (southpaw82 @ Sun, 10 Jun 2018 - 00:33) *
What he said. Furthermore:

QUOTE
Where a charge certificate has been served on any person and the increased penalty charge provided for in the certificate is not paid before the end of the period of 14 days beginning with the date on which the certificate is served, the enforcement authority may, if a county court so orders, recover the increased charge as if it were payable under a county court order.



Like I said, it is the same process as an unpaid PCN, in that a county court order is required. OK chasing removal and storage debt might be a tad more cumbersome than chasing PCN debt (because TEC cannot be used) But if that is what the law prescribes an adjudicator cannot rule against it on the basis that it is more cumbersome. That's absurd. The fact that TEC cannot be used to chase removal debt raises questions not answers.

Why do councils always charge under section 101A when the TMA 2004 says the removal and storage charges are payable under section 102?

QUOTE
1(1)This Schedule provides for the setting of the levels of—

(a)penalty charges, including any discounts or surcharges,

(b)charges made by authorities under section 102 of the Road Traffic Regulation Act 1984 (c. 27) for the removal, storage and disposal of vehicles found in areas that are civil enforcement areas for parking contraventions, and

©charges for the release of vehicles from an immobilisation device under regulations under section 79 above.

(2)References in this Schedule to “charges” are to those charges.


Bogsy noted that with removals the only formal notice served is the PCN and yet no attention is paid to it. What is the point of serving a formal notice informing a person of their rights if those rights are withheld?

He asked,
QUOTE
"how can the reduced penalty charge aspect of the PCN remain valid but no other part, like the right to 28 days to pay, the right to an informal challenge and the right to an NTO?"


It's another good question.

Don't misunderstand me. I'm not on a crusade. I just find the removal process at odds with the law I read. I don't seem to be alone.

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southpaw82
post Sun, 10 Jun 2018 - 00:54
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QUOTE (Wretched Rectum @ Sun, 10 Jun 2018 - 01:25) *
Like I said, it is the same process as an unpaid PCN, in that a county court order is required. OK chasing removal and storage debt might be a tad more cumbersome than chasing PCN debt (because TEC cannot be used) But if that is what the law prescribes an adjudicator cannot rule against it on the basis that it is more cumbersome. That's absurd. The fact that TEC cannot be used to chase removal debt raises questions not answers.

It’s not “a tad more cumbersome”, it’s very different, since the whole claim process and potentially a trial has to be gone through before the processes begin to resemble each other. That’s reality, not a matter for debate.

You say the adjudicator cannot rule against it. The adjudicator appears to have placed a different interpretation on it to you, not ruled against it. It would appear that as part of his reasoning he’s concluded that Parliament cannot have intended such a process to be correct.

Does anything say the authority must recover it as a civil (or summary) debt rather than may do so?


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Wretched Rectum
post Sun, 10 Jun 2018 - 01:34
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QUOTE (southpaw82 @ Sun, 10 Jun 2018 - 01:54) *
QUOTE (Wretched Rectum @ Sun, 10 Jun 2018 - 01:25) *
Like I said, it is the same process as an unpaid PCN, in that a county court order is required. OK chasing removal and storage debt might be a tad more cumbersome than chasing PCN debt (because TEC cannot be used) But if that is what the law prescribes an adjudicator cannot rule against it on the basis that it is more cumbersome. That's absurd. The fact that TEC cannot be used to chase removal debt raises questions not answers.

It’s not “a tad more cumbersome”, it’s very different, since the whole claim process and potentially a trial has to be gone through before the processes begin to resemble each other. That’s reality, not a matter for debate.

You say the adjudicator cannot rule against it. The adjudicator appears to have placed a different interpretation on it to you, not ruled against it. It would appear that as part of his reasoning he’s concluded that Parliament cannot have intended such a process to be correct.

Does anything say the authority must recover it as a civil (or summary) debt rather than may do so?


OK. Let's say it is much more cumbersome. So be it, if that is what the law prescribes. If the owner never turns up to pay, a local authority will have to rely on cumbersome section 102(3) to pursue the unpaid removal and storage charges and follow the RTA 1991 or TMA 2004 to pursue any unpaid PCN's.

Shall be does not seem to be a may do so.

QUOTE
102(3)Any sum recoverable by virtue of this section shall, in England or Wales, be recoverable as a simple contract debt in any court of competent jurisdiction or, in the case of a sum not exceeding £20, summarily as a civil debt.


Parliament inserted section 102(2A) into the RTRA 1984, so the adjudicator's claim that Parliament did not intend such a cumbersome process is not convincing. It should not be forgoten that removal and storage charges are not penalties or fines for wrong doing. It can be said that Parliament recognises this and this is why they do not allow these charges to be pursued through TEC but must follow the same county court route as any other unpaid invoice.

I must repeat that I'm no authority on this. I've picked up on it mainly from bogsy's posts and a few others and then applied my own experience and knowledge from fighting traffic fines.

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PASTMYBEST
post Sun, 10 Jun 2018 - 08:52
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The law was firmly on the side of Bevis and of Herron. Both went to the higher courts and both were effectively told what the intention of parliament was, and the courts made interpretations that would satisfy those intentions.

Parliament intends that councils may recover removal fees and the penalty before recovery of the vehicle so the same thing is likely to happen

Any crusade should be against the arbitrary removals being made by some councils. If I had to guess I would say they help off set the contract cost of CE


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cp8759
post Sun, 10 Jun 2018 - 09:57
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QUOTE (southpaw82 @ Sun, 10 Jun 2018 - 01:54) *
Does anything say the authority must recover it as a civil (or summary) debt rather than may do so?

This is key, in my mind the fact that a council has a power to recover the charges through the courts does not negate their power to demand payment of the charges and the PCN before releasing the vehicle.

The reason why they would have these two sets of powers is obvious: If someone's £100 banger gets towed and the owner decides to just write it off, without section 102 the council would have no recourse. The obvious intent of Parliament in this scenario is that if someone abandons their vehicle because it's not worth the release fees, the enforcement authority is able to pursue the debt through the courts. Apart from the Article 6 argument (which realistically won't succeed unless taken to the European Court), there is nothing in the statutory framework to suggest that the powers in section 102 are prejudicial to the authority's position under section 101.


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southpaw82
post Sun, 10 Jun 2018 - 11:51
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QUOTE (Wretched Rectum @ Sun, 10 Jun 2018 - 02:34) *
Shall be does not seem to be a may do so.

That’s saying it shall be recoverable, not shall be recovered. It’s saying it is a debt that can be recovered as a civil debt, not must be. It makes it a debt capable of enforcement, nothing more. It would need more, such as "shall only" to exclude other methods of enforcement.


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Neil B
post Sun, 10 Jun 2018 - 11:53
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QUOTE (DancingDad @ Sat, 9 Jun 2018 - 21:03) *
I suppose I am classed as a denier. Though I do not deny the theory or that there are arguments with legs.
The (limited) research I have done convince me that there is merit.

But I am a pragmatist and will not recommend a course of action that will likely lose and worse, get up an adjudicator's nose, almost guaranteeing a loss even if there are grounds that could win.
If those that want to prove the theory want to put their money on the line and follow it through as far as necessary (or their pockets allow) I wish them well and hope they succeed.
Success, as always in parking, will be limited, loopholes are closed, paperwork and systems corrected.
And we will still be guiding people with the more common issues and problems.

Yep, that.


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QUOTE (DancingDad @ Fri, 11 May 2018 - 12:30) *
Neil is good at working backwards.

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bama
post Mon, 11 Jun 2018 - 11:20
Post #60


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Do they do Declarative Judgments in haggis land ?

would that be an easier/cheaper/less risky way to put Bogy's question before the bench in big boys court ?


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Which facts in any situation or problem are “essential” and what makes them “essential”? If the “essential” facts are said to depend on the principles involved, then the whole business, all too obviously, goes right around in a circle. In the light of one principle or set of principles, one bunch of facts will be the “essential” ones; in the light of another principle or set of principles, a different bunch of facts will be “essential.” In order to settle on the right facts you first have to pick your principles, although the whole point of finding the facts was to indicate which principles apply.

Note that I am not legally qualified and any and all statements made are "Reserved". Liability for application lies with the reader.
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