Schedule 12 analysis

[lamma]

Much has been spoken of this. I have not (yet) done any detailed analysis but the ball needs to start rolling.

So I 'kick off' with these two (extremely) cursory observations:-

1)

 

104 (2) means that the Act bites for parking tickets viz:-

“judgment debt” means either of the following—

(a) a sum which is payable under a judgment or order enforceable by the High Court or a county court;

(b) a sum which, by virtue of an enactment, is recoverable as if it were payable under a judgment or order of the High Court or of a county court (including a sum which is so recoverable because a court so orders);

 

Specifically the "as if it were payable" part of (b). I am assuming that we are all familiar with the "as if" nature of the regulations around the TEC and CPE enforcement.

 

and (on the assumption that Schedule 12 does bite)

2)

Schedule 12 51

51 (1) A purchaser of controlled goods acquires good title, with two exceptions.

(2) The exceptions apply only if the goods are not the debtor's at the time of sale.

 

So, paradoxically the EA's do not want Schedule 12 to apply to hire purchase vehicles taken for CPE debts.

 

 

Of course there are many amendments to this portmanteau Act that I have not (yet) read. There is also much case law on this subject, how much of that that still applies is open to question of course.

 

 

Anyway, the ball is rolling

[mikeymack2002]

This is going to be a very touchy subject and will end in tears (I hope not)

[lamma]

Thread titled "analysis" for that reason.

 

Subject has potential impact enough to warrant it being bottomed out.

[brassnecked]

Yes I see the point about EA's hoping Sch 12 won't apply to HP goods

 

but as it stands

Schedule 12 51

51 (1) A purchaser of controlled goods acquires good title, with two exceptions.

(2) The exceptions apply only if the goods are not the debtor's at the time of sale.

 

should still apply if the HP company are the owner as per a normal HP agreement

[lamma]

Exactly my point. The EA selling the car would be a stupid thing to do.

They would be doing it knowingly being trained in this area.

[Peterbard]

As for as the contention that there is some error in the drafting of the TCE which has overlooked the transfer form the old procedure of distress this is of course incorrect, the legislative path is via the TCE consequential amendments schedule section 5, which ammendmentss the 1993 road traffic debt order.

 

http://www.legislation.gov.uk/uksi/2014/600/made?view=plain

 

The authority for the TEC to instruct the LA to issue a warrant of control is as stated and is similar in nature to the way authorities enforce local taxes

[lamma]

As for as the contention that there is some error in the drafting of the TCE

That contention has not been raised in this thread.

Operative word is "analysis".

[Peterbard]

I have given a guide which shows an analysis the tce, showing legislation which confirms the TCE is fully entitled to enforce traffic penalties, now I am sure I have seen this on here. Oh yes there it is.

 

and (on the assumption that Schedule 12 does bite)

2)

Schedule 12 51

51 (1) A purchaser of controlled goods acquires good title, with two exceptions.

(2) The exceptions apply only if the goods are not the debtor's at the time of sale.

 

If you had read any of the other thread you would know that the above does not apply, they are pursuing an interest in the goods, the part which i owned by the debtor or potentially theirs to be more correct.

 

or is there a specific piece you wish o analyse, if so perhaps if you put it in the title.It is little confusing, firstly i mention HP which feature in your first post then you say that the enforcment of traffic debts is not on the agenda either even though this also is in your first post.

 

I would have thought that presenting the legislation which proves the points i mention would qualify as analyses. Is there some agenda which we are not aware of yet about to come out, if so I would appreciate it if it were soon so we can see what it what you mean this thread to do.

[Peterbard]

While you are at it perhaps you could explain this baffling statement.

 

So, paradoxically the EA's do not want Schedule 12 to apply to hire purchase vehicles taken for CPE debts

 

I think you will find that EAs are going to huge pains to ensure the opposite.

[lamma]

1) I have at no time contended that the TCE does not permit enforcement of CPE Penalties. ("Traffic penalties" is the wrong term, we need accuracy of expression or it becomes rather Queen of Hearts).

As a matter of plain fact I quoted the paragraph that enables this in my first post. It is 104 (2) (b). And added a specific paragraph to explain how it engages - the reference to the "as if" in the enforcement regs. So that you and other readers may be clear, double quotes denotes a exact quotation, single quotes denote an expression of doubt. You may have simple inferred something that was not implied. That doesn't help analysis but it can happen.

 

Your belief that I contended otherwise is therefore completely misplaced.

 

2) As for you latter question: 51 (2) that you requoted.

 

the pains that EAs take (and don't take) isn't relevant to the subject.

[Peterbard]

Yes i read what you ave written and to be honest am no wiser.

 

Simply the thread is entitled schedule twelve analysis. If the sections I have analysed is not what your after then what precisely is ?

 

I assumed as i think anyone would that you wish to analyse schedule 12 of the TCE ?

 

At least the title suggest this, perhaps you should narrow it down a little, let us know what exactly it is you are after.

 

My reference to the pains the EAs are taking was a direct response too your statement where you said that the EA does not want sced 12 to apply ?

 

Perhaps you are giving us to much credit, maybe if you stated what it is you meant rather than relying on double quotes or the queen of hearts, just a suggestion.

[Bailiff Advice]

Given the title of the thread (Schedule 12 analysis) I am not all together clear on what part of Schedule 12 requires analysis but I would hazard a guess that this thread was started by Lamma in order to debate the following comments that were made a few days ago by Fair Parking:

 

Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 doesn't apply to parking and minor traffic contravention enforcement and thus it really doesn't matter who owns the vehicle or whether it is on finance.

 

Just read it a little more closely

 

 

As Schedule 12 doesn't apply there can be no enforcement for parking and minor traffic contraventions even though the new 'warrant of control' quotes Schedule 12 as its authority. It thus follows that CPR 85 as no validity either as it too is reliant on powers described in Schedule 12.

If I am correct, I would hope that Fair Parking is willing to enlighten us as to why he considers that Schedule 12 of TCE does not apply to parking.

[Peterbard]

Ah I see, sorry bit slow on the uptake. In that case my input was entirely relavant.

 

Perhaps a new thread with the appropriate title then.(information/ discussion ?} How schedule 12 applies to parking enforcement or enforcment of parking penalties or something along those lines ?

[citizenB]

If lamma would let us know if he wants to change the title, we can do that

[Peterbard]

1)

As a matter of plain fact I quoted the paragraph that enables this in my first post. It is 104 (2) (b). And added a specific paragraph to explain how it engages - the reference to the "as if" in the enforcement regs. .

 

In this case and in pursuance of accuracy as you say, I must tell yo that this is incorrect. Section 104 is what enables the TEC to give instruction to the authority to issue a warrant of control( via an enactment rather than a by a count court order).

 

The section of the TCE that enables schedule 12 is section 62, via the enactment, as is also the case in council tax arrears.

 

62Enforcement by taking control of goods

(1)Schedule 12 applies where an enactment, writ or warrant confers power to use the procedure in that Schedule (taking control of goods and selling them to recover a sum of money).

[lamma]

104 2 (b) enables TCE through the CPE enforcement S.I.s

which as quoted, use "as if"

[Peterbard]

104 2 (b) enables TCE through the CPE enforcement S.I.s

which as quoted, use "as if"

 

No I am afraid you are one step to far forward, the "as if "as you put it goes all the way back to the traffic enforcment act 1991. It enables the third party to issue an order as if it were a court order. Issuing an order is not the same as enforcing under schedule 12. It is what enables the TCE to to operate "as if" it were a court.

 

This is then used by the authority to issue a warrant which is then used to enable the use of the TCE via schedule 12 section 62 it is quite clear. I will put the legislation and guidance up for you if you like, but I am sure you are able to find it yourself

[Peterbard]

Anyway does this mean we are discussing parking enforcment ?

[Bailiff Advice]

Without the input from Fair Parking this thread could become most confusing. Hopefully he will participate in the debate.

[Peterbard]

Perhaps, since we now have our own discussion section, someone should start a thread with a clearer title ?

[lamma]

No I am afraid you are one step to far forward, the "as if "as you put it goes all the way back to the traffic enforcment act 1991. It enables the third party to issue an order as if it were a court order. Issuing an order is not the same as enforcing under schedule 12. It is what enables the TCE to to operate "as if" it were a court.

 

This is then used by the authority to issue a warrant which is then used to enable the use of the TCE via schedule 12 section 62 it is quite clear. I will put the legislation and guidance up for you if you like, but I am sure you are able to find it yourself

I explicitly referred to CPE. that means TMA. 1991 Act is irrelevant. I have no idea why you brought it up. Especially as this is about the analysis of Sch 12. We can progress if posts focus on the matter without sidetracks.

So let us proceed with the correct focus.

 

In a nutshell.

My initial two points - as yet unrebutted, are:-

1) Sch 12 does bite for CPE

(the "as if" is all important)

2) Bailiff can't sell on a seized vehicle that is subject to HP as they cannot pass good title.

(What is more they must know they cannot pass good title in that circumstance as they are qualified, trained and tested.)

 

As per BA, I too would welcome Fair Parking contributing.

[Peterbard]

Well Llama.

I brought the 1991 act up, as you say, because this is the original act which accompanied the decriminalisation of minor traffic offences. It was also the one that the 1993 debt order regulations was produced under. This also states" as if it it were" an order etc. Which is I think what you are referring to and is replicated in the TCE.

The 1991 act is now repealed of course but the debt order now draws its power from the traffic act 2004 section 83.

 

No one is disputing on here that the schedule 12 procedures can be used, the legislation i quoted earlier(TCE consequential amendments) proves the fact.

 

You seem to think that every-time i point out one of your errors, it is because i am going of topic, sorry it isn't, it is just that you make assumptions which do not apply sometimes.

 

Now you seem to be talking about HP again, which I find confusing , do you wish to discuss both these subject on this thread ?

 

If we are i am not sure what you mean about passing good title. Are you taking about title to the bailiff or good title should the goods be sold.

 

In either case, i would depend on the opnion of the court and the position the lender takes on the termination of their agreement. But this is a bit of a side track to parking dont you think ?

 

EDIT incedentallly. What is the TMA 1991, I was referencing the road traffic act 1991 ?