Today I have posted a new "Sticky" regarding the serious subject of Form 4 complaints and where courts are able to impose costs in favour of a bailiff.

If anyone has any questions please feel free to ask.

PS: I have split the "Sticky" into two separate posts. They are both lengthly but very important indeed !!

Form 4 costs warning

In the first part of the "Sticky" I outlined the problems that can be encountered when making a Form 4 complaint. As mentioned, the serious matter of costs was the subject of a leading test case and below I am providing further important information from His Honour Judge Cryan’s judgment in this matter.

Given the importance of this Judgment all leading law firms have knowledge of this particular case.

Unfortunately, without the permission of any of the complainants I naturally cannot provide the names of the parties. What I am able to disclose is that the Judge hearing the case was His Honour Judge Cryan sitting at Clerkenwell & Shoreditch County Court and his judgment is dated 25th January 2011. The bailiffs were represented by Mr Jonathan Salmon (St Philips Chambers, Lincolns Inn) and Mr Matthew Smith represented the Attorney General. The Judgment consists of 18 pages and below I am providing relevant important extracts.

BACKGROUND

In 2010 three members of the public submitted Form 4 Complaints to Clerkenwell Court in relation to two bailiffs who where certificated by that particular court. None of the complainants were represented by solicitors. HHJ Cryan made a most exceptional ruling that because of the public interest concerning costs of Form 4 complaints he wished the matter to be determined as a preliminary issue and accordingly, he invited the Attorney General to appoint counsel (Mr Matthew Smith) to help the court. He stated that each complainant would then be able to make an informed decision as to whether or not to continue with their Form 4 complaints.

THE PRELIMINARY HEARING

His Honour Judge Cryan stated that: “bailiffs have been known to take advantage of the vulnerability of those against whom they are levying and have behaved inappropriately in ways which vary from bullying to the dishonest imposition of charges or the wrongful restraint upon goods” and that: “in recent times there have been a number of disturbing allegations against bailiffs which have caused widespread concern”.

Particular note should be given to paragraph 16 of HHJ Cryan’s judgment where he states as follows:

· “Simple and or obvious cases may be resolved upon reading the Form 4 and any written response, but experience teaches that there are many cases where the complainant will allege serious misconduct and it is flatly denied. In such cases the court is left with a stark conflict on the facts which cannot be resolved on paper. The judge has no choice, but to set up a hearing. The bailiff cannot be deprived of his certificate and present means of livelihood without being able to confront his accuser, nor can a serious allegation be discounted merely on the paper denial of the bailiff”

HHJ Cryan’s statement in paragraph 17 is also important where he states:

· It will be noted that the Rules do not make provision for the award of cost against the complainant and it is that absence in the regulatory scheme which has allowed the complainants to argue that there is no power in the court to order costs against them in the event of their complainants proving unfounded. I should explain that the three complainants before me in these present complaints do not hold themselves out as “learned in the law”. Indeed, quite the contrary, if I may put it this way, they purport to be nothing other than ordinary members of the public who have been mistreated by two bailiffs certified by this court and, being aggrieved, have brought their complaints before a judge.

Of great importance is Paragraph 19 which is as follows:

· If a bailiff is to keep his certificate and his job he will need to defend himself against the complaint. The more complex the complaint, the more complex the defence will often have to be. Many bailiff employers, realising this, have turned to instructing counsel to act on behalf of their agents or employees. Some have sought to intervene. Mr Salmon is one such senior counsel who is instructed to defend the bailiffs before the court today.

· The cost of such representation can run to many thousands of pounds. Notice of a potential claim for costs has been given to the complainants. It is only fair that it should have been, but it has understandably alarmed them, not least because, I am told, they did not appreciate that the Form 4 procedure could result in an order for costs against them.

· There is no warning on the form. They stand to gain only modest recompense as a result of their complaint. Pursuing what to some extent they say they see as a public duty could cost them large sums of money which they can ill afford.

WHY THE JUDGE SOUGHT THE INTERVENTION OF THE ATTORNEY GENERAL

On the matter of the intervention of the Attorney General HHJ Cryan stated in paragraph 20 the following:

· It was in that context that I thought it appropriate to have the costs point taken as a preliminary issue, so that the complainants might, if they chose, extract themselves from further liability at the earliest stage.

Because of the importance of public confidence in the courts and therefore the public interest in the Form 4 procedure as the most effective way of “policing” the certified bailiff system, I also thought it right, pursuant to the Memorandum between the Lord Chief Justice and the Attorney General dated 19th December 2001 to invite the Attorney General to appoint an advocate to assist the court.. The court is grateful to the Attorney General for personally sanctioning his appointment.

THE OUTCOME OF THE PRELIMINARY HEARING

HHJ Cryan in his judgment stated that: “when dealing with a Form 4 complaint, what the court is engaged in can only be described as “proceedings” and he referred to the comments from Lord Simon of Glaisdale in the House of Lords in Herbert Berry Associates Ltd v Inland Revenue Commissioners (1977),

He further confirmed that “proceedings” before the county court are governed by the Senior Courts Act 1981 and the Civil Procedure Rules which empower the court to make orders for costs in favour of a bailiff against a complainant by virtue of Section 51(1) of the Act.

FORM 4 COMPLAINTS THAT HAVE NO MERIT OR ARE INAPPROPIATE OR FALSE

It would seem from the Judgment that HHJ Cryan has concerns with Form 4 complaints that should not have been made and this is clear from his comments below:

· Section 51 provides the court with an unfettered discretion to award costs subject to any rules. The provisions of the Civil Procedure Rules leave the court with a wide discretion. The function of awarding costs is not merely one of compensating the winning party, but it also allows the court, in proper cases, to mark its dissatisfaction with the conduct of proceedings, and to discourage inappropriate applications.

· In short, the awarding of cost is intended to be available as a case management tool. To that end it is an essential tool in enabling the court to control the conduct of the parties and proceedings before it.

· In the present context that may be illustrated by a Form 4 complainant that presents a superficially plausible, but highly complex case. To respond fully to it might take days of work preparing records of one sort or another and a further period of days examining the matter in court. If that complaint then is proved to be false, without the power to order costs against the complainant there would be little to discourage him or his associates repeating the exercise against another bailiff in another court, and that bailiff would be the victim of a serious abuse of process.

After considering the Judgment the complainants withdrew their Form 4 complaints.

Personally I believe that this Judgment is very disappointing indeed for anyone considering making a Form 4 complaint but it does appear to clarify the position once and for all regarding awards of costs in favour of a bailiff.

Tomtubby

Hopefully this may put to bed the arguments that have gone on here & elsewhere as to the validity of these claims. I believe the way forward is to write to the Certificating Court if you have a complaint about a Bailiff and ask the letter be put on file so it may be seen if there are either other complaints or waiting for a renewal. The Court can even decide to ask for you to submit a Form 4 or even ask the bailiff for an explanation. Doing it this way negates any costs claim.

Hopefully this may put to bed the arguments that have gone on here & elsewhere as to the validity of these claims. I believe the way forward is to write to the Certificating Court if you have a complaint about a Bailiff and ask the letter be put on file so it may be seen if there are either other complaints or waiting for a renewal. The Court can even decide to ask for you to submit a Form 4 or even ask the bailiff for an explanation. Doing it this way negates any costs claim.

Sensible advice PT, it is better to dot i's and cross t's before steaming in with a Form 4, which should be seen as an absolute last resort.

Ploddertom.....excellent advise as always.

There are a few other issues with Form 4 complaints that really do need to be taken into consideration.

Firstly, such complaints can take many months to be addressed by the courts and, if the Judge does decide to ask the bailiff to attend court, such a hearing date can be many months away.

As you will see from my post, the complainants who made Form 4 complaints to Clerkenwell & Shoreditch County Court decided to withdraw their complaints after the Preliminary hearing concerning the matter of costs. In fact, by the time of this Judgment their complaints had been in the "pipeline" for nearly TWO YEARS !!!!

Before considering making a Form 4 complaint the debtor needs to determine whether the wrongdoing of the bailiff is something that he done PERSONALLY.

In so many cases, the bailiff will be told by his employer to charge a particular fee etc. A Form 4 complaint is in relation to the actions of an individual bailiff .

It has to be remembered that in making a Form 4 complaint the complainant is effectively asking the District Judge to consider making a ruling that the bailiff is not a "fit and proper" person to hold a bailiff's certificate and if so, the bailiff will have his certificate revoked and will lose his employment immediately and will not be able to work as a bailiff for any other company.

Just for your info,10 years ago a Form 4 complaint was lodged against me which was totally without merit. The matter was in court for 2 days as the complainant had to return with some new evidence they claimed to have (which they fabricated that day I can assure you).

I was awarded £500 in costs for loss of earnings etc which surprisingly they paid into court that day.

Like any court case costs may be awarded against the issuing party of there is no substance to the claim.

Who was the Judge? And the case number for citation purposes?

This was 10 years ago and I'm afraid those details were shredded some time ago. I wouldn't be sharing those on here anyway.

Who was the Judge? And the case number for citation purposes?

As some will know, this thread and the sticky is subject to comment elsewhere. It would help, if the case numbers could be provided for the cases quoted in the sticky e.g Leicester case. Then those who are interested can obtain the details if they wish.

I think there are possible costs issues that claimants should be aware of with the form 4 complaints, but given that this risk is being disputed by some on CAG and elsewhere, then some clarity about the cases quoted would be helpful.

Uncle Bulgaria.

In fact a few moments ago I was alerted to some dreadful comments that are being made elsewhere stating that this particular Judgment from HHJ Cryan is merely a rumour. I can assure you that it is not a rumour!!

It may help to know that these comments are from a very small forum which "claims" to have sold over 1,300 Form 4 packs and that they process 60 Form 4's applications EACH WEEK. Never let the truth get in the way of a good story.

Why is this figure of 1,300 Form 4 complaints (and rising) nonsense? According to the Ministry of Justice there are only 1,680 certificated bailiffs in England & Wales. With approx 5% of these bailiffs being employees of local authorities this website would like to try to convince unsuspecting members of the public that nearly every bailiff in England & Wales is the subject of a Form 4 complaint.

The Barrister who represented the bailiffs in this case was Mr Jonathon Salmon from St Philips Chambers. The following is a link to his own web page. Under the heading of Miscellaneous Mr Salmon makes the following comment:

"Bailiff certification(including acting in the leading test case on costs where the Attorney Generalacted as amicus to the Courts"

http://www.st-philips.com/web/FILES/Member_CVs/JonathanSalmon_cv.pdf

So, all in all, even if a debtor has a genuine complaint the risk is just far too high to pursue. It's another case of the establishment protecting their foot soldiers and those prepared to do their dirty work. How many successful Form 4 complaints have their been? I assume not that many. The law of this land is perverted to the highest extremes and us plebs really don't stand a chance.

The legal profession should be absolutely ashamed of itself. Justice is only there for those with Money and those who are Corporate / Establishment criminals. Civilised country, my ar$e! Banana Republic more like.

MagnaCarta. Your comment is excellent and I have to agree with everything that you have said.

The Form 4 complaint system is a complete nightmare and it may help to know a little bit about the background:

The Form 4 procedure takes its name from the statutory form created by The Distress for Rent (Amendment) Rules 1999 but the procedure was created in The Distress for Rent Rules 1988.

It was created in response to criticisms by The Law Commission about the lack of a complaints procedure; it was strengthened eleven years later to make it easier to access. At that time, there was no question at all of complainants being penalised by judges.

In 1986, the Law Commission criticised the regulation of certificated bailiffs by judges in a Working Paper on Distress for Rent. Among many criticisms was the absence of any means to bring alleged misconduct of bailiffs to a court’s attention.

Para 2.10 ‘...there is no encouragement, nor indeed any obvious facility, to draw the certificating court's attention to any misconduct of bailiffs’.

This was addressed in The Distress for Rent Rules 1888. Rule 8 sets out the complaints procedure and Rule 9 (1) provides for payment from a bailiff’s mandatory security (usually some form of insurance bond) to cover costs where the bailiff is found to be at fault, even if he is allowed to retain his certificate.

Unfortunately, problems have been created (or exacerbated) with the implementation of new software in county courts by Her Majesty’s Court Service (HMCS).

When Form 4 complaints are entered on the computer system, thereafter they are treated like litigation and the forms prescribed by the Civil Procedure Rules mislead people. This would explain the following:

· Courts not pursuing bailiffs who don't file responses in the time permitted.

· Paperwork not put before judges but hearings arranged automatically by staff.

· Complainants receiving documents requiring them to attend court to prove their complaint.

· Bailiffs receiving documents that lead them, or their legal representatives, to think they can ask for costs.

· Complaints conducted and concluded like litigation.

Agree completely with MagnaCarta and tomtubby, what was designed to address the issue of bailiffs acting in a manner that shows them to be unfit to hold certification has by accident or design been subverted into quasi litigation that has taken it far away from it;s intended purpose. time for a review again.

Uncle Bulgaria.

 

In fact a few moments ago I was alerted to some dreadful comments that are being made elsewhere stating that this particular Judgment from HHJ Cryan is merely a rumour. I can assure you that it is not a rumour!!

Don't worry TT, I know who to believe on this subject and it is the regular contributors to this site.

It is pretty obvious that there will not be many form 4 complaints that get anywhere. The evidence required to make such a claim would have to be pretty strong, otherwise there has to be a risk of losing and paying costs.

Shame that there are no case numbers for those cited, so it then cannot be said elsewhere they don't exist.

One of the worst cases that I know of where significant costs were awarded was in Dartford County Court on 20th July 2010 before Circuit Judge Roberts. The parties to the Form 4 Application were: Eventech Ltd, Clohessy, Haggar and another v James King (Self employed bailif: Newlyn Plc).

It would appear that 4 complainants had submitted Form 4 complaints against the bailiff and the court listed all complaints to be heard on the same day (20th July 2010).

The first named claimant and the one referred to as "another" withdrew their complaints prior to the hearing. In respect of Miss Haggar she spoke with the court a few days before the hearing to enquire whether she would need to attend in person and was told by the court that there would not be a need for her to attend ( this proved to be the wrong advice).

The 2nd named claimant did attend. As is common practice, Barristers were in attendance representing the bailiff.

Circuit Judge Roberts did not find any fault with the bailiff and ruled that BOTH Miss Haggar and Clohessy must pay costs to the bailiff of £3,051 EACH.

The link below outlines the background to Miss Clohessy' ( now Ms Hutchinson's) complaint about the bailiff. This press article was BEFORE her Form 4 complaint was submitted.

http://www.thecnj.com/islington/2009/061209/inews061209_06.html

Don't worry TT, I know who to believe on this subject and it is the regular contributors to this site.

 

It is pretty obvious that there will not be many form 4 complaints that get anywhere. The evidence required to make such a claim would have to be pretty strong, otherwise there has to be a risk of losing and paying costs.

 

Shame that there are no case numbers for those cited, so it then cannot be said elsewhere they don't exist.

I have just posted details of a horrible case at Dartford County Court. I do not have the Judgment myself on that particular case and from memory it was reported in the Times about 6 months later.

What I am certain about is that the claimanant was most certainly not lying to me or the many others that she corresponded with and she spent many months bringing the appalling matter of the cost order to the attention of various MP's, the Attorney General (Dominic Grieve), journalists etc. She was so outraged that she even went so far as to attend an enforcement industry award and petitioned outside the premises with a placard!!!

I have never needed to ask her for the case number. Why would I?

I have just posted details of a horrible case at Dartford County Court. I do not have the Judgment myself on that particular case and from memory it was reported in the Times about 6 months later.

 

What I am certain about is that the claimanant was most certainly not lying to me or the many others that she corresponded with and she spent many months bringing the appalling matter of the cost order to the attention of various MP's, the Attorney General (Dominic Grieve), journalists etc. She was so outraged that she even went so far as to attend an enforcement industry award and petitioned outside the premises with a placard!!!

 

I have never needed to ask her for the case number. Why would I?

That case makes very uncomfortable reading, and shows a gross misunderstanding of the true purpose of Form 4

This is really pushing me to start up a Name & Shame Bailiff / Judge web site. I really couldn't give a toss over the consequences but then again I could pay some Ukrainian or Russian to administer the web site abroad no problem at all. Since 2010, my eyes have been opened up to just how corrupt and sick this country is.

I now believe the Queen wholeheartedly when she stated "their are dark powers operating in the corridors of power." It's time to petition the MOJ and cause havoc for a private corporation that is running our state justice system, just as the local authorities have private corporations administering what are Public Offices! (i.e. Crapita, Liberata etc etc )

What have we done? How could we all sleep walk in to what is effectively a profit making corporation called the United Kingdom, one that rapes it's own citizens so that the high and mighty can pay for their perversions.

MagnaCarta, have you ever looked into the bogus charity that is Common Purpose?

MagnaCarta, have you ever looked into the bogus charity that is Common Purpose?

Oh Boy! my blood pressure has hit the roof. Thanks Brassnecked Julia M[EDIT] Common Purpose is something I have been looking into for the last 2 years. CP has infected just about every walk of Public Services you can name. [Website take out] is a good place to start for those who know nothing of this sick, twisted and perverted organisation. It will explain alot about why our public services are in such a mess.

I didn't want to mention this bunch brassnecked as people automatically mention the tin foil hat / conspiracy theory accusations if you do. I know too much about this worrisome organisation - it messed with my wifes head too much.

Oh Boy! my blood pressure has hit the roof. Thanks Brassnecked Julia M[edit]. Common Purpose is something I have been looking into for the last 2 years. CP has infected just about every walk of Public Services you can name. [edit] is a good place to start for those who know nothing of this sick, twisted and perverted organisation. It will explain alot about why our public services are in such a mess.

 

I didn't want to mention this bunch brassnecked as people automatically mention the tin foil hat / conspiracy theory accusations if you do. I know too much about this worrisome organisation - it messed with my wifes head too much.

They are a cancer on our democracy,as they are the reason common sense is out of the window and ludicrous edicts come from government and local councils, not to mention their infestation in some police farces, not least the CP graduate who was in charge of the operation that ended up with an innocent dead Brazilian on te tube, Cressida dick, who is still in the MET I believe and able to do more harm.

Unfortunately, they have also infected our Justice system and all the ancillary services such as Children Services, Adult Social Care, Probation etc etc with it. You name it, they have been there, even the fire brigade who can't go into to 4" of water with out a risk assessment. They are rife in the Education sector teaching teachers to use NLP techniques to influence children. I think the Nazis had another name for an organisation like this.

CP teach to weed out the weak and use deception to lead. This must be one of their highest achievements. Just read Julia Middleton's book "Beyond Authority" and you might wake up to how we are being run in our everyday lives right through to how this country runs. It's scary stuff, but you / we / us are living it.

Always remember...bailiffs are unique in that they collect money that is due to a government agency. Common sense alone would tell you that if they have a robust regulatory body this would most likely impact on the ability to collect money.

The "revised" National Standards for Enforcement Agents was sufficient to demonstrate the lack of commitment for reform.

Always remember...bailiffs are unique in that they collect money that is due to a government agency. Common sense alone would tell you that if they have a robust regulatory body this would most likely impact on the ability to collect money.

 

The "revised" National Standards for Enforcement Agents was sufficient to demonstrate the lack of commitment for reform.

Exactly TT they are not going to put anything in place that may hamper their Sheriff of Nottingham style henchmen from getting the State's dues