Has your car been taken by a bailiff for somebody else’s debt?

Bailiff Advice · October 16, 2016

In the first instance, don’t delay…but whatever you do….don’t rush into issuing an injunction (more on this in my second post).

Why has my car been taken?

In most cases, the vehicle would have been taken because it had been identified by a bailiff using ANPR (Automatic Number Plate Recognition) in relation to unpaid penalty charge notices owed by the previous owner. Why this happens is because the warrant carries upon it the vehicle registration number of the vehicle involved in the parking contravention.

Will the bailiff company give me my car back?

Unfortunately, without documentary evidence being provided to support the sale, the vehicle will be unlikely to be released.

Why is this?

Bailiff companies frequently come across cases where a vehicle has ‘allegedly' been 'sold’ in order to assist the ‘real owner’ evade payment of their parking debts. In other words, it can be fairly common for 'sales’ to be ‘bogus’.

It is vehicle owners such as these, that are to blame for genuine purchasers being required to provide so much documentary evidence.

What do I need to do?

In the first instance,

ask a question on the bailiff section of the forum.

If your car has been taken, you will need to contact the enforcement company as soon as possible to make a

Part 85 Claim

. This claim must be submitted

within 7 days

. Almost all companies will ask you to provide the following five items as evidence. Most of the larger companies have their own set Questionnaires.

V5c Log Book

If the purchase was a recent one, this document can be difficult to provide as it can take up to 4 weeks for the new V5c to be processed by DVLA. If this document is not available, you should provide the tear off New Keeper supplement from the Log Book.

Proof of Purchase.

If payment for the vehicle purchase had been made by bank transfer, this is ideal. If payment had been made by cash….this can be problematic. Most enforcement companies will request evidence by way of a bank statement showing cash being withdrawn a few days before the purchase.

You will also be required to provide

a copy of the sales receipt.

How the purchase came about.

If the car was purchased via eBay, Gumtree, Auto Trader or a garage etc, then a copy of the advert and receipt will be required. If the purchase has been via a friend or relative, this can be problematical. Once again, please post a question on the forum.

Copy of vehicle insurance.

This will be one of the most important documents. It is a criminal offence to keep a vehicle on a public highway without insurance and all enforcement companies will require some evidence that the new owner has obtained insurance within a day or so of the purchase. If the vehicle is not kept on a highway, evidence of SORN registration should be provided.

Evidence that road fund licence has been purchased.

Most new vehicle owners will tax their vehicle online with DVLA and will either make a one off payment or monthly instalments. A copy of the bank statement evidencing that road fund licence was obtained around the time of the purchase will need to be provided.

Bailiff Advice · October 16, 2016

What will happen after the evidence has been provided.

The rules governing this are outlined under Part 85.4 of the Civil Procedure Rules and put simply, the following steps must be taken:

Within 3 days of the Part 85 Claim (and supporting evidence) being submitted to the enforcement company, the company must then serve a copy on the creditor (usually the local authority). It is the creditor...and not the enforcement company that decides the Claim.

The creditor, has just 7 days to consider the Part 85 Claim and they must give their decision in writing to the enforcement company within this time period of time and no later.

Within 3 days of receiving the creditors decision, the enforcement company must write to the Claimant to advise them whether the claim is accepted or rejected.

If the creditor accepts the claim, they will not be liable to the enforcement agent for any fees or expenses incurred by the enforcement agent after receipt of that notice by the enforcement agent.

If the creditor (usually the local authority) accept the Part 85 Claim, the warrant ceases to be exercisable and the enforcement company must make the vehicle available for collection. The rules do not provide for the vehicle to be delivered back to the Claimant.

If the creditor (local authority) rejects the Part 85 Claim, the claim would need to be decided by the court. However, I have assisted with these claims for many years (a similar procedure was in place for debts enforced by High Court Enforcement Agents prior to 2014) and it is almost always the case that as long as the Part 85 Claim is properly put together with the supporting documentary evidence to support the sale....the vehicle will be released.

Bailiff Advice · October 16, 2016

Last Monday, the importance of providing evidence to the enforcement company was highlighted in court. A litigant in person issued an injunction after his vehicle was seized in relation to the previous owners debts. The correct course as detailed in my above post, should have been to submit a 'Third Party Claim' under Part 85 of the Civil Procedure Rules.*

In actual fact, at the hearing last Monday, (six weeks after the vehicle had been seized) the Judge agreed that the claimant had acquired the vehicle in good faith and the evidence that he eventually provided (at the hearing) was sufficient proof. He provided copies of his bank statement showing the 'flow of funds' and the updated V5c and evidence of insurance.

Nonetheless, he was harshly criticised by the Judge for using the wrong procedure and he was ordered to pay the Counsel's costs, and a proportion of the solicitors fees.

Background to the claim.

The Claimant’s position is that he purchased the vehicle on

1st September 2016

. It should maybe be mentioned that the vehicle had been clamped 5 months earlier. The clamp appeared to have gone missing.

Following the seizure, the ‘new owner’ contacted the enforcement company to make enquiries. They emailed him on the

8th September

asking for documentary evidence to be provided (such as outlined in my initial post). He was given a deadline of 20th September to respond. Without this evidence, his claim could not be forwarded to the creditor for their consideration.

The Claimant provided very little. All that he provided was a copy of the ‘new keeper supplement’ and with regards to the vehicle insurance, he merely provided an insurance document showing him to be a named driver on somebody else’s policy.

Before the deadline date of 20th September (and most importantly, before the creditor could consider the claim), the Claimant decided to issue an injunction. This was a

foolish decision

and a costly one.

At the Hearing

At the hearing, (6 weeks after the seizure) the Judge informed the Claimant that the hearing was to consider the application for an injunction and that if the defendant wished to challenge the Claimant’s title to the goods, the case would have to be set down for a 90 minute hearing at a future date in the New Year. This would mean the car remaining in storage for a considerable period of time.

In court, the Claimant agreed that that he had not done all that he reasonably could to ensure that the matter was resolved without taking up valuable court time and putting the enforcement company and creditor to unnecessary expenditure.

It was stated that he failed totally to engage with the enforcement company. He provided no explanation as to how he became aware that the vehicle was for sale. However, in court, he did provide a copy of his bank statements showing a withdrawal of over £4,000 a few days before the purchase. He also provided the V5c from DVLA (which showed its processing date to be

before

the expiry period given by the enforcement company (of 20th September 2016).

The Judge stated that he could well understand why the company requested a copy of a bank statement stating that 'sometimes, people are disingenuous and attempt to avoid paying by giving their vehicle to someone else' and that it would be obvious that if a person could show how they paid for the vehicle, that this would go a long way to showing who the owner really was.

He stated that the V5 and the bank statement were

‘vital documents’

and that the moment they came available, they should have been presented to the enforcement company.

The Clamant was a litigant in person but the Judge was not sympathetic to this. He stated that if litigation is to be approached, then at the very least, documents should have been disclosed to the enforcement company because doing so, would have likely lead to the case not being necessary at all.

In relation to the V5 and bank statement, the Judge informed the Claimant that it was 'common sense' to provide theses documents to the enforcement company as soon as they became available. In regards to the bank statement, he stated that this document was

‘especially important’

to show whether the dates

‘matched up’.

Most importantly, he informed the Claimant that he had made

the incorrect application.

Comments from the Judgment:

'The Defendant wrote to the Claimant on Thursday 8 September 2016 with a list of things it wanted to decide whether to contest the claim. This is not a statutory list. But nevertheless it stands to reason that if all relevant information is provided, then going to court is less likely'.

'The Defendant had reasonably asked for evidence of the flow of money'.

In regards to the subject of costs:

The Claimant requested a refund of his issue fee (of £308). The Judge refused this stating that the application for an inunction was taken out

before

the date given by the enforcement company for the Claimant to provide documentary evidence (20th September).

He concluded by advising the Claimant that he had not done enough to avoid the case having to come to court and the defendant was therefore unfairly put in a position of having to pay to defend the injunction.

The Claimant was ordered to pay the Counsel fees and a contribution towards the solicitors fees. He was given 21 days to make payment. He indicated that he could not afford to make such a payment and would not be paying. On hearing this, the judge reduced the period to the standard 14 days.

An order was given for the Claimant to collect his car from the enforcement companies storage pound.

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