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  1. Enter the words” Notice of Removal of Implied Right of Access” into your computer search engine and you will be referred to various websites with connections to Freeman on the Land movement and other “get out of debt free” sites. If seeking help regarding bailiffs pursuing a Liability Order for unpaid council tax or a warrant of execution for an unpaid parking charge notice you will soon discover that such sites actively encourage debtors to display a “Notice of Removal of Implied Right of Access” ……(many times shortened to NORIRA) in the mistaken belief that in so doing, this will legally prevent a bailiff from entering the property boundary and will stop all enforcement of the debt. For those unfamiliar with such notices it is purported on such websites that if the bailiff ignores the Notice of Implied Right of Access that the occupier of the property may legally instigate a claim of trespass against the bailiff company. It is very well established that debtors can in any event refuse to allow a bailiff to have “peaceful entry” into their property and the Court of Appeal stated this very clearly in the case of Khazanchi v Faircharm Investments [1998] A recent instance of a debtor who used this Notice of Removal of Implied Right of Access procedure occurred in the summer of 2012. The claim related to an outstanding council tax debt which Rossendales had been instructed to collect by the local authority concerned. The case is an interesting one concerning these Notices of Implied Right of Access which are a defective idea and cannot have the effect claimed for. Background In July, the debtor wrote a letter to Rossendales headed “Notice of Removal of Implied Right of Access.” It was sent by recorded delivery. The letter purported to be a legal notice removing the bailiff’s right of access to the debtor’s property and warned that any attempt to enter the address by a bailiff of the company would be deemed as trespass. The letter went on to say that a criminal complaint would be filed against any party violating the notice and that a penalty of £750 would be charged. Rossendale's responded to the letter by advising the debtor that as a liability order had been obtained at the magistrates court and instruction had been received from the local authority to execute distress, that the bailiff was able to legally attend the property in order to enforce the debt. Subsequently,a visit was made to the debtor’s property by the bailiff. No contact was made with the debtor at this particular visit although the relevant bailiff attendance documents were left at the property by the bailiff. The next step taken by the debtor was for a claim to be lodged to the county court for an alleged trespass by Rossendales Ltd on his property. The case was heard at Norwich County Court in January 2013 via*the Small Claims Track before District Judge Pugh. Particulars of claim: These were as follows: • The claimant (debtor) had served Rossendales Ltd (defendant) with a Notice of Removal of Implied Right of Access by recorded delivery in respect of the claimant’s property. The notice contained contractual terms and conditions including a penalty of £750 to be paid by Rossendales in the event of trespass. • By the bailiff subsequently attending the claimant’s property it was averred that an act of trespass was committed and the contractual term to pay the trespass fee stated in the Notice of Removal of Implied Right of Access had been accepted by the defendant. • The bailiff had no legal right to attend the claimant’s property as he did not possess a copy of the liability order. • Reference was made to the case Davis v Lisle KBD 1936 in which the Court of Appeal held that a permission given to enter private property may be revoked, making the visitor a trespasser. At the hearing: Rossendales as the defendant, rebuffed the claims made stating that it had authorisation from the local authority to execute distress (a copy of which was made available at the hearing), but that Regulation 45(1) Council Tax (Administration and Enforcement) Regulations 1992 (S.I.1992/613) provides that: "Where a liability order has been made, the Billing Authority which applied for the order may levy the appropriate amount by distress and sale of goods of the debtor against whom the order was made" Furthermore, Regulation 45(7) says that: "A distress shall not be deemed unlawful on account of any defect or want of form in the liability order, and no person making a distress shall be deemed a trespasser on that account".; and that: "no person making a distress shall be deemed a trespasser from the beginning on account of any subsequent irregularity in making the distress, but a person sustaining special damage by reason of the subsequent irregularity may recover full satisfaction for the special damage (and no more) by proceedings in trespass or otherwise". Judge Pugh questioned the legality of the claimant’s case. He said that while he had no reason to query the use of the Notice of Removal of Implied Right of Access, he felt that its relevance in this particular matter was left wanting, as withdrawing consent to the right of access to the property did not override the legal right of the bailiff. He agreed with Rossendales that the bailiffs had been granted powers by statute contained within the Council Tax (Administration and Enforcement) Regulations 1992 to levy distress and that as per Regulation 45(7) they could not be considered a trespasser. The Judge went on to say that as a liability order had already been granted by the magistrates court, he had no reason to “look behind” the validity of the application and did not intend to question this further, accepting that any appeal relating to the making of the order should have been made to the magistrates court after the original liability order hearing. Furthermore, the Judge said that despite what the claimant had written in the notice regarding contractual terms and conditions, it was not a contract as there was no consideration from either party involved. The claimant could not simply rely on Rossendales accepting the terms of the notice purely because they carried on with the lawful act of levying distress. The Judge felt that the claimant was confusing the law of contract with the tort of trespass – which was a different element of law altogether. It was stated by Judge Pugh that it is a common misconception that trespassers can be automatically prosecuted when in fact they cannot. Instead, an aggrieved individual would have to demonstrate that there had been a loss as a result of damagescaused by the defendant’s alleged trespass Despite remonstrations from the claimant, the Judge dismissed any reference to the case Davis v Lisle* (1936) mentioned in the claimants application, saying that it did not bear any direct relevance to the matter before him between the claimant and Rossendales. The question was put to the claimant; where was the loss in this particular instance? The claimant could not provide any evidence to support his claim. Conclusion: The subject of “penalty clauses” is one that is currently causing a great deal of debate in particular; with private parking companies who frequently attempt to impose a penalty charge of up to £100 ( and in some cases even more) for overstaying the stated parking time in supermarket car parks such as Lidl, Morrison, Aldi etc. POPLA (Parking on Private Land Appeals) and the county courts are frequently rejecting such charges on the basis that they are not a “genuine pre-estimate” of the likely damages experienced. As the Rossendales bailiff had merely visited the property and left a notice confirming his attendance, any trespass would have been negligible and damages nominal. In his final summary, the Judge made it clear to the claimant that he had been ill-advised in making his claim to the county court to try and prevent the bailiff from carrying out what he was perfectly legally entitled to do. From the claimants’s response it was clear that he had been influenced by information on the internet when preparing his case. Not surprisingly, the court claim failed. Judge Pugh dismissed the penalty of £750 and ordered the claimant to pay Rossendale’s legal costs.
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