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    • Amex as with any creditor must help you the FOS should go with you and make them remove all interest charged from the very 1st time of asking for help. the FCA regulations actually almost dictate it, they most certainly clearly state that if the are FCA registered they must help.   it's very telling they have no marked your credit file....almost as if they know they are wrong. it's also telling that an irresponsible lending complaint might well be in order hear too, they can just keep upping the credit limit without checking you can pay. and ofcourse covid plays its part here and they've already admitted as they allowed payments holidays until october in line with the rest of the industry and they should be continuing that. you problem is you keep using the phone, no paperwork no record of things discussed. i'd get an SAR off to them. and get the comms/account log and all the statements from day one and go nail them.
    • Hello CAG, Bit of a long post, may want to get a cuppa before starting reading... 😁   after being a lurker for many years and trying never to get into a mess with credit cards like i did 20 years ago, i've got myself into a mess with Amex... I've tried being open and honest with them, but now getting the feeling they are messing me around.    Its not a chargecard, but a Nectar Credit Card with them. TAKEN out 2016. Balance is just under £15k as of today, was almost at £17k.  Debt still owed by Amex, not been sent to NCO/Arrow etc - YET...    Background (short version): Was all fine with more than min. payment (£500 or so), being made until April 2020 when a number of things reduced my monthly salary from work (mainly, take a pay cut or be made redundant), so I soon quickly realised i needed to tighten my belt quickly. Phoned Amex, advisor said nothing they could do except Payment Holiday. Was put onto that for 3 months, told that Amex will be in touch at the end to restart payments. I asked about interest being stopped/frozen/reduced - not possible. So agreed to payment holiday to give me breathing space. 3 months came and went, no contact from Amex... No payments made, interest still racking up at around £300 a month...    Rang Amex back (July 2020), we cant do anything today because your in the middle of the statement cycle call back next week. Called back week after, no solution yet (i asked about things i seen on Amex US website = Regain program - basically freeze card, lower interest rate and pay a set amount for 12 months - more about this later) > Not available in UK yet.   Want to stay on payment holiday Mister B? I asked if there was any way interest could be stopped as this is making the balance increase and increase. No. Do you want to stay on Payment Holiday? Ok. (Bear in mind, if i came off Payment holiday. Minimum Payment was around £570 per month.  So, stayed on payment holiday... Didnt hear anything from Amex again. Called back up in September 2020. Please call back in October after 10th and we can assist.   Called back after October 10, went through loads of stuff, different options etc, was warned that Payment Holiday might not be extended much longer, but now have a program. Worked out with Amex woman that i could pay around £200 per month. But please stop interest - no we cant but we can reduce this down to 9.9APR instead of 23%... . Amex woman said she needed to submit details to 'Seniors' at Amex, please call back next week for update.   Called back week after, advised that first Amex woman was wrong and had made mistakes, shouldn't have told me what she had told me, £200 is too low, minimum would be £389 per month for 12 months or account will default. Told Amex woman 2 that couldn't afford it, went through this last time, etc etc. Amex woman 2 went off, came back, £329.74 is minimum they can possibly accept, 12 months at that amount per month and interest would be lowered, but not stopped. If you dont take out this 'Program' then account will default and will be passed to NCO or Arrow (I hate them both).  Went off, tried to get loans etc, all refused. Rang Amex back, reluctantly agreed so i can keep credit rating at 'good'.  So, been paying since Nov 2021 @ £329.74.    Letter arrived in December - due to out mess up with moving accounts around whilst on payment holiday, we are going to give you £3074 back. Logged into account, only £30.74 refunded, not £3074. Phoned Amex cos thought it was a joke/mistake - Spoke to some bloke - Oh dont worry, the rest will be applied to account automatically in 7 days. he advised was genuine but then got cut off during call. Called back, spoke to some other bloke, yes, looks genuine but please hold... Came back 10 minutes later. Oh, its a mis-print, you are not the only customer to receive one of these. Each should have been £30.74 not £3074. Me = Gutted.    Wrote a letter to Amex saying how dissatisfied i was with general customer service and felt they were incompetent, blah blah etc. Final response received, Complaint partially upheld, heres £150 credit because we were a bit silly, but thats it. IF your still not happy, go to FOS. Opened a case with FOS... Have sent them the complaint letter to them and have had a call from them about this... FOS are backlogged though and will take another 3 months for complaint to be looked at by them.   Let me make this 100% clear, fully admit to owning the debt, yep, ive spent this money (wish I knew what on, cos having got much to show from it - just general stuff and holidays)... Not trying to shirk out of it, trying my best to keep up with re-payments but im really struggling. After I got paid on 1st April, after paying all outgoings i had £9.83 left in current account so am having to go into overdraft each month which is just a vicious circle.  I would really like to NOT have to down the default route and trash my credit rating and then have to deal with the morons at NCO / Arrow etc.    Meanwhile, this is where I need the advice of the CAG experts... - Credit Limit increases... These were coming every few months and it was just being upped and upped and upped. Credit limit eventually was stopped at £15,400. Some of the increases I never even received letter for, just noticed when I logged into account. >>>> Would this be a case for irresponsible lending?   - Stopping interest - I've read something on FCA site that they recommend (not policy) that if a customer is put onto a payment holiday then they recommend freezing interest for customer so the debt doesn't continue to build. I've asked time and time again, Amex just refuse.  >>>> Any tips on how to get Amex to play ball?    - Full & Final/Short settlement I've rung Amex today, told them I might be able to pay it off. Initially they said full balance, i then pushed, they then said they would accept 80% of balance, pushed them a bit more, got it down to 70%. >>> Surprised, and then very surprised they would accept 70%, anyone else think this is a bit odd? Normally they wont budge, or they wont budge from their first offer... Could their be something wrong on account (missing CCA etc?), or do they want rid of me and account as much as I do with them?   - Cant really keep going at these £329.74 repayments. Something is going to have to give somewhere. I believe they wont go any lower and they will just default it i send £100 instead of £329 and send it out to NCO/Arrow. This might not be a too bad thing though because this would stop the interest right? Anyone thoughts on this?    Anyone think of anything else I could try with them? Again, its still with Amex, not defaulted or anything yet, yep, its all my own fault, i've spent the money, dont deny that, just feel Amex have took advantage etc.   Many thanks for reading. Any advice is greatly appreciated.   Kr, Mista B.     
    • Ok so we have complained to HMRC but were still no further forward with getting the P45/P60. We need this as DVLA has said they need more proof of who he is before giving him a provisional license.  What more can l do. 
    • Hi All   just looking for some advice. I bought a used Porsche Boxster from one of Marshall motor group’s Audi dealers (can I name them?) recently and was assured that it received a major service in October 2020 in line with the manufacturers requirements. The service book confirms this. The dealer also told me on the phone that they have a 6 month rule with any mot or service being done if due within this period which assured me when making an offer over the phone on the car that it wouldn’t need anything doing for a while as I recall saying that.   However, digging through the receipts post delivery I saw that the service was in fact minor and after calling the specialist who serviced it in Oct both they (Sheepishly) and the invoice confirmed that the car did not receive new spark plugs, an air filter, brake fluid replacement or a new fan belt which have now all fallen due and hence the major service due warning light. Had I not investigated this then the car would have potentially gone another 4 years, so 8 in total without some of these items being done.   i emailed the salesman to ask what they would propose to do. The matter is complicated by my living 450 miles away in Scotland, and 200 from their nearest branch, a Mercedes dealer in the Lake District, so I suggested getting my cheapest local specialist to do the works that have fallen due, however I have received no response.   Whilst I am still within my 30 days i don’t want to reject the car, which is otherwise perfect, but the fact remains that the Audi 150 point check only asks for upcoming mot’s to be checked and not services and surely you wouldn’t buy an approved used car and expect to have the service light come on 2 weeks later and have to spend almost £500 putting it right.   i would really appreciate some advice on next steps and perhaps who to escalate this to. Meantime the car is booked in for 2 weeks time to get the work done at the cheapest reputable place I could find.   Many, many thanks in advance
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Detailed assesment of Marstons Bailiff Clamp Fees - National Implications


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In the Central London County Court - Case No 8CL51015 - Anthony Culligan (Claimant) v 1. Jason Simkin & 2. Marstons (Defendants). Before District Judge Advent 9th & 24th September 2008

 

Mr Culligan challenged the bailiffs fees & charges imposed by Mr Simkin and Marstons when levying distress and seeking to remove Mr Culigans car for non-payment of a Penalty Charge Notice issued by the London Borough of Camden.

 

The Judgment goes a long way to clarify exactly what a Bailiff can charge for levying distress. Bailiffs have always sought to charge for fixing an immobilisation device by clamping a vehicle, and an attendance to remove. These charges in Anthony Culligan's case were £200 (£100 for the clamp and £100 for attendance to remove). The Bailiffs have argued that the Fee Regulations permit them to make a charge for levying distress (that is 28% on the first £200 demanded, and for removing goods, or attending to remove goods where no goods are removed, reasonable costs and charges). Bailiffs have claimed that the costs of putting on a clamp, etc. are costs to be included in attending to remove where no goods are removed, if payment is made before the vehicle concerned is removed.

 

 

 

 

DJ Avent, after considering Case Law and Statute, has found that the purpose of putting on a clamp is to "impound" the vehicle and is not part of the costs of removal. This is because:-

 

1. The Bailiff's obligation is to secure the vehicle, and the simplest and easiest way to do this is to "immobilise" it so it cannot be driven away. This is effectively the equal of impounding the goods.

 

2. The Fee Regulations provide for a distinction between the levying of distress and removal of goods. There is a gap between the two stages. The purpose of this "gap" is to allow the debtor to make payment of what is due after the first stage.

 

DJ Avent says at paragraph 50 of his Judgment:-

 

"Accordingly, in my judgment the bailiff should not and, as a matter of law cannot take any steps to remove goods until he has given the debtor a reasonable opportunity to pay what is due at the time of seizure. This being so I cannot see that Form 7 can or should include any costs of removal. Mr. Simkin included on the Form 7 he produced for Mr. Culligan the sum of £100 in respect of the immobilisation device. If, as the Defendants now argue, that was part of the removal expenses, it should never have been included in Form 7".

 

The District Judge went on to find that the application of the clamp falls within the act of levying distress and does not form part of the removal process, whatever the Bailiff's Contract with Camden says.

 

The Bailiff also charged Anthony Culligan £100 for the " reasonable costs " of removing the vehicle (although the vehicle was never actually removed) in that a tow truck was called and actually arrived at Anthony Culligan's home. Because the Bailiff produced no evidence as to how the charge had been arrived at he was unable to show that it was reasonable.

 

The District Judge in his conclusion says:

 

"I am also conscious that my findings in this case ... may have wider consequences and may cause problems for bailiffs because they will not be able to charge for immobilising a vehicle as a separate charge but must include it within the cost of levying distress. To do otherwise would, in my judgment, be unlawful... I would also add that if the Defendant or either of them in the light of this judgment now continued to apply such charges in the manner in which they have done up to now and, specifically, charge fees of £100 for applying an immobilisation device then that would amount to conduct which may well then found a legitimate complaint because in my judgment it would be unlawful....".

 

What this means in effect is that Bailiffs who continue to make unlawful charges may be guilty of misconduct and have their Certificates removed.

 

You should know however that Marstons obtained permission to appeal from the District Judge. His reasons for granting the permission were :

 

"The bailiff was following the practice in force for 15 years. No one has challenged the right to charge for wheelclamping before.

My decision that they cannot do so (at least to the extent that they have charged until now) not only affects the London Borough of Camden but also every Borough with de-criminalised parking.

 

Accordingly, it has significant local and possible National implications and that is a compelling reason why an appeal should be heard"

 

Finally, Camden now as a matter of urgency, need to revise their Contract with Bailiffs such as Marston, to take account of the District Judge's Judgment generally, and in particular to remove the authority to charge a fee for an immobilisation device over and above that provided for in the Statutory Fee Regulations.

 

London Motorists Action Group

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Guest Happy Contrails

Excellent work Anthony and Recycler! Interesting the defendants are bailiffs and the case wasn't brought against the issuing aurthority.

 

Could this mean… ?

 

1. Drakes may have to pay it all back + costs

 

2. Bailiffs cannot charge a fee for immobiising/remobilising a car while recovering an unpaid parking ticket.

 

3. Bailiffs cannot charge a towing fee when no vehicle has been towed - even if the tow truck turns up at the debtors address

 

4. Any issuing council and/or bailiff trading in recovery of unpaid parking tickets is now open to claims from anyone who in the last 6 years has paid a bailiff a clamping fee and/or a tow fee when no vehicle has been towed.

 

Any comments?

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Good Post, about time that the legal position of clamping charges is correctly challenged.

 

Some may find this previous instruction issued by the ACEA (Association of Civil Enforcement Agents) in August 2005 interesting, Marston (formerly Drakes) did have this as they and all members of the ACEA received this by email

 

Report for ACEA 10th August 2005.

 

Private Security Industry Act – Restrictions on Unlicensed Clamping / Removal.

 

ACEA Position.

The PSIA does not cover the enforcement industry, having been enacted to control the previously unregulated activity of parking control on private land – “Wheelclampers”.

 

Furthermore, on a proper construction of the relevant regulations, the Act does not cover the actions of a bailiff enforcing a warrant, as a seizure by such a bailiff, removes the owners right to use the vehicle and accordingly s3(2) and 3A (2) are not applicable.

 

SIA Position until May 2005.

The PSIA did not cover the activity of warrant enforcement.

 

SIA / DCA Position May 2005.

The activities of bailiffs when enforcing warrants are covered by the Act and a licence would be required if any fee over and above the fine amount was charged. Such a fee was classified as a “release fee” under the Act.

 

DCA instructed that all clamping etc. was to cease, unless the Bailiff held an SIA licence.

 

SIA / DCA state its not what you are called, its what you do that is critical – if you attach a clamp etc. and charge a “release fee” then you must obtain a licence.

 

SIA Position July 2005.

Following a meeting between ACEA / ESA and the SIA, on 20th June, the SIA clarified their advice.

 

The SIA now accepted that a charge for the costs of enforcement, including the costs of removal could legitimately be imposed, providing such costs did not exceed the costs of enforcement and contain a separate and additional “release fee”.

 

This was explained as follows:

If having been paid the costs of enforcement the Bailiff then charges a further separate and additional fee for the “release” of the vehicle, then the imposition of this latter fee brings the activity within the remit of the PSIA and the operative must therefore be licensed.

 

The only way that I can make any sense of this “logic” – is to imagine a scenario where as well as seizure under a warrant, a vehicle is also subject to simultaneous parking enforcement action. Clearly ACEA would accept that if a Bailiff is engaged in any “Parking Control”, he /she would need to be licensed – for that part of his/her duties.

 

The SIA’s “Release Fee” - the charging of which will require a licence - was therefore best understood as a (separate and additional) fee, which was unrelated to the warrant, and was related to the act of parking control – which firmly accords with the position originally adopted by the enforcement industry.

 

Whilst this advice was slightly confusing, it at least meant that the industry could resume clamping etc. without the need for SIA licences.

 

DCA Stance 2005.

DCA, as anticipated, unfortunately adopted a restrictive view of the SIA advice, focussing on the issue of the (hidden) “release fee”. However, rather than acknowledging that it was a fee separate to and additional to enforcement costs, ie a penalty for illegal parking – they have issued an instruction that no fee can be made for the clamp, as this will constitute a release fee.

 

This of course leaves the illogical situation that not only can such a fee be imposed on the highway (according to DCA), but a charge can be made for the removal, but not for the (lower) cost of clamping.

 

The position for HMCS contracts is now that enforcement can continue as before, except, no fee can be made for the clamp.

 

ACEA current position

Enforcement action can be taken without the need for a licence, so long as the separate and additional fee, as described above, is not imposed.

 

Contractually, members will need to abide by client instructions – even if these, like those of DCA, are more restrictive.

 

Despite the fact that some members have correctly stated that there is some uncertainty surrounding the charging for a clamp in any event, I have asked the Lawyers to contact SIA again, to establish why, on their interpretation, if it is legitimate under the regulations for the costs of removal to be charged, then at least in principal, it should be permissible to charge the cost of clamping, as an enforcement cost, without need for a licence.

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Guest Happy Contrails

The ACEA Position carries no weight, they are a trade association not an industry regulator, the Ministry of Justice does that. Othwrise BALPA regulates how pilots fly airplanes irrespective what the CAA says.

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Thank you Recycler and Sweep.

 

As for anybody claiming a refund. Yes, this is certainly a very strong possibility but I would personally wait to see whether Marston will be issuing an appeal.

 

My feeling is that we will NOT see an appeal.

 

This is because as things stand at the moment, this is a superb Judgment which the bailiff companies will say is merely a County Court Judgment. However is they appeal, the case would have to be transfered to the Court of Appeal which, if the court agreed with Judge Avent would open the floodgates for claims against bailiff companies.

 

I little known fact, is that this case was brought before the Court in September but Judge Avent waited until December to issue the Judgment . Clearly, he took time to fully investigate the laws of Distress.

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It's a long time since December given that the last days of judgment would have around the last Friday before Christmas (19th), so may we ask those on this forum who specialise in tracking cases through the courts to perhaps advise us if there has been any appeal lodged by Marstons?

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The baillif company having been granted leave to appeal the decsion have decided not to pursue the application...

 

The Judge had specified in granting permission to appeal "The bailiff was following the practice in force for 15 years. No one has challenged the right to charge for wheelclamping before.

 

My decision that they cannot do so (at least to the extent that they have charged until now) not only affects the London Borough of Camden but also every Borough with de-criminalised parking.

 

Accordingly, it has significant local and possible National implications and that is a compelling reason why an appeal should be heard"

 

 

More interesting quotations from the original decision

 

The Submissions

 

21. The principal submission from Mr Culligan as to whether or not he is liable to pay the bailiff's charges is straightforward and simple: he says that the bailiff has wrongly characterized the immobilisation fee as a removal expense under paragraph 6 of Schedule 1 whereas, in his view, the application an immobilisation device i.e the wheel clamp, took place at the time of seizure which is all part of levying distress and should be dealt with under paragraph 2 of Schedule 1

 

22. The converse argument advanced by the Defendants is that the application of an immobilisation device is not necessary in order to complete a levy which itself is complete at seizure, and that the application of an immobilisation device is a separate and distinct act

 

23. The answer to these competing submissions is of no little consequence or importance If i find against the Defendants it will significantly affect and impact upon their ability to charge, and the extent to which they can charge, for any wheel clamping, certainly in the London Borough of Camden and, I suspect, a number of other London Boroughs who operate the same sort of agreement that the bailiff currently has with Camden. Indeed, if Mr Culligan is correct then the immobilisation fee of £100 is not chargeable insofar as it does not fall within or exceeds the 28% limitation (or the £38.14 in this particular case) in respect of levying distress imposed by Schedule 1

 

 

 

& findings

 

65. Indeed, neither that charge nor that made in respect of the proposed removal of Mr Culligan's vehicle is recoverable because there is no evidence by the receiving party of reasonableness of those charges

 

66. I realise that the non-payment of PCN's in London and other metropolitan l areas is a huge problem. I am also conscious that my findings in this case, (and I am clear in my conclusions on the arguments and authorities before me) may have wider consequences and may cause problems for bailiffs because they will not be able to charge for immobilising a vehicle as a separate charge but must include it within the cost of levying distress To do otherwise would, in my judgment, be unlawful

 

67. I would also add that if the Defendant's or either of them in the light of this judgment now continue to apply such charges in the manner in which they have done up to now and, specifically, charge fees of £100 for applying an immobilisation device then that would amount to conduct which may well then found a legitimate complaint because in my judgment it would be unlawful

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