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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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