Form 4 Hearing. Can in house solicitor represent the bailiff???

[tomtubby]

Since the introduction of the bailiff register ( and the recession of course) there have been many more Form 4 Complaints made against bailiffs and in so many of these, the bailiff companies in house lawyer/solicitor represents the bailiff in court.

 

The Form 4 Complaint is a complaint against the individual bailiff and surely the bailiff should be represented in court by his own solicitor as otherwise there could be a serious "conflict of interest".

 

Another point, is that I know of at least 3 companies who have in house solicitors who are not "practising solicitors" and although this would mean that they can still work for the company.....I do not believe that they can be "on record" as representing the bailiff in a Form 4 Complaint.

 

Any views anyone.......

[postggj]

i dont know to be honest but i allways thought a party in litigation can nominate who he/she likes to represent them in court

 

the only exception would be the solicitor cant represent both parties at the same time

[Nintendo Pü]

Re: Form 4 Hearing. Can in house solicitor represent the bailiff???

 

Yes, but the bailiff must also be present.

 

 

Another point, is that I know of at least 3 companies who have in house solicitors who are not "practising solicitors" and although this would mean that they can still work for the company.....I do not believe that they can be "on record" as representing the bailiff in a Form 4 Complaint.

 

A solicitor without a practising certificate means he cannot address court as a solicitor, represent anyone or advise private clients, but he can work (employed) for a company in other legal capacities.

 

Very common with local authorities to employ non practising solicitors, its cheap and solicitors whose names are still on the roll but fail the exams often become such persons.

[YANO BEMUSE]

An in-house lawyer can represent the company only: it’s like a person representing themselves in court. A Form 4 complaint is against an individual bailiff personally, not the company, even if they bailiff is employed by the company and not a self-employed contractor. Strictly speaking, therefore, I don't think an in-house company lawyer can represent the indvidual bailiff.

 

In some courts, including county courts, litigants have the right to a lay representative (not to be confused with a Mackenzie Friend) and, although they shouldn’t be paid for doing it, judges usually allow people who aren’t being paid extra for representing someone (like salaried money advisers who are paid the same whether or not they represent their clients in court).

 

In my experience, courts and judges are pragmatic: they realise that the company and the individual bailiff have a common interest in defending a Form 4 complaint, even when the bailiff is a self-employed contractor and not an employee of the company. Courts therefore usually let the in-house company lawyers submit forms for the bailiffs and judges usually let them represent the bailiffs in court.

 

I expect this is often in complainants’ best interests. If bailiffs have to instruct solicitors, and perhaps barristers too, the legal costs would be higher – and therefore more expensive to complainants whose complaints are not upheld.

 

I realise this comment opens up a huge can of worms. In my opinion, complainants shouldn’t have to pay the legal costs, even if their complaint isn’t upheld. It is judges who decide whether complaints have merit and it is judges who decide whether to start the legal proceedings and arrange hearings to investigate them.

 

The judges issue certificates to the bailiffs they consider to be ‘fit and proper’ people to have them and so it is the judges who have the duty to consider whether or not to cancel certificates when they discover bailiffs who aren’t, after all, ‘fit and proper’. It should therefore be for the courts to pay the costs incurred by this procedure, not the people who bring the alleged misconduct to the courts’ attention.

 

Not only should complainants not have to pay for failed complaints but where judges expect them to attend hearings to give evidence, they should have the cost to them of assisting the judges paid for by the courts.

 

Only where complaints are found to ‘frivolous and vexatious’, or even ‘malicious’, should complainants have to pay for their mischief – just as if someone who reports what they think is a crime is penalised only if they are thought to have deliberately wasted police time.

[Nintendo Pü]

An in-house lawyer can represent the company only: it’s like a person representing themselves in court. A Form 4 complaint is against an individual bailiff personally, not the company, even if they bailiff is employed by the company and not a self-employed contractor. Strictly speaking, therefore, I don't think an in-house company lawyer can represent the indvidual bailiff.

 

 

Any lawyer qualified and authorised can represent at court.

 

In some courts, including county courts, litigants have the right to a lay representative (not to be confused with a Mackenzie Friend) and, although they shouldn’t be paid for doing it, judges usually allow people who aren’t being paid extra for representing someone (like salaried money advisers who are paid the same whether or not they represent their clients in court).

 

In my experience, courts and judges are pragmatic: they realise that the company and the individual bailiff have a common interest in defending a Form 4 complaint, even when the bailiff is a self-employed contractor and not an employee of the company. Courts therefore usually let the in-house company lawyers submit forms for the bailiffs and judges usually let them represent the bailiffs in court.

 

 

There is nothing wrong in that, but its usually a paralegal who drafts the document.

 

I expect this is often in complainants’ best interests. If bailiffs have to instruct solicitors, and perhaps barristers too, the legal costs would be higher – and therefore more expensive to complainants whose complaints are not upheld.

 

I realise this comment opens up a huge can of worms. In my opinion, complainants shouldn’t have to pay the legal costs, even if their complaint isn’t upheld.

 

 

Its been said on this forum that complainants has been ordered to pay costs, but I cannot find anything to support this. The rules dont even provide for it, and a complaint is not litigation. For this to happen, a complaint would need to be migrated to a case of litigation and processed under the Civil Procedure Rules and this may be why I am unable to trace a complaint proceeding having a costs order.

 

 

It is judges who decide whether complaints have merit and it is judges who decide whether to start the legal proceedings and arrange hearings to investigate them.

 

The judges issue certificates to the bailiffs they consider to be ‘fit and proper’ people to have them and so it is the judges who have the duty to consider whether or not to cancel certificates when they discover bailiffs who aren’t, after all, ‘fit and proper’. It should therefore be for the courts to pay the costs incurred by this procedure, not the people who bring the alleged misconduct to the courts’ attention.

 

 

The general grounds of being fit and proper consist of three tests.

 

1. clean CRB (Rehabilitation of Offenders Act 1974 is accepted)

 

2. no CCJ/bankrupt in the last three years

 

3. a bond, policy or sum of money £10,000 held in escrow.

 

Not only should complainants not have to pay for failed complaints but where judges expect them to attend hearings to give evidence, they should have the cost to them of assisting the judges paid for by the courts.

 

Only where complaints are found to ‘frivolous and vexatious’, or even ‘malicious’, should complainants have to pay for their mischief – just as if someone who reports what they think is a crime is penalised only if they are thought to have deliberately wasted police time.

[lets fight bailiffs]

I must agree.

 

A complaint about a bailiff (form 4) is just that, it is not litigation proceedings against the bailiff but just a complaint.

 

would it not be the same if you was to complain about a police officer and then receiving a bill in order for them to deal with the complaint or any other company ie gas if you was to make a complaint to ofcom and them sending you a bill.

 

The same question should also be asked with regards to the HCEOA when you make a complaint about a HCEO to the HCEOA then it is often dealt with by HCEO's.

 

LFB

[Fair-Parking]

Yes Form 4 is a complaint and not litigation and it is against an individual and not the bailiff company, but that doesn't stop bailiff companies muscleing in and trying to dominate proceedings on behalf of their colleagues. This has included the employment of of barristers and a bland and misplaced assumption that they are entitled to 'costs' to pay for representation in an action to which they are not even an official party.

 

These 'costs' could easily rise to £20,000 of more.

[Nintendo Pü]

The regulations dont provide for a court to award 'costs' in a Section 8 Form 4 complaint, and neither does a provision exist in the Civil procedure Rules in litiglation claims under £5,000.

 

I have find no evidence of any complainant being ordered to pay costs to a bailiff in a Section 8 complaint.

[Fair-Parking]

Watford County Court 26 November 2009

 

£100 to bailiff

£200 to barrister 'observing' for Council

[Nintendo Pü]

Do you have the claim number? or better still, can you scan a copy of the judgement

[Fair-Parking]

I do and no. This is a client of mine and therefore details must remain confidential.

 

If it helps a judge in the Clerkenwell County didn't bat an eyelid at £9600 in claimed costs in another case and has reserved the costs in the cause, so costs are a normal part of a Form 4 complaint and are used by bailiff companies as a tactic to brow beat the ordinary man by frightening him.

[Nintendo Pü]

I do and no. This is a client of mine and therefore details must remain confidential.

 

Are you a solicitor, or work in a Firm?, it no, then what capacity is the complainant a client?

[Fair-Parking]

He is client of Fair-Parking. We offer a protection scheme against PCNs and have since expanded into helping people get their vehicles back from bailiffs and putting delinquent councils to the sword.

 

We just received confirmation that we have got another person's van back today which had been ANPRed by a most disreputable bailiff company.

 

And yes I do attend court. Solicitors I'm afraid do not understand today's parking laws which can be summed up in London as 'pay the charge the council believes you owe or we take your car'. No less.

[Nintendo Pü]

A protection scheme against PCNs? Intersting, how does that work?

[High Court Enforcer]

Several years ago I had two complaints against me under my Bailiff Certificate, both were won by me and both times the complainant had to pay my loss of earnings.

 

One complainant paid in court and the other refused. I obtained judgment agaisnt the other and he paid within the 28 days so as the judgment could be removed.

 

(edit)

Edited January 9, 2010 by ErikaPNP
removal of personal remark

[High Court Enforcer]

(edit)

 

I will say this again, Caggers need to get independant legal advice and not just heed the spurious ramblings of an unqualified fool on here. My opinion, of course.

Edited January 9, 2010 by ErikaPNP
please see my comment within this thread

[seanamarts]

Here is my two pence for what it is worth, when I took a bailiff to court on a form 4 he used the solicitor that was acting for the company of the bailiff, not that he had a clue about what he was trying to get over and was extremely rude, but hey ho was expected. The judge on the other hand did know quite a bit and obviously ruled in my favour and was quite prepared to strip the bailiff of his certificate, you know the story how that went. hence to say the bailiff in my story is still certified but now under a different judge. she must of scared the pants of him or he was worried that she would carry out her threat and not renew his certificate.

That leads me to a question here that I would like answered.. can a bailiff change from judge to judge (different jurisdiction) albeit working for the same company in the same place, I know why he did it to hide the fact at what he had done, but is he allowed to do it.

[twonames]

Here is my two pence for what it is worth, when I took a bailiff to court on a form 4 he used the solicitor that was acting for the company of the bailiff, not that he had a clue about what he was trying to get over and was extremely rude, but hey ho was expected. The judge on the other hand did know quite a bit and obviously ruled in my favour and was quite prepared to strip the bailiff of his certificate, you know the story how that went. hence to say the bailiff in my story is still certified but now under a different judge. she must of scared the pants of him or he was worried that she would carry out her threat and not renew his certificate.

That leads me to a question here that I would like answered.. can a bailiff change from judge to judge (different jurisdiction) albeit working for the same company in the same place, I know why he did it to hide the fact at what he had done, but is he allowed to do it.

 

 

It all dependent on which circuit Judge is on, unless a circuit judge specificaly ask to be present

[seanamarts]

It all dependent on which circuit Judge is on, unless a circuit judge specificaly ask to be present

Dont want to seem blond here (and coming from essex )

a circuit judge does the rounds of courts in the immediate areas yes, or just the rounds in the same court.

[tomtubby]

Here is my two pence for what it is worth, when I took a bailiff to court on a form 4 he used the solicitor that was acting for the company of the bailiff, not that he had a clue about what he was trying to get over and was extremely rude, but hey ho was expected. The judge on the other hand did know quite a bit and obviously ruled in my favour and was quite prepared to strip the bailiff of his certificate, you know the story how that went. hence to say the bailiff in my story is still certified but now under a different judge. she must of scared the pants of him or he was worried that she would carry out her threat and not renew his certificate.

That leads me to a question here that I would like answered.. can a bailiff change from judge to judge (different jurisdiction) albeit working for the same company in the same place, I know why he did it to hide the fact at what he had done, but is he allowed to do it.

 

Good point. Under the Distress for Rent Rules the MOJ (or DCA as it was then) nominated certain Courts within the UK and Wales to have Jurisdiction to hear application for a Bailiff Certificate. From memory around 60 Courts have jurisdiction. (in the same way that only certain courts can hear applications for Bankruptcy).

 

Although there is this number of Courts, only a few Courts are actually used.

 

As an example, Equita mainly use Northampton and does Newlyn Ltd with Marston Group/JBW and Task using Clerkenwell and Shoreditch etc etc.

 

There is nothing wrong with the bailiff using a different court .....BUT...

 

A couple of months ago, a bailiff from a large company used a different Court to "renew his certificate" . The "new court" had not received the file from the previous court ( error by the court) and were therefore unaware that the previous court had cancelled his certificate following a Form 4 Complaint and accordingly granted him a "new certificate". He then continued working for the very same company where a complaint had been made against him ( that resulted in his certificate being revoked).

 

When this was discovered (my lips are sealed!!) the new Court ordered the bailiff to attend before the Judge and at the hearing his certificate was declared "void". The effect of this being that all levies upon goods and fees charged by that bailiff in the 11 months since he had obtained his "new certificate" were therefore unlawful.

 

This enables debtors to reclaim any fees that they may have paid to this particular bailiff and naturally to recover any goods that had been removed. I am unsure as to whether this would mean a claim against the bailiff, his company or the local authority. This needs to be looked into, in particular because the Judge had declared the new certificate "void" ( in other words that it had never been given).

 

The Judge was highly critical of the bailiff, but even more critical of a Director of the company who had apparently provided a reference to support the bailiff in his application for a "new certificate".

 

Crucially, the Director had apparently stated in the reference that "we have not received any complaints concerning his working practises" .........this was despite the fact that the court files revealed correspondence that had been sent to the Director concerning another Form 4 Complaint in 2007 to which the Judge ordered the complaint to "remain on the court file" and also further documents between the Director and the Court relating to the Form 4 complaint in 2008 that resulted in the bailiff having his certificate cancelled.

 

The Judge confirmed that:

"In light of these letters, there is a strong prima facie case that the statement made by Mr xxxx was not just incorrect but deliberately false and that this would appear to be a serious contempt of court".

 

Whether the Director had been in Court for the two Form 4 Complaints against his companies bailiff is not known.

Edited January 9, 2010 by tomtubby
More info

[wonkeydonkey]

Here is my two pence for what it is worth, when I took a bailiff to court on a form 4 he used the solicitor that was acting for the company of the bailiff, not that he had a clue about what he was trying to get over and was extremely rude, but hey ho was expected. The judge on the other hand did know quite a bit and obviously ruled in my favour and was quite prepared to strip the bailiff of his certificate, you know the story how that went. hence to say the bailiff in my story is still certified but now under a different judge. she must of scared the pants of him or he was worried that she would carry out her threat and not renew his certificate.

That leads me to a question here that I would like answered.. can a bailiff change from judge to judge (different jurisdiction) albeit working for the same company in the same place, I know why he did it to hide the fact at what he had done, but is he allowed to do it.

 

If a central reigister was held then surely all the bailiffs who have previously had licences refused by judge A would be available to Judge B

and if the reason for refusal falls within the rules governing a bailiff then they should automatically be struck off from ever holding such a certificate again.

WD

[ErikaPNP]

Several postings in this thread have been removed, and others edited. Everyone is aware that there is a debate between some members in regard to whom is right and whom is wrong. Debate is absolutely fine, this is an open forum where advice believed to be incorrect can (and should) be challenged.

 

The debate and the challenge can continue, but in a reasonable manner. Personal remarks and speculation about specific members cannot continue. Tomtubby has started an interesting topic. Please do not hijack her thread for the purposes of debating a specific member's intentions. Debate and challenge away but please refrain from becoming personal.

 

It would be unfair to Tomtubby if I had to close this thread because people are debating about one member rather than debating the subject matter.

[seanamarts]

hmm so it leaves me to think that my friendly bailiff has used a different court to get his certificate renewed because he may have thought that the judge who he used the last time may have not renewed it.

Sorry for the hijack TT was just a curious question

[tomtubby]

If a central reigister was held then surely all the bailiffs who have previously had licences refused by judge A would be available to Judge B

and if the reason for refusal falls within the rules governing a bailiff then they should automatically be struck off from ever holding such a certificate again.

WD

 

There is a central register held but in this particular case, a lot of the problem came down to timing and the fact that Courts are not acting quick enough to keep MOJ updated on applications for certification, or advising MOJ when an certificate is refused or cancelled.

 

It is also rumoured that there are a couple of courts who are known to be almost "bailiff friendly" and are seen as "easy courts" in which to get a certificate renewed or accepted.

[wonkeydonkey]

Thanks TT

 

In the computerised age wouldn't you think that when an application is received all the info any Judge would need to grant/refuse the licence would be available to those processing the said application before it even got before the Judge?

 

The rumours you mention..are these being investigated?

 

WD