Form 4 Complaints.....Do Judges really understand the law and are they behaving responsibly when considering Form 4 Com

[tomtubby]

The following was initially posted by Yano Bemuse and deserves a Thread on it's own:

 

 

 

I'm not a lawyer but this is how it looks to me.

 

What is confusing the last couple of caggers to post on this thread is, I think, what is confusing many people, including the judges who call unnecessary hearings and make the people who complain pay the costs

 

A Form 4 complaint takes its name from the form created by The Distress for Rent (amendment) Rules 1999. The procedure, however, is set out in The Distress for Rent Rules 1988, which was when the whole system of Certification was last overhauled - although the ability to complaint stretches back a further 100 years, to when Certification was created in 1888.

 

This is what Rule 8 of the 1988 Rules says:

Complaints as to fitness to hold a certificate

 

8.

—(1) Any complaint as to the conduct or fitness of any bailiff who holds a certificate shall be made to the court from which the certificate issued.

 

(2) Upon receipt of any such complaint as is referred to in paragraph (1), the proper officer shall send written details of the complaint to the bailiff and require him to deliver a written reply to the court office within 14 days thereafter or within such longer time as the court may specify.

 

(3) If the bailiff fails to deliver the reply within the time specified, or if upon reading the reply the Judge is unsatisfied as to the bailiff's fitness to hold a certificate, the proper officer shall issue a notice summoning the bailiff to appear before the Judge on a specified date and show cause why his certificate should not be cancelled.

 

(4) The proper officer shall send a copy of the notice to the complainant and any other interested party.

 

5) At the hearing:—

(i) the bailiff shall attend for examination and may make representations, and

(ii) the complainant may attend and make representations.

 

(6) The procedure to be followed at the hearing, including the calling of evidence, shall be such as the Judge considers just, and he may proceed with the hearing notwithstanding that the bailiff has failed to attend.

Rule 8(1) allows for complaints and, as I said, the 1999 Rules created a form so that it was easier for people to complain. The ‘proper officer’ is a reference to any member of the court staff. The complaint is copied to the bailiff who has 14 days in which to reply. A judge them looks at both complaint and response - which is where it all begins to go wrong.

 

The judge should decide if the complaint raises a doubt about the fitness of the bailiff to hold a Certificate. The response should answer any doubt, specifically by answering the complaint. If on reading both complaint and response, the judge still has a doubt about the fitness of the bailiff to have a Certificate, the judge should arrange a hearing.

 

 

 

 

 

If the judge is satisfied that there is no doubt about the bailiff’s fitness, then the complaint can be dismissed without a hearing. For this to happen, however, there must be three things:

• A complaint that sets out that the bailiff did something illegal.
  
• A response that answers the criticism satisfactorily and so confirms the bailiff’s fitness to have a Certificate.
  
• A judge who knows enough bailiff law to decide the issue and who takes the time necessary to consider the complaint and response properly.
  

I am beginning to think that bailiffs are not setting out their response properly and/or that judges are not taking the opportunity to decide the issue on paper. For example, if the complaint is that the bailiff should not have clamped or removed a vehicle in particular circumstances, and if the response explains why it was done and the legal basis for doing it, a judge should be able to decide whether the bailiff acted legally without a hearing. Or if a complain alleges that the bailiff overcharged, and if the response explains why the fees were necessary and reasonable, the judge can decide from these papers whether there is any real doubt about the bailiff’s fitness to have a Certificate.

 

The purpose of the hearing is to decide whether the bailiff is a ‘fit and proper person’ to have a Certificate. The primary purpose of the hearing is NOT to resolve the complaint, which is why the complainant’s attendance is optional under Rule 8(6). That said, the complaint would normally be resolved during the hearing and, if necessary, the complaianant can be compensated from the bailiff’s insurance bond.

 

The decision to arrange the hearing is for the judge, in order to fulfil his or her responsibility for ensuring that the only bailiffs to have Certificates are those fit to do so. The whole Certification procedure is regulation by judges, not litigation between parties (the complainant and bailiff).

 

I think that bailiffs ask for costs from the complainant because there is nothing in the Civil Procedure Rules to say they cannot. I think, however, that some lawyers at Ministry of Justice should look to see if there is any legal basis for judges making complainants pay costs when they did not start litigation and attended the hearing voluntarily to assist the judge decide if the bailiff should keep his or her Certificate.

 

I think that bailiffs should get back he cost of the hearing if they are found to be fit to have a Certificate but I do not think that the people who complained should pay them. People who complaint are in fact performing a public duty and assist judges in their responsibility to regulate the bailiffs they Certificate.

 

I think that when necessary bailiffs should take solicitors and barristers to court to represent them, because their livelihood is at stake, but the hearing was called by a judge to fulfil his or her duty to regulate the Certificated bailiffs and therefore the court should usually pay the bailiff’s costs. I think there are two exceptions.

 

The first exception is where a complainant wastes the court’s time with an entirely unfounded, vexatious complaint – something as serious as deliberately wasting police time with a fictitious crime.

 

The second exception is where the bailiff failed to give a proper response to the complaint and so maintained the doubt that he or she had acted properly and that he or she was a fit person to keep the Certificate.

.

[YANO BEMUSE]

TT, thank you.

 

If we can evidence of the problems, maybe the Lord Chief Justice will issue a Practice Direction or the Judicial Studies Board issue some sort of guidance that will clarify the situation and what the circuit judges can or should do. Even if we can't get that, at least we can help people who go to court can make a better argument.

[tomtubby]

TT, thank you.

 

If we can evidence of the problems, maybe the Lord Chief Justice will issue a Practice Direction or the Judicial Studies Board issue some sort of guidance that will clarify the situation and what the circuit judges can or should do. Even if we can't get that, at least we can help people who go to court can make a better argument.

 

On a separate thread, I have copied parts of a lengthly letter to the Ministry of Justice on this serious matter. Reminders have been sent

and I am waiting for their response . It is HOPED that this may encourage them to issue guidance to Circuit Judges...BUT I would not count on it. This is because, from rumours that I have heard, there are so many complaints that the courts are being kept very busy and MOJ know that this is a subject that is set to get far worse as the effect of the recession are felt and debtors are unable to raise money to pay a bailiff.

 

If they wished to...MOJ could make a change to a statutory instrument very simply.

[Another Jack]

MOJ know that this is a subject that is set to get far worse as the effect of the recession are felt and debtors are unable to raise money to pay a bailiff.quote]

 

Good idea. From now on I'll send in a form 4 at the same time as a stat dec.

[spamheed]

It is rediculous in any walk of life that when a complaint is made against an individual, that somehow the complainant is somehow judged and can then be held responsible for the costs of the defendant.

 

As in the many examples seen where judges ignore the obvious flaws in cases regarding unenforceable consumer agreements and unlawful activities, this shows how distant County Court Judges are from the system they are supposed to represent

[hazza]

tell me about it!