Are these bailiff charges justifiable ?

[jaafarcake]

Hello everyone.

 

I run a small business installing shop signs and fascias. Unfortunately my van does get a fair few parking tickets issued against it over the course of a year. While I do try my best to keep on top of these there has been the odd occasion where I have forgotten.

Yesterday I received a text from a bailiff office saying to contact them immediately as goods were due to be seized. Naturally I called the bailiff and asked for the details.

 

I was told that the balance was now £571.82

I was informed that they had sent out one letter by post and personally delivered 3 letters.

 

The first contact I have had with this bailiff was the text message. I have not had any letters via post, and I have not had any letters put through my door ?

 

I realise I am liable for the outstanding PCN and enforcement charge but as I have not received any letters hand delivered or otherwise feel they are unfairly charging me.

 

Is there anyone who can comment on these charges ?

 

council / pcn debt = £185.00

First letter = £11.20 ( never received )

finance check = £20.00

Enforcement fee = £105.00

Visit Fee 1: =£57.00

Visit Fee 2: =£66.00

Visit Fee 3: =£70.00

VAT: = £57.62

Total Balance = £571.82

[JH101]

Fees they are permitted to charge are set out in the Enforcement of Road Traffic Debts (Certificated Bailiffs) Regulations 1993, as amended 2003.

 

A consolidated version of the amended fee schedule has been put up on the web by the bailiff company Equita, at:

 

http://www.equita.co.uk/LinkClick.aspx?fileticket=r0du9hZ12t0%3d&tabid=202

 

The Regulations are governed by the Distress for Rent Rules; of which Regulation 10, as duly adapted, provides that "'No person shall be entitled to charge, or recover from, the debtor any fees, charges or expenses for levying a distress, or for doing any act or thing in relation thereto, other than those authorised by the tables in Schedule 1 to these Regulations".

 

As you will see,

* there is no such thing as a "finance check" authorised in Schedule 1

* there is no such thing as an "Enforcement fee" authorised in Schedule 1

 

"Visit fees" are calculated on the total amount at that point owed, so removing the "finance check" and "enforcement fee" would also knock (a few) pounds off the visit fees.

 

Visit fees must be "reasonable" -- meaning based on costs that are both actual and necessary. The amounts they have quoted you represent the maximum cap on fees set by law. However, given their bad faith in unlawfully trying to impose fees on you not authorised by the statute, it would be entirely appropriate of you to question these.

 

Visit fees can only be charged if there genuinely has been a visit, which was genuinely made by a certificated bailiff, who really was intending to levy on your goods. The bailiff company could be asked to justify all these points: who was the certificated bailiff, when are they supposed to have visited, what supporting evidence is the company offering that this visit ever took place.

 

Even if the visit definitely has occurred, made by an identified bailiff who is indeed certificated and can prove he was there, the company still needs to be able to set out the reasonable basis on which it can come to that figure -- ie what was the bailiff's hourly rate, how long according to his timesheet did the visit take, why was all this unavoidable, etc.

 

Under the National Standards for Enforcement Agents, May 2002 (section "Information and Confidentiality", point 7), a bailiff making such a visit should always leave a letter stating that they have been, and why, setting out a breakdown of the fees incurred so far, and the fees that will next be incurred if the debt is not immediately satisfied. As you have had none of these letters, it is not unreasonable of you to wonder whether the visit ever happened at all. (Courts are all too familiar with the phenomenon of invented "phantom visits").

 

You might therefore consider paying off the amount of the debt that is not disputed -- the £185 owed to the Council -- preferably by paying the Council direct, while informing the Bailiff company that you have done this, but dispute their remaining charges, which you will not pay until they have clarified the points you have raised.

 

According to the OFT guidance on debt collection (July 2003, updated December 2006), point 2.8(k), the company should then "cease collection activity whilst investigating a reasonably queried or disputed debt", otherwise they will be formally engaging in an unfair business practice, which could result in them losing their Consumer Credit Act license (if they have one).

 

Unfortunately, bailiff companies will typically ignore this, so you should batten down the hatches, refuse access by anyone who might be a bailiff to any of your property, at any time, on any pretext; and inform the bailiff company that anything they might be able to get at on the street -- most particularly your van -- is vital to your business and so exempt from what they can take control of from you personally.

 

Alternative approach #1 is to pay up and then sue. But then you would have this stuck on your agenda for months to come.

 

Edit -- Possibilities for an OOT Stat Dec are more limited than I originally indicated.

Alternative approach #2, if either you did not ever receive a "notice to owner" about the PCN or you made representations or an appeal about the PCN, but never received a formal rejection or final response, is to make an "Out-of-time statutory declaration" with the Traffic Enforcement Centre (TEC) at Nottingham. If accepted, this would return your PCN to appeal stage, and cancel all bailiff actions.

Edited July 15, 2010 by JH101

[jaafarcake]

Many thanks JH101 your post has been a great help.

I have since been in touch with the council in question who refused to deal with me, saying it was in the hands of the bailiffs. They also refused to take my payment for the initial £185.00

I have e-mailled the bailiffs stating that I do not consider their charges to be correct. I have asked the charges to be reviewed and my file put on hold for 7 days while I contact the citizens advice bureau. ( which they will probably laugh at! )

 

I have also thought about making a direct payment to the council via their website, With the PCN number as reference. Then sending a copy of the details to both the council and the bailiffs.

Then fighting it out with the bailiffs regarding the charges, happily knowing the original fine has been paid !

 

Once again thanks for your post

[JH101]

I believe that because you have now tendered payment (even though it was refused) to your creditor for the full amount shown on the Warrant of Execution, before any seizure has been made, the bailiff's right to distrain on goods now ceases. (Bennett v Bayes, 1860).

(Correction made: I originally wrote 1870 for Bennett v Bayes. The date of the case is in fact 1860).

 

Unfortunately, that may be a point that only a court of law will recognise -- and even they might have to be quite clued up to recognise it. even though it is a standard case. (TT wrote a letter for me to Philips bailiffs making this point, which Philips utterly ignored). But it's nice to know you have now added one further argument to your armoury.

 

Indeed, according to the OFT, ""it is a basic principle that creditors cannot refuse to accept payments from a debtor"

FAQ’s — iMoneyManager

 

(On the other hand, I am aware that HMCS's standard bailiff contract says that Courts will return payments sent to them to debtors, stating that payments can only be made to bailiffs. I have no idea whether that is legal or not. Others on the forum may be able to produce more as to the precedents and legal background one way or the other on this).

 

Anyhow, it seems to me you now have a basis to write a formal letter of complaint to your council. (Make very clear that it is a formal letter of complaint, to be dealt with under the council's complaints procedure; urgent email to the council's formal complaint unit, with follow-up paper copy to the same, and a further copy to the chief executive). This is where they really have to start paying attention to you, because if they don't, the Local Government Ombudsman can rip them serious new ventilation.

 

Make clear that

1. The bailiffs, who are acting as the Council's agents and for whose actions under the law of agency in English law the Council has full joint liability, have unlawfully been trying to mislead you as to to the lawful fees that they are entitled to charge you.

 

2. That you are not prepared to pay unlawful fees.

 

3. That you have therefore tendered payment to the Council, rather than the bailiffs, of the full amount shown on the Warrant of Execution, before any seizure has been made. Give full information: Date, time, who you spoke to, etc.

 

4. That having made this tender (regardless of whether the Council accepts it or not), the law says the bailiff's right to distrain on goods now ceases (Bennett v Bayes, 1860)

 

5. That according to the Office of Fair Trading, "it is a basic principle that creditors cannot refuse to accept payments from a debtor" -- in handing over the warrant, the debt has not been sold to the bailiff: it remains the Council who is the creditor, therefore they cannot refuse payment. But nevertheless this is what they have done.

 

6. That furthermore, under the OFT guidelines, under point 2.8(k), it is an unfair practice "not to cease collection activity whilst investigating a reasonably queried or disputed debt", and it is clearly reasonable to question the bailiff's demanded fees, since they do not reflect the statutory scale. That you have made this explicitly clear to the bailiffs, but they have refused to desist.

 

And therefore, that you demand that the Council immediately instruct its bailiffs to put any further collection activity on hold while this is properly and fully investigated.

 

And meanwhile you repeat your offer to make immediate payment of the £185 that is the full amount shown on the Warrant of Execution.

 

And that you have copied the letter to the Chief Executive, because if necessary, if your complaint is not satisfactorily dealt with, you are fully prepared to take this all the way to the top, and further, to the Local Government Ombudsman if necessary.

 

=================

 

Anyway, that's an outline. Others may be able to add more legal citations, on various points.

 

You will probably need to follow up by telephone to make sure things happen.

(i) the bailiff company, to confirm they have received your email, and to ask whether they have put your account on hold yet;

and in the eventuality that they haven't, and that you therefore need to write the above letter to the Council

(ii) to then ring the Council, to make sure that they have read your email, realise its urgency, and now actively issuing the instructions to put your account on hold, otherwise you will have no alternative but to raise that delay in itself as the object of a stage 2 complaint.

 

-- whilst of course at all times remaining the perfect embodiment of chivalry and courtesy.

Edited July 19, 2010 by JH101
Corrected date of Bennett v Bayes

[externalbodyart]

hi i am very new to this i have been reading many of these threads as my partner has got a similar problem.

she recieved a removal notice on thursday for the sum of £331.69 for an outstanding parking ticket .a bit of head scraching later .

it turns out the daughters ex boyfriend got the ticket in dec last year and kept it from my partner until now.

she rang the bailiff on friday (after recieving another letter but this time for removal with the amount showing £370.91) asking for more time as she's in shock not knowing about this .

his replie was" no pay now or ill back to take goods "she stated she didnt have the money he just replied "borrow it then"she has olso been in touch with the council they just said its in the hands of the bailiff but after reading most of these threads it seems the charges are exsscive

can anyone advise please .oh ps he is suposed to be coming back monday morning

pps sorry about the spelling im tired and worried carnt sleep.

Edited July 19, 2010 by externalbodyart
spelling

[RaeUK]

Hi externalbodyart,

You might get more responses with your own thread. Jut click here and copy your post in with an appropriate header:

 

http://www.consumeractiongroup.co.uk/forum/newthread.php?do=newthread&f=168

 

Whilst the bailif may call on monday, it is highly unlikely as they like to think they are making their victim sweat.

 

Best wishes

Rae

[externalbodyart]

have done thanks.

[jaafarcake]

I just thought I would update this thread with recent developments.

 

I have spent quite a bit of time towards the end of last week and yesterday on the phone to various departments regarding my parking debts. Unfortunately I have since found out I have another outstanding PCN, this time with the councils own bailiff's they are wanting another £400 pounds. I had previously paid a proportion of this fine but hadn't kept up payments ( which I fully except responsibility for ) they wouldn't except Direct debit, told me I could pay at a paypoint and I honestly forgot to carry on after two months !

 

I have sent the council a very pleasent e-mail asking for a full breakdown of costs applied to this account. I have not submitted a full SAR as I don't want to get their backs up and am hoping for a deal where by they may reduce the costs under the circumstances.

I have also cleared the original amount on the warrant of execution of £185.00 leaving just the costs outstanding.

 

Situation with the original PCN debt.

 

I have now submitted a formal SAR inc £10 costs and e-mailed them explaining what I'm doing and that they should hold my account activity until I have had a chance to review the information.

 

I have also managed to get the council to except a part payment ( approx 50% ) of the original amount on the notice of execution, with the intention of paying the other 50% by the end of the week if I can afford it !

 

 

Until this afternoon I was feeling quite confident with my actions however I have just had a Chat with a fellow from the Citizens Advice Bureau. While it was nice to chat with a friendly voice and I am very grateful for the return call, what he said wasn't really what I wanted to hear.

 

He advised strongly against challenging the bailiffs in any way.

 

Said even though my van is sign written and insured on a business policy, they will still try to clamp it as they will say it is a mode of transport and not a tool of my trade. . he said there is a 50/50 chance they could get away with this if I decided to fight it out in court.

 

I was also told that should I decided to re-register the vehicle in my partners or a friends name it might still be fair game for them to place a levy against it provided they can prove I have done this with the sole intention of disposing of assets.

 

When asked about the my charges ( which he had a copy of as posted above ) he said that the Credit check and Enforcement Charge would very probably stand in a court of law as they would provide say an experian credit check receipt and the Enforcement charge would be deemed as reasonable admin costs.

 

 

I now feel very depressed. These tickets were issued while I was trying to make a living, both were issued to a commercial vehicle in a loading bay. Not while I was out day tripping or shopping ! ! !

 

I honestly feel like saying ******'s, business is not great, closing everything down selling my equipment, going down the job centre and pleading poverty ! ! !

 

I think its about time the "Great" was dropped from "Great Britain" this place is becoming unbearable !

[JH101]

Did your CAB chap actually have the legislation, in particular the statutory instruments with their table of charges in front of him?

 

Bailiff law is so complex, with so many different schedules and regulations, that unless you actually have the actual schedule from the legislation to hand, for the particular type of debt in question, (or have been through it that many times), it is hard to give accurate advice.

 

The issue is not whether the costs are "reasonable". The issue is whether the costs are statutory.

 

They haven't levied you, so the only place where reasonableness of their costs comes in is attendance to levy. But they're already claiming the maximum permissible for that, so there's no scope for them to add any other fees.

 

Similarly, when it comes to the levy, they can't claim reasonable costs under that, either, because the levy cost is a fixed item, given by the formula in the S.I.

 

If they ever do levy you, and you refuse (or are unable) to pay them in a reasonable time (possibly a matter of minutes) then and there, then they may charge reasonable costs for removing your possessions.

 

But a "Credit check" is not a necessary cost for the removal of objects. Nor is an "Enforcement charge", whatever that is.

 

With all due respect to your CAB advisor, I'm not sure how well to grips he is with the detail of bailiff law.

Edited July 20, 2010 by JH101

[Zamzara]

The CAB advice sounds like a little knowledge being a dangerous thing. The reasonable aspect does not apply to the visit/levy fees which are capped at a % of the debt. No other fees may be charged no matter how reasonable.

 

And they can't levy for the charges alone anyway.

[JH101]

On the other hand, it is true that so long as some of the debt is unpaid, and your account is not "on hold", you are exposed.

 

If he does hit your van and try to remove it, the bill you face could go up significiantly. He would then be able to charge a levy fee, removal fee, storage fee, auction preparation expenses; or alternatively a daily "walking possession fee", and he could still come back and remove it. That is the risk, and it can't be wholly dismissed.

 

If you can pay the council the full sum *they* are owed, your position is stronger; and while your account is on hold, your position is very strong.

 

But, if you prefer, there is always Alternative #1, that I mentioned above -- if you make an arrangement pay up everything (including the dodgy fees) now, albeit under protest, then, as Hallowitch is fond of pointing out, you have six years to sue them at your leisure.

 

It depends on your assessment of what the risk is, and your assessment of what position it would put you in if things did go pear shaped.

[JH101]

Just to clarify, to make sure I've got the payments straight.

 

There are two debts.

 

* The debt that's being chased by the Council's in-house bailiffs, you have now paid off in full the original warrant amount of £185. On this debt, I can't remember, have they levied you? If not, they now can no longer extract fees (according to Bennett v Bayes). However, because you appreciate the good work the Council do for your community, you are offering to make a public-spirited donation to cover part of what their fees would have been (if they clarify the true and proper basis for their calculation).

 

* The debt that is being chased by the external bailiffs, you have now paid off half of the £185, and hope to have the rest paid off by the end of the week.

 

Have I got those the right way round?

 

That sounds pretty impressive. Well done!

 

The van surely is essential to your business. How can you deliver shop signs and fascias without it? But I suppose judges are a law unto themselves...

 

(I'm assuming it is yourvan, because you personally got the ticket; rather than say a business asset, paid for and owned by eg a limited company?)

[jaafarcake]

apologies for the depressing post yesterday, however after the call from the CAB, and reading the current thread " Urgent help. bailiff took my work van and tools. " I could feel my stress levels rising.

 

JH101, you are correct on all accounts.

 

I have very little information regarding the first debt, I think they have attended to levy, but failed to place any levies, however I am still waiting conformation from the council. Again I only found out about this debt when I was trying to resolve the other one. So much for their efforts to contact me !

 

Regarding the second debt with external bailiffs.

As of this morning I now have the funds available to clear the remaining 50% of the amount on the warrant of execution. I am debating with myself who to pay

 

A) Force the council to take payment again - this will not doubt annoy the external bailiffs.

B) Pay through the external bailiffs. . again requesting the stop enforcement action while charges are investigated.

C) Pay through bailiffs, make this payment the first of a repayment plan, expressing that I am paying under protest.

 

As with your exellent advice in an earlier post, its all about risk assesment.

My van is an essential to work, while I am confident I could prove this without reasonable doubt. If they come and take it I cannot work and therefore have no income.

[JH101]

I think, Go for Option A. (I'm assuming the Council have now accepted that they do have to take payment from you if you press it, for the reasons set out above).

 

Then explain to the Council, that

(a) You have taken advice, and you believe that this ends any obligations you have to the bailiffs, under Bennett v. Bayes

(b) In any case, the bailiffs are seeking fees not prescribed in the SI, which are therefore unlawful.

 

On these grounds, ask the Council to continue to put the external bailiff action on hold, while they investigate. (In fact, given Bennett v. Bayes, they should be withdrawing the warrant altogether, because it has now been satisfied).

 

Ideally, the Council can then check with its lawyers, get its view of where things should be at; and then you can all move forward together in a civilised way from there.

 

If you like (or can accept) the opinion the Council lawyers come back with, then fine; otherwise, it's only an opinion, and you would still have the option to decide then to pay and sue, or to ask the Court for a detailed assessment.

 

 

Option B in my view is not a runner, because in my view it is much more realistic for the Council to tell the bailiffs to put enforcement action on hold, rather than for the bailiffs to volunteer it themselves.

 

 

Option C. You could go down this route. But I don't see that you lose much by going for Option A instead. Even if the Council doesn't adopt the sensible and civilised approach to resolve this that you've set out, you've still made the payment, which should count to your credit.

Edited July 21, 2010 by JH101

[jaafarcake]

Ok I tried to be reasonable. Thought I'd try .C as I need my van.

 

They were totally unreasonable, refused to take my payment in realistic installments. At the end of the conversation i was so annoyed I paid the remaining balance on the warrant of execution directly on the councils website.

 

I'm going to dedicate the rest of the afternoon e-mailing the counicl.

 

I've decided to keep my van locked away in a secure location over night, every night and will just have to get a bus pass for the short journey everyday !

[JH101]

Good.

 

I've sent you a private message. There should be a link under your user name in the first blue box at the top of this page.

[jaafarcake]

Many thanks JH101. All sent off recorded to companies registered address and not the Po BOX.

 

All my attempts at e-mailing the external bailiffs have failed with the e-mails bouncing back, despite trying a couple of accounts.

[seanamarts]

Many thanks JH101. All sent off recorded to companies registered address and not the Po BOX.

 

All my attempts at e-mailing the external bailiffs have failed with the e-mails bouncing back, despite trying a couple of accounts.

Are you writing the address correctly

[jaafarcake]

Yes, copied exactly from their website.

[seanamarts]

Yes, copied exactly from their website.

Did you copy and paste it or us outlook

what was their email address

[jaafarcake]

Seanamarts I would rather PM you the e-mail address if thats ok ?

 

I have just had a response back from the councils inhouse collection team who have sent me a very short response to my request for a detailed breakdown of charges and dates of visit etc ( if you remember I did not SAR them, just politely ask for detailed information. ) They have one bailiff visit which they have not given dates / times or bailiff details on. . ( I must have been out at the time, plus nothing through the door / phantom visit ? I'm not sure ? )

and two letters at £11.20 each, again which I cannot remember receiving !

[JH101]

Two letters for the same warrant? That can't be right.

 

And how does one visit (max ~ £60) take it up to £400? How much are they charging for the visit?

[seanamarts]

Seanamarts I would rather PM you the e-mail address if thats ok ?

 

PM me the email address and I will check it out

[jaafarcake]

Inhouse Baillifs :The debt seems to have changed slightly since I spoke to a member of the council staff last week and has actually gone down. I am not sure why this is, to be honest I am starting to find it extremely difficult to get anyone to take responsibility for dealing with my PCN and seem to get passed from one department to the next.

 

In an extremely short letter ( a scanned copy of this letter on headed paper was e-mailed to me today ) the following has been listed :

 

Original debt to council for PCN : £185.00 ( paid )

1st letter ( no date listed ) £11.20

2nd letter ( no date listed ) £11.20

one bailiff visit ( no date or record given ) £130.00

 

total : £337.40

Outstanding balance £152.40

 

which they are requesting payment within seven days.

 

External Bailiffs : Unable to contact via e-mail. Unable to discuss account on the phone other than " Please make a full and final settlement! "

No Response to Subject Access Request ( too early as it was only sent last week)

No Response from letter to advise amount on warrant of execution has been settled.

 

All mail correspondence sent recorded delivery.

[jaafarcake]

One more thing I have noticed with the short and hasty letter from the council. It makes no mention of whether the amounts given are inclusive or exclusive of VAT. !