Are these bailiff charges justifiable ?

[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

[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

[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

[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?)

[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

[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.

[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?

[JH101]

There's no provision to charge for two letters, so the second letter fee must go.

 

The visit fee is either completely wrong; or, if we're being charitable, they've charged you an "attendance to remove" (Fee 6) instead of an "attendance to levy" (Fee 3). It's quite clear that's wrong, confirmed by the recent ruling in Culligan v. Simkin & Marstons Group (2008 ) at paragraphs 49 and 50.

 

The visit fee ("attendance to levy", fee 3) should be no more than 28% of £197 = £55.16

 

Don't know why they haven't charged you VAT, but maybe it's because they're a council. Or maybe they're just a one man and a bike operation, too small to be VAT registered. But really there ought to be 17.5% VAT on everything.

 

 

Of course, because you've paid the amount on the warrant, before they have concluded a successful levy, you're not actually under any further obligation to pay them anything (Bennet v Bayes, 1860), nor are they legally allowed to take any further bailiff action.

Edited July 26, 2010 by JH101

[JH101]

£185 is standard for a PCN that starts at £60

 

First you lose the 50% discount for not paying it straight away. That takes it up to the full penalty amount, which is £120.

 

Then if you don't pay within another period of time, they can send you a notice, and the PCN goes up another 50%, taking it to £180.

 

If you still don't pay, they then register the debt with the TEC at Northampton for £5, which issues them a warrant, which they then pass on to their bailiffs. Total amount on the warrant, now owing at this stage, £185.

 

Per Bennet, bailiff fees only become due when the bailiffs achieve a levy. So I think they can't get at them any other way.

 

JBW group had a heap of unpaid fees on their books for work done, when Westminster refused them a new contract in 2008. They couldn't get any money for those fees from Westminster, and according to what they told the court, there was in effect no way they could enforce them against anybody else, either.

Edited July 26, 2010 by JH101

[JH101]

"If tender of the full sum is made before the seizure, the levy is illegal (Branscomb v. Bridges (1823) 1 B&C 145). No costs need be included in the tender as none can be recovered before the levy (Bennet v. Bayes (1860) 5 H&N 391).

-- John Kruse, Law of Seizure of Goods, 2nd ed. Hammicks Legal Publishing, 2009. Page 247.