Marstons - Unlawful Charges

[fightinghard]

Hi

 

Just checking I am on the right lines here with fight I am in with Marstons.

 

I had a PCN (and admit I didnt pay it due to financial pressures) - anyway one morning about 8.30am my son found a handwritten letter pushed through our door from Marstons stating that I now had to pay over £300 (original ticket £25) - there was no knock at the door prior to the letter being pushed through - it wasnt on the door mat 10 minutes earlier when I had passed the door and I have a dog who would have barked had the door been knocked. I phoned the Bailiff and he admitted on the phone he hadnt knocked - saying "I dont need to".

 

I checked the regulations and as far as I could understand them I had to pay the fine, the court fee and possibly the levy fee of £28 as he had "attended". This I did and immediately wrote to the council and marstons complaining about the additional costs.

 

Marstons have responded today stating they are entitled to charge the additional £175 plus VAT because the bailiff "had attended with a view to remove goods" - they also deny that he did not knock on the door. I am now threatened with further enforcement action for not paying up.

 

The Bailiff clearly had no intention of removing goods that day - even if he did knock (which he didnt) - there was no van outside and the handwritten letter makes no mention of any removal being threatened.

 

I have read the case of Culligan v Marstons and my understanding is that Judge there stated that levy and removal are 2 separate events - am I right?

 

Any help appreciated. Many thanks

[Thegreenpimpernel]

You are correct.

 

There needs to be a levy in force first, then the bailiff returns some days later with the supposed 'intent to remove'.

 

You make no mention of a levy. Was your car on the drive at the time of this visit?

[fightinghard]

Hi

 

thanks for your reply. It may have been in road somewhere nearby although it has more HP on it than its value so he wouldnt have got far with it. His "Final Notice" clearly states that unless full payment is made he shall remove goods and that I must phone (which I did) - it doesnt say he was going to do it then.

[Thegreenpimpernel]

Apply for a breakdown of costs & charges.

It sounds like there is little possibility of a valid levy having taken place, the car being on HP protects it from seizure.

 

As long as you deny them entry too your home, it seems the ball is in your court.

 

You can wait for their reply to your inquiry, or calculate what you should pay them yourself and send it to them or the council.

 

Sounds like you only owe:

 

1)The 'fine' (check whether this has grown, some are £xx if paid within 'y' days growing to...) £25

2)A visit.

3)Possibly a letter fee if you've had one.

 

There is no valid levy, so no levy fee.

[fightinghard]

Hi

 

Thanks again. I have already paid the fine, a letter fee and the attendance fee. I am now being threatened with further attendances to collect the £175 plus VAT attendance to remove fee! Am just drafting a long letter to the Council, not Marstons, advising that I am now making an official complaint and pointing out that they have charged me illegally and I'll be suing for the return of the levy fee on the other account.

 

Will let you know how I get on. I am so mad about this I am prepared to go all the way to the Ombudsman and to the Court for assessment of the fees if necessary - whilst I accept that I should have paid this, I am not prepared to accept that Bailiff's think they can extort money out of people who do pay for work they dont do by use of bully boy tactics and threats. Phew - rant over!

[Thegreenpimpernel]

Sounds like you've got this well under control.

 

Like i say, deny the robber access to your property (inside and out) and there's nothing more he can do.

 

Please do let us know the outcome.

[wonkeydonkey]

Invite them to take you to court...they pay the fees for that and you get to challenge the unreasonable charges at their expense.

[Thegreenpimpernel]

Just for the record.

 

Even in their fictional world,(where a levy exists) they have applied all the fees possible without actually removing goods i.e. the only fee left in their arsenal is a second "attending to remove" for which they would have to succeed in removing the goods.

[tomtubby]

Hi

 

Thanks again. I have already paid the fine, a letter fee and the attendance fee. I am now being threatened with further attendances to collect the £175 plus VAT attendance to remove fee! Am just drafting a long letter to the Council, not Marstons, advising that I am now making an official complaint and pointing out that they have charged me illegally and I'll be suing for the return of the levy fee on the other account.

 

Will let you know how I get on. I am so mad about this I am prepared to go all the way to the Ombudsman and to the Court for assessment of the fees if necessary - whilst I accept that I should have paid this, I am not prepared to accept that Bailiff's think they can extort money out of people who do pay for work they dont do by use of bully boy tactics and threats. Phew - rant over!

 

All bailiff companies will know that they CANNOT use the warrant to collect their fees. You have "tendered payment before seizure" and you may wish to remind them that they should pay attention to John Kruse in his Law of Seizure book which CONFIRMS this point.

 

In addition, if a bailiff is charging an "attending to remove" fee, then the "intention must be real". He should also turn up at the property with the necessary removal truck!! It makes common sense, that in order to "attend to remove" you would need to know IN ADVANCE that there are goods which can be removed !!!

 

Also, almost all bailiff companies will carry out an HPI check before enforcing a Warrant. Therefore, he would have known IN ADVANCE that the vehicle was subject to HP !!!

 

I would suggest that you make a request for a copy of the SCREEN SHOT of your account. This is an electronic record of your account.

[fightinghard]

Thank you tomtubby.

If they cant use the warrant to collect their fees how would they do it? Would they have to issue separate proceedings? Sounds like a good book to have!

The Council have told Marstons to hold off while they investigate as I have now made a Stage One complaint so will see what comes back from that.

[Thegreenpimpernel]

*****CONFUSION ALERT*****

 

I've been involved in various threads including a current one, where the "bailiff can't enforce for just his fees" argument has raged with no decisive outcome. I agree with tomtubby's post 100% but fear it may be misinterpreted to endorse the incorrect argument that a council tax bailiff can't continue enforcement for his legitimate fees, just because someone has paid the Liability Order value direct to the council.

 

I'm not knocking TT, i'm just concerned that some might take it out of context. The context being:

"tendered payment before seizure"

 

With regards to council tax, I'd go further and say 'tendered payment before the visit / seizure'

[fightinghard]

HELP!!

 

I have now had a response to my letter. Here are the contents:

 

"The Attendance to Remove has only been applied to one warrant and is a valid charge in accordance with Schedule 6 of the regulations. These have been explained previously in our response.

In answer to your specific points:-

· Mr Bailiff refutes he stated he did not have to knock at the door. He maintains adamantly that he left a notice due to no response.

· All out Agents attend premises in a van. This facility is available to remove small household items should the situation necessitate.

Although you did contact Mr Bailiff and were given extra time to pay, you did not adhere to the arrangement put in place. Therefore your failure to adhere to the arrangement put in place meant that full enforcement procedures were carried out and the further charges applied.

In regards to the Culligan case and the judges comments regarding the need for a gap between seizure and removal. The substantive issue in this case was whether clamping was part of seizure or removal, and the comments about the requirement of to provide an opportunity to pay before removal action was not the ratio or the main focus of the judgement.

The substantive issue was whether a term in a contract stipulating a distinct fee for clamping was lawful within the RTA fee schedules.

The relevant regulations, The Enforcement of Road Traffic Debts order 1993 7(2) does not provide the debtor with an opportunity to be informed of any right or entitlement to halt the distraint process between seizure and removal. This matter was addressed in Wilson V South Kesteven District Council, where Simon Brown LJ concluded that a debtor could not halt the process other than before seizure or before sale.

Wilson was not cited in the Culligan case, had it been it is unlikely that the District Judge would have made the comments he did in his judgement at paragraph 49 and 50. In Wilson, Simon Brown LJ rejected the idea – which the District Judge’s comments necessarily imply – that there is (or should be) a continuum of opportunity to halt the seizure and removal process."

Where do I go from here? Their letter is incorrect when it says that as I did not stick to the arrangement further charges were applied. The charges for removal were already applied when he put the letter through the door. Do they have to take to court for the charges or can they just keep on harrassing me at home? Amwondering whether to continue complaining or whether to tell them to take me to court.

Any help appreciated especially with regards to the point about the attendance for the first visit and the charging ofa removal fee at the same time.

Many thanks

[Thegreenpimpernel]

The crux of the matter was not whether there was a gap between seizure and attending to remove; more that there was no valid levy in the first place. Consequently, there can be no attendance to remove.

 

I say this on the understanding that:

 

a) The car was on HP

b) They have not levied on anything else, i.e. they haven't been into your home.

 

That should be the basis of your response.

 

However, credit where it's due. You should thank Marstons for putting an uncharacteristic level of effort in replying to you. I'd like to think we've been giving them some practice!

 

In addition, thank-you Marstons for confirming what we already knew; that you attend every visit in a small van. Now let me see them justify £175 to £300 charges for 'van hire', 'insurances' etc.....

[Guest carlos999]

With PCN a visit is an attend to remove whether there is a levy or not as goods are identified from the outset as the vehicle details are held. Therefore an attending to remove fee can be charged on as many occasions as necessary from the outset. Ta carls

[Thegreenpimpernel]

If that were true carlos, he would have to be in a TOW TRUCK wouldn't he, given that he must have genuine intent to remove!

Edited March 29, 2011 by Thegreenpimpernel

[Thegreenpimpernel]

You've had a while to reply carlos, where are you?

 

I have to say, that in the past, i have been dismayed at how bailiffs who want to make a genuine contribution to this site are 'hounded' out.

 

But in your case i am already thinking that you are willfully posting utter **** for the purpose of causing confusion and undue fear in debtors.

[Thegreenpimpernel]

carlos said:

 

"as goods are identified from the outset as the vehicle details are held"

 

No doubt he also 'identifies' goods through people's windows when levying.

 

Where are you carlos?

 

You're still showing as logged on.

 

Ran off at the first sign of informed resistance?

 

Definitely a bailiff.