Thoughts on HCEO Enforcement

[Deadwood]

Re: Introduction

As already posted the Fi Fa Hight Court limit should be far higher.

 

I believe that in HCEO's should be present at the enforcement of their own writs, with a court order. The idea that an HCEO can delegate to any uncertificated Tom Dick or Harry to enforce without ID or orders seems wrong, many of the people used are private detective/bouncer types some of whom are extremely dubious characters. A HCEO enforcing their own writ will (may?) ensure accountability. The current hands off approach is being used by HCEO's to reap big bucks from handling hundreds of cases from their offices.

 

High Court enforcement functions in the enforcement of CCJ's should be delegated to County Courts to end the farce of going to the RCJ, often very long journeys, to argue over a few hundred quid. The options for a debtor at the moment is to become a litigant in person or use a solicitor and barrister at huge expense. Something that HCEO's know too well.

 

High Court fees should not be treated as a legal costs bill. It seems the norm for solicitors and the legal profession to overcharge, a tradition accepted by the courts! and eagerly used by HCEO's, many of whom are solicitors.

 

Overcharging to be treated as a criminal offence.

 

A regulator is a must. The courts are not interested in regulating the "profession"

[brassnecked]

Agreed Deadwood, perhaps a collation of Southern Water's use of Sherforce to enforce against vulnerable debtors could be used to illustrate this point, as how are they going to pay the water company, from benefits, along with Sherforce charging up to £1,000 per visit?

[Tryst]

Visits are not the only charge. Many charge extortionate amounts for taking it to court to begin with. I have seen "court costs" of £600 or more on a £500 debt, more than doubling the amount the debtor now has to pay back. It stands to reason that if a person is not repaying because they are unable due to income etc, they certainly cannot afford double the amount.

[old bill]

Overcharging by bailiffs and HCEOs is already a criminal offence under Section 2(1), Fraud Act 2006 (Fraud by False Misrepresentation). If a legal professional overcharges, their bill can be "taxed". This means that a judge goes through it with a fine-tooth comb and makes the legal professional justify every penny they have charged. Anything the judge doesn't like the look of or the legal professional cannot justify is "taxed" or, in layman's terms, disallowed.

 

I've posted on another thread in this sub-forum that FiFa writ amounts should be increased from £600 to £5,000.

[brassnecked]

Old bill when a debtor complains about the excessive charges HCEO's especially Sherforce on a regular basis, scuttle to a High Court Master or threaten to do so to justify their excessive fees usually charged under the ephemeral, and subjective "miscellaneous " heading as per Section 12 of Schedule 3 of the regulations : "For any matter not otherwise provided for, such sum as a Master, district judge or costs judge may allow upon application."

 

But unfortunately for them their constant use of this along with other HCEOs to overcharge are being noticed, so hopefully they will one day get a real spanking.

 

As to the fi-fa lower limit, I agree it should be at least £5000 or even £7,500 to keep a check on these greedy enforcers, who are increasingly being used against low paid workers and people on benefits, by Water Utilities like Southern Water. If they cannot afford the bill, how are they going to pay HCEO fees that may be 5 times the debt?

[Deadwood]

Overcharging by bailiffs and HCEOs is already a criminal offence under Section 2(1), Fraud Act 2006 (Fraud by False Misrepresentation). If a legal professional overcharges, their bill can be "taxed". This means that a judge goes through it with a fine-tooth comb and makes the legal professional justify every penny they have charged. Anything the judge doesn't like the look of or the legal professional cannot justify is "taxed" or, in layman's terms, disallowed.

 

I've posted on another thread in this sub-forum that FiFa writ amounts should be increased from £600 to £5,000.

 

But it isn't, how many bailiffs have been prosecuted for fraud, let alone convicted? but overcharging is systematic and probably happens in most enforcements. Fraud is very hard to prove for various arcane legal reasons and there is very little chance of successful prosecution. In relation to HCEO's, as I said earlier overcharging of costs in legal cases is endemic, routine and accepted. The law is very pragmatic concerning financial matters and if for example a business's assets were seized and the business closed by the use of an inflated enforcement then a costs judge might reduce the bill and give the business owner some money back. When it came to compensation the court's view is that loss would have to be proved etc. Anyone fancy doing that in the High Court? after all the goods were sold at auction and fetched market price. The law wants to keep its powers and from their point of view (rightly in many cases) judgments that should have been paid are enforced. High court masters are well aware of what's going on but their view is that court orders have to be enforced and if the debtor suffers, then so what.

 

I'm unsure if my comments on HCEO court costs apply to enforcements by other types of bailiffs.

[old bill]

Offences under the Fraud Act 2006 are far easier to prove than the offences of Obtaining Property by Deception and Pecuniary Advantage under the Theft Act 1968 that they repealed. I am fully-aware of the practice by Sherforce and other HCEOs of scuttling off to a High Court Master and lying through their teeth that they could not have possibly done anything wrong. The fact this is being noticed is to Sherforce and other HCEO's detriment. There is something in law called Vexatious Litigant which deals with practices such as this and means that a judge can prevent access to the courts by a company or individual unless they submit case papers to the High Court for scrutiny and the High Court authorises proceedings to go ahead. It is very expensive for a Vexatious Litigant to pursue any form of proceedings and could also be used against creditors who are litigation-happy.

 

During my time in the police force, I investigated frauds and, in practice, the defendant has to prove their side of the case as well as the prosecution. In the case of a bent bailiff or HCEO being unable to explain and prove how they ran up their fees, they would be looking at the possibility of a custodial sentence. Judges and JPs take a very serious view of those in supposed positions of trust acting dishonestly and do come on them harder than they would any other person.

 

With regard to water companies, I dealt with a case, a few years ago, where a water company had failed to comply with CPR and added solicitor's fees to a claim that fell within the Small Claims Track in order to push it over the £600 mark. The debtor was very ill at the time. Using my knowledge and that of some legal professionals I have known for some years, we had the solicitor's fees struck-out and forced the water company to back down and withdraw the proceedings. The debtor was then able to pay off what they owed by instalments.

[Malookoo]

My first thoughts are that at the moment people on here such as Brass, TT, PT and others do brilliant work advising on Bailiffs and Council problems, but as things are going are going to get more and more to do with HCEO who are a different ball game.

 

As far as HCEO are concerned I beleive that trying to do anything through the rules as they are would be extremely difficult and very expensive, but as oldbill as put there actions do come under the Fraud Act 2006 and if my reading is correct then the Offence is criminal and as such the Police should be instigating proceedings not the poor sods who have had hundeds if not thousands removed from them.

 

If the Police took action 2 or 3 times I still think it would make them sit up and take notice.

 

With regard to getting monies returned as most are under £5000 it would be much safer to go through the County Court.

 

Going through their system doesn't work.

[old bill]

My first thoughts are that at the moment people on here such as Brass, TT, PT and others do brilliant work advising on Bailiffs and Council problems, but as things are going are going to get more and more to do with HCEO who are a different ball game.

 

As far as HCEO are concerned I beleive that trying to do anything through the rules as they are would be extremely difficult and very expensive, but as oldbill as put there actions do come under the Fraud Act 2006 and if my reading is correct then the Offence is criminal and as such the Police should be instigating proceedings not the poor sods who have had hundeds if not thousands removed from them.

 

If the Police took action 2 or 3 times I still think it would make them sit up and take notice.

 

With regard to getting monies returned as most are under £5000 it would be much safer to go through the County Court.

 

Going through their system doesn't work.

 

Thank you for your post, Malookoo.

 

As well as posting on CAG, I also post on other forums and they encounter exactly the same problems with bailiffs and HCEOs. From what I have learned through posts on CAG and other forums, there is clear evidence of abuse of the legal process by creditors who rely on debtors' lack of knowledge of the law and the way in which the English legal system works. However, on a television programme recently, a bailiff was moaning about not making any money because of the " bloody information forums", which would imply that forums such as CAG, Bailiff Advice Online and other forums are having an effect on the misconduct of bailiffs and HCEOs who think they can hoodwink debtors into caving in to their bullying and lies. Fraud under the Fraud Act 2006 is an arrestable offence by virtue of Section 24/24A, Police and Criminal Evidence Act 1984. If two or three bailiffs or HCEOs were convicted of Fraud, Public Order, Criminal Damage or Theft Act offences, it would send out a message that cheating, bullying and lying would not be tolerated and has criminal implications. But it is not the conviction, itself, that makes life difficult for a bent bailiff or HCEO; it is the fallout afterwards. Try applying for a job which requires a standard or enhanced CRB check and it is revealed to a prospective employer that you are a convicted cheat, liar or bully who cannot be trusted and is known to resort to threatening or violent behaviour? Try obtaining insurance, loans or opening a bank account with a fraud conviction; virtually impossible.

 

In the police, there is something called the Ways and Means Act. It doesn't actually exist, but it goes along the lines of "If you can't get a scote one way, there is always another way to get them." This is the point I am trying to get across.

 

OB

[Deadwood]

Offences under the Fraud Act 2006 are far easier to prove than the offences of Obtaining Property by Deception and Pecuniary Advantage under the Theft Act 1968 that they repealed. I am fully-aware of the practice by Sherforce and other HCEOs of scuttling off to a High Court Master and lying through their teeth that they could not have possibly done anything wrong. The fact this is being noticed is to Sherforce and other HCEO's detriment. There is something in law called Vexatious Litigant which deals with practices such as this and means that a judge can prevent access to the courts by a company or individual unless they submit case papers to the High Court for scrutiny and the High Court authorises proceedings to go ahead. It is very expensive for a Vexatious Litigant to pursue any form of proceedings and could also be used against creditors who are litigation-happy.

 

During my time in the police force, I investigated frauds and, in practice, the defendant has to prove their side of the case as well as the prosecution. In the case of a bent bailiff or HCEO being unable to explain and prove how they ran up their fees, they would be looking at the possibility of a custodial sentence. Judges and JPs take a very serious view of those in supposed positions of trust acting dishonestly and do come on them harder than they would any other person.

 

With regard to water companies, I dealt with a case, a few years ago, where a water company had failed to comply with CPR and added solicitor's fees to a claim that fell within the Small Claims Track in order to push it over the £600 mark. The debtor was very ill at the time. Using my knowledge and that of some legal professionals I have known for some years, we had the solicitor's fees struck-out and forced the water company to back down and withdraw the proceedings. The debtor was then able to pay off what they owed by instalments.

 

I still say, show me a bailiff or HCEO who has been prosecuted for anything ( I am aware of one a while ago in my area for assault). I am aware of the rules regarding vexatious litigation. Problem is that what the HCEO's do isn't litigation. Someone, I suppose could apply to the High Court to ask that an enforcement officer be removed from the roll or register on the basis of them being unfit due to ongoing and excessive charging. Perhaps a dossier could be compiled and submitted? Class action?

 

I was frankly amazed that water companies were using High Court enforcement on private individuals (if I have that right), given the appalling way some of these companies behave it seems very improper.

[brassnecked]

I was frankly amazed that water companies were using High Court enforcement on private individuals (if I have that right), given the appalling way some of these companies behave it seems very improper.

 

Not so amazing with the cost of water bills these days

[old bill]

I still say, show me a bailiff or HCEO who has been prosecuted for anything ( I am aware of one a while ago in my area for assault). I am aware of the rules regarding vexatious litigation. Problem is that what the HCEO's do isn't litigation. Someone, I suppose could apply to the High Court to ask that an enforcement officer be removed from the roll or register on the basis of them being unfit due to ongoing and excessive charging. Perhaps a dossier could be compiled and submitted? Class action?

 

I was frankly amazed that water companies were using High Court enforcement on private individuals (if I have that right), given the appalling way some of these companies behave it seems very improper.

 

No bailiff or HCEO will be prosecuted unless people put pressure on the police, either by insisting they take Statements of Complaint, which forces them to act, or threatening to involve the IPCC, which seems to jolt the police into action.

 

Water companies, I have found, frequently abuse the legal process by adding "solicitor's fees" to debts under the £600 mark to take up to or over the £600 mark in order to involve HCEOs. All a debtor has to do is draw the court's attention to the fact that an amount is within Small Claims Track limits, which does not allow legal fees to be claimed, and have those fees struck-out, which will take it back under £600. This needs to be done as soon as the summons is received. Law Centres are there to help with free legal advice as to how to go about this.

Edited March 22, 2012 by old bill

[Malookoo]

I totally agree old bill but getting the Police to do anything is the problem I myself having phoned the Police when I was unlawfully having money removed from me and subsquently visiting the Police station and speaking to 2 officers of Inspector level, point blank refused an appointment with the Chief Super. all this despite having a file full of information (some supplied by creditor) and they will not even look at it

 

I have tried writing to the HCEO as advised by some excellent people on here and have had a reply today which basically says sod off and take it to the High Court for assesment but we will defend, instruct Counsel and ask for costs. To be honest I have no intention of risking going near the High Court. Why should I ?

 

The Police I thought were a public body that should enforce the Law (not civil) but as I understand it Fraud,Deception are criminal? or maybe its me thats thick

[old bill]

Make a formal complaint to the chief constable of the police force involved and to the IPCC. What these two inspectors have done sounds to me like Neglect of Duty, which is a disciplinary offence under the Police (Discipline) Regs, part of the Police Act 1996.

 

The response you got from the HCEO seems a standard, "Yes, I know I've been a naughty boy, but I'm going to bugger you around anyway."

 

One way to deal with bent bailiffs and HCEOs when the police won't get involved is to lay an information before a magistrate or Justice of the Peace and obtain a warrant for the HCEO's arrest. However, you need to have evidence to support the information. Provided you have this and the warrant is issued, the HCEO is then a wanted person. An arrest warrant is an order to the police to arrest the person named on it and bring them before a court. If you need further advice on going down this route, send me a PM.

[Deadwood]

Make a formal complaint to the chief constable of the police force involved and to the IPCC. What these two inspectors have done sounds to me like Neglect of Duty, which is a disciplinary offence under the Police (Discipline) Regs, part of the Police Act 1996.

 

The response you got from the HCEO seems a standard, "Yes, I know I've been a naughty boy, but I'm going to bugger you around anyway."

 

One way to deal with bent bailiffs and HCEOs when the police won't get involved is to lay an information before a magistrate or Justice of the Peace and obtain a warrant for the HCEO's arrest. However, you need to have evidence to support the information. Provided you have this and the warrant is issued, the HCEO is then a wanted person. An arrest warrant is an order to the police to arrest the person named on it and bring them before a court. If you need further advice on going down this route, send me a PM.

 

Thinking the Police will take an interest is, I'm afraid, a fantasy, the Police on the ground are normally very friendly to bailiffs and HCEO representatives. I would say that they view enforcers as another side of the policing coin and the industry as future employment to top up their generous pensions.

 

One particular issue in any event is that with HCEO's is that the person at the door isn't certified or qualified, they can be anyone instructed by the true HCEO. The instructing HCEO (in London perhaps) could rightly claim that they didn't know what their representative (in Leeds) was doing, by keeping things at arms length the HCEO remains clean, similar I suppose to the way gangsters operate. The only way of tightening this situation up is for the HCEO to be present at enforcement (complete with writs and ID).

[old bill]

Thinking the Police will take an interest is, I'm afraid, a fantasy, the Police on the ground are normally very friendly to bailiffs and HCEO representatives. I would say that they view enforcers as another side of the policing coin and the industry as future employment to top up their generous pensions.

 

One particular issue in any event is that with HCEO's is that the person at the door isn't certified or qualified, they can be anyone instructed by the true HCEO. The instructing HCEO (in London perhaps) could rightly claim that they didn't know what their representative (in Leeds) was doing, by keeping things at arms length the HCEO remains clean, similar I suppose to the way gangsters operate. The only way of tightening this situation up is for the HCEO to be present at enforcement (complete with writs and ID).

 

Once presented with an arrest warrant signed by a judge or JP, the police have no choice but to execute the warrant. It is an order of the court. I should know - I've arrested people on warrant. Judges and JPs do not issue warrants unless they are satisfied there is evidence to justify issuing them.

 

As far as HCEOs are concerned, the principle of English Law, i.e. "Ignorance of the law is neither a defence or an excuse", comes to mind. If the HCEO knows the person they have instructed is not certificated, they are in breach of the law - period. They can claim they didn't know until they're blue in the face - they have to prove they genuinely didn't know. There's no Get Out of Jail Free Card as there is in Monopoly. Yes, they may go scuttling off to the High Court, lying through their teeth, but as another poster has said, this is being noticed and I wouldn't be surprised if the High Court has twigged what is going on. The solution to the problem you put forward is what the HCEOs should be doing in any case. If matters go mammaries up and the HCEO isn't present, they are answerable for whatever happens.

[Deadwood]

.........As far as HCEOs are concerned, the principle of English Law, i.e. "Ignorance of the law is neither a defence or an excuse", comes to mind. If the HCEO knows the person they have instructed is not certificated, they are in breach of the law - period.............

 

I'm sorry but you are absolutely wrong on this point. A HCEO can (legally) instruct anyone they please, certified or not to enforce for them and will not generally be an employee of the HCEO company. Usually they will instruct a private investigator to serve and enforce locally. Private investigators are sometimes a member of one of the trade associations the only qualification for which is an annual cheque. Many private investigators are ex police or military but please believe me when I say that there are some of them you wouldn't want anywhere near you. In this respect HCEO enforcement is pretty much unregulated. This arms length arrangement makes accountability difficult, I don't think HCEO's care less what lies are told and deception carried out in order to execute the writ.

[old bill]

I'm going to look into this a bit deeper. Could you quote the legislation they draw their authority from, please?

[brassnecked]

I'm going to look into this a bit deeper. Could you quote the legislation they draw their authority from, please?

 

Your first port of call will be here:

 

http://www.legislation.gov.uk/uksi/2004/400/contents/made

 

It is an absolute minefield, with plenty left open to interpretation.

[Malookoo]

Deadwood is correct in that HCEO do not have to use certified bailiffs, but as for arms length that is incorrect they are their rep and their responsibility at all times, just as ultimately action on the writ is the responsibility of the creditor.

 

In my case that bit is fairly irrelavent as 1) there are problems with the certification. 2) The attack dog told the Police he was acertified bailiff acting on a valid warrant, which was not true.

 

And quite honestly what the Police want to do does not bother me it is high time they were kicked into doing what they are there for. Do I feel sorry that the poor little darlings can't sort it sat infront of a computer by telephone or CCTV and might actually have to move their backsides, actually NO.

 

Apologies in advance to old bill and the few others who have or do.

[Deadwood]

I can't find the original legislation, there is a section in there about delegating powers and is what happens in most cases. It's in the Courts Act 2003 Schedule 7 subsection 2 I think.

 

It's here http://www.legislation.gov.uk/ukpga/2003/39/schedule/7/paragraph/5#schedule-7-paragraph-4-4

 

Read this for example

 

http://www.sherforce.net/codeofConduct.aspx

 

I just noticed the nonsense about the original writ not being available. The HCEO or applying solicitor can certify a copy writ as a true copy or just get extra sealed copies at the time of application. I'm not really sure why they would want to prevent the debtor seeing it, one explanation might be to prevent it falling into the hands of a rival HCEO or otherwise to possibly cause the debtor uncertainty.

Edited March 23, 2012 by Deadwood

[wonkeydonkey]

HCE should have the level raised dramatically as we are still working to involve them on a figure that was set over 30 years ago...£600 was seen to be a lot of money then...Jesus you could buy a 3 bed house for £7k

 

WD

[brassnecked]

Minimum of 10 k before HCEO enforcement can be applied imho

[old bill]

I'm in full agreement with the £10,000 minimum sum before HCEO enforcement can take place. However, Oral Examination Hearings should be made compulsory as well. At the moment, they are encouraged by court staff, but are not mandatory. This is to check that enforcement is viable. It also allows the debtor to show what means they have to repay a debt. It would also curb a lot of bullying by creditors and go some way to curbing their couldn't-care-less attitude.

[brassnecked]

I'm in full agreement with the £10,000 minimum sum before HCEO enforcement can take place. However, Oral Examination Hearings should be made compulsory as well. At the moment, they are encouraged by court staff, but are not mandatory. This is to check that enforcement is viable. It also allows the debtor to show what means they have to repay a debt. It would also curb a lot of bullying by creditors and go some way to curbing their couldn't-care-less attitude.

Where there is doubt of ability to pay, an oral examination is an option, but many debtors would be fearful of attending as they misunderstand the purpose of the hearing, think the HCEO will "win" and get more charges added.