Newlyn Help Please

[vincy132]

Hi there, I am new this forum. I would definitely appreciate some advice, here is my situation. My car was clamped by Newlyn bailiff in a Morrisons car park (using APNR) for unpaid pcn that was on hold with LA pending appeal decision from TEC. I called the number on the bailiff who was said he could not come back to remove the clamp. My car remained in two hour max car park for the entire weekend. After several phone calls on Monday morning to TEC, LA and Newlyn my car was released. I thought that would be it until I hear from TEC but the on the Wednesday, newlyn bailiff turned on my doorstep threatening to remove my son’s car for a pcn he also had on hold pending appeal. After a three hour stand off with the tow truck ready and waiting, the bailiff turned their attention to my car and said they will take my car too because it has a warrant on it too. I said he couldn’t do that because my car was already seized once and subsequently released. He ignored me and proceeded to clamp my for the second time and left, leaving no warrant or levy. I think that Newlyn have acted unlawfully on number of counts, firstly, they should not have clamped my car in my absence and not at a location not stated on the warrant and should they be clamping my car for a second I assume with the same warrant they claim to have but I haven’t not seen. Does this make it invalid and illegal also with the fact no levy was made detailing my car reg. Is this a case of fraud by false misrepresentation? I have since spoken to LA and Newlyn and both say the clamp will remain on the car until final decision. I have explained that I am NHS staff and my car is for home visit to patients but again falling on deaf ears. They say clamp may be on there for weeks. Also, TEC say warrant was issued in Oct, will find out on Monday when LA actually printed and issued to bailiff, must they act within 7 days of it being printed? Not sure what to do now, any advice welcome. Sorry for long thread.

[ims21]

Hello vincy and welcome to CAG.

 

I have created a thread for you here and the guys will be happy to help as soon as they are available

[ploddertom]

Were you given a Notice of Seizure before the vehicle(s) were clamped? Have you asked to see the Warrant(s)? Please ask both Council & Bailiffs which Rule/Regulation allows them to clamp the vehicle(s)!

[vincy132]

They left me no paperwork at all

[vincy132]

I had asked to see the warrant but the only had a warrant for my son's car, I did ask the bailiff for the warrant for my car but he left before giving it to me. I plan to ring the council first thing monday.

[ploddertom]

The reason I asked about the Rule or Regulation that allows them to clamp your car(s) is because as far as I am aware a vehicle may only be clamped if:

a - it is causing an obstruction prior to its removal

b - it has no Road Fund Licence

c - it is subject to a Clamping Order issued by the Magistrates for a criminal fine

 

I also believe the Warrant they have has not been issued correctly, that is the Bailiffs have printed their own.

 

If you were also not given the Notice of Seizure at the time your car was seized/levied then there is an arguable case - in my opinion - that the seizure may be unlawful. The Council will no doubt be backing the Bailiff as they know no different, it may pay to remind them they are liable for all the actions & charges of their Bailiff. If you can produce a letter/memo from work saying your car is an essential tool for your job this should also help.

[vincy132]

Thank you, thats helpul I wil look into that further. I am trusting trying to find out if once they have clamped my car once on a warrant of execution, can they do it a second time or should the get the warrant reissued? Cant seem to find anything on the net.

[tomtubby]

I'm not liking this so far.

 

Before responding in full can you please explain what happened BEFORE you filed and Out of Time Application. For instance, had you vehicle been "seized" etc.

[vincy132]

Thank you for help..

 

Received order for recovery at which point I filed TE7 and TE9. Car was not seized at this point. Recieved a Newlyn "take formal notice" undated letter delivered by hand about a week later. Unfortunately I didnt deal with it straight as I thought that they could not do anything until appeal decision. The following saturday was when my car was first seized then released 2 days later after explaining an appeal is in process.

[tomtubby]

Vincy 132

 

When you say that you received an Order for Recovery, I am assuming that you had not completed a witness statement (TE9) within time and instead, had to file a TE7 as well. Is this correct?

 

When you sent the applications to TEC was this done by email or post?

 

Could you call TEC and ask them to confirm the date that they received your TE7 & TE9.

 

Please post back.

[vincy132]

TE7 and TE9 was emailed friday afternoon 30th November but council did not process it until Wednesday apparently.

[tomtubby]

What date did Newlyn clamp your vehicle?

[vincy132]

Saturday the 1st of december, unclamped on the monday and then reclamped on the Wednesday 5th

[tomtubby]

I would strongly suggest that in the morning you telephone the Traffic Enforcement Centre and explain to them that on 30 November you emailed an out of time witness statement and that despite this Newlyn plc attended your property on 5th December and clamped your vehicle. This would appear to be a blatant disregard to section 8.1 of CPR 75 which specifically provides that when an out of time witness statement has been served that all enforcement of the warrant must cease until such time as the application had been determined.

 

The local authority are responsible for the actions of their agents and a formal complaint should be made.

[vincy132]

Thank you so much for your reply. I have phone TEC and they say they have no control on what the bailiffs decide to do, but I should ring the council. Rang the council and they say there is nothing they can do as they do not get involved in the bailiffs actions but to ring the bailiffs, rang the Bailiffs say they will not do anything until the council tells them too, so basically been given the round around.

 

Whats your thoughts on them clamping twice with the on the same warrant, should they have applied for a reissued warrant to clamp again days later. I want to argue that they did in fact have no authority to clamp the second time because the warrant had been already executed the saturday.

 

Also i dont know if this is of any consequence but the warrant was issued to bailiff in october, is there any time limit where by it has to be executed once the bailiff has it. I know the council has a year from issue but dont know if same for bailiff.

 

Thanks again...

[ploddertom]

The answer with the Council is to reiterate to them that they are completely liable for the actions & charges of their contractors and should this continue you will be claiming for loss of use of your vehicle, hire of another if applicable or any other transport costs, letters & phone calls and all other out of pocket expenses. If so required you will not hesitate to file a Claim within the County Court without further notification where you will name both Council & Bailiffs as co-defendants.

 

Have you tried involving your local Councillor(s) to intervene on your behalf.

[vincy132]

Thank you for that.....I will make some calls in the morning, definately intend to take this as far a possible, it is so unfair cant believe this is allowed to happen. I will be suing for personal injury too, I'm sure I have broken my foot, kicking the wretched clamp everytime I walk pass the my car .

[Sparks_]

Couldnt some kind stranger remove the clamp over night without you knowing?

[tomtubby]

The Practice Directions that support CPR 75 ( which covers the rules of the Traffic Enforcement Centre) specifically provide under paragraph 8.1 that all enforcement MUST CEASE until such time as your application has been DETERMINDED.

 

I would almost certainly suggest that a formal complaint is made this morning to TEC concerning this. I have sent you a PM.

[vincy132]

Hi there

 

I am now at the stage where out of time witness statement has been rejected and the bailiff is due back for the new year to make a payment arrangement with me. However, I feel the charges do not add up. I have said that I am willing to pay but the breakdown given by newlyn does not make sense to me. I would very grateful for any advice. I received a take formal notice letter from newlyn stating the outstanding amount was £579.04, this was the first I ever received from newlyn. My question is how can they charge this amount before any visits or bailiff action? What do these charges cover at this point. After the bailiff clamped my car for the second time I requested a breakdown of the fees he claimed I owed from his office and this is what was listed:

 

Amount Vat

£202.00 £0.00 Debt

£11.20 £2.24 First letter

£105.00 £21.00 Enforcement fee

£28.00 £5.60 Visit fee 1

£28.00 £5.60 Visit fee 2

£120.00 £24.00 Enforcement fee 2

£73.00 £14.60 Levy fee

£35.00 £7.00 Sch 1 section 8

 

Also whilst the appeal was being processed, newlyn clamped and released my car on two occassions both without form 7 notice of seizure and no levy and now charging for work not done. Is this enough to make a form 4 complaint? What other action can I take at this point?

[old bill]

It appears Newlyn have been indulging in front-loading of fees, i.e. charging fees for work not done or not yet done, which is illegal. The fees should be as follows -

 

Debt = £202.00

Letter = £13.44 (inc. VAT @ 20%)

1st Visit Fee = £68.00 (inc. VAT @ 20%)

2nd Visit Fee = £68.00 (inc. VAT @ 20%)

TOTAL = £351.44

 

The Enforcement Fee is not permitted under the relevant legislation. The Sch 1 Section 8 Fee cannot be charged unless a Formal Notice of Seizure has been given and goods have been removed. Unless Newlyn can prove a valid levy, they can whistle for the Levy Fee.

 

At this stage, I would not advise a Form 4 complaint. I would certainly challenge their figures and ask them to provide evidence of visits, including dates and times, and proof of levy/seizure.

[vincy132]

Thank you for your advice. I was just wondering if being clamped via APNR in supermarket car park counts as first visit. Also the so called second visit was actually in relation my sons car but because we were arguing with him on the doorstep out of spite he clamped my car also again despite knowing there was an appeal pending, would this count as a second visit. It looks like he is charging my son for the same visit also. Is this right?

[brassnecked]

Thank you for your advice. I was just wondering if being clamped via APNR in supermarket car park counts as first visit. Also the so called second visit was actually in relation my sons car but because we were arguing with him on the doorstep out of spite he clamped my car also again despite knowing there was an appeal pending, would this count as a second visit. It looks like he is charging my son for the same visit also. Is this right?

 

The visit fee can only be charged for a visit to the address on the warrant

[old bill]

Unless the bailiff had lawful authority to clamp your car, his actions may well amount to Unlawful Interference with Property, Unlawful Detention of Property, Trespass to Property and Acting Without Lawful Authority. He, Newlyn and the local authority involved could all be pursued for civil damages.

[vincy132]

Thank you, would a bailiff in possession of a warrant of execution be classed as having lawful authority? Although i was not given one.