Form 4 Complaint struck out. Judge states that complainant was "economical with the full truth"

[tomtubby]

There is a legal procedure available to members of the public whereby a Judge can cancel a bailiff’s certificate if he is satisfied that the bailiff is “not a fit and proper person to hold a bailiff certificate”.

 

The procedure is initiated by filing a Form 4 Complaint and details can be found in the “Sticky” section.

 

In considering whether to deprive a bailiff of his livelihood the Judge will need to be satisfied that the bailiff has done something very serious indeed and, as has been made very clear on this forum (and indeed by way of evidence) a “Form 4 Compliant” is referred to a “litigation” and the court may...and indeed in some cases do.....order the complainant to pay costs to the bailiff in cases where the Form 4 complaint was not justified.

 

I have repeatedly stated on this forum that there is a risk of the court ordering costs to be awarded in favour of the bailiff and it is for this reason that such (Form 4) complaints should only ever be made in very serious cases.

 

This morning I received a copy of the Judge’s decision for dismissing a recent Form 4 Complaint. One copy ( of the decision) came to me from a local authority and another from a bailiff company (who were not in any way connected with the complaint).

 

Unfortunately, both copies have the name of the complainant, the name of the bailiff, the vehicle registration number and details of the bailiff company. I am not good with computers and cannot "blank" out such details for this reason in order to preserve confidentiality I have accurately re typed a copy of the Judge’s decision which I will post in a few moments time.

[tomtubby]

PS: I will be referring to the Complainant as "Mr Smith and the bailiff as "Mr Bailiff"

[tomtubby]

BAILIFFCOMPLAINT

 

 

ReferenceNo. 4 of 2013

 

Mr Smith has complained in Form 4 dated 22nd April 2013 of the conduct of the certificated bailiff who was attempting to enforce a debt, specified as Council Tax owed to Chesterfield Borough Council.

 

 

The bailiff has replied personally to the complainant in writing by letter dated 16th May 2013

 

 

Decision:

 

The complaint about this bailiff relates essentially to the events of 27th February and 20th March 2013

 

On the earlier date, the bailiff attended at Mr Smith’s home address in Chesterfield and left a Notice stating the amount due as “£465.40 plus costs” and giving contact details. Mr Smith says that in fact the bailiff spoke to his sister that day (and appears to complain of breach of confidentiality thereby). He also complains that the costs should there and then have been specified at £24.50 under the relevant Regulations. He paid the £465 on 2nd March 2013.

 

On a later date a notice of distress was left at the address asserting levy of distress on a vehicle, a Land Rover Freelander registration number XX XXX there being stated at be £24.50 outstanding (ie the “costs” from the previous visit). Additional fees of £70 were added.

 

Mr Smith says that he does not own (and by implication is not the keeper of) any such vehicle, that no such vehicle was at the property and that the levy was fictitious and the fees dishonestly claimed. Mr Smith says that he has “taken legal advice” and cites some authorities. It is not clear whether he had face-to-face advice from a solicitor or C.A.B or whether he has simply done internet research. If the latter he should not assume that his information is correct and nor should he assume that the court is aware of the matters he relies upon. If there were to be a hearing, he would be required to bring copies of those authorities and he or his legal representative would be expected to assist the court with the law.

 

The complaint relating to the alledged fictitious levy and dishonest fee charge is more serious and, if substantiated would indeed justify the court considering cancellation of the bailiff’s certificate.

 

The complaint is denied. The bailiff says that he did visit three times and that he spoke with no-one on 27th February2013 but that he spoke with Mr Smith’s sister on 6th March 2013. There is accordingly, a dispute about when the earlier events occurred and about what happened. However, the recording of his sisters’ call to him and of the conversation with the bailiff at a later date are unlikely to be of assistance.

 

The bailiff agrees that he decided to levy on the vehicle, which he says was present on the street near to, but not outside, the house believing it to be Mr Smith’s. In fact it is said that the vehicle belonged to his sister. The bailiff had earlier seen it driven by her which enabled the link to be made. It is not a “random” vehicle nor a non- existent one. Given what the bailiff does not dispute the alleged content of the CCTV (and I have seen the stills) it takes the matter no further. The levy has since been removed on proof of the fact of the sister’s ownership.

 

On the evidence, there was not a “fictitious” levy as Mr Smith alleges (i.e. no vehicle at all) but rather erroneous (but not illegal or irregular) levy on a vehicle that the bailiff believed to belong to Mr Smith.

 

It is right to note that the bailiff does not refer to any checks being made with DVLA or HPI. For this he might at worst justly be admonished, but not deprived of his certificate. A hearing would in these circumstances not be proportionate within the meaning of rule 1.1 (1) of theCivil Procedure Rules. The fact that the vehicle existed and belonged to his sister (the same sister with whom that bailiff is said to have conversed at thehouse earlier) is nowhere stated in the complaint, which is in my judgment actively misleading in that respect. Nowhere does Mr Smith say that “there is such a vehicle but it is my sister’s” or words to that effect. It sits ill with the allegation of dishonesty on the part of the bailiff that Mr Smith chose to be economical with the full truth of the matter. I wonder if he gave the full and accurate account to the person who gave him legal advice. If not, it might explain why he was advised to complain and to rely upon the cited 19th century cases.

 

The bailiff’s employers (xxx) have removed the levy and, of course cancelled the levy fee. The bailiff admits a miscalculation which has resulted also in a refund of £52.50 to Mr Smith. The complainant has accordingly, had adequate satisfaction.

 

I am satisfied by the bailiff’s reply and explanation. Having regard to the provisions of rule 8(2) of the Distress for Rent Rules1988. I am not “unsatisfied as to the bailiff’s fitness to hold a certificate”. There is accordingly, no need for a hearing of this complaint. No further action is required.

 

If I had thought that the complaint required a hearing I would have required Mr Smith to disclose his recordings and film in advance of the hearing, not at the hearing, with a full and accurate transcript of the recordings and would have expected him and his sister to attend court to substantiate their allegations on oath or affirmation. There would have been no possibility of considering deprivation of livelihood without sworn/affirmed evidence.

 

If the complaint had not been determined until that stage, Mr Smith would have been at risk of an adverse costs order, possibly far in excess of the original debt.

 

Although the Form 4 procedure involves no issue fee, complainants are often unaware of the court’s power to order costs in the bailiff’s favour against the complainant if a complaint is not upheld after a full hearing. In my experience such costs generally exceed £1,000 (and in one recent case at Southampton County Court were £10,000). Determination of the complaint on paper where possible is in the complainant's interest, because there is no question of an adverse costs order on such disposal

 

 

His Honour Judge Butler

 

 

 

Designated Civil Judge for Cumbria and Lancashire

 

 

 

Dated 24th May 2013

Edited June 3, 2013 by ploddertom
Spacings

[postggj]

What is the best way now for a complainant against a bailiff to get redress other than a form 4 complaint

 

i am talking of excess fee, foot in the door, all unlawful but what offence need a bailiff now commit too justify a form 4 ???

[unclebulgaria67]

TT

 

This case rings bells with me, in regard to advice that has been offered elsewhere online . I am sure the post concerned a LandRover Freelander that was owned by a Sister and some of the other details are familiar. I can't remember where I read it

[citizenB]

Well for sure if the complainant wasn't accurate in his statement then he definitely deserved to lose.

[unclebulgaria67]

I think this case relates to this thread, where they came to CAG, but now seem to be following advice on another forum. On CAG it was advised NOT to go down the Form 4 route or to withdraw if already done. According to the other forum, the person concerned is now issuing a court claim against the bailiffs.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?386206-Rossendales-unlawful-charges-and-sceptical-actions&highlight=fbnts

[BankFodder]

What is the best way now for a complainant against a bailiff to get redress other than a form 4 complaint

 

i am talking of excess fee, foot in the door, all unlawful but what offence need a bailiff now commit too justify a form 4 ???

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?389186-Suing-a-bailiff-in-the-County-Court-part-1-Trespass.

 

This is the safe and straightforward way to use the courts to make a complaint.

The action is very direct. Will produce some damages if you win. Does not directly threaten the bailiff's livelihood but will produce good disclosure of available evidence and also will prompt the judge to give his views on the seriousness or otherwise of the bailiff's wrongdoing.

If you succeed in your action for trespass and you demonstrate that the bailiff's misbehaviour was very serious, this will be reflected in the judgment and the judge's comments. You will then be in a position to decide whether or not a form 4 application has a chance of success.

You will be able to use the transcript of your successful trespass action as the basis for your form 4 application.

 

Most bailiff transgressions probably wouldn't justify a form 4 action but a successful trespass action will stand even on a merely technical trespass. You can then publish the judgment and send a copy to the bailiff's employers and to their client.

If the trespass is clear and you have good evidence of it then you could even sue the bailiff's client. This would be a very serious matter for the bailiff company because they are are very concerned with keeping their client's reputations out of the limelight.

 

That's the theory anyway. It all has to be tried. However, what is very clear is that form 4 complaints are very risky and very few are going to be successful.

[BankFodder]

Just to let you know that claims have now been issued against a bailiff for harassment - after a video of a bailiff visit was posted on Youtube. The case is about to be listed for directions in the next 4 weeks.

A further claim has been issued against the same bailiff for breach of confidence as per - http://www.consumeractiongroup.co.uk/forum/showthread.php?389223-Suing-a-bailiff-in-the-County-Court-part-2-Breach-of-Confidence

 

An finally, a claim has been issued against Mid Sussex County Council in respect of unlawful charges.

 

Several other claims are contemplated.

 

This has all been conducted off-forum so far but the forum will up dated on the progress of the claims in due course.

 

We would recommend small claims actions where there is clear evidence of trespass and also where there is clear evidence of a breach of confidence by discussing personal matter with neighbours.

[wonkeydonkey]

BAILIFFCOMPLAINT

 

 

ReferenceNo. 4 of 2013

 

Mr Smith has complained in Form 4 dated 22nd April 2013 of the conduct of the certificated bailiff who was attempting to enforce a debt, specified as Council Tax owed to Chesterfield Borough Council.

 

 

The bailiff has replied personally to the complainant in writing by letter dated 16th May 2013

 

 

Decision:

 

The complaint about this bailiff relates essentially to the events of 27th February and 20th March 2013

 

On the earlier date, the bailiff attended at Mr Smith’s home address in Chesterfield and left a Notice stating the amount due as “£465.40 plus costs” and giving contact details. Mr Smith says that in fact the bailiff spoke to his sister that day (and appears to complain of breach of confidentiality thereby). He also complains that the costs should there and then have been specified at £24.50 under the relevant Regulations. He paid the £465 on 2nd March 2013.

 

On a later date a notice of distress was left at the address asserting levy of distress on a vehicle, a Land Rover Freelander registration number XX XXX there being stated at be £24.50 outstanding (ie the “costs” from the previous visit). Additional fees of £70 were added.

 

Mr Smith says that he does not own (and by implication is not the keeper of) any such vehicle, that no such vehicle was at the property and that the levy was fictitious and the fees dishonestly claimed. Mr Smith says that he has “taken legal advice” and cites some authorities. It is not clear whether he had face-to-face advice from a solicitor or C.A.B or whether he has simply done internet research. If the latter he should not assume that his information is correct and nor should he assume that the court is aware of the matters he relies upon. If there were to be a hearing, he would be required to bring copies of those authorities and he or his legal representative would be expected to assist the court with the law.

 

The complaint relating to the alledged fictitious levy and dishonest fee charge is more serious and, if substantiated would indeed justify the court considering cancellation of the bailiff’s certificate.

 

The complaint is denied. The bailiff says that he did visit three times and that he spoke with no-one on 27th February2013 but that he spoke with Mr Smith’s sister on 6th March 2013. There is accordingly, a dispute about when the earlier events occurred and about what happened. However, the recording of his sisters’ call to him and of the conversation with the bailiff at a later date are unlikely to be of assistance.

 

The bailiff agrees that he decided to levy on the vehicle, which he says was present on the street near to, but not outside, the house believing it to be Mr Smith’s. In fact it is said that the vehicle belonged to his sister. The bailiff had earlier seen it driven by her which enabled the link to be made. It is not a “random” vehicle nor a non- existent one. Given what the bailiff does not dispute the alleged content of the CCTV (and I have seen the stills) it takes the matter no further. The levy has since been removed on proof of the fact of the sister’s ownership.

 

On the evidence, there was not a “fictitious” levy as Mr Smith alleges (i.e. no vehicle at all) but rather erroneous (but not illegal or irregular) levy on a vehicle that the bailiff believed to belong to Mr Smith.

 

It is right to note that the bailiff does not refer to any checks being made with DVLA or HPI. For this he might at worst justly be admonished, but not deprived of his certificate. A hearing would in these circumstances not be proportionate within the meaning of rule 1.1 (1) of theCivil Procedure Rules. The fact that the vehicle existed and belonged to his sister (the same sister with whom that bailiff is said to have conversed at thehouse earlier) is nowhere stated in the complaint, which is in my judgment actively misleading in that respect. Nowhere does Mr Smith say that “there is such a vehicle but it is my sister’s” or words to that effect. It sits ill with the allegation of dishonesty on the part of the bailiff that Mr Smith chose to be economical with the full truth of the matter. I wonder if he gave the full and accurate account to the person who gave him legal advice. If not, it might explain why he was advised to complain and to rely upon the cited 19th century cases.

The bailiff’s employers (xxx) have removed the levy and, of course cancelled the levy fee. The bailiff admits a miscalculation which has resulted also in a refund of £52.50 to Mr Smith. The complainant has accordingly, had adequate satisfaction.

 

I am satisfied by the bailiff’s reply and explanation. Having regard to the provisions of rule 8(2) of the Distress for Rent Rules1988. I am not “unsatisfied as to the bailiff’s fitness to hold a certificate”. There is accordingly, no need for a hearing of this complaint. No further action is required.

 

If I had thought that the complaint required a hearing I would have required Mr Smith to disclose his recordings and film in advance of the hearing, not at the hearing, with a full and accurate transcript of the recordings and would have expected him and his sister to attend court to substantiate their allegations on oath or affirmation. There would have been no possibility of considering deprivation of livelihood without sworn/affirmed evidence.

 

If the complaint had not been determined until that stage, Mr Smith would have been at risk of an adverse costs order, possibly far in excess of the original debt.

 

Although the Form 4 procedure involves no issue fee, complainants are often unaware of the court’s power to order costs in the bailiff’s favour against the complainant if a complaint is not upheld after a full hearing. In my experience such costs generally exceed £1,000 (and in one recent case at Southampton County Court were £10,000). Determination of the complaint on paper where possible is in the complainant's interest, because there is no question of an adverse costs order on such disposal

 

His Honour Judge Butler

 

 

 

Designated Civil Judge for Cumbria and Lancashire

 

 

 

Dated 24th May 2013

 

The paragraph in red speak volumes..........and is consistent with the advice given here on cag...as I have said previously ..if you are going to quote authorities you MUST understand them, We can all buy a legal book and quote from it but, it doesn't make us lawyers.

 

As another recently commented.......19th century cases are not always considered to be 'in tune' with modern thinking and authorities.

 

The final paragraph leaves no doubt .......costs CAN be awarded in respect of failed form 4 complaints.

 

WD

[tomtubby]

I think this case relates to this thread, where they came to CAG, but now seem to be following advice on another forum. On CAG it was advised NOT to go down the Form 4 route or to withdraw if already done. According to the other forum, the person concerned is now issuing a court claim against the bailiffs.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?386206-Rossendales-unlawful-charges-and-sceptical-actions&highlight=fbnts

 

 

 

Having now read the link it would indeed seem that this Form 4 is in fact in relation to this poster.

 

As I have said before a "Form 4" complaint should ONLY be made where there is a very serious complaint concerning an individual bailiff and where the Judge needs to consider removing the bailiffs certificate. In this particular case, this should almost certainly NOT have been a Form 4 complaint.

 

Having now read the thread it would seem that the bailiff charged an initial visit fee of £2.450, a 2nd visit fee of £18.00 and a "levy fee" of £28.00. In total, fees of approx £70. The debtor complained to Rossendales about the "alleged" visits and "levy" upon her sister's car and Rossendales responded by REFUNDING approx £50. The bailiff fees in "dispute" were in the region of just £20 !!!!

 

Frankly, this is a Form 4 Complaint that should NOT have been made and the advise given on this forum to the poster at the time was CORRECT.

 

The above Form 4 Complaint has been decided by His Honor Judge Butler who is a highly experienced CIRCUIT JUDGE ( superior to a District Judge) . I am very concerned to read your post that the person making this complaint has now filed a N1 Claim Form. I would assume that the bailiff company would defend such a "claim" by simply providing a copy of His Honor Judge Butler's decision.

[tomtubby]

I think this case relates to this thread, where they came to CAG, but now seem to be following advice on another forum. On CAG it was advised NOT to go down the Form 4 route or to withdraw if already done. According to the other forum, the person concerned is now issuing a court claim against the bailiffs.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?386206-Rossendales-unlawful-charges-and-sceptical-actions&highlight=fbnts

 

Unclebulgaria.....

 

You mentioned in your above post that the poster is issuing a court claim against the bailiff. Would you mind sending me a PM with a link to where I can find details?

[tomtubby]

This recent Form 4 decision is clear and utter proof that courts are indeed making costs order in favor of the bailiff.

[tomtubby]

What is the best way now for a complainant against a bailiff to get redress other than a form 4 complaint

 

I am talking of excess fee, foot in the door, all unlawful but what offence need a bailiff now commit too justify a form 4 ???

 

Squaddie,

 

An excellent question. Firstly, the regulations are very clear with council tax in that a bailiff may only gain "peaceful entry" into a property.

 

Secondly, with council tax....the local authority are WHOLLY RESPONSIBLE for the levy and fees charged by their agents. Accordingly, a Formal Complaint should in the first instance be sent to the local authority.

[wonkeydonkey]

Unclebulgaria.....

 

You mentioned in your above post that the poster is issuing a court claim against the bailiff. Would you mind sending me a PM with a link to where I can find details?

 

N1 claim......Surely not?

[tomtubby]

His Honor Judge Butler made the following statement when deciding to reject the Form 4 Complaint:

 

The bailiff’s employers (xxx) have removed the levy and, of course cancelled the levy fee. The bailiff admits a miscalculation which has resulted also in a refund of £52.50 to Mr Smith. The complainant has accordingly, had adequate satisfaction.

 

Given the above statement I am at a loss to understand how ( and on what basis) a N1 Claim form can possibly be made.

[unclebulgaria67]

N1 claim......Surely not?

 

Yes there was a post on the other 'small' forum suggesting that an N1 claim was being issued, but the thread on that site has gone missing in the last few hours.

[wonkeydonkey]

Yes there was a post on the other 'small' forum suggesting that an N1 claim was being issued, but the thread on that site has gone missing in the last few hours.

 

Now there's a surprise!!! anything that backfires on there or doesn't sing praises get moved to 'the private members area',which you can only view if 'invited'?

 

WD

[Mark1960]

The judge said that if it had been proven then there would have been a case to justify cancelling the bailiffs licence.

 

I applaud "Mr Smith" or anyone else who is brave enough to take these people on-Assuming "Mr Smith" was telling the truth (&I've no reason to doubt it),he was prepared to take the bailiff on and try to get him removed.This would have spared others the misfortune of having to deal with a dishonest bailiff in the future.

 

Would I be right in thinking that there is no financial gain to be made from Form 4 complaints?

[wonkeydonkey]

I think the Judge was attempting to spare Mr Smith....he made it very clear the Form 4 should never have been brought and made veiled critism to the source of the advice he was given....such a shame the case was 'thin' from the outset but, I think this was made with a touch of principle rather than attempting to be vindictive....

 

All power to his elbow for standing on his principles but personally I would advocate Mr Smith counts his blessings to not having incurred costs and calls it a day before he does?

[tomtubby]

Yes there was a post on the other 'small' forum suggesting that an N1 claim was being issued, but the thread on that site has gone missing in the last few hours.

 

Since posting my request for a link as to where I could find details of the supposed "N1 Claim Form" I have received 8 PM's and was able to read the entire thread and copy it as well.

 

I have also checked again and it would seem that you are correct in that the entire THREAD HAS DISAPPEARED !!!!

 

How on earth can anyone run a public forum and then when adverse information is posted that the site do not like they REMOVE the entire thread from view of the public. Crikey this is awful.

[brassnecked]

Not good at all, on another note an advice forum that shares it's name with a breed of dog, has been replaced by an ad page.

[tomtubby]

Not good at all, on another note an advice forum that shares it's name with a breed of dog, has been replaced by an ad page.

 

 

I heard about this yesterday morning but when I checked on my computer there was NO PROBLEM at all. I have 6 computers in my office and use a laptop at home and when I checked on 4 of the office computers the forum was indeed replaced by an ad page and on my laptop the same thing is happening !!!

 

I will check shortly on my main office computer and post back.

[unclebulgaria67]

I heard about this yesterday morning but when I checked on my computer there was NO PROBLEM at all. I have 6 computers in my office and use a laptop at home and when I checked on 4 of the office computers the forum was indeed replaced by an ad page and on my laptop the same thing is happening !!!

 

I will check shortly on my main office computer and post back.

 

That site is currently down. Look like it has been subject to some virus attack or other problem, rather than it being closed down.

[tomtubby]

The judge said that if it had been proven then there would have been a case to justify cancelling the bailiffs licence.

 

I applaud "Mr Smith" or anyone else who is brave enough to take these people on-Assuming "Mr Smith" was telling the truth (&I've no reason to doubt it),he was prepared to take the bailiff on and try to get him removed.This would have spared others the misfortune of having to deal with a dishonest bailiff in the future.

 

Would I be right in thinking that there is no financial gain to be made from Form 4 complaints?

 

 

I am delighted to read the comments from the judge along the lines that if there had of been a fictitious levy and dishonest fees had of been charged that this could indeed give grounds to consider removing the bailiff certificate. Many people WRITING a letter of complaint to the council may well use this comment.

 

I do not "applaud " Mr "Smith" at all and I am surprised to read that you do. This Form 4 complaint is a classic example of a complaint that should NOT have been made and frankly, is of great benefit to the bailiff industry.

 

On the question of whether there is a "financial gain" to be made from Form 4 complaints you will need to read other forums to ascertain the answer.

To my knowledge there are at least 4 companies that encourage people to file Form 4 complaints and stating that "apparently" bailiff companies "settle" the complaint by agreeing to pay the complainant a sum of money to withdraw the complaint.

 

Some of these sites also "claim" that if a case goes to a hearing that the court generally adjourn the hearing briefly to allow the complainant and bailiff/company to go outside of the court for a short period to agree a settlement. So far there has not been one shred of evidence provided to show that there has been ANY such successes.