WARNING.....Legal claim for "levy abandonment". Case LOST....claimant ordered to pay £4,000 to bailiff company !!!

[tomtubby]

 

I have seen at first hand the serious problems that debtors face when making Form 4 Complaints and in particular;

when being "encouraged" to file Form 4 Complaints after viewing certain internet sites that sell "Form 4 packs" or offer to provide "affidavits" for the debtor.

 

Despite the "advice" being almost identical in each case and almost always, referring to the same "legal cases" ( many of which are "unreported" or "19th century" cases of little relevance) vulnerable and unsuspecting debtors may even believe that the people running such websites are qualified to provide "legal advice".

 

Significantly, such websites fail to disclose proof of any "successful" Form 4 complaints !!!

 

Last week I provided details on the forum of a recent decision from a senior Judge in relation to a Form 4 complaint and where the Judge was very critical of the "legal advice" relied upon by the complainant and the dangers of relying upon information gathered from websites.

 

Crucially, the Judge stated that if he had listed the case for a hearing he would have required the complainant to provide the court with copies of the legal cases referred to in the Form 4 complaint and that he would require the complainant or his "legal adviser" to explain the relevance of the legal cases to the court !!

 

Of very serious concern is that today, I was advised of yet ANOTHER case ( this time a small company) who had visited a similar internet "forum" after one of their cars had been clamped by a bailiff and had been persuaded by the "legal advice" given on the site to make a claim against a bailiff company for "levy abandonment" and " excessive fees" and citing the following "legal authorities"

 

 

Black v Standage & Price [1831]

 

Flanagan v John Crilley & Sons [1987]

 

Lumsden v Burnett [1898]

 

Anthony Culligan v Jason Simkin

 

Bernard Loynes v Beswicks Solicitors [2010]

 

Haydon v Barton [1849]

 

Baldry v Caine [1906]

 

Edwards v Morey [1905]

 

Scott v Denton [1906]

 

Warden v Richardson [1888]

 

Mutter v Speering [1905]

 

Smith v Thomas & Wilberforce [1899]

 

Black v Moore & Thompson [1908]

 

Bannister v Hyde [1860]

 

Dunscombe v Hicks [1898]

 

Black v Standage & Price [1831]

 

 

Predictably the bailiff company instructed solicitors . The Judge was very critical of the claimant for relying upon such legal cases which he stated were irrelevant and he ordered the claimant to pay nearly £4,000 in costs to the BAILIFF COMPANY.

 

Unfortunately I cannot give the names of the claimant or the bailiff company at this present time as the claimant is seeking legal advice.

 

Of significance was the fact that when questioned about the" legal cases" the claimants could not explain to the court the relevance of the "legal authorities" or even copies of the cases !!!

 

 

As you will see from above one of the case "relied" upon by the claimant was that of: Bannister v Hyde 1860.

 

As I had mentioned yesterday I will be endeavoring to try to locate if possible copies of legal cases referred to above.

 

In this respect today I have received a copy of the Judgment in relation to Bannister V Hyde and from reading the judgment I have very serious concerns indeed:

 

If members of the public enter the words Bannister v Hyde into a Google search they will see that the entire Google page will show that two particular websites feature this particular case very heavily indeed.

 

Visitors to the websites will be able to read the many references on those sites to "Bannister v Hyde" in relation to "abandonment" and where the sites quotes the following:

 

 

 

The Judge in the case of Bannister v Hyde [1860] 2 E&E 627 defined levy abandonment - "If the bailiff levies on goods then leaves the premises without a signed walking-possession agreement is evidence the levy has been abandoned"

 

 

 

 

So far I have read the Judgment TWICE and I cannot see that it says anything of the sort !!!!

 

I will post more details later this evening ......

Edited June 14, 2013 by tomtubby

[wonkeydonkey]

you won't find it TT because it isn't there......the Judgement has been subjected to misinterpretation!!!

[danmcr]

the Judgement has been subjected to misinterpretation!!!

 

As has most of the other tosh quoted on that website & forum has!!!

[tomtubby]

BANNISTER v HYDE. Monday February 13th 1860

 

In brief:

 

The case is actually referred to as: Bannister v Hyde and Collins and below I have accurately copied from the Judgment. Given that the case is over 150 years old you will need to excuse the way in which it is written !!!

 

 

 

"The man in possession of goods distrained for rent, having quitted the house for the purpose of refreshment, found on his return, the door purposely locked against him by the tenant and broke it open for the purposes of re-entering.

 

HELD that: there being no evidence of an abandonment of the distress, the man in possession was justified in so re-entering"

 

 

 

PS: Given the way in which this Judgment "appears" to be seriously "misrepresented" on many websites I will get full details prepared over the next few days.

[danmcr]

BANNISTER v HYDE. Monday February 13th 1860

 

In brief:

 

The case is actually referred to as: Bannister v Hyde and Collins and below I have accurately copied from the Judgment. Given that the case is over 150 years old you will need to excuse the way in which it is written !!!

 

 

"The man in possession of goods distrained for rent, having quitted the house for the purpose of refreshment, found on his return, the door purposely locked against him by the tenant and broke it open for the purposes of re-entering.

 

HELD that: there being no evidence of an abandonment of the distress, the man in possession was justified in so re-entering"

 

PS: Given the way in which this Judgment "appears" to be seriously "misrepresented" on many websites I will get full details prepared over the next few days.

 

I am aware of a case (this may be the one) where the Sheriff left for some beers he returned and the property was secured, he returned some time later and broke in and it was held he acted lawfully. I will try and find out if this is the case or not and if not which one it is.

[Peterbard]

Where did you find the judgment,(if you don;t mind me asking) I have been searching for it for some time,

[WendyHorse]

I agree totally with TT here over one thing in particular - judgments. It is oh so easy to pick out odd sentences or paragraphs to back up what we would like them to say. When read in full context, the judgment actually says something completely different.

 

I think DWB is particularly guilty of this, and thus misleads clients. The example cited there recently of the MOJ vs JBW highlights this issue, and it is essential one reads the judgment in full to understand just how far off the mark the advice given actually is.

 

I'm glad to see this being discussed here. As someone very active in bailiff issues I rarely post on here, but this is one discussion I cannot stay out of. Overstating cases, or misrepresenting them is a sure way to incur further costs for yourself.

[ploddertom]

I am aware of a case (this may be the one) where the Sheriff left for some beers he returned and the property was secured, he returned some time later and broke in and it was held he acted lawfully. I will try and find out if this is the case or not and if not which one it is.

 

Coffin v Dyke 1884 possibly, where Coffin was left as a possession man and went to the pub for refreshment. On his return he was assaulted by Dyke to prevent re-entry. It was found that Coffin was in execution & Dyke could be convicted.

[Mark1960]

Both cases involved the "possession man" leaving for a beer-Maybe it wasn't such a bad job in those days after all?

 

It is interesting that in both cases,impounding had taken place rendering the levy lawful-I still see no evidence to support a lawful levy if a vehicle has been levied in the debtors absence-There must be 1000's of these cases up & down the country.

[danmcr]

Coffin v Dyke 1884 possibly, where Coffin was left as a possession man and went to the pub for refreshment. On his return he was assaulted by Dyke to prevent re-entry. It was found that Coffin was in execution & Dyke could be convicted.

 

That could be the one. Thank you.

[tomtubby]

Dodgeball,

 

In answer to your question as to where I had found the Judgment.....I am fortunate in that my brother in law is a solicitor !!!

 

I am going away for the weekend but after that.... I will be making details available on the forum and if anyone needs to full copy then pleaee send me a message.

[brassnecked]

Coffin v Dyke raises a laugh at law school lectures due to the names of the protagonists and the fact that the enforcer left the premises he was levying distress on in the middle of it to go for a beer.

[Peterbard]

Dodgeball,

 

In answer to your question as to where I had found the Judgment.....I am fortunate in that my brother in law is a solicitor !!!

 

I am going away for the weekend but after that.... I will be making details available on the forum and if anyone needs to full copy then pleaee send me a message.

 

Ah many thanks I will. i used to have access to courtserve but no longer sadly, but some of this is ancient stuff.

 

There are other issues raised in other forums that really should be resolved also IMO, not lest the one regarding fess imposed by Magistrates court bailiffs collecting fines.

 

People are being advised not to pay these, as they are said to be "unenforceable", again case law is being quoted which does not seem to say what it is claimed.

 

Undoubtedly there is an issue here but it would be good to see a balanced practical evaluation of the situation

[tomtubby]

I noticed on another website that queries are being raised regarding the case of Bannister v Hyde.

 

As I have mentioned on this thread the case is very old indeed ( 150 years) and it is not that simple to read.

 

I will post a copy later today in any event for those of you who are interested.

 

Approx 3 months ago I wrote an article for a trade magazine regarding this particular legal case and I received so many enquiries about it and requests for copies of the judgment. For "easy reading" I accurately re-typed a copy of Bannister v Collins into a PDF.

 

A copy is attached.

 

Any questions, please feel free to ask.

 

 

[ATTACH]46972[/ATTACH]

Edited October 17, 2013 by tomtubby

[tomtubby]

If anyone is interested in reading the original of Bannister v Hyde a copy is here.

 

Personally, most people prefer the pdf in post number 62.

 

 

 

[ATTACH]46973[/ATTACH]

[Peterbard]

My understanding of forced re-entry is that the bailiff must have the premises locked against him, in other words they cannot force entry if the debtor is just out without any warning, but they must be able to show that the debtor was intentionally denying access to the goods which had been seized.

[Peterbard]

I have been trying to find the judgment re forced re-entry, I know it was a court of appeal judgment in 1998 but i court seem to lay my hands on it.

[mikeymack2002]

was hoping to send a PM to TT but cant?

[wonkeydonkey]

was hoping to send a PM to TT but cant?

 

TT gets that many PM's she finds it hard to keep on top of her inbox and quite likely it will be full again...try again in the morning.

[ploddertom]

I have been trying to find the judgment re forced re-entry, I know it was a court of appeal judgment in 1998 but i court seem to lay my hands on it.

 

Khazanchi v Faircharm Investments possibly

[tomtubby]

For some reason, my inbox was full up last night !!

 

The level of support that I have received regarding this subject has been simply overwhelming. Thank you to everyone.

 

I would like to thank Ploddertom for his help with getting copes of the judgment online.

 

Unlike so many of you I am not too good on the computer. So early yesterday I sent a message to Ploddertom him to ask if he would be so kind as to upload this judgment onto the site for me. He was not available until mid afternoon and contacted me to offer to show me how to upload the judgment for myself ( I now realise that it is not so difficult after all) Within minutes of uploading the original judgment ( and my separate PDF word version ) I left the office for a hospital appointment. I was oblivious to extraordinary events that unfolded over the next few hours !!! It was those events that appear to have been responsible for my inbox being full up ( I had only emptied it the night before).

 

I will explain more about this later this morning but I would like to make clear beforehand that I will only post about this once and that should be the end of the matter.

 

I do not want to detract from the important subject that this thread is all about.

[HCEOs]

One thing that this post highlights is the importance of seeking proper legal advice before embarking on suing somebody.

 

This in turn leads me to highlight Bankfodder's own stickys regarding suing for Trespass and Breach of Confidence. In my opinion they could easily lead to similar costs being awarded against a Cagger.

[Peterbard]

Khazanchi v Faircharm Investments possibly

 

Yes thank you

 

http://www.bailii.org/ew/cases/EWCA/Civ/1998/471.html

[mikeymack2002]

TT gets that many PM's she finds it hard to keep on top of her inbox and quite likely it will be full again...try again in the morning.

 

Thanks for the info, I know TT is very busy but she got my message anyways thanks for the assist

 

MM

[tomtubby]

For some reason, my inbox was full up last night !!

 

The level of support that I have received regarding this subject has been simply overwhelming. Thank you to everyone.

 

I was oblivious to extraordinary events that unfolded over the next few hours !!! It was those events that appear to have been responsible for my inbox being full up ( I had only emptied it the night before).

 

I will explain more about this later this morning but I would like to make clear beforehand that I will only post about this once and that should be the end of the matter.

 

I do not want to detract from the important subject that this thread is all about.

 

.

.

.

I had initially started this thread after being contacted by a debtor who had visited a particular website and; based on the information on that website had been encouraged to issue legal proceedings. To support her "claim" she had relied upon various "ancient" legal cases detailed on that website. The main focus of her claim had been on the matter of "abandonment" and in this particular respect, she had relied upon the legal case of "Bannister v Hyde (1860). She did not provide a copy of this judgment with her claim and merely trusted the website in question believing that the judgment had made a finding of "abandonment". She was not to know that the opposite was true!!

 

Sadly, the debtor lost her court claim ( which was not a Form 4 complaint) and she was ordered to pay the bailiff companies costs of approx £4,000.

 

The reason for putting this thread together was to stress to debtors considering either a legal claim or a Form 4 complaint of the importance of making sure that they either take proper legal advice or alternatively; at the very least, to make sure that they obtain a copy of the judgment and read it for themselves to ascertain whether it applies to their particular complaint or claim.

 

In the case of levy "abandonment" ( which is notoriously difficult to prove) if the words Bannister v Hyde are put into Google viewers will find themselves directed to one or two websites (not this one). One such website ( which I will not be naming) frequently encourage debtors to file a Form 4 complaint or issue legal proceedings on the basis of Bannister v Hyde. No further details of the Judgment are given to debtors.

 

Two days ago it came as a dreadful shock to read on that particular website that despite encouraging endless debtors to rely upon this particular case in court proceedings or in Form 4 complaints, that the website owner had never himself even read the judgment and instead; had merely read an article about it that "apparently" had been written by a solicitor 50 years ago !!!!

 

Unfortunately, before making this confession the website owner made the most awful comments about me personally and this particular forum. I will not be responding given that the matter has now been referred to my solicitor and other regulatory bodies.

 

In the following thread I will be providing a shortened copy of the exchange that led to the site owner confirming that he had never read the Judgment.

 

I am only posting this as a warning to debtors of the danger of taking "legal advice" from the internet.

 

Sadly, this information is too late for the poor lady who has had to pay £4,000 in legal costs !!!

Edited October 19, 2013 by tomtubby