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

[tomtubby]

in my "spare time" I respond to queries here on the forum.

 

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 !!!

[redherring]

Looking at some of the dates on the case law listed above, most of that case law would be now redundant i would think through various court of appeal judgements

 

As stated, it is OK to cite case law to support any argument, but at least understand the case law which you are laying before a judge. It is the respondents job to know that aspect of that law being quoted, not the judge

Edited June 13, 2013 by redherring

[brassnecked]

Looking at some of the dates on the case law listed above, most of that case law would be now redundant i would think through various court of appeal judgements

 

As stated, it is OK to cite case law to support any argument, but at least understand the case law which you are laying before a judge. It is the respondents job to know that aspect of that law being quoted, not the judge

They should also pay attention to obiter dictum, as some cases are referred to for what the judge says obiter, i.e. "in passing" but it is crucial that what the case is about and how it applies and can be related as support to the submission in the current case argument is clearly understood before using it. Better still, leave these packs and sites well alone, they have the power to cause equal or even more misery for a desperate debtor than a rogue bailiff.

[Mark1960]

can you confirm if this was a Form 4 complaint or a claim in the county court please?

[tomtubby]

can you confirm if this was a Form 4 complaint or a claim in the county court please?

 

This was NOT a Form 4 Complaint.

[Mark1960]

# Sorry-just re-read your 1st post

[tomtubby]

I would like to make it CLEAR that I fully support anyone representing themselves in a small claims action in the County Court but it is vitally important that the person taking such action should do their own research and not rely upon indiscriminate use of the internet.

 

What is vitally important is to ensure that if you are going to rely upon case law obtained from "internet searches" in EITHER a Form 4 complaint OR a County Court claim that you do the following:

 

Obtain a full copy of the stated legal case.......

 

Read it carefully to ascertain whether the case is relevant to your claim.........

 

Check on legal sites such as Bailii to see whether the case has been superceeded by appeal........

 

most importantly......

UNDERSTAND the relevant case law so that you are able to answer questions about it in court.

[tomtubby]

One obvious example of appalling bad advice was to rely upon the case of:

 

Bernard Loynes v Beswicks Solicitors [2010]

 

This particular case involved a company called Shergroup Ltd and referred ONLY to the interpretation of the statutory fees under the High Court Enforcement Officers Regulations 2004 !!!

[lamma]

To quote so many 'authorities' is a sure sign of desperation and lack of understanding. How can the nature of the damage (injury) be that complex that it requires so many 'cases' ? How long would the trial take ? There are very often counter cases on record. Such a list would challenge even the most talented QC - who would not do this in any event. The simpler the claim the easier it is to make out. If case law must be quoted then you must stick to the well known references, but even then there are dangers. Do not merely walk away from a case based on such a list but run. If people want to research case law I suggest Halsbury's as the best starting point. Be aware that don't just have to quote a case, you have to show how it applies in your case.

[Mark1960]

If the wheel was clamped then the chances are that it was for a parking ticket.I wouldn't mind betting that this "small" company will never have £4000 in its bank account,rendering the court order useless & the bailiffs with the choice of spending more money in order to dissolve the company.

[wonkeydonkey]

I have for some time attempted to bring attention to the dangerous advice being given on the site in question. There have been many incidents of late whereby a mere suggestion the advice is ill founded resulting in paranoid suggestion the poster is only there to 'cause trouble' and come from other sites hell bent on causing 'trouble'. Admin becomes so defensive they are incredibly rude, they then remove the post or hide it from public view(to guests visiting but not wishing to join) and the poster of anything containing critisism or offering correct advice ..........well they are simply banned from the site.

 

P.S.

That the site offers a public forum does not necessarily mean a person has to enter into dialogue to obtain misinformation, misinformation can be gleaned by reading the threads and making note to what people see to be applicable to their circumstances.

 

That such information is in the public domain and written to suggest the advice stems to be coming from a so called ' legal proffessional' qualified to prepare the 'affidavits and other material required to present a case in court, is imho where the danger lies.

 

At least here on cag people get open opinions and there is no suggestion the advice given is 'gospel' and not to be questioned?

Edited June 13, 2013 by wonkeydonkey

[tomtubby]

To quote so many 'authorities' is a sure sign of desperation and lack of understanding.

How long would the trial take ?

Such a list would challenge even the most talented QC - who would not do this in any event.

The simpler the claim the easier it is to make out. If case law must be quoted then you must stick to the well known references, but even then there are dangers.

Do not merely walk away from a case based on such a list but run.

If people want to research case law I suggest Halsbury's as the best starting point. Be aware that don't just have to quote a case, you have to show how it applies in your case.

 

Lamma

 

You are absolutely correct. The worrying aspect of such websites is that they are preying on people who are by and large desperate for help and very often cannot even afford the bailiff charges. Instead of helping the people to "recover" money they are "assisting" bailiff companies and their solicitors to get even MORE money out of the debtor.

 

If anyone is tempted to take such "advice" they should firstly ask the website owners to provide EVIDENCE by way of court judgments ( with of course personal information removed ) that their "advice" works.

 

Anyone can "claim" that "their" "theories" work........but only a few can provide EVIDENCE.

[tomtubby]

A further point to consider is that there is of course a risk where bailiffs do not adequately document levies....which seems very common- but there is a huge difference between the "necessity" for the forms in respect of the fees....and the extreme difficulty in "proving" an "intention" not to abandon.....

[Peterbard]

I noticed that the list of "case law" had been copied to several other forums, and members are being advised to rely on them, it is a problem.

[brassnecked]

I noticed that the list of "case law" had been copied to several other forums, and members are being advised to rely on them, it is a problem.

Especially as some of those cases are particular to their own circumstances, and it may be difficult even for a legal professional to correctly use them in support of the defendan'ts case.

[tomtubby]

In order to help other people who may be tempted to rely upon such "case laws" I will endeavour over the next few days to provide as much detail as possible about each one.

[Peterbard]

In order to help other people who may be tempted to rely upon such "case laws" I will endeavour over the next few days to provide as much detail as possible about each one.

 

You are taking on some task there. I have been trying to find some of that stuff for six months on and off, you trace to various forums and they end up back where you started on that site.

 

It would be nice to have a proper authoritative reference.

[danmcr]

You are taking on some task there. I have been trying to find some of that stuff for six months on and off, you trace to various forums and they end up back where you started on that site.

 

It would be nice to have a proper authoritative reference.

 

She is indeed, It just goes to show the dedication of the members of this site who help vulnerable people 24/7

[fletch70]

Because i am nose i like to read drivel such as that given by ceylon and co. However i have no idea what you are on about.

[WendyHorse]

I noticed that the list of "case law" had been copied to several other forums, and members are being advised to rely on them, it is a problem.

 

Really? That is very worrying. The site in question is very dangerous and, IMO, should be closed down. I have worked extensively to achieve this and disprove the arguments of the site admin to no avail. Why? Because, IMO, all site admin is really interested in is lining their own pockets, not helping vulnerable posters.

 

Whichever other sites are promoting this should be made public so we can work to do something about those as well.

[HCEOs]

This is a difficult one.

 

The very nature of forums means that often advice is given by people that are not qualified to do so. Therefore CAG has been and to a certain extent is still guilty of this.

 

I note that bankfodder himself is suggesting that Caggers issue claims against enforcement companies based on trespass and breach of confidence and the sticky thread still sits at the top of the entry page. This, in my opinion, is not any different to the matter quoted in this thread and could well end up with somebody looking for advice getting stung with a heap of costs.

 

The other site you refer to, as we all know, is run by somebody who was lauded on here for their assistance to Caggers for a long time. I know that he cost several Caggers money in cases that related to my company, in one case just over £2000.

 

In recent times CAG's core group of advice givers certainly have improved their knowledge on enforcement matters but I still see errors made which I try to rectify. Some of the errors are due to the differences in Bailiff and HCEO work so it is understandable (eh dx100uk )

 

As an open group you are never going to prevent misinformation given but as a whole most of the advice given seems to be good and can only help those that need it.

 

We all keep learning, no matter which side of the fence we sit.

[Mark1960]

This is a difficult one.

 

The very nature of forums means that often advice is given by people that are not qualified to do so. Therefore CAG has been and to a certain extent is still guilty of this.

 

I note that bankfodder himself is suggesting that Caggers issue claims against enforcement companies based on trespass and breach of confidence and the sticky thread still sits at the top of the entry page. This, in my opinion, is not any different to the matter quoted in this thread and could well end up with somebody looking for advice getting stung with a heap of costs.

 

The other site you refer to, as we all know, is run by somebody who was lauded on here for their assistance to Caggers for a long time. I know that he cost several Caggers money in cases that related to my company, in one case just over £2000.

 

In recent times CAG's core group of advice givers certainly have improved their knowledge on enforcement matters but I still see errors made which I try to rectify. Some of the errors are due to the differences in Bailiff and HCEO work so it is understandable (eh dx100uk )

 

As an open group you are never going to prevent misinformation given but as a whole most of the advice given seems to be good and can only help those that need it.

 

We all keep learning, no matter which side of the fence we sit.

 

On the subject of abandonment,I would be interested to read your thoughts on levying on a vehicle in a debtors absence & how you consider impounding to have taken place in these circumstances.I read with interest the Bailiff Pocket Handbook for JBW in which they state "taking walking possession is always risky and should never be done"

[Peterbard]

With all due respect, you would say this wouldn't you.

 

Your perspective is I suspect approaching the other end of the spectrum and as usual the truth probably lies somewhere in between.

 

I do not think that there is any reason why a Bailiff should be immune from the usual laws regarding trespass etc. and I think it is perfectly legitimate for a person to initiate proceedings against anyone who causes them damage.

 

This forum provides a service for people who have had the misfortune to find themselves being pursued by bailiffs, if there are people who have been in that situation before and have gained legal precedent that can be used to support these actions I see no reason why we should be aware of them, but of course they must be relevant and understood by the litigant.

Edited June 14, 2013 by Dodgeball

[tomtubby]

 

This forum provides a service for people who have had the misfortune to find themselves being pursued by bailiffs, if there are people who have been in that situation before and have gained legal precedent that can be used to support these actions I see no reason why we should be aware of them, but of course they must be relevant and understood by the litigant.

.

.

 

Dodgeball.

 

You have hit the "nail on the head" here:

 

If you are considering taking legal action...then you must at the very least ENSURE that you have a copy of the legal case:

 

CHECK that the case law is RELEVANT to your claim

 

and most importantly.....

 

That you UNDERSTAND the case law.........

Edited June 15, 2013 by citizenB
restored quote surround

[Mark1960]

An interesting case regarding abandonment is Lloyds & Scottish finance ltd v Modern cars & Caravans (Kingston) Ltd [1996] 1 qb 764.This case is quoted in several John Kruse books and also on DWB.

 

As I interpret the case,it revolved around a caravan in which the "debtor" refused to sign the WP.The Sheriff returned 9 times in the next month to check the caravan was still there.This is more than twice a week and it was deemed that possession was maintained.There seems to be no test on whether an unsigned levy can be left for a period of a month for example.John Kruse states that if an unsigned WP is left,it soon becomes abandoned but I haven't been able to discover anything in writing to confirm this.The Tribunals Courts and Enforcement Act 2007 clarifies the situation for us but TT has advised that parts of this has not come into play yet (I wonder why)

 

Bailiffs will (rather ironicly) rely on Evans v South Ribble Borough Council (1992) in which the judge stated:

 

"...nothing in it is,in my judgement,inconsistent with the impounding of goods by,for instance,close possession without an agreement or perhaps without any continuing act of possession at all"

*Edit:The reference to the TC&E Act is a little misleading-This will only help when determining impounding-A signed WP will render this avenue not applicable.

Edited June 14, 2013 by Mark1960