Protection of Freedoms Act 2012 EXCLUDES bailiffs !!!!

[tomtubby]

Sadly, this is yet another thread concerning the dangers of taking "legal advice" from websites without first checking whether the "advice" is correct.

 

The brief background is that the gentleman's car was clamped on his driveway by bailiffs who demanded £477.13. A Notice to Seizure was posted through the door advising the debtor that the bailiff would return at 8.a.m for payment. The debtor visited various websites and read upon one of them the following "advice":

 

"If the vehicle is parked on private land, the clamper has committed a criminal offence"

 

"Section 54 of the Protection of Freedoms Act 2012 and the police must arrest the clamper. This legislation is nothing to do with "private car parks".

 

"Time to get out the bolt cutters and report the clamper to the police"

 

Unfortunately, the gentleman took this "advice". He did not use "bolt cutters" but he did manage to remove the clamp. He took pictures of the clamp on his car as "evidence".

 

The bailiff returned to the car earlier than 8.30 and immediately called the police. The debtor had printed of a copy of the "advice" that he had received from the website and asked for the police to ARREST the bailiff. The police refused and informed him that he needed to check his "legal advice".

 

Whilst the argument with the police was going on...the bailiff had called a "removal contractor" and within 20 minutes, his car was loaded onto a low loader. As the removal vehicle had been called the bailiff added a further fee of £175 to the debt.

 

The gentleman offered to pay by CREDIT CARD but this was rejected by the bailiff on the basis that many internet "advice" sites are encouraging debtors to pay by credit card and to then apply for a "charge-back" against the card provider. The bailiff allowed him an extra 45 mins to make payment by alternative means.

 

The debtor could not pay and his car was removed to the vehicle pound and it was not until 5 days later that he was able to get the car released after paying over £840 in cash.

 

The debtor again relied upon the "advice" on various websites and wrote a letter "before action" to the local authority seeking a substantial amount of money.

 

He has received a response from their legal department and contacted me this morning to ask me whether the information from the local authority is correct.

 

 

YES IT IS !!!!

 

Protection of Freedoms Act 2012.

 

The Act received Royal Assent on 1st May 2012 and came into force on 1st October 2012 and this legislation is directed at the proprietors of private car parks.

 

Below you will see a link to a Fact Sheet from the Home Office and Department for Transport

 

In particular, you will need to read the paragraph under the heading of Lawful Authority which states as follows:

 

 

The term “lawful authority” means where specific legislation or express powers are in force, which allow for vehicles to be legally immobilised or removed. Examples of lawful authority include where statutory powers exist such as Road Traffic Regulations which allow local authorities or the police to clamp or tow vehicles on public roads"

"Certificated bailiffs retain their powers to immobilise or remove vehicles"

"Certain statutory authorities also retain the ability to clamp and tow, such as the Driver and Vehicle Licensing Agency (DVLA) and Vehicle and Operator Services Agency (VOSA), who will continue to clamp or tow vehicles which are un-roadworthy or have not had their vehicle tax paid"

 

 

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/98406/fact-sheet-part3.pdf

 

[electricsilver]

So, just to be 100% clear on this.

Does that mean a bailiff can enter onto my property to seize a vehicle?

Putting the legal aspect of the vehicle to one side.

If I refuse entry onto my driveway, can they still enter? Can I resist?

Is there a difference between say, a council enforced debt and a payday debt?

[sequenci]

Just a quick question TT - When *can* certificated bailiffs legally clamp a vehicle in the first place? I know Johm Kruse argues quite keenly that clamping can only be used in very few situations - e.g. Magistrates' Court Fines, Rent Arrears and CCJs (once permission obtained from the court). Thanks!

 

Seq.

[tomtubby]

So, just to be 100% clear on this.

 

Does that mean a bailiff can enter onto my property to seize a vehicle?

 

Putting the legal aspect of the vehicle to one side. If I refuse entry onto my driveway, can they still enter? Can I resist?

 

Is there a difference between say, a council enforced debt and a payday debt?[/QUOTE]

 

 

 

 

A bailiff has a "legal authority" to come to your door. Bailiffs will ignore any notices "removing their right" .

 

There is indeed a difference between a local authority debt ( ie: Liability Order or Parking Charge Notice) and a "Payday" loan. The LA will have the legal authority of the court to enforce the debt......."Payday" loan companies have NO SUCH LEGAL AUTHORITY.

Edited June 19, 2013 by tomtubby

[tomtubby]

Just a quick question TT - When *can* certificated bailiffs legally clamp a vehicle in the first place? I know John Kruse argues quite keenly that clamping can only be used in very few situations - e.g. Magistrates' Court Fines, Rent Arrears and CCJs (once permission obtained from the court). Thanks!

 

Seq.

 

.

 

The whole matter of "wheel clamps" has been a complete nightmare for quite a few years and I suspect that given the number of times they are used by bailiffs it will be a matter of either Judicial Review or a ruling from the European Courts to decide whether the practice is "lawful" or not.

[sequenci]

Thanks S

[tomtubby]

PS: Not wishing to go "off topic" but when this dreadful "Protection of Freedoms Bill 2012 came into force I was certain that "excessive clamping" would quickly be overtaken by "excessive ticketing" and I am right on this.

 

The amount of "tickets" issued by private parking company since this Bill became law is obscene....

 

Rant over....

[sequenci]

Oh, I know.

 

What we need is for a test case. For sure I totally get that the statute allows the owner to be chased BUT I'm absolutely convinced a reasonable judge will still expect the claimant to prove that there was offer & acceptance + the desire for both parties to enter into legal relations and all that common law contract stuff.

[tomtubby]

There are "writs" being issued like confetti by these private parking company.

 

As I understand it, many judgments have been awarded but so far....each one has been obtained by DEFAULT.

 

It is so worrying the amount of people who fail to defend this stupid claims.

 

My own sister recently received a "draft" claim form and so far, the private parking company are REFUSING to provide a copy of the "Agreement" with the land owner.

 

They also "claim" to have not received a copy of her appeal. This was despite the private parking company signing for the letter of appeal that was sent by recorded delivery !!! A copy was also sent by email and she received a "read receipt".

[Peterbard]

I inquired about the clamping situation a while ago in relation to enforcement of a liability order, I was informed that it came under the heading of impounding goods, and no extra permission was needed. Basically because there is nothing that says bailiffs cannot take possession in this fashion.

[brassnecked]

Oh, I know.

 

What we need is for a test case. For sure I totally get that the statute allows the owner to be chased BUT I'm absolutely convinced a reasonable judge will still expect the claimant to prove that there was offer & acceptance + the desire for both parties to enter into legal relations and all that common law contract stuff.

Most of these would fail on various aspects of contract law.

[Peterbard]

I understand that there are a number of grounds for challenging private parking tickets, one as you mention is the formation of an enforceable contract, also some have challenged on the grounds that the contract is between the land owner and the person driving the car not some third party who runs a business collecting money on his own behalf.

 

It may seem like a trivial point if the agency is authorized by the owner, but it is again about the formation of the contract, who is the contract between ?

[brassnecked]

I understand that there are a number of grounds for challenging private parking tickets, one as you mention is the formation of an enforceable contract, also some have challenged on the grounds that the contract is between the land owner and the person driving the car not some third party who runs a business collecting money on his own behalf.

 

It may seem like a trivial point if the agency is authorized by the owner, but it is again about the formation of the contract, who is the contract between ?

 

The parking company shark claims usually on a noticeboard with small and illegible text that by parking the driver binds themselves, and the registered keeper and their dog into the contract, . whether this is reasonable and enforceable is up to the court. What is certain is that the £80, Parking charge notice/Invoice, usually can be construed as a civil penalty, which is of itself unlawful, and the case hinges on any consequential loss to the landowner as a result of the overstay, or non payment of a parking fee.

 

As in:

 

Free to park customer overstays by 10 minutes or 10 hours, consequential loss = zero, so no grounds to sue, £80 invoice is an unenforceable civil fine.

 

£2 per hour and a 15 minute overstay, and the loss is 25 pence, again not a realistic claim as it is too trifling and again the penalty charge is excessive.

[Peterbard]

HI

It depends on how they pursue the "debt".

 

If they are saying that the driver contracted to pay a fee and didn't , then they could claim repudiatry breach of contract , which would mean that they could claim whatever the fee stated in the contract, penalty would not come into it.

 

If they are suing for common law trespass then it would.

 

In the first t case the defense would be the lack of formation of contract as stated, in the second it would be common law remedies for the tort.

[lamma]

There is a fine argument to be made when it is a certificated bailiff enforcing CPE. In which case the certificated bailiff although being certificated is only acting in the capacity of a private bailiff. This is a crucial difference. However well the case is argued, and I believe that it is a good argument, I cannot see the courts allowing it. Revenue goals being what they are. Cutting of the clamp was asking for trouble. Which website offered this gem ?

[wonkeydonkey]

There is a fine argument to be made when it is a certificated bailiff enforcing CPE. In which case the certificated bailiff although being certificated is only acting in the capacity of a private bailiff. This is a crucial difference. However well the case is argued, and I believe that it is a good argument, I cannot see the courts allowing it. Revenue goals being what they are. Cutting of the clamp was asking for trouble. Which website offered this gem ?

I read this on the small site that has been giving so much bad advice of late but guess what?...the post has been pulled.

[Old Cogger]

what site?

[wonkeydonkey]

do you really need to ask?

[sequenci]

Most of these would fail on various aspects of contract law.

 

That's exactly my point!

[sequenci]

I inquired about the clamping situation a while ago in relation to enforcement of a liability order, I was informed that it came under the heading of impounding goods, and no extra permission was needed. Basically because there is nothing that says bailiffs cannot take possession in this fashion.

 

But conversely there is nothing to say that they can clamp - unlike for the processes I mentioned earlier - where there is specific statutory legislation granting it. Where we have heard of clients in the day job being clamped by certificated bailiffs chasing both council tax arrears and PCNs we've had the bailiff back down quite quickly once challenged. It's certainly a grey area, that's for sure!

[Peterbard]

But conversely there is nothing to say that they can clamp - unlike for the processes I mentioned earlier - where there is specific statutory legislation granting it. Where we have heard of clients in the day job being clamped by certificated bailiffs chasing both council tax arrears and PCNs we've had the bailiff back down quite quickly once challenged. It's certainly a grey area, that's for sure!

 

Yes it is indeed, legislation usually prohibits action, the person is free to do as he pleases except XYZ. Bailiff law lies amongst an unusual category in civil legislature in that it enables action, it says that the agent can seize someones goods.

 

Having made the bold statement it then has to limit its impact by listing things it cannot take(exempt goods).

The point I am clumsily trying to make is, there would have to be mention within an instrument limiting the power to impound goods(ie to clamp) otherwise the act, when it says the bailiff can, then he just can. One of the reasons why the law is outdated and contrary to undeniable rights to security and to the peaceful enjoyment of their possessions. IMO

 

The problem is the distress for rent rules and all like legislation, it was a mistake way back when, and the fact that it still not only is it alive and well. but fueling a multi million pound industry, is to my mind beyond belief.

Edited June 20, 2013 by Dodgeball

[sequenci]

Oh the law is outdated for sure. It's interesting how many differing views there are. I was schooled by John Kruse - he, too, follows the line that vehicles cannot be clamped - unless for the aforementioned. What we could really do is have some brand new legislation - like that's going to happen!

 

Whilst we're at it, what are your views on Bailiffs, misrepresentation of fees and the Fraud Act 2006? Section 2 springs to mind:

 

2Fraud by false representation

 

(1)A person is in breach of this section if he—

(a)dishonestly makes a false representation, and

(b)intends, by making the representation—

(i)to make a gain for himself or another, or

(ii)to cause loss to another or to expose another to a risk of loss.

(2)A representation is false if—

(a)it is untrue or misleading, and

(b)the person making it knows that it is, or might be, untrue or misleading.

(3)“Representation” means any representation as to fact or law, including a representation as to the state of mind of—

(a)the person making the representation, or

(b)any other person.

(4)A representation may be express or implied.

(5)For the purposes of this section a representation may be regarded as made if it (or anything implying it) is submitted in any form to any system or device designed to receive, convey or respond to communications (with or without human intervention).

 

Sure a bailiff is committing fraud when they lie about their fees etc.?

[Peterbard]

Oh the law is outdated for sure. It's interesting how many differing views there are. I was schooled by John Kruse - he, too, follows the line that vehicles cannot be clamped - unless for the aforementioned. What we could really do is have some brand new legislation - like that's going to happen!

 

Whilst we're at it, what are your views on Bailiffs, misrepresentation of fees and the Fraud Act 2006? Section 2 springs to mind:

 

2Fraud by false representation

 

(1)A person is in breach of this section if he—

(a)dishonestly makes a false representation, and

(b)intends, by making the representation—

(i)to make a gain for himself or another, or

(ii)to cause loss to another or to expose another to a risk of loss.

(2)A representation is false if—

(a)it is untrue or misleading, and

(b)the person making it knows that it is, or might be, untrue or misleading.

(3)“Representation” means any representation as to fact or law, including a representation as to the state of mind of—

(a)the person making the representation, or

(b)any other person.

(4)A representation may be express or implied.

(5)For the purposes of this section a representation may be regarded as made if it (or anything implying it) is submitted in any form to any system or device designed to receive, convey or respond to communications (with or without human intervention).

 

Sure a bailiff is committing fraud when they lie about their fees etc.?

 

Whilst i am fortunate to have the ear of his ex partner Phil Evans, who has stated that he believes no addition permission is needed for a bailiff to clamp a vehicle, just a valid order or warrant. The fact seem to support this situation as did the case at the beginning of this thread where no separate warrant was required to enable the clamping I believe.

[Peterbard]

Oh the law is outdated for sure. It's interesting how many differing views there are. I was schooled by John Kruse - he, too, follows the line that vehicles cannot be clamped - unless for the aforementioned. What we could really do is have some brand new legislation - like that's going to happen!

 

Whilst we're at it, what are your views on Bailiffs, misrepresentation of fees and the Fraud Act 2006? Section 2 springs to mind:

 

2Fraud by false representation

 

(1)A person is in breach of this section if he—

(a)dishonestly makes a false representation, and

(b)intends, by making the representation—

(i)to make a gain for himself or another, or

(ii)to cause loss to another or to expose another to a risk of loss.

(2)A representation is false if—

(a)it is untrue or misleading, and

(b)the person making it knows that it is, or might be, untrue or misleading.

(3)“Representation” means any representation as to fact or law, including a representation as to the state of mind of—

(a)the person making the representation, or

(b)any other person.

(4)A representation may be express or implied.

(5)For the purposes of this section a representation may be regarded as made if it (or anything implying it) is submitted in any form to any system or device designed to receive, convey or respond to communications (with or without human intervention).

 

Sure a bailiff is committing fraud when they lie about their fees etc.?

 

This is criminal law, any allegation of dishonesty should be reported to the police, I am sure that bailiffs are guilty of many of these acts during the course of their business, unfortunately the level of proof required by the CPS is such that the police are very unlikely to investigate unless it is a severe and provable criminal act. IMO

[brassnecked]

The bailiff commits the crime of Fraud by False representation daily whenever they say they have the right to force entry, levy a third party car amongst other things. the problem is the police are so badly trained in this area the hapless coppers become a criminal themselves when they fall for the bailiffs speil, and assist them.

 

Due to tha amount of money involved and as it is councils or HMCS who are the creditor, it seems to allow the police to take a Nelson's eye view and say sorry guv it's civil.