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Notice of Removal of Implied Right of Access......debtor loses in court and ordered to pay bailiff companies legal costs


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Enter the words” Notice of Removal of Implied Right of Access” into your computer search engine and you will be referred to various websites with connections to Freeman on the Land movement and other “get out of debt free” sites.

 

If seeking help regarding bailiffs pursuing a Liability Order for unpaid council tax or a warrant of execution for an unpaid parking charge notice you will soon discover that such sites actively encourage debtors to display a “Notice of Removal of Implied Right of Access” ……(many times shortened to NORIRA) in the mistaken belief that in so doing, this will legally prevent a bailiff from entering the property boundary and will stop all enforcement of the debt.

 

For those unfamiliar with such notices it is purported on such websites that if the bailiff ignores the Notice of Implied Right of Access that the occupier of the property may legally instigate a claim of trespass against the bailiff company.

 

It is very well established that debtors can in any event refuse to allow a bailiff to have “peaceful entry” into their property and the Court of Appeal stated this very clearly in the case of Khazanchi v Faircharm Investments [1998]

 

A recent instance of a debtor who used this Notice of Removal of Implied Right of Access procedure occurred in the summer of 2012. The claim related to an outstanding council tax debt which Rossendales had been instructed to collect by the local authority concerned.

 

The case is an interesting one concerning these Notices of Implied Right of Access which are a defective idea and cannot have the effect claimed for.

 

Background

 

In July, the debtor wrote a letter to Rossendales headed “Notice of Removal of Implied Right of Access.” It was sent by recorded delivery.

 

The letter purported to be a legal notice removing the bailiff’s right of access to the debtor’s property and warned that any attempt to enter the address by a bailiff of the company would be deemed as trespass. The letter went on to say that a criminal complaint would be filed against any party violating the notice and that a penalty of £750 would be charged.

 

Rossendale's responded to the letter by advising the debtor that as a liability order had been obtained at the magistrates court and instruction had been received from the local authority to execute distress, that the bailiff was able to legally attend the property in order to enforce the debt.

 

Subsequently,a visit was made to the debtor’s property by the bailiff. No contact was made with the debtor at this particular visit although the relevant bailiff attendance documents were left at the property by the bailiff.

 

The next step taken by the debtor was for a claim to be lodged to the county court for an alleged trespass by Rossendales Ltd on his property.

 

The case was heard at Norwich County Court in January 2013 via*the Small Claims Track before District Judge Pugh.

 

Particulars of claim:

 

These were as follows:

 

The claimant (debtor) had served Rossendales Ltd (defendant) with a Notice of Removal of Implied Right of Access by recorded delivery in respect of the claimant’s property.

 

The notice contained contractual terms and conditions including a penalty of £750 to be paid by Rossendales in the event of trespass.

By the bailiff subsequently attending the claimant’s property it was averred that an act of trespass was committed and the contractual term to pay the trespass fee stated in the Notice of Removal of Implied Right of Access had been accepted by the defendant.

The bailiff had no legal right to attend the claimant’s property as he did not possess a copy of the liability order.

Reference was made to the case Davis v Lisle KBD 1936 in which the Court of Appeal held that a permission given to enter private property may be revoked, making the visitor a trespasser.

 

 

At the hearing:

 

Rossendales as the defendant, rebuffed the claims made stating that it had authorisation from the local authority to execute distress (a copy of which was made available at the hearing), but that Regulation 45(1) Council Tax (Administration and Enforcement) Regulations 1992 (S.I.1992/613) provides that:

 

"Where a liability order has been made, the Billing Authority which applied for the order may levy the appropriate amount by distress and sale of goods of the debtor against whom the order was made"

 

Furthermore, Regulation 45(7) says that:

 

"A distress shall not be deemed unlawful on account of any defect or want of form in the liability order, and no person making a distress shall be deemed a trespasser on that account".;

 

and that:

 

"no person making a distress shall be deemed a trespasser from the beginning on account of any subsequent irregularity in making the distress, but a person sustaining special damage by reason of the subsequent irregularity may recover full satisfaction for the special damage (and no more) by proceedings in trespass or otherwise".

 

Judge Pugh questioned the legality of the claimant’s case. He said that while he had no reason to query the use of the Notice of Removal of Implied Right of Access, he felt that its relevance in this particular matter was left wanting, as withdrawing consent to the right of access to the property did not override the legal right of the bailiff.

 

He agreed with Rossendales that the bailiffs had been granted powers by statute contained within the Council Tax (Administration and Enforcement) Regulations 1992 to levy distress and that as per Regulation 45(7) they could not be considered a trespasser.

 

The Judge went on to say that as a liability order had already been granted by the magistrates court, he had no reason to “look behind” the validity of the application and did not intend to question this further, accepting that any appeal relating to the making of the order should have been made to the magistrates court after the original liability order hearing.

 

Furthermore, the Judge said that despite what the claimant had written in the notice regarding contractual terms and conditions, it was not a contract as there was no consideration from either party involved. The claimant could not simply rely on Rossendales accepting the terms of the notice purely because they carried on with the lawful act of levying distress.

 

The Judge felt that the claimant was confusing the law of contract with the tort of trespass – which was a different element of law altogether.

 

It was stated by Judge Pugh that it is a common misconception that trespassers can be automatically prosecuted when in fact they cannot. Instead, an aggrieved individual would have to demonstrate that there had been a loss as a result of damagescaused by the defendant’s alleged trespass

 

Despite remonstrations from the claimant, the Judge dismissed any reference to the case Davis v Lisle* (1936) mentioned in the claimants application, saying that it did not bear any direct relevance to the matter before him between the claimant and Rossendales.

 

The question was put to the claimant; where was the loss in this particular instance? The claimant could not provide any evidence to support his claim.

 

Conclusion:

 

The subject of “penalty clauses” is one that is currently causing a great deal of debate in particular; with private parking companies who frequently attempt to impose a penalty charge of up to £100 ( and in some cases even more) for overstaying the stated parking time in supermarket car parks such as Lidl, Morrison, Aldi etc. POPLA (Parking on Private Land Appeals) and the county courts are frequently rejecting such charges on the basis that they are not a “genuine pre-estimate” of the likely damages experienced.

 

As the Rossendales bailiff had merely visited the property and left a notice confirming his attendance, any trespass would have been negligible and damages nominal.

 

In his final summary, the Judge made it clear to the claimant that he had been ill-advised in making his claim to the county court to try and prevent the bailiff from carrying out what he was perfectly legally entitled to do.

 

From the claimants’s response it was clear that he had been influenced by information on the internet when preparing his case.

 

Not surprisingly, the court claim failed.

 

Judge Pugh dismissed the penalty of £750 and ordered the claimant to pay Rossendale’s legal costs.

Edited by tomtubby
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CIVEA ( Civil Enforcement Association) represent the interest of most bailiff companies in England & Wales.

 

Following the outcome of the above legal claim, on 17th May 2013 on their news page CIVEA posted an article concerning the Removal of Implied Right of Access notices that many debtors are encouraged to display on the boundary of their property in the belief that such a notice will stop a bailiff visiting the property.

 

As you will see from the news article (link below) CIVEA ( not surprisingly) consider such notices are "nonsense" but most importantly; the article confirms that they have advised their members to "disregard such notices and continue with enforcement action"

 

CIVEA are acknowledging that a debtor could if they wish, institute court proceedings against the bailiff for trespass and warning also of the risk of significant costs that could be imposed against the complainant. For ease of reference the article by CIVEA states as follows:

.

.

 

"There are currently numerous websites and forums which advise debtors to display notices on their property stating that they have withdrawn consent for the bailiff to attend that property and that any future attendance will constitute a trespass.

 

Such advice is nonsense; bailiffs executing a court warrant have an express right of access which cannot be withdrawn by the debtor. CIVEA is advised that member companies should disregard such notices and continue with enforcement action.

 

Whilst it would be open to any debtor, in such a situation, to institute court proceedings against the bailiff for trespass they would thus risk significant costs being awarded against them to cover the expense of defending such a pointless and inevitably unsuccessful action.

 

As always, it would be prudent to seek advice from a fully qualified legal practitioner before embarking upon court proceedings"

 

http://www.civea.co.uk/news-24.htm

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These Notices of Removal of Implied Right of Access are defective and do not work.

 

A quick glance today at one "get out of debt fee" forum will show a thread entitled: "Bailiff Ignored Removal Of Implied Rights" .

 

The thread has so far had nearly 1,000 viewing from the public. It is noteworthy that so far....not one person has posted on that thread to confirm that such a notice works.

 

Interesting......

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It seems CIVEA has conveniently neglected emphasising that an alleged debtor has no legal obligation to deal with a bailiff pursuing a liability order for council tax.

 

 

 

And there is a very good reason why CIVEA have done so and this is simply because they were only posting about the Notices of Removal of Implied Right of Access ( which is the subject of this thread).

 

A debtor does not have to deal with a bailiff and this is commonly known and also, debtors should be aware that a bailiff may only enter a debtors property "peacefully". Almost always, this is achieved by a debtor allowing the bailiff into the property as either he or she is ignorant of the legal position.

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Such Notices are clearly ill-founded. The £750 charge would never hold. (Although it makes me ponder as the effect of clear, and very well worded, signage on the property levying an Entry Fee for such visitors).

Did CIVEA say anything about Bailiffs attending in their private capacity such as for CPE PCNs ? I expect not.

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I would again direct those who post here regularly and know the 'powers that be' to the two Sticky threads posted by Bankfodder which, in my opinion, whilst different could lead to exactly the same result for the debtor.

 

You don't want CAG to become one of those forums refereed to in a court case.

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Claims for trespass are notoriously difficult as proof has to be provided of a "genuine pre estimate of the loss" suffered as a result of the "treaspass" and court claims are being rejected daily against private parking companies on this very point.

 

The main stumbling block with these Notice of Implied Right of Access documents is that a bailiff has a "lawful" right to attend the property and cannot "go behind" the warrant which states clearly that the bailiff is "commanded" to enforce it !!!

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A plaintiff is entitled to nominal damages for trespass to land even if no loss or damage is caused.

Armstrong v Sheppard and Short Ltd [1959] 2 QB 384, [1959] 2 All ER 651, CA.

 

 

 

The signage does not make the bailiff a trespasser though if executing a writ etc as per the OP.

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A bailiff has a "lawful" right to go to the front door of a property. There can be NO doubt about this.

 

Case law has clearly established however that actual "entry" into the property must be "peacefully" and, in almost all cases, will be by being "invited" into the property. This is typically the case with debtors who are not aware of their rights.

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I would again direct those who post here regularly and know the 'powers that be' to the two Sticky threads posted by Bankfodder which, in my opinion, whilst different could lead to exactly the same result for the debtor.

 

You don't want CAG to become one of those forums refereed to in a court case.

 

Bankfodder is absolutely interested in other peoples' opinions - and I would imagine you would be well placed to offer some altermative ideas. We would certainly be very grateful for your input :)

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I fully appreciate that his intentions are well placed but the advice smacks of similar given on the other forums that have been spoken about and I stand by my opinion that it could lead to somebody looking for help here at CAG ending up with significant legal costs.

 

As to ideas my suggestion would be to take legal advice before suing for either Breach of Trust or Trespass and take down the Stickys.

 

And to address tomtubby in relation a Notice of removal of implied rights and trespass I would state as follows:

 

The Notice of Removal of Rights of Implied Access (trespass notice) has no relevance when in the process of executing a High Court writ of Fi Fa. HCEOs and their enforcement officers have statutory protection against any claims for trespass and wrongful interference of goods. This protection is afforded by Section 11 of Schedule 7 of the Courts Act 2003. Further, Section 40 of the Administration of Justice Act 1970 asserts that officers executing a warrant are not considered to be harassing debtors and therefore are protected by the law. An action for harassment would not succeed where the officer is in the process of "enforcement of any liabilities by legal process.

Edited by HCEOs
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  • 4 months later...

Almost every day I receive an enquiry about these bizarre notices which are routinely recommended to debtors by websites with associations to Freeman on the Land movement.

 

As regular visitors on this forum will know, the bailiff companies 'governing body' CIVEA advises all enforcement companies to completely IGNORE these notices and last year I started a thread on this forum with a copy of the Press Release from CIVEA which is published on their website. A link to the thread is below and so far...it has been viewed over 15,000 times!!!!

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?392005-Removal-of-Implied-Right-of-Access-notices.....CIVEA-advises-bailiff-companies-to-IGNORE-the-notices

It should be noted that under the new bailiff regulations (that take effect on 6th April) a debtor may bring a legal claim against the enforcement agent for breaches of the Tribunals Courts & Enforcement Act. However, the debtor would not be able to issue a claim for trespass given that under the new regs bailiff will NOT be rendered a trespasser by any error that he has made and furthermore that all 'wrongful' levies will in future be 'irregular' rather than 'illegal'.

 

These bizarre notices are of no relevance at all.

 

 

 

 

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I would agree with you that debtors should not take too much notice of CIVEA. However, with regards to these notices, debtors need to be aware of a number of important facts:

 

One: That the enforcement companies 'governing body' (CIVEA) have advised all their member companies to IGNORE these bizarre notices.

 

Secondly, as this thread confirms, if legal claims are issued, they are bound to fail.

 

Thirdly, there is not a single shred of evidence of a successful legal claim for ignoring the notice.

 

Lastly, the only people to gain from these notices are the many websites (almost all of which are associated with Freeman on the Land movement) who manage to get desperate debtors to pay a fee to access such notices.

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This may be simplifying things but from being on many forums there does seem to be a huge misunderstanding in what a bailiff is and what rights they have.

To me it is common sense that is someone has been appointed by a court they have a right to come a knocking. If however they are a door stepper from one of our rather nice DCA's then yes, tell them to go and play hopscotch of the M6

 

By the way tomtubby , I have been reading some interesting things about you on that site, apparently you are one of them and varios other allegations about who owns Cag etc. It just makes me want to scream

Any opinion I give is from personal experience .

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This may be simplifying things but from being on many forums there does seem to be a huge misunderstanding in what a bailiff is and what rights they have.

To me it is common sense that is someone has been appointed by a court they have a right to come a knocking. If however they are a door stepper from one of our rather nice DCA's then yes, tell them to go and play hopscotch of the M6

 

By the way tomtubby , I have been reading some interesting things about you on that site, apparently you are one of them and varios other allegations about who owns Cag etc. It just makes me want to scream

 

 

An interesting observation Fletch

 

 

Are you saying that a man/woman who is CERTIFIED by the court, not appointed, has authority to come knocking?

 

 

Or have you just done your usual trick & completely mis-understood other peoples posts?

 

 

A bailiff acting on behalf of the courts & indeed under the orders of a court may well have special powers. A "door stepper" acting on behalf of a local authority however has no more power than any other member of the general public.

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Please...this subject is of vital importance and comments such as 'your usual trick' are not necessary.

 

I have offered to update the STICKY regarding these Notices of Removal of Implied Right of Access letters and I will be doing so before 6th April. I will be providing evidence as to where these notices had originated (on an Irish Freeman on the Land website) being going 'viral' with websites associated with the Freeman on the Land movement.

 

With 6th April being just 3 weeks away the subject of these bizarre notices is all the more serious given that the new regulations specifically exclude bailiffs from being liable for trespass. Accordingly, the notices will be worthless and you may just as well put a flag in your window. Also, common law remedies are also being removed.

 

Of serious concern is that from 6th April if debtors waste their time displaying these strange documents they will also be wasting valuable time in seeking a payment proposal with the enforcement company and this will lead to an 'enforcement visit' with a fee of £235 being applied. Under the new regs if a debtor fails to 'engage' with the enforcement company within 7 clear days of the letter then an enforcement fee of £235 will apply.

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My usual trick?

 

Remember that anyone can called themself a bailiff or use the title bailiff in the name of the company.

 

A certified bailiff can only coming a knocking if they are doing it in their work

https://www.justice.gov.uk/courts/enforcement-officers

 

All I was saying is that there is misunderstanding as to what role what type of bailiff has

Any opinion I give is from personal experience .

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PS: I should add that Notices of Implied Right of Access are effective with TV Licensing Inspectors ( who are not enforcing a Liability Order, warrant of execution of distress warrant).

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I wonder how those people putting up or sending the notices would react if they were 'blacklisted' from police, fire and ambulance services attending through their non-payment of CT and deliberate avoidance?

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I wonder how those people putting up or sending the notices would react if they were 'blacklisted' from police, fire and ambulance services attending through their non-payment of CT and deliberate avoidance?

 

 

I know of nobody who "deliberately" avoids Council Tax (other than Roger Hayes who didn't pay out of principle but didn't deploy a notice). A quick read through threads on here outline the genuine situations that many find themselves in.

 

 

The vast majority of people in arrears are nearly always the weak, the poor, the vulnerable or people who have trouble communicating, it is spiralling quite rapidly out of control. Figures confirm that since it was introduced in 1992 that debtors are increasing on an annual basis-Surely you would agree that this is not down to more & more people deliberately avoiding payment?

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