Execl Bailiff OH's Fine, can he seizure goods that are mine/company gift?

[brassnecked]

The question has to be then "Will the bailiff get a carte blanche to come back again and again and add more to the levy if he got it wrong or found insufficient goods at the time of the first levy under the new regime?"

[blfuk1]

Blfuk1

 

I am interested in the quote from John Kruse's publication. However, the following is from one of JK's Practice Notes dated September 2010

 

Does the bailiff get a second chance?

 

For all the reason stated, the answer is no.

 

The levy has to be conducted completely and correctly on the first occasion. Goods cannot be added later, even if valuable items were mistakenly overlooked.

 

The bailiff does not get a second chance, except in very unusual circumstances, and cannot come back and try again if the initial levy was inadequate.

 

That is why it is so important to conduct a thorough and complete levy the first time.

 

To support this statement JK refers to the follwoing case laws:

 

Wallis v Savill

Bishop v Bryant

Dawson v Cropp

Smith v Torr

 

 

We all know that bailiff law has been complex and confusing which is why all parties have worked to modernise it. John Kruse does say in several publications that a second levy is not permissible USUALLY but always cites the exceptions. I have laid those out earlier and also set out the exception[al] cases referred to by him.

 

 

In another of his publications (from 2012) 'Sources of Bailiff Law' he clearly states (on page 129) for example:

Despite what has just been said, and as has already been suggested, in certain situations a second levy may be permissible and lawful:

• 
  
  • After a replvy or where one party dies
    
  • If there is a genuine mistake about the valuation of the goods, or if the value of the item is uncertain and the bailiff wishes to avoid an excessive levy, as a result of which he acts with "tenderness and moderation" towards the debtor by taking a number of small inventories
    
  • If insufficient goods were found on the premises at the time of first levy
    
  • If the bailiff agrees to withdraw or postpone the levy at the behest of the debtor.
    

   

There is ample evidence to show that second levies can and do take place although I would admit they are not that common as most bailiffs will ensure sufficient goods first time round!

 

 

While I take no offence that you might not believe me, surely John Kruse is a credible source?

Edited January 13, 2014 by blfuk1

[blfuk1]

The question has to be then "Will the bailiff get a carte blanche to come back again and again and add more to the levy if he got it wrong or found insufficient goods at the time of the first levy under the new regime?"

 

 

As noted earlier, the Taking Control of Goods Regulations 2013 have set out the occasions when this can be done after 6 April 2014: Re-entry may occur if on the initial entry there were no or insufficient goods to pay the sum outstanding - re-entry can then be undertaken if (a) further goods become available and (b) where taking control of certain goods on a previous occasion may have been problematic because the goods were in use.

[tomtubby]

I think that you have "hit the nail in the coffin" when you state (correctly) that bailiff law has been complex and confusing and we can only hope that the new regulations will sort this out.

[brassnecked]

As noted earlier, the Taking Control of Goods Regulations 2013 have set out the occasions when this can be done after 6 April 2014: Re-entry may occur if on the initial entry there were no or insufficient goods to pay the sum outstanding - re-entry can then be undertaken if (a) further goods become available and (b) where taking control of certain goods on a previous occasion may have been problematic because the goods were in use.

Would doing the washing count to stop him having the washing machine away, or will Brighthouse have to go to interpleader? I can see a situation where the bailiff clears the house under the new regime, then goes in again for the furniture the charity like the Sally Ann gave them to replace what the bailiff took the first time round, as they are living below the families "Applicable Amount" due to arrears of council tax that wouldn't have arisen before the welfare cuts. That sort of tale will end up in the Daily Heil, Torygrapgh and the Grauniad, and it will make bailiffs look even worse than they do now, as the new fee scale is even more unaffordable to someone who cannot afford the original debt.

 

(yes I am aware that in all likelihood the washing machine may be exempt, but some bailiffs will take it anyway)

[blfuk1]

Would doing the washing count to stop him having the washing machine away, or will Brighthouse have to go to interpleader? I can see a situation where the bailiff clears the house under the new regime, then goes in again for the furniture the charity like the Sally Ann gave them to replace what the bailiff took the first time round, as they are living below the families "Applicable Amount" due to arrears of council tax that wouldn't have arisen before the welfare cuts. That sort of tale will end up in the Daily Heil, Torygrapgh and the Grauniad, and it will make bailiffs look even worse than they do now, as the new fee scale is even more unaffordable to someone who cannot afford the original debt.

 

(yes I am aware that in all likelihood the washing machine may be exempt, but some bailiffs will take it anyway)

 

 

I've never taken a washing machine and any bailiff that has must have been desperate. And yes, under TCoG Regs 2013 4(b)(ii), washing machines will be exempt from seizure.

 

 

As far as the new fee scale being even more unaffordable I would argue that in the vast majority of cases, debtors will pay less provided they comply with the first stage. If an arrangement is agreed on receipt of the letter then the debtor will pay £75 of fees. Even if this is not possible, the fee at the doorstep will be £310. I imagine that compares more favourably that some existing situations with visit fees, levy fees, Head H fees, walking possession fees, attending to remove fees and so on. It is not uncommon on council tax for debtors to be paying in excess of £400 in fees after one visit. On road traffic cases, I see considerably higher sums being charged because of the 'reasonable costs' issues which can be several hundred pounds. I'm not saying all bailiffs have been applying every fee imaginable but I really think that overall, the fee situation will be better for debtors rather than worse.

 

 

In addition we have still to hear on VAT which parking debtors currently pay on top of the fees. I believe this will disappear and be the same for all debt types whereby the creditor pays - if not, then parking debtors would have to pay £90 at compliance rather than £75 - which I'm sure won't be allowed to happen as this is all about harmonising rules and fees across the piste.

Edited January 13, 2014 by blfuk1

[brassnecked]

Agreed there will be more transparency, but if the original debt is unaffordable £390 inc VAT or even the £75 is still an impossibility to many, so can we expect suicide or threat of suicide to a bailiff to increase? Where does someone on minimum wage with realistically no spare income find the debt let alone the fees. Council tax of itself is iniquitous in that it takes no account of ability to pay, and many social homes are in the same band as a high earners property, the difference is one can afford it and the other may not be able to Yes I know there are won't pays but the majority we see on here are can't pays. There is evidence that housing officials are having to deal with more tenants in difficulty threatening suicide:

 

http://www.insidehousing.co.uk/care/staff-deal-with-suicide-threats/7001555.article

 

To put it in perspective the £75 is more than the couple rate for a weeks JSA/ESA

[blfuk1]

Brassnecked - I'm not arguing against the fact that financial difficulty will still be financial difficulty, just that the new fee scale (as far as I can see) won't increase the problem but actually help to cushion it. The problems you highlight are not to do with bailiffs as we don't set council tax rates or have anything to do with benefits or rent levels.

 

 

By the way, bailiffs didn't start in the 12th century. The first records of bailiffs and bailiff 'laws' goes back to the 6th century and suggestions are that they were around long before that, probably around 1,000 BC.

[brassnecked]

Brassnecked - I'm not arguing against the fact that financial difficulty will still be financial difficulty, just that the new fee scale (as far as I can see) won't increase the problem but actually help to cushion it. The problems you highlight are not to do with bailiffs as we don't set council tax rates or have anything to do with benefits or rent levels.

 

 

By the way, bailiffs didn't start in the 12th century. The first records of bailiffs and bailiff 'laws' goes back to the 6th century and suggestions are that they were around long before that, probably around 1,000 BC.

Yes the debt isn't the bailiffs fault, but there has to be a better way of recouping debt than distress, Lord Denning tried to kill it off last century.

 

The term bailiff has as you rightly point out been around from ancient times but a bailiff was not always someone who went round to remove goods, the term was more general than that, and some were more akin to policemen.

 

With modern financial systems there must be a better way of recouping debt than the removal and sale of goods in many cases. Will the new fee structure prevent say JBW or another bailiffco with their ANPR seizing a car from a new owner because DVLA are slow in updating records, and the PCN relates to the previous owner but JBW insist the warrant applies to the car and selling it because the new owner cannot afford the interpleader? I don't think so,

Edited January 13, 2014 by brassnecked

[blfuk1]

Yes the debt isn't the bailiffs fault, but there has to be a better way of recouping debt than distress, Lord Denning tried to kill it off last century.

 

 

I knew Lord Denning and he felt it was archaic in its then form. We have spent so many years trying to modernise it and perhaps we may achieve that now 32 years later. Lord Denning sat in judgment of a great many cases where a debt that was due remained unpaid and while he felt the system of distress and execution was archaic, neither he nor anyone else could think of an alternative to ensure debts due are debts paid. At the end of the day, bailiffs only get issued warrants where opportunities to pay earlier are not taken. While I accept that a small percentage of the 3 million plus debts we deal with involve individuals who we should not be dealing with, most of us in the industry have taken steps to identify such people and return their cases to the creditor. That was not the case 30 years ago so we are making progress. When you can think of an alternative to ensure debts are paid let me know - and let the other 58 civilised countries that also use bailiffs know too!

 

 

I have used advice on CAG to deal with a particular airline and when they would not pay, I threatened them with enforcement proceedings and the seizure of goods - then and only then did they pay up the nearly £3k they owed me. Without that threat they would have simply added my CCJ to the hundreds of others which are listed as unpaid against them. If I could have contacted the hundreds of the judgment creditors who from the size of debts were just badly treated passengers, I would have made a mint because the airline only pays when faced with the disruption of distress.

[brassnecked]

I knew Lord Denning and he felt it was archaic in its then form. We have spent so many years trying to modernise it and perhaps we may achieve that now 32 years later. Lord Denning sat in judgment of a great many cases where a debt that was due remained unpaid and while he felt the system of distress and execution was archaic, neither he nor anyone else could think of an alternative to ensure debts due are debts paid. At the end of the day, bailiffs only get issued warrants where opportunities to pay earlier are not taken. While I accept that a small percentage of the 3 million plus debts we deal with involve individuals who we should not be dealing with, most of us in the industry have taken steps to identify such people and return their cases to the creditor. That was not the case 30 years ago so we are making progress. When you can think of an alternative to ensure debts are paid let me know - and let the other 58 civilised countries that also use bailiffs know too!

 

 

I have used advice on CAG to deal with a particular airline and when they would not pay, I threatened them with enforcement proceedings and the seizure of goods - then and only then did they pay up the nearly £3k they owed me. Without that threat they would have simply added my CCJ to the hundreds of others which are listed as unpaid against them. If I could have contacted the hundreds of the judgment creditors who from the size of debts were just badly treated passengers, I would have made a mint because the airline only pays when faced with the disruption of distress.

Yes you have valid points, and as long as bailiffs follow the rules then there is no cause for complaint, but with members of the public other methods are often effective, but with companies like your airline I see your point.

[blfuk1]

If an arrangement is agreed on receipt of the letter then the debtor will pay £75 of fees. Even if this is not possible, the fee at the doorstep will be £310. I imagine that compares more favourably that some existing situations with visit fees, levy fees, Head H fees, walking possession fees, attending to remove fees and so on. It is not uncommon on council tax for debtors to be paying in excess of £400 in fees after one visit. On road traffic cases, I see considerably higher sums being charged because of the 'reasonable costs' issues which can be several hundred pounds. I'm not saying all bailiffs have been applying every fee imaginable but I really think that overall, the fee situation will be better for debtors rather than worse.

 

 

Just following up on the above post - looking at another case on here titled, "Newlyn clamped car in supermarket car park" the debtor says that she was asked to pay £1,300 in respect of two PCNs. That's £650 per case. Assuming the originating debt was £137 the fees for each case (at that point) were £413 including VAT or around £344 ex VAT. Under the new regs, the fee at that point would be £385.00 for both (two compliance fees of £75 and one enforcement fee (control taken at same time) of £235. Expressed another way it would be £441 less (assuming there will be no VAT for debtors to pay in the new world). Even if VAT was payable on parking penalties, the fees would still be £364 less.