dealing with bailiff and clamping

[arrkon]

Hello all, need some help rather urgently please.

 

A couple of weeks ago, I recieved a plain white envelope, un posted, pushed through my letterbox, stating that Newlyn PLC were chasing a debt for an outstanding PCN from the LA from april 2013. Demanding a sum i cannot remember (approx £300), for which I had tried conversing with the LA about this to find out the detail surrounding the PCN, but to no resolution other than the date and location, even more problematic as I had not recieved a NTO, Charge Cert, or any court documentation since the original PCN was issued.

 

Fast forward to yesterday afternoon and i arrive at home from work to find my car clamped and a scruffy hand written form stuffed in my letterbox, now demanding £467. Called the bailiff to find out what was going on, to have him warning me not to interfere with the clamp and it was to be "recovered" if I was not to pay.

 

In my frustration, I removed the clamp (taking photos too) without damaging it, as it was incorrectly applied in the first place (very easy to remove) and moved the vehicle. Informing him this morning to collect it. The bailiff has now informed the council I have CUT it off (photos prove this is not the case), Newlyns and the council are unwilling to help.

 

along with moving the vehicle,I have also today lodged a TE7 and TE9 with the TEC and am awaiting news from them. Is there anything else that i can do or is it just a waiting game?

 

It may also be worthy of note, that the bailiff does not show up on the "certificated bailiffs list" either under his name or under newlyn's company.

 

Any advice gratefully recieved.

[tomtubby]

I have a few questions if you don't mind.

 

You say that you have not received the NtO, charge cert, or any of the statutory notices from the local authority. The reason for this is normally related to a change of address or with errors with the address such as wrong house/flat number etc. Do either of htese apply in your case?

 

Given that the hand delivered letter was delivered 2 weeks ago, did you do anything about it (such as speak with the council or bailiff co to ascertain the reason why you had not received prior notices)?

 

You have filed an OTT with TEC and you need to be aware that the normal time frame to receive a response is around 6 weeks or even slightly more. You will certainly NOT get a response within a few weeks. There is a problem with OTT's and this is that many of them are REJECTED purely because the debtor fails to complete the form correctly. In your case, what reason did you give on the TE7?

 

Secondly, if you failed to provide a good enough "reason" on the TE7 your application will be REJECTED. You have a right to seek a "review" but there is a court fee of £80 to pay and you MUST apply for the review within a strict period of time and failure to do so will lead to the warrant becoming live again and this is where you will likely have a problem.

 

This is because as you had removed the clamp the NORMAL procedure with bailiff companies will be to immediately REMOVE the car when they next visit. What is even more serious is that in all cases that I come across ( and sadly we receive enquiries such as yours on an almost daily basis) the bailiff will REFUSE to accept payment by either debit or credit card and instead, insist on payment by cash only.

 

I assume that you have now hidden the vehicle. Is the vehicle worth very much and is it on finance?

[arrkon]

Hi TomTubby, thanks for the reply, There is no obvious reason as to why I did not receive any correspondence. However I have been having issues over the last 18 months with parcels cards etc not arriving and receiving mail for other properties (even other streets), I can only put this down to having many different "posties", possibly temps, on my street over that period. Royal mail has been contacted about this.

 

When I got the hand delivered letter, i contacted the council and enquired as to why I had no previous notification from them. Their response was that they had sent them and it was my problem that I had not got them. This went on for a week or so. I have not contacted the agent up until this point as from prior experience they are not interested in anything but the payment.

 

The TE7 was filled out with the following: "I was unaware of any outstanding unpaid PCN from Coventry City Council until bailiff action had started, having received no Charge Certificate or NTO from the Local Authority. Had this happened, I would have wilfully paid what is due."

 

In regards to the vehicle, although not on finance, it is worth approx 4x the debt value (minimum), and is now about 8 miles from my property on private commercial land. Despite my call to him, the bailiff is yet to collect his undamaged clamp.

 

Any further advice gratefully received.

[tomtubby]

I would strongly suggest that you call the Traffic Enforcement Centre and ask them to confirm the PRECISE address on the warrant of execution.

 

As the OTT has been filed then all enforcement of the warrant must CEASE until the application has been decided. Unfortunately however we have received SO MANY enquiries where despite this regulations the bailiff has returned to remove the cars in cases where the clamp was removed. This should NOT happen but I am merely stating what IS happening so you need to be careful with the car for the meantime.

 

The "reason" that you have provided on the TE7 is sadly not a good one and it is likely that your application will be rejected (although I hope not) . There is a huge misconception that the decision whether to accept or reject an OTT is with the TEC Court Officer. In fact, the local authority are asked whether THEY are willing to accept the OTT and if they say yes...then the application is automatically accepted. If the LA say....NO...then the case is referred to the Court Officer to see whether the LA are right or wrong. Nearly always, they will agree with the council.

 

Once you have filed an OTT you CANNOT provide any further information to TEC. Therefore, if you now discover that there is a problem with the address you will have to wait until the decision letter has arrived and then you may seek a "review" by way of an N244 ( by paying £80).

 

If you ever get another letter regarding a parking ticket that you have not received any notices about then it is important to act quickly and file an OTT straight way. In that way, you would avoid the car being clamped and you could continued to drive the car without the worry about the bailiff removing the car because the removal of the wheel clamp.

[tomtubby]

Sorry forgot something...

 

When you spoke to Coventry did you ask them whether they have any other PCN's on their system for you?

 

Today, we received an enquiry from a debtor whose car has been in the car pound since last October and he managed to make payment of over £1,800 ( to include a large storage bill).

 

He had driven his car out of the car pound and about a mile down the road he was stopped by an ANPR equipped vehicle belonging to ANOTHER bailiff company. The bailiff was enforcing 2 warrants and wanted £782. Naturally the poor guy couldn't pay and saw his vehicle put onto a removal truck.

 

ANPR is awful.

[arrkon]

Sorry forgot something...

 

When you spoke to Coventry did you ask them whether they have any other PCN's on their system for you?

 

Today, we received an enquiry from a debtor whose car has been in the car pound since last October and he managed to make payment of over £1,800 ( to include a large storage bill).

 

He had driven his car out of the car pound and about a mile down the road he was stopped by an ANPR equipped vehicle belonging to ANOTHER bailiff company. The bailiff was enforcing 2 warrants and wanted £782. Naturally the poor guy couldn't pay and saw his vehicle put onto a removal truck.

 

ANPR is awful.

 

Yes I asked and apparently there are no other pcns.

 

In what way is the response unlikely to succeed? Lack of information (could have expanded on the explanation). The bailiff is coming tonight to recover his clamp and inspect for damage, and was very interested to now how I got it off, obviously not telling him. All calls are being recorded.

 

Am I correct in the understanding that a warrant of execution does not in itself permit clamping? And that it was done outside of my presence is unlawful possibly illegal under the theft act (as I have read elsewhere).

[tomtubby]

 

Am I correct in the understanding that a warrant of execution does not in itself permit clamping? And that it was done outside of my presence is unlawful possibly illegal under the theft act (as I have read elsewhere).

 

 

Can you post back with the advice that you have read regarding the above. Do not post to a link (assuming that you obtain the info from the internet). Instead, can you 'cut and paste" a copy of what you have read.

[arrkon]

Can you post back with the advice that you have read regarding the above. Do not post to a link (assuming that you obtain the info from the internet). Instead, can you 'cut and paste" a copy of what you have read.

 

Clamping without my presence

Clamping a vehicle on a public highway in the absence of the owner-debtor commits an offence under Section 12 of the Theft Act 1968. Bailiffs enforcing a debt do not have lawful authority to remove or interfere with goods or vehicles unless the owner-debtor is present.

 

Clamping without permission from the court or regulation providing for it is an act of trespass, the detention of the vehicle until a money transfer is made is wrongful. Paragraph 14 of Vine v London Borough of Waltham Forest [2000] 4 All ER 169

but does a warrant of execution cover the highlighted bold part?

[lookinforinfo]

This is what P 14 states-

 

14 A Divisional Court consisting of Nolan LJ and Judge J, as they then were, confined their decision to the criminal law. Nolan LJ said at page 992D:

"In my judgment, the suggestion that there was a lawful excuse for his action is wholly untenable. At the worst what he had suffered was a civil wrong. The remedy for such wrongs is available in the civil courts. That is what they are there for. Self-help involving the use of force can only be contemplated where there is no reasonable alternative. Here, as in Stear -v- Scott, there was such an alternative. The differences between the facts of that case and those of the present case are quite insufficient to my mind to make it distinguishable."

Nolan LJ had earlier described Mr Lloyd's submission that once he had requested the removal of the clamp he was entitled to recover his car by force, as "a truly absurd state of affairs".

 

"Use of force can only be contemplated when there is no reasonable alternative" would seem to be the point that is being made.

[tomtubby]

Will respond fully this afternoon.

[arrkon]

Will respond fully this afternoon.

 

Thanks tomtubby

[dementedfeline]

Can you get something in writing from Royal Mail confirming the problems with the post and the length of time they have been going on for? That would count for more than just you saying there were problems. Have neighbours had similar problems?

 

fyi - TEC "secret rules" for assessing whether or not to grant an OOT below. Unfortunately, as Tomtubby said, 9 times out of 10 they just do what the council want them to do.

 

Purpose – to grant / refuse permission for the respondent to file their stat dec / witness statement late. You are not looking for anything else e.g. whether the penalty charge is valid etc.

-------------------------------------------------------------------------------------------------------

Begin by reading the respondent’s reason on the OOT for not responding

within the time limit.

 

Tip: If they do not answer the question (they refer to the original contravention only or write about payments made etc), refuse the application.

 

Tip: If the respondent has provided a valid reason why they could not make the deadline and were unable to apply for a time extension and they provide proof (holiday tickets / hospital letter etc), grant the application.

If the respondent has provided a valid reason why they could not make the deadline and were unable to apply for a time extension, but you are still unsure of their reasons (no proof enclosed), read the statement provided by the LA to make the decision.

 

Tip: If the LA do not send a full statement but simply advise they reject the application, automatically grant the application. If the respondent states that they moved addresses, check the system details for the date of the move ….

 

Tip: If the respondent has stated in their OOT that they have moved address before the notice to owner (NTO) was served or provided dates of when they moved so we can see the NTO was not served, the COO should be accepted.

If the LA state in their rejection that they obtained the address from the DVLA but the respondent moved before NTO, the COO would still be accepted.

If they have only stated that they moved address and have provided no details, the COO would be refused. If the respondent admits that they did not notify the DVLA of their address change, the COO would be refused.

[tomtubby]

dementedfeline

 

The document that you have exhibited above is one that had been released under FOI about 2 years ago. However, I would just like to tell you that according to the Traffic Enforcement Centre they NO longer use this document. Instead, there is apparently "no guidance". Personally.....I am not convinced. I sent a letter to the "powers that be" about a week ago for further info.

[lamma]

Clamping a vehicle on a public highway in the absence of the owner-debtor commits an offence under Section 12 of the Theft Act 1968. bailiffs enforcing a debt do not have lawful authority to remove or interfere with goods or vehicles unless the owner-debtor is present.

Pure rubbish. Theft requires an intention to permanently deprive. And clamping is not 'taken' See S12 (1).

http://www.legislation.gov.uk/ukpga/1968/60/section/12

 

I suggest you stay well away from what ever the source was

[DIZZYDODAA]

Hello

 

the bailiffs called on me regarding an outstanding PCN (Ealing council) and demanded £450. I downloaded and completed a TE7 / TE9 and sent the forms via e.mail.

 

I then sent a cheque for the original parking fine directly to Ealing council with a letter stating if they returned the cheque I would consider it a gift. I also told them my family was deemed vulnerable under Governments guidance for Enforcement officers, and stated they had an obligation to accept my payment, as my debt lay with them. I also sent an e.mail to the bailiffs stating I had paid the debt in full to the Council, and as a vulnerable family I requested they did not visit again, as it would cause considerable distress

 

This was approx 3 weeks ago, and I have heard nothing since

[tomtubby]

Dizzydodaa

 

To avoid getting your question mixed up with somebody else's can you please repost your question onto a new thread.

[DIZZYDODAA]

oops, i was replying to Arroks post asking for help regarding his PCN, as I thought he/she may be able to make payment for the PCN directly to the council, avoiding the costs and further problems from the bailiffs .. sorry if I got it wrong .. i'm a newbie!!

[arrkon]

Bit of an update, the LA have acknowledged the OOT application, HOWEVER, the bailiff has made another visit today. Pushing another plain envelope through my door containing a copy of the warrant and telling me to contact him. I didn't think they were permitted any further action until the TEC decision?

 

TomTubby, what is your take on events up to this point?

[arrkon]

I now also posses a letter dated last thurs (arrived today), stating they are looking to take legal action for the "damage" to the clamp (for which there is non) and demanding the full payment of £460.

 

But this letter is dated prior to the bailiff collecting the clamp. also in continuance to my last post, are they still allowed to persue? What the hell is going on with these guys?

[tomtubby]

arrkon

 

I am so sorry but I forgot to come back to provide an answer. I will do so in the morning.

[tomtubby]

arrkon.

 

As promised, I will respond to the query that you had a few days ago regarding the removal by you of a wheel clamp and the following statement that you read on the internet:

 

"Clamping without permission from the court or regulation providing for it is an act of trespass, the detention of the vehicle until a money transfer is made is wrongful. Paragraph 14 of Vine v London Borough of Waltham Forest [2000] 4 All ER 169"

 

Before responding fully viewers of this thread may be interested in the following quotes that were made recently by Justice Fergus ODonnell in a simply stunning judgment from a Canadian court in the matter of:

 

Her Majesty the Queen v Matthew Duncan

 

In brief, Justice O'Donnell had been trying a case of a Freeman on the Land supporter (Matthew Duncan). During the period of the case ending and the Judgment being typed up Justice O'Donnell had become aware of the Landmark FOTL judgment in the case of Mead v Mead that has worldwide implications. Summing up in his highly comical judgment he stated the following:

 

 

The “internet”, also known as the “world-wide web” is a bi-polar electronic Leviathan that has erupted on the world scene in the past two decades and it has its own "Jekyll and Hyde nature”

 

“For the purposes of this case, the relevance of the internet is its un-policed “garbage in /garbage out” potential and its free-market-of-ideas potential to lure in otherwise pleasant and unsuspecting folk with all manner of " absurdity and silliness” and there is a lot of "patent rubbish on the internet"

[tomtubby]

The above quotes from Justice Fergus O'Donnel are most relevant.

 

Sadly, there are a handful ( or more) websites in the UK which "advise" debtors of ways to either avoid paying a debt to a bailiff or alternatively, ways in which to seek recovery of money paid by way of legal action and such sites will "lure in unsuspecting folk with all manner of absurdity and silliness" by referring them to various "legal cases".

 

Now here is the problem:

 

Firstly, the vast majority of the :"legal cases" referred to are "unreported cases". or alternatively, the judgments are from the 1800's and impossible ( for debtors) to obtain. What this means is that the "unsuspecting" debtor will be to "relying " upon the websites "interpretation" of what the Judgement says. In endless cases it is proven that the websites (for reasons that are unknown) mislead the public into believing that a Judgment says what they claim it does.

 

Yet ANOTHER example is the "claim" that a debtor can remove a wheel clamp and will not be prosecuted and that the case of Vine v London Borough of Waltham Forest will assist. Sadly, referring to the case of Vine as being of assistance is pure and utter nonsense.

 

Furthermore, referring debtors to paragraph 14 of the judgment is further proof of "absurdity and silliness". In fact, paragraphs 12 through the paragraph 14 are SOLELY in connection with ANOTHER legal case of Lloyd v Director of Public Prosecutions ( details of which will follow).

 

Vine v London Borough of Waltham Forest was at ONE TIME a highly significant "landmark" case and a full description of the case can be read here and a copy of the judgment can be accessed on the right hand side of the page.

 

http://en.wikipedia.org/wiki/Vine_v_London_Borough_of_Waltham_Forest

 

As mentioned above the "Vine" judgment was at one time highly significant but is much less so since the clamping of vehicles on private ground ( such as supermarket car parks, waste land and motorway service stations) by "cowboy clampers" was banned under the Protection of Freedoms Act 2012.

 

The judgment is important for the relevance of signage in such private car parks. One further legal area where "Vine" is relevant is in rare cases of "Distress, Damage Feasant" which hopefully (if the government have any sense) will be repealed under Part 3 of the Tribunals Courts & Enforcement Act which is due to take effect on 6th April.

[tomtubby]

The following is a TRUE copy of what paragraphs 12 though to paragraph 14 of Vine v London Borough of Waltham Forest REALLY say:

 

http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

 

 

12. We were referred to a number of cases but particularly to two cases where the facts were similar to the present case. The first in point of time is that of Lloyd -v- Director of Public Prosecutions [1992] 1 All ER 982 a decision of the Divisional Court in an appeal by Mr Lloyd against his conviction by the magistrates' of criminal damage contrary to s. 1(1) of the Criminal Damage Act, 1971. That section reads:

 

"A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence."


 

13. The facts were that Mr Lloyd had parked his car in a private car park. There were no less than five large notices boards located at the entrance to and exit of this private car park positioned at eye-level for car drivers. All those notices warned that unauthorised vehicles would be immobilised.

 

Mr Lloyd's car was clamped. Mr Lloyd returned to find that the car had been clamped. He contacted the security firm responsible for the clamping who required payment of £25 to release Mr Lloyd's car. Mr Lloyd refused to pay.

 

Later, in the night, Mr Lloyd returned and cut the two padlocks securing the wheel clamps with a disc cutter. Mr Lloyd's defence when prosecuted was that he had a lawful excuse for damaging the padlocks, namely that a trespass was being committed to his car. Furthermore, Mr Lloyd argued that once he had returned to the car park and requested the removal of the clamp, any consent by him to the clamping of his car ceased, and even if the clamping of the car had not constituted a trespass up to that point it was a trespass thereafter.




14. A Divisional Court consisting of Nolan LJ and Judge J, as they then were, confined their decision to the criminal law. Nolan LJ said at page 992D:

 



"In my judgment, the suggestion that there was a lawful excuse for his action is wholly untenable. At the worst what he had suffered was a civil wrong. The remedy for such wrongs is available in the civil courts. That is what they are there for.

 

Self-help involving the use of force can only be contemplated where there is no reasonable alternative. Here, as in Stear -v- Scott, there was such an alternative.

 

The differences between the facts of that case and those of the present case are quite insufficient to my mind to make it distinguishable." 

Nolan LJ had earlier described Mr Lloyd's submission that once he had requested the removal of the clamp he was entitled to recover his car by force, as "a truly absurd state of affairs".

[lamma]

I agree there is a lot of dangerous stuff on the web. Many desperate folks looking for an answer to why the world and their life is as it is and clutching at what they can find. That aside I have to comment that Mead v Mead is hardly landmark. It strikes me as an obiter rant.

Justice O'Donnell is correct, there is a lot of patent rubbish on the internet.

Only a lot, not all. Judges choose their words extremely carefully. Not all of the patent rubbish comes from radical groups. Have you read a paper or watched the news lately and put some analytical thought into what you are reading and hearing ?

Note, I do not adhere to FOTL.

My apologies for wandering slightly. For those interested they may want to read Mead v Mead and apply Kipling's six honest serving-men to what they read - friends that should be with you at all times.

[tomtubby]

I have a PDF of Justice O' Donnell's Judgment which I will post up this afternoon.

 

Meanwhile the Mead v Mead case is very well described by a Barrister here:

 

http://ukhumanrightsblog.com/2012/09/30/freemen-of-the-land-are-parasites-peddling-pseudolegal-nonsense-canadian-judge-fights-back/

 

 

I do not want to comment any further on FoTL on this thread. Stuff and nonsense for another day.

Edited January 22, 2014 by tomtubby