Third Party Goods/ Interpleaders and the serious potential to damage the new Bailiff Reforms on 6th April

[ploddertom]

 

"On the positive side, the onus initially must be on the bailiff to establish ownership; secondly, the draft procedure envisages the claim being passed to the creditor to decide upon as they will be the defendants in court. This will hopefully filter out a lot of the wrongful and negligent levies. If so, only a few uncertain claims should get to court".

 

But will it. With the Contracting Out Regulations do not the Bailiffs assume the role of the Local Authority?

[tomtubby]

Ploddertom.

 

Your response is spot on.

 

My concern with this is that at present, we find that solicitors representing BAILIFF COMPANIES routinely represent LOCAL AUTHORITIES and they merely agree with the creditor (in this case the local authority) that they will underwrite any legal fees etc.

 

I wrote to JK about this last night.

[wonkeydonkey]

As a coincidence, a poster on another thread has advised the forum that a car that had been seized by Sherforce in October has finally been released 4 months later!!!

 

The car was not hers and instead, owned by a friend and parked on her driveway.

 

I really do not think that the Ministry of Justice have thought this through properly.

 

The thread is here:

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?405723-sherforce

 

This legalised snatch and grab with questions to be raised later, will undoubtedly result in chaos, I said at the outset it will become the case Joe Public having to be wary whenever they plan a trip, it could be the case the owner of a B & B or Hotel( or even a relative) they plan to stay with, is visited by a bailiff who will simply levy on every car at the premises........as thing stands it will cause unnecessary distress to a lot of 3rd parties. I agree the MoJ are in need of looking at this again or they are going to find a lot of red faces walking the corridors when the balloon goes bang!!!

[HCEOs]

It is worth noting that from April 6th to seize a vehicle (take control) you have to either get a signed Walking Possession Agreement (CGA), clamp it or remove it.

 

As clamps are routinely cut off I believe that gone are the days of seizing a vehicle on a drive on paper, leaving the property and awaiting contact. Yes it may prevent blanket seizures on vehicles but I think it has greater risks.

 

If the debtor isn't in, and the bailiff doesn't want to risk losing his clamp then the only thing to do is remove the vehicle now.

 

We will see whether the new laws relating to interference with controlled goods are taken seriously by the Police. I can assure you it's not only debtors that get told 'it's a civil matter'....

 

 

See 68(2) below...

 

http://www.legislation.gov.uk/ukpga/2007/15/schedule/12

 

68(1) A person is guilty of an offence if he intentionally obstructs a person lawfully acting as an enforcement agent.

 

(2) A person is guilty of an offence if he intentionally interferes with controlled goods without lawful excuse.

 

(3) A person guilty of an offence under this paragraph is liable on summary conviction to—

 

(a) imprisonment for a term not exceeding 51 weeks, or

 

(b) a fine not exceeding level 4 (£2,500) on the standard scale, or

 

© both.

 

(4) In relation to an offence committed before the commencement of section 281(5) of the Criminal Justice Act 2003 (c. 44), the reference in sub-paragraph (3)(a) to 51 weeks is to be read as a reference to 6 months.

 

 

[tomtubby]

As many in the enforcement industry know a lot of people in the advice sector have pushed the Ministry of Justice for a considerable amount of time to provide a clause in the new regulations that if a vehicle is clamped that the clamp should remain for a certain number of hours BEFORE the vehicle is removed.

 

It would seem that because of the number of times debtors are being told by internet sites to 'get out the bolt cutters' that bailiffs will instead remove immediately.

 

Debtors have certain internet sites to thank for the problems that we will be facing in a few weeks time.

[ericsbrother]

so to ask a question.... under the proposed legislation if my daughter owes money for unpaid parking tickets and a bailiff comes looking for something to remove and takes my £20k car for a £700 debt I have to stump up £20k surety to get an interpleader hearing at a high court rather than just reporting the theft of my property as the bailiff will have the powers necessary to be protected from the normal course of justice but if I stop the bailiff from removing my property I can get a year in chokey?

[old bill]

It is worth noting that from April 6th to seize a vehicle (take control) you have to either get a signed Walking Possession Agreement (CGA), clamp it or remove it.

 

As clamps are routinely cut off I believe that gone are the days of seizing a vehicle on a drive on paper, leaving the property and awaiting contact. Yes it may prevent blanket seizures on vehicles but I think it has greater risks.

 

If the debtor isn't in, and the bailiff doesn't want to risk losing his clamp then the only thing to do is remove the vehicle now.

 

We will see whether the new laws relating to interference with controlled goods are taken seriously by the Police. I can assure you it's not only debtors that get told 'it's a civil matter'....

 

 

See 68(2) below...

 

http://www.legislation.gov.uk/ukpga/2007/15/schedule/12

 

68(1) A person is guilty of an offence if he intentionally obstructs a person lawfully acting as an enforcement agent.

 

(2) A person is guilty of an offence if he intentionally interferes with controlled goods without lawful excuse.

 

(3) A person guilty of an offence under this paragraph is liable on summary conviction to—

 

(a) imprisonment for a term not exceeding 51 weeks, or

 

(b) a fine not exceeding level 4 (£2,500) on the standard scale, or

 

© both.

 

(4) In relation to an offence committed before the commencement of section 281(5) of the Criminal Justice Act 2003 (c. 44), the reference in sub-paragraph (3)(a) to 51 weeks is to be read as a reference to 6 months.

 

 

 

It is going to be very much down to whether a certificated bailiff or HCEO can prove they have lawful authority to seize vehicles. All too often, I see examples of certificated bailiffs blatantly lying to the police and misrepresenting their powers in order to seize goods or vehicles or to gain irregular or illegal entry to premises or homes.

 

On another site where I post, there is a case where a certificated bailiff told police he had a warrant for the OP's arrest and the police officers in attendance, thinking this to be the case, arrested the OP, thus allowing the bailiff to walk into the OP's home and rifle through their belongings. It has now transpired that the bailiff was lying through their teeth, no arrest warrant was in existence and the matter is now with the appropriate HMCTS Area Enforcement Team and the OP has been advised to refer the police officers' actions to the Professional Standards Department of the police force involved or, alternatively, the IPCC.

 

As a retired police officer, I can assure those reading this post that the officers in the case I have outlined above, potentially, stand to lose their jobs because of the bailiff's dishonesty. Given, they should have checked, but, then, why are police forces not ensuring their officers are properly-trained to deal with the rogue elements within the civil enforcement industry and why is the civil enforcement industry seemingly turning a blind eye to what is, essentially, criminal behaviour by certificated bailiffs?

 

The civil enforcement industry has had plenty of opportunities to get its house in order and to rid itself of the Rent-A-Thug image it has had for many years by sacking those who cross the line and ensuring they are never able to obtain or seek employment in civil enforcement again. However, it appears that as long as the money is coming in and they can fob off those who are injured by violent bailiffs or have their property unlawfully and, in many cases, illegally seized and sold to satisfy another's debts with a few hundred pounds in compensation, that is okay.

 

Well, it's not okay. The civil enforcement industry needs to face up to some very harsh and, probably, unpalatable facts about itself and that if it continues to carry on as it has been, it could well find itself peering over the edge into an abyss from which there is no return. And by this I refer to the end of civil enforcement altogether.

 

The gauntlet is now down and it is up to the civil enforcement industry to prove to everyone it can behave in a responsible manner and ensure those who work within it behave in accordance with the law. However, come April 6, I have a very strong feeling we shall see the civil enforcement industry writing its own suicide note and hurtling over the edge and into the abyss of no return.

[old bill]

Ploddertom.

 

Your response is spot on.

 

My concern with this is that at present, we find that solicitors representing BAILIFF COMPANIES routinely represent LOCAL AUTHORITIES and they merely agree with the creditor (in this case the local authority) that they will underwrite any legal fees etc.

 

I wrote to JK about this last night.

 

If what you are saying is correct, TT, that is a conflict of interest, per se, and could give rise to a complaint of professional misconduct to the appropriate legal regulatory body. Notwithstanding, it may also give rise to proceedings against the creditor, especially if the creditor is a public authority.

[old bill]

so to ask a question.... under the proposed legislation if my daughter owes money for unpaid parking tickets and a bailiff comes looking for something to remove and takes my £20k car for a £700 debt I have to stump up £20k surety to get an interpleader hearing at a high court rather than just reporting the theft of my property as the bailiff will have the powers necessary to be protected from the normal course of justice but if I stop the bailiff from removing my property I can get a year in chokey?

 

If the law is applied as it should be applied, no. Every bailiff/HCEO knows very well they can only lawfully seize goods belonging to the debtor named on a distress warrant or other order, which are worded very specifically and must be complied with to the letter. If you catch the bailiff trying to interfere with your vehicle and he has no lawful authority to do so, then, yes, you have the right to use as much reasonable force as is necessary to protect your possessions. No lawful authority means no authority or right to interfere with, seize or remove goods or vehicles belonging to those other than the debtor named on the warrant or order.

 

Except in the case of a body corporate, the interpleader is, in my view, an unlawful restriction of and/or destruction of a person's inalienable and inviolate right to enjoy their possessions without interference by the State or other public authority. Article 1 of the First Protocol of the Rome Convention confers this right. Article 17 of the Convention prohibits the destruction of Convention rights and Article 18 prohibits any restriction of Convention rights, other than as permitted by the Convention. Also, I would argue that, in the case of the new legislation, it unjustifiably enriches a creditor and rewards dishonesty and unlawful and/or illegal behaviour.

 

If you are a rugby man and have the good fortune to catch the bailiff in the act of interfering with your £20,000 motor, you could always drop-kick them and watch as they sail through the air and over the fence into next-door's garden or driveway. Not being a rugby man myself, I believe you score three points for a conversion.

[tomtubby]

so to ask a question.... under the proposed legislation if my daughter owes money for unpaid parking tickets and a bailiff comes looking for something to remove and takes my £20k car for a £700 debt I have to stump up £20k surety to get an Interpleader hearing at a high court rather than just reporting the theft of my property as the bailiff will have the powers necessary to be protected from the normal course of justice but if I stop the bailiff from removing my property I can get a year in chokey?

 

In 'theory' you would have to pay a surety of £20k into court but there would be some hurdles to "jump through" first.

 

Firstly, it would be for the court to make such an order and NOT a bailiff company.

 

The position as it is at present with High Court enforcement is that a VERY SIMPLE Third Party Claim letter is sent to the enforcement company and they are duty bound to immediately send a copy onto the CREDITOR to effectively seek their agreement to release the goods previously seized. The decision on whether to release the goods rests solely with the CREDITOR.

 

Personally I have been drafting Third Party Claim letters for the best part of 7 or 8 years and so far...not ONE has ever been rejected!!! As long as the Third Party Claim has been properly drafted and the 'third party' (who own the goods) can provide sufficient documentation then this 'Preliminary Interpleader' works exceedingly well.

 

'Behind the scenes' I have provided the Ministry of Justice and the Civil Procedure Rule Committee with full details and I cannot for the life of me understand why the same procedure should not be used for government debts (council tax/parking charge notices).

[brassnecked]

so to ask a question.... under the proposed legislation if my daughter owes money for unpaid parking tickets and a bailiff comes looking for something to remove and takes my £20k car for a £700 debt I have to stump up £20k surety to get an interpleader hearing at a high court rather than just reporting the theft of my property as the bailiff will have the powers necessary to be protected from the normal course of justice but if I stop the bailiff from removing my property I can get a year in chokey?

If they go on a seizing spree quite possibly, but as tomtubby has pointed out it should not go that far.

[tomtubby]

 

The position as it is at present with High Court enforcement is that a VERY SIMPLE Third Party Claim letter is sent to the enforcement company and they are duty bound to immediately send a copy onto the CREDITOR to effectively seek their agreement to release the goods previously seized. The decision on whether to release the goods rests solely with the CREDITOR.

 

Personally I have been drafting Third Party Claim letters for the best part of 7 or 8 years and so far...not ONE has ever been rejected!!! As long as the Third Party Claim has been properly drafted and the 'third party' (who own the goods) can provide sufficient documentation then this 'Preliminary Interpleader' works exceedingly well.

 

'Behind the scenes' I have provided the Ministry of Justice and the Civil Procedure Rule Committee with full details and I cannot for the life of me understand why the same procedure should not be used for government debts (council tax/parking charge notices).

.

 

I have set aside all of next week to put together simple guidance (if that is possible) regarding the new enforcement regulations that take effect on April 6th. This will be a difficult task given that the Ministry of Justice have been extremely slow in releasing information and this is not helped by the fact that so many different statutory regulations are involved. To demonstrate the 'lateness' it was only at 6pm last night that we saw the release of guidance from HMRC concerning how VAT is to be applied (I will address this is the appropriate thread....). It is important not to go 'off topic'.

 

During next week I have also offered to assist the site team by putting together helpful "Sticky's). Next week will be a very busy one.

 

With regards to 'Third Party Claims'. I will not change my opinion that this clause has serious potential to lead to significant complaints and time will only tell whether I am right or wrong.

 

I am however pleased that the Ministry of Justice have finally seen sense and there will now be a similar procedure to that outlined in blue above and only if the 'creditor' rejects the 'preliminary Third Party Claim' will there be a need to make an application to court.

 

A further point that I should make is that this procedure will also apply where a debtor considers that goods that have been seized are considered 'exempt" (ie: for business use).

 

As I say....there will be more next week.

 

All in all....a partial success......

[old bill]

What the civil servants at the MoJ and the civil enforcement industry appear not to have taken account of is that human rights law allows the courts to strike down secondary legislation. In layman's terms, "strike down" means that secondary legislation or any provision(s) contained therein is brought to an end. The new regulations are secondary legislation and an increasing number of judges are beginning to question what is going on instead of behaving like rubber-stamping clowns as some judges do. It will be interesting to see just how long it is before the new regulations get put to the test of compatibility under human rights law and face strike-down.

[brassnecked]

Oldbill could be right on that one, the Judiciary are becoming increasingly disenchanted with the lawmakers in government and their badly drafted legislation, so it's hang on there it could be a bumpy ride this year.

[wonkeydonkey]

Everything TT has posted to date has been well written and I for one would like to thank her for keeping us all updated to this new legislation and the mine field it is a central to.

 

She is working her butt off to provide guidance for visitors and members of cag in a simple form so can I suggest we focus on helping her to achieve that aim by not complicating matters by digressing into other fields.

 

Issues surrounding human rights are imho complex but interesting, while I do not doubt Old Bill could enlighten us all on the subject, I feel it would serve a better purpose if he were to start a new discussion thread on the way human rights can be seen to encompass the new legislation.

 

While on my soapbox can I draw attention to some superb articles written by David Carter of the Sheriffs Office, albeit they are written from the other side of the fence, they are definitely worth a read and offer answers to a lot of the issues we see popping up here on cag

Edited March 27, 2014 by ploddertom
Typo edited

[tomtubby]

Wonkey Donkey,

 

Thank you. You have addressed my own concerns that I was going to raise later. It is very clear indeed that there is certainly a desperate need for a 'discussion' thread on the new regs that take effect on 6th April and 'old bill' has highlighted some excellent areas of concern (which will of course probably only be addressed by way of Judicial Review). What I am trying to do is to ensure that each thread is kept focused ONLY on the subject matter. In that way visitors will only have to look through a couple of pages (at most) of information instead of being diverted by debates about the rights of wrongs of the new legislation.

[wonkeydonkey]

Not only are we judged to be 'scissor sisters' but it seems we also think alike... it is very important indeed that visitors and members can find the info they need without the thread becoming a 'book at bedtime'. It would be good to get to grips with the human rights aspect to the new regulations and I hope 'old bill can assist with educating us.

[brassnecked]

Not only are we judged to be 'scissor sisters' but it seems we also think alike... it is very important indeed that visitors and members can find the info they need without the thread becoming a 'book at bedtime'. It would be good to get to grips with the human rights aspect to the new regulations and I hope 'old bill can assist with educating us.

That would be good, but as you rightly indicate a thread of its own, there is too much detail and areas to look at so each of TT's threads on the new regs needs to be focused on it's main point.

[tomtubby]

The matter of these 'Interpleader' has got a lot worse.

 

As many on this forum are aware, I have very serious concerns indeed regarding the 'Interpleader' applications and, with the new regulations just days away I wanted to ensure that I had the correct information regarding the fees that would be payable (which I understood to be £80).

 

Late on Tuesday information came my way that HMCTS have actually INCREASED the fee by nearly double to £155 !!!

 

The 'midnight oil' was burning late into the evening that day with email exchanges with 'experts' in this field and unfortunately, it was discovered early yesterday that my information was correct in that the wronged debtor will have to pay a fee of £155 for such an application.

 

The implications are immense. Not only will this significant fee apply to 'Interpleader' application but it will also apply to debtors seeking a 'review' of their Out of Time witness statement and it will also apply to any applications to set aside or stay a judgment.

 

CIVEA and the High Court Enforcement Officers Association appear not to have known about this fee increase until the news broke early yesterday morning.

 

As always, I will not let this matter drop.

 

PS: The new fee takes effect from 22nd April

[brassnecked]

" the wronged debtor will have to pay a fee of £155 for such an application."

Don't you mean the "Non Debtor"as in third party?This is appalling, as it will effectively allow the bailiffs oops Enforcement Agent free reign, especially on those joint MET bailiff ANPR operations, and the new owner stands to lose the car as they cannot afford the cost of an interpleader which the bailiff may insist on as they won't accept a private sale receipt, and DVLA have not sorted a transfer.

 

MOJ unfortunantely asre urged to run as a "For Profit" organisation so will be raising fees as a revenue gathering exercise claiming that they need to go up to catch up with inflation I fear. Either way they have crippled access to a stay and variation for some of the HCEO cases of low income families chased by water companies, making their debt virtually unpayable.

[lamma]

The implications are immense. Not only will this significant fee apply to 'Interpleader' application but it will also apply to debtors seeking a 'review' of their Out of Time witness statement and it will also apply to any applications to set aside or stay a judgment.

Immense indeed. Utterly appalling. The policy behind this makes itself even clearer now.

Naked cash (and asset) extraction.

[brassnecked]

Immense indeed. Utterly appalling. The policy behind this makes itself even clearer now.

Naked cash (and asset) extraction.

Well the enforcement industry seems to have had the best lobbyists on the job and I wonder if JGJ showed a bit of leg also

[tomtubby]

I am shocked !!!

 

Only a few moments ago I heard that a debtor allowed a bailiff (sorry....enforcement agent) into his home this morning regarding an outstanding parking charge notice. The debtor does not have a car any longer and the EA advised the debtor that new laws took effect yesterday that allow for him to take 3rd party goods (in this case his sister's car) as the warrant is against the address and not the individual. `When the EA was questioned be said that he has been told by his employer to seize 3rd parties goods from today as this focuses the debtor to find the money to pay the debt.

 

At the present time that police are in attendance.

[avfc1]

I hope you've told the debtor to get these quotes recorded?

 

 

A fit & proper person is expected to have sufficient knowledge of the law & the procedure of taking control of goods. Misleading a debtor is improper conduct

 

 

This EA has displayed total lack of the 2 elementary requirements to hold a certificate.

[HCEOs]

I presume this is a transitional case (broken arrangement) as clearly the '7 clear days' Notice of Enforcement could not have expired yet?

 

And if that really was the advise regarding 3rd party goods there are going to be some serious issues fr the company concerned.

 

I wonder if the debtor is being entirely truthful or has misunderstood what has been said...