New bailiff law questions

[FEP]

I have been reading through all the new law - Part 3 of the Tribunals, Courts and Enforcement act 2007 (TCEA); Schedule 12 of TCEA (Sch. 12); the Taking Control of Goods Regulations 2013 (TCGR); and The Taking Control of Goods (Fees) Regulations 2014 (TCGFR).

 

A number of points arise and I would be very grateful for the viewpoints of the experts here.

 

I know that I don't post here often (and never before with regard to bailiffs as the area has been a bit of a black hole for me in the past), but I do genuinely hope that my questions will be helpful and spark valuable debate.

 

1. Reading paragraph 14 of Sch. 12 very carefully, does it not give an enforcement agent (EA) the right to enter premises without a warrant? 'Relevant premises' are defined without any statement that the 'debtor' must be the debtor on the relevant warrant. Am I missing something?

 

2. What on earth is a vulnerable person in Regulations 10 and 23 of TCGR and Regulation 12 of TCGFR? Or at least what is a vulnerable person for the purposes of this law? Is there not huge scope for litigation over this point with complete lack of certainty until the upper courts have set a precedent? The parent Act (TCEA) gives no definition. Is there a current common law definition that will still be effective?

 

3. For that matter, what is "adequate opportunity to get assistance and advice" in TCGFR 12? More bothering of the courts?

 

4. What happens if an EA secures a vehicle on the highway, on say - a double yellow line. It has to be left there for a minimum of 2 hours before he can remove it. Who is liable for the resulting PCN and indeed potential removal by police or local highway authority/council? How is this resolved pre April 6th if it indeed comes up?

 

5. In TCGR Regulation 19 what is a 'reasonable distance away' for the purposes of storing goods removed?

 

6. What is to stop an EA charging 'unreasonable' fees for disbursements? So, for example, if they inform the debtor that vehicle storage is £100 a day AND they fail to arrange a sale for three months. The statute does not appear to provide any mechanism to stop this OR to allow a court to deem such fees excessive.

 

7. How will the percentage fees be worked out in the case of multiple enforcement where both County Court and High Court warrants are involved? The TCGFR (Regulation 11) suggest that the total amount of sums to be recovered would be used to calculate the percentages. How does that work with different thresholds?

 

8. How on earth will the £1,350 limit for exempt goods in TCGR Regulation 4 work? If the only goods available is a £10,000 van, can it be taken or not? The 'aggregate' value of the van is more that £1,350. Does that mean that the wholle van is not exempt? If the same van has 11 tools in the back, 10 worth £135 and 1 worth £8,650, can the bailiff choose to take the van and leave the tools? (Assuming he debt is circa £10,000).

 

9. On the thorny issue of 3rd party goods, whilst one theory is that EA's will have to be very cautious about taking goods that with reasonable enquiries they would have had notice were not the debtor's, don't the various rules about transfers of title and requirements for good faith, mean that it would be easy for an EA to argue that they had ENOUGH reason to believe that the goods MAY have belonged to the debtor. Clearly a debtor would be likely to claim that goods either never belonged to them, or have been recently transferred (without notice and for good consideration etc). An EA could surely argue that it would be very hard for them to be certain that the goods did not at least in part belong to the debtor.

 

10. Does Regulation 10(2) of TCGR mean that if a motorist (stopped by a police/EA joint action) makes it clear that he is going to run around screaming at the top of his voice if his car is taken, that the EA cannot really take it (or take control of it)?

 

That's about all for now!

 

Regards,

 

FEP

[brassnecked]

Hi FEP as you can see there will be chaos. I'm sure Tomtubby's stickies will answer most of your points, but there will be confusion and a great deal of shenanigans from bailiffs, oops Enforcement Agents, whilst the new almost equally broken regime is introduced

[tomtubby]

FEP

 

Excellent questions and sadly, the answer to some of them will only be decided by way of court action. It is without doubt that such extensive regulations will be subject to legal challenge and this in itself is fraught with difficulty given that the new regulations are contained in so many different statutory regulations (with more regs due before 6th April) and this will of course mean that anyone taking legal proceedings could find themselves paying a fortune on legal bills.

 

'No win..no Fee' solicitors will NOT want to have anything to do with claims under the new regs as they would be required to examine too many statutory instruments (and ones that have never before been tested in courts). Such solicitors would run a mile from any legal challenges being made under the new regs. They would be looking at 'easy to win' case....not experimental ones.

 

Last Wednesday I was contacted by a BARRISTER to ask me whether I could provide her with a list of the precise statutory regulations where different parts of the new regulations are outlined and details of any news regs that are due to be laid before Parliament before implementation and details too of the statutory regulations that are being revoked on 6th April. On Friday she contacted me again and she was shocked. Quite rightly, she commented that the regulations are EXTENSIVE and difficult to understand and are very 'one sided' in favour of the bailiff.

[tomtubby]

As brassnecked has confirmed, I have offered to put together 'easy to understand' guidance that will apply from 6th April and in this respect, in order to ensure that visitors to this forum are not confused I will try where possible to ensure that I do NOT provide links to different statutory regulations. In rare cases it may be necessary but in practice I will avoid referring to the statutory regulations.

 

Such links will merely confuse the public even more than they are now.

 

Naturally I will be updating the Guidance and Stickies on a very frequent basis.

[brassnecked]

Thanks for the above TT, if Barristers are astounded, then we are in a bit of a pickle (sic) I came to the same conclusion as yourself in that the new regs favour the enforcers much more than any affected debtor who stands to be seriously at a disadvantage. It almost makes youi wonder if they are making sure that poor people adversely affected and hit in the pocket by benefit changes have no escape from their State inflicted debt, as in council tax and for some Bedroom Tax. Julie Green Jones must have flashed a leg, sorry made a strong case to MOJ to favour the bailiffs point of view over and above the advice sector.]

 

I am aghast that with just a week to go MOJ are still spewing information and guidance on this pigs ear, giving clarity NOT. And bailiffs are training LAs in the bew rules. Truly the inmantes of Bedlam are running the show. Douglas Adams was right in "So Long and Thanks For All The Fish" that we are in the asylum and the lunatics are running things

[2ltr16valve]

Can the unfair agreements regs be used with this ?

Being your forced into an unfair relationship that is sided with the bailiff !

[brassnecked]

Can the unfair agreements regs be used with this ?

Being your forced into an unfair relationship that is sided with the bailiff !

 

Unlikely, as it is the state that is imposing the regime; however, all law must now comply with and be compatible with The Human Rights Act, and the Articles of the European convention on Human Rights. It may be that this new mish mash may be found incompatible with parts of that particular law.

[FEP]

Can the unfair agreements regs be used with this ?

Being your forced into an unfair relationship that is sided with the bailiff !

 

Er...NO!

 

Unfair Terms in Consumer Contract Regulations 1999:

 

4.— Terms to which these Regulations apply

 

(1) These Regulations apply in relation to unfair terms in contracts concluded between a seller or

a supplier and a consumer .

 

(2) These Regulations do not apply to contractual terms which reflect–

 

(a) mandatory statutory or regulatory provisions (including such provisions under the law

of any Member State or in [ EU ] legislation having effect in the United Kingdom without

further enactment);

...

[2ltr16valve]

Er...NO!

 

Unfair Terms in Consumer Contract Regulations 1999:

 

4.— Terms to which these Regulations apply

 

(1) These Regulations apply in relation to unfair terms in contracts concluded between a seller or

a supplier and a consumer .

 

(2) These Regulations do not apply to contractual terms which reflect–

 

(a) mandatory statutory or regulatory provisions (including such provisions under the law

of any Member State or in [ EU ] legislation having effect in the United Kingdom without

further enactment);

...

 

Oh well. Was just a thought.

 

So looks to be the human rights act is the only possible challenge

There's got to be something else. Eg. This bedroom tax thing. Looked to be pretty watertight but now we know it's full of holes.

[brassnecked]

Oh well. Was just a thought.

 

So looks to be the human rights act is the only possible challenge

There's got to be something else. Eg. This bedroom tax thing. Looked to be pretty watertight but now we know it's full of holes.

 

The new rules are not Primary Legislation so it may be possible to get the most egregious parts struck down by the appeal courts, perhaps the interpleader part may go that way if the bailiffs go on a seizing spree clamping and removing third party vehicles, ignoring evidence of ownership provided, and selling on these vehicles as the owner cannot afford the cost of going to interpleader.

[lamma]

Unlikely, as it is the state that is imposing the regime; however, all law must now comply with and be compatible with The Human Rights Act, and the Articles of the European convention on Human Rights. It may be that this new mish mash may be found incompatible with parts of that particular law.

I fear the new regime would fail at ECHR on the same ratio that the current (old) regime failed.

And of course getting to the ECHR is no quick (or cheap) ride.

It is the tsunami on April 6th that we should focus on.

[brassnecked]

I fear the new regime would fail at ECHR on the same ratio that the current (old) regime failed.

And of course getting to the ECHR is no quick (or cheap) ride.

It is the tsunami on April 6th that we should focus on.

 

I have to agree with your opinion, the legislation is flawed and in all propability breaches HRA and ECHR, but yes April 6th will be a new low in the war on the impoverished.

 

It is all well and good bailiffs crowing that people owe money, but in extremis, if through whatever change in circumstance, be it accident causing disability or redundancy etc, heaping fees for the dubious privilege of being in debt and thereby making the debt more onerous and less likely to be paid off is counter productive.

[lamma]

That depends on whose definition of "productive" you use.

Patently the legislators, and so the policy makers behind the legislation, are using one that is alien to the one understood by the population.

This is not the place for politics but I put it out that the intent of the legislation clear and leave it at that.

[tomtubby]

I agree that complaints regarding the Human Rights Act may well arise but we have to remember that in order to PROVE this there needs to be a debtor (or better still...a group of debtors) willing to spend a lot of money seeking such a challenge through the courts. A 'no win...no fee' firm will run a mile from such a legal case as they will merely be seeking to take on claims that are easy to win and are clear cut.

[brassnecked]

That depends on whose definition of "productive" you use.

Patently the legislators, and so the policy makers behind the legislation, are using one that is alien to the one understood by the population.

This is not the place for politics but I put it out that the intent of the legislation clear and leave it at that.

There can be no doubt of that.

[mikeymack2002]

I have started a new thread with many questions to the MOJ including some from many thread throughout this section, it was a very in depth list of questions but also made a shorter version as well this thread can be found here http://www.consumeractiongroup.co.uk/forum/showthread.php?421319-I-emailed-MOJ-today(18-Viewing)-nbsp

 

 

Many of the basic questions can be found by reading the new Act in full, but to be honest the MOJ have failed to put out a basic English version for the general public to easily understand, so hopefully the reply I will get from the MOJ will allow me to post up the contents of the letter/email as soon as it becomes available.

 

 

I know some Caggers will be making several posts in the next few days as to answer the many questions that are still un-answered, hopefully with the "basic English version" if it ever arrives will put some really good points across in a far simpler way for us to understand

 

 

MM

[brassnecked]

I agree that complaints regarding the Human Rights Act may well arise but we have to remember that in order to PROVE this there needs to be a debtor (or better still...a group of debtors) willing to spend a lot of money seeking such a challenge through the courts. A 'no win...no fee' firm will run a mile from such a legal case as they will merely be seeking to take on claims that are easy to win and are clear cut.

 

Might be that a group of debtors persuade the National Pro bono Centre to help

[lamma]

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ie/other/IELRC/2009/cp56.html

[mikeymack2002]

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ie/other/IELRC/2009/cp56.html

 

 

how does the Irish law help here? MM

[lamma]

Read the case, and the relevant cited ones, for the ECHR view on this issue.

[mikeymack2002]

I am really enjoying the read thx