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    • Hi thanks so much for the update and all the information. I will get my reading glasses on and look at the claim info and court info.  I agree let’s proceed issuing a letter straight away.  I am happy to stump the fees for court and am confident we will win.  The police officer I have dealt with has secured further CCTV evidence which I will ask a solicitor friend to get hold of from the Hermes parcel shop should we need any further evidence the parcel was dropped and collected.  Once I have read all the pages on here I will start putting the letter together and post on here for further advice.  thanks again,  mark 
    • The reason that I have indicated that it is the seller who should bring an action against Hermes is not because they are the seller – but because they are the person who suffered the loss. If you haven't suffered a loss then you probably don't have the status – locus standi – to bring a court action. Of course there is a slight problem that you didn't enter into the contract with Hermes – the purchaser did. Until 1999 this would have been a problem and would have prevented you from bringing any kind of action at all – at least on the basis of contract. However, since 1999, the Contracts (Rights of Third Parties) Act gives the beneficiary of any contract full third party rights as if they were a contracting party. The only exception to this is that if the contract specifically excluded non-contracting parties – and I'm not aware that Hermes has yet amended their contract to try and prevent this. Of course as usual, Hermes will make a big point about the fact that no insurance was purchased. Hopefully you have been reading around the threads on this sub- forum and you have seen that our view is that it is completely unfair and in fact it is absurd to require a customer to pay money to protect Hermes or any other service provider from the consequences of their own negligence or the criminality of their own employees. Every time this point has been raised with Hermes in mediation, Hermes have settled and we consider that it is because they want to avoid going to court to get a definitive judgement that their insurance scam – is precisely that – a scam. On the basis of what I understand here, this is more than just negligence there is criminality and your bike has been stolen. You've already begun a complaint and you have been knocked back and so I think there's no point in mucking around and I think that you should simply issue a letter of claim to Hermes giving them 14 days to settle in full or else you will begin a court action. Make sure that you have read around the forum about taking a small claim in the County Court. It's very easy but you need to be aware of the steps. If you send the letter of claim, then don't expect that they are suddenly going to refund you your money. They won't. They will force you to issue the court papers and who will then force you to pay the hearing fee. At this point, they will opt for mediation and they will try to knock you down and get your compromise in your claim. You should stand your ground and refused to compromise even a single penny. We will help you all the way. You seem to be a seller and a purchaser here who are getting on very well together and so as you are motivated by a common purpose, you may want to get an agreement where you decide to share the fees of court action – which won't be very much. I haven't checked the court fees for this value claim – but I expect that the whole thing will be only about £120. Of course you will get that back when you win – but bear in mind there is a is a slight risk factor and that means that £120 would be the extent of your risk and would be the maximum that you would lose. It is inconceivable that you would lose. You should be claiming the cost of the bike, the cost of delivery, plus interest which is presently 8% – a very good rate in today's economic climate. Of course you will also claim back your court fees. If you want to proceed then please let us know and let us know also that you have read around the stories and also the steps involved taking a small claim in the County Court and that you understand what you are doing. If you do your basic reading over the next couple of days then we can help you draft a letter of claim on Sunday and you can send it off on Monday. I would recommend that you post your draft letter of claim on this forum so we can check it. Keep it short and to the point.
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    • I sent in the bailiffs to the BBC. They collected £350. It made me smile.
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    • Hi @BankFodder
      Sorry for only updating you now, but after your guidance with submitting the claim it was pretty straight forward and I didn't want to unnecessarily waste your time. Especially with this guide you wrote here, so many thanks for that
      So I issued the claim on day 15 and they requested more time to respond.
      They took until the last day to respond and denied the claim, unsurprisingly saying my contract was with Packlink and not with them.
       
      I opted for mediation, and it played out very similarly to other people's experiences.
       
      In the first call I outlined my case, and I referred to the Contracts (Rights of Third Parties) Act 1999 as the reason to why I do in fact have a contract with them. 
       
      In the second call the mediator came back with an offer of the full amount of the phone and postage £146.93, but not the court costs. I said I was not willing to accept this and the mediator came across as a bit irritated that I would not accept this and said I should be flexible. I insisted that the law was on my side and I was willing to take them to court. The mediator went back to Hermes with what I said.
       
      In the third call the mediator said that they would offer the full amount. However, he said that Hermes still thought that I should have taken the case against Packlink instead, and that they would try to recover the court costs themselves from Packlink.
       
      To be fair to them, if Packlink wasn't based in Spain I would've made the claim against them instead. But since they are overseas and the law lets me take action against Hermes directly, it's the best way of trying to recover the money.
       
      So this is a great win. Thank you so much for your help and all of the resources available on this site. It has helped me so much especially as someone who does not know anything about making money claims.
       
      Many thanks, stay safe and have a good Christmas!
       
       
        • Thanks
    • Hermes and mediation hints. https://www.consumeractiongroup.co.uk/topic/428981-hermes-and-mediation-hints/&do=findComment&comment=5080003
      • 1 reply
    • Natwest Bank Transfer Fraud Call HMRC Please help. https://www.consumeractiongroup.co.uk/topic/428951-natwest-bank-transfer-fraud-call-hmrc-please-help/&do=findComment&comment=5079786
      • 33 replies

Magistrate's Court FINES and the new bailiff regulations. Explanation from the Ministry of Justice.


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The new bailiff enforcement regulations came into effect on 6th April 2014 and a short while later an individual made a Freedom of Information request to the Ministry of Justice seeking clarification on the legal basis for court fines to be covered by the new regulations. On 1st July 2014 I posted a copy of MOJ’s response on the forum and that thread received a lot of views.

 

Unfortunately, there continues to be significant misunderstanding about bailiff fees for Magistrate Court fine and yesterday yet another video was uploaded onto YouTube regarding a debtor who filmed a visit from a Marston Group bailiff regarding two Magistrate Court fines and where the debtor had sought advice from the Beat the Bailiffs and the Banks Facebook page that paying the amount only of the court fine to the court (minus bailiff fees) would clear the warrant (which of course it does not).

 

For public interest sake it may assist if I post the Ministry of Justice’s response once again together with some further useful information.

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The Ministry of Justice's response was provided by a senior person with responsibility for the new regulations.

 

 

"I am replying as a policy official working on civil enforcement policy.

 

I am not able to provide advice or comment on any legal points you have raised. I hope that it may be helpful, however, to set out the provisions in the Tribunals, Courts and Enforcement Act 2007 and underpinning regulations that apply to enforcement agents which may address some of your issues.

 

By virtue of section 62 of the Tribunals, Courts and Enforcement Act 2007, the power conferred by a writ or warrant of control to recover a sum of money is exercisable only by using the procedure in Schedule 12 to that Act
("the Schedule 12 procedure")
, and warrants of distress are renamed warrants of control so that the Schedule 12 procedure must be used for what were previously warrants of distress for recovery of unpaid fines and are now renamed as warrants of control (see also the amendment of the Magistrates' Courts Act 1981 by
paragraph 46 of Schedule 13
to the 2007 Act).

 

The Taking Control of Goods (Fees) Regulations 2014 make provision for the recovery of fees and disbursements from debtors by enforcement agents in relation to the procedure for taking control of goods under
Schedule 12 to the Tribunals, Courts and Enforcement Act 2007.

 

Regulation 4(3) provides that the enforcement agent may recover under this regulation the whole fee provided in the Schedule for a stage where the amount outstanding is paid after the commencement, but before completion, of that stage.

 

Regulation 5 sets out the stages of enforcement for which fees may be recovered where enforcement is other than under a High Court writ (and so covers enforcement under, for example, a warrant issued by a magistrates' court).

 

The enforcement power under
Schedule 12
of the Tribunals, Courts and Enforcement Act 2007 is for the amount outstanding which is defined in paragraph 50(3). The amount outstanding is the sum of these -

 

(a) the amount of the debt which remains unpaid (or an amount that the creditor agrees to accept in full satisfaction of the debt;

 

(b) any amounts recoverable out of proceeds in accordance with regulations under paragraph 62 (costs).

 

 

The regulations under paragraph 62 (costs) are the Taking Control of Goods (Fees) Regulations 2014 referred to above

 

Paragraph 50(2) of
Schedule 12
states that " Proceeds are any of these -

 

(a) proceeds of sale or disposal of controlled goods

 

(b) money taken in exercise of the power ".

 

Regulation 4(2) of the Taking Control of Goods (Fees) Regulations 2014 provides for the enforcement agent's fees to be recovered out of proceeds. There are no other provisions for recovery.

 

 

Paragraph 17 of
Schedule 12
provides for an enforcement agent, if necessary, to use reasonable force to enter premises or to do anything for which entry is authorised.

 

Paragraph 18(b) of
Schedule 12
sets out as a qualifying condition for the use of force that the enforcement agent is acting under an enforcement power conferred by a warrant of control under section 76(1) of the Magistrates Court Act 1980 for the recovery of the sum adjudged to be paid by a conviction. Paragraph 18© sets out a condition that the enforcement agent is entitled to execute a warrant by virtue of section 125A (civilian enforcement officer) or 125B (approved enforcement agencies) of that Act.

 

Paragraph 27 of
Schedule 12
provides that the enforcement agent may take other people on the premises and they may assist him in exercising any power, including the power to use force.

 

An enforcement agent can secure a vehicle other than on a highway under Regulation 17 of the Taking Control of Goods Regulations 2013, and can secure a vehicle on a highway under Regulation 18 of those Regulations"

 

 

Regards

 

Enforcement Reform

Ministry of Justice | 4th Floor post point 4.37 | 102 Petty France | London SW1H 9AJ
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By virtue of section 62 of the Tribunals, Courts and Enforcement Act 2007, the power conferred by a writ or warrant of control to recover a sum of money is exercisable only by using the procedure in Schedule 12 to that Act ("the Schedule 12 procedure"), and warrants of distress are renamed warrants of control so that the Schedule 12 procedure must be used for what were previously warrants of distress for recovery of unpaid fines and are now renamed as warrants of control (see also the amendment of the Magistrates' Courts Act 1981 by paragraph 46 of Schedule 13 to the 2007 Act).

 

The Ministry of Justice is making the point very clear here that paragraph 46 of Schedule 13 of the Tribunal Court & Enforcement Act 2007 amended the Magistrates' Courts Act 1981 to provide that Distress Warrants are renamed Warrants of Control and that the enforcement of these warrants will in future be undertaken in accordance with the Schedule 12 procedure of the Tribunal Courts & Enforcement Act 2007.

 

On the same date that the new regulations came into effect (6th April 2014) the government introduced the following regulations:

 

The Taking Control of Goods Regulations 2013

 

Taking Control of Goods (Fees) 2014

 

and the:

 

Tribunals, Courts and Enforcement Act 2007 (Consequential, Transitional and Saving Provision) Order 2014.

 

The 'consequential' regs above outline once again that enforcement of all debts (including Magistrate Court fines may only be enforced by way of the 'Schedule 12 procedure' (as confirmed by the Ministry of Justice).

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A link to the Tribunals, Courts and Enforcement Act 2007 (Consequential, Transitional and Saving Provision) Order 2014 is below

 

http://www.legislation.gov.uk/uksi/2014/600/schedule/made?view=plain

 

 

This regulation outlines how each debt type has been amended to allow for continued enforcement to be by way of the 'Schedule 12" procedure (and with it the accompanying Taking Control of Goods 2014). For ease of reference the relevant paragraphs are outlined below:

 

 

Part 1: Amendment of Magistrate Court Rules:

 

Section 1: Magistrate Court. amendment of Magistrates’ Courts Rules

 

(d):Execution of Distress Warrant

 

(cc) for “levy the said sum by distress and sale of the goods belonging to the said person substitute “recover the said sum from the debtor by way of the Schedule 12 procedure"

 

 

 

Part 2: Amendment of Non-Domestic Rating (Collection and Enforcement) Regulations

 

Item 2 (b) Enforcement by taking control of goods

 

Where a liability order has been made, payment may be enforced by using the Schedule 12 procedure.”;

 

 

 

Part 3: Amendment of Council Tax (Administration and Enforcement) Regulations

 

Item 3 ©: Enforcement by taking control of good

 

Where a liability order has been made, payment may be enforced by using the Schedule 12 procedure.”;

 

 

 

Section 5:Amendment of Enforcement of Road Traffic Debts Order

 

in paragraph (4), for “execution” substitute “the use of the Schedule 12 procedure”;

 

 

 

Note:

 

For the avoidance of doubt, the Schedule 12 procedure is to be used to each debt type (including Magistrate Court fines). Each debt type has the same fee scale scale (Compliance fee of £75 and Enforcement fee of £235).

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It is a little disturbing there is still misunderstanding about this. The position has been repeated over and over again in various places, and by various people / organisations. Clearly some on FB still see things differently. I've read a lot about Beat the Bailiffs and the Banks recently, but can't access it from my wife's FB page and I disabled mine months ago. I assume this is one of those pages that anyone can set up connected to their account - they are known to be open to abuse as usually it is possible to join them very easily. SWMBO wouldn't let me ask to join as she doesn't want lots of notifications - a shame as I'd quite like to read it.

 

It never does any harm to repeat the true state of play, though I imagine you could pretty much type this in your sleep now.

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Good to see this back up again.

 

I suppose it should be mentioned that the "Proceeds "of enforcment which provide payment for fees(and sums due to the warrant) ,if paid to the Court will still count as "proceeds" and still be due to the EA.

 

Proceeds are the result of the exercise of an "enforcment power" irrespective of to whom they are paid.

 

In the case of a direct payment to the court the entire payment is just forwarded to the EA from the court, if the payment does not cover the total amount owed( fees pus the fine) then the EA will continue to enforce for the balance.

DO NOT PAY UPFRONT FEES TO COLD CALLERS PROMISING TO WRITE OFF YOUR DEBTS

DO NOT PAY UPFRONT FEES FOR COSTLY TELEPHONE CONSULTATIONS WITH SO CALLED "EXPERTS" THEY INVARIABLY ARE NOTHING OF THE SORT

BEWARE OF QUICK FIX DEBT SOLUTIONS, IF IT LOOKS LIKE IT IS TO GOOD TO BE TRUE IT INVARIABLY IS

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Indeed Dodgeball. I bet you could type that in your sleep also. As stated above, it is a little worrying these arguments are still being aired. The danger, of course, is not so much the fact they're being aired as the fact some debtors may afford them credibility.

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In the case of a direct payment to the court the entire payment is just forwarded to the EA from the court, if the payment does not cover the total amount owed (fees pus the fine) then the EA will continue to enforce for the balance.

 

The past few months have certainly been a 'learning curve' for Magistrate's Courts' and I think that without exception, all of the cases that I have come across (of which there were 4 yesterday and two today) the courts simply refer the payments straight over to the relevant enforcement company.

 

What seems to be very much misunderstood is that it does not matter one bit whether the creditor (in this case HMCTS) actually passes payment to the enforcement company or whether they advise the enforcement company of the part payment that has been deposited into their bank account.

 

What matters is that the enforcement company are informed that a payment has been received and if the payment is less than the amount due (which will include bailiffs fees up to the date of payment) then bailiff enforcement can....and will continue. That is a fact.

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That is very true ba, this can create confusion and is wide open to misinterpretation.

 

The facts regarding the new regime need to be understood in principle before attempts to interpret, particularily in council tax recovery actions where authorities often make adjustments to their relative balances rather than physically transfer funds,

DO NOT PAY UPFRONT FEES TO COLD CALLERS PROMISING TO WRITE OFF YOUR DEBTS

DO NOT PAY UPFRONT FEES FOR COSTLY TELEPHONE CONSULTATIONS WITH SO CALLED "EXPERTS" THEY INVARIABLY ARE NOTHING OF THE SORT

BEWARE OF QUICK FIX DEBT SOLUTIONS, IF IT LOOKS LIKE IT IS TO GOOD TO BE TRUE IT INVARIABLY IS

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