Jump to content


Bailiff Advice

Bailiff enforcement......if a vehicle is considered to be 'exempt' should the debtor issue an injunction?

style="text-align:center;"> Please note that this topic has not had any new posts for the last 1495 days.

If you are trying to post a different story then you should start your own new thread. Posting on this thread is likely to mean that you won't get the help and advice that you need.

If you are trying to post information which is relevant to the story in this thread then please flag it up to the site team and they will allow you to post.

Thank you

Recommended Posts

In September 2013 I started writing on the forum about the procedure that debtors were expected to take in cases where a bailiff took control of a vehicle (or other goods) that either did not belong to to debtor or which the debtor considered (for one reason or another) to be 'exempt' from being taken. To avoid repeating myself a copy of the thread is below:

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?418396-Third-Party-Goods-Interpleaders-and-the-serious-potential-to-damage-the-new-Bailiff-Reforms-on-6th-April

 

During that period (mid to late 2013) I spent a considerable amount of time writing to many organisations (including finance companies etc) and in my correspondence to government departments, I urged them to consider implementing a procedure whereby debtors could avoid the costs (and considerable delay) of court action by the debtor making an initial 'informal' claim to the enforcement company.

 

I was delighted to hear that my suggestion was implemented (with minor amendments) and the position from 6th April 2014 is that instead of a debtor (or third party) having to issue court proceedings a simple informal procedure MUST first be made to the enforcement company within 7 days. The procedures are outlined under section 85 of the Civil Procedure Rules and came into effect on 6th April 2014.

 

If a debtor considers that a vehicle should not be clamped or removed as it is thought to be 'exempt' (maybe as it is subject to finance or 'necessary' for employment) ) then it is a simple matter of writing to the enforcement agent to outline the reason why the debtor considers that the vehicle is 'exempt' and to provide any supporting evidence. The enforcement agent must then serve the creditor (normally the local authority) with a copy of the claim and the local authority must decide within a specified number of days whether they 'admit' the claim. If they do, the vehicle is released.

 

On a personal level I have prepared many of these 'claims' over the past 7 years and so far....not one has ever been rejected and the goods are released. As long as the supporting evidence and 'reasons' are clearly outlined there should be no problem at all in the goods (normally a vehicle) being released.

 

It would seem that in the past couple of months debtors are (for one reason or another) bypassing this initial procedure and instead.....making an application to the county court for an injunction. Unfortunately debtors are quickly finding that this procedure is not only wrong but is very expensive and can lead to their car being held in storage etc for a long period of time.

Share this post


Link to post
Share on other sites

[ATTACH=CONFIG]57127[/ATTACH]A copy of my article on the subject of 'interpleaders' etc can be read here:

Share this post


Link to post
Share on other sites

It would seen that a genuine claimant could still be without his vehicle for weeks and that can't be fair.

Share this post


Link to post
Share on other sites

As mentioned above, the correct procedure should be to make an initial 'informal' claim by letter to the enforcement company outlining the reason why the debtor considers that their vehicle should be 'exempt' and provide evidence. This evidence could be a copy of the finance agreement or supporting documentation outlining the reason why the vehicle is considered 'necessary' to the debtors self employments etc.

 

Yesterday I heard from two debtors who had wrongly been advised to issue injunctions and in both cases the court were extremely annoyed at the way in which the cases had been dealt with.

 

Case number one

 

The debtor used her car to drive to work. The car was worth approx £4,500 and she had 5 unpaid parking tickets. Her car was clamped, notices given and as she could not pay her car was taken. She paid £395 in total for an injunction and in court the judge was very harsh indeed and advised her that she had made the wrong application and that the correct procedure was under CPR 85.8. and he read her the opening sentence from CPR 85.8 which states:

"A debtor making a claim to exempt goods
must
, as soon as practicable and in any event within 7 days of the removal of the goods, give notice in writing of the claim to exempt goods"

The Judge advised her that as she failed to give the local authority an opportunity to address her claim using CPR 85 that she would not be able to reclaim her courts costs. He ordered that the case be transferred to her local court under CPR 85. The judge also stated that she should reconsider her position very carefully as a vehicle that is used for work cannot normally be considered exempt as otherwise everyone in paid or self employment would claim exemption. Her car will now remain at the sale location awaiting a further court date and directions.

 

Case number two.

 

Once again this debtor issued an injunction. He has a small self employed building company. He has two vehicles and a car that he and his wife drive. One of the vehicles was clamped and eventually removed. He paid for an injunction. In court on Monday the judge questioned him as to why he had not used CPR 85 as expensive court time should not be taken up with such matters and that injunctions should be reserved for very important emergency applications. He allowed the injunction (to stop his vehicle being sold) and listed the case to be heard at the next available open date.

 

He too advised the debtor that he should consider his position very carefully given that he has two vehicles that he uses in his self employment and furthermore, that the vehicle that has been taken is valued at approx £3,600 and that under the new regs vehicles may only be considered 'exempt' if the aggregate amount is under £1,350. The Judge agreed to the injunction (to stop his van being sold) but ordered that the vehicle remain with the bailiff company and if he loses his case when it eventually goes to a full hearing he will also be liable for daily storage fees of £25 per day.

Share this post


Link to post
Share on other sites

I would certainly want them to qualify the £25 per day storage. That is nothing more than a rip-off penalty.

Share this post


Link to post
Share on other sites
It would seen that a genuine claimant could still be without his vehicle for weeks and that can't be fair.

 

If a 'genuine claimant' uses the correct procedure the following time frame is provided under the legislation.

 

Within 7 days of the removal of goods the debtor must give written notice notice of the claim to exempt goods. The document is entitled: Notice to Claim to Exempt Goods.

 

After receiving the Notice to Claim to Exempt Goods, the enforcement agent has a maximum period of just 3 days to advise the local authority of the claim.

 

The creditor (normally the local authority) then have a maximum period of 7 days to consider the claim and inform the enforcement agent whether the claim is 'admitted' or disputed. If 'admitted' the goods must then be released back to the debtor.

 

Most importantly......there is no legal costs to the debtor.

Share this post


Link to post
Share on other sites

Whilst HCEOs have been undertaking a very similar practice for years under the old RSC Order 17 I think you will find that this timely and admin heavy procedure is not always followed by creditors and their enforcement partners in local authority and HMCTS sectors.

Share this post


Link to post
Share on other sites

And the time without the vehicle could easily extend to months.

Share this post


Link to post
Share on other sites

Where there is a far more serious problem is from the emergence of a new body called the 'McKenzie Friend'. Unfortunately I have had quite a few enquiries from debtors about injunctions and whether they should use the services of a 'McKenzie Friend' to assist them in court. Yesterday I heard of once case of a particular McKenzie who claims that he charges a fee of £2,500 when assisting debtors at court injunctions.

 

With severe cut backs to legal aid, assistance from a 'McKenzie Friend' may well be of great assistance but debtors should be fully aware of any potential risks and should almost certainly read the official Guidance featured on the Judiciary.gov website from Lord Lord Neuberger as Master of the Rolls Family Division.

 

 

https://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Guidance/mckenzie-friends-practice-guidance-july-2010.pdf

 

Particular attention should be given to the following sections:

 

 

MFs may not: i) act as the litigants’ agent in relation to the proceedings; ii) manage litigants’ cases outside court, for example by signing court documents; or iii) address the court, make oral submissions or examine witnesses (Item 4)

 

Item 20:

 

Any application for a right of audience or a right to conduct litigation to be granted to any lay person should therefore be considered very carefully. The court should only be prepared to grant such rights where there is good reason to do so taking into account all the circumstances of the case, which are likely to vary greatly. Such grants should not be extended to lay persons automatically or without due consideration. They should not be granted for mere convenience.

 

23:

The grant of a right of audience or a right to conduct litigation to lay persons who hold themselves out as professional advocates or professional MFs or who seek to exercise such rights on a regular basis, whether for reward or not, will however only be granted in exceptional circumstances. To do otherwise would tend to subvert the will of Parliament.

 

 

Remuneration

 

27)Litigants can enter into lawful agreements to pay fees to MFs for the provision of reasonable assistance in court or out of court by, for instance, carrying out clerical or mechanical activities, such as photocopying documents, preparing bundles, delivering documents to opposing parties or the court, or the provision of legal advice in connection with court proceedings. Such fees cannot be lawfully recovered from the opposing party.

 

 

29)Fees said to be incurred by MFs for carrying out the conduct of litigation after the court has granted such a right are in principle recoverable from the litigant for whom the work is carried out. Such fees cannot be lawfully recovered from the opposing party.

Share this post


Link to post
Share on other sites

Yes I have sen the McKensie friend ting also, there are some bizarre claims about what they can do and the functions they can perform in a court room.

 

The fact is that the MFs are supposed to be there to support the LIP, they can take notes and offer"quiet encouragement and support", they cannot litigate, they neither have the training nor the skill of a professional solicitor.

 

The court has to look after the interests of all parties in litigation and allowing an untrained person to cross examine witnesses and present legal argument would occur only on a very rare occaision indeed.

 

A worrying aspect of this is that some claims state that there costs can be reclaimed from the other side, as we have seen this cannot be the case, so all costs will come out of the pocket of the litigant.


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

Share this post


Link to post
Share on other sites

The rise of McKensie friend is worrying most definitely,


We could do with some help from you.

PLEASE HELP US TO KEEP THIS SITE RUNNING EVERY POUND DONATED WILL HELP US TO KEEP HELPING OTHER

 

Have we helped you ...?         Please Donate button to the Consumer Action Group

 

If you want advice on your thread please PM me a link to your thread

 

The bailiff: A 12th Century solution re-branded as Enforcement Agents for the 21st Century to seize and sell debtors goods as before Oh so Dickensian!

Share this post


Link to post
Share on other sites
The rise of McKensie friend is worrying most definitely,

 

Its like many things BN, if the MF system is used as intended it can be a great help to LIPs, especially to those who are to intimidated or ill equipped to attend a court without support.


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

Share this post


Link to post
Share on other sites
Its like many things BN, if the MF system is used as intended it can be a great help to LIPs, especially to those who are to intimidated or ill equipped to attend a court without support.

That is for sure DB, but unfortunately if used inappropriately it does far more harm than good.


We could do with some help from you.

PLEASE HELP US TO KEEP THIS SITE RUNNING EVERY POUND DONATED WILL HELP US TO KEEP HELPING OTHER

 

Have we helped you ...?         Please Donate button to the Consumer Action Group

 

If you want advice on your thread please PM me a link to your thread

 

The bailiff: A 12th Century solution re-branded as Enforcement Agents for the 21st Century to seize and sell debtors goods as before Oh so Dickensian!

Share this post


Link to post
Share on other sites
`

 

The fact is that the MF's are supposed to be there to support the LIP, they can take notes and offer"quiet encouragement and support", they cannot litigate, they neither have the training nor the skill of a professional solicitor.

 

The court has to look after the interests of all parties in litigation and allowing an untrained person to cross examine witnesses and present legal argument would occur only on a very rare occasion indeed.

 

A worrying aspect of this is that some claims state that there costs can be reclaimed from the other side, as we have seen this cannot be the case, so all costs will come out of the pocket of the litigant.

 

Let me be clear by saying that a debtor has a right to employ the services of a private 'McKenzie Friend' and any financial arrangement regarding fees charged by MF's is between the litigant and the MF.

 

As confirmed by Lord Neuberger any fees charged by the McKenzie Friend cannot lawfully be recovered from the opposing party.

Share this post


Link to post
Share on other sites
I would certainly want them to qualify the £25 per day storage. That is nothing more than a rip-off penalty.

 

Not for the bailiffs to qualify. The storage charge of UP TO £25 per day is quite normal and is what most auction houses charge to store a vehicle. Goods(not a vehicle) will usually be stored at an auction house and charged on a pallet by pallet bases. The costs of storage added to the warrant will be backed up by a storage invoice at a later date.

Share this post


Link to post
Share on other sites
If a 'genuine claimant' uses the correct procedure the following time frame is provided under the legislation.

 

Within 7 days of the removal of goods the debtor must give written notice notice of the claim to exempt goods. The document is entitled: Notice to Claim to Exempt Goods.

 

After receiving the Notice to Claim to Exempt Goods, the enforcement agent has a maximum period of just 3 days to advise the local authority of the claim.

 

The creditor (normally the local authority) then have a maximum period of 7 days to consider the claim and inform the enforcement agent whether the claim is 'admitted' or disputed. If 'admitted' the goods must then be released back to the debtor.

 

Most importantly......there is no legal costs to the debtor.

 

There could be legal costs should it go to interpleader and the proof of ownership does not stand up to scrutiny.

Share this post


Link to post
Share on other sites
I would certainly want them to qualify the £25 per day storage. That is nothing more than a rip-off penalty.

 

Not to forget its not just any old storage but it has to be stored in an insured and secure environment which is fence off and the car secured with an immobilization device. The site will also normal have a manned 24 security post. Even under these circumstances, we see debtors trying to sneak in and steal cars back. It's not as simple as dumping the car on a spare bit of land and waiting for auction.

Share this post


Link to post
Share on other sites

It just seems insane for anyone to want to apply for an injunction in one of these cases and to be honest I am surprised that any judge would even entertain an action when there is already a remedy available in the CPR.

 

Injunctions are last resort remedies and courts will generally go with other remedies if they are available before they issue one.

 

Then there is the matter of costs, injunctions are not cheap, and I cannot imagine a judge awarding costs from the other side when someone sought an injunction when other free options were available.


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

Share this post


Link to post
Share on other sites
As mentioned above, the correct procedure should be to make an initial 'informal' claim by letter to the enforcement company outlining the reason why the debtor considers that their vehicle should be 'exempt' and provide evidence. This evidence could be a copy of the finance agreement or supporting documentation outlining the reason why the vehicle is considered 'necessary' to the debtors self employments etc.

 

Yesterday I heard from two debtors who had wrongly been advised to issue injunctions and in both cases the court were extremely annoyed at the way in which the cases had been dealt with.

 

Case number one

 

The debtor used her car to drive to work. The car was worth approx £4,500 and she had 5 unpaid parking tickets. Her car was clamped, notices given and as she could not pay her car was taken. She paid £395 in total for an injunction and in court the judge was very harsh indeed and advised her that she had made the wrong application and that the correct procedure was under CPR 85.8. and he read her the opening sentence from CPR 85.8 which states:

"A debtor making a claim to exempt goods
must
, as soon as practicable and in any event within 7 days of the removal of the goods, give notice in writing of the claim to exempt goods"

The Judge advised her that as she failed to give the local authority an opportunity to address her claim using CPR 85 that she would not be able to reclaim her courts costs. He ordered that the case be transferred to her local court under CPR 85. The judge also stated that she should reconsider her position very carefully as a vehicle that is used for work cannot normally be considered exempt as otherwise everyone in paid or self employment would claim exemption. Her car will now remain at the sale location awaiting a further court date and directions.

 

Case number two.

 

Once again this debtor issued an injunction. He has a small self employed building company. He has two vehicles and a car that he and his wife drive. One of the vehicles was clamped and eventually removed. He paid for an injunction. In court on Monday the judge questioned him as to why he had not used CPR 85 as expensive court time should not be taken up with such matters and that injunctions should be reserved for very important emergency applications. He allowed the injunction (to stop his vehicle being sold) and listed the case to be heard at the next available open date.

 

He too advised the debtor that he should consider his position very carefully given that he has two vehicles that he uses in his self employment and furthermore, that the vehicle that has been taken is valued at approx £3,600 and that under the new regs vehicles may only be considered 'exempt' if the aggregate amount is under £1,350. The Judge agreed to the injunction (to stop his van being sold) but ordered that the vehicle remain with the bailiff company and if he loses his case when it eventually goes to a full hearing he will also be liable for daily storage fees of £25 per day.

 

In reply to a number of messages that I have received, I would like to confirm that in both of the above cases the courts have ordered that the vehicles in question must not be returned to the litigants but should remain at the sale location pending a full hearing at a later stage. Once I receive details of the dates for the court hearings I can update this thread further.

Share this post


Link to post
Share on other sites

I fear that people are being economical with the truth. A MF may act on behalf of the LiP if they have been granted a right of audience which from my research on google is nearly always given. As for fees, a quote from the same document regarding fees where a right of audience has been given

 

30) Fees said to be incurred by MFs for exercising a right of audience

following the grant of such a right by the court are in principle recoverable

from the litigant on whose behalf the right is exercised. Such fees are also

recoverable, in principle, from the opposing party as a recoverable

disbursement: CPR 48.6(2) and 48(6)(3)(ii).

 

I am not a great fan of people making money on the backs of other peoples misery but that is an opinion only.

 

Can you tell us if the 17 days it takes to make the declaration about goods are calendar or working , either way it is still a considerable amount of time

 

If people are going to use arguments to support their case it would be helpful if they took the whole of the evidence presented into account. This goes for everyone involved in this debate


Any opinion I give is from personal experience .

Share this post


Link to post
Share on other sites
It just seems insane for anyone to want to apply for an injunction in one of these cases and to be honest I am surprised that any judge would even entertain an action when there is already a remedy available in the CPR.

 

Injunctions are last resort remedies and courts will generally go with other remedies if they are available before they issue one.

 

Then there is the matter of costs, injunctions are not cheap, and I cannot imagine a judge awarding costs from the other side when someone sought an injunction when other free options were available.

 

The court fee for an injunction alone is just under £400 but most importantly, is only a first stage and is merely a request to ask the court to stop something from happening. For instance, most injunctions are for emergency applications such as those of domestic violence etc. In the case of bailiff enforcement, the application would be to make a ruling that a vehicle should not be sold. At an initial hearing the court would very rarely ever agree to the release of a vehicle and such a decision would only be made at a further hearing at a date to be decided.

Share this post


Link to post
Share on other sites

 

Can you tell us if the 17 days it takes to make the declaration about goods are calendar or working , either way it is still a considerable amount of time

 

 

It is my understanding that the number of days is not working days but in reality, if the documentation proving exemption is sufficient (to prove exemption) it is normally the case that the vehicle will be released within one day of the Notice of Claim being formally served on the enforcement agency.

 

Most importantly, there is no cost to the debtor. Whichever way that you look at this it simply cannot be the case that an injunction should be made and certainly not before a formal Notice of Claim has been properly served upon the enforcement agency and the correct period of time allowed for the creditor to either accept or reject the Claim.

Share this post


Link to post
Share on other sites
I fear that people are being economical with the truth. A MF may act on behalf of the LiP if they have been granted a right of audience which from my research on google is nearly always given. As for fees, a quote from the same document regarding fees where a right of audience has been given

 

 

 

I am not a great fan of people making money on the backs of other peoples misery but that is an opinion only.

 

Can you tell us if the 17 days it takes to make the declaration about goods are calendar or working , either way it is still a considerable amount of time

 

If people are going to use arguments to support their case it would be helpful if they took the whole of the evidence presented into account. This goes for everyone involved in this debate

 

 

No economy that I have seen on here Fletch. Section 31 refers to fees inured by the MF(on the litigators behalf), not fees paid to the MF for their services, that is covered in section 27 and 29 and is plainly not recoverable.

 

MFs are more widely used in family courts and are more likely to receive permission to act as there will usually be evedential rather than legal issues to decided( a knowledge of the law is less important).

 

As said it is rare indeed for a court to grant the right to act in litigation cases(although not unheard of, particularly when the litigant is frail or unable to afford council), also usually the other side would have to agree.

 

Regarding presenting evidence of views you mention the results of your Google search, would you care to share them ?


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

Share this post


Link to post
Share on other sites

Here is the result of a quick gogle search I just did

http://www.familylawquestions.co.uk/page3/page23/

 

McKenzie Friends are not allowed to:

 

1. Speak in Court (i.e. do the advocacy in Court, ask questions and speak to the judge)

2. Act as an agent (which means answer letters, issue proceedings etc)

3. Manage the case outside Court (i.e. negotiate with the lawyers or other side etc)

4. Conduct litigation (do what solicitors do)

 

The Guidance says that the Court will only grant permission to a McKenzie Friend to do the things they are not usually allowed to do (for example, speak in the Court room or ask questions) in exceptional circumstances.


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

Share this post


Link to post
Share on other sites

  • Recently Browsing   0 Caggers

    No registered users viewing this page.


  • Have we helped you ...?


×
×
  • Create New...