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

[Peterbard]

For further simplification.

 

 

1 - OP pays debt direct to creditor, less bailiff fees.

 

If fees are due because the sum was paid after the enforcment stage commenced then the EA will be entitled to take the goods, if the sum was paid before the enforcment stage commenced he cannot.

 

2 - Bailiff takes car to cover his fees.

 

See above

 

3 - Judge rules this is unlawful and orders car to be returned.

 

Yes if sum were paid before the enforcment stage commenced and the fees became due.

[Peterbard]

Simply put the EA cannot enforce for fees not yet due, if the fees are due because the enforcment stage has begun he can.

[Peterbard]

It is really a simple idea if for instance the amount due is paid in the compliance stage then yes the further enforcment will not take place, this is the meaning of compliance there is a clue in the word, ie to comply.

 

Frankly it is unnerving that people who do not understand these simple ideas give advice. Thankfully not on reputable forums though.

[Peterbard]

I am sure we all know this but there are three stages of enforcement( four in high court cases).

 

http://www.legislation.gov.uk/uksi/2014/1/regulation/5/made?view=plain

 

Stages of enforcement for which fees may be recovered – enforcement other than under High Court writs

 

5.—(1) The relevant stages of enforcement under an enforcement power which is not conferred by a High Court writ are as follows—

 

 

the compliance stage

 

the enforcment stage

 

the sale stage.

 

these are all enforcement stages and each are due at there commencement as defined within the fees regulations.

 

As said scary that people are giving advice without knowing this basic stuff.

[Coughdrop]

I'm posting here, as I could not post my thoughts on the other thread regarding the recent case of apparently exempt goods being taken under control and the judge siding with the enforcement company due to beneficial interest.

 

I'm not commenting on anything which has gone before on this thread, only on its title, "Bailiff enforcement ...... if a vehicle is considered to be 'exempt' should the debtor issue an injunction?"

 

The answer would now seem to be a definitive no, unless there is no other option available to the debtor. Usually (not always), Part 85 is a free remedy to this issue available to the debtor. Where this option is available, which covers most cases, it should be taken. The judgment yesterday reinforces this.

 

I do not see how the law can prescribe Part 85 must be used, as there is a clear right for a debtor to seek an injunction. Here I seem to be at odds with many on this board.

 

Is an injunction the best course to follow? I would say no, in the vast majority of cases it is not. Sometimes it may be necessary, but only as the exception, not the rule.

 

Common sense alone dictates to me that where a free remedy is available, you try it rather than risk substantial monies on another remedy. As said already, just occasionally the free remedy may not be an option; in these cases the right to injunct should certainly be considered, but it should be an informed decision, knowing all the pros and cons of taking that course of action.

[wonkeydonkey]

The above is an excellent post, thank you CD

[fletch70]

Going back to MF and their being allowed to address the court , it seems that some of the opinion may be outdated

http://www.bbc.co.uk/news/uk-29883819

 

It is a shift that has happened over the last couple of years however I am not a fan of unqualified people making a living out of 'helping' others in court

[Peterbard]

The article seems to echo what we have said on here Fletch ?

 

I am afraid the newly qualified student will have to seek a role with a solicitors firm, the same as they always have if they wish to make a living out of the law.

 

The analogy with brain surgery is a good one IMO.

[Coughdrop]

Going back to MF and their being allowed to address the court , it seems that some of the opinion may be outdated

http://www.bbc.co.uk/news/uk-29883819

 

It is a shift that has happened over the last couple of years however I am not a fan of unqualified people making a living out of 'helping' others in court

 

Hi Fletch,

 

Long time no see!

 

In post 64 I posted a pdf document which was the report mentioned in your article, and written by the Legal Services Panel. It's a fairly short and very easy, comprehensive read of things as they now stand. I'd recommend it as a good read.

[Peterbard]

This is an interesting observation

 

"Privacy and data protection are issues. Clients' personal details have been put on social media or disclosed inadvertently through client testimonials.

I have been told of aggressive and intimidating behaviour by McKenzies.

And McKenzies themselves voiced concern that some of their number push their own agendas at the expense of the client's interests."

[fletch70]

I have read the article you mean CD and yes it was interesting . As I have said on many occasions I worry about unqualified people giving actual ringside advice especially for a fee. There is a genuine concern about some bad MF's and people running their own agends, god help us if good old Sri Lanka -the new name for someone started being a paid for MF in money claims . There was a post on a blog fairly recently about these dangers , no insurance, no comeback if the advice is negligent .

 

Another problem is finding out accurate stats on the success rate of any MF

[Peterbard]

I doubt that there will be any statistics regarding the success rates of MFs as their purpose is not to litigate.

[Bailiff Advice]

 

I'm not commenting on anything which has gone before on this thread, only on its title, "Bailiff enforcement ...... if a vehicle is considered to be 'exempt' should the debtor issue an injunction?"

 

The answer would now seem to be a definitive no, unless there is no other option available to the debtor. Usually (not always), Part 85 is a free remedy to this issue available to the debtor. Where this option is available, which covers most cases, it should be taken. The judgment yesterday reinforces this.

 

I do not see how the law can prescribe Part 85 must be used, as there is a clear right for a debtor to seek an injunction. Here I seem to be at odds with many on this board.

 

Is an injunction the best course to follow? I would say no, in the vast majority of cases it is not. Sometimes it may be necessary, but only as the exception, not the rule.

 

Common sense alone dictates to me that where a free remedy is available, you try it rather than risk substantial monies on another remedy. As said already, just occasionally the free remedy may not be an option; in these cases the right to injunct should certainly be considered, but it should be an informed decision, knowing all the pros and cons of taking that course of action.

 

Excellent post and I agree with you that as there is a free remedy (under CPR 85) why not use it.

 

Just to recap, under CPR 85 all that is required is that if a debtor (or third party) considers that a bailiff has taken control of 'third party goods' or goods that the debtor considers should really be 'exempt' then he must (according to CPR 85) write to the enforcement company within 7 days to outline the reason why he considers that the goods are 'exempt' etc.

 

By law, the enforcement company have just 3 days to inform the creditor (normally the local authority) of the claim.

 

The creditor then has a maximum period of just 7 days to either 'admit' the claim or dispute it.

 

If the creditor 'admits' the claim, then the goods must be released back to the debtor.

 

Instead, what is happening (and confirmed in the following case) is that debtors are making contact with one particular 'McKenzie' who, for a fee of around £50 offers to speak with the bailiff in a recorded telephone conference to outline to the bailiff why, (according to the McKenzie) the bailiff has acted unlawfully and the MK then provides the bailiff with a 'deadline' for the clamp to be removed (normally just 24 hours).

 

Once the deadline imposed by the McKenzie has passed, the debtors is then advised by the MK to make an application for an injunction. Crucially, the debtor will then pay further fees to the McKenzie for drafting of his claim. In most cases (unless he is entitled to exemption) the debtor will have to also pay court fees of around £395 (this is in addition to the fees charged by the MK).

 

As is made very clear in CPR 85, there is a legal timeframe that must be abided by...but crucially, the legal position is that any decision to release goods must be given by the creditor.

 

Accordingly, the steps outlined by the McKenzie have no legal basis whatsoever.

[Bailiff Advice]

The High Court has banned a man who acted as a McKenzie friend in several family law cases after several aggressive outbursts.

 

Former bouncer Nigel Baggaley was the “moving spirit behind two limited liability companies that provide legal advice and legal services” despite his admission that he had “no relevant professional training or qualifications”.

 

Last year, Mr Justice Peter Jackson issued an interim order which banned Mr Baggaley from representing anyone else after he swore at opposing lawyers on a number of occasions. He also admitted he had “faced up” to a barrister in court while advising a mother in a family case. The barrister in question “believed that Mr Baggaley was about to headbutt him” during the confrontation.

 

Sitting at the Royal Courts of Justice in London, President of the Family Division Sir James Munby extended the ban indefinitely.

 

Full details below:

 

 

http://www.marilynstowe.co.uk/2015/05/26/mckenzie-friend-banned-from-court-indefinitely/

 

 

A full copy of the judgment can be found in the following link (if the link does not work a copy can be accessed from the article above).

 

http://www.bailii.org/ew/cases/EWHC/Fam/2015/1496.html

[Peterbard]

Yes came across it here earlier in the week.

 

http://www.lawgazette.co.uk/news/ex-bouncer-mckenzie-friend-banned-after-calling-lawyer-a-lying-slag/1/5049010.article?PageNo=3&SortOrder=dateadded&PageSize=10#comments

[fletch70]

And now he has another company based in stoke on trent. However it's in his 'other' name and the owner is his a woman with the same surname . Midlands lawyers law shop , doesn't inspire confidence

[fletch70]

The man is completely mad

https://www.facebook.com/public/Nigel-Quinlan

https://en-gb.facebook.com/public/Nigel-Baggaley

 

 

But I do object to Hinckley being called a suburb of leicester by someone on the law gazette web site and without an address I could not comment if it was a grotty little housing estate-maybe a bit of southern snobbery

[josephbloggs]

And now he has another company based in stoke on trent. However it's in his 'other' name and the owner is his a woman with the same surname . Midlands lawyers law shop , doesn't inspire confidence

 

Same person...

http://www.coventrytelegraph.net/news/coventry-news/bully-gets-suspended-jail-sentence-3076507

[Bailiff Advice]

Yes came across it here earlier in the week.

 

http://www.lawgazette.co.uk/news/ex-bouncer-mckenzie-friend-banned-after-calling-lawyer-a-lying-slag/1/5049010.article?PageNo=3&SortOrder=dateadded&PageSize=10#comments

 

The online comments are worth a read !!!

[fletch70]

Actually I find most of the comments pretty ignorant. I admit that this guy sounds a lot shady, with different names and companies-on one he even says he is not a MF but a lawyer. He is clearly unprofessional but to be honest so are many of the posts. It was the government that cut back legal aid and allowed this situation to happen and it will only get worse

[Peterbard]

Actually I find most of the comments pretty ignorant. I admit that this guy sounds a lot shady, with different names and companies-on one he even says he is not a MF but a lawyer. He is clearly unprofessional but to be honest so are many of the posts. It was the government that cut back legal aid and allowed this situation to happen and it will only get worse

 

I would think that a professional approach would be paramount in family case , possibly more so than other civil cases, emotions run high in any case in custody and divorce situations, if you have representation you need a cool analytical head not someone who is shouting abuse at the other side, I would have thought.

[fletch70]

Dodge

I was in no way supporting this guy, I feel his conduct was irresponsible in the extreme. I do however, think that some of the comments on the site were unprofessional making personal attacks (as opposed to attacks on his conduct) showed a lack of knowledge and bigotry (what relevance is there to the fact he may or may not have lived on a housing estate and without knowing the address who can tell if it's grotty) . If memory serves me right Maggie lived on a housing estate at one time even though they would have called it a 'gated community'

[Peterbard]

Dodge

I was in no way supporting this guy, I feel his conduct was irresponsible in the extreme. I do however, think that some of the comments on the site were unprofessional making personal attacks (as opposed to attacks on his conduct) showed a lack of knowledge and bigotry (what relevance is there to the fact he may or may not have lived on a housing estate and without knowing the address who can tell if it's grotty) . If memory serves me right Maggie lived on a housing estate at one time even though they would have called it a 'gated community'

 

I never thought you were Fletch, I was just making an observation

[caledfwlch]

Aren't Family Court Sessions "top secret" with everyone forbiddern from speaking about the case, including the parent/s? So its hard to see how this Mackenzie Friend chap got in. the stuff he is apparantly posting. court documents etc, well if it was a closed family court, then he is in a world of trouble should Plod notice (or someone reports him(

[Peterbard]

Aren't Family Court Sessions "top secret" with everyone forbiddern from speaking about the case, including the parent/s? So its hard to see how this Mackenzie Friend chap got in. the stuff he is apparantly posting. court documents etc, well if it was a closed family court, then he is in a world of trouble should Plod notice (or someone reports him(

 

Yes you would think so. It seems to be an area where most of the MF firms operate. I suspect one of the reasons is that most proceedings are based on evidential matters, who did what to whom etc. In depth knowledge of the law is not as important as in other proceedings.