Court of Appeal-Queen's Bench: Fouda v LB of Southwark & Newlyn PLC. Tool of the Trade claim struck out.

[Bailiff Advice]

I have been posting on the bailiff section of the forum for close to 10 years and in all that time, regulars will know that with the exception of Out of Time witness statements for road traffic debts and statutory declarations for criminal court fines, I rarely if ever suggest that debtors take legal action to resolve a dispute regarding bailiff enforcement.

 

Over the years I have also reported on many cases where legal action had foolishly been recommended and where debtors had lost their case and been ordered to pay the enforcement company (and or local authorities) legal costs. Many of these cases were in relation to 'Form 4 Complaints' and unfortunately, many such cases were on the recommendation of just one inexperienced individual who now offers an extraordinarily expensive 'McKenzie Friend' service. Sadly, there are no reports of any court successes.

 

The new regulations have made a significant change in the way that disputes about goods taken into control by a bailiff/enforcement agent can be resolved.

 

If a debtor or third party considers that goods should not have been seized there is now a simple, effective and speedy remedy available under Part 85 of the Civil Procedure Rules. A simple notice outlining the reason for the dispute must be sent to the enforcement agent within a maximum period of seven days. The EA then have a strict time period in which to inform the creditor (normally the local authority) that a dispute had been raised. The creditor then has the task of making a decision as to whether to admit or dispute the 'claim'. If the creditor agrees that the goods were wrongly taken, then the goods must be released. If the claim is disputed, then it will be for a court to decide whether or not the seizure was correct.

 

Below I have provided a link to a very recent judgment (April 23rd 2015) from the Court of Appeal-Queen's Bench Division that highlights once again the problems that debtors can face when instigating legal action against a local authority and enforcement company.

[Bailiff Advice]

THE CASE:

 

Various Liability Orders (over a seven year period) had been issued against the debtor (the amount is unknown). A bailiff visited the property of the debtor (Mr Fouda) in February 2011 and removed his vehicle. Mr Fouda claimed that the vehicle was a taxi and used for his business use and accordingly, was a 'tool of the trade' and therefore 'exempt' from seizure. He admits that he failed to advise the bailiff that the vehicle was considered exempt.

 

He contacted London Borough of Southwark in March 2011 and they responded to advise that if he wished for his vehicle to be released that he had to provide evidence that it was in fact used as a taxi. Evidence was eventually provided and accordingly, Southwark responded to inform him that they were prepared to return the vehicle but on condition that he consent to entry to his property so that a Walking Possession Agreement could be set up. It would seem that the matter could not be resolved on the terms offered and the vehicle was not released until June 2011.

 

Shortly after the vehicle was released it was seized for a second time (presumably on the instructions of DVLA) as it did not have a current tax disc. The vehicle was apparently never returned.

 

The debtor issued legal proceedings against London Borough of Southwark and the enforcement company (Newlyn PLC) on the basis that the seizure of the vehicle had been 'unlawful'. The claim was for £90,000 and was calculated on the basis of lost income of £160 per day and the costs of road tax and insurance. Astonishingly, the loss of income had been calculated from February 2011 right up to the date that the particulars of claim were lodged. This is despite that fact that the vehicle had only been kept by the enforcement company for approx 8 weeks !!! The claim also included the value of the vehicle.

 

Earlier in the court proceedings an order had been made concerning the claimants filing of a list of documents. The court ordered that witness statements be served but it would appear that by agreement, the date for service was varied to 2nd Janaury 2014. The claimant failed to serve his witness statement until the 13th January 2014 (one one defendant) and 6th February 2014 (on the other defendant). The trial and various appeals centred on the late service of the witness statements and the behaviour of the solictors (MartynsRose).

 

PS: It would seem that the Consumer Action 'gremlins' have difficuly with links to Bailii (law library). If the link does not work then a goodgle search for Fouda v The Mayor & Burgess of the London Borough of Southwark should display the judgment.

 

http://www.bailii.org/ew/cases/EWHC/QB/2015/1128.html

[Peterbard]

What a nightmare for the litigant , he goes to court on one issue and ends up fighting for his life on another, which I suspect is more down to the conduct of his appointed council than himself.

 

To be fair his case was thin in the extreme, but you do expect qualified solicitors to know what they are about, there is no secret about the Mitchell case and everyone knows about the sanctions that can be applied for failure top present under CPR.

 

It is not clear to me anyway, if the caar was returned in the first instance because of the claim it was exempt, they agree its return then attach conditions to it(that they are allowed to take control of other goods), if it was exempt they would not have been able to do this. I get the feeling that the bailiff thought there richer pickings to be had than the car within the house.

[Bailiff Advice]

Mr Fouda's claim was struck out and the Judge reserved his real criticism for MartynsRose. Amongst his comments the judgement states the following:

 

Paragraph18:

 

The Judge decided that MartynsRose should pay £2000 to Newlyn by way of wasted costs. In his judgment the judge reiterated the concerns he had at the hearing about the competency of the appellants solicitors stating that the case had been 'extra ordinarily badly prepared' and that the appellant had been 'peculiarly ill-served' by his solicitors who had...appeared, on the face of it, to be advising him 'in completely unrealistic terms'.

 

 

The judge added that the particulars of claim were 'wholly inadequate' (although they may have been prepared directly on the appellant's instructions) and that the 'quantification of the appellant's case was wholly unrealistic'.

 

In relation to the pleadings, (Paragraph 12) the Judge added that they were 'unimpressive, condescending to the very few particulars in relation to the basis allegations surrounding the apparent illegality of the vehicle's seizure and that the the 'quantification of the appallents apparent loss' was 'rudimentary to say the least' and that the particualars 'did not deal with any attempts at mitigation or allowances in respect of loss of income such as running expenses and taxation'.

 

The judge then turned to disclosure (Paragraph 19) and the preparation of the bundle for trial. He stated that the 'documentation disclosed a particularly confused attitude to the obligation of disclosure by the appellant's solicitors' (MartynsRose).

 

Accordingly, the judge decided that MartynRose should pay £2000 to Newlyn by way of wasted costs in relation to what he found was a 'significant fault on the part of the solicitor's disclosure obligation and the failure to prepare the bundle for trial'.

[Peterbard]

Yes indeed hence the costs orders.

[Bailiff Advice]

What a nightmare for the litigant , he goes to court on one issue and ends up fighting for his life on another, which I suspect is more down to the conduct of his appointed council than himself.

 

It is not clear to me anyway, if the caar was returned in the first instance because of the claim it was exempt, they agree its return then attach conditions to it(that they are allowed to take control of other goods), if it was exempt they would not have been able to do this. I get the feeling that the bailiff thought there richer pickings to be had than the car within the house.

 

The Judge was satisfied that the debtor had not previously made the bailiff aware that the vehicle could be a 'tool of the trade' and therefore exempt and it was only when evidence was provided to LB of Southwark that instructions were given to release the vehicle.

 

Paragraph 13 is most important as the judge confirms that the burden rests with the appellant to satisfy the court that the vehicle was exempt and that in this particular case, the existence of a sticker in the window (a licensed taxi sticker) was:

'nowhere near sufficient to satisy the requirments for a claimant to prove that the vehicle was necessary for his personal use in the course of his business'

.

 

PS: It simply beggars belief how the debtor could possibly have gotten himself into a position where he considered that he could ever suceed with court action to reclaim an astonishing amount of £90,000!!!

 

I have emailed a few queries about the case to Newlyn's.