what is the correct way to deal with a bad bailiff

[Peterbard]

No, you're not right. However, you don't appear to be far wrong either. Pepipoo reveals a couple of cases on a very quick Google, so I'm sure there'd be more. Far more commonly people are not prosecuted for this. I don't know whether that means they're convicted of something else, or whether the vast speed of my Google search didn't show cases up given I spent about 20 seconds on it!

 

I wouldn't think that it would be priority for the police to prosecute these cases TBH, but they can. I suspect that many debtors will settle the debt with the EA and the police will just let the matter go.

 

There are defences against prosecutions for theft of course(have to be careful here, have been accused of sending people to sleep when i explain how things work).

 

Theft is defined as the dishonest appropriation of goods, dishonesty cannot be proven if the debtor took the goods believing that they were his and the levy was unlawful, so if the said levy does prove to be so, this is a point that can be raised in the subsequent hearing.

 

It should be stressed that this is a point to be raised at a hearing and not with the bailiff, the bailiff can be presented with your opinion and the facts regarding the goods, but what he does then is upto him.

 

I would be surprised also if the judge did not ask why the correct procedure (section 85) was not used rather than taking the law into his own hands.

[Peterbard]

Incidentally in the above I say "judge" advisably.

An indictment under the theft act would not be heard by a magistrate it is not a summery offence, it would be triable as an indictment under the theft act section 7 or perhaps as an each way offence. Just for clarity

[Peterbard]

I should also mention that section 85 applications are free, but we all know that dont we ?

[Bailiff Advice]

I should also mention that section 85 applications are free, but we all know that dont we ?

 

Not only are they free but with each one that I have assisted with the 'turnaround' time for accepteance is generally excellent. This morning Equita authorised the release of a vehicle that was clamped around 5pm yesterday. The vehicle (a Juke) was subject to finance with a term of two years remaining and the 'claim' submitted included all the necessary documentation and calculations as to 'interest'.

 

With the 2nd vehicle (VW Polo) the enforcement company (Task Enforcement) agreed for the vehicle to be collected after sufficient evidence was provided that her car should be considered exempt as she needed it to drive to University (exempt under study or education clause in the regs). The key is to provide documentary sufficient evidence and a properly completed claim.

[koby]

Dodge,

 

im not saying your wrong! but how is joe blogs supposed to know about a setion 85?

 

I cant see refrence to it on any paper work from the bailiff or council?

 

the bailiff didnt mention it and neither did the council when i spoke to them?

[koby]

If what im saying above is true maybe i should put that in my complaint?

[Peterbard]

Dodge,

 

im not saying your wrong! but how is joe blogs supposed to know about a setion 85?

 

I cant see refrence to it on any paper work from the bailiff or council?

 

the bailiff didnt menion it and neither did the council when i spoke to them?

 

Most definitely not wrong. I am sure any reputable advice agency would have advised you, and some may even have helped you draft the letters.

Unfortunately some internet advice providers are either to ill informed or do not wish to give advice which they have not "monetised".

[Peterbard]

If what im saying above is true maybe i should put that in my complaint?

 

I think this a good point, and I am sure that most would agree that this should be stated by the EA if there is an issue raised regarding the seizure of goods. I cannot see any duty on the bailiffs currently to do so though

[brassnecked]

Really doesn't mater if it as a car or van, to be exempt the goods must be essential for you to carry out your job. not just getting to work

exactly, would have to be essential to the business.

 

One way to get rid of a bailiff if he was bad as in smelly would be to spray him with airwuck

[Peterbard]

Not only are they free but with each one that I have assisted with the 'turnaround' time for accepteance is generally excellent. This morning Equita authorised the release of a vehicle that was clamped around 5pm yesterday. The vehicle (a Juke) was subject to finance with a term of two years remaining and the 'claim' submitted included all the necessary documentation and calculations as to 'interest'.

 

With the 2nd vehicle (VW Polo) the enforcement company (Task Enforcement) agreed for the vehicle to be collected after sufficient evidence was provided that her car should be considered exempt as she needed it to drive to University (exempt under study or education clause in the regs). The key is to provide documentary sufficient evidence and a properly completed claim.

 

Yes, the EA would do themselves no good in the creditors eyes by having a string of erroneous seizures to answer. indeed most firms will want to get the vehicle back as soon as possible if there is a properly evidenced claim under the correct procedure. As I read somewhere bailiffs are far more concerned about their contracts with the creditor than they are about any court case.

[Bailiff Advice]

Dodge,

 

im not saying your wrong! but how is joe blogs supposed to know about a setion 85?

 

I cant see refrence to it on any paper work from the bailiff or council?

 

the bailiff didnt mention it and neither did the council when i spoke to them?

 

You are absolutely right.

 

There is not enough written about 'Part 85' claims and there really should be as such claims are incredibly simple and as long as they are properly completed can be a most effective way for debtors to appeal if goods have been 'taken into control' when they really ought not to have been (for example; because the goods belong to a 3rd party, because the goods are considered exempt etc).

 

There are a number of subjects that I am passionate about and high amongst them are 'Part 85' claims. These were introduced into the regulations at a very very late stage (after the Taking Control of Goods Regulations 2013) had been laid in Parliament and they are loosely based on Rule 2 Applications in relation to debts enforced by High Court Enforcement Officers.

 

On this forum in 2013 I started a number of threads regarding a little know clause that had been introduced into Part 6 of the Taking Control of Goods Regulations 2013 regarding 'third party claims' (one such thread had over 10,000 views) and two years ago (in September 2013), I wrote a lengthly article for CCR public sector magazine regarding Part 6 of the regs and my fear that if this clause was not amended debtors/ third party owners would be required to issue 'Interpleader' applications in court. A link to that thread is below and a copy of my article is posted here.

 

Following that article, I contacted vehicle finance companies, all debt advice agencies, bailiffs companies and even some MP's with my concerns and finally contacted the Civil Proceedings Rule Committee urging them to introduce into the regulations a similar scheme that had been in place for many years with High Court Debts ( I refer to this scheme under the heading of Interpleaders in the High Court in the last paragraph on the second page of my article). Following that article I provided the Ministry of Justice with copies of Rule 2 Applications that we had assisted with since 2006 to demonstrate to them that an 'informal scheme' should be introduced into the new regulations similar to the Rule 2 Applications that had been in place for many years.

 

I was delighted to see a similar informal stage introduced into the regulations under part 85 of the Civil Procedure Rules and whilst not perfect, it at least allows debtors and third parties the opportunity to informally object to the bailiff company/local authority if they consider that goods should not be taken.

 

As I have said many times, these applications are informal and do not require a court application. Claims are presented to the enforcement company in the first instance and they are duty bound to advise the local authority within 3 days that they are in receipt of the claim and the decision on whether to release the car/vehicle clamp lies with the creditor (normally the local authority). I have yet to come across any case where a Part 85 claim gets forwarded to the local authority given that in all cases the I have assisted with, the enforcement company have been satisfied that the supporting evidence was sufficient to demonstrate that the vehicle should be considered exempt for one reason or another.

[Bailiff Advice]

A copy of my article referred to in the above post can be seen here:

 

 

[ATTACH=CONFIG]59760[/ATTACH]

[brassnecked]

Yes use of Section 85 should always be first option, although many EA/bailiffs will intimate interpleader at great expense may be the result to coerce quick payment with begged or borrowed money. Bailiffs are good at telling people to go into further debt to pay them, or so it would seem.

[Peterbard]

Yes indeed, the CPR is quite easy to understand but it seems that some manage to misinterpret it, i wonder if a new information thread would help as I think the one written by E Munch has gone.

 

Interesting what you say and echoes my own thoughts on EAs wanting to settle these before thy are passed to the creditor.(providing they are properly drafted and evidenced)

[citizenB]

I think this has now become more of a discussion thread - in which case I will shift it over to the discussion forum.