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Bailiff Advice

Vehicles on HP can be sold by bailiffs if there is a beneficial interest. Debtor ordered to pay costs of £3,400

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In May 2015, I started a thread on this forum regarding a debtor (Mr OR) who had followed advice from the internet and had issued an injunction against a local authority after his vehicle had been clamped by a bailiff.

 

The debtor considered that his vehicle should have been exempt as it was subject to finance. Unfortunately, his injunction failed as the Judge ruled that there could be a ‘beneficial’ interest in the vehicle. Mr OR was ordered to pay the local authorities costs of £3,200. This was in addition to his own costs (the fee for the injunction alone was £395).

 

 

A link to this popular thread is below. So far, it has received almost 13,000 views.

 

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In Sept 2015, I started a similar thread on here to warn members of the public that if they have a vehicle that is subject to finance, they need to ensure that they provide evidence that there is no ‘beneficial interest' in the vehicle. Even that thread has received almost 6,500 views !!

 

 

 

Unfortunately, a couple of months ago, another debtor (Mr MH) also issued an injunction to prevent an enforcement company selling his vehicle (a mini cab). This vehicle was also subject to ‘hire purchase’.

 

The difference with this case, was that the ‘value’ of the vehicle was approx £14,500, and the amount required to settle the obligation under the hire purchase contract was just £6,300 (leaving an ‘equitable interest’ of approx £8,200).

 

The debtor lost his case in court on 16th August. He was also ordered to pay the local authorities legal costs of £3,400. He was refused permission to appeal.

 

 

Neither the debtor or his legal representative have made an application to appeal and accordingly, given the importance of this subject, the enforcement company have given me permission to provide an outline of the case in the hope that it may help other debtors to avoid making the same mistake.

 

PS: I will not be giving the name of the debtor, the local authority or the enforcement company. The facts of the case are all that is important.

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The floodgates will open and bailiffs will go on a siezing frenzy? This whole Beneficial Interest needs sorting out as it will seriously affect the Finance Companies in a possible adverse manner especially if the vehicle when sold goes for peanuts that doesn't even discharge the Finance Companies outstanding balance.


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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!

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The brief background to this case is as follows:

 

The debtor (Mr HM) was self employed and ran a mini cab business. The vehicle that he used for his business was a Volkswagen which he had acquired from new in late 2013. The purchase price was approx £24,000 and finance was by way of a Hire Purchase agreement.

 

In May this year, a bailiff enforced a warrant in relation to a single penalty charge notice against the debtor. The debt at the time of the bailiff’s attendance would have been approx £500.

 

The enforcement agent located the debtors vehicle on a public highway and applied a wheel clamp to the vehicle.

 

The regulations specify that a vehicle must not be removed unless a period of at least two hours has elapsed.

 

The enforcement agent returned after the two hour period, to find that the vehicle was missing. It is assumed that the wheel clamp had been removed from the vehicle.

 

As it is a criminal offence to remove a wheel clamp, the enforcement agent reported the matter to the police. The police located the vehicle and removed it to their own pound where it was then recovered by the enforcement company.

 

Mr HM was given the opportunity to pay the enforcement agent. By this time, the debt had increased to approx £620 as a ‘sale stage’ fee of £110 had also been applied. He did not pay.

 

Following the removal, the enforcement company received notification from a ‘relative’ to claim that he, and not Mr HM was the owner of the vehicle.

 

With no evidence of ownership being provided by the 'new keeper', the enforcement company made preparations for the sale of the vehicle. An Experian valuation revealed a value of approx £14,700. Enquiries from the finance company revealed that the amount remaining under the Hire purchase agreement was approx £6,300.

 

As a relative had indicated that he was the owner of the vehicle, the correct course of action would have been for him to issue a simple ‘Part 85’ Claim to the creditor (via the enforcement company). He failed to do so. Instead, an injunction was issued to prevent the enforcement company from selling the car. By this time, the vehicle had been in the enforcement companies pound for a few weeks and daily storage charges were accruing.

 

As is always the case with injunctions, the hearing only dealt with the forthcoming sale of the vehicle. The judge agreed to halt the sale of the vehicle and directed that the case itself should be heard in a London court.

 

Because of his failure to pay the debt of just £500, Mr HM had been without the use of minicab for a long time and his business was suffering.

 

At the eventual hearing on 15th August, the Judge had to decide the nature of the interest if any that the debtor had in the vehicle. He was satisfied that the debtor had acquired a significant beneficial interest in the vehicle and accordingly, the vehicle could be taken into control.

 

The Application for an injunction failed and Mr HM was refused leave to appeal. He was also ordered to pay the local authorities legal costs of £3,400.

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Oh so the police siezed the goods, not the bailiff ?

 

Sorry just reading through this, you say the permission to appeal was denied ? Doesnt that mean that he will have to make an application for a hearing just to be allowed to make the appeal application ?


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Oh so the police siezed the goods, not the bailiff ?

 

It would appear so, and the bailiff took the vehicle from the police. I wonder what the Finance Co made of this as there is no mention of their reaction to the events anywhere.


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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!

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Oh so the police siezed the goods, not the bailiff ?

 

The vehicle had already been taken into control by the enforcement agent. It would then appear that the immobilisation device has been removed and with it, the vehicle.

 

The police then recovered the vehicle and took it to their own pound for collection by the enforcement agency.

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Sorry just reading through this, you say the permission to appeal was denied ? Doesnt that mean that he will have to make an application for a hearing just to be allowed to make the appeal application ?

 

Quite right and with the complexity of the subject matter, the debtor would have something of an uphill struggle.

 

As mentioned earlier, I have been given permission by the enforcement company to provide details of this case but it was necessary to first give the debtor (Mr HM) the opportunity to appeal. He has not done so.

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Oh see I thought that being a taxi there may have been a matter of taking control of goods in use,but I see they were taken under control earlier.

 

I am a bit confused regarding the third party claim you mention, did the action fail because if this or the benificial Interst matter and if not, what happened to that ?


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And the HP will need settling too


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The BI came about because of the way the debtor tried to reclaim the vehicle, as in going for injunction, saying not his vehicle etc rather than the simple in comparison procedure laid down in TCG imho.


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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!

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And the HP will need settling too

Surly EA MUST pay the Finance Co their wedge?


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nope down to the person that took it out.


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The way I understand it, after action the finance company get first call and the Ballance of the agreement is paid, then the creditor under the enforcement, the Ballance if any will go back to the debtor. It is a similar procedure to that applied to co-owners of goods.


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The BI came about because of the way the debtor tried to reclaim the vehicle, as in going for injunction, saying not his vehicle etc rather than the simple in comparison procedure laid down in TCG imho.

 

The procedure that you refer to is a simple Part 85 claim. Furthermore, it is free.

 

Part 85 claims are almost the same as the old Interpleader claims that I used to frequently draft years back under the old High Court regs. As long as they are presented correctly, they are usually accepted.

 

There are far too many 'myths' about these applications and common amongst them, is the 'myth' that a claimant would be required to pay an amount into court equal to the value of the goods seized. But firstly, such an sum would only apply in cases where the Part 85 claim were rejected and the decision is referred to the court. The most obvious step would surely be to issue the Part 85 claim. After all, it may well be accepted.

 

This theory is like saying that there is no point in submitting an Out of Time witness statement because, if it is rejected, there would be a court fee of up to £255 to have the decision reviewed !!!

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Yes absolutely, and let's also not forget that there are a number of kinds of claims under cpr 85. An exempt goods claim comes under 85' for instance, there is no fee for this at any stage.

 

As said the purpose of the proceedure is to keep out of court, it s useful because the creditor is held to account for the goods being seized, it is very rare indeed that cases progress beyond the initial stages. T.o repeat these are free. :)


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Absolutely DB and BA, but unfortunately there is bad advice out there that ignores this to the detriment of the debtor.


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As said, the purpose of the proceedure is to keep out of court, its useful because the creditor is held to account for the goods being seized, it is very rare indeed that cases progress beyond the initial stages. To repeat these are free. :)

 

And of course, they are speedy. The local creditor has a very short period of time to consider the 'claim' and they are free. No cost involved. And as I said earlier, they are very rarely rejected. As with most remedies (Out of Time witness statements being a good example), as long as they are prepared correctly, they will be accepted.

 

I've had just one Part 85 claim rejected since their introduction and in the past year, less that a handful of Out of Time witness statements rejected.

 

Back to the particular case of the minicab owner. I struggle to understand WHY he refused to pay this road traffic debt and the lengths that he went to in order to evade payment. It wasn't as if he he had a dozen parking tickets.

 

The debtor (Mr HM) has only himself to blame for the position that he now finds himself in.

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BA have to agree absolutely, the debtor was the architect of his own downfall, but then human nature, and bad advice causes bad problems.


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I appreciate that the enforcement regulations were overhauled in 2014, but nonetheless, it is worth noting the following comments taken from a judgement from 2013. The Judge is a highly experienced QC

 

 

"On the drive of the property, it is common ground, was a Saab saloon vehicle, registration number xxxx. This vehicle belonged to Mr S subject to the interest of the finance company — the vehicle having been secured on hire purchase ("HP"). The vehicle against which Mr H was threatening to levy distraint, was therefore the subject of an HP agreement. In fact, Mr H did not have the véhicle recovered — instead, he clamped the Saab vehicle and placed a notice on the window to confirm he had levied on the vehicle.

 

However, I cannot accept as a matter of law that the fact of an HP agreement per se prohibits a bailiff levying on the vehicle. It will often be the case that the finance company's interest is easily purchased leaving real value to the hirer, who then takes ownership on the discharge of the finance. This is a common matter in relation to excavation equipment, taken out under lease purchase arrangements, where there are agents specialising in arranging finance on such equipment, after the initial finance agreement is bought out. I have tried a number of these cases in the last 12 months in this context.

 

In principle, I can see no reason to distinguish that type of situation from this.

 

It is entirely possible, if Mr S had had the lease finance or HP agreement over a period of time, that he would have some real value in the vehicle — there is no reason why the vehicle could have not been levied against, recovered and potentially sold, subject always to the owner, the finance company, having tirst call on any proceeds.

 

As I say the likelihood is that the owner would have had its interest bought out before any sale was effected.

 

(e) As a precaution, and a wise one. Mr H did make a check before he had the Saab removed — having been alerted to the finance issues, he decided not to remove it. However, had he done so, I cannot see any reason in law why it could not lawfully have been done. I cannot find that any ground of complaint can be made out against the actions of Mr H in initially clamping this vehicle. once he had decided to levy against it"

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I think for this thread to be useful to anyone, there needs to be more info about the Part 85 claim process.

 

Also i have questions regarding a few things.

 

1) legal rights of an Enforcement Agent to obtain third party data from finance companies.

 

2) legal rights of an Enforcement Agent to effectively trigger termination of a finance agreement, by taking ownership of property that belongs to a finance company.

 

Surely there needs to be a court process ? I can see that they can take control by clamping, but beyond that should be a court process, where the enforcement company applies for consent to obtain full details from the finance company and to issue notice to the finance company that they intend to seek the sale of a vehicle to release any interest due to the debtor to the creditors owed money.

 

I am not convinced that activity in taking HP vehicles has a firm legal footing supported by legislation.


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I think for this thread to be useful to anyone, there needs to be more info about the Part 85 claim process.

 

'Part 85' claims are for another thread and posting more about them on this particular thread will merely divert attention away from the subject matter.

 

It is easy to see what the debtor did wrong:

 

Before getting to the very late stage of a bailiff visit, he would have been served with three notices from the local authority (a Notice to Owner, a Charge Certificate and lastly, an Order for Recovery). The last notice from the council (the OfR), would have warned the debtor that non payment of the penalty charge notice would lead to the debt being registered at court and a warrant of control being issued. Most motorists pay on receipt of the NtO as they will then benefit from a 50% discount. If not, they pay at the OfR stage fearing that registering the debt will result in a county court judgment and their credit rating being affected (which is does not).

 

Once a warrant is issued, the enforcement company will then write to the debtor seeking payment. A compliance fee of £75 will be added to the debt. The letter also invites the debtor to make a payment proposal. Clearly, the debtor failed to pay on receipt of any of the three statutory notices (either from the local authority or enforcement company).

 

It would appear that a clamp was removed from his vehicle and from reading comments elsewhere, the debtor knew that the police located his vehicle and removed it to the pound (where it was collected by the enforcement company).

 

At that particular stage, the amount owing to settle the debt would have been just the amount of the local authorities debt (approx £200), the compliance fee, an enforcement fee of £235 and a 'sale stage fee' of £110. At this particular stage, the vehicle clearly had not been in the enforcement companies pound and accordingly, storage fees would not have been an issue. The debtor should have made immediate payment on line or to the enforcement company to settle the debt. That would have brought the matter to a close.

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People should be aware of what is happening and what they could have done differently.

 

But it does not answer the legal questions raised.

 

When people get annoyed and frustrated they don't always seek the easiest solutions.

 

Still not convinced that enforcement companies taking HP vehicles with a view to selling them are doing so entirely legally. Parliament never intended for this type of financial interest to be pursued. Had they considered it, there would have been relevant legislation covering all issues.


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As I have said before, the Treasury Solicitor had his reasons for amending legislation to state the words 'beneficial interest' and whether we like it or not, we have to live with it. I would hope that the Three Year Review will either clarify the position or possibly amend legislation.

 

We also must not lose sight of the fact that it is not just motor vehicles that may be affected by 'beneficial interest' clause but other far more valuable goods.

 

On the earlier page on this thread I referred to a Judge's comments from a 2013 case. The Judge referred to excavation equipment. By the same token, a light aircraft or a small boat could also be subject to hire purchase and the beneficial interest point would be of vital importance. It is for this reason, that enforcement companies would welcome a ruling (one way or another) from a higher court.

 

Any suggestion that a case such as this is costing enforcement companies thousands of pounds is simply barmy. Enforcement companies RELY upon statutory regulations and case law for their day to day enforcement and legal costs, are just an everyday overhead.

 

I have no doubt that at some stage a ruling will be made by the appeal courts and until that time, anyone believing that a vehicle subject to hire purchase cannot be seized would be wrong.

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People should be aware of what is happening and what they could have done differently.

 

Being brutally honest, if a person has a vehicle under a hire purchase agreement then he should ensure that he familiarises himself with his finance agreement and avoids breaching the agreement by failing to pay any fines or parking penalties or allowing his vehicle to be seized under a court order.

 

Failure to pay the penalty charge notice will cause the termination of the agreement.

 

All hire purchase agreements will have the same clause.

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Has there been any update on this case?

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style="text-align:center;"> Please note that this topic has not had any new posts for the last 977 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.

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