Andrew James Enforcement unlawfully executed a warrant on me

[stuckinarut11]

6.30 am - knock at door. Look through window. Evident bailiff.

 

6.35am - once he was off my front garden went out and spoke to him. Seeking my ex partner from August 2016.

 

6.45am - provided driving licence from inside house, my car was clamped.

 

6.50am - my car was now clamped for a fine that had nothing to do with me and not my name on the court warrant.

 

6.55am - I remained calm and was told on presenting my identification to take my ugly mug back inside

 

8.30 - phoned authority who's parking services team advised me no discussion until full payment is made I said I am not xxx xxx their response..... your card number is

 

9.00 - phoned courts to file a complaint advised speak to authority.

 

9.10-11.30am spoke to Andrew James who refused to speak to me as I was not named on the warrant yet they had my car clamped. Spoke to authority who failed to take action swiftly.

 

12.30 N16a injunction application filed at court and served on authority and Andrew James

 

1.10pm the clamp was being removed followed by a grovelling telephone call from the parking services director in the authority.

 

Advice needed for next steps for this unlawful action and claiming lost working hours and damages for public embarrassment

[unclebulgaria67]

You would have to give the authority and Andrew James chance to settle your loss, before you issued a court claim anyway.

 

Suggest you invoice the Parking Services Director for an amount that represents what you can quantify e.g lost income, cost of injuction, cost of phone calls, getting to court and then ask for an amount on top that reflects the unlawful action of Andrew James. Suggest that between the Authority and Andrew Jones that they settle the amount to avoid a court claim being issued.

[Bailiff Advice]

I feel sure that you will disagree with me, but I really do think that you have acted extremely hastily. I cannot see that you would be entitled to make a claim against the enforcement company given that you should not have issued an injunction. This was the incorrect procedure. The correct procedure, would have been for you to make an informal Part 85 (4) claim under the Civll Procedure Rules.

 

PS: How much was the court fee for your injunction?

[Leakie]

With all due respect BA

 

most people do not know the correct procedure,

 

If this works it give people other options,

 

The EC will not be the one at fault here the council will have to take the brunt of it.

I personalty believe the EA should do there homework first before they act,

not bring some one who has nothing to do with the claim the hassle of doing a section 85 ,

 

it may be what TCE says , it seems to be the norm now if you do not like what has happened to you the court can decide,

this is not only with EA issues it is general enforcement not just bailiffs but any type of enforcement,

the onus seems to be on the accused to prove whether right or wrong, what ever happened to innocent until proven guilty.

[unclebulgaria67]

Agree with this.

 

Why should a third party that has just been asked to pay a debt belonging to someone else, under the threat of having their car taken away to be sold, go to a court to claim their own property ?

 

Andrew James might have cover against commiting a crime while undertaking enforcement, but only if they had belief the car belonged to the debtor. If there is no evidence the car belonged to the debtor, then the action by Andrew James was unlawful.

 

You have to think what the average member of the public would do when faced with this situation early in the morning. I suspect Andrew James often receive payment from a third party to get their car unclamped, hence their actions. The third party then has to try to get their money back.

 

I think an injuction against an unlawful act is reasonable, certainly better than cutting off the clamp and the OP is entitled to receive compensation for losses they can evidence. If EC's and their clients don't want to make themselves liable, then as soon as a third party shows a vehicle to be theirs, then unclamp quickly, say sorry and move on.

[stuckinarut11]

I agree there is a process.

 

The completion and filing of the form to the court was adequate the court replied later in the afternoon to say a £308 charge needed to be paid, at this time the issue had been resolved.

 

People on here know I am hasty however this is something for people in a similar situation to consider.

 

Fill in the form file with court and cc in the authority and bailiffs

[unclebulgaria67]

The injuction application only worked because of a quick response by the authorities director of parking services. I should imagine that in many cases people would have to go through with the injuction paying the court fee.

 

I think this type of issue needs to be looked at again. If EC's were by law required to compensate third parties for tsking control of their goods in error, then it would force them to be much more careful. It might save unecessary court applications and Police being called out in some cases.

[Leakie]

The system is wrong, where a third party is involved,

The EA knows they can use this as away to get the debt paid, they do not care who pays,

It is being abused to get a result,

As UB has said if there was a penalty/or compensation to pay, may be they would do the checks before, seizing goods.

 

Yes it would make there job more difficult, but it has been load to much in the EA/EC favour.

[stuckinarut11]

The car is on finance so when the finance company phoned them to question why a £7000 car was clamped for a £500 debt their reply was we will sell it and refund any overpayment.

 

In fairness to first response finance they were straight on the case to the EA

[Bailiff Advice]

As frequent posters on here will know, I am very passionate indeed about Part 85 Claims and I fought very hard indeed in 2014 for the Ministry of Justice to introduce such a procedure.

 

Part 85 claims are free....they do not require any specific form and if the notice is well prepared, the goods are normally released very speedily. It is only if the local authority (or other creditor) reject the claim that a court would be required to decide who owns the goods.

 

What frustrates me is the lack of information on the web regarding these procedures and more importantly....the lack of awareness of Part 85 with creditors (local authorities etc).

 

To understand Part 85 claims, it may assist you to read the following thread of mine from 2014 (when I used to use the username of Tomtubby):

 

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

 

This particular post is very important:

 

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&p=4479181&viewfull=1#post4479181

 

From the above link from 2014, you will observe that I had suggested to the Ministry of Justice (and many other agencies) the need to implement something along the following lines so as to avoid the need for 'third party' claimants to have to make Interpleaders applications to court and to pay into court, a sum of money that could be equal to the value of the vehicle under dispute:

 

Quote

Interpleader in the High Court

 

"At present, interpleader applications are almost exclusively used in relation to third-party claims for writs of fi fa enforced by High Court enforcement officers (HCEO), and such interpleader claims are heard in the High Court. I have personally never known of an interpleader application in relation to unpaid council tax or parking charge notices.

 

At present, with High Court enforcement, if a third party claims that goods have been seized then, under Rules of the Superior Courts (RSC) Order 17 (Rule 2) it is a very simple matter indeed for the third party to send a letter to the HCEO within seven days of seizure providing suitable evidence of their claim and under RSC Order 17 (Rule 2a) the enforcement company must “without delay” forward a copy of the third party claim to the judgment creditor, who then has seven days in which to either admit the claim –in which case the goods are released –or to dispute the claim, which will then mean that the claim would be referred to court for an inter-pleader.

 

Having this process in place quite rightly puts the onus of responsibility on the judgment creditor and, crucially, there are no costs involved and the third party owner is not at a financial disadvantage. This initial stage does not involve a court and, most importantly, if the evidence supports the third party’s ownership, the seized goods will be released within just seven days of notice being given to the judgment creditor.

 

My persistence paid off, and I was delighted to hear that MOJ had taken my criticism on board and had introduced my suggestions under Part 85 the Civil Procedure Rules.

[unclebulgaria67]

That procedure although it might be well intended needs to offer a speedier resolution and compensation to the third party. If it did that, then it would work better, it would be used more and EA's would be very careful checking ownership of goods.

 

Perhaps you can suggest an amendment to the legislation.

 

At the moment there is not enough of a disincentive not to take control of third party goods in order to obtain payment. It is quite clear that some EA's are deliberately asking third parties to make payment and really that should be a criminal offence.

[Leakie]

Thank you BA for getting the part 85 into the legislation,

 

My beef with this is

1-why should a third part be deprived of there property in the first place. (if proof is given)

 

2- why should a third party have to wait up to 3 weeks to get the issue resolved.

 

3 what compensation is give to the third party for there inconvenience, and out of pocket expenses.

 

4- what happens if the third party loses there job because of this, will some one be held accountable.

 

I agree it is better than before, but there must be a better way,

if the EA had to prove the seized goods were not the third party's would be a good start,.

and a penalty for not doing due diligence,

 

I do not know the answer, but it needs to change.

[unclebulgaria67]

The answer is partly a quicker injunction, if that is the only way. A third party needing their car, can't wait for a longer process.

[Peterbard]

The car is on finance so when the finance company phoned them to question why a £7000 car was clamped for a £500 debt their reply was we will sell it and refund any overpayment.

 

In fairness to first response finance they were straight on the case to the EA

 

So this was resolved, not by the injunction, but by the phone call from the finance company. Perhaps making that call first should be the advice given.

 

Making ex-parte injunction applications is a dangerous business .

As, if you lose at the hearing' you can get hammered for costs.

 

As has been seen on here countless times.

[E Munch]

Was the vehicle that was clamped the vehicle in which the penalty was incurred?

[brassnecked]

Don't think so Munch, one thing is certain injunction is dangerous, look at that county Court judgement that gave beneficial interest in vehicles on finance, but the Part 85 is probably too slow where there is no doubt a vehicle is wrongly clamped.

[unclebulgaria67]

Don't think so Munch, one thing is certain injunction is dangerous, look at that county Court judgement that gave beneficial interest in vehicles on finance, but the Part 85 is probably too slow where there is no doubt a vehicle is wrongly clamped.

 

Not dangerous if you are an innocent third party with a clamp on your car, being asked to pay a debt owed by another person.

 

I can't see that ever failing and therefore no costs issue. The council were obviously concerned enough if the Director of parking services became involved.

 

The beneficial interest issue seems to have gone the other way, as other cases have found no current interest exists, if the finance agreement means that the finance company owns the vehicle until the last payment is made. The finance company can't be forced to sell a vehicle they own, without a court order to force the sale. Until this matter is resolved with a higher court judgement, then i don't think EC's are touching financed vehicles.

[AndyOrch]

Thread temporarily closed until/if the original poster wishes to add further.

 

Regards

 

Andy