Part 85 the Civil Procedure Rules ..... Discussion

[Peterbard]

Exactly, an amount that could be many thousands plus further amounts.

 

The second sentence doesn't make sense.

I am sorry you do not understand part of my response.

[Whitely]

Also i must say, and this will be my last comment on the subject, that I find it somewhat disingenuous taking abut costs, when injunctions have resulted in many thousands of pound in court costs being awarded againsts injunction applicants.

 

It's a shame that's your last comment as you never answered my query onyour assertion that injunctions are being stopped 'as we speak'. To add to that, you now claim that injunctions have resulted in many thousands being awarded against the applicants. It would've been nice to back this up.

[Whitely]

I am sorry you do not understand part of my response.

 

Well it's because you said "you cannot see a court being aware of this". Did you mean "you cannot see a court not being aware of this"?

[Peterbard]

Well it's because you said "you cannot see a court being aware of this". Did you mean "you cannot see a court not being aware of this"?

 

That would be a double negative, i wouldnt do such a thing, no i meant what i said.

 

[Bailiff Advice]

The correct procedure that should be undertaken by a 'third party' is to issue a CPR Part 85.4 claim and make use of the initial procedure so as to avoid having to waste valuable court time and additional court fee.

 

Thankfully, the Local Government Ombudsman has also agreed that Part 85 Claims are the correct procedure:

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?477751-Local-Government-Ombudsman-(LGO)....Bailiff-enforcement-and-Part-85-Claims-to-Controlled-Goods.&p=5027688#post5027688

[Whitely]

The correct procedure that should be undertaken by a 'third party' is to issue a CPR Part 85.4 claim and make use of the initial procedure so as to avoid having to waste valuable court time and additional court fee.

 

I think we have established that this is correct. However, should the claimant then use p85.5 or issue an injunction? Both remedies are available.

[AndyOrch]

Discussion posts moved to own thread.....please feel free to discuss here.

 

Whitely this is now your thread...please do not hijack and turn threads into discussion...its of no assistant to original poster of the previous thread.

 

Regards

 

Andy

[Bailiff Advice]

I think we have established that this is correct. However, should the claimant then use p85.5 or issue an injunction? Both remedies are available.

 

You need to familiarise yourself with Part 85.5(1) of the Civil Procedure Rules. This provides that if the Part 85.4 claim is rejected, and the creditor (or the claimant) wishes to maintain their claim to controlled goods ......that they must proceed under Part 85.5.

 

You really do need to get the idea out of your head that claimants should use injunctions and I am not going to keep repeating myself on this point.

[unclebulgaria67]

85.5 requires money to be paid into court ?

 

If there is no doubt about ownership of goods and a third party wants to regain them more quickly, why not seek an injuction ?

 

Each case is going to be different and advice should be sought first.

 

In the case on the other thread the EA clamped a car on finance, that did not belong to the debtor, refused to remove the clamp after being given proof of third party ownership and then tried to get a third party to pay the amount. I can't see why an injunction application was wrong. The council quickly reacted and no court process was needed. Part 85.4 might not have been reacted to as quickly.

[Peterbard]

You miss the point. perhaps i should have been clearer, it is not an option.

 

The reason the statute requires a payment into court is in order to protect the creditors interest i the goods .

 

It was introduced because of the number of vehicles(mostly) which would end up disappearing during proceedings .

It was widely criticised at the time of introduction by many(including me).

 

However there it is, it is a statutory protection for the creditor. These cases are new(ish) at east in this form. Many judges are not aware of the procedure, but when they are made aware, they have no option but to transfer to the correct procedure(CPR 85). Not to do so would illegally prejudice the creditor under the act.

 

This is why they are criticised so heavily when they come to light for using the wrong procedure.

[AndyOrch]

Appears the OP has suddenly lost interest in the debate

[Peterbard]

Appears the OP has suddenly lost interest in the debate

 

Probably my spelling put him off

[Bailiff Advice]

85.5 requires money to be paid into court ?

 

If there is no doubt about ownership of goods and a third party wants to regain them more quickly, why not seek an injuction ?

 

Each case is going to be different and advice should be sought first.

 

In the case on the other thread the EA clamped a car on finance, that did not belong to the debtor, refused to remove the clamp after being given proof of third party ownership and then tried to get a third party to pay the amount. I can't see why an injunction application was wrong. The council quickly reacted and no court process was needed. Part 85.4 might not have been reacted to as quickly.

 

You have made some excellent points UB which I am happy to respond to:

 

In the first instance, it is important to make clear we are talking here only about Part 85.4 Claims to Controlled Goods. This is the part that is applicable to 'Third Party' claims. A genuine purchaser will have genuine documetation and if this can be produced at the initial stage, then common sense will be applied and the goods set free. As I have made clear, the decision is made by the local authority and they would not wish to risk an adverse cost order being made against them in court.

 

As the recent Local Government Decision has shown, some claimants claims appear to be less than honest and unfortunately, I have come across MANY similar cases and you only have to spend a day or so viewing the 'Beat the Bank's F/B groups to witness a debtor being told to transfer his vehicle into somebody else's name to avoid their vehicle being seized by bailiffs. In fact, I have posted many such examples on here myself.

 

An injunction is an emergency application and from the various cases that I have known about, the applications are made in order to stop the controlled vehicle being sold. What is importnat though, is that in almost all cases, the hearing itself will be sucessful with the court ordering the sale to be halted but that is just the beginning stage. The court will then list the case for a hearing and it is common to find that a hearing date for all parties to attend court can take a few months (even more). In that time, the vehicle will usually remain in the pound.

 

In the case of the OP, it is also important to make the point that an injunction was not actaully issued. Instead, a draft copy of the application had been sent to the council and common sense prevailed.

 

One point that I would like to raise here is that the OP stated that his or her car has been clamped in respect of the ex partners debt. Regulars on here will know that the regulations do allow for 'jointly owned' goods to be taken in control. The OP did not state what the realtionship had been between the two of them so it is difficult to know whether or not the vehicle could be considered 'jointly owned' or not. The OP did not answer one very important question. What happended to all the statutory notices that would have been sent to the address for the ex partner? Were those letters forwarded to the ex partner?

[Bailiff Advice]

85.5 requires money to be paid into court ?

 

I will just come back to this point as it is an important one. It needs to be made clear that under CPR 85.5 the claimant is permitted to seek further directions at Court for leave to pay only a proportion of the value of the goods into court. In fact, I have yet to hear of any case where the court ordered the claimant to pay into court the full value of the vehicle under dispute.

 

One last point. With just one exception, all part 85.4 claims that I have assisted with, have been accepted and the goods set free without the need for the claim to progress to Part 85.5. That is probably because I will only give assistance to a genuine claimant and not one who is looking at inventing a 'sham' sale.

[unclebulgaria67]

As i have commented before, perhaps some amendments might help. E.g The creditor owed the money needs to respond to the 85.4 claim within 24 hours and compensate the owner of goods if the EA has not followed the correct process in establishing ownership of the goods.

 

I would be very unhappy if my goods were seized for a debt owed by someone else, as most people would be. To have to make an application to someone you have had no dealings with and not be offered any compensation cannot be right.

[Whitely]

Appears the OP has suddenly lost interest in the debate

 

If that was aimed at me then such a dig from a mod is not helpful. Do you think I'm sat at my PC all day like others on here?

[Whitely]

Bailiff Advice, a few points. Firstly we are not just discussing p85.4, we are discussing the whole situation should a third party make a claim. As has been said many times now, no-one disputes that p85.4 is the correct option in the first instance; it is free although I feel too long winded and I cannot see why the turnaround cannot be 24 or 48 hours.

 

Secondly, how is paying a sum into court up to the value of the vehicle protecting the creditor's interests? Once we've moved onto p85.5 is the vehicle then released? If not then what purpose does the payment serve? You've already said that such payments rarely happen (although you've offered no source to that), so why does the mechanism exist?

 

Thirdly, once a p85.4 is rejected there is nothing to compel a third party to move onto p85.5. They are free to seek other judicial remedies as stated in s66 of schedule 12.

[Whitely]

There is of course the situation when the car is on HP. The third party in such a case would not be the person who has had their car seized (the hirer) but the HP company. The hirer has no option available to them under p85, and it may prove time consuming getting the HP company to respond and follow the procedure.

 

I aslo note that no-one has yet to provide a source for any of their assertions from earlier. Surely such statements need to be strengthened with evidence?

[Peterbard]

I think the timescale has to be realistic if the creditor is going to be alerted and has to examine evidence relating to the claim.

 

As for HP i dont think the debtor has any rights under a injunction either, in that the goods are not his.

He should just alert the HP company and leave it in their hands. As things are at the moment, it will be they who will decide the ultimate fate of the vehicle.

 

As for proof there are ample incidents of injunction proceedings being converted to CPR on here, i dont know if anyone else wants to look and link them for you, otherwise you will have to find them yourself.

[Bailiff Advice]

Bailiff Advice, a few points. Firstly we are not just discussing p85.4, we are discussing the whole situation should a third party make a claim. As has been said many times now, no-one disputes that p85.4 is the correct option in the first instance; it is free although I feel too long winded and I cannot see why the turnaround cannot be 24 or 48 hours.

 

Secondly, how is paying a sum into court up to the value of the vehicle protecting the creditor's interests? Once we've moved onto p85.5 is the vehicle then released? If not then what purpose does the payment serve? You've already said that such payments rarely happen (although you've offered no source to that), so why does the mechanism exist?

 

Thirdly, once a p85.4 is rejected there is nothing to compel a third party to move onto p85.5. They are free to seek other judicial remedies as stated in s66 of schedule 12.

 

Some interesting comments......thank you.

 

I was specifically referring to Part 85.4 claims as this was the subject of the initial thread under discussion.

 

On your second point that you consider that the initial procedure is too long....that is your opinion and that is fine. I would have thought that there would be a great deal of opposition from the enforcement sector and creditors for any shorter period being imposed. The time period stated is almost certainly a great deal shorter that would be achieved by way of an injunction (and without the costs involved). Nonetheless, I will be attending a meeeting regarding the 'review' very shortly and Part 85 Claims is one of the subjects that I intend raising.

 

You've asked whether vehicles would be released if the case progresses to Part 85.5. The answer is simply that it will be for the District Judge to hear the case and view the evidence in support, and decide who the rightful owner of the vehicle is.

 

I have stated that I am aware of cases where courts have agreed a far lesser amount but I dont have details of any judgment or more importantly, permission to post them on an open forum.

 

Your last point has already been answered earlier today by DB in the following link:

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?477757-Part-85-the-Civil-Procedure-Rules-.....-Discussion&p=5027671&viewfull=1#post5027671

[Whitely]

From what I can see there are 3 cases from 2015, often repeated over several threads, the Larnyou and Reiss cases. The third one is about the wrong claimant name on the application so doesn't really apply. Of the other 2, neither of the injunctions themselves 'failed' as is asserted, but the cases ultimately failed. The first case saw the claima was not candid with his information; the second one ended up with the 'goods on HP' debacle, now thankfully overturned in the High Court. There was a brief mention of one from 2016 but no further details were posted. Every other reference to injunctions is regarding Larnyou and Reiss.

 

I do however find it strange that these 2 cases are continually repeated over and over again, yet successful cases like the original OP in this split thread are 'forgotten'. The simple fact remains is that an injunction is an available remedy. District Judges have no remit to complain about 'valuable court time' as the claimant has paid for that time.

 

I noticed on one of the cases that the DJ 'threatened' at an injunction hearing that should the claim ultimately fail then the claimant would be liable for storage costs. The implication is that would not apply with a failed p85.5 claim, which is clearly untrue - unless of course the car is released in the meantime, which would require a substantial payment in lieu. That is also overlooking whether cars under a p85.5 claim are actually released. Are they? Does anyone know?

[Bailiff Advice]

There is of course the situation when the car is on HP. The third party in such a case would not be the person who has had their car seized (the hirer) but the HP company. The hirer has no option available to them under p85, and it may prove time consuming getting the HP company to respond and follow the procedure.

 

I aslo note that no-one has yet to provide a source for any of their assertions from earlier. Surely such statements need to be strengthened with evidence?

 

I do not believe that vehicles subject to Hire Purchase are currently being taken into control. Unfortunatley, finance companies struggle to understand Part 85 Claims. Maybe in time they will improve their knowledge. Reading accurate information on here may very well assist them.

[Bailiff Advice]

 

I do however find it strange that these 2 cases are continually repeated over and over again, yet successful cases like the original OP in this split thread are 'forgotten'.

 

 

The OP had NOT issued an injunction and instead, had merely sent a draft of the injunction and did not progress the application any further after receiving notification from the court of the requirmenent to pay the court fee of £308.

 

The OP said this:

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.

http://www.consumeractiongroup.co.uk/forum/showthread.php?477658-Andrew-James-Enforcement-unlawfully-executed-a-warrant-on-me&p=5026788&viewfull=1#post5026788

[Whitely]

Some interesting comments......thank you.

 

I was specifically referring to Part 85.4 claims as this was the subject of the initial thread under discussion.

 

Just for the sake of accuracy I'll pull you up there. The discussion was about p85 as a whole, not just one tiny aspect of it. The assertion was that p85 would not require a claimant to make any payments - clearly there are provisions for an upfront and continuing payments to be needed.

 

You've asked whether vehicles would be released if the case progresses to Part 85.5. The answer is simply that it will be for the District Judge to hear the case and view the evidence in support, and decide who the rightful owner of the vehicle is.

 

That is not what would happen at the initial hearing. The DJ would be giving directions on what payments need to be made before documents are served on other parties. The first hearing would not be to decide the case.

 

I have stated that I am aware of cases where courts have agreed a far lesser amount but I dont have details of any judgment or more importantly, permission to post them on an open forum.

 

That is disappointing as it doesn't allow anyone else the opportunity to question them. I don't see what permissions would be needed for cases you don't have details for as, evidently, you don't have the details. No point in wanting permission to use something you don't have!

[Whitely]

The OP had NOT issued an injunction and instead, had merely sent a draft of the injunction and did not progress the application any further after receiving notification from the court of the requirmenent to pay the court fee of £308.

 

The OP said this:

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.

http://www.consumeractiongroup.co.uk/forum/showthread.php?477658-Andrew-James-Enforcement-unlawfully-executed-a-warrant-on-me&p=5026788&viewfull=1#post5026788

 

The OP said the application was filed and served on Andrew James. The clamp was removed within the hour. The court subsequently contacted the OP for payment but the OP no longer needed to proceed. They seem to have had a stroke of fortune with the need to pay for the injunction so good luck to them. However, the power of the thought of an injuction certainly seemed to rattle Andrew James. I'm not sure a p85 would've had the same effect.