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

[Whitely]

I do not believe that vehicles subject to Hire Purchase are currently being taken into control.

 

And we all know why.

 

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.

 

This is why I say an injunction could be the preferable route available to someone in such circumstances.

[Bailiff Advice]

I am sorry but I cant be here all day arguing and it really is pointless going around in circles. What is agreed by all posters is that the CORRECT procedure is to use Part 85 of the Civil Procedure Rules.

 

Any claimants wishing to pursue such claims, should post here on the open forum and they will receive assistance and guidance.

 

I am personally assisting with two such applications at this present time and hopefully I should be in a position to provide an update for the forum some time next week. In the meantime, if there are any viewers who would like to share their experience with any such applications (or injunctions) we would very much welcome your comments.

 

Thank you.

[Whitely]

I am aware that last month HHJ Wulwik sitting at the Central London County Court found that it was right that the debtor made an injunction application to have his hire purchase car returned to him because the hirer had a right to immediate possession of it. It's my understanding that the EA company, Newlyn's, had significant costs awarded against them. This seems to be why they have suspended there procedure of taking HP cars.

[Peterbard]

Didnt the OP say something like on the receipt of a phone call from the HP company, cant find the original thread .

 

I think care should be taken when claiming that a procedure is successful when it has not even been implemented.

 

In my view the only people who are happy with these procedures are the people who instruct and get paid for doing so.

 

There is a remedy in the TCE which works in the vast majority of legitimate claims, without any costs, surely this is the one to advise.

[Peterbard]

I am aware that last month HHJ Wulwik sitting at the Central London County Court found that it was right that the debtor made an injunction application to have his hire purchase car returned to him because the hirer had a right to immediate possession of it. It's my understanding that the EA company, Newlyn's, had significant costs awarded against them. This seems to be why they have suspended there procedure of taking HP cars.

 

 

I disagree. I think the reason is that HP companies have said they will not allow the EA to continue with the sale after seizure. At least this is what I am hearing.

[Leakie]

Looks like there are 2 options available, the injunction or S 85,

 

The main problem is unless you are involved with the forum or in enforcement,

then the innocent third party would not necessarily know about S 85,

 

With regards to the speed of release from control, S 85 take to long and no compensation, for being wronged.

 

Why should an innocent third party not be compensated for being deprived of there property, and any lose they may have incurred

whilst the vehicle has been ceased.

[Bailiff Advice]

It would be wrong to allow this thread to be taken 'off topic' by discussing vehicles on HP but I will make this one comment:

 

In the case mentioned by Whitley, the debtor had the opportunity to pay ONE PCN . Why the hell he did not do so is simply beyone me. Sheer utter madness.

[Whitely]

It would be wrong to allow this thread to be taken 'off topic' by discussing vehicles on HP but I will make this one comment:

 

In the case mentioned by Whitley, the debtor had the opportunity to pay ONE PCN . Why the hell he did not do so is simply beyone me. Sheer utter madness.

 

Not sure how discussing HP cars using p85 is off topic, but certainly castigating the person in the case I mentioned for not paying a PCN is way off topic and uncalled for. We haven't explored why the PCN was unpaid.

[Peterbard]

Looks like there are 2 options available, the injunction or S 85,

 

The main problem is unless you are involved with the forum or in enforcement,

then the innocent third party would not necessarily know about S 85,

 

With regards to the speed of release from control, S 85 take to long and no compensation, for being wronged.

 

Why should an innocent third party not be compensated for being deprived of there property, and any lose they may have incurred

whilst the vehicle has been ceased.

 

Lekie .

 

Damages or compensation as you call it has to be proven, no matter which avenue the debtor takes This would require an action after the event. It would be incumbent to provide proof of, actual loss, proximity( reliance to the event) and any mitigating action being taken by the claimant.

 

The speed of any claim would be dependant on that claim not the injunction or the section 85 claim. What would be immediate would be costs, and in that regard injunctions have very bad track record indeed.

[Leakie]

Thank you DB

 

Your Knowledge of the legal side is far greater than mine,

I suppose I am talking of the moral side more,

 

If I were the aggrieved third Party,and say lost work or even my job because of it,

I would not be happy to say the least and would expect some sort of compensation.

 

This scenario would only happen if the EA was being Pig headed and not accepting,legitimate evidence .

 

The only other point would be if the third part could not afford a payment if the creditor refused the evidence.

 

As most debtors would probably not have the money to pay the court if challenged.

 

I agree it would be a hard balance to find,

The trouble is on size does not fit all, which the Government seems to forget.

[unclebulgaria67]

And how many cut clamps off and if a complaint to Police is made they say they know nothing about any clamp. The vehicle is theirs, they show proof and the vehicle cannot be touched. The EC loses a clamp.

 

Yes such actions could lead to a criminal conviction, but i bet this does happen.

[Peterbard]

And how many cut clamps off and if a complaint to Police is made they say they know nothing about any clamp. The vehicle is theirs, they show proof and the vehicle cannot be touched. The EC loses a clamp.

 

Yes such actions could lead to a criminal conviction, but i bet this does happen.

 

It certainly does, and i dont know why it is that the bailiffs never seems to pursue a criminal charge via the police.

As far as the controlled goods are concerned however, clamp or not they are still under control.

 

This means that they can be picked up and taken away wherever they are spotted even by the police, which has happened on here or of course on private land.

[unclebulgaria67]

It certainly does, and i dont know why it is that the bailiffs never seems to pursue a criminal charge via the police.

As far as the controlled goods are concerned however, clamp or not they are still under control.

 

This means that they can be picked up and taken away wherever they are spotted even by the police, which has happened on here or of course on private land.

 

Surely only under control, IF they are goods owned by the debtor or reasonably believed to be owned by the debtor and the EA has acted correctly.

 

Otherwise you could have a situation where for sake of argument your car was clamped and it was to do with a neighbour down the road you did not like.

 

I thought that part of the new regime was to stop EA's clamping any vehicie in a road, to cause embarrassment to the debtor and to seek payment. There were cases in the past, where many vehicles were clamped before ownership checks were made.

[Whitely]

As far as the controlled goods are concerned however, clamp or not they are still under control.

 

This means that they can be picked up and taken away wherever they are spotted even by the police, which has happened on here or of course on private land.

 

A car without a clamp would need a CGA to be under control.

[wonkeydonkey]

It certainly does, and i dont know why it is that the bailiffs never seems to pursue a criminal charge via the police.

As far as the controlled goods are concerned however, clamp or not they are still under control.

 

This means that they can be picked up and taken away wherever they are spotted even by the police, which has happened on here or of course on private land.

 

There has been a ruling very recently upholding the fact it was in order for a bailiff to have removed a car from 'private' land (church car park). It was originally taken into control and clamped on the debtors own driveway, . Clamp was then removed by 'persons unknown' and the car in questioned was then moved to a church car park in the belief the bailiff couldn't remove it or reclamp it on 'private land.

 

The case in question makes very interesting reading and appears to centre around the wrongful advice we see elsewhere on the forums, such advice that Cag and BA in particular have been able to correct and supply evidence for, hopefully saving debtors from making costly errors.

[Whitely]

There has been a ruling very recently upholding the fact it was in order for a bailiff to have removed a car from 'private' land (church car park). It was originally taken into control and clamped on the debtors own driveway, . Clamp was then removed by 'persons unknown' and the car in questioned was then moved to a church car park in the belief the bailiff couldn't remove it or reclamp it on 'private land.

 

The case in question makes very interesting reading and appears to centre around the wrongful advice we see elsewhere on the forums, such advice that Cag and BA in particular have been able to correct and supply evidence for, hopefully saving debtors from making costly errors.

 

I assume you mean the case where the debtor was not in court to actually present his case?

[Peterbard]

A car without a clamp would need a CGA to be under control.

 

Not if it had a clamp, but it was removed by the debtor unlawfully. It would still be under control as in the case above .

[Peterbard]

I believe there was also s similar case, where a car which was under control was stopped by the police after a clamp had been unlawfully removed.

[Peterbard]

I assume you mean the case where the debtor was not in court to actually present his case?

 

NO, he was in court , that must be another one.

[Whitely]

I believe there was also s similar case, where a car which was under control was stopped by the police after a clamp had been unlawfully removed.

 

Indeed there was, which raises an important question. Does a bailiff simply need to say a car he claims to have clamped has been moved without providing any evidence? What if a debtor was getting into his car just as the bailiff arrived - can the bailiff simply jot down the details, give it a few hours then call the police claiming a clamp has been cut off and a car removed?

 

And let's not forget that the owner in the case you mention eventually won his case.

[Whitely]

Not if it had a clamp, but it was removed by the debtor unlawfully. It would still be under control as in the case above .

 

How does the bailiff prove a clamp has been removed? Nothing to stop him making up a claim.

[Whitely]

NO, he was in court , that must be another one.

 

I think you're mistaken there Dodgeball. There is only one case involving a car in a church, and he wasn't in court.

[Peterbard]

I think you're mistaken there Dodgeball. There is only one case involving a car in a church, and he wasn't in court.

 

I guess we will see who is incorrect at some point.

[Whitely]

I guess we will see who is incorrect at some point.

 

I believe we've been waiting since Sunday for Bailiff Advice to post the transcript.

[wonkeydonkey]

I think you're mistaken there Dodgeball. There is only one case involving a car in a church, and he wasn't in court.

 

DB is perfectly correct..the case I mentioned was heard in Watford, the claimant was in Court as was his solicitor. The matter I speak of was only a small part of the evidence given to the Court from a whole raft of ridiculous claims made against a LA and Enforcement company...all thrown out I believe.