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Bailiff Advice

Paying the creditor direct to avoid paying bailiff fees has landed a debtor with a £7,000 cost order.

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When the enforcement regulations were overhauled in 2014, they provided a radical change whereby, a debtor could repay their debt by way of a payment arrangement (usually over a period of approx 3-4 months). Such payment arrangements need to be set up within the very strict time frame outlined on the Notice of Enforcement. This period of time is referred to as the 'Compliance stage' and as long as a payment arrangement is agreed by the date and time given on the notice, an enforcement visit will not be required, and this will save the debtor incurring an enforcement fee of £235.

 

The ‘compliance stage’ is also the period when cases of ‘vulnerability’ should be bought to the attention of the enforcement company (and evidence provided where possible).

 

When the Notice of Enforcement is sent, a Compliance fee of £75 will be added to the principal debt.

 

It is important to make clear that the Compliance fee (of £75) is not a fee for just sending a letter. It is a fee that covers many different costs incurred by the enforcement agent including the setting up of Welfare Departments, training and setting up and managing payment arrangements etc, etc.

 

The second radical change introduced in 2014 was the provided that where the proceeds of enforcement are less than the amount outstanding, that the payment should be distributed on a pro-rata basis between the creditor and enforcement agent.

 

With the ‘Compliance stage’ allowing for short term payment arrangements, the government were concerned that this could cause enforcement agents to operate at a loss until the total debt was paid (and they recovered their fees) and that this could undermine the fee structure and could lead to enforcement agents acting in an aggressive manner in order to recoup the entire debt. It was for this precise reason, that the regulations provide that enforcement agents should be paid the compliance stage in full first, followed by a pro-rata division of proceeds. This is explained in more detail in the following Explanatory Memorandum supporting the Taking Control of Goods (Fees) Regulations 2014.

 

http://www.legislation.gov.uk/uksi/2014/1/pdfs/uksiem_20140001_en.pdf

 

It has been interesting to observe over the past 3 years the way in which 'debt avoidance' websites reacted to the compliance fee with literally hundreds of Freedom of Information requests being made to councils around the country questioning how each council dealt with 'direct payments' and whether they retained the payment...or forwarded it to the enforcement agent. The advice from these groups has remained unchanged...pay the council direct online the principal debt (minus enforcement agent fees).

 

With Magistrate Court fines, in every case where a payment is received after a case had been passed to an enforcement agency, the court will forward the payment to the enforcement agent so that they can deduct the compliance fee (of £75) and apportion the balance in line with legislation.

 

If the debt in question is a local authority issued penalty charge notice or a liability order, some councils manage direct payments in different ways. Some forward the entire payment to the enforcement agent....some forward just the compliance fee and others keep the payment.

 

Regardless of the internal procedures, the fact remains, that paying the council (or creditor direct) does not avoid paying bailiff fees and this has been the subject of an important legal case details of which are posted below.

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The claimant had an unpaid penalty charge notice in respect of his Audi motor vehicle from Harrow Council. He appealed the penalty and this was rejected. A warrant of control was obtained and passed to Newlyn Plc to enforce. They sent a Notice of Enforcement to the claimant dated 23rd November stating that the debt to the council was £172 and that with the statutory compliance fee of £75 the amount due was £247.

 

On Thursday, 14th January 2016, the claimant chose to ignore the procedure given on the Notice of Enforcement clearly outlining the ways in which payment should be made, and instead, decided to make payment to Harrow Council instead using their online payment facility. The amount that he paid was £172. He did not make payment of the Compliance fee of £75. He considered that this was the end of the matter. He clearly knew that he should have made payment of the compliance fee. This was evidenced by him sending a letter to Newlyn Plc the very same day (14th January 2016) which stated:

 

‘You can no longer lawfully take control of goods and any right of access to our property…..’.

 

He also sent to Newlyn’s a Notice of Removal of Implied Right of Access warning that any visit would be considered a trespass.

 

The following day (15th January) the debtor sent an additional letter to Newlyn entitled: Notice to Agent is Notice to Principal stating that any attempts to contact him by mail, or phone would constitute an Agreement to the following ‘Fee Schedule’

 

£1,000 per letter

 

£1,000 per notice

 

£1,000 per hour or portion thereof

 

£400 per day charge for the wheel clamps.

 

Enforcement agent visit: Monday 18th January 2016:

 

An enforcement agent attended the claimant’s property to enforce the warrant which by this time, had risen to £482 to include an enforcement fee of £235. He was not aware of the payment of £172 being made to Harrow a few days earlier. On the driveway were two vehicles; the Audi (which was the subject of the warrant) and a Mercedes. As the Mercedes was blocking in the Audi, the enforcement agent clamped both vehicles and then spoke to the claimant whereupon the enforcement agent was made aware of the payment of £172 to Harrow. He made checks with the council and it was confirmed that the payment of £172 had indeed been received. The enforcement agent amended the figure to £310. He then left the property.

 

Quite a few neighbours had observed the vehicles being clamped and after the enforcement agent left, the claimant invited the neighbours into his house for tea. After they left, the claimant 'noticed' that the clamps had been removed from both cars and were left lying on the driveway. He claimed that he no idea who had been responsible for the clamps being removed (at the hearing, the Judge stated that either the claimant or someone on his behalf had removed the clamps). The claimant then drove both cars to a church a very short distance from the house and hid them in their car park. He considered that the vehicles could not be taken from this location as it was supposedly ‘private land’.

 

19th January 19th 2016:

 

The enforcement agent located both vehicles at the church and removed the vehicle subject to the warrant (the Audi) to the vehicle pound. At this stage, the debt owed had risen to £420 to include the ‘sale stage’ fee of £110. Instead of paying the amount of £420.00 to secure the release of his car, the claimant decided instead to pay an amount of £1,644 to hire a vehicle for one month !!!

 

Approx a week later, the claimant received a Notice of Sale from Newlyn which afforded him a final opportunity to make payment. He chose not to pay and instead, he applied for an injunction (to prevent the sale) in the County Court. Such an application has a court fee of £308. He lost his application and was ordered to pay £500 to court pursuant to CPR65. To secure the release of his car, he paid the amount due under the initial enforcement procedure.

 

The Claimants claim:

 

 

The claimant issued proceedings against London Borough of Harrow and Newlyn. He claimed that it was unreasonable to clamp both vehicles and that this was not proportional. In this respect, he relied upon the case of Murgatroyd v Mrs Wilkinson. He also claimed damages for the hire of a replacement vehicle. In fact, he hired the car for three months. It’s not entirely clear why. He claimed £4,932 for the hire fees and in addition, he claimed for an adjustment to his car insurance, road tax, damage to the Audi and cost of collecting the vehicle from the pound. He also claimed loss of earnings but this and his claim for damage to the Audi, were later withdrawn.

 

The claimant argued that the defendant had not complied with the regulations and accordingly, when the enforcement agent attended and was made aware that he had paid the principal debt of £172 to Harrow Council, that he should have withdrawn and by not doing so, the whole process was wrongful and he was therefore entitled to pursue a claim for aggravated damages.

 

Put simply, the claimant said that Newlyn should not have taken control of goods because Harrow had supposedly accepted a lesser amount of £172 in full settlement of the amount outstanding.

 

In support of his claim, he relied upon various regulations but principally, the Taking Control of Goods (Fees) Regulations 2014 and in particular; Regulations 13, Schedule 12 of TCEA 2007, and in particular Regulation 50. The claimant’s interpretation of the regulations was that Harrow should have deducted the compliance fee (of £75) and taken the balance in full and final settlement of the amount outstanding to them and that if they had of done, there would have been no debt outstanding to Newlyn

 

The defendant took the view that the interpretation was a load of rubbish and Para 4 of the 2014 Regulation stands alone, and that this entitles their agent to enforce the debt where any debt is outstanding whether it be the original debt, part of it or the agents’ s fees.

 

The Judge disagreed with the claimants analysis of the various regulations stating that ‘no amount of reinterpretation of the Regulations’ comes to the aid of the claimant and that ‘no purposeful reading of the Regulations can support the claimants contention’ and that it is clear that whether Harrow Council apportioned the payment of £172 or not, was irrelevant and that Newlyn were entitled to take control of goods and remove them.

 

Taking Control of two vehicles:

 

The Judge did find fault with the enforcement agent clamping two cars. He considered that it was excessive. In particular, he referred to para 12 of Schedule 12 and sub para (2) which says as follows:

 

‘An enforcement agent may not take control of goods whose aggregate value is more than the amount outstanding’.

 

‘An enforcement agent may take control of goods of a higher value on premises or on a highways, only to the extent necessary, if there are not enough goods of a lower value within a reasonable distance”.

 

Newlyn argued that there may well have been goods of a lower value, but due to the existence of the Notice of Removal of Implied Right of Access dated 14th January 2016 they were refused entry into the property. In any event, the claimant could not provide evidence of what losses has arisen (as a result of both cars being clamped).

 

After both vehicles were found in the church car park, the enforcement agent only took one of the vehicles (the Audi) to the pound. This was the vehicle that was the subject of the road traffic contravention. The claimant argued that the cheaper vehicle (the Mercedes) should have been removed and by not doing so, it was disproportionate. The Judge disagreed.

 

Claim for aggravated damages:

 

As the clamping of both vehicles had taken place in full view of his neighbours, the claimant also claimed aggravated damages for significant humiliation, shame and embarrassment. The Judge was of the view that it was the claimant, or someone on his behalf who had removed both wheel clamps and that both vehicles were therefore released from clamps within a very short period of time. He was not awarded anything under this heading.

 

 

Claim for vehicle hire of £4,932

 

The Claimant stated that he had supposedly hired a replacement vehicle for an initial period of one month and a further period of 3 months. In this respect, from June 2016, he had been asked to provide documentary evidence in support of his claim.

 

On the morning of the hearing, he produced a bank statement showing a payment out of his account on 20th Janaury 2016 for £1,644. He stated that this payment related to initial hire of the replacement vehicle. He did not provide any further evidence.

 

During the hearing the Judge questioned the claimant as to whether he could have afforded to pay the debt to Newlyn when the enforcement agent visited. He confirmed that he was a highly paid Financial Adviser and had the ability to pay the debt. Accordingly, the Judge stated that he could have mitigated his loss by either paying £310 on 18th January or alternatively, by paying £420 on 19th January 2016 and that if he had of done, there would not have been a need to hire a vehicle. Accordingly, his claim for the hire costs of a replacement car was rejected.

 

Permission for appeal was refused.

 

The hearing took place on 17th February 2017 but due entirely to the hearing overrunning the allocated time, the matter of costs was deferred to another hearing. This hearing took place on 10th May and the claimant was ordered the pay costs to Harrow Council of £2,000 and costs to Newlyn of £5,000 (making a total costs order of £7,000).

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I will post a copy of the Judgment up on the forum in the morning. I have also started a separate discussion thread regarding this case.

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The Judgement in relation to this case (of Mr Bola v Harrow and Newlyn) can be accessed below:

 

 

PS: Discussions about this case are continuing on a separate thread here:

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?477812-Judge-orders-debtor-to-pay-%A37-000-in-costs-for-trying-to-avoid-paying-Compliance-fee-of-%A375......a-discussion-thread.(4-Viewing)-nbsp

Bola v Harrow and Newlyn 17th Feb 2017. Approved Judgment .pdf

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