Removal of Implied Right of Access and FMoTL: Debtor loses

Removal of Implied Right of Access and FMoTL: Debtor loses

Postby musashi » Wed Feb 07, 2018 10:05 pm

Thornton v Rossendales Ltd: Judgment. Norwich County Court: January 2013



Background:

In July 2012 the debtor (Mr Thornton) wrote a letter to Rossendale’s Ltd headed “Notice of Removal of Implied Right of Access.” It was sent by recorded delivery. The letter purported to be a legal notice removing the bailiff’s right of access to the debtor’s property and warned that any attempt to enter the address by a bailiff of the company would be deemed as trespass.

The letter went on to say that a criminal complaint would be filed against any party violating the notice and that a penalty of £750 would be charged. Rossendale's responded to the letter by advising Mr Thornton that as a liability order had been obtained at the magistrate’s court and instruction had been received from the local authority to execute distress, that the bailiff was able to legally attend the property in order to enforce the debt. Subsequently, a visit was made to the debtor’s property by the bailiff. No contact was made with the debtor at this particular visit although the relevant bailiff attendance documents were left at the property by the bailiff. The next step taken by the debtor was for a claim to be lodged to the County Court for an alleged trespass by Rossendale's Ltd on his property.

The case was heard at Norwich County Court in January 2013 via the small claims track before District Judge Pugh.

Particulars of Claim:

The claimant (Mr Thornton) had served Rossendale's Ltd (defendant) with a Notice of Removal of Implied Right of Access by recorded delivery s property.

The notice contained contractual terms and conditions including a penalty of £750 to be paid by Rossendale's in the event of trespass. By the bailiff subsequently attending the claimant’s property it was averred that an act of trespass was committed and the contractual term to pay the trespass fee stated in the Notice of Removal of Implied Right of Access had been accepted by the defendant.

The bailiff had no legal right to attend the claimant’s property as he did not possess a copy of the liability order.

Reference was made to the case Davis v Lisle KBD 1936 in which the Court of Appeal held that a permission given to enter private property may be revoked, making the visitor a trespasser.

At the Hearing:

Rossendale's as the defendant rebuffed the claims made stating that it had authorisation from the local authority to execute distress (a copy of which was made available at the hearing), but that Regulation 45(1) Council Tax (Administration and Enforcement) Regulations 1992 (S.I.1992/613) provides that: "Where a liability order has been made, the Billing Authority which applied for the order may levy the appropriate amount by distress and sale of goods of the debtor against whom the order was made"

Furthermore, Regulation 45(7) says that:

"A distress shall not be deemed unlawful on account of any defect or want of form in the liability order, and no person making a distress shall be deemed a trespasser on that account"

and that:


“no person making a distress shall be deemed a trespasser from the beginning on account of any subsequent irregularity in making the distress, but a person sustaining special damage by reason of the subsequent irregularity may recover full satisfaction for the special damage (and no more) by proceedings in trespass or otherwise".



Judge Pugh questioned the legality of the claimant’s case. He said that while he had no reason to query the use of the Notice of Removal of Implied Right of Access, he felt that its relevance in this particular matter was left wanting, as withdrawing consent to the right of access to the property did not override the legal right of the bailiff.

He agreed with Rossendales that the bailiffs had been granted powers by statute contained within the Council Tax (Administration and Enforcement) Regulations 1992 to levy distress and that as per Regulation 45(7) they could not be considered a trespasser.

The Judge went on to say that as a liability order had already been granted by the magistrates court, he had no reason to “look behind” the validity of the application and did not intend to question this further, accepting that any appeal relating to the making of the order should have been made to the magistrates court after the original liability order hearing.

Furthermore, the Judge said that despite what the claimant had written in the notice regarding contractual terms and conditions, it was not a contract as there was no consideration from either party involved. The claimant could not simply rely on Rossendales accepting the terms of the notice purely because they carried on with the lawful act of levying distress.

The Judge felt that the claimant was confusing the law of contract with the tort of trespass – which was a different element of law altogether. It was stated by Judge Pugh that it is a common misconception that trespassers can be automatically prosecuted when in fact they cannot. Instead, an aggrieved individual would have to demonstrate that there had been a loss as a result of damages caused by the defendant’s alleged trespass.

Despite remonstrations from the claimant, the Judge dismissed any reference to the case Davis v Lisle (1936) mentioned in the claimants application, saying that it did not bear any direct relevance to the matter before him between the claimant and Rossendales.

The question was put to the claimant; where was the loss in this particular instance? The claimant could not provide any evidence to support his claim.

Conclusion:

The subject of “penalty clauses” is one that is currently causing a great deal of debate in particular; with private parking companies who frequently attempt to impose a penalty charge of up to £100 ( and in some cases even more) for overstaying the stated parking time in supermarket car parks such as Lidl, Morrison, Aldi etc. PoPLA (Parking on Private Land Appeals) and the county courts are frequently rejecting such charges on the basis that they are not a “genuine pre-estimate” of the likely damages experienced.

As the Rossendale's bailiff had merely visited the property and left a notice confirming his attendance, any trespass would have been negligible and damages nominal.

In his final summary, the Judge made it clear to the claimant that he had been ill-advised in making his claim to the county court to try to prevent the bailiff from carrying out what he was perfectly legally entitled to do. From the claimants’ response it was clear that he had been influenced by information on the internet when preparing his case.

The court claim failed. Judge Pugh dismissed the penalty of £750 and ordered the claimant to pay Rossendale’s legal costs.


The good news is in bold, re; penalty clauses in car parks.
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Re: Removal of Implied Right of Access and FMoTL: Debtor loses

Postby iamani » Thu Feb 08, 2018 10:20 am

Hi musashi

That was timely! i was just about to send a conditional acceptance offer to the council for the exact same thing (CT liability order,notice of). Will still include removal of implied right of access - but now know better than to try to claim trespass.

So thanks for that.

Cheers
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Re: Removal of Implied Right of Access and FMoTL: Debtor loses

Postby musashi » Thu Feb 08, 2018 1:12 pm

Judge Pugh questioned the legality of the claimant’s case. He said that while he had no reason to query the use of the Notice of Removal of Implied Right of Access, he felt that its relevance in this particular matter was left wanting, as withdrawing consent to the right of access to the property did not override the legal right of the bailiff.

Lord Denman said we may hit a bailiff over the head with a full milk bottle if he is in trespass and it is not an assault.
Lord Tenterden also had something to say on the matter but this judge Pugh, well, he's different isn't he?

As usual with English law it is often self-contradictory. In law there is the concept of INJURIA SINE DAMNUS - specifically about claims for trespass where no actual damage or loss has occurred. Claims have been made under this and won, yet here we have a judge saying the opposite. Or else I am just not bright enough to work it all out. I have used ISD in my legal and found no objection to it and yet this judge . . .! Damn, I wish I had a better brain.

There was another case I read among many such cases - but I forget where exactly even though it was only a few days ago - while working up my lien claim against LEEDS CITY COUNCIL and a rossendale bailiff who wrongfully levied on my caravan - I was a non involved third party, absent at the time and it was an unlawful global levy which was trespass against the person causing false imprisonment - and the judge in that case I researched said that the ECONOMIC PRESSURE OF DEBT RECOVERY OVERWHELMED ANY CONSIDERATION OF HUMAN RIGHTS. There you have it. Money Trumps everything.
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Re: Removal of Implied Right of Access and FMoTL: Debtor loses

Postby musashi » Thu Feb 08, 2018 4:20 pm

As a van/caravan dweller most of the time, and occasionally a thrice damned squatter, the following result of my legal research is of interest to me and almost certainly to quite a few others who live as I do,

Cave v Capel [1954] 1 QB 367 and Lloyds and Scottish Finance Ltd v Modern Cars and Caravans (Kingston) Ltd [1966] 1 QB 764. In both cases it was accepted by the courts that a caravan which was occupied as a home could be subject to a writ of fi fa.

Finding this changed an important legal claim I'm currently making and forced a radical rewrite. The quote of Cave v Capel [1954] 1 QB 367 is on the freeman websites but gives an entirely different judge's conclusion which says that levying on a caravan occupied as a home cannot be done because it is wrongful execution, imprisonment and trespass against the person. My quote above is the real judge's decision. Be careful and verify everything yourself.
It was represented to the Court that the process of enforcing debts in respect of interests in land by way of charging order was of no assistance, as a charging order can only be obtained over land. In the absence of any alternative procedure, the seizure of the boat by Writ of Fi Fa was the only option available to D.
See
https://www.blplaw.com/expert-legal-insights/articles/sailing-into-choppy-waters-houseboats-may-be-seized-and-sold-in-execution-of-court-debts.

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