Bailiff info

Bailiff info

Postby treeman » Mon Mar 04, 2013 8:01 pm

Penalty Charge Notice, Tickets, Parking Fines & Traffic Debts Bailiffs: What kind of problem do you want to solve?

This section also applies to TFL and Congestion Charge penalties

* The bailiff is ripping you off with bogus fees & costs, or, this is about a bailiffs visit from long ago and you just want reclaim the fees

* You need to get the bailiffs off your back - Fast!

* The bailiff took advantage of a vulnerable person or a vulnerable household (see for list of grounds)

* Bailiffs turned up about a ticket you already paid

* Bailiffs turned up unexpectedly about a ticket you previously knew nothing about

* You have recently moved or bought or sold a vehicle and bailiffs turned up about an old PCN

* The bailiff wrote on a document that you made over a sum of money voluntarily when you did not

* The bailiff has levied a vehicle (or goods) that is not yours, or levied your vehicle for someone else's debt

* Your vehicle was taken by bailiffs without warning

* The bailiff used a wheel clamp on your vehicle without giving you a reasonable opportunity to pay

* The bailiff used a wheel clamp on your vehicle and charging you a fee to release it

* The bailiff used a wheel clamp on a vehicle that is a Motability/Blue Badge/on finance/is leased

* The bailiff has clamped your vehicle and you need a trump card - Fast!

* The bailiff does not have a valid bailiff's certificate

* The council or authority says the "matter is in the hands of the bailiffs"

* The bailiff left a 'final notice' document hanging out of your letterbox without knocking the door

* Your vehicle has been taken and sold at auction for a song, or less than the fees the bailiff charged for handling it

* Bailiffs called about a PCN by a lodger, a former occupant or other person living in your property

* The date of the Warrant of Execution is more than 12 months old - Expired

* The bailiff has charged you VAT without giving you a qualified VAT receipt

* The bailiff jammed his boot into your door to prevent you from closing it

* The bailiff charged a fee for levying on goods of insignificant value, e.g. a doormat - "doormat levies"

* The bailiffs behaviour or conduct at the scene damaged your business reputation

* You have been assaulted by a bailiff

Your problem is not listed here? - Describe your problem in the bailiff's forums

How to stop a parking ticket bailiff

Other useful information:

* Schedule of statutory bailiffs fees recovering unpaid parking tickets
* Bailiff powers & rights of entry
* The law
* Facts & fiction









For Fixed Penalty Notices (FPN's) and Notice of Intended Prosecutions (NIP's) see Magistrates Court Fines

For parking tickets issued on private land, see Private Parking Tickets

Parking tickets are enforced by issuing a Warrant of Execution to a certificated bailiff.

Bailiff law & Road traffic debts enforcement regulations

* Schedule 1 (and others) of the Enforcement of Road Traffic Debts (Certificated Bailiffs) (Amendment) Regulations 2003

* The Road Traffic Act 1991 (section 78 and schedule 6)

* The Traffic Management Act 2004 (section 82)

* London Local Authorities Act 2000 Part II (as amended)

* The Road Traffic (Vehicle Emission) (Fixed Penalty) (England) Regulations 2002 Part IV

* The London Road User Charging Regulations 2001 Part II

* Part 75 of the Civil Procedure rules relates to the TEC. (Traffic Enforcement Centre)

* The 1993 regulations adopt the Distress for Rent Rules 1998 for the purposes of enforcement.

Summary of prescribed bailiffs fees for road traffic debts (PCNs)


Sending a letter £11.20. Can only charge this once per case.
Levying distress for sum demanded up to £200, 28% Minimum £28.
Over £200, 5.5%

See Example


**Bailiffs can charge fees for a maximum of three visits.
**Multiple fees cannot be charged for simultaneous unpaid ticket recovery.

Taking control of seized goods. Reasonable costs.

**If no explanation of costs is provided, then its £0.00. Culligan vs. Marston Group Ltd et-al, no. 8CL51015, District Judge Avent said - because the Bailiff produced no breakdown of his charges, he is unable to show that it is reasonable costs.



Note: Rule 10 of the Distress for Rent 1988 rules prohibit bailiffs from charging fees not in the prescribed scale, and the terms of the Distress for Rent Rules 1988 were adopted by Regulation 2 of the Enforcement of Road Traffic Debts (Certificated Bailiffs) Regulations 1993



Summary of Road Traffic Debts bailiffs powers & rights of entry

*

They can levy and clamp and take your vehicle parked outside, but not if it on finance, has driving school or taxi livery on it. If the bailiff leaves the vehicle clamped and you did not sign a form 8 walking possessions agreement, then you can remove the clamp using bolt cutters because it is an abandoned levy.
*

Bailiffs can enter your property without your permission (but cannot BREAK in). Section 7 of the Law of Distress Amendment Act 1888
*

They cannot damage your property





Road traffic debts bailiff facts & myths

*

The law says the bailiff must be certificated. Section 78(7) of the Road Traffic Act 1991
*

They cannot break into your property
*

They cannot commit criminal damage or cause personal injury
* Warrant of Execution is only valid for 12 months from the date of issue: Part 75(7)(5) of the Civil Procedure Rules but can be renewed before it expires.

* They cannot charge a Head H (goods redemption) The law does not prescribe any such fee. Bailiffs originally conjured up the name after this council tax regulation but its nothing to do with the enforcement of road traffic debts.

* They cannot charge you any "costs" unless they have removed goods. This is because bailiffs are prohibited by law from charging fees not in the prescribed statutory scale. Rule 10 of the Distress for Rent 1988 rules prohibit bailiffs from charging fees not in the prescribed scale, and the terms of the Distress for Rent Rules 1988 were adopted by Regulation 2 of the Enforcement of Road Traffic Debts (Certificated Bailiffs) Regulations 1993

* Bailiffs are sent to collect two million unpaid parking tickets a year

* The council is liable for its bailiffs. The Local Authorities (Contracting Out of Tax Billing, Collection and Enforcement Functions) Order 1996

* If you have no money or goods such as a vehicle and you don't let the bailiffs in your home then the bailiff cannot enforce the debt

* Bailiffs are understood to be successful in recovering money or goods in only 24.1% of cases passed for enforcement according to assumptions made on page 161 of this government document

* The average traffic debt amount passed to bailiffs for enforcement is £110.92 Source: Page 114 of this government document.







You make a Form 4 complaint against the bailiff for interfering with a motor vehicle while have no pre-existing levy over it, or having an invalid levy, or dishonestly making a retrospective levy and claiming a sum of money or a disbursement for its release that amounts to unjust enrichment or excessive levy and is therefore an abuse of process





You also make a written FORMAL COMPLAINT addressed to the council that issued the original PCN and ask for damages and your expenses.

This template is also a 'Letter Before Action' if you want to take action in the Small Claims Court. The statutory costs allowances and what is called "Compensatory Damages" are all included in the template.







Ignore any reply you get from the bailiff company, it will be their standard legalistic excuse letter. Post it on the forums if you would like it explained.

If your formal complaint is not resolved and the council asks you to 'stage 2' your complaint, then that proves the council knows your complaint COULD have been resolved because they would have given their Final Resolution. Sample:





If you are still not happy with the remedy then you can either make a complaint to the Local Government Ombudsman or you can file a claim against the council on a Form N1 and name the bailiff company as the 2nd defendant and the bailiff himself who used the wheel clamp as the 3rd defendant and you make a claim for Compensatory Damages.



You may get a barrage of rude letters from the bailiff company, you don't need to reply to them, just place them on the correspondence file.





It is the practice of many London councils to clamp or confiscate vehicles on the street but it is actually unlawful for anyone to use a vehicle as a lien for an unpaid PCN in this way unless there is a pre-existing valid levy over it because you have not signed a form 8 walking possessions agreement.

It is also the practice of JBW Group to use wheel clamps indiscriminately and without a pre-existing levy and then charge hundreds of pounds in "fees". There have been more complaints about this firm than any other over the use of wheel clamps on vehicles without having a valid levy.

JBW Group should know better because case law has already ruled on this point and the bailiff company spectacularly lost. More:



Example:
warning



There are several ways to deal with unlawful clamping:

Pay it - report it - and then reclaim it

Using bolt cutters and retaining the clamp as a surety for the costs of removing it from the vehicle






The bailiff's fees are too high, or charged for visits not made

The law that sets bailiffs fees for collecting unpaid parking fines is Schedule 1 (and others) of the Enforcement of Road Traffic Debts (Certificated Bailiffs) (Amendment) Regulations 2003, which provides for £11.20 letter fee and a visit fee of 28% of the original PCN

Bailiffs are prohibited by law from charging fees not in the prescribed statutory scale. Rule 10 of the Distress for Rent 1988 rules prohibit bailiffs from charging fees not in the prescribed scale, and the terms of the Distress for Rent Rules 1988 were adopted by Regulation 2 of the Enforcement of Road Traffic Debts (Certificated Bailiffs) Regulations 1993, the statutory scale is: http://www.legislation.gov.uk/uksi/2003/1857/made

This is where bailiffs ignore the law and become inventive with their fees adding hundreds of pounds. It is fraud and commits an offence under sections 1-5 of the Fraud Act 2006. They get away with it is because police have a standard policy of saying bailiff crime is a civil matter.

The law only makes you liable for the statutory fees and Walking Possession fee £12 if you signed a form 8. Everything else is "costs" for taking control of your goods which the bailiff must prove.

This example shows what the bailiff's fees SHOULD be.





These are the most common tactics bailiff companies use to rip you off with fees and charges.

* While having no levy on your goods, bailiffs charge a "van fee" and "attending to remove" "attendance" fee "van fee" "waiting fee" "porterage" "enforcement fee" and other conjured fee and you can challenge these fees with this template. Paragraph 62 of complaint numbers 95A01890 and 95A04826 against London Borough of Ealing the Local Government Ombudsman disallowed a van fee because no goods had been levied. You can ask the council to comply with the Local Government Ombudsman’s decision to revoke or refund these fees as detailed on Page 4 of 11 of the Local Government Ombudsman report of 29 November 2012.

*

Bailiffs cannot charge a fee for using a wheel clamp: Culligan v Simkin & Marston Group Ltd [2008]

* Charging for visits not made. The law allows up to three chargeable visits, and bailiffs charge all three visit in advance at the first visit.

* Charging compound fees on previous bailiffs visit fees when no levy is made. The law only provides a statutory fee of 28% for levying distress for the sum demanded.

* Charging a visit fee on the VAT element of a previous fee.

* The bailiff can only charge one fee regardless of the number of warrants involved: Glasbrook v David & Vaux [1905] 1 KB 615

* If you are charged VAT and the demand is an unqualified VAT invoice then you have a right to report the bailiff for VAT fraud.

* Charging the £11.20 statutory letter fee without sending a letter.

* Levying on the wrong car, the fees must be refunded, see page 6 and 7 of 11 of the Local Government Ombudsman report of 29 November 2012

* Postponing the letter it so it arrives after the bailiff's visit.

* Multiple levies on the same goods - see Page 6 of 11 of the Local Government Ombudsman report of 29 November 2012

* Adding fees for clamping, levying or towing your vehicle without telling you beforehand. There are no statutory fees for clamping.

* Some bailiffs companies have a policy of trying this tactic to bump up the number of fee-chargeable visits made without recovering any sum.

* Charged you a "card fee" or other financial transaction fee. The law does not provide for them and you can reclaim them from the council that instructed the bailiff using the formal complaint letter below. It doesn't matter how small the charges are, they are not allowed.



A bailiff commits fraud under Sections 1 to 5 of the Fraud Act 2006 if he charges for work he has not done, The House of Lords April 20 April 2007.

Any unlawful bailiffs fees are recoverable under Day v Davies [1938] 2 KB 74



You make a FORMAL COMPLAINT addressed to the council and copy in the bailiff company and ask for a refund.



If you pay a council direct after bailiffs are instructed, they will return your cheque. This template also allows you to pay the original PCN amount and if the sum is returned by the council then it becomes a gift to you from the council and the case closes.

There is no further enforcement measure the council can take after bailiffs have returned the debt uncollected, the debt dies.




Get your MP involved at this stage because it is unlikely Parliament intended allowing private companies to defraud people in this way.

Ignore any reply you get from the bailiff company, it will be their standard legalistic excuse letter. Post it on the forums if you would like it explained.

If your formal complaint is not resolved and the council asks you to 'stage 2' your complaint, then that proves the council knows your complaint COULD have been resolved because they would have given their Final Resolution. Sample:



They want you to jump the hoops so you can infer the council is vexatious and you can ask the Local Government Ombudsman to intervene under Section 26 of the Local Government Act 1974. The LGO can order the Council to stop enforcement action and has a power to order the Council to pay you compensation.

Alternatively you can file a claim at court on a Form N1 against the council and name the bailiff company and the bailiff who attended as the second and third defendants. This is how you should draft your claim particulars and can be modified to suit your particular needs.



[YOUR NAME] - Claimant

The Mayor and Burgesses of the [NAME OF COUNCIL] – First Defendant

[NAME OF BAILIFF COMPANY] A Firm – Second Defendant

[NAME OF BAILIFF] - Third defendant

Bailiff companies counter claim it is an "abuse of process" but a judge has never been known to accept this argument because you have a statutory right to ask a court to arbitrate a dispute and in any case, the Court of Appeal ruled in the case of Steel Linings Limited, Mark Harvey v Bibby & Co [1993] EWCA a bailiffs choice of remedy is not an exclusive remedy and the aggrieved person may approach their choice of court for a remedy.

Don't forget to claim statutory interest








Bailiffs called about a ticket you knew nothing about because you have recently moved or bought/sold a car.

If you got unexpected bailiffs about an old PCN then it is because you have moved or bought or sold a vehicle recently and the bailiff has traced you to your new address and started enforcement action without rolling the proceedings back and serving you a Notice to Owner to your current address.

You need to file an "out of time Statutory Declaration" - in other words, lodge an appeal with the court on the grounds you have recently moved or the date of contravention is before you acquired the vehicle.

First you must find out the Penalty Charge Notice number and the date so phone your local council as a starting point.

If you don't know which council issued the ticket then ask the bailiff and if possible Record the call speaking slowly without talking over them – you need this in case the bailiff tries to CONCEAL the PCN number or the date of contravention from you.

If the bailiff company gets funny or demands you make a money transfer before they reveal the PCN number then you can ignore the demand and deploy these notices. If the bailiff already forced you into paying a ghost ticket then consider applying a chargeback or reclaiming the money using a Form N1. If the bailiff charged you VAT and his fee invoice is not a qualified VAT invoice then you can report him for VAT fraud. Also check whether the bailiff's certificate is valid.

When you have the PCN number and the date of contravention then Contact the TEC and ask to make, what is called, an out of time Statutory Declaration or "stat dec".

If you have moved then bailiffs can only execute warrants at the address on his documents: Huntress Search Limited (Claimant) v Canapeum Limited (Defendant) and DSI Foods Limited (Interpleader Claimant) [2010] EWHC 1270

There is a specialist forum that deals with de-criminalised parking appeals. Make a post at the PePiPoo Motoring forums and they can check the validity of the PCN or find something that is wrong with it.



The council does not cooperate

All three options below are now open to you

1. Ask the Local Government Commissioner to intervene under Section 26 of the Local Government Act 1974. They can order the Council to stop all enforcement action and award you compensation.

2. Start a claim to recover the fees in the small claims court on a Form N1



[YOUR NAME] - Claimant

The Mayor and Burgesses of the [NAME OF COUNCIL] – First Defendant

[NAME OF BAILIFF COMPANY] A Firm – Second Defendant

[NAME OF BAILIFF] - Third defendant





Bailiff companies counter claim it is an "abuse of process" but a judge has never been known to accept this argument because you have a statutory right to ask a court to arbitrate a dispute example. If the defendant bailiff's costs where genuine he would have proven them by now. In any event, the Court of Appeal ruled in the case of Steel Linings Limited, Mark Harvey v Bibby & Co [1993] EWCA the bailiffs choice of court is not an exclusive remedy and the aggrieved person may approach their choice of court for a remedy.



3. You have a right to make a complaint to police, but DO NOT tell the bailiff you are doing so.








How to stop a Parking ticket bailiff



Appeal the ticket by making a STATUTORY DECLARATION.



Note: this does not apply to Fixed Penalty Notices (FPN's) and Notice of Intended Prosecution (NIP's) - See Magistrates Courts.

If this is parking ticket on private land or a private car park such as NCP or ACPOA, see Private parking tickets

1. Telephone the Traffic Enforcement Centre (the TEC) on 01604 619450 with your PCN number and they will tell you which forms you need.



Parking related penalties:

Form TE9 Witness statement - unpaid penalty charge

Form TE7 Application to file a statement out of time



Non-parking penalties:

Form PE3 Statutory Declaration - unpaid penalty charge

Form PE2 Application to file a Statutory Declaration Out of Time if filing a PE3 after the 36 days time limit.





Your grounds can be:

* Your ticket is not valid

* You have moved and/or you did not receive a notice to owner (NTO)

* You sold the vehicle and/or recently moved and received a bailiff unexpectedly

* The alleged contravention did not occur

* If you are outside the time limit to appeal, you can make an Out of Time Statutory Declaration saying why you are late

If you cant think of any grounds to appeal then get your PCN and other documents looked at by an expert by posting them the PePiPoo Fightback forums.



2. If you are in a vulnerable household, see Vulnerable households and write to the council asking that enforcement action cease and keep a copy to hand to the bailiff if he returns.



3. Check the bailiffs fees, if the total is more than 28% of the original PCN plus £11.20 letter fee, there is a good chance you are being over-charged and you can make a Formal Complaint - Template



4. Pay the penalty direct to the council and get a receipt. Pay online if you can. If the council REFUSES your payment, then follow this: Dealing with bailiffs on the doorstep until the case is returned to the council.



5. Move to Scotland. They don't allow English bailiffs,so dinna fash yersels ma wee Scotties, you can tell the Bailiffs to take a hike.



Where to get help fighting a PCN.

Appealing a PCN is outside the scope of this guide. You can get expert help at the PePiPoo fightback forums under Council Parking Tickets & Clamping and De-criminalised Notices







You get bailiffs for a PCN you have already paid



If you already paid the PCN and you receive bailiffs then you must make a written FORMAL COMPLAINT.

It strengthens your complaint by enclosing proof of payment which it can be a bank statement or receipt etc, and copy in the bailiff company by email.



Ignore any reply you get from the bailiff company, it will be their standard legalistic excuse letter. Post it on the forums if you would like it explained.

If your formal complaint is not resolved or the council is asking you to 'stage 2' your complaint then it proves the council knows your complaint COULD have been resolved because they would have given their Final Resolution.



They want you to jump hoops so you can infer the council is vexatious and you can ask the Local Government Ombudsman to intervene under Section 26 of the Local Government Act 1974. The LGO can order the Council to stop all enforcement action and pay you compensation.




The date of the Warrant of Execution is more than 12 months old - Expired.

If a bailiff has approached you with an expired Warrant of Execution for an unpaid Penalty Charge Notice then the Warrant is unenforceable because Part 75.7(5) of the Civil Procedure Rules says "For the purposes of execution a warrant will be valid for 12 months beginning with the date of its issue."

If you have been approached by a bailiff or paid a bailiff a sum of money in respect of Warrant of Execution that was more than 12 months old at the date you were contacted or paid, then you make a Formal Complaint to the council or authority that issued the original PCN and where required, ask for your money back.



Sample: Formal Complaint letter to the council about enforcing an expired Warrant of Execution and reclaiming a sum of money paid and claim the sum of £150 compensation from the council for misfeasance in line with the Local Government Ombudsman's recommendations on complaints of this nature.





Ignore any reply you get from the bailiff company, it will be their standard legalistic excuse letter. Post it on the forums if you would like it explained.

If your formal complaint is not resolved or the council is asking you to 'stage 2' your complaint then it proves the council knows your complaint COULD have been resolved because they would have given their Final Resolution



Sample: Claim Particulars for a Form N1 - recover your disbursements and expenses from the council in the Small Claims Court and claim the statutory £18 per hour you spend preparing the case for court.



Or you can make a complaint to the Local Government Ombudsman. Use the Formal Complaint letter above as a starting point.



You can also make what is called a Form 4 complaint against the Certificated bailiff himself. This is a formal complaint against a bailiff as to his fitness to hold a bailiffs certificate because he should have been properly trained in the law regarding the Warrant of Execution before he approached your household with intent of obtaining a money transfer in respect of that warrant.







Your vehicle has been taken by bailiffs without warning

When you called police to report your vehicle stolen, they should have told you what bailiff company has taken it.

If you are the new owner of the vehicle and the PCN was incurred before you bought it, then you telephone the bailiff company and record the call. You need the recording because if the vehicle is not being returned or the bailiff company or the council is resisting your claim for your vehicle then you make an emergency application to the court to recover the vehicle. There is a £400 court fee for this but you can reclaim it from the council who then recovers it from the bailiff company.

It is the practice of many London councils to clamp or confiscate vehicles on the street but it is actually unlawful for anyone to use a vehicle as a lien for an unpaid PCN in this way unless there is a pre-existing valid levy over it.

In any event, a levy cannot be placed over a vehicle retrospectively after clamping or removal: Evans v South Ribble Borough Council El9921 QB 757 or to be clamped or removed in your absence: Khazanchi & Anor v Faircharm Investments Ltd & Ors [1998] EWCA Civ 471.

You may a victim of bailiff vigilantism where bailiff companies go round in ANPR vans crawling neighbourhoods looking for vehicles with unpaid PCNs and yours received a 'hit' so they snatched it using a street lifter. This is regardless of the vehicle having had a change of keeper or address after the date the PCN was issued.

Find out from the bailiff company what the PCN number is, and the name of the council that issued it and ask the DATE the PCN was issued. This is in case the penalty was incurred by a previous owner, and if so you are not liable for the penalty and you can have your vehicle back on production of the V5C document or an sworn affidavit proving what date you acquired the vehicle.

Telephone the Traffic Enforcement Centre (the TEC) on 01604 619450 and say you want to appeal against the PCN. This is called an "out of time Statutory Declaration", or a "late appeal" or "Stat Dec".

If you were unaware a PCN had been issued then you make a Statutory Declaration and telephone the council saying you are appealing the PCN because you were unaware it had been issued and you ask for the vehicle to be returned from where it was taken.

If you have no grounds to appeal against the original PCN then see if the bailiff has an invalid levy or has no levy over it at all, then you still have a right to recover the vehicle with an emergency application.

Sample: Formal Complaint letter to the council to recover your disbursements and expenses and claim compensation for the unlawful deprivation of the use of your vehicle.





Ignore any reply you get from the bailiff company, it will be their standard legalistic excuse letter. Post it on the forums if you would like it explained.

If your formal complaint is not resolved or the council is asking you to 'stage 2' your complaint then it proves the council knows your complaint COULD have been resolved because they would have given their Final Resolution



Sample: Claim Particulars for a Form N1 - recover your disbursements and expenses from the council in the Small Claims Court.



Or you can make a complaint to the Local Government Ombudsman. Use the Formal Complaint letter above as a starting point.









You tried to pay the penalty charge but you got fobbed off with "It's in the hands of the bailiffs"

Don't take it out on town hall staff, they are only following training because bailiff companies complain that debtors bypass bailiffs by paying direct to the council and the bailiff loses his cut.

If the bailiff has not taken control of your goods the only statutory fee payable is £28.

When the council says contact the bailiffs, just politely tell the council to contact you again when they are ready to accept payment and say "there has been some issues with your bailiffs" then deploy these notices

Collate the money together and await the council to contact you again when the case is returned to council administration.

If you pay the bailiff then hundreds of pounds of your cash goes straight into the bailiff's pocket. He will invent fees under the pretence he has taken control of your goods then you have rigmarole of reclaiming the fees in the small claims court, so pay bailiff at your peril!

The cleanest resolution is offer to pay the bailiff the penalty amount statutory £28 and nothing more. Its up to the bailiff to prove delivery of the statutory notice £11.20 and their VAT element on top of their fees.

If the bailiff refuses that then start the formal complaints procedure for fee fraud here and claim compensation from the council for their intransigence

http://www.dealingwithbailiffs.co.uk/bailiffs-and-parking-tickets.htm

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