Is my Form 4 complaint justified? **Result + Compo Award**

[old bill]

In order to justify cancelling a bailiff's certificate, a judge has to satisfy themselves that the conduct complained about is sufficient so as to bring into question the bailiff's fitness to hold a bailiff certificate. The sort of things that would meet this criteria include but are not restricted to -

 

• Assaulting A Debtor;
  
• Behaving in An Intimidating or Threatening Manner Towards A Debtor;
  
• Charging or Attempting to Charge Fees Not In Accordance With Legislation;
  
• Overcharging of Fees;
  
• Misrepresentation of Authority or Powers As A Bailiff;
  
• Acting Without Lawful Authority;
  

 

Clamping a car without a Clamping Order amounts to Acting Without Lawful Authority. Levying on or seizing a third-party vehicle would amount to the same. Attempting to remove third-party property is Theft.

[seanamarts]

The trouble with that though OB is that the bailiff will say that he had reason to believe that the car belonged to the debtor.

 

The good thing is, is that the OP has a good reliable witness who will hopefully back up this case. Not trying to sound like a conspirator, but the police have had a habit of misplacing or forgetting things.

 

Im not trying to be defeatist here, I just want to look at this at all angles and make the OP aware at what can and often does happen, its just good to be prepared.

[1Loretta]

The trouble with that though OB is that the bailiff will say that he had reason to believe that the car belonged to the debtor.

 

The good thing is, is that the OP has a good reliable witness who will hopefully back up this case. Not trying to sound like a conspirator, but the police have had a habit of misplacing or forgetting things.

 

Im not trying to be defeatist here, I just want to look at this at all angles and make the OP aware at what can and often does happen, its just good to be prepared.

 

My WPC was very helpful on the day but about 48 hours afterwards had a severe memory loss and had to make another statement contradicting her first one. On the day of my hearing in the magistrates court she forgot to turn up, we waited 2 hours for her and when she arrived she couldn't remember anything again. At my appeal the Judge didn't bother to listen to what she had to say, Judges are so much wiser than magistrates. seanamarts knows about how all these things work and so do I now, hang on to your helpful PC before he gets forgetful, I hope it works for you and I am reading this with great interest.

[seanamarts]

Have a read here, it may have something that you havnt read etc It could help.

 

http://www.civea.co.uk/editorimages/CIVEA%20Code%20of%20Conduct%20and%20Good%20Practice%20Guide%20(10.10.12).pdf

[brassnecked]

So long as the police evidence doesn't disappear, where this occurs there may be a suspicion Common Purpose graduates are in that force, and council Op should be OK, howener OP should be aware that the bailiff may turn up, with a barrister who will then attempt, often successfully (CP again? to pervert the proceedings from an enquiry into a bailiffs fitness to hold a certificate into quasi -litigation with the OP roasted by bailiffs brief as if they were a defendant, the bailiff keeps certifiate and the victim is landed with court costs that are not actually applicable. Rare but apparently this has happened.

[old bill]

The trouble with that though OB is that the bailiff will say that he had reason to believe that the car belonged to the debtor.

 

The good thing is, is that the OP has a good reliable witness who will hopefully back up this case. Not trying to sound like a conspirator, but the police have had a habit of misplacing or forgetting things.

 

Im not trying to be defeatist here, I just want to look at this at all angles and make the OP aware at what can and often does happen, its just good to be prepared.

 

Claiming to have reason to believe goods are owned by someone is insufficient evidence for a bailiff to successfully defend themselves against a civil claim or, for that matter, a charge of Theft. They are expected, as a minimum, to conduct reasonable checks to ascertain ownership of goods. Assuming someone owns something is not enough.

[brassnecked]

Claiming to have reason to believe goods are owned by someone is insufficient evidence for a bailiff to successfully defend themselves against a civil claim or, for that matter, a charge of Theft. They are expected, as a minimum, to conduct reasonable checks to ascertain ownership of goods. Assuming someone owns something is not enough.

 

Surely the test must be "Due Diligence"? as in taken all ewasonable steps to ascertain ownership, and if DVLA access has been removed for that bailiff or council, well tough!

[old bill]

Have a read here, it may have something that you havnt read etc It could help.

 

http://www.civea.co.uk/editorimages/CIVEA%20Code%20of%20Conduct%20and%20Good%20Practice%20Guide%20(10.10.12).pdf

 

These guidelines are what the civil enforcement industry would like its members to aspire to, Seanamarts. The reality is that the law is routinely broken and/or ignored and proper and sufficient checks are not conducted during the pre-employment screening process to weed out the thug and fraudster elements. Of the certificated bailiffs in the UK, only 1% conduct their business to the letter and spirit of the law and, as a result, make a good living from it and are very successful, which says a lot. My gut-feeling and speaking from experience is that if the remaining 99%, were subjected to an Enhanced Disclosure CRB Check, 90% would show a history of dishonesty and/or violence and the remaining 9% would show matters that would raise questions as to whether they should be granted a bailiff certificate.

[lgwarren]

I again thank you all for your interest and comments. To answer some of your queries, the officer on the day seemed wholly in my corner but felt powerless to act, as I said when he had tried to convey the evidence that he had seen to the bailiff, and was perplexed at his stance. When I spoke to him on the phone, i feel assured that he will remember and will repond to requests for his version.

Also referred to in this forum is a need for a "Clamping Order" which I have not seen and would like to try and understand what it is, who authorises it and does it differ from a Warrant of Execution. Is one definitely required in this situation, and where can I get a copy.

As far as "Guidelines" go, and there are a few different versions. I have noted that this bailiff, did not adhere to 21 of 33 relevant paragraphs that appear in the "MOJ National Standards for Enforcement agents".

I would also like to know where the bailiff was on the day that I was waiting for my car to be unclamped. I believe that he was working in the local area and kept me waiting just to cause more distress and pain. Would anyone know how I can get that information, because if I am right and it could be shown it would further cement my complaint.

Although I do not relish a court appearance, there is not one bit of "fairy tale" in any of this story, it is all fact and true, and I feel that I can cope with that.

[old bill]

In order for a certificated bailiff to legitimately clamp a vehicle, there must be either a provision contained within the relevant legislation or the bailiff must obtain an order from a court. A bailiff does not have an absolute or any right to clamp a vehicle without lawful authority. If the bailiff has a valid levy on a vehicle, waits the minimum period of time before formally seizing goods, usually 5-7 days from date of levy, then they MIGHT be able to justify their actions by claiming that they had formally seized it. However, the bailiff would have to provide evidence of a valid levy first.

 

In the case of a third-party vehicle, there is no excuse whatsoever. The bailiff, apart from proving beyond all reasonable doubt that they lack any intelligence, let along a single brain cell, commits the civil torts of Unlawful Interference with Property and Unlawful Detention of Property. The bailiff also commits the criminal offence of Pretending to Be Acting Under The Authority of A Court (Section 135, County Courts Act 1984), as well as further potential offences of Attempted Fraud by False Misrepresentation and Attempted Theft.

 

From a standpoint of bailiff law, I would submit that the bailiff in your case could be found to have misrepresented their powers or, more likely, acted without lawful authority. The latter is the more serious of the two wrongdoings.

[lgwarren]

Yesterday I received a letter from the council refusing to hear my complaint and suggested that the bailiff is being dealt with in the form 4 complaint.

I feel that the form 4 complaint is dealing with the legallity of the bailiffs actions that occured that day and is therefore outside the remit of the council. Am I being to "finicky". I think they should be dealing with the wrong committed against me, not the actual legallity of what the bailiff did.

[old bill]

There is nothing to prevent the local authority submitting a Form 5 complaint to the court, thereby, making your Form 4 complaint redundant. It appears the local authority in your case is totally clueless as to what their duties and responsibilities are.

[seanamarts]

http://www.justice.gov.uk/downloads/courts/bailiffs-enforcement-officers/national-standards-enforcement-agents.pdf

 

National Standards for Enforcement Agents

 

 

Creditors' Responsibilities

 

So far as creditors are concerned, the primary purpose of this guidance is to draw their attention to their responsibilities when instructing and dealing with enforcement agents/agencies to recover debts on their behalf.

 

In order for the enforcement process to work effectively, creditors must be fully aware of their own responsibilities. These should be observed and set out in terms of agreement with their enforcement agent/agency. They should consider carefully any specific requirements for financial guarantees etc so that these are adequate, fair and appropriate for the work involved.

 

Creditors must not seek payment from an enforcement agent or enforcement agency in order to secure a contract.

 

Creditors must notify the enforcement agency of all payments received and other contacts with the debtor.

 

Creditors have a responsibility to tell the debtor that if payment is not made within a specified period of time, action may be taken to enforce payment.

 

Creditors agreeing the suspension of a warrant or making direct payment arrangements with debtors must give appropriate notification to and should pay appropriate fees due to the enforcement agent.

 

Creditors must not issue a warrant knowing that the debtor is not at the address, as a means of tracing the debtor at no cost.

 

Creditors must provide a contact point at appropriate times to enable the enforcement agent or agency to make essential queries particularly where they have cause for concern.

 

Creditors should inform the enforcement agency if they have any cause to believe that the debtor may present a risk to the safety of the enforcement agent.

 

~~~~~~~~~~~~~~

 

This may also help.

http://www.legislation.gov.uk/uksi/1996/1880/contents/made

[brassnecked]

"Creditors must not seek payment from an enforcement agent or enforcement agency in order to secure a contract."

 

It would appear some councils are doing just that by demanding a percentage of the enforcement fees to be given to the council by the CONtractor!

[outlawla]

"Creditors must not seek payment from an enforcement agent or enforcement agency in order to secure a contract."

 

It would appear some councils are doing just that by demanding a percentage of the enforcement fees to be given to the council by the CONtractor!

 

 

This appears to happen in a less obvious way as well. It looks like some bailiff firms are contractually obliged to take on council's administration.

 

[ATTACH=CONFIG]40178[/ATTACH]

 

Column 47 and 48:

 

(47) Number of Cases Referred to Bailiffs to Issue 7 and 14 Day Notices

(48) Number of Cases Referred to Bailiffs to Levy Distress

 

I believe some also take on attachment of earnings/benefits administration, traditionally carried out by the authorities. If bailiff firms are not paid for this, councils are effectively taking payment, albeit not in monetary terms.

Edited December 23, 2012 by outlawla

[brassnecked]

Yes indeed outlawla, that would seem to be the case, as in well it's only the law, we can ignore this and make up our own rules. All supposed hallmarks of a Common Purpose infestation.

[lgwarren]

Hello All,

Hope you all had a good xmas and I wish you all a Happy New Year.

 

I have as you would expect been trawling the web to help bolster my Form 4 complaint and came across the Protection of Freedom Act, and feel that my uninvited guest may fall within its grasp.

i.e. Part 3 Chapter 2.

 

He had "no lawful authority" to clamp my car on my private land.

 

It would be interesting to hear any comments that you guys may have.

 

 

 

 

 

Part 3 Protection of property from disproportionate enforcement action

 

1. CHAPTER 1 Powers of entry


1. Repealing, adding safeguards or rewriting powers of entry
   1. 39.Repealing etc. unnecessary or inappropriate powers of entry
      
   2. 40.Adding safeguards to powers of entry
      
   3. 41.Rewriting powers of entry
      
   4. 42.Duty to review certain existing powers of entry
      
   5. 43.Consultation requirements before modifying powers of entry
      
   6. 44.Procedural and supplementary provisions
      
   7. 45.Devolution: Scotland and Northern Ireland
      
   8. 46.Sections 39 to 46: interpretation
      

   [*]Codes of practice in relation to powers of entry

   1. 47.Code of practice in relation to non-devolved powers of entry
      
   2. 48.Issuing of code
      
   3. 49.Alteration or replacement of code
      
   4. 50.Publication of code
      
   5. 51.Effect of code
      
   6. 52.Sections 47 to 51: interpretation
      
   7. 53.Corresponding code in relation to Welsh devolved powers of entry
      

   CHAPTER 2 Vehicles left on land

   1. Offence of immobilising etc. vehicles
      
   1. 54.Offence of immobilising etc. vehicles
      

   Along with this link

   http://www.publications.parliament.uk/pa/cm201011/cmpublic/protection/memo/pf5.htm

   
   

Edited December 31, 2012 by lgwarren
unfinished

[old bill]

The Protection of Freedoms Act does not apply in your case as it applies to private parking companies, not brain-dead certificated bailiffs. As for your Form 4 complaint, Form 4 is to determine whether a certificated bailiff is fit to hold a bailiff certificate. It is not and should not be used for determining whether a bailiff's actions are lawful or not. If you have evidence that a certificated bailiff has acted unlawfully, there is legislation available to deal with this in the form of the protection from Harassment Act 1997, Section 3 of which provides that a person being subjected to any course of conduct that amounts to harassment may apply to a county court for an injunction restraining the harasser(s). In the case of an LA and their contracted enforcement agent, the LA would be cited as 1st Defendant and the bailiff company as 2nd Defendant on the injunction. Breaching such an injunction would render the bailiff company liable to a fine of up to £20,000, on summary conviction, or an unlimited fine, on conviction on indictment. As for bailiffs, management of bailiff companies and local government officers, they would also be liable to fines, but to prison sentences of between 6 months and 5 years, on conviction, as well. You do not have to give notice of your intention to apply for an injunction under Section 3, Protection from Harassment Act 1997.

 

You may wish to reconsider your intention to bring a Form 4 complaint against the bailiff.

[brassnecked]

The problem with a Form 4 is that of late bailiffs have turned up at the inquiry as to their fitness, with a barrister in tow, who may try to pervert the hearing into a quasi litigation scenario, where the complainant ends up with a load of legal costs, so be very very careful

[old bill]

Hence my advice to the OP to hold fire on submitting a Form 4, BN. Legally restraining the bailiff and LA, initially, might bring them to their senses and engage with the OP to try and come to an adult and amicable settlement. At the moment, the bailiff company and LA are behaving like total pillocks.

[lgwarren]

How can they defend clamping the wrong car, and leaving it clamped when told by a police officer who had seen overwhelming evidence of ownership. He did not want to see evidence. Plus he was aggresive and intimidating.

[brassnecked]

How can they defend clamping the wrong car, and leaving it clamped when told by a police officer who had seen overwhelming evidence of ownership. He did not want to see evidence. Plus he was aggresive and intimidating.

An initial letter to the bailiffs certificating court outlining the issues, and how they affect the bailiffs fitness as per oldbill's advice is worthy of a punt, especially if you ask whether a Form 4 submission would be appropriate, you never know, they may cancel the certificate on the strength of the evidence submitted with the letter.

[brassnecked]

Hence my advice to the OP to hold fire on submitting a Form 4, BN. Legally restraining the bailiff and LA, initially, might bring them to their senses and engage with the OP to try and come to an adult and amicable settlement. At the moment, the bailiff company and LA are behaving like total pillocks.

They certainly aren't doing themselves any favours OB

[lgwarren]

I have submitted a form 4 on the basis that the bailiff broke rules and regulations, and many of the codes of conduct by his actions. I have not questioned his fitness to hold a certificate. Surely the court will decide as to whether his actions warrant the withdrawal of his certificate.

[brassnecked]

I have submitted a form 4 on the basis that the bailiff broke rules and regulations, and many of the codes of conduct by his actions. I have not questioned his fitness to hold a certificate. Surely the court will decide as to whether his actions warrant the withdrawal of his certificate.

In which case let's hope that in the light of the evidence, the bailiff will be signing on in the near future.