Form 4 Complaint struck out. Judge states that complainant was "economical with the full truth"

[outlawla]

Not good at all, on another note an advice forum that shares it's name with a breed of dog, has been replaced by an ad page.

 

As of around 12:30 this morning (according to twitter) it was claimed the site was a little broken and would be up and running shortly.

[tomtubby]

I have been posting on this forum since 2007 and in that time, I have come across around a dozen Form 4 complaints that were justified ( one such case involves a moderator on this very forum). Each case related to a very serious complaint indeed and in may cases the bailiffs certificate was rightly cancelled and compensation awarded from the proceeds of the bailiff bond.

 

Brief details are below and hopefully demonstrate the type of complaints that Form 4 complaints should be reserved for:

 

One case is of a single parent who had foolishly let 2 bailiffs into her home to discuss some unpaid parking tickets relating to the previous owner of the property. She showed the bailiffs proof that the property was hers and proof of when she moved into the house and yet despite this, the bailiffs started unplugging her TV and other electrical equipment and putting the items outside to be removed for sale. The bailiffs wrongly claimed that the warrant was against "the address" and not "the debtor" . Both bailiffs has their certificates removed.

 

Another case related to a bailiff who was enforcing expired warrants of execution ( he admitted that he knew they had expired). The court did not remove his certificate but did award compensation to be paid from the bailiff bond.

 

A further complaint (which was very serious and which I was involved with) related to a car being clamped by a bailiff that had been displaying a blue badge and where the vehicle was the only means of transportation for a lady who was paralysed from the waist down. The court was also satisfied that previous visits that the bailiff "claimed" to have made were bogus. The bailiff had his certificate removed and compensation was awarded to the complainant.

[Mark1960]

TT-The way bailiffs are paid leads me to believe they work on a commission type basis.For example the man who carries out a first visit will earn less than the man who slaps a levy on any old car,regardless of value or of proof of ownership.In my view,there seems to be a conflict of interest there between recovering a debt through legal process and maximising earnings.

 

If a car had been illegaly levied,the right,decent and moral thing to do would be to file a form 4 complaint so as to stop this bailiff continuing to act illegaly towards debtors.Part of the problem as I see it is that too many "blind eyes" are turned as an attitude of "recover the debt at all costs" is all too prevelant.Certainly Bailiff companies and bodies such as councils adopt this stance.

 

Anybody who is prepared to take on these people has my respect and I say that knowing that I'm not sure that I would be brave enough to gamble with a Form 4 complaint.

 

There appears to me to be a lot of scaremongering which has confused a lot of people on this board.Suing a bailiff for trespass for example is not the same as bringing a form 4 complaint against him.The LGO report of Nov 2012 found that in a third of cases investigated,required remedy for injustice caused,more than any other type of local taxation complaint,the CAB have expressed concerns.We are bracing ourselves for an onslaught due to the relentless greed of councils and their new money making schemes.There are clearly massive problems with bailiff actions and nobody seems to care or be prepared to stop this.

 

The reason I applaud "Mr Smith" is that we can all post thread after thread about how horrible those nasty bailiffs are but "Mr Smith" had the courage to take them on when he considered illegal activity had occurred.Being a bailiff takes a special character-Unfortunately,as with most things in life,every man has his price and whilst he may start off the job with the right intentions,he will quickly drop standards when he sees colleagues bending the rules-The Form 4 is in place as a deterent to bailiffs who do this.It is not a cause for celebration every time a complaint fails just because rival websites support this method of redress.

 

In my limited experience of the whole bailiff subject,it appears to be a complete minefield with legislation abused and twisted to suit the creditor and enforcement agent,largely succeeding due to debtors ignorance.There is no right way or wrong way to deal with any one situation as the guidelines are all too vague.I think it is set up this way to continue the myth that bailiffs have all sorts of weird and wonderful powers whereas in reality,they have little.This allows them to act outside of the law and 999 times out of a thousand,joe public will be none the wiser.

[unclebulgaria67]

There is a danger that threads become a debate about bailiffs which are always going to concentrate on the negatives. It is a bit like discussing on a motoring forum whether speed cameras are a good idea or are they a money raising scheme. You will get 95% of responses saying they were a joke and not very many responses from people who may have lost loved ones in road accidents where speed was a factor, who might have a different opinion.

 

I suspect that the majority of bailiffs do their jobs properly and don't have any issues. They are doing a difficult job and trying to obtain the money they have been told is legally due. Non payment of council tax and fines is a big problem, which someone has to tackle. Where I have a problem, it is with the way local authorities act in regard to liability orders and PCN's. The privitisation of council admin services and the conflict on interest with one major company who also owns two bailiff companies is a concern. It is not only bailiffs that need to have relevant regulatory oversight/rules, but also local authorities need to be more accountable as well.

[brassnecked]

You have highlighted the nub of the issues UB, of course there are bailiffs who do the job correctly, and we will be unlikely to encounter the tales here. Her we will get the cases where they have potentially done wrong, so we should also look at the actions of the LA as to reasonableness, as in LO obtained for a penny or a couple of quid racking up to hundreds once the bailiff has the case.

[tomtubby]

BAILIFF COMPLAINT

 

 

Reference No. 4 of 2013

 

Mr Smith has complained in Form 4 dated 22nd April 2013 of the conduct of the certificated bailiff who was attempting to enforce a debt, specified as Council Tax owed to Chesterfield Borough Council.

 

 

The bailiff has replied personally to the complainant in writing by letter dated 16th May 2013

 

 

Decision:

 

The complaint about this bailiff relates essentially to the events of 27th February and 20th March 2013

 

 

Mr Smith says that he does not own (and by implication is not the keeper of) any such vehicle, that no such vehicle was at the property and that the levy was fictitious and the fees dishonestly claimed. Mr Smith says that he has “taken legal advice” and cites some authorities.

 

It is not clear whether he had face-to-face advice from a solicitor or C.A.B or whether he has simply done internet research.

 

If the latter he should not assume that his information is correct and nor should he assume that the court is aware of the matters he relies upon.

 

If there were to be a hearing, he would be required to bring copies of those authorities and he or his legal representative would be expected to assist the court with the law.

 

 

 

His Honour Judge Butler

 

 

Dated 24th May 2013

 

This is probably one of the most serious comments made by His Honour Judge Butler for the following reason:

 

As I have stated in earlier posts there are now quite a few websites positively encouraging debtors to file Form 4 Complaints and, from at least 6 that I have looked at this morning they advise complainants to refer to various "legal authorities" ( many of which are 19th century cases) when filing their Form 4 Complaints.

 

Crucially, as confirmed by His Honour Judge Butler....the complainant should NOT assume that this information is correct or that the court is aware of such cases.

 

Of vital importance however is that the Judge has confirmed that if the Form 4 Complaint was to be decided at a "hearing" that the complainant would be required to actually bring to the court copies of the legal case law referred to in the Form 4 Complaint and most seriously:

 

.....that he would expect either the complainant or "his legal representative" to "assist the court with the law"

 

From the information posted on the forum last night it would seem that the person making this particular Form 4 Complaint had received his "legal advice" from one particular forum ( which astonishingly removed all reference to his query from their forum last night). From the PDF copy of the thread that I managed to get before its removal it would seem that the complainant had been advised of the following:

 

 

"Any charges that go beyond the standardised fee schedule should require the Court's sanction to be certain that the fees are lawful. Bernard Loynes v Beswicks Solicitors (2010) Queens Bench Division"

 

 

It is just as well that His Honour Judge Butler decided to deal with this matter without a hearing. Firstly, as confirmed by the Judge he would require the complainant to bring to court copies of the legal cases referred to in his Form 4 Complaint. In the case of Bernie Loynes I would hope that the complainants "legal representative" would provide "Mr Smith" with copies of both Mr Loynes initial Judgment before Master Fontaine AND crucially; a copy also of Bernie Loynes appeal before Mr Justice Irwin dated 20th May 2010.

 

I dread to think what His Honour Judge Butler would have said to the complainant after reading this one particular case law as it deals ONLY with the interpretation of the fees charged under SCHEDULE 3 to the HIGH COURT ENFORCEMENT OFFICERS REGULATIONS 2004 !!!!

[ploddertom]

It's OK some of these others quoting all these different case laws but my view is that you need explanation as well and which relevant part applies & I think it is this that is missing.

[Mark1960]

The other issue is the matter of funding professional representation.

 

In the case referred to on this thread,the figure in dispute appears to involve less than £100-Nobody short of a lottery winner would pay vast amounts of money to a legal representative just to file a form 4 complaint where there is no financial gain involved.Does this mean we should not contest issues unless we are prepared to pay legal expenses for representation up front?

 

I have read of several cases where people representing themselves have had successful outcomes in court.

 

What alternatives are available?Should the tax payer be expected to fund anyone who qualifies for legal aid in their Form 4 complaint?Should only the very rich and wealthy who have the means to support a legal representation have exclusive rights to Form 4 complaints?

 

As I see it,there is an implication of discrimination in the comments of the Judge as he seems to be implying that unless you can afford legal representation,your claim will not be taken seriously.

 

As a side issue,TT has inadvertently provided us with a positive from the case.Had "Mr Smith" not bravely instigated this complaint,we would not be able to rely on the judges comments regarding what could constitute a bailiffs fitness to hold a certificate.

[wonkeydonkey]

This is probably one of the most serious comments made by His Honour Judge Butler for the following reason:

 

As I have stated in earlier posts there are now quite a few websites positively encouraging debtors to file Form 4 Complaints and, from at least 6 that I have looked at this morning they advise complainants to refer to various "legal authorities" ( many of which are 19th century cases) when filing their Form 4 Complaints.

 

Crucially, as confirmed by His Honour Judge Butler....the complainant should NOT assume that this information is correct or that the court is aware of such cases.

 

Of vital importance however is that the Judge has confirmed that if the Form 4 Complaint was to be decided at a "hearing" that the complainant would be required to actually bring to the court copies of the legal case law referred to in the Form 4 Complaint and most seriously:

 

.....that he would expect either the complainant or "his legal representative" to "assist the court with the law"

 

From the information posted on the forum last night it would seem that the person making this particular Form 4 Complaint had received his "legal advice" from one particular forum ( which astonishingly removed all reference to his query from their forum last night). From the PDF copy of the thread that I managed to get before its removal it would seem that the complainant had been advised of the following:

 

"Any charges that go beyond the standardised fee schedule should require the Court's sanction to be certain that the fees are lawful. Bernard Loynes v Beswicks Solicitors (2010) Queens Bench Division"

 

 

It is just as well that His Honour Judge Butler decided to deal with this matter without a hearing. Firstly, as confirmed by the Judge he would require the complainant to bring to court copies of the legal cases referred to in his Form 4 Complaint. In the case of Bernie Loynes I would hope that the complainants "legal representative" would provide "Mr Smith" with copies of both Mr Loynes initial Judgment before Master Fontaine AND crucially; a copy also of Bernie Loynes appeal before Mr Justice Irwin dated 20th May 2010.

 

I dread to think what His Honour Judge Butler would have said to the complainant after reading this one particular case law as it deals ONLY with the interpretation of the fees charged under SCHEDULE 3 to the HIGH COURT ENFORCEMENT OFFICERS REGULATIONS 2004 !!!!

 

I was very familiar with this case TT as it was at the same time I was also doing battle with Sherforce.....the very suggestion the complainant pay heed to this advice is in itself appalling, the authority is not relevant and cannot be used to support an allegation of improper fee charging in this instance.

 

It would be constructive if the OP could return to his thread on cag and express his own views to this outcome, many could benefit from this.

 

WD

[tomtubby]

The other issue is the matter of funding professional representation.

 

In the case referred to on this thread,the figure in dispute appears to involve less than £100

 

Mark in fact, the amount in "dispute" was less than £20 as the bailiff company has already credited £53 back to the account.

 

Nobody short of a lottery winner would pay vast amounts of money to a legal representative just to file a form 4 complaint where there is no financial gain involved.

 

If you read my post number 25 you will see that some forums are encouraging debtors to file Form 4 complaints in the mistaken belief that bailiffs will pay money to the complainant in order to avoid a Form 4 hearing.

 

Does this mean we should not contest issues unless we are prepared to pay legal expenses for representation up front?

 

Absolutely not.....everyone should contest issues but should ensure that it is done correctly and this is by way of a Formal Complaint to the council and copied to the bailiff company.

 

I have read of several cases where people representing themselves have had successful outcomes in court.

 

Such "evidence" is precisely what the public needs to see and therefore PLEASE ......provide details here on the forum. As I have said MANY times....we need to see EVIDENCE of "successful outcomes in court" and hopefully.....you can now provide details of several cases that you have read about.

 

What alternatives are available?Should the tax payer be expected to fund anyone who qualifies for legal aid in their Form 4 complaint?Should only the very rich and wealthy who have the means to support a legal representation have exclusive rights to Form 4 complaints?

 

Legal aid is very rare these days and as I have stated above, a Formal Complaint should be made to the local authority and I have repeatedly stated that with council tax in particular, the LA are "wholly responsible for the levy and fees charged by their agents".

 

As I see it,there is an implication of discrimination in the comments of the Judge as he seems to be implying that unless you can afford legal representation,your claim will not be taken seriously.

 

The Judge has not said this at all. In fact far from it. He has criticised the complainant for being "economical with the full truth".

 

As a side issue,TT has inadvertently provided us with a positive from the case.Had "Mr Smith" not bravely instigated this complaint,we would not be able to rely on the judges comments regarding what could constitute a bailiffs fitness to hold a certificate.

 

Finally, please be assured that I am delighted with the comment made by the Judge regarding what would constitute a bailiffs fitness to hold a certificate and this comment alone can be used by debtors when making a Formal Complaint to the local authority.

[lamma]

A kindly Judge. Who also provided guidance and a roadmap. Pay heed.

[tomtubby]

A kindly Judge. Who also provided guidance and a roadmap. Pay heed.

 

Lamma,

 

You are 100% correct and this is the very reason why I posted details of this particular case as other people may very well find themselves in a position of attending a hearing and being hopelessly unprepared.

 

At the very least, any other person considering filing a Form 4 complaint which relies upon supposed legal authorities gleaned from internet searches needs to be aware that the court may very well ask the complainant to provide a copy of the relevant judgment (including "19th century cases" )and to explain to the court why he or she believes that the particular legal case is relevant to their complaint.

 

Also, as I have indicated above, if anyone relies upon the legal case of Bernard Loynes v Beswicks when filing a Form 4 Complaint ( or even a simple court claim) in relation to a debt for unpaid council tax or an unpaid PCN they could find themselves in trouble.

[tomtubby]

 

I have read of several cases where people representing themselves have had successful outcomes in court.

 

 

Mark,

 

From reading my many posts regarding Form 4 complaints or the ridiculous Removal of Implied Right of Access notices, I have always provided PROOF to support the fact that costs orders have been imposed against complainants and I also recently provided PROOF also of a case that was thrown out in court regarding a Rossendales bailiff and where the debtor issued proceedings for trespass as the bailiff had ignored the notice removing his right of access etc. In that particular case the court also awarded costs against the complainant.

 

You may care to know that there was also a case in court yesterday morning which was an a injunction hearing in relation to a car that was clamped and removed to the car pound. The debtor lost the case and was ordered to pay the bailiff company £3,858 !!! Unfortunately, as much as I would like to I am not able to provide case references etc as the debtor is still pursuing a Form 4 complaint ( which apparently relies upon at least 14 different "legal cases" many of which are 19th century ) !!! From the brief details that we sent to me late last night it would seem that the judge asked the debtor a very simple question which was " Mr X why did you not just pay the parking ticket".

 

What is desperately needed is EVIDENCE of cases where the debtor has won and I am pleased to read that you have read of such cases. PLEASE provide details as this is so very important.

[Mark1960]

I have read cases where people have represented themselves in court and had successful outcomes,not connected with bailiffs.

 

The point being that it is ridiculous to suggest that people should not stand up to bailiff wrongdoing on the grounds that they cannot afford to pay for legal representation.

 

With regards the excellent removal of implied right of access,I've yet to see any evidence of this not working.Indeed Diplock LJ quoted in Robson v Hallet (1967):

 

"....the Robsons could no doubt have rebutted the implied licence to the police officers by putting a notice up on their front gate"

 

Now if the notice would have worked on police officers then it would surely work on two bob private bailiffs who have no authority?Yes they have liability orders but these only allow for peaceful entry and this may be revoked at any time,either verbally or in writing.

 

I would still be keen to see instances where the notice doesn't work.I believe you posted about one recently but were very vague about the circumstances-Have you received any further information yet?

[ploddertom]

 

With regards the excellent removal of implied right of access,I've yet to see any evidence of this not working.Indeed Diplock LJ quoted in Robson v Hallet (1967):

 

"....the Robsons could no doubt have rebutted the implied licence to the police officers by putting a notice up on their front gate"

 

Now if the notice would have worked on police officers then it would surely work on two bob private bailiffs who have no authority?Yes they have liability orders but these only allow for peaceful entry and this may be revoked at any time,either verbally or in writing.

 

I would still be keen to see instances where the notice doesn't work.I believe you posted about one recently but were very vague about the circumstances-Have you received any further information yet?

 

 

• Robson v Hallett
  Facts
   
  
  • Three police officers making inquiries walked up to the path to Robson's door.
    
  • On knocking, Sergeant was invited by the owner's son
    
  • When the owner askde him to leave, the Sergeant turned immediately to leave but he was jumped on from behind.
    
  • The two other officers who were waiting outside the door came into rescue the Sergeant.
    
  • Words "get out" were used
    
  • Robson argued that he could not be guitly of assaulting police officers because the police officers were trespassing and thus were not acting in the course of their duty when assaulted.
    

   

   

  [*] Robson v Hallett

  Judgment

   

  • There is an implied licence to walk up to the front door of anyone's house.
    
  • That licence can be revoked by express refusal or a sign saying there is no admittance
    
  • On revocation, a reasonable opportunity to leave must be given before someone becomes a trespasser.
    

   

   

Please note the Officers were only making enquiries and it is for this reason an implied right may be refused. If they had a Warrant to search or arrest then the outcome would have been different.

[ims21]

Off topic posts have been removed.

 

This thread is about form 4 complaints AND NOT about removal of implied rights of access.

[outlawla]

What!

[tomtubby]

I have read cases where people have represented themselves in court and had successful outcomes,not connected with bailiffs.

 

 

Mark. I am not too happy at the moment as the "impression" that you gave in earlier posts was that you had read of successful FORM 4 cases. After all, Form 4's are the subject of this particular thread and I really hoped that you were going to provide some EVIDENCE. Sadly, it now seems that all that you had read about is cases where people had represented themselves in court and had successful outcomes but that none of the cases were connected with bailiffs.

 

 

 

The point being that it is ridiculous to suggest that people should not stand up to bailiff wrongdoing on the grounds that they cannot afford to pay for legal representation.

 

 

 

I really do think that you ought to read the entire posts again before making such silly comments.

 

If there is a very serious complaint about the levy, the fees charged or the bailiffs conduct the first course of action should always be to WRITE to the local authority and copy the bailiff company. If a debtor has received a bailiff visit then it is almost certainly the case that the debtor has financial problems and for anyone to advise that debtor to file a Form 4 without first taking the complaint to the council and bailiffs employer is frankly crazy ( in particular given the proof of costs orders).

 

QUOTE]

 

PS: The matter of these stupid notices (Removal of Implied Right of Access) should be kept to another thread and where you can then provided EVIDENCE to the forum to support your belief that the council in your case returned the account from the bailiff on the basis of the notice. Obviously you will need to remove any personal information from the letter. At the very least should should provide EVIDENCE and if you cannot do so then you must expect people to be sceptical

[Mark1960]

Its the way you read the the post TT-Just like the impression you gave me was that people shouldn't represent themselves,or at least quote case law themselves.

 

I think if you read back,you will find that it was indeed your good self who 1st mentioned the excellent ROIROA notices on this thread-Personally,I don't see the problem as we both know the reason that form 4 complaints & notices are such an obsession on this board.

[unclebulgaria67]

This is the type of debate thread that can just go on and on and on. No real point, as each situation where a Form 4 complaint may or may not be appropriate will be different. What I take from this, is that Form 4 complaint should only be used in exceptional cases, where the risk of being stung for costs is limited. There are other ways to resolve problems with bailiff.

 

As for notices about implied rights of access, this is off topic, but I think people agree that they can be used in some situations. But they are not a magic way of preventing enforcement action being taken at some point.

[danmcr]

This is the type of debate thread that can just go on and on and on. No real point.

 

Agreed!

[wonkeydonkey]

Many people do act as LIP and are successful, however if they are going to quote 'case law' the main requisite is that they understand it and can argue the relevance of it to their particular case. As I have said time and time again ...buying the book and being able to spout 'case laws' parrot fashion may look impressive to some people and offer an air of authority but, it does not mean they understand what they are spouting.

 

I hope we all know the reason why Form 4 complaints and notices are discussed at length.to deter people from jumping in to find the undercurrent is quite dangerous. are you suggesting there is ulterior motive to steering people away from what could prove to be a big and expensive mistake?

[tomtubby]

Its the way you read the the post TT-Just like the impression you gave me was that people shouldn't represent themselves,or at least quote case law themselves.

 

I think if you read back,you will find that it was indeed your good self who 1st mentioned the excellent ROIROA notices on this thread-Personally,I don't see the problem as we both know the reason that form 4 complaints & notices are such an obsession on this board.

 

Mark, your continued reference to these dreadful notices is fast becoming almost obsessional and as I have said to you many times, all that is needed is for you now provide your OWN EVIDENCE by way of the letter from the council (with personal information removed). Nothing more is required just your own EVIDENCE.

 

When you start that new thread could you please do me a favour and provide a link to the post that I supposedly made about "the excellent ROIROA notices".

 

Once again, yet another "thread" started by me looks like being "highjacked". WHY !!!

[Mark1960]

I am suggesting it is pretty obvious that there is an unhealthy obsession with sites that are helpful in guiding people through the process of form4 complaints and/or NOROIROA.It is obvious that we are never going to read positive comments about these two methods on here.

 

With regards acting as LIP then surely someone should be encouraged to read books,trawl the net and read case law?As far as I see,this will give them a fighting chance of being successful in court.I would have thought it pretty obvious to anyone that a specific part or quotation from a particular case would need to be understood and quoted?To quote a case generaly without knowing what relevance it has to your own case would be plain stupid.

 

I am just about to file for county court proceedings and am fairly confident of knowing the case law that I intend to use & the relevance of it-This does not mean to say that I claim to be a lawyer,it means I have tried to put myself in the best position as possible to succeed in court-If any of you so called experts want to come & represent me for free then don't be afraid to offer-Failing that,the route that I have taken appears to have been the best option available to me.

[Mark1960]

Mark, your continued reference to these dreadful notices is fast becoming almost obsessional and as I have said to you many times, all that is needed is for you now provide your OWN EVIDENCE by way of the letter from the council (with personal information removed). Nothing more is required just your own EVIDENCE.

 

When you start that new thread could you please do me a favour and provide a link to the post that I supposedly made about "the excellent ROIROA notices".

 

Once again, yet another "thread" started by me looks like being "highjacked". WHY !!!

 

TT-I have all the documentation you ask for-I have repeatedly offered to meet anyone in person (I am from the Birmingham area) to show them all my papaerwork.I am reluctant to post anything at present due to pending court proceedings.

 

With regards your taking the thread off topic,you may care to check post No 38-It was made by you & you dragged the NOROIRA into the debate.It seems you hijacked your own thread.