PCN Revoked, Charge Cert Cancelled - help with Baliff fees

[Miumiuboo]

Hi all,

 

I hope someone out there can help me as I am very very confused! Briefly, A representation about a PCN was made to Stratford Council on the 23rd of December 2013 and no response was received. I was unaware of the severity of the situation until on the 1st of August 2014 I received correspondence dated 21st of July 2014, from Equita which I subsequently opened regarding the PCN due to Stratford Council, stating that enforcement action would be taken unless the amount of £157 was paid. I immediately telephoned Equita and explained that this correspondence was my first sight of the outstanding PCN from Equita. I notified the gentleman that the vehicle in question is a company vehicle and is currently on a finance agreement and therefore cannot be levied upon and that a representation to Stratford Council had already been made.

 

I then returned home at 3.00pm on Wednesday 6th August 2014 and noticed a white van parked at the rear of the Mews where I live. I parked directly next to the vehicle and noticed a gentleman inside the vehicle. I unloaded the contents of my car, entered the house and approximately 5 minutes later, walked round to the front of the Mews to collect my black bin, noticing the white van was no longer parked in the Mews. I then left my property shortly after this to walk my dog and noticed the white van was now parked at the front of the Mews with the gentleman seated inside.

 

 

Upon returning to my property some 45 minutes later, I found a handwritten note from Equita with no envelope, had been pushed through the door stating Baliff, Mr S Parker had called to execute a Distress Warrant, giving me 24 hours to contact him to avoid further action. Also pushed through the door was a note stating my vehicle had been clamped because I had not paid the sum of £392. I must stress that at no time have I received a breakdown of the charges due to Equita other than the letter dated 21st of July 2014 received on the 1st of August 2014 with the amount of £157. I then telephoned Equita, having been unable to reach Mr Parker.

 

Equita refused to discuss the matter with me despite the fact that I had stressed the Distress Warrant had been delivered at the same time as the clamping had taken place and no chance to pay the debt or discuss this had been given. I also explained that at no time did Mr Parker attempt to talk to me in person while I was unloading my car and had indeed waited until I had left the vicinity to return and clamp my car. My neighbour witnessed the white van pulling into the back of the Mews after I had left the vicinity and is willing to provide a written witness statement to support this.

 

I also stated that in addition the vehicle has a significantly higher value than the original debt and stressed to Equita that as a single parent living in a rural location, there is no public transport and I needed to collect my daughter from a holiday club. I also explained that the vehicle is absolutely essential for my work since there is no alternative public transport I could use instead and that the car is not owned by me since it is subject to a finance agreement taken out with BMW Finance. Again they refused to discuss the matter or provide me with a breakdown of the charges.

 

Mr Parker them returned to my house and caused considerable embarrassment to me by literally hammering on my front door and shouting through the letterbox. He had also parked his white van directly in front of the entrance to the Mews so my neighbours were unable to enter or exit.

 

I had absolutely no choice other than to pay him the £392 he was demanding (via my debit card to his offices so I had a record of the transaction) and he removed the clamp.

 

I then filed an out of time TE7and TE9 and have just heard back from the TEC that the order for recovery of the unpaid penalty charge has been revoked and the charge certificate has been cancelled.

 

Speaking to the council, they have said I have no rights to ask Equita for a refund of their baliff fees of £310 - is that right? Does a cancellation of the charge and the recovery not also revoke the baliff action and subsequent fees?

Edited October 3, 2014 by citizenB
formatting for easier reading

[citizenB]

It has been suggested that your thread would be better served in the Enforcement Agents (Bailiff) forum. I have moved it there for you. You need do nothing, it is purely an administrative move .

 

Have also added some more paragraphs to your post to make it easier to read

[Jamberson]

The bailiff fees are legitimate, and they can keep them. However a proportion of the sum they took was to settle the PCN, and they will have passed that back to the council. Some of that you should be able to recover from the council, but you will still have the remainder of that bit to contest or pay, depending how things pan out.

 

There's not much you can do about the bailiff fees, as I see it. They did legitimate work on the account, because there was no payment or application to TEC for two weeks after they initially contacted you. Unless someone spots a serious error in how they conducted the matter, I think they will keep the money.

[DragonFly1967]

The bailiff fees are legitimate, and they can keep them. However a proportion of the sum they took was to settle the PCN, and they will have passed that back to the council. Some of that you should be able to recover from the council, but you will still have the remainder of that bit to contest or pay, depending how things pan out.

 

There's not much you can do about the bailiff fees, as I see it. They did legitimate work on the account, because there was no payment or application to TEC for two weeks after they initially contacted you. Unless someone spots a serious error in how they conducted the matter, I think they will keep the money.

 

I'm not so sure.

 

If the PCN was issued incorrectly, or, as it appears in this case, later withdrawn or cancelled, then surely, technically at least, there was never a PCN to 'enforce' and thereby any fees charged for enforcement must also be cancelled or withdrawn?

 

Whilst I appreciate that someone has to pay the EA (and their company) for the work that they've done, surely, as the PCN is cancelled, that payment should be down to whoever issued the PCN in the first place.

[Jamberson]

No, that's not how it works.

 

Liability for PCNs is on the (rare) principle of assumed guilt. Once a Notice to Owner is issued, the person on it is legally in debt. If the case goes to bailiffs, it's a genuine debt, and so the bailiff fees are also legit (assuming they are correctly added for legitimate work). Because of that, the bailiff fees are not normally recoverable - and there's no process for retrospectively challenging them. It is down to the debtor to do whatever is required to stop things getting to that stage.

[Bailiff Advice]

In fact I have Counsels Opinion on this very point and what is CLEAR is that the local authority are liable in restitution to the owner when the warrant is set aside.

 

Under the new regulations the position is actually even more certain. Busy right now but can provide more info later.

[Jamberson]

OK, I could be wrong. But the warrant in this case was not set aside. It was executed.

[DragonFly1967]

OK, I could be wrong. But the warrant in this case was not set aside. It was executed.

 

Indeed, but was it executed 'correctly'? Certainly it was correct at the time of execution, but if the PCN was later withdrawn/cancelled, surely that must mean that it should be treated as if it never existed. Thereby a refund of the amount paid for a) the PCN itself, and b) as in this case, a refund of any additional fees or charges.

 

I'm not (in this case at least) holding the EA or their company in any way responsible. They were tasked to recover and did so, and had the right to charge to do so, but, if it's later held that the PCN should not have been issued (which we have to assume is the case or they wouldn't have cancelled it), then it would be grossly unfair for the recipient of the (wrongly issued) PCN to be liable for enforcement fees. That should be down to whoever cocked it up in the first place.

 

Look at it another way..

 

I'll send you an invoice for £100. Which obviously you won't pay because you (rightly) feel that you don't owe me any money.

 

You don't pay and I take you to court, but you don't get any of that correspondence for some reason.

 

I therefore win a default judgement against you.

 

You still don't pay me, because you've not received a single letter to say that you must.

 

I send bailiffs to your address, who add another £310 to the "debt" meaning that you now have to pay £410.

 

But, now that you know about it, you can prove that you didn't owe me £100 in the first place, I'd sent you the invoice wrongly.

 

I accept that I'd made a mistake, and had issued the invoice incorrectly, and cancel the invoice.

 

 

Do you feel that it's justified that you now have to pay £310 to the bailiffs? Or would you be expecting me to pay them because it was my mistake?

[Bailiff Advice]

OK, I could be wrong. But the warrant in this case was not set aside. It was executed.

 

Quite so.

 

It was indeed 'executed' but has since been 'set aside' (revoked).

 

Accordingly the 'enforcement power has ceased to have effect'. The enforcement company have correctly carried out their duty under Schedule 12 and indeed should not lose their fees. I will explain the principle later.

[Jamberson]

Indeed, but was it executed 'correctly'? Certainly it was correct at the time of execution, but if the PCN was later withdrawn/cancelled, surely that must mean that it should be treated as if it never existed. Thereby a refund of the amount paid for a) the PCN itself, and b) as in this case, a refund of any additional fees or charges.

 

I'm not (in this case at least) holding the EA or their company in any way responsible. They were tasked to recover and did so, and had the right to charge to do so, but, if it's later held that the PCN should not have been issued (which we have to assume is the case or they wouldn't have cancelled it), then it would be grossly unfair for the recipient of the (wrongly issued) PCN to be liable for enforcement fees. That should be down to whoever cocked it up in the first place.

 

Look at it another way..

 

I'll send you an invoice for £100. Which obviously you won't pay because you (rightly) feel that you don't owe me any money.

 

You don't pay and I take you to court, but you don't get any of that correspondence for some reason.

 

I therefore win a default judgement against you.

 

You still don't pay me, because you've not received a single letter to say that you must.

 

I send bailiffs to your address, who add another £310 to the "debt" meaning that you now have to pay £410.

 

But, now that you know about it, you can prove that you didn't owe me £100 in the first place, I'd sent you the invoice wrongly.

 

I accept that I'd made a mistake, and had issued the invoice incorrectly, and cancel the invoice.

 

 

Do you feel that it's justified that you now have to pay £310 to the bailiffs? Or would you be expecting me to pay them because it was my mistake?

 

What you are doing is making a logical proposition, based on what you see as fair and how you see the system ideally working. But that's not what we need to consider. All we need to know is how the system works in the real world, whether it appears to be fair and reasonable or not.

 

So far as I know, and I am happy to be shown wrong, the bailiff with a legitimate warrant is doing work which it is entitled to charge for. If the OP compels this by not dealing with the debt, then there's no reason I am aware of why the bailiff should forfeit their fees.

[DragonFly1967]

What you are doing is making a logical proposition, based on what you see as fair and how you see the system ideally working. But that's not what we need to consider. All we need to know is how the system works in the real world, whether it appears to be fair and reasonable or not.

 

So far as I know, and I am happy to be shown wrong, the bailiff with a legitimate warrant is doing work which it is entitled to charge for. If the OP compels this by not dealing with the debt, then there's no reason I am aware of why the bailiff should forfeit their fees.

I'm not saying for a moment that (in this instance) the bailiff should forfeit their fees. But, is it the OP that should be paying them or the council?

[Jamberson]

There is no debt between the council and the bailiff. The fees are added to the debtor's account.

[Miumiuboo]

Hi all,

 

Thank you so much for all your responses. A friend of mine had exactly the same thing happen to her and the outcome was the original PCN was revoked and the charge certificate cancelled. She received a refund for the Baliff fees from the Baliff company. I just thought it was worth checking. I did speak to Equita and they suggested I send the notification of cancellation etc from the TEC and they would look into it. I appreciate they will most likely ignore this but surely its worth doing for the sake of a stamp?

[DragonFly1967]

There is no debt between the council and the bailiff. The fees are added to the debtor's account.

You mean the account that shouldn't have (or wouldn't have) existed if the PCN had not been issued incorrectly?

 

If the PCN has been cancelled, there is no debtor! And therefore, if the bailiffs (EA's) want paying, which obviously they will, then that payment should come from whoever messed it up in the first place, and not from the person who (technically) didn't owe them any money.

 

What we have here is the following scenario.

 

Council (CEO?) issues a PCN.

Recipient of PCN challenges it's issue but hears nothing from the council. Perhaps assumes, wrongly, that the council have accepted the 'appeal'.

Council, having rejected the representation (but in someway having filed to tell the recipient of the PCN that) doesn't get paid and instructs Equita to collect.

Equita write to recipient of PCN. Which obviously comes with a £75 price tag.

Recipient of PCN appeals to TEC, who (in a roundabout way) cancel (or rather, arrange for the council to cancel) the PCN.

 

At this point, there is nothing left to enforce. So there can be no debt.

 

By cancelling the PCN, the council have more or less admitted that it should not have been issued in the first place. And had it not have been issued, there would have been no involvement of Equita, and no £75 fee.

 

And while Equita (and the EA) are entitled to their fee, if the PCN should not have existed in the first place, it would be grossly unfair for the recipient of the PCN (that's now been cancelled, and therefore must be treated as if it's never existed) to remain liable for the £75 fee. That fee should (must) be paid by the council. Equita are entitled to it, but it's not the OP's problem, and they should (must) get their money back.

[Bailiff Advice]

OK, I could be wrong. But the warrant in this case was not set aside. It was executed.

 

In simple terms (I hope) the OP made payment to Equita and this payment was as a condition of the removal of a clamp from the vehicle. An OTT was then filed and not opposed and consequently TEC issued an order that the 'order for recovery of unpaid PCN be revoked and that 'it is further ordered that the 'charge certificate' be cancelled.

 

Local authorities (and bailiff companies) have for years used a 'standard' response that 'as the warrant of execution has already been executed the respondent is not entitled to recover sums pursuant to the warrant'. NOT CORRECT.

 

Upon revocation the warrant of execution 'ceases to have effect' and is therefore invalid. Consequently; the respondent is entitled to recover all sums obtained pursuant to the warrant.

 

This is in keeping with Schedule 6 of the RTA.

 

Consequently. the money paid pursuant to the warrant must be returned. The legal basis for obtaining those sums has 'ceased to be effective' and this is in accordance with the principles of restitution.

 

 

Who should refund the amount already paid?

 

Again this is clear from the many cases that I have seen and confirmed by a case that went to appeal.

 

The local authority are liable in restitution to the owner when the warrant is set aside.

 

 

 

PS: I should add that this identical situation was actually the subject of an APPEAL from an earlier decision at a London court a year or so ago. The applicant was a Solicitor and for her appeal; she was represented by Counsel. Her decison mirrors my explantion above.

[Bailiff Advice]

I should have also mentioned that the matter of refunding bailiff fees following a successful Out of Time witness statement was the subject of a decision made by the Local Government Ombudsman who ruled that to 'remedy the injustice' the LOCAL AUTHORITY must repay the bailiff fees.

[brassnecked]

Your explanation is how I understand it BA, as the Warrant has beeen killed, any monies paid must be refunded, the issue of whether the bailiff deserves to be paid, etc are of no consequence, as the LA must refund, the bailiff keeps his money whatever,

 

As an aside, wonder if this is a Crapquita council, with Capita handling the revenue functions? Might be worth collating cases where Capita run back office, and Equita/Ross & Roberts are the enforcers.