Goods on HP - a Judge says they can be sold

[Peterbard]

We are loath to give phone numbers or personal details on here, just wait until your post count increases and return the PM.

[Peterbard]

Well, I'm not in arrears or bankrupt. As previously stated, up to date and not a single late payment!

 

Well i cannot think of any term which i have ever seen that would allow a third party to terminate a contract. So I would think that the lender would not be best pleased.

[Ori]

21 more posts until that happens! ;-)

 

I think my main question is still, what will happen if the car is seized and I just let BMWFS handle it.?

[Ori]

I think I need to clarify one point as this seems to be asked a lot.

 

The car is currently not clamped. just over 2 weeks ago it was clamped an an interim order was made forcing them to remove the clamp within 48 hours. The main hearing was held on friday which is the one you are all aware of.

[Peterbard]

You still have legal possession of the vehicle just not the title to it, the car has to be returned to you unless the agreement with the lender is terminated, as said there is no cause for termination , termination without cause is breach of contract and you could sue.

 

The decision that the car can be seized is untenable. Wait and see what the lender says.

[Peterbard]

I think I need to clarify one point as this seems to be asked a lot.

 

The car is currently not clamped. just over 2 weeks ago it was clamped an an interim order was made forcing them to remove the clamp within 48 hours. The main hearing was held on friday which is the one you are all aware of.

 

So the car is currently in your possession ?

[Ori]

Correct. The car is currently in my possession.

 

Interestingly enough, during the hearing the car was parked in the private car park of the court. The opposing solicitor told me that they were watching the car and that I am number 1 on the bailiffs hit list and it will be clamped on sight. I don't know how true that is, but regardless he called the bailiff company and I was advised that so long as I make a payment by Friday then we could enter into an agreement. Apparently their plan was to follow me out of the car park and see where I parked it on a road and clamp it. Again, I don't know how true this is.

[Peterbard]

Correct. The car is currently in my possession.

 

Interestingly enough, during the hearing the car was parked in the private car park of the court. The opposing solicitor told me that they were watching the car and that I am number 1 on the bailiffs hit list and it will be clamped on sight. I don't know how true that is, but regardless he called the bailiff company and I was advised that so long as I make a payment by Friday then we could enter into an agreement. Apparently their plan was to follow me out of the car park and see where I parked it on a road and clamp it. Again, I don't know how true this is.

 

The situation at the moment then is that the car is not under control the EA, to be so it has to be either clamped or under an agreement signed by you.

So you are free to put the car out of harms way until all this is sorted out. This means parking it somewhere which is not on a public highway and not on your premises, perhaps a neighbors drive or unadopted land, supermarket car park or just far enough away so they cannot find it.

 

In the mean time this ridiculous court order needs t be sorted out. BA will probably be the best person to advise how to do this and what you need to do.

[ploddertom]

I have tried to reply to a private message, but it says I can not do it as I have less than 30 posts. If the person who sent it, could send me their phone number then I will give them a quick call.

 

If you need to respond you could send it to me & I could forward it on.

[Ori]

I don't think there is much I can do unless I appeal the judgement with a stay. As previously stated, I don't have the funds to do that.

I will report what BMWFS say when I speak to them although I think they will take time to deliberate what to do as the implications are so I doubt I will get a speedy response from them.

[Peterbard]

I don't think there is much I can do unless I appeal the judgement with a stay. As previously stated, I don't have the funds to do that.

I will report what BMWFS say when I speak to them although I think they will take time to deliberate what to do as the implications are so I doubt I will get a speedy response from them.

 

The thing is that the decision is astronomically wrong, there is a stack of evidence which can be presented to show that the judge made an error.

 

I am sure that there must be a way to get around this, i am sure that the judge will not want this appeal anyway when he learns of the size of error he has made.

 

Do you have a copy of the judgement by any chance

[Peterbard]

anyway I am off to bed, I will look in in the morning.

[Ori]

I do not have a copy of the judgment, but presume it will arrive in the post sometime this coming week. Am I allowed to post it on here?

 

I am not aware of a judge changing his mind after a ruling. The only way to change his ruling is to appeal.

If we could gather "the stack of evidence" then I will show it to a solicitor and if I am told that this should be put forward to an appeal then I will consider my position again.

 

Goodnight and let me know your thoughts tomorrow.

[Peterbard]

I do not have a copy of the judgment, but presume it will arrive in the post sometime this coming week. Am I allowed to post it on here?

 

I am not aware of a judge changing his mind after a ruling. The only way to change his ruling is to appeal.

If we could gather "the stack of evidence" then I will show it to a solicitor and if I am told that this should be put forward to an appeal then I will consider my position again.

 

Goodnight and let me know your thoughts tomorrow.

 

 

No they cannot change there mind , but the way the judgment is worded may leave room for maneuver.

 

For instance was the judgment a refusal to grant the injunction rather than anything to do with the TCE, it is always difficult to say without having the full picture.

 

I see no reason why we cannot see the judgment, with all personal details redacted of course, someone will undoubtedly tell me if I am wrong.

[Bailiff Advice]

It is quite illuminating that throughout this thread we have had no input from any of the bailiff fraternity.

.

 

I would think that this is more to do with it being a Bank Holiday weekend. I am very surprised though to see that the thread has been visited nearly 1,500 times. Clearly a subject of huge interest.

[Bailiff Advice]

Correct. The car is currently in my possession.

 

Interestingly enough, during the hearing the car was parked in the private car park of the court. The opposing solicitor told me that they were watching the car and that I am number 1 on the bailiffs hit list and it will be clamped on sight. I don't know how true that is, but regardless he called the bailiff company and I was advised that so long as I make a payment by Friday then we could enter into an agreement. Apparently their plan was to follow me out of the car park and see where I parked it on a road and clamp it. Again, I don't know how true this is.

 

As this was a Newlyn case I bet he was telling you the truth !!!

[Bailiff Advice]

 

The car is currently not clamped. just over 2 weeks ago it was clamped an an interim order was made forcing them to remove the clamp within 48 hours. The main hearing was held on friday which is the one you are all aware of.

 

Ori,

 

As you are aware, an injunction is just a first stage and is am emergency application. In a lot of the cases that I am hearing it is common for the judge to grant an order that the clamp be removed pending a full hearing at a future date and the reason why this would be so is because the bailiff has already 'taken control' of the vehicle and secondly, the 'binding' effect of the warrant prohibits the owner from either selling or transferring the vehicle.

 

On a slightly different note however, it is usually the case that if an Out of Time witness statement had been submitted that the bailiff would also remove the clamp. Again, there is no reason for a clamp to remain given that a decision to the Out of Time application would take approx 6 weeks.

[Peterbard]

HI Ba

 

Since this was a decision regrading a dispute between the plaintiff(ori) and the creditor , for the granting of an injunction, does this prohibit and application under section 85(cpr) between the lender and the creditor regarding third party goods should the car be seized again at a later date.

[Peterbard]

Just to clarify.

 

As far as I can see this decision was on the matter of whether an injunction should be granted to Ori, it ws not on the matter of the inability to claim the goods because they belonged to someone else(section 10).

 

This would have been a claim form the lender not ori.

 

In this case all the judgment would do is make it difficult for further injunctions, not further claims under cpr for third party goods.

[brassnecked]

HI Ba

 

Since this was a decision regrading a dispute between the plaintiff(ori) and the creditor , for the granting of an injunction, does this prohibit and application under section 85(cpr) between the lender and the creditor regarding third party goods should the car be seized again at a later date.

 

We could consider what scope the HP compaany has to litigate against the EA and Creditor for the return of the car as in their goods.

 

I feel the judge looked at the facts of the case in isolation from any other law or provision he was apparently overriding perhaps forgetting any resultant unintended consequences

[Bailiff Advice]

The Judge ruled that Ori had an 'interest' in the vehicle but it was during my conversation with Ori on Saturday that I noticed in the 'interpretation' section of the regulations that any reference to 'interest' means 'beneficial interest'. It would seem that this point had not been picked up in court.

 

During my conversation I mentioned to Ori that I had a copy of a similar ruling as his in my office. I have now read through this previous judgment and it would seem that the decision made by the Judge on Friday is very similar indeed to a previous case. That judgment is fairly recent (March 2013) and followed a 'Form 4' hearing by a debtor called Mr S against a bailiff Mr H 3 months earlier.

 

The Judgment is very long (running to 20 pages) and the case was heard by a very experienced Judge (a QC). The following is copied from the judgment:

 

"On the drive of the property. it is common ground, was a Saab saloon vehicle, registration number xxxx. This vehicle belonged to Mr S subject to the interest of the finance company — the vehicle having been secured on hire purchase ("HP"). The vehicle against which Mr H was threatening to levy distraint, was therefore

the subject of an HP agreement.

In fact, Mr H did not have the véhicle recovered — instead, he clamped the Saab vehicle and placed a notice on the window to confirm he had levied on the vehicle.

 

 

However,

I cannot accept as a matter of law that the fact of an HP agreement per se prohibits a bailiff levying on the vehicle.

It will often be the case that the finance company's interest is easily purchased leaving real value to the hirer, who then takes ownership on the discharge of the finance. This is a common matter in relation to excavation equipment, taken out under lease purchase arrangements, where there are agents specialising in arranging finance on such equipment, after the initial finance agreement is bought out. I have tried a number of these cases in the last 12 months in this context.

 

In principle, I can see no reason to distinguish that type of situation from this.

 

It is entirely possible, if Mr S had had the lease finance or HP agreement over a period of time, that he would have some real value in the vehicle — there is no reason why the vehicle could have not been levied against, recovered and potentially sold, subject always to the owner, the finance company, having tirst call on any proceeds.

 

As I say the likelihood is that the owner would have had its interest bought out before any sale was effected.

 

(e) As a precaution, and a wise one. Mr H did make a check before he had the Saab removed — having been alerted to the finance issues, he decided not to remove it. However, had he done so, I cannot see any reason in law why it could not lawfully have been done. I cannot find that any ground of complaint can be made out against the actions of Mr H in initially clamping this vehicle. once he had decided to levy against it".

 

PS: The Judgment was given to me in confidence last year and accordingly, I do not have the authority to make it public . Given the judge's comments above I would personally be very cautious in considering whether or not to appeal.

[Peterbard]

We could consider what scope the HP compaany has to litigate against the EA and Creditor for the return of the car as in their goods.

 

I feel the judge looked at the facts of the case in isolation from any other law or provision he was apparently overriding perhaps forgetting any resultant unintended consequences

 

I hope I am allowed to say, that I think it is a case of the wrong remedy being sought. If an appication would have been made under CPR the result would have been different, although the lender would have had to make it.

 

As it is the decision was if Ori had the right to injuct the EA from enforcment, a different thing and from the look of things the judge found that he did not.

[brassnecked]

Agree DB, he should not have sought an injunction as a remedy, when there is already a procedure laid down to follow. Problem is these judgments will have a wider impact than a bailiff snatching a car. Wonder how long before they try to use it to overrule regulations and take a supposedly protected Motability car on HP rather than lease even with a Blue Badge on display?

[Peterbard]

The Judge ruled that Ori had an 'interest' in the vehicle but it was during my conversation with Ori on Saturday that I noticed in the 'interpretation' section of the regulations that any reference to 'interest' means 'beneficial interest'. It would seem that this point had not been picked up in court.

 

During my conversation I mentioned to Ori that I had a copy of a similar ruling as his in my office. I have now read through this previous judgment and it would seem that the decision made by the Judge on Friday is very similar indeed to a previous case. That judgment is fairly recent (March 2013) and followed a 'Form 4' hearing by a debtor called Mr S against a bailiff Mr H 3 months earlier.

 

The Judgment is very long (running to 20 pages) and the case was heard by a very experienced Judge (a QC). The following is copied from the judgment:

 

"On the drive of the property. it is common ground, was a Saab saloon vehicle, registration number xxxx. This vehicle belonged to Mr S subject to the interest of the finance company — the vehicle having been secured on hire purchase ("HP"). The vehicle against which Mr H was threatening to levy distraint, was therefore

the subject of an HP agreement.

In fact, Mr H did not have the véhicle recovered — instead, he clamped the Saab vehicle and placed a noticd on the window to confirm he had levied on the vehicle.

 

 

However, I cannot accept as a matter of law that the fact of an HP agreement per se prohibits a bailiff levying on the vehicle. It will often be the case that the finance company's interest is easily purchased leaving real value to the hirer, who then takes ownership on the discharge of the finance. This is a common matter in relation to excavation equipment, taken out under lease purchase arrangements, where there are agents specialising in arranging finance on such equipment, after the initial finance agreement is bought out. I have tried a number of these cases in the last 12 months in this coptext.

 

In principle, I can see no reason to distinguish that type of situation from this. It is entirely possible, if xxxxx had had the lease finance or HP agreement over a period of time, that he would have some real value in the vehicle — there is no reason why the vehicle could have not been levied against, recovered and potentially sold, subject always to the owner, the finance company, having tirst call on any proceeds.

 

As I say the likelihood is that the owner would have had its interest bought out before any sale was effected.

 

(e) As a precaution, and a wise one. Mr H did make a check before he had the Saab removed — having been alerted to the finance issues, he decided not to remove it. However, had he done so, I cannot see any reason in law why it could not lawfully have been done. I cannot find that any ground of complaint can be made out against the actions of Mr H in initially clamping this vehicle. once he had decided to levy against it".

 

PS: The Judgment was given to me in confidence last year and accordingly, I do not have the authority to make it public . Given the judge's comments above I would personally be very cautious in considering whether or not to appeal.

 

Have to say I find this disgraceful, why would this judge assume tht the finance agreement could be settled and the debtor aquire an interest, you could say that about any goods whoever they belong to.

 

This is another case of a judge letting his personal feelings interfere with his judgment.

[Peterbard]

Anyway I am away to sunnier climes for a week or so, I hope this all works out for you Ori.