Magistrate Court fines.....Compliance fee of £75 and Enforcement fee of £235 are legally due.

[mikeymack2002]

May I draw your attention to the post I made on a different thread regarding enforcement, the Courts can and should assess vulnerability. If they do this properly then things could turn out differently for the debtor....

[Peterbard]

May I draw your attention to the post I made on a different thread regarding enforcement, the Courts can and should assess vulnerability. If they do this properly then things could turn out differently for the debtor....

 

Do you mean mee MM?

 

If so, consider my attention well and truly drawn to the post in question.

[wonkeydonkey]

In response to messages that I have received since writing the above post asking for a link to 'Sarah's' McKenzie website. I cannot provide it at this present time given that over the weekend....her website was removed.

 

I wonder why!!!!

[Peterbard]

I wonder why!!!!

 

I often worry about the legality of ex solicitors or fee earners , or whatever they may call themselves. Particularly when they are sacked or quit a firm of solicitors and consequentially lose the protection of their indemnity insurance.

Then they start up after creating a limited liability firm.

 

Nothing to do with anything mentioned on here of course, just something I have thought about and I wondered if anyone had any information on.

[mikeymack2002]

Slightly off topic but we'll worth investigating and creating a new thread re the method available to the Courts to decide vulnerabilities the link I refer to was on the NDL site in the bailiff section on page 3 or so if I can find the link again then will add it here. If not maybe someone with the contacts at the MoJ can actually get the precise information on this matter. This I think could help many a debtor that falls in to this group with fines and the like. Also maybe linking to the area of the MoJ that everyone can read up on.*

 

I think if this is used it could take away some of the bad situations that could occur with an EA. Your thoughts on this?

[Peterbard]

I think we have discussed this before,not that it matters.

 

Regarding vulnerability, and allowances for it, wouldn't it be a case of "horses for courses". What is appropriate in a court situation would not be the same as in and enforcment situation.

 

In a court situation vulnerability or issues with, could be used to mitigate an action, parking offence and disability for instance, or to take into consideration when sentencing.

The issue would be stated by the defence and the kind of vulnerability used would be appropriate to the action being taken.

 

In an enforcment case the vulnerability would be one which made the debtor unable to deal with the EA This would probably include a completely different criteria. In ether case I would think it would be impossible to draw up a useful list of who would be considered vulnerable the parameters are to wide.

 

An examination would have to be made on a case to case bases. This is what was found in the TCE, although it may be possible to state situations where vulnerability may be present, There is no method of giving a list of people who would have a vulnerability that would effect their ability to function under specific conditions

It would depend on the person and the context.

[mikeymack2002]

The information can be found on the NDL SITE fact sheet 13 last item. Since I think it's worth looking into so asked for thoughts on this... My thinking is if the bench can decide on vulnerabilities then this would over ride those of the EA.. also is this sort of option still available...

 

The reason for asking is this would save the debtor's all of the fees associated with enforcement and the added bonus of allowing the bench furthers options regarding failure to complete the work.

[Bailiff Advice]

Today I have had the misfortune to be made aware of yet another person who took internet advice after receiving a Notice of Enforcement and was led to believe that if he made payment direct to the Magistrate Court that he would be able to avoid bailiff fees. This person took the advice and paid the court direct and;.....as it always the case.....he received a letter from the court to advise him that his payment had been forwarded direct to Marston Group.

 

He too has now found himself in a position where an enforcement agent has made a personal visit...and the debt increased by way of an enforcement fee of £235. He now owes £310 (to also include the Compliance Fee of £75). This inaccurate advice is costly debtors many thousands of pounds and given that the debt is for an unpaid court fine....the enforcement agent is permitted to force entry.

 

Worryingly, the debtor has been advised today (by the person responsible for this highly inaccurate advice) that the Magistrate Court have supposedly given him the wrong advice. He claims that the warrant 'ceased' when the payment was made to the court and that the debtor can rely upon section 52.8 of the Criminal Procedure Rules 2014. Not true:

 

Section 52.8 was substituted under The Criminal Procedure (Amendment) Rules 2015 !!!!

 

In the two months since writing this thread, the advice being given to unsuspecting debtors by this highly unqualified individual remains unchanged.

 

Almost daily, debtors are posting queries complaining that they took the advice to pay the court direct (minus bailiff fees) only to find that the court forwarded their payment to the enforcement company and that bailiffs fees have been deducted.

 

In almost all cases, the debtor is being told to ask the Parliamentary Ombudsman to investigate. Anyone considering this daft advice should know that the Ombudsman will not investigate such a matter and there has been no such report from them.

Edited March 15, 2016 by Andyorch
External forum thread titles removed

[Peterbard]

The same advice is being handed out to council tax bailiffs, sadly with the same result.

[Peterbard]

It seems that some, having finally had to accept that section 58 of the CPR was revoked over a year ago have fallen back on the old chestnut, that bailiffs enforcing a Magistrates courts apparently cannot enforce for fess. As said this is of course nonsense.

 

just for the sake of anyone who may have overlooked this FMoTL rubbish. Bellow is what a warrant actually contains.

 

Directions

1. You may take goods belonging to the defendant to the value of the money owed and any amounts in respect of costs of enforcement related services which are recoverable in accordance with regulations under paragraph 62 of Schedule 12 to the Tribunals, Courts and Enforcement Act 2007.

2. The goods may not be sold without giving at least 7 days clear notice unless the court has ordered otherwise or the goods are perishable.

3. If the goods are sold you must pay the money owed to the address at the top of this order. You must give the court a statement of any costs on the attached sheet.

Conditions

1. If the money owed and the costs are paid, you must not take control of and sell the defendant’s goods.

2. You must not take goods which are exempt under regulations made pursuant to Schedule 12 to the Tribunals, Courts and Enforcement Act 2007."

 

The highlighted section refers to fees under sectin 62 of schedule 12.

 

62(1)Regulations may make provision for the recovery by any person from the debtor of amounts in respect of costs of enforcement-related services.

(2)The regulations may provide for recovery to be out of proceeds or otherwise.

(3)The amount recoverable under the regulations in any case is to be determined by or under the regulations.(these are the fees regulations)

 

(4)The regulations may in particular provide for the amount, if disputed, to be assessed in accordance with rules of court.

 

(5)“Enforcement-related services” means anything done under or in connection with an enforcement power, or in connection with obtaining an enforcement power, or any services used for the purposes of a provision of this Schedule or regulations under it.

[Bailiff Advice]

I have received three very alarming reports in the past few days. Each one concerns a defendant believing that:

 

A revoked part of legislation still exists (CrimPR 52.8(5).

Incorrect as it was revoked over a year ago (Feb 2015)

 

That the amount of the court fine was the amount 'adjudged to be paid'. It isn't, the amount 'adjudged to be paid' not only includes the fine, costs, fees, compensation but crucially;

any other sums etc.

 

That making payment to the court meant that the warrant 'ceased to have effect'.

No so (more later on).

 

None of them were told that once a warrant of control had been issued, that the Magistrate Court must not accept any direct payment as to do so, would be a serious breach of Section 6.29 of the contract between Her Majesty's Courts & Tribunal Service and the four enforcement companies; Marston Group, Collectica Ltd, Excel Enforcement and Swift Credit Services and accordingly, any 'direct payments' would be forwarded to the relevant enforcement company.

 

For the avoidance of doubt, Section 6.29 states as follows:

 

"The Department (Secretary of State for Justice) will not accept full or part payments on any account where any warrant or clamping order is with the Contractor.

 

Should a Defaulter attend a court and offer to pay whilst a warrant or clamping order is outstanding, the court will direct the Defaulter to contact the Contractor concerned".

[Bailiff Advice]

 

None of them were told that once a warrant of control had been issued, that the Magistrate Court must not accept any direct payment as to do so, would be a serious breach of Section 6.29 of the contract between Her Majesty's Courts & Tribunal Service and the four enforcement companies; Marston Group, Collectica Ltd, Excel Enforcement and Swift Credit Services and accordingly, any 'direct payments' would be forwarded to the relevant enforcement company.

 

For the avoidance of doubt, Section 6.29 states as follows:

 

"The Department (Secretary of State for Justice) will not accept full or part payments on any account where any warrant or clamping order is with the Contractor.

 

Should a Defaulter attend a court and offer to pay whilst a warrant or clamping order is outstanding, the court will direct the Defaulter to contact the Contractor concerned".

 

The above is wholly in accordance with the decision of Lord Justice Simon Brown in the case of R v Hereford & Worcester ex parte McRae where he stated that:

 

“....once the warrant was issued the court was functus officio (in other words had finished its job and had no more to with it) .

[Peterbard]

In the case of the TCE all the court does is create an enforcment power. This is conferred by virtue of a warrant and applied by section 62 TCE to schedule 12.(slightly simplified)

 

The enforcement procedure is prescribed within schedule 12 0f that act. This states what must be collected (amount outstanding section 50(3) ie. sum due under the warrant plus fees (as defined by section 62).

[Bailiff Advice]

In the case of the TCE all the court does is create an enforcment power. This is conferred by virtue of a warrant and applied by section 62 TCE to schedule 12.(slightly simplified)

 

The enforcement procedure is prescribed within schedule 12 0f that act. This states what must be collected (amount outstanding section 50(3) ie. sum due under the warrant plus fees (as defined by section 62).

 

To try to put this into even simpler terms, section 76.1 of the Magistrates' Court Act 1980 (as amended) does not provide any statutory power at all to allow an enforcement agent to seize and sell goods.

 

What it does provide, is the authority for a fines officer to issue a warrant of control. The warrant itself, once issued, provides the enforcement agent the power to:

 

Charge fees

 

Take control of goods and; if necessary.....

 

To force entry.

 

It is that simple.

 

The warrant must only be enforced using the procedure outlined under Schedule 12 of TCEA 2007 and the enforcement agent may only charge fees as outlined under the supporting legislation; the Taking Control of Goods (Fees) Regulations 2014.

[Peterbard]

Yes thats right, the power is really contained within the warrant. It is important because there is no statutory method to seize and take control of goods within the magistrates court act, it only enables the use of the schedule twelve procedure via section 62.

[Bailiff Advice]

The above is wholly in accordance with the decision of Lord Justice Simon Brown in the case of R v Hereford & Worcester ex parte McRae where he stated that:

 

“....once the warrant was issued the court was functus officio (in other words had finished its job and had no more to with it) .

 

I particularly like the explanation of R v Hereford & Worcester ex part McRae from a barrister that I know very well called Alan Murdie:

 

http://www.criminallawandjustice.co.uk/features/Privatization-Judicial-Functions

Edited April 4, 2016 by Andyorch
Link corrected

[Peterbard]

I think that is members only BA the judgment is available elsewhere I believe.

[Peterbard]

Yes the power is now in the hands of the fines officer not the court since 2006 in fact, this is the power which, via the warrant enables the use of schedule 12 via section 62 of the act.

 

So any talk of the magistrates court act being involved in enforcment is arrant nonsense.

 

I notice the mention of the lack of consideration prior to enactment of the DVCA section 4a, that seems to stick in a lot of our threats.

[Bailiff Advice]

 

The Power to Review a Fine

 

“The Department will not, in light of R. v. Hereford and Worcester Magistrates’ Court, ex parte MacRae … recall or withdraw any Distress Warrant unless the fine to which it has been issued against becomes subject to an appeal, s.142 application, statutory declaration or other legal instrument ... The Contractor will then ensure that all activities to execute the warrant or order cease immediately, and return the warrant or order to the court concerned.”

I have just been reading further background information on this subject (Power to Review a Fine) and the position appears to be quite clear in that a warrant may only be recalled or withdrawn if the fine to which it has been issued is either:

 

Subject to an appeal

 

Subject to an application under section 142 of the Magistrates' Courts Act 1980 (Application to re-open the case in order to

rectify a mistake

)

 

 

Subject to an application under section 14 of the Magistrates' Courts Act 1980 (Statutory Declaration to apply to

void

the proccedings where defendant had not known about the case).

 

http://www.criminallawandjustice.co.uk/features/Privatization-Judicial-Functions

[neil_tp]

A warrant can be returned at any point.

[Peterbard]

Yes," if it is in the intersts of justice" as the section says, This is in connection with action prehearing, to which the debtor states on oath which effects his ability to receive a fair hearing, not post judgment matters of course.

 

Incidentally, anyone who considers making a false declaration should be aware of this.

 

107 False statements in declaration proving service, etc.

 

If, in any solemn declaration, certificate or other writing made or given for the purpose of its being used in pursuance of [F1rules of court] as evidence of the service of any document or the handwriting or seal of any person, a person makes a statement that he knows to be false in a material particular, or recklessly makes any statement that is false in a material particular, he shall be liable on summary conviction to imprisonment for a term not exceeding 6 months or a fine not exceeding [F2level 3 on the standard scale] or both.

[neil_tp]

Yes," if it is in the intersts of justice" as the section says, This is in connection with action prehearing, to which the debtor states on oath which effects his ability to receive a fair hearing, not post judgment matters of course.

 

Incidentally, anyone who considers making a false declaration should be aware of this.

 

107 False statements in declaration proving service, etc.

 

If, in any solemn declaration, certificate or other writing made or given for the purpose of its being used in pursuance of [F1rules of court] as evidence of the service of any document or the handwriting or seal of any person, a person makes a statement that he knows to be false in a material particular, or recklessly makes any statement that is false in a material particular, he shall be liable on summary conviction to imprisonment for a term not exceeding 6 months or a fine not exceeding [F2level 3 on the standard scale] or both.

 

It doesn't have to be "in the interests of justice" to be returned.

[Bailiff Advice]

A warrant can be returned at any point.

 

Thank you for taking an interest in the thread. With almost 500 additional views to this thread in just 48 hours,I am sure that like me they would like to receive evidence (i.e. a link to legislation or case law) to support your claim that "a warrant can be returned at any point".

[Peterbard]

It doesn't have to be "in the interests of justice" to be returned.

 

View outstanding changesstatus warnings

142 Power of magistrates’ court to re-open cases to rectify mistakes etc.

 

(1)[F1A magistrates’ court may vary or rescind a sentence or other order imposed or made by it when dealing with an offender if it appears to the court to be in the interests of justice to do so;] and it is hereby declared that this power extends to replacing a sentence or order which for any reason appears to be invalid by another which the court has power to impose or make.

 

?????

[Peterbard]

It doesn't have to be "in the interests of justice" to be returned.

 

I have to say that you have a unique way of looking at the law if you think the court will make a decision that is against the intersts of justice .