(Excel) Warrant of Control-Unpaid Fine - help

[Dan76M]

Dear All,

 

Just read a few of the sticky's, so I wont cut and paste a load here. I'll ask for a bit of advice on two separate matters and if anyone needs to see correspondence on the 1st matter then I can paste it in.

 

Issue 1 (Excel) Warrant of Control-Unpaid Fine

 

Ok familiar enough story, fined, paid off some, buried head in sand with multiple debts and forgot I was few months between payments. Here are the bullets-

 

-HMCTS had my number and previously had sent an automated text to warn me I was late, they didn't this time.

-I received no letter from HMCTS saying they were going to engage a bailiff or giving me option to pay.

-I received no 7 day compliance stage letter from Excel; I returned on the 3rd from London to a notice of attendance.

-I spoke to HMCTS (recorded) on the 4th part of which was a verbal complaint, asked for Warrant reference and amount. I was told warrant was for £495 (Excel are trying to bill me £805) I then went on to pay HMCTS direct online the total sum of the warrant £495.

-I complained to an extent (no formal template) after googling some advice. Copied Excel, the Magistrates and HMCTS in and provided receipt of payment.

 

As you can imagine I am now in an ongoing back and fore with Excel, being in a position to pay the amount on the warrant why on earth wouldn't I have done this had I received notice of the compliance stage or even a warning from HMCTS, I really have a problem with the tactics and attitude of enforcement companies especially backed by an body that has a royal seal (HMCTS). Do I have to pay Excel the £310; do I have grounds to take this to the parliamentary ombudsmen? Or any advice would be welcome.

 

Issue 2 (Swift) Ctax Liability

 

-They walked into my head office (I'm an executive who has to represent the company to a very high standard) basically announcing to our staff any clients and our sub-contracted trainers I have bailiffs looking for me. They also send a volume of reminder letters to my office when they have my home address.

 

Am I able to get this debt handed back to the LA/or apply to the issuing court to suspend the order if I pay?

 

I have seen advice that says wait until they pass it back to the council, don't know if this is good advice or not. I have a serious problem though with charges these copies feel they can levy even when they haven't followed the rules so to speak. How can it be sanctioned to add almost £1000 to persons debt when they are struggling in the 1st place to clear things is beyond me. Apologies for the slight rant at the end. Any advice or information would be appreciated.

 

Best Regards,

 

Dan.

[Bailiff Advice]

Dan,

 

As you have two separate enquiries, would you be able to start a NEW thread about the 2nd debt ( the one concerning Swift Credit Services). Thank you.

[Dan76M]

Dan,

 

As you have two separate enquiries, would you be able to start a NEW thread about the 2nd debt ( the one concerning Swift Credit Services). Thank you.

 

Yes will do in the morning, no problem.

 

Best Regards,

 

Dan.

[Bailiff Advice]

It may assist if I point out the following facts:

 

Once a Magistrate Court fine is set, the court will send a Notice of Fine /Collection Order. This will detail the amount of the fine, prosecution costs and Victims Surcharge and advise you where to send payment. Crucially, it will advise that payment is due immediately.

 

If the defendant cannot afford to pay immediately, the court will allow a payment arrangement to be set up. The minimum payments are set by law at £5 per week.

 

Presently, courts do not send statement but some do have the facility for text reminders. Unfortunately, this facility is not available in all courts.

 

If a payment arrangement subsequently 'defaults', then a Further Steps Notice should be issued. If the amount stated is not paid within a period of 10 working days, the Fines Officer will authorise a warrant of control to be issued. The warrant will be issued to the enforcement company and they will send a Notice of Enforcement. A Compliance fee of £75 is added to the debt at this stage.

 

You have said that you did not receive either the Further Steps Notice OR the Notice of Enforcement. Given that both notices would have been sent by two different sources, it is very rare for both documents to have gone astray. Have you checked that the court had the correct address on their records?

 

As I had said last night, you need to check with the court to see whether they have the correct address for you on their records. This could explain why you had not received either a Further Steps Notice from the court or the Notice of Enforcement from Excel.

 

You have also mentioned that you asked the court for the 'warrant reference' and amount (which you were told was for £495). Firstly, the warrant would not have a 'reference'. The warrant is the formal instruction to the enforcement agent (accordingly, you will not be given a copy). The wording on the warrant is very important indeed. It states the following:

 

 

The warrant of control for unpaid magistrate court fines has the following wording:

 

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.

 

 

A further problem that you would encounter is that once the warrant of control is issued, the Magistrate Court cannot accept payments. To do so would be a serious breach of Section 62.9 of the HMCTS contract with the 4 enforcement companies (Marston Holdings, Collectica, Swift Credit Services and Excel Enforcement Ltd). This section (62.9) 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".

[Dan76M]

Thank you for this-

 

I had an arrangement for the amount to be paid in three sums, granted this was not followed. I had an extension and made a payment of £250 on the 27/11/2015. The extension and notice of my address change was given and acknowledged over the phone, as far as I'm aware they have got all of my current details to include employer.

 

Merthyr Tydfil Courts have facility for the text messages and had used this twice in the past.

 

I have definitely not received either in the mail and I have a secure locked mailbox, I even went through all mail/junk mail over the weekend just to make sure for certain I'd not missed it or it had slipped to the back of the mailbox. The first I knew of this was on the 03rd March when I got back from London and Excel had left a Letter of Attendance stating they are seeking to recover £805 from me. From what I've read this is not and 'Official or Mandated Notice'? So I would venture that Excel new my address in order to leave this at my property.

 

Again thank you for this.

 

HMCTS gave me a reference number when I asked and told me the amount on it was £495.00, I have this recorded and also told them I was recording the call.

 

Surely I am allowed a copy of the warrant, how am I suppose to check the wording or check that it isn't altered etc?

 

I have asked Excel they told me that I need to request from HMCTS, I then sent a formal request to HMCTS and they said I need to ask Excel (seems very dubious practice to me)-I have all this exchange captured in writing. No I'm afraid through previous experience with Excel a number of years ago that they are just bypassing any of the set stages in order to as quickly as possible add the bulk of what they think they can charge. And it really annoys me that a public body (tax-payer paid for) with a royal warrant HMCTS acts in such a manner as to propagate this, if I steered the business I work for in this direction I'd have 20+ people out of a job in no time.

 

I did pay direct to court after being told the total sum was £495.00 in a view that this would discharge the warrant.; Now to lend a bit of weight to the fact if I had received any of the steps the HMCTS or Excel should of followed the debt would of been cleared immediately. I saw the letter they left on the 03rd and paid what I was told was owed in full on the 04th. The fine was a driving offence which came with a ban which also affects my job, part of a reduction in ban length deal would only be valid if I have nothing left of the fine outstanding, so I most certainly would not of ignored any notice letters or texts if I had received them.

 

I am really not happy with how this has been handled and I am intending to take it further once Excel and HMCTS stop playing tennis with my formal request for information, are they allowed to do this?

 

Best Regards,

 

Dan.

 

Just a quick update on this-

 

I returned home yesterday evening and another letter of attendance from Excel was left on the floor in the communal area of the three front doors (of which mine is one) for all to see. They also did this with the first letter of attendance on the 03/03/2016.

 

There is a locked door before being able to enter the block of apartments so on both occasions they have obviously rang neighbours bells to gain access and left the letters in the communal area even though there is a clearly marked secure bank of mailboxes of which one is mine.

 

I have just confirmed with the court that dealt with my case the following- a)The system used by Magistrates had my old address as this was given and current on the day of sentencing, they confirmed this is fixed, b) they then checked the fines system which can be updated and confirmed that it is holding my current address showing that I had updated them when I moved.

 

I received no text as they had previously done before, I have received no 'Further Steps Notice' from HMCTS and I received no 'Notice of Enforcement' letter from Excel which would of apprised me of the £75 charge compliance stage charge. The first I knew this had gone from HMCTS to Excel was finding a letter of attendance on the 03rd of March stating I owed £805.00.

 

I find this seriously dubious and in my mind is a clear bypassing of process in order to levy maximum charge. What are my options here, I am assuming (as I made a bit of a mess of my initial research) that I now need to formally complain to HMCTS and Excel? Any input is more than welcome.

 

Best Regards,

 

Dan.

[Bailiff Advice]

In your conversation with the court did you ask about the absence of 'text message' reminders?

 

Also, did you ask the court to confirm the date and address where the Further Steps Notice had been sent. This is a very important question to ask.

[Dan76M]

Ahhh, I will call them back and cover both areas....

 

Ok, final update from conversation with court/HMCTS-

 

The further steps notice was sent 09/11/2015 to my current address (I definitely have not had this as mentioned in earlier post I went through all mail thoroughly to double check) and this is something I would have kept and filed, I don't think I've seen one before either.

 

Here's where it gets a bit messy they did sent 2 x texts (which must be the ones I recall having) preceding the date they say the FSN was sent out. Prompted by the text no doubt I phoned them and made an extended payment agreement which I honoured by paying £250 on the 27/11 I believe then fell behind again. Two points to this 1) they have said that 1 FSN goes out during life of the fine is this correct? 2) can they say that the texts take the place of the FSN?

 

I am 100% certain that I have not received the mailed FSN and 100% certain that Excel have not sent a 'notice of enforcement'.

 

I would of viewed the texts as a prompt to start paying, which by my actions you can see that was the case. If a letter had arrived at the earliest stage I would of cleared the balance, as this being clear is one of the pre-requisites to me having a reduced driving ban which in turn gets me back to full productivity in work which my company owners would have questions of me if I failed the criteria to receive a reduction, so in a nutshell I would not of ignored this and allowed it to snowball even though I have been remiss in keeping to the planned payment arrangements.

[Bailiff Advice]

The advice given by the court is indeed correct.

 

The Further Steps Notice is a statutory one but sending a text message reminder is not outlined in legislation and is only available to some courts. At least you are now in a position of knowing what records are held by the court.

[Dan76M]

Again really appreciate your input; so I am going to send a bullet for summary complaint to HMCTS and Excel with the information I have I really don't know if I should be hopeful of getting anywhere with this. I understand that in effect the £75 compliance stage fee is payable as soon as HMCTS passed it to Excel; trying to prove I didn't receive the FSN I don't know and if that's the case then I'm in the same position with my word against Excel that they didn't follow statutory requirement by sending me the enforcement notice. The rest then leaving mail on the floor in communal area etc would probably be classed as a general complaint, so last question I guess is in regard to the warrant of control which they dont seem to want to show me-

 

Is it correct that the warrant should be written to the amount to include the compliance stage £75 before being issued to Excel; if so when I requested the full amount on the warrant from HMCTS and was told by them £495.00 that I could be right in thinking that by paying that I was in fact discharging the warrant?

 

If that has any weight then it would narrow it down to the argument over the sending of the NOE and the validity of the £235, I don't know it just seems an awful lot of grey area and scope for Excel with the complicity of HMCTS to just quickly shift to adding on the full £305.

 

Best Regards,

 

Dan.

[Bailiff Advice]

I will attempt to answer both queries. Firstly, the warrant is not a document that has to be shown as it is the instruction from HMCTS and addressed to the enforcement agent.

 

The warrant will of course have upon it the amount due to HMCTS but most importantly, it also has the following wording:

 

 

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.

[Peterbard]

Hmm nothing on there about the enforcement agent being "ordered to attend" or wet ink signatures either incidentally. Sorry just a related thought not intended for the OP.

 

There is no compliance fee included within the figure on the warrant as it will not be due when it is drafted, but paragraph 1 permits the charging of all fees under the fees regulation which are in turn made under section 62 of schedule 12(as per the warrant). The compliance stage fee is due when the warrant is sent to the Enforcement Agent under section 5 of the fees regulations.

 

Section 125D of the Magistrates Court Act 1980 says that whilst the EA does not have to carry the warrant with him he should facilitate your viewing of it on demand within a reasonable period.

[Bailiff Advice]

So last question I guess is in regard to the warrant of control which they dont seem to want to show me-

 

Dan, Hopefully the following may assist.

 

In 2014, a member of the public wrote to HMCTS regarding warrants of control/distress warrants in relation to unpaid court fines. That person posted MOJ's reply on a website. The following is taken from their reply:

 

PS: For ease of reference, I have broken down the response into separate headings:

 

 

When is a distress warrant/warrant of control 'generated'?

 

"It is not necessary to generate a distress warrant at the time of its issue; the relevant details can be produced (and provided to the debtor) subsequent to its issue (or indeed subsequent to its execution) but such relevant details should be recorded at the time of issue"

 

Who issues the distress warrant/warrant of control?

 

"Designated Fines Officers have the power to issue Distress Warrants/Warrants of Control under schedule 5 of the Courts Act 2003, a court hearing is not required for this sanction to be issued".

 

Is the bailiff/enforcement agent required to have the warrant in his possession?

 

"It is not necessary for the CEO or the AEA to have the distress warrant in his possession when levying the distress. The legislation simply requires a written statement to be shown to the debtor on demand. In addition, the CrimPR requires arrangements to be made for the debtor to see the warrant if he so requests".

 

Does the distress warrant/warrant of control need to be a paper document?

 

"The references in the above CrimPR to a “warrant” are not necessarily to a paper document, but can include an electronic version".

 

Does a warrant need to be produced?

 

"It is not necessary for a formal “warrant” to be produced; what is of**importance is that specific information must be recorded, by some means, at the time the warrant is issued. In particular, the legal basis on which the warrant is issued (for example, a record of the decision authorising the issue of a warrant (made by the court or the fines officer) and when that decision was made). In addition, the information required by CrimPR 52.7(1) should be recorded".

 

Recording the date and time that the warrant was received.

 

"The reference to the CEO or AEA recording on the warrant the date and time at which it is received (rule 52.7(2) can be satisfied by electronic means. Assuming the request to execute is sent to the CEO or AEA electronically there will be an automatic electronic record of when it was received".

 

Requesting to see the distress warrant/warrant of control.

 

"As regards the position where the debtor asks to see the warrant, what rule 52.8(2) of the CrimPR envisages is that the debtor will be taken to the relevant office and shown the relevant details on the computer screen. Alternatively, a copy of the electronic data held can be printed and provided to the debtor or the details replicated in some other documentary form (whether it be entitled a “warrant” or not).

 

"What is of importance, is, as stated above, that the requisite information is already held. That information can then be subsequently shown to the debtor/replicated when a request is made by the debtor".

[Dan76M]

Very much appreciated, thank you-I put in a formal complain to the director of Excel last night basically saying at present it consists (but I reserve the right to add to) of I did not receive either FSN (Though I acknowledge this is HMCTS) nor did I receive a NOE from Excel. I then outlined the EA on both occasions of leaving an attendance notice did so by buzzing neighbours intercoms then proceeded to leave the letters in the communal area, the later dated one right in the middle of the floor.

 

I have received reply to the request to see warrant from Excel offering me to visit either Swansea or Colwyn Bay (which falls in line with what you have provided detailed information on); shame that this took two weeks and several back and fores from both them and HMCTS. I have responded saying that I reserve the right to make an appointment but that it is my understanding that I can request electronically the date and time the warrant was received.

 

I am about to draft the full complaint letter to HMCTS, and will update this thread as to how things go.

 

It just seems as if this system could do with a major overhaul/review, there is way too much scope for HMCTS/EA to immediately say process was followed and tack on £310 in the one hand and on the other correct me if I'm wrong the way these Warrants are set it gives the EA more power than the police in respect who have to show you a warrant.

 

But thank you for all the input.

[Peterbard]

The police have far more powers , they can arrest you and bang you up for starters.

 

I have read and re read this thread several times Dave and to be honest I do not see what you have to complain about. As you seem to acknowledge the problem arose because you failed to pay the fine in the first place, all fes due to the EA are correctly placed and legally due.

 

If you are making a complaint in order to change the system, more power to you but I would not hold my breath.

[Dan76M]

I was specifically referring to having to present paperwork ie a warrant-just look at another thread and see that a bailiff basically had a handwritten note relating to an enforcement issue and under the current system this is allowed. Quite frankly its ridiculous and just shows the gulf in reality between public/government bodies and policy and the private sector(s). Our company has enhanced and specific detailed insurances for operation, how many clients do you think we'd have if when asked to present evidence of this I then handed them a handwritten note? Loose example but you get my gist.

 

And yes I am a person of principal, I have absolutely no record of receiving either FSN or NOE, on the FSN I have a good idea of what has happened here and could offer a good subjective opinion as to how an error occurred and as to Excel sending a NOE they can say that they did till they are blue in the face but I would wager my back teeth this is nonsense. I have a locked secure mailbox and haven't received either notice so find this very strange.

 

So yes I do take exception to being told I have to pay £310 on top of a £495 residual amount of a fine (62.62%). The one thing I do agree with that you state is yes it is fighting the power so to speak because how this is set at present is no more than state sanctioned robbery under threat of privacy invasion. Granted reputable bailiffs have a role to play and there are many people who most certainly need to be chased. However the large part of what happens is the taxpayers, poor and old are the ones that get the majority of the 'enforcement' action as they are the easy targets.

[Peterbard]

writing a complaint to the EA isnt going to change the law Dan. If it helps you feel better then go for it.

[Dan76M]

writing a complaint to the EA isnt going to change the law Dan. If it helps you feel better then go for it.

 

I appreciate where you are coming from and no doubt end result is seeing me pay £310.00; the detailed complaint however has gone to HMCTS and although not relating to mitigating fees I have strongly outlined that the two letters of correspondence I have received b(attendance letters) being just left in plain view in the communal area (and you can easily tell what type of letter they are) does in fact go against regulation in so far as 'EA should not willingly nor negligently cause embarrassment to the debtor'.

 

What gets me is that just saying that they have followed statutory requirement ie sending FSN and/or the EA sending NOE satisfies their obligation. I could say a lot of things, it doesn't necessarily mean they are true-so a situation is created whereby a serious additional sum of money and its validity hinge on one parties word vs another's weighted in the favour of one side. This has massive scope to just punitively seek fees from people, to again draw an analogy to the business world-you say you have something/done something then justify it/evidence it. And coincidently today I have had to authorize a mandated update due to law changes which will see us pay for over 100 recorded delivery letters sent out.

 

So when your talking about potentially taking financial and/or other penalty action against someone and you have a statutory requirement to follow which centres on notice and its period do they not bolt on an additional £1-3 to the debt (I wouldn't expect the taxpayer to take the hit) at time of said action to do the same ensuring someone at the property signs acknowledgement of receipt. You could argue the semantics all day, I will wait from both Excel and HMCTS to see response, pay if necessary but still take it to the ombudsman.

Edited March 17, 2016 by Dan76M
Spelling

[Bailiff Advice]

Please do keep us update with any responses that you receive.

[Dan76M]

Will do, just about to open up the response from Excel to the complaint. I am waiting on a reply from to the complaint from HMCTS/Regional Manager.