Government Minister's statement regarding court fines, bailiff fees, 'pro rata' distribution and paying the court direct

[Bailiff Advice]

To assist with this debate, I have copied below the contents of a letter from the Ministry of Justice that was sent in response to a Freedom of Information request. I initially posted this response on the forum in July 2014.

 

The author of the letter is the individual who spent in excess of 10 years (that I personally know of) as Head of Enforcement Review at MOJ.

 

 

"I am replying as a policy official working on civil enforcement policy.

 

I am not able to provide advice or comment on any legal points you have raised. I hope that it may be helpful, however, to set out the provisions in the Tribunals, Courts and Enforcement Act 2007 and underpinning regulations that apply to enforcement agents which may address some of your issues.

 

By virtue of section 62 of the Tribunals, Courts and Enforcement Act 2007, the power conferred by a writ or warrant of control to recover a sum of money is exercisable only by using the procedure in Schedule 12 to that Act ("the Schedule 12 procedure"), and warrants of distress are renamed warrants of control so that the Schedule 12 procedure must be used for what were previously warrants of distress

for recovery of unpaid fines

and are now renamed as warrants of control (see also the amendment of the Magistrates' Courts Act 1981 by paragraph 46 of Schedule 13 to the 2007 Act).

 

The Taking Control of Goods (Fees) Regulations 2014 make provision for the recovery of fees and disbursements from debtors by enforcement agents in relation to the procedure for taking control of goods under Schedule 12 to the Tribunals, Courts and Enforcement Act 2007. Regulation 4(3) provides that the enforcement agent may recover under this regulation the whole fee provided in the Schedule for a stage where the amount outstanding is paid after the commencement, but before completion, of that stage.

 

Regulation 5 sets out the stages of enforcement for which fees may be recovered where enforcement is other than under a High Court writ (and so covers enforcement under, for example,

a warrant issued by a magistrates' court

).

 

The enforcement power under Schedule 12 of the Tribunals, Courts and Enforcement Act 2007 is for the amount outstanding which is defined in paragraph 50(3). The

amount outstanding

is the sum of these -

 

(a)

the amount of the debt which remains unpaid

(or an amount that the creditor agrees to accept in full satisfaction of the debt;

 

(b)

any amounts recoverable out of proceeds

in accordance with regulations under paragraph 62 (costs).

 

 

The regulations under paragraph 62 (costs) are the Taking Control of Goods (Fees) Regulations 2014 referred to above

 

Paragraph 50(2) of Schedule 12 states that "

Proceeds are any of these

-

 

(a)

proceeds of sale

or disposal of controlled goods

 

(b)

money taken

in exercise of the power ".

 

Regulation 4(2) of the Taking Control of Goods (Fees) Regulations 2014

provides for the enforcement agent's fees to be recovered out of proceeds

. There are no other provisions for recovery".

[Peterbard]

Yes , i got the idea that this was just a roundabout way of getting to the old proceeds nonsense hence my reluctance to go into a description of how the regulations work.

 

In addition the knowledge level of the poster led me to believe he was unable to understand in any case. In an earlier post on this thread, he seems to think that section 50 as mentioned refers to judicial appointments, for instance.

We are discussing enforcement under section 12 so that would be section 50 of schedule 12.

 

One of those "amateur errors" perhaps.

 

In any case, an understanding of the regulations is not needed as the memorandum is there to provide a description in simple terms to those who are not legally inclined or qualified.

It is prepared by the MOJ and approved by the house and completely accurate, and requires no further clarification.

[Bailiff Advice]

 

Paragraph 50(2) of Schedule 12 states that " Proceeds are any of these -

 

(a) proceeds of sale or disposal of controlled goods

 

(b) money taken in exercise of the power ".

 

For accuracy, I should have provided a link. I do apologise:

 

http://www.legislation.gov.uk/ukpga/2007/15/schedule/12/part/2/crossheading/application-of-proceeds?view=plain

[Bailiff Advice]

 

In any case, an understanding of the regulations is not needed as the memorandum is there to provide a description in simple terms to those who are not legally inclined or qualified.

 

It is prepared by the MOJ and approved by the house and completely accurate, and requires no further clarification.

 

If we can just keep to the debate under discussion we can hopefully avoid this thread going off topic.

 

All Statutory Instruments must have an Explanatory Memorandum (an EM). The purpose of an EM is to provide members of Parliament with an explanation of the effect of the instrument and why it is necessary. It is not meant for lawyers, but to help people who may know nothing about the subject quickly to gain an understanding of the SI’s intent and purpose. In must be written in plain English and outline what the SI does and why.

 

The subject of the Compliance fee (of £75) being deducted at source and the balance of any payment being applied on a pro rata basis is outlined under paragraph 8.3 of the Explanatory Memorandum that supports the Taking Control of Goods (Fees) Regulations 2014 (link below):

 

http://www.legislation.gov.uk/uksi/2014/1/pdfs/uksiem_20140001_en.pdf

 

 

 

PS: I will return to the forum later.

[Peterbard]

If we can just keep to the debate under discussion we can hopefully avoid this thread going off topic.

 

All Statutory Instruments must have an Explanatory Memorandum (an EM). The purpose of an EM is to provide members of Parliament with an explanation of the effect of the instrument and why it is necessary. It is not meant for lawyers, but to help people who may know nothing about the subject quickly to gain an understanding of the SI’s intent and purpose. In must be written in plain English and outline what the SI does and why.

 

The subject of the Compliance fee (of £75) being deducted at source and the balance of any payment being applied on a pro rata basis is outlined under paragraph 8.3 of the Explanatory Memorandum that supports the Taking Control of Goods (Fees) Regulations 2014 (link below):

 

http://www.legislation.gov.uk/uksi/2014/1/pdfs/uksiem_20140001_en.pdf

 

 

 

PS: I will return to the forum later.

 

I think that this is a bad idea. This thread is about the situation regarding the allotment of fees, not the legislation, it would be a shame to see it descend into another thread which is based around trying to make people understand how the regulations work

IMO.

The way proceeds are allocated has been adequately described. It makes no difference whether people understand the legal framework, that is just how it is.

If people are interested in a dissection of the legalities it should in my view be on another thread.

[Peterbard]

I will say this though.

 

The "proceeds argument" has no interest to anyone else other than the person who is confused by the legislation in this area.

I read a hell of a lot of information on bailiffs and can say that there is no discussion or disagreement, anywhere regarding alternative interpretation of this term in the act.

 

It is all purely a result of one person's aberration and has no merit whatsoever.

[ploddertom]

The situation is quite simple in my view. The numpty that comes here only comes for one reason & that is to disrupt and engineer more spite. If they are that strongly against what was said then anything they have to say should be directed to the person responsible - the Government Minister - for a response. Does not matter one jot what is said here they will say the opposite.

[Schindler]

If we can just keep to the debate under discussion we can hopefully avoid this thread going off topic.

 

All Statutory Instruments must have an Explanatory Memorandum (an EM). The purpose of an EM is to provide members of Parliament with an explanation of the effect of the instrument and why it is necessary. It is not meant for lawyers, but to help people who may know nothing about the subject quickly to gain an understanding of the SI’s intent and purpose. In must be written in plain English and outline what the SI does and why.

 

The subject of the Compliance fee (of £75) being deducted at source and the balance of any payment being applied on a pro rata basis is outlined under paragraph 8.3 of the Explanatory Memorandum that supports the Taking Control of Goods (Fees) Regulations 2014 (link below):

 

http://www.legislation.gov.uk/uksi/2014/1/pdfs/uksiem_20140001_en.pdf

 

 

 

PS: I will return to the forum later.

 

Your link isn't legislation just the final notes before enactment. Unfortunate for you but true. The legislation's imprecise. Intent and what's written are different.

 

I think that this is a bad idea. This thread is about the situation regarding the allotment of fees, not the legislation, it would be a shame to see it descend into another thread which is based around trying to make people understand how the regulations work

IMO.

The way proceeds are allocated has been adequately described. It makes no difference whether people understand the legal framework, that is just how it is.

If people are interested in a dissection of the legalities it should in my view be on another thread.

 

Convenient when all that's been asked is where the TCE states what Shailesh Vara said. I'll stop now as you can't answer my question

[Peterbard]

Your link isn't legislation just the final notes before enactment. Unfortunate for you but true. The legislation's imprecise. Intent and what's written are different.

 

 

Convenient when all that's been asked is where the TCE states what Shailesh Vara said. I'll stop now as you can't answer my question

 

 

 

I do not see why anyone would want to see the "final notes before enactment" people may want a simple description of how the enacted legislation works however, and that is what is provided in the memorandum.

Sorry we could not give you the answer you wanted, but life is like that sometimes. The question(if that is what it was ) has been answered.

[Bailiff Advice]

The Labour party MP; Jim Cunningham (Coventry South) raised a series of Parliamentary questions in the House of Commons regarding magistrate court fines.

 

His questions were answered by Shailesh Vara: The Parliamentray Under-Secretary of State for Justice:

 

 

Question from Jim Cunningham (Labour, Coventry South)

 

To ask the Secretary of State for Justice, what estimate he has made of the number of instances in which enforcement agent fees paid by a defendant were transferred directly by HM Courts and Tribunal Services to enforcement agents in each of the last five years; and what estimate he has made of the amounts transferred in that period.

 

Reply from Shailesh Vara: The Parliamentray Under-Secretary of State for Justice.

 

If an offender makes a payment on a financial imposition after a warrant of control has been issued and referred to the EAE, HMCTS transfers the full payment to the AEA to enable them to reconcile their accounts and take the fee owed to them and they then return any balance owed to HMCTS.

 

The Tribunals Courts and Enforcement Act states that the AEA is entitled to retain the first £75 of any amount paid on a warrant and then their fees are retained on a pro rata basis with the balance paid to HMCTS.

 

 

Our new poster Schindler has questioned the accuracy of the above response and in particular, the last sentence. His argument being that the Tribunals, Courts and Enforcement Act does not in itself make reference to an AEA being entitled to retain the compliance fee (of £75) etc.

 

In actual fact, (and for accuracy) the reference to the compliance fee of £75 being retained is outlined under paragraph 8.3 of the Explanatory Memorandum to the Taking Control of Goods (Fees) Regulations 2014 which is one of four regulations underpinning Part 3 of, and Schedule 12 to the Tribunals, Courts and Enforcement Act 2007.

 

http://www.legislation.gov.uk/uksi/2...0140001_en.pdf

 

The other regulations underpinning Part 3 of TCEA 2007 are the following:

 

The Taking Control of Goods Regulations 2013

 

The Certification of Enforcement Agents Regulations 2014

 

The Tribunals, Courts and Enforcement Act, 2007 (Consequential, Transitional and Savings Provision) Order 2014

[ploddertom]

This gets to be a bit like PMQ's.

[Peterbard]

Relay SIs just fill in the gaps in the source legislation, in some cases as in the TCE these "gaps" need to be completed with the appropriate information before the source legislation can be brought into use,

This is why part 3 and some of part 4 of the tCE were shelved for8 years or so, until the regs were made.

[Bailiff Advice]

The Labour party MP; Jim Cunningham (Coventry South) raised a series of Parliamentary questions in the House of Commons regarding magistrate court fines.

 

His questions were answered by Shailesh Vara: The Parliamentray Under-Secretary of State for Justice:

 

 

Question from Jim Cunningham (Labour, Coventry South)

 

To ask the Secretary of State for Justice, what estimate he has made of the number of instances in which enforcement agent fees paid by a defendant were transferred directly by HM Courts and Tribunal Services to enforcement agents in each of the last five years; and what estimate he has made of the amounts transferred in that period.

 

Reply from Shailesh Vara: The Parliamentray Under-Secretary of State for Justice.

 

If an offender makes a payment on a financial imposition after a warrant of control has been issued and referred to the EAE, HMCTS transfers the full payment to the AEA to enable them to reconcile their accounts and take the fee owed to them and they then return any balance owed to HMCTS.

 

The Tribunals Courts and Enforcement Act states that the AEA is entitled to retain the first £75 of any amount paid on a warrant and then their fees are retained on a pro rata basis with the balance paid to HMCTS.

 

 

A link to the full list of questions and answers is below:

 

http://www.theyworkforyou.com/wrans/?id=2016-04-19.34637.h&s=%22Warrant+of+Control%22#g34637.r0

 

Even though he was made aware of the above, an individual (The Guru) on a social media site yesterday, advised a single father to pay a court fine online (minus bailiff fees). Utterly shameless behaviour.

 

It was clear from the debtors online post that a bailiff visit could have profound implications (in particular, on the debtor's 'vulnerable' young son). It was also clear that the debtor had no money whatsoever and would need to borrow over £450 if he was to follow the 'Guru's' instructions.

 

Thankfully, the debtor had contacted me late on Wednesday evening and I was able to speak with him early yesterday morning. The amount being demanded by Marston Group was around £700 (including enforcement fees of £235). My personal opinion was that he should not borrow money that he could not afford to repay and that his account should be managed by Marston Group' in house Welfare Dept.

 

With the debtors written permission, I contacted Marston Group and his account was amicably resolved within 10 minutes. I was only made aware a few moments ago (via pm) that the debtor made the following post on the social media site yesterday.

 

 

So thankfully I found someone from Bailiff Advice... and they took over they helped out so much and got intouch with the welfare department of Marstons.

 

She spoke to them and

got them to drop the 235.00 fee AMAZING

... and they accepted a very low monthly figure which is affordable to me.

 

They called me up after she did all the negotiating and I paid today and they will call monthly now to take my installment.

 

I feel so much better the warrant has been recalled and they told me had I paid the court direct they would have taken the 75.00 fee off that first then pro rated their fee 70/30 I would have been in a hot mess.

 

Thankfully this has been sorted and I hope my story can help someone else.

 

PS: The payment arrangement agreed by Marston Group's Welfare Department was for an immediate payment of £100 followed by £50 per month.

[Leakie]

Well done BA

[Peterbard]

Hi BA and as Leakie says well done. Again.

 

I hope this one was rescued before any money was sent to the three stooges and their Guru

[brassnecked]

Great stuff, especially the removal of the Enforcement fee.

[Bailiff Advice]

Even though he was made aware of the above, an individual (The Guru) on a social media site yesterday, advised a single father to pay a court fine online (minus bailiff fees). Utterly shameless behaviour.

 

It was clear from the debtors online post that a bailiff visit could have profound implications (in particular, on the debtor's 'vulnerable' young son). It was also clear that the debtor had no money whatsoever and would need to borrow over £450 if he was to follow the 'Guru's' instructions.

 

Thankfully, the debtor had contacted me late on Wednesday evening and I was able to speak with him early yesterday morning. The amount being demanded by Marston Group was around £700 (including enforcement fees of £235). My personal opinion was that he should not borrow money that he could not afford to repay and that his account should be managed by Marston Group' in house Welfare Dept.

 

With the debtors written permission, I contacted Marston Group and his account was amicably resolved within 10 minutes. I was only made aware a few moments ago (via pm) that the debtor made the following post on the social media site yesterday.

 

 

So thankfully I found someone from Bailiff Advice... and they took over they helped out so much and got intouch with the welfare department of Marstons.

 

She spoke to them and

got them to drop the 235.00 fee AMAZING

... and they accepted a very low monthly figure which is affordable to me.

 

They called me up after she did all the negotiating and I paid today and they will call monthly now to take my installment.

 

I feel so much better the warrant has been recalled and they told me had I paid the court direct they would have taken the 75.00 fee off that first then pro rated their fee 70/30 I would have been in a hot mess.

 

Thankfully this has been sorted and I hope my story can help someone else.

 

PS: The payment arrangement agreed by Marston Group's Welfare Department was for an immediate payment of £100 followed by £50 per month.

 

Following publication of the above post on here, the debtor has suffered an almost unbelievable level of abuse on the other forum.

 

The website allowed one of their main contributors to trace his IP address (even though that person is not a moderator). He was also accused of making a 'spoof' post (which is certainly untrue).

 

He eventually posted a copy of the email that he received from Marston Group confirming his identity and confirming his payment arrangement. Thankfully copies of all posts have been retained and this is just as well....as the website appears to have removed the entire thread from public view.

[ploddertom]

Must admit it was strange that the poster made his comment at approx 4-30pm on Thurs but it went unanswered until comment was made here about the case late yesterday morning.

[Peterbard]

Following publication of the above post on here, the debtor has suffered an almost unbelievable level of abuse on the other forum.

 

The website allowed one of their main contributors to trace his IP address (even though that person is not a moderator). He was also accused of making a 'spoof' post (which is certainly untrue).

 

He eventually posted a copy of the email that he received from Marston Group confirming his identity and confirming his payment arrangement. Thankfully copies of all posts have been retained and this is just as well....as the website appears to have removed the entire thread from public view.

 

Is it any wonder that more of the victims do not complain ? More disgraceful behaviour.

[Peterbard]

Must admit it was strange that the poster made his comment at approx 4-30pm on Thurs but it went unanswered until comment was made here about the case late yesterday morning.

 

I think either they hoped it would just go away or they were awaiting instructions from the Guru.