In a recent exchange of correspondence, I sought a breakdown of fees from an HCEO. This company provided the figures very promptly, but included a number of charges for actions I did not believe had yet been taken. When I queried these, I was informed that the bill included items which typically would be charged during a levy of execution- but which might not arise in this case- and which would be removed from the account, as appropriate, as matters developed.
Does this seem right? Does it seem fair? Is it clear and transparent? How does a judgment debtor know what s/he is required to pay to discharge the execution?
Let us imagine (for the sake of argument) that the director of a large HCEO company- let's say John Marston of Marston's Group purely for example- takes his Jaguar to the garage for a service. How would John react if he was, upon delivery of the car, presented with a bill by the mechanics for a range of major repairs- replacing all the tyres and brake pads, replacing various electronic components, some major bodywork and respraying- because this work often has to be carried out on vehicles and it might need to be done on his? All he has to do is pay now, in advance- but there'll be a refund or adjustment later if it turns out that none of this is necessary. Would John accept this outrageous and speculative imposition? Would he pay and trust the garage- or would he decide to go elsewhere?
How can consumers of any service (willing or unwilling) properly be charged for actions which have not been performed and may never be performed, as they are contingent on circumstances? Payment in advance is reasonable enough if you can be confident that what you are paying for is definitely going to be done; however, if the charges are dependent upon there being seizable goods, upon access to those goods and upon a range of other unpredictable factors, it seems to me that such demands should not be made.
It will (hopefully) be little surprise to hear that the courts have agreed over the years. A bailiff should only charge for what he has actually done; that's the rule, in a nutshell, and a pretty sensible and obvious one it seems. Advance, speculative- or even wholly made up fees- should never be included on accounts. But, clearly, they are- and it isn't just this particular firm either.
Friday 3 August 2012
Friday 13 July 2012
Notes on the theory & practice of bailiffs' law
My assault upon the bookshelves of Kindle continues. I have assembled all the BSC Practice Notes into one volume, adding checklists, good practice advice and case studies from advice experience, to create a short and handy best practice guide for enforcement agencies.
The learning curve continues though- the Kindle site blithely asks you to upload the cover image (jpeg or gif files only accepted). I discovered how to convert them- screen capture, paste into Pictures, copy the relevant part and save-- but a screen capture is just what it says it is. You get a snapshot with the cursor and any green underlining for grammar check showing- and this carries over into the cover image on Kindle if you're not careful (which I wasn't!!!!). Similarly creating books on the Amazon 'Create Space' website (which is a print on demand source of publications) has many virtues (speed, simplicity of use and convenience) but you have little control over the quirks of their typesetting process. I have uploaded my book on Native American languages, Lost by translation. When the pdf proofs came through various oddities of layout had crept in during the process of page creation at Aamazon's end; I soon realised that I could do nothing to eradicate them and just had to live with them- they're not disastrous, but just a little less than perfect: the last paragraphs of any chapter are centred on the page; widows and orphans can't be removed (except, perhaps, by a very long process of trial and error in adjusting your original Word document which, frankly, I could not be bothered with).
These teething troubles aside, there's now a pretty impressive selection of texts available through Amazon. I have also finished my two new bailiff law histories ('The Victorian bailiff- conflict and change' and 'More popular than the hangman- the Victorian sheriff's officer'); these will be loaded to Kindle soon but, along with the text for the new Notes, can also be purchased directly as Word documents or pdf files- see the Bailiff Studies Centre page on Facebook for more information on prices, contents etc.
My assault upon the bookshelves of Kindle continues. I have assembled all the BSC Practice Notes into one volume, adding checklists, good practice advice and case studies from advice experience, to create a short and handy best practice guide for enforcement agencies.
The learning curve continues though- the Kindle site blithely asks you to upload the cover image (jpeg or gif files only accepted). I discovered how to convert them- screen capture, paste into Pictures, copy the relevant part and save-- but a screen capture is just what it says it is. You get a snapshot with the cursor and any green underlining for grammar check showing- and this carries over into the cover image on Kindle if you're not careful (which I wasn't!!!!). Similarly creating books on the Amazon 'Create Space' website (which is a print on demand source of publications) has many virtues (speed, simplicity of use and convenience) but you have little control over the quirks of their typesetting process. I have uploaded my book on Native American languages, Lost by translation. When the pdf proofs came through various oddities of layout had crept in during the process of page creation at Aamazon's end; I soon realised that I could do nothing to eradicate them and just had to live with them- they're not disastrous, but just a little less than perfect: the last paragraphs of any chapter are centred on the page; widows and orphans can't be removed (except, perhaps, by a very long process of trial and error in adjusting your original Word document which, frankly, I could not be bothered with).
These teething troubles aside, there's now a pretty impressive selection of texts available through Amazon. I have also finished my two new bailiff law histories ('The Victorian bailiff- conflict and change' and 'More popular than the hangman- the Victorian sheriff's officer'); these will be loaded to Kindle soon but, along with the text for the new Notes, can also be purchased directly as Word documents or pdf files- see the Bailiff Studies Centre page on Facebook for more information on prices, contents etc.
A little knowledge is a dangerous thing...
During my researches I have had cause to use consumer forums like Consumer Action Group and Legal Beagle. They have been very useful in providing data for current debtor concerns over areas of enforcement practice. It is clear too that the forums provide support and information for individuals which they find immensely helpful.
Nonetheless, I have formed the opinion that in some cases individuals are not helped by having only part of the story- or getting hold of the wrong end of the stick. Forums are vital sources of instantly accessible information, but in a technical area like bailiff law they may best function as pointers to other web sites or to publications or advice agencies who can offer full and detailed assistance with the subject. I will offer two examples:
1) certification complaints- on this I speak purely from speculation. There has been a rise in complaints against bailiffs' certificates which have gone to trial in front of circuit judge, have been defended by counsel representing the bailiff and which have led to large costs orders against the complainant debtor because the complaint was ill-founded. In part these hearings are the fault of county courts not following the Distress for Rent Rules procedure: judges should review and dismiss inappropriate complaints before any hearing is arranged, but this does not seem to be happening. Partly, though, I suspect that it is consumer fora encouragig individuals to use the procedure (because it is quick, easy and cheap) for matters which should not be tackled by this means. A certificate should only be revoked- and a livelihood endangered- for the most serious of abuses by a bailiff. Minor disputes about fee calculations and the number of visits actually made are not suitable for this procedure. Its use for such complaints has probably led to a harsh reaction by bailiffs' companies and the high costs awards which some complainants have suffered.
2) 'harassment letters'- I was recently asked by a firm in the East Midlands to comment upon (and prepare a response to) some letters sent by debtors which declared the bailiffs to be "interlopers" who by further calling would make themselves liable to "damages" for which they would be invoiced (!) by the debtor. These letters seem to be derived from a Canadian consumer advice website, as far as I can see; they were devised with a view to dealing with debt collectors pursuing disputed consumer debts. They are therefore pretty irrelevant to bailiffs enforcing debts due under statute. They are also a jumble of any old legislation that may be cited to sound impressive- whether appropriate or not: the Bills of Exchange Act (taken directly from the Canadian source), the Admin of Justice Act 1970 (which only applies to contractual debts) and so on. Add some legal jargon (non-negotiable/ all rights reserved) and some Latin ("non assumpsit"- which was the defence to the old form of action for breach of contract, called assumpsit) and you have somehting which can look scary to the uninitiated, but is ultimately fairly worthless. Piling up the statutes, without citing sections or knowing what those sections actually say, is of no value to any one. Standard letters are all too easily downloaded, but may be of little real assistance.
During my researches I have had cause to use consumer forums like Consumer Action Group and Legal Beagle. They have been very useful in providing data for current debtor concerns over areas of enforcement practice. It is clear too that the forums provide support and information for individuals which they find immensely helpful.
Nonetheless, I have formed the opinion that in some cases individuals are not helped by having only part of the story- or getting hold of the wrong end of the stick. Forums are vital sources of instantly accessible information, but in a technical area like bailiff law they may best function as pointers to other web sites or to publications or advice agencies who can offer full and detailed assistance with the subject. I will offer two examples:
1) certification complaints- on this I speak purely from speculation. There has been a rise in complaints against bailiffs' certificates which have gone to trial in front of circuit judge, have been defended by counsel representing the bailiff and which have led to large costs orders against the complainant debtor because the complaint was ill-founded. In part these hearings are the fault of county courts not following the Distress for Rent Rules procedure: judges should review and dismiss inappropriate complaints before any hearing is arranged, but this does not seem to be happening. Partly, though, I suspect that it is consumer fora encouragig individuals to use the procedure (because it is quick, easy and cheap) for matters which should not be tackled by this means. A certificate should only be revoked- and a livelihood endangered- for the most serious of abuses by a bailiff. Minor disputes about fee calculations and the number of visits actually made are not suitable for this procedure. Its use for such complaints has probably led to a harsh reaction by bailiffs' companies and the high costs awards which some complainants have suffered.
2) 'harassment letters'- I was recently asked by a firm in the East Midlands to comment upon (and prepare a response to) some letters sent by debtors which declared the bailiffs to be "interlopers" who by further calling would make themselves liable to "damages" for which they would be invoiced (!) by the debtor. These letters seem to be derived from a Canadian consumer advice website, as far as I can see; they were devised with a view to dealing with debt collectors pursuing disputed consumer debts. They are therefore pretty irrelevant to bailiffs enforcing debts due under statute. They are also a jumble of any old legislation that may be cited to sound impressive- whether appropriate or not: the Bills of Exchange Act (taken directly from the Canadian source), the Admin of Justice Act 1970 (which only applies to contractual debts) and so on. Add some legal jargon (non-negotiable/ all rights reserved) and some Latin ("non assumpsit"- which was the defence to the old form of action for breach of contract, called assumpsit) and you have somehting which can look scary to the uninitiated, but is ultimately fairly worthless. Piling up the statutes, without citing sections or knowing what those sections actually say, is of no value to any one. Standard letters are all too easily downloaded, but may be of little real assistance.
Thursday 28 June 2012
THIS IS THE MODERN WORLD!
I have decided to firmly commit myself to the 21st century whilst still espousing those good old punk ethics of do it yourself, so I have signed up to Kindle and Amazon's Create Space for self publishing.
I had a number of texts which I had preapred but which had sat around in cupboards for some years, occasionally being added to, and decided that the time had come to act. Several articles in the paper after the new year told me how easy it was to self publish, especially e-texts, so I decided that the time had come. I had some solid free time in which to do it so i gritted my teeth and sat down at the PC to get the books out there.
The major lesson is: it's really easy provided that you have the texts set up right in the first case. I hadn't; too many bad habits from self-taught typing. My sins included:
Once I was signed up (again easy peasy) I just had to upload the Word document and cover and let them do the rest. In truth, the cover was the other issue- it had to be presented as a jpeg or gif file: I had designed some nice looking covers (well, I thought so anyway), but they could not be read as they were. How do you convert Word to jpeg? Microsoft don't tell you, but Mr Internet (as ever) had the answers. Again, it wasn't difficult at all- just a few stages to master- and then it was all smoothly completed.
SO, the adverts: what is up there? I have so far e-published 3 books:
1) Estrays & executions- a collection of my published articles and essays on the development of the laws of distress and execution and on agrarian byelaws. I look at such issues as the origins of 'legal custody' and the campaigns of resistance to levies of distress that formed part oof the political campaigns against tithes and the poll tax;
2) Customs' duties- a full length study of village and manorial byelaws regulating the infrastructure of field and home; and,
3) Lost by translation- a book about language and the invasion of North America.
Only the first of these is a 'Bailiff text', of course, but there will be more to follow:
- my two new histories of 19th century bailiff law; and,
- the second edition of my Common land.
All the details are on Amazon of course, plus the author page and other information.
-
I have decided to firmly commit myself to the 21st century whilst still espousing those good old punk ethics of do it yourself, so I have signed up to Kindle and Amazon's Create Space for self publishing.
I had a number of texts which I had preapred but which had sat around in cupboards for some years, occasionally being added to, and decided that the time had come to act. Several articles in the paper after the new year told me how easy it was to self publish, especially e-texts, so I decided that the time had come. I had some solid free time in which to do it so i gritted my teeth and sat down at the PC to get the books out there.
The major lesson is: it's really easy provided that you have the texts set up right in the first case. I hadn't; too many bad habits from self-taught typing. My sins included:
- using tabs to indent rather than the ruler thing at the top of the page in Word;
- not using 'Styles & formatting' to create levels of titles and just using bold/ italics and positioning to do it myself;
- no first line indent on paragraphs.
Once I was signed up (again easy peasy) I just had to upload the Word document and cover and let them do the rest. In truth, the cover was the other issue- it had to be presented as a jpeg or gif file: I had designed some nice looking covers (well, I thought so anyway), but they could not be read as they were. How do you convert Word to jpeg? Microsoft don't tell you, but Mr Internet (as ever) had the answers. Again, it wasn't difficult at all- just a few stages to master- and then it was all smoothly completed.
SO, the adverts: what is up there? I have so far e-published 3 books:
1) Estrays & executions- a collection of my published articles and essays on the development of the laws of distress and execution and on agrarian byelaws. I look at such issues as the origins of 'legal custody' and the campaigns of resistance to levies of distress that formed part oof the political campaigns against tithes and the poll tax;
2) Customs' duties- a full length study of village and manorial byelaws regulating the infrastructure of field and home; and,
3) Lost by translation- a book about language and the invasion of North America.
Only the first of these is a 'Bailiff text', of course, but there will be more to follow:
- my two new histories of 19th century bailiff law; and,
- the second edition of my Common land.
All the details are on Amazon of course, plus the author page and other information.
-
SOURCES OF BAILIFF LAW- at last!!
Yesterday I received copies of my new book, Sources of bailiff law, only three months after I expected them to arrive. This delay was due to "problems at the printers"- some sort of technical error on the first print run, apparently- but the delay was frustrating- especially when I had trumpeted the book's apperance based on the original publication date... May be I was just making it up??
Anyway, the little blue tome is now with us and you can secure your copy from all good book shops etc etc...
Even when they ran, crisp and shiny, off the presses their journey to me was not yet smooth. My publisher forgot my change of address and sent the box to the old premises. It could not be delivered there so I had to visit the sorting office once the new occupier had dropped off the 'while you were out' card.
The box was collected alright, but I asked the man behind the counter why the one year's redirect we's paid for had not worked. This was because "the postman sees it but the parcel delivery man does not." Huh??? Is the Royal Mail a single organisation? Does information not get shared? Is there a sepaeate parcels redirect (not that I've heard- and the fee already paid might seem sufficient cover the odd stray parcel in any case).
So there we are- the workings of bureaucracy; but all's well that ends well after all.
Yesterday I received copies of my new book, Sources of bailiff law, only three months after I expected them to arrive. This delay was due to "problems at the printers"- some sort of technical error on the first print run, apparently- but the delay was frustrating- especially when I had trumpeted the book's apperance based on the original publication date... May be I was just making it up??
Anyway, the little blue tome is now with us and you can secure your copy from all good book shops etc etc...
Even when they ran, crisp and shiny, off the presses their journey to me was not yet smooth. My publisher forgot my change of address and sent the box to the old premises. It could not be delivered there so I had to visit the sorting office once the new occupier had dropped off the 'while you were out' card.
The box was collected alright, but I asked the man behind the counter why the one year's redirect we's paid for had not worked. This was because "the postman sees it but the parcel delivery man does not." Huh??? Is the Royal Mail a single organisation? Does information not get shared? Is there a sepaeate parcels redirect (not that I've heard- and the fee already paid might seem sufficient cover the odd stray parcel in any case).
So there we are- the workings of bureaucracy; but all's well that ends well after all.
Wednesday 13 June 2012
WHY THERESA & JONATHAN ARE WRONG
As we all know the clamping ban is now law- if not yet in force. As I have said several times in Bailiff Studies Bulletin there are two unexpected risks in the new Act: one is that the ban fails and that 'cowboy' parking enforcement continues unabated; the other is that civil debt enforcement is criminalised.
I am currently researching two books on 19th century enforcement. In the course of this I have turned up further materials confirming what I have argued in detail and at length in several previous publications- that impounding on a debtor's premises is not lawful unless statute permits it.
In one chapter of one of the new books I examine the evolution of close possession. In my search for materials I came up with several Parliamentary reports and documents in which government and MPs confirm what I already knew- that walking possession (for example) is not lawful unless Parliament acts to make it lawful. This is no revelation- look for example at chapter 8 of A lawful trespass- but these new sources underline the point yet again. The same reasoning must of course extend to close possession or clamping. Without clear authority in statute, these remedies cannot be used.
I've said it many times before- and apparently will keep repeating myself- these processes may be convenient and effective, but they are not strictly permissible. No-one hears because no-one wants to hear. BUT perhaps a few criminal prosecutions would make someone listen. Clamping becomes an offence without lawful authority- bailiffs will find that they cannot point to lawful authority because (except in just a couple of cases) they have never been given that authority by Parliament.
This is Parliament's fault- not the bailiffs'- and the complacency of Theresa May and Jonathan Djanogli on this issue has been quite staggering. My lone voice on this issue was too small to be heard, it seems, but you might have hoped that, given full citations of all the cases and other sources, someone in government might have been able to come up with a better counter argument (if we may dignify it with such a name!) than "Ministry of Justice thinks that the right to distrain includes the right to clamp." Does it? Well, as we say in South Yorkshire- "Tha kno's nowt" and hopefully events will confirm this.
I am currently researching two books on 19th century enforcement. In the course of this I have turned up further materials confirming what I have argued in detail and at length in several previous publications- that impounding on a debtor's premises is not lawful unless statute permits it.
In one chapter of one of the new books I examine the evolution of close possession. In my search for materials I came up with several Parliamentary reports and documents in which government and MPs confirm what I already knew- that walking possession (for example) is not lawful unless Parliament acts to make it lawful. This is no revelation- look for example at chapter 8 of A lawful trespass- but these new sources underline the point yet again. The same reasoning must of course extend to close possession or clamping. Without clear authority in statute, these remedies cannot be used.
I've said it many times before- and apparently will keep repeating myself- these processes may be convenient and effective, but they are not strictly permissible. No-one hears because no-one wants to hear. BUT perhaps a few criminal prosecutions would make someone listen. Clamping becomes an offence without lawful authority- bailiffs will find that they cannot point to lawful authority because (except in just a couple of cases) they have never been given that authority by Parliament.
This is Parliament's fault- not the bailiffs'- and the complacency of Theresa May and Jonathan Djanogli on this issue has been quite staggering. My lone voice on this issue was too small to be heard, it seems, but you might have hoped that, given full citations of all the cases and other sources, someone in government might have been able to come up with a better counter argument (if we may dignify it with such a name!) than "Ministry of Justice thinks that the right to distrain includes the right to clamp." Does it? Well, as we say in South Yorkshire- "Tha kno's nowt" and hopefully events will confirm this.
A journey into Wales
Bailiff blogger recently went on a research trip tp wales to do a bit of "bailiff studying" as well as a training session. I had reserved materials at Gwent Archives, which involved me in a major expedition into the deepest Valleys. The Archives used to be in Cwmbran, which was relatively accessible and quick to reach. Presumably as part of an EU funded regeneration project, the whole office flitted to Ebbw Vale. This is at the end of a single track railway line and hour from Cardiff- and even when you get there it's a half hour walk along a hillside road to find the place. The reason Ebbw Vale needs regenerating is plain to see: there used to be a huge steel works which is now a waste land (or more correctly a building site, as they are now building executive flats and shopping malls in order to 'revive' the place). Further down the valley was the site of a former pit and a quite few derelect factories; once, they used to do something useful here. Now the useful employment seems to be building useless leisure facilities.
After looking at the Archives, which took less time than I expected, I walked into Ebbw Vale. The town centre on a Thursday lunchtime in the drizzle was not an inspiring sight- to be honest, it'll take a lot of regeneration to revive this town. I'm sorry to say it must go near the top of my list of depressing places I have visited for work, up there with Hartlepool, Thetford, Middleton and Workington (apologies if any readers live in any of these!)
The train back to Cardiff was only hourly, so I had a good look around, and must admit I was pretty glad to be back on my way south. The information I found at the Archives was not completely what I was after, but it was still useful, and the staff were very efficient and quick- so many thanks to them.
Back in the big city, one thing that struck me at Cardiff Central/ Caerdydd Canolog was that the announcements never seem to end. Once you've given every train arrival and departure in two languages- plus the "please mind the gap between the train and the platform" message- every few minutes, there seemed to be no peace at all.
Peace was to be found by the river Taff in the park. Two major factors in a great city are open space and a river. Cardiff has both and I would be quite content to live there, I reckon. The possibility every lunch time of getting out of the office and walking by the river under the trees, until you find yourself alone with a distant prospect of hills, is something to envy the local workers.
Still, it wasn't all pleasure- I should stress. The research done and the materials written up whilst I was there will soon emerge as part of two new studies of bailiffs and bailiffs' law. Watch this space for details!
After looking at the Archives, which took less time than I expected, I walked into Ebbw Vale. The town centre on a Thursday lunchtime in the drizzle was not an inspiring sight- to be honest, it'll take a lot of regeneration to revive this town. I'm sorry to say it must go near the top of my list of depressing places I have visited for work, up there with Hartlepool, Thetford, Middleton and Workington (apologies if any readers live in any of these!)
The train back to Cardiff was only hourly, so I had a good look around, and must admit I was pretty glad to be back on my way south. The information I found at the Archives was not completely what I was after, but it was still useful, and the staff were very efficient and quick- so many thanks to them.
Back in the big city, one thing that struck me at Cardiff Central/ Caerdydd Canolog was that the announcements never seem to end. Once you've given every train arrival and departure in two languages- plus the "please mind the gap between the train and the platform" message- every few minutes, there seemed to be no peace at all.
Peace was to be found by the river Taff in the park. Two major factors in a great city are open space and a river. Cardiff has both and I would be quite content to live there, I reckon. The possibility every lunch time of getting out of the office and walking by the river under the trees, until you find yourself alone with a distant prospect of hills, is something to envy the local workers.
Still, it wasn't all pleasure- I should stress. The research done and the materials written up whilst I was there will soon emerge as part of two new studies of bailiffs and bailiffs' law. Watch this space for details!
Wednesday 9 May 2012
Wheel-clamping ban becomes law!
On Wednesday May 1st the wheel clamping ban contained in s.54 of the Protection of Freedoms Act received royal assent and became law. It is not yet in force, but the Act will start to be implemented from July, after which point clamping a car will be a criminal offence.
The government is very pleased with its blow for motorists' freedom against cowboy clampers, but I anticipate that the Act will fail. I say this because the government has failed to listen to advice from experts and has produced only a partial measure.
It will be an offence to clamp "without lawful authority." The Act specifically states that it will no longer be possible for clampers to say "you saw the signs warniong you it was private land and parked anyway, taking the risk of being clamped." However the Act overlooks a key fact: land owners in England and Wales have a fundamental common law right to use self help means against those trespassing on their land. In other words, they can tow away and impound a car that should not be there. This right seems to provide the perfect 'lawful authority' for private parking enforcement to continue- albeit now involving removal rather than immobilisation.
Which is worse for a driver? A car clamped- with a fee to pay- or a car removed- with far higher fees to pay? Police time will be wasted with calls from people thinking their vehicles have been stolen. Motorists will have to pay much more to get back on the road again than they did beforeand the essential problem the government sought to resolve will remain.
I guess that those firms who block in drivers and use other intimidatory tactics that often create the parking contravention in the first place may disappear. Perhaps this is the aim; the freedoms of land owners will still be protected as they will not be deprived of a remedy and the rogue operators might be driven out.
Perhaps this was the Home Office plan. I am not convinced. I wrote several times to Theresa May and Lynne Featherstone and- when they did bother to reply- their responses were brief and complacent. The key legal issues that had been raised with them were never addressed in detail. There was a complete failure to engage in debate or even to provide a reasoned explanation for the policy adopted. They had ben reassured by civil servants and department lawyers that it would all be OK, and this was as much as they were preapred to say.
So far, so unsatisfactory. But there is worse. My research strongly indicates that most private bailiffs enforcing debts do not have any 'lawful authority' to clamp. There is neither case law nor statute allowing them specifically to immoblise- indeed, the law seems to say quite the opposite.
This means that any bailiff clamping a car will, in future, be committing an offence under the 2012 Act. ooops. What did HM Government have to say about this? basically, nothing. "We believe that bailiffs levying distraint can clamp." And your reasons are......? Again, no debate, no discussion, no reasons, no cases, no law at all. Just bland assurances without any substantiation whatsoever. The result could be that the unplanned results of the Act are an even bigger disaster than the planned results.
So, the worst case scenario for the Protection of freedoms Act is this:
The government is very pleased with its blow for motorists' freedom against cowboy clampers, but I anticipate that the Act will fail. I say this because the government has failed to listen to advice from experts and has produced only a partial measure.
It will be an offence to clamp "without lawful authority." The Act specifically states that it will no longer be possible for clampers to say "you saw the signs warniong you it was private land and parked anyway, taking the risk of being clamped." However the Act overlooks a key fact: land owners in England and Wales have a fundamental common law right to use self help means against those trespassing on their land. In other words, they can tow away and impound a car that should not be there. This right seems to provide the perfect 'lawful authority' for private parking enforcement to continue- albeit now involving removal rather than immobilisation.
Which is worse for a driver? A car clamped- with a fee to pay- or a car removed- with far higher fees to pay? Police time will be wasted with calls from people thinking their vehicles have been stolen. Motorists will have to pay much more to get back on the road again than they did beforeand the essential problem the government sought to resolve will remain.
I guess that those firms who block in drivers and use other intimidatory tactics that often create the parking contravention in the first place may disappear. Perhaps this is the aim; the freedoms of land owners will still be protected as they will not be deprived of a remedy and the rogue operators might be driven out.
Perhaps this was the Home Office plan. I am not convinced. I wrote several times to Theresa May and Lynne Featherstone and- when they did bother to reply- their responses were brief and complacent. The key legal issues that had been raised with them were never addressed in detail. There was a complete failure to engage in debate or even to provide a reasoned explanation for the policy adopted. They had ben reassured by civil servants and department lawyers that it would all be OK, and this was as much as they were preapred to say.
So far, so unsatisfactory. But there is worse. My research strongly indicates that most private bailiffs enforcing debts do not have any 'lawful authority' to clamp. There is neither case law nor statute allowing them specifically to immoblise- indeed, the law seems to say quite the opposite.
This means that any bailiff clamping a car will, in future, be committing an offence under the 2012 Act. ooops. What did HM Government have to say about this? basically, nothing. "We believe that bailiffs levying distraint can clamp." And your reasons are......? Again, no debate, no discussion, no reasons, no cases, no law at all. Just bland assurances without any substantiation whatsoever. The result could be that the unplanned results of the Act are an even bigger disaster than the planned results.
So, the worst case scenario for the Protection of freedoms Act is this:
- a lot of clamping firms will close and their staff will be made redundant, creating more unemployed during a recession;
- some firms will carry on but as tow companies instead of clampers. This will be perfectly lawful and the new Act will not be able to stop it;
- bailiffs collecting debts will suddenly all be criminalised;
- police officers will spend time looking for stolen cars which haven't been stolen and being called out to arrest private bailiffs who will now find that a standard part of their procedure has become a crime.
Tuesday 24 April 2012
BSC does a flit!
On March 23rd Bailiff studies centre moved to new premises. The move was only about a mile, but it was of course as laborious as moving a hundred miles. The removals company couldn't believe the number of boxes required to contain all the books from our library. Four deliveries of 20/30 boxes a time had to be made, but eventually everything was put away.
The run up to the big day was fraught with uncertainties. Our seller, Mr MT, was revealed as a liar who was not to be trusted on anything- his description of the property, his instructions to his solicitor or her prgress on the case. It transpired that the solicitor was a relative and cutprice legal work done as a favour led to cut price service. Letters got lost in the post allegedyly (never heard of DX???), documents were partially completed and aeons passed before correspodence was responded to. We verged on despair and contemplated seriously giving up on Mr MT and buying a different property. His delays meant that the final timescale was very tight- somehting over which he had the temerity to complain (!)- and we fully anticipated delays on the day.
With the removal van fully loaded, we were told that the notorios solicitor couldn't finalise the completion as she had gone out to court and no return time was known to the half wits at the office. This was just what we had expected, but was no less unwelcome- being pessimistic may make you feel smugly justified in your prognostications of misery- but it doesn't help matters much all the same.
Luckily, she got back from court early and matters suddenly proceeded with speed. Mr MT was still in the process of removing his possessions when we arrived; he promised to tidy up the rest of the premises as we unloaded into one room. he didn't, but in a sense we didn't care. He was soon enough gone, leaving old equipment, piles of rubbish and (of course- we might have guessed) undisclosed faults in the property which somehow got forgotten in the prepurchase disclosures. Faulty heating, faulty gutters, infestations of unwelcome guests, misdescriptions of the nature, extent and even age of works done to the property have all been exposed in the subsequent weeks, BUT he has gone, we are in occupation and the new property is spacious, light, airy and has more than enough storage for all those books.
There was further delay getting a fault on the line corrected by BT and then further delay in getting Talk Talk to restore the broadband,but at last we are reconnected to the 21st century and can return to work (rather than, that is, work on the property- painting, repairing and arranging things).
So, back to those bailiff studies- back to the consultation document.
The run up to the big day was fraught with uncertainties. Our seller, Mr MT, was revealed as a liar who was not to be trusted on anything- his description of the property, his instructions to his solicitor or her prgress on the case. It transpired that the solicitor was a relative and cutprice legal work done as a favour led to cut price service. Letters got lost in the post allegedyly (never heard of DX???), documents were partially completed and aeons passed before correspodence was responded to. We verged on despair and contemplated seriously giving up on Mr MT and buying a different property. His delays meant that the final timescale was very tight- somehting over which he had the temerity to complain (!)- and we fully anticipated delays on the day.
With the removal van fully loaded, we were told that the notorios solicitor couldn't finalise the completion as she had gone out to court and no return time was known to the half wits at the office. This was just what we had expected, but was no less unwelcome- being pessimistic may make you feel smugly justified in your prognostications of misery- but it doesn't help matters much all the same.
Luckily, she got back from court early and matters suddenly proceeded with speed. Mr MT was still in the process of removing his possessions when we arrived; he promised to tidy up the rest of the premises as we unloaded into one room. he didn't, but in a sense we didn't care. He was soon enough gone, leaving old equipment, piles of rubbish and (of course- we might have guessed) undisclosed faults in the property which somehow got forgotten in the prepurchase disclosures. Faulty heating, faulty gutters, infestations of unwelcome guests, misdescriptions of the nature, extent and even age of works done to the property have all been exposed in the subsequent weeks, BUT he has gone, we are in occupation and the new property is spacious, light, airy and has more than enough storage for all those books.
There was further delay getting a fault on the line corrected by BT and then further delay in getting Talk Talk to restore the broadband,but at last we are reconnected to the 21st century and can return to work (rather than, that is, work on the property- painting, repairing and arranging things).
So, back to those bailiff studies- back to the consultation document.
Monday 5 March 2012
It's my own invention!
As the White Knight said to Alice in Alice through the looking glass- "It's my own invention." Lord Justice Elias might have said the same during his judgment in JBW Group Ltd v Ministry of Justice [2012]. Describing distraint for fines he said:
This terminology has never been seen before in the history of bailiff law, but this does not seem to have dissuaded the learned judge from using it. As I argue in the latest issue of Bailiff Studies Bulletin (no.12), this sort of attitude can only add confusion to the present state of bailiff law- which, as we know is already extremely complex and confusing.
What Elias LJ did seems to indicate a complete lack of respect for bailiff law as it is presently understood. Either you can dream up whatever terminology you like because bailiff law is so unstructured and informal that you can say whatever you feel like- or bailiffing a subject so lacking in interest or importance that he couldn't be bothered to do the background study.
This problem of making up terminology is by no means limited to the Court of Appeal. Here's a quick sample:
We at Bailiff Blogger say NO! There is a long and honourable history to enforcement law worthy of extended study. Government and the judiciary need to remember this whenever they presume to remake the law....
“a bailiff may levy financial
distress, which involves securing payment without confiscation of goods; or he
may levy confiscation distress, which involves confiscating and selling goods.”
This terminology has never been seen before in the history of bailiff law, but this does not seem to have dissuaded the learned judge from using it. As I argue in the latest issue of Bailiff Studies Bulletin (no.12), this sort of attitude can only add confusion to the present state of bailiff law- which, as we know is already extremely complex and confusing.
What Elias LJ did seems to indicate a complete lack of respect for bailiff law as it is presently understood. Either you can dream up whatever terminology you like because bailiff law is so unstructured and informal that you can say whatever you feel like- or bailiffing a subject so lacking in interest or importance that he couldn't be bothered to do the background study.
This problem of making up terminology is by no means limited to the Court of Appeal. Here's a quick sample:
- the Beatson report in 2000 called all forms of seizure of goods "distress" even when talking about executions upon court judgments (though maybe we can forgive his shorthand as it saved place and time....);
- the White Paper 'Effective enforcement ' in 2003 insisted on talking purely in terms of enforcing court judgments. This is typical of MoJ/DCA/LCD; they staff come from a court background and are so used to thinking purely about judgment debts that they cannot break the habit- even when it is plainly inappropriate;
- Parliamentary draftsmen- the most egregious example that springs to mind is the wording in the council tax regulations dealing with so-called "redemption fees." There is considerable doubt and confusion about when these can be charged. A large part of the blame can be put down to the sloppy wording of the regulation, which talks about 'seizure' of goods when 'removal' is clearly intended. The explanation seems clear- most individuals discussing bailiff procedure will naturally talk about physical contact with goods as 'seizure'; there is a technical meaning to the term, of which practitioners are aware. This does not seem to have been used in the regulations (although you would have expected the writer to be a little more au fait with the 'terms of art') and the result has been two decades of misunderstanding and argument.
We at Bailiff Blogger say NO! There is a long and honourable history to enforcement law worthy of extended study. Government and the judiciary need to remember this whenever they presume to remake the law....
Friday 2 March 2012
Welcome to the new bailiff blogger page!
Bailiff Blogger's new page!
Hi! As part of the promotional and educational work of Bailiff Studies Centre (bailiff.studies.centre@gmail.com) I have decided to launch an occassional blog on enforcement matters.
So, what's going on in at the Centre? What's happening in the world of civl enforcement?
The major news is, of course, the recent issued Ministry of Justice consultation paper on 'Transforming Bailiff Action.' This aims to actually implement the Tribunals, Courts and Enforcement Act 2007- at long last.
I have just issued a Briefing Note examining the consultation in detail, but the main response must be "cowardice and lack of imagination!" Much of the regulations seeks to simply recreate the present system of enforcement- as if the new Act and its guiding principle of "a single code of bailiff law" does not exist at all! To paraphrase DoSAC minister Hugh Abbot in The thick of it, the Ministry of Justice were offered a huge new box in which to think creatively- what they have been busy doing is building a cosy little box inside the new one.... We need simplicity, uniformity and clarity. The new regulations fall far short of these aspirations in many aspects!
See the consultation on the MoJ website: www.justice.gov.uk/consultations/
Other developments at the Centre? The new issue (number 12) of the Bailiff Studies Bulletin. If you're interested in subscribing to the hard legal facts and updates, please e-mail: bailiff.bulletin@gmail.com.
Hi! As part of the promotional and educational work of Bailiff Studies Centre (bailiff.studies.centre@gmail.com) I have decided to launch an occassional blog on enforcement matters.
So, what's going on in at the Centre? What's happening in the world of civl enforcement?
The major news is, of course, the recent issued Ministry of Justice consultation paper on 'Transforming Bailiff Action.' This aims to actually implement the Tribunals, Courts and Enforcement Act 2007- at long last.
I have just issued a Briefing Note examining the consultation in detail, but the main response must be "cowardice and lack of imagination!" Much of the regulations seeks to simply recreate the present system of enforcement- as if the new Act and its guiding principle of "a single code of bailiff law" does not exist at all! To paraphrase DoSAC minister Hugh Abbot in The thick of it, the Ministry of Justice were offered a huge new box in which to think creatively- what they have been busy doing is building a cosy little box inside the new one.... We need simplicity, uniformity and clarity. The new regulations fall far short of these aspirations in many aspects!
See the consultation on the MoJ website: www.justice.gov.uk/consultations/
Other developments at the Centre? The new issue (number 12) of the Bailiff Studies Bulletin. If you're interested in subscribing to the hard legal facts and updates, please e-mail: bailiff.bulletin@gmail.com.
Subscribe to:
Posts (Atom)