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:

• 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.

Well done, then Theresa and Lynne.

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.

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:

“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.

This is just a few instances to show how little respect bailiff law is afforded.  It seems to be fair game: 'say what you feel like' it really doesn't matter; they're all thugs doing what they like anyway.

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....

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.