Clamping Before Speaking With The Debtor

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Mark1960
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#1 Clamping Before Speaking With The Debtor

Post by Mark1960 » 06 Mar 2016 08:30

This practice is happening on an ever increasing basis. Is it lawful though? In many cases, the bailiff doesn't even bother to call, he simply clamps the vehicle, leaves a Notice of immobilisation under the windscreen wiper and off he trots. £235 for less than 5 minutes work. It also places maximum pressure on the debtor who will need the vehicle to travel to work/take kids to school etc.

My own feeling is that this practice is illegal. As the vehicle has been controlled, a second notice is required-A notice after taking control of goods. This is quite a detailed form and unlike the notice of immobilisation (which only really needs the date, account number and enforcements name & telephone number), it will take some time to fill out correctly. Nevertheless, it is a requirement of the law for this form to be left with the debtor, or at his home if he is not in. It cannot simply be stuffed under a windscreen wiper.

When applying for a certificate, a bailiff must convince a judge that the forms he will be using conform to the design and layout as prescribed in the Schedule of the Certification of Enforcement Agents Regulations 2014. Within the layout is a provision to list the usage of the goods. In my eyes, it would be impossible to determine the usage without speaking with the debtor. It is also a fool proof way of protecting both the agent and the debtor. If the vehicle is used for work, or for transporting a sick or disabled person then this ought to be listed. The onus would then fall on the EA to explain why he decided to continue with enforcement. Likewise, if the vehicle is used for social purposes, the EA would be covering himself be listing this. Either way, it is clear as daylight that the EA must communicate with the debtor before clamping takes place. After clamping, notice must be left with the debtor, NOT tucked under a windscreen wiper.

This may seem a tad petty but currently, this short cut is being abused in order to maximise commission by many bailiffs. If goods are not being controlled in the correct manner, a complaint needs to go into the creditor-It is the only way these bad practices will stop. Unfortunately, many debtors will be in panic mode when they discover a vehicle is clamped and will simply want to secure release asap-This means the underhand tactic used by the bailiff will have worked.

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Schedule 12
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#2 Re: Clamping Before Speaking With The Debtor

Post by Schedule 12 » 06 Mar 2016 09:07

Its not actually illegal because the regulations sets out the four limbs what make up taking control of goods.

The bailiff must take one of those four limbs in order to take control of goods.

By the time a case reaches me, the car is already clamped and most probably, the lorry is en-route. I have to do the enforcement compliance check in that time, and give the client the legal position.

I always tell the client to use pay and reclaim. Pay the debt £622 in the case of a PCN, to remove the clamp. He can redress it at court later, or make an interpleader claim if they want to hit someone with a big bill.

If the client chooses not to pay, then he can concede to the enforcement action, and use this as an opportunity to claim extended damages by replacing the car at the creditors expense.

An example of this is a client with a clamped '06 Audi estate with 140K miles on the clock. he allowed enforcement to remove the car, then replaced it with the same car like for like with just 28K miles. The bailiff company is forking out lots of money defending the claim, which as negated any prospect of the bailiff company making any profit. Their only hope is making it on the storage, but eve then, regulations only provide for expenses, and cannot be used to make a profit (detailed assessment puts that to bed).

It is the practice of bailiff companies to disrupt the proceedings by making repeated applications for strike outs for not "pleading a proper cause of action", or the claim "has no prospect of success". Each time it adds between £600 and £800 to the claim in client solicitors fees.

Bailiffs don't earn any commission when all the profit has been absorbed by litigation costs.

By the time the car is on the back of the truck, the maximum recoverable is £622. The bailiff company has to pay £90 bailiffs commission, about £60 for the truck diesel there and back, £100 for the driver, cost of the truck itself. There is little room for profit when the £202 PCN is paid.

A case goes to court. Its no change of £6-8K at minimum which doesn't include the cost of their own solicitor by the time its all divvied out 9 months later.

Some cases are much higher. One was £16000 just for the rental car because the bailiff company has had the car since May 2015, and accidentally sold the car before my client was exonerated by the court.

I cannot see how any bailiff company can actually make any money by clamping and towing cars looking at the sums being paid out for non-compliant enforcement.

Its putting lots of money in my pocket. Clients are being well and truly redressed, so I am happy for bailiffs to be gung-ho with their ANPR vans and street lifters. Its only Marstons venture capital that paying for it.
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Mark1960
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#3 Re: Clamping Before Speaking With The Debtor

Post by Mark1960 » 06 Mar 2016 09:31

I'm struggling to understand how you think that this cannot be illegal.

Firstly, in many cases, no notice after controlling goods is left, which contravenes Regulation 30 and secondly, even when notice is left, it is not filled out correctly. It is clear that there is a responsibility to ascertain usage (and probably ownership)

It cannot be lawful to clamp a vehicle and then drive off without even attempting to speak with the debtor.

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#4 Re: Clamping Before Speaking With The Debtor

Post by Schedule 12 » 06 Mar 2016 10:24

I need to see where in the regulations the bailiff is required to ask for the money before clamping a car.

In cases I come across, the clamp is used before 6am, and that revokes everything.

Looking at regulations 16-19 of the TCGRs, there is nothing that requires the debtor to be approached. The law assumes the debtor is aware because of the NOE.

I don't like it as much as anyone else, but its the regulations. I can only turn it into a money trail when enforcement is not otherwise compliant with the law.
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#5 Re: Clamping Before Speaking With The Debtor

Post by Mark1960 » 06 Mar 2016 10:42

He is required to list the goods usage. How can he do this without speaking with the debtor?

The Inventory form also requires a list of all co-owners. How can this be achieved without first making enquiries?

If he hasn't ascertained these facts then he will have failed to complete mandatory documents as prescribed by law.

Sizlo
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#6 Re: Clamping Before Speaking With The Debtor

Post by Sizlo » 13 Oct 2016 13:18

jasonDWB wrote:Its not actually illegal because the regulations sets out the four limbs what make up taking control of goods.

The bailiff must take one of those four limbs in order to take control of goods.

By the time a case reaches me, the car is already clamped and most probably, the lorry is en-route. I have to do the enforcement compliance check in that time, and give the client the legal position.

I always tell the client to use pay and reclaim. Pay the debt £622 in the case of a PCN, to remove the clamp. He can redress it at court later, or make an interpleader claim if they want to hit someone with a big bill.

If the client chooses not to pay, then he can concede to the enforcement action, and use this as an opportunity to claim extended damages by replacing the car at the creditors expense.

An example of this is a client with a clamped '06 Audi estate with 140K miles on the clock. he allowed enforcement to remove the car, then replaced it with the same car like for like with just 28K miles. The bailiff company is forking out lots of money defending the claim, which as negated any prospect of the bailiff company making any profit. Their only hope is making it on the storage, but eve then, regulations only provide for expenses, and cannot be used to make a profit (detailed assessment puts that to bed).

It is the practice of bailiff companies to disrupt the proceedings by making repeated applications for strike outs for not "pleading a proper cause of action", or the claim "has no prospect of success". Each time it adds between £600 and £800 to the claim in client solicitors fees.

Bailiffs don't earn any commission when all the profit has been absorbed by litigation costs.

By the time the car is on the back of the truck, the maximum recoverable is £622. The bailiff company has to pay £90 bailiffs commission, about £60 for the truck diesel there and back, £100 for the driver, cost of the truck itself. There is little room for profit when the £202 PCN is paid.

A case goes to court. Its no change of £6-8K at minimum which doesn't include the cost of their own solicitor by the time its all divvied out 9 months later.

Some cases are much higher. One was £16000 just for the rental car because the bailiff company has had the car since May 2015, and accidentally sold the car before my client was exonerated by the court.

I cannot see how any bailiff company can actually make any money by clamping and towing cars looking at the sums being paid out for non-compliant enforcement.

Its putting lots of money in my pocket. Clients are being well and truly redressed, so I am happy for bailiffs to be gung-ho with their ANPR vans and street lifters. Its only Marstons venture capital that paying for it.
Hi Jason, Ive just had dealings with these people this morning and have come across the site and this post from yourself.
Im interested in what you said

' I always tell the client to use pay and reclaim. Pay the debt £622 in the case of a PCN, to remove the clamp. He can redress it at court later, or make an interpleader claim if they want to hit someone with a big bill.'

and would like to know more about this as this is a route I wasnt to persue' could you help me please ?

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Schedule 12
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#7 Re: Clamping Before Speaking With The Debtor

Post by Schedule 12 » 13 Oct 2016 13:26

If the car is somebody else's, the owner makes what is called an "interpleader claim" >> here is more >> http://www.dealingwithbailiffs.co.uk/interpleader.htm

If you are executing a Pay and Reclaim. This is to get the bailiffs off your back and you can take the creditor to court and get your money back and/or claim damages.

http://www.dealingwithbailiffs.co.uk/Ba ... claim.html
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Sizlo
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#8 Re: Clamping Before Speaking With The Debtor

Post by Sizlo » 13 Oct 2016 13:33

Thankyou Jason for the the swift response and the Info. Thanks.

georgvontrapp
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#9 Re: Clamping Before Speaking With The Debtor

Post by georgvontrapp » 05 Jan 2018 12:26

Schedule 12 wrote:
13 Oct 2016 13:26
If the car is somebody else's, the owner makes what is called an "interpleader claim" >> here is more >> http://www.dealingwithbailiffs.co.uk/interpleader.htm

If you are executing a Pay and Reclaim. This is to get the bailiffs off your back and you can take the creditor to court and get your money back and/or claim damages.

http://www.dealingwithbailiffs.co.uk/Ba ... claim.html
Tribunals, Courts and Enforcement Act 2007
2007 c. 15 SCHEDULE 12 Part 2 Goods which may be taken Paragraph 10
An enforcement agent may take control of goods only if they are goods of the debtor.

Q1. What checks must an Enforcement Agent make to ascertain the owner of a vehicle prior to clamping it?

Q2. Is it lawful for an alleged debtor, acting as agent for their employer, to use reasonable-force to prevent an Enforcement Agent from clamping a car owned and registered to their employer?

Many thanks in advance.

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#10 Re: Clamping Before Speaking With The Debtor

Post by John The Baptist » 05 Jan 2018 13:19

1. There are no specified steps. The rule of thumb is that the bailiff must have reasonable belief. Unsurprisingly, in bailiff lingo, this translates to "if it doesn't move, clamp it and let's see what reaction is made".

2. No - You should provide evidence and film yourself providing that evidence. A lot is made of V5s not being evidence but the courts have determined that they are a good indication of ownership. A sales invoice would be needed (not a hand written one), insurance documents showing who is insured would help. Proof that funds passed from buyer to seller would help also.

If you cannot prove ownership, the correct procedure would be a claim under part 85 of the CPR. Removing/stopping the bailiff is only likely to lead to arrest.

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#11 Re: Clamping Before Speaking With The Debtor

Post by Schedule 12 » 05 Jan 2018 15:08

A CPR 85 interpleader is common these days and in all fairness, the bailiff companies do release the vehicle at the first hurdle. They only get ratty when they get the bill for the transport, daily hire car rate, and special damages.

Only today I got a Gary Brown case, but he has already sold the car, so it's going to be expensive for somebody.
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#12 Re: Clamping Before Speaking With The Debtor

Post by John The Baptist » 05 Jan 2018 19:45

Most likely the person who had the car removed.

You don't get more damages for ignoring the P85 procedure you know?

If no correspondence was received from the 3ed party, brown/DCBL were entitled to sell the car - That is why there is a time limit in place.

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#13 Re: Clamping Before Speaking With The Debtor

Post by Schedule 12 » 05 Jan 2018 20:59

The time limits only apply when the CPR 85 procedures are started. 3 days for bailiff and if known, the creditor has 7 days. Apart from that the notice of sale. But that was given to the debtor. The owner and debtor don't know each other. It looks like a tracing error
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#14 Re: Clamping Before Speaking With The Debtor

Post by John The Baptist » 05 Jan 2018 22:02

The time limits apply from when the goods are removed, NOT when the P85 procedure is started. This is because goods may be sold after 7 days. There is nothing stopping the EA giving the NoS at the time when the goods are removed.

I am sure the court would accommodate a genuinely late claim but if the third party doesn't know the debtor then surely he would have reported the car stolen if it simply vanished without his knowledge?

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#15 Re: Clamping Before Speaking With The Debtor

Post by Schedule 12 » 06 Jan 2018 12:39

You can still do a CPR 85 claim after the car has been sold. The sale is undone by the court and the buyer no longer owns it. The provision is under CPR 85.6

The owner always reports the car stolen and gets the name of the bailiff company, but data protection prevents the bailiff company giving details about the car or the debt. I always put them into CPR 85.6 and give it to a solicitor no matter how long ago the car was sold.

Even post-2014, the claimant has the choice of remedy. He can claim under Section 3 of the Torts Act 1977. The case law that enables the claimant the choice of remedy is in the judgment of Steel Linings Limited, Mark Harvey v Bibby & Co [1993] EWCA WL 964281 but to be fair, it only reiterated the operation of section 15 of the County Courts Act.

CPR 85.6 does earn better money on costs and the paralegal fee earner gets a better deal as well.
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#16 Re: Clamping Before Speaking With The Debtor

Post by Pote Snitkin » 06 Jan 2018 13:18

85.6 still only gives 7 days from seizure. Anyway, I'm pretty sure that 85.6 doesn't apply to sold goods as it instructs the EA to make the goods available. Can't really do that if they've been sold.

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#17 Re: Clamping Before Speaking With The Debtor

Post by John The Baptist » 06 Jan 2018 13:19

85.6 states that a claim should be made within 7 days of the goods being removed.

Steel Linings is not much use post April 2014. In any case, the case was specifically connected to council tax and whether the old argument about whether the matter could be heard in a county court as opposed to a magistrates court. If you are relying on Steel Linings to proceed under the Torts Act, it is no wonder you never succeed in doing so.

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#18 Re: Clamping Before Speaking With The Debtor

Post by Schedule 12 » 06 Jan 2018 17:22

If the owner has lapsed it doesn't mean he forfeits his right to remedy. It just means CPR 85 is no longer available. He can still bring an action under the Torts Act. It has been done but the goods were musical instruments, but a vehicle is also goods insofar as the Act goes.
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#19 Re: Clamping Before Speaking With The Debtor

Post by John The Baptist » 06 Jan 2018 18:06

No - As I said above, I'm sure that a court will consider a genuine out of time claim. However, simply ignoring the prescribed path does not give automatic right to proceed under the Torts Act. That would be at the judge's discretion, not yours. Furthermore, you need to understand that if the Claimant fails to act within the prescribed time allotted, this doesn't mean that (s)he can load his claim at the Defendant's expense. Why would the Defendant be expected to pay for the Claimant's failure to follow the prescribed procedure within the prescribed time?

Not every wrongful/mistaken controlling of goods will result in tort in any case. As you said previously, genuine mistakes are swiftly dealt with by the bailiff companies if evidence is provided.

The correct procedure is always to claim via part 85. Genuine cases will be swiftly dealt with, without the need to trouble the court. Bulldozing in with some ridiculous action should not be considered as an option.

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