Test of reasonableness

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#1 Test of reasonableness

Post by Schedule 12 » 14 Sep 2016 13:29

I have a client with 5 unpaid PCN's, she admits them but didnt deal with them buried her head in the sand, infant chldren, lives with mum and on benefits, hardship etc..

Bailiff demanding £1500 (I haven't done a detailed assessment yet) and has clamped the car. The car needs a gearbox (Clutch OK but stuck in neutral) and cannot be driven, but the bailiff is unaware.

Client has offered a controlled goods agreement, and pay the demand according to a schedule is £70 a month until everything is paid off including 5 x £75 and £235 enforcement stage fee, at £70 a month.

Bailiff is refusing and wants to charge a sale stage fee and storage fees by removing the vehicle.

Schedule 12 doesn't dictate which order the four powers under Paragraph 16(1) the bailiff must follow.

Question:

  • Can the client bring an action because the client offered a CGA but instead, took a step to load the client with storage fees when he could anyway, take that step if the CGA was breached.
I'd like to bring this proceeding so others can follow when the debtor wants to pay but needs more time.

Comments anyone?
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#2 Re: Test of reasonableness

Post by Justanotherperson » 14 Sep 2016 14:35

Would Regulation 7 (aggressive commercial practices) of CPUT not come into play? If so, the claim would need to be made against the third party not the bailiff because they the third arty's agent. The regulations cover all demands for payment including debt recovery.

(1) A commercial practice is aggressive if, in its factual context, taking account of all of its features and circumstances—
(a)it significantly impairs or is likely significantly to impair the average consumer’s freedom of choice or conduct in relation to the product concerned through the use of harassment, coercion or undue influence; and
(b)it thereby causes or is likely to cause him to take a transactional decision he would not have taken otherwise.

(2) In determining whether a commercial practice uses harassment, coercion or undue influence account shall be taken of—
(a)its timing, location, nature or persistence;
(b)the use of threatening or abusive language or behaviour;
(c)the exploitation by the trader of any specific misfortune or circumstance of such gravity as to impair the consumer’s judgment, of which the trader is aware, to influence the consumer’s decision with regard to the product;
(d)any onerous or disproportionate non-contractual barrier imposed by the trader where a consumer wishes to exercise rights under the contract, including rights to terminate a contract or to switch to another product or another trader; and
(e)any threat to take any action which cannot legally be taken.

(3) In this regulation—
(a)“coercion” includes the use of physical force; and
(b)“undue influence” means exploiting a position of power in relation to the consumer so as to apply pressure, even without using or threatening to use physical force, in a way which significantly limits the consumer’s ability to make an informed decision.

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#3 Re: Test of reasonableness

Post by Tuco » 14 Sep 2016 15:03

No mileage in this. There is no sequence that the EA is required to follow.

The debtors best bet would be to enter the councils complaints procedure, informing them of the problems with the car (and thus low value). Inform them of the financial situation and offer to repay @ the rate suggested. Ask for enforcement to be suspended whilst the complaint is being investigated.

Be prepared to take it to the LGO and save money in the mean time.

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#4 Re: Test of reasonableness

Post by Schedule 12 » 14 Sep 2016 15:22

Can you provide the source material for "CPUT"
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#5 Re: Test of reasonableness

Post by Tuco » 14 Sep 2016 15:27

It won't help. It protects consumers, not debtors who have incurred Penalty charge notices that are overdue.

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#6 Re: Test of reasonableness

Post by Schedule 12 » 14 Sep 2016 15:30

The bailiff is a commercial entity and it could be an aggressive practice. The reg 7 above doesn't say a person acting under a duty is excluded.
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#7 Re: Test of reasonableness

Post by Pote Snitkin » 14 Sep 2016 15:35

jasonDWB wrote:Can you provide the source material for "CPUT"
http://www.legislation.gov.uk/uksi/2008 ... tents/made
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#8 Re: Test of reasonableness

Post by Tuco » 14 Sep 2016 15:36

Once a bailiff is empowered to use the Schedule 12 procedure, he may take control of goods and sell them to recover a sum of money. He is under no obligation to enter into a CGA

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#9 Re: Test of reasonableness

Post by Justanotherperson » 14 Sep 2016 15:42

Link: http://www.legislation.gov.uk/uksi/2008 ... ion/7/made

The debtor could be considered a consumer in that they have entered into a contract with a commercial entity, be that the council or a business. CPUT is clear that it does cover any form of debt payment and I ought to think this also covers debt recovery since the sums falling under the PCN is a form of debt recovery is it not? The regs are very wide and it does not have to be a product but can also be a service too in which the aggressive practices relate to. Even if there is no order of precedence in Schedule 12, aggressive practices could come about under reg 7 by way of coercion and undue influence.

Helful explanation of this is in the CPUT guidance (page 41)

https://www.gov.uk/government/uploads/s ... ft1008.pdf

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#10 Re: Test of reasonableness

Post by Pote Snitkin » 14 Sep 2016 15:45

The £1500 seems about right - £75x5 plus £235 plus the fines which I reckon are £202 each.
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#11 Re: Test of reasonableness

Post by Schedule 12 » 14 Sep 2016 15:52

Update, the car has been taken, and I cant find any grounds to appeal any of the 5 PCN's
  • There no NOE or NTO on any of the 5 PCNs

    DVLA address is correct.

    Value of the car is being compared to Ebay sales of a like for like.

    When the notice of sale comes, scan Ebay to get the sales price. The bailiff doesn't know it is a non-runner. They did not get any keys.

    Detailed assessment to see whether storage fees have been paid and to whom.

    The car is not likely to fetch the amount outstanding (which now includes expenses), so it will be apportioned between council and bailiff company under paragraph 50(3) of Schedule 12.

    The council may be approached with an offer to pay installments, and the refusal might be useful to bring a later claim.
I can only make something of it when there is a breach of Schedule 12. The reasonableness test is not prescribed, unless a court can be persuaded the 'CPUT' <? regulations do apply to commercial companies in the enforcement of statutory debts.

We need to determine it is unreasonable to burden a debtor with costs to make a profit for the bailiff company, than enter a CGA, and if yes, under what legislation the action can be brought.

For now, disregard the debtors vulnerable status, and paragraph 26, it was not outwardly obvious to the bailiff at the time.


I did speak to the bailiff before he took the car and recorded it. He was obstreperous and evasive. He then refused to show ID and authority when requested by the debtor and further refused to give the PCN numbers to allow the debtor to identify the source of the debt. He then told me to contact Marston call centre, and when I added them into the conference call and introduced each other, they both hung up the telephone.

Any meat on this anyone?
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#12 Re: Test of reasonableness

Post by Justanotherperson » 14 Sep 2016 16:48

Just as a point to note, although I reference SPUT 2008, there were some changes made in 2014 so as to allow civil redress for the consumer as well as amendments to definitions. Breaking down Reg 7, relevant words in bold:

(a) A commercial practice is aggressive if it significantly impairs or is likely significantly to impair the average consumer’s freedom of choice or conduct in relation to the product concerned through the use of harassment, coercion or undue influence; and
(b)it thereby causes or is likely to cause him to take a transactional decision he would not have taken otherwise.

"product" means goods,a service, digital content, immoveable property, rights or obligations, or a product of the kind mentioned in paragraphs (1A) and (1B)

(1A): A trader (“T”) who demands payment from a consumer (“C”) in full or partial settlement of C's liabilities or purported liabilities to T is to be treated for the purposes of these Regulations as offering to supply a product to C.

(1B): In such a case the product that T offers to supply comprises the full or partial settlement of those liabilities or purported liabilities.

“transactional decision” means any decision taken by a consumer, whether it is to act or to refrain from acting, concerning—
(a) whether, how and on what terms to purchase, make payment in whole or in part for, retain or dispose of a product; or
(b) whether, how and on what terms to exercise a contractual right in relation to a product

“undue influence” means exploiting a position of power in relation to the consumer so as to apply pressure, even without using or threatening to use physical force, in a way which significantly limits the consumer's ability to make an informed decision.


So in the context of the above and a very high level argument, you could potentially argue that the Bailiff's practices are aggressive in that by refusing to acknowledge any reasonable offer or payment by the debtor other than the full amount and despite the debtor being unable to pay, the bailiff is exploiting that position of power (undue influence) to further his/employer's interests (by adding extra fees) and not the third party's interest in which they have been instructed to act upon. It would be unjust for a bailiff (and perhaps any other person/business) to deliberately allow a debtor to incur further fees which puts the debtor into further debt than is necessary, ergo, aggressive commercial practices.

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#13 Re: Test of reasonableness

Post by Schedule 12 » 14 Sep 2016 16:54

Can you define "SPUT 2008" and give the source to the 2014 amendments.

When drafting legal documents, the whole Act or regulation is spelled out in full when it if first referenced and bracketed abbreviation immediately after it. When the legislation is referenced again, it abbreviated.

following that in forum discussions is helpful.
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#14 Re: Test of reasonableness

Post by Schedule 12 » 14 Sep 2016 16:59

Tuco wrote:Once a bailiff is empowered to use the Schedule 12 procedure, he may take control of goods and sell them to recover a sum of money. He is under no obligation to enter into a CGA
That is understood, but the question is reasonableness to burden someone financially when an opportunity otherwise was put forward to the bailiff.

At the moment, there is no grounds to bring an action. Grounds only arise if the car is sold and the debt is not extinguished from the proceeds and the bailiff seeks a further enforcement step.

This is why I want to explore reasonableness.
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#15 Re: Test of reasonableness

Post by Justanotherperson » 14 Sep 2016 17:03

Sorry, I am assuming you know the abbreviation, SPUT 2008 was a type it was meant to say CPUT.

Consumer Protection from Unfair Trading Regulations 2008, link provided above in #9
and amended by The Consumer Protection (Amendment) Regulations 2014: http://www.legislation.gov.uk/uksi/2014/870/made

I'll refer to them as the "CPRs" for ease going forward

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#16 Re: Test of reasonableness

Post by Justanotherperson » 14 Sep 2016 17:08

alternatively, as a bailiff is effectively an agent of the third party, you could maybe throw in fiduciary duties too in that agents cannot profit themselves at the expense of their principal (the third party).

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#17 Re: Test of reasonableness

Post by Tuco » 14 Sep 2016 17:11

I wouldn't waste your time.

In a council complaints procedure, there is a chance that "reasonableness" will be considered. In a court of law, there is no chance. There is no obligation to accept repayment plans at enforcement stage. The debtor didn't even offer one at compliance stage.

We have a similar situation now in one of the HCEO claims, where they removed a car for a debt of £111. It was reprehensible behaviour and they couldn't even use the excuse that the creditor wouldn't accept payments, because the creditor had been paid, bar the writ fee. However, we can't do anything about this legally but fortunately, we have them on other breaches.

We need to concentrate our efforts and focus on winnable arguments. Sometimes, we just have to tell the debtor that we can't help them.

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#18 Re: Test of reasonableness

Post by Schedule 12 » 14 Sep 2016 17:12

CPRs to me is Civil Procedure Rules or Criminal Procedure Rules, they are rules of court.

I'll have a look at the CPUT, they might be useful, but like the National Standards, I only used them to augment legislation when the opponent is minded to give another interpretation of it.

Im a bit nervous at quoting consumer law when no contract exists between a bailiff and debtor.
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#19 Re: Test of reasonableness

Post by Amy » 14 Sep 2016 17:16

Justanotherperson wrote:The debtor could be considered a consumer in that they have entered into a contract with a commercial entity, be that the council or a business.
What contract will the debtor have entered into though? I know this can be used when dealing with private parking companies because they deem you to have entered into a contract with them when you park your vehicle, but I cannot see what contract applies here.

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#20 Re: Test of reasonableness

Post by Justanotherperson » 14 Sep 2016 17:29

Cases are won and lost on arguments that may or may not be winnable, which is how case law develops. To me, as close as reasonableness gets in any relevant legislation is the CPRs. All well and good saying that its a waste of time but then you just need to turn to recent case law like the Parking Eye case. The barrister for Parking Eye cleverly submitted the phrase commercially justifiable even though a charge may not be a genuine pre-estimate and persuaded the court to find in favour on that point.

And there doesn't need to be a contract that exists between the bailiff and the debtor. A Trader in the CPRs is defined widely enough to include an agent, which in this case would include a bailiff. The service/contract is with the third party hence a claim would need to be brought against them specifically and/or the bailiff company as a second party to it.

You've asked a suggestion and I've offered one, but I am not saying it's an absolute winner although I wouldn't say its completely hopeless either. The bailiff may be construed as using aggressive practices to further their own interests i.e. an improper motive.

@Amy, the contract entered into will be whatever contract that brought about the PCN, which presumably is the third party who instructed the bailiffs.

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#21 Re: Test of reasonableness

Post by Amy » 14 Sep 2016 17:45

I can sort of see where you are going with this, but council parking fines are not reliant on contract law; private parking notices are.

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#22 Re: Test of reasonableness

Post by Michelle » 14 Sep 2016 17:46

Yes, CPRs is used to refer to the rules governing court procedure. This legislation is commonly referred to as CPUTR 2008 and, IMHO, it would be a stretch to get a judge to accept the arguments mentioned above in relation to enforcement. "Undue influence" refers to contractual situations when the injured party felt they had no option but to enter into the contract and/or accept its terms. Any form of enforcement is likely to have an element of undue influence, that's the whole idea of enforcement as opposed to a contractual relationship. Also can't see how the debtor could be considered a "consumer" in this context.
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#23 Re: Test of reasonableness

Post by Michelle » 14 Sep 2016 17:53

Amy wrote:I can sort of see where you are going with this, but council parking fines are not reliant on contract law; private parking notices are.
Even then, the contract would be related to parking the car, not the enforcement of the penalty. In this case the debtor neither paid nor challenged the penalties. If there was an element of unfairness or mistake, they should have brought that up before reaching the enforcement stage. The contract in this case is between the creditor and the EA.
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#24 Re: Test of reasonableness

Post by Schedule 12 » 14 Sep 2016 18:10

Okay, let me gather it all up and put it to an expert.

I'll post back the comment.
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#25 Re: Test of reasonableness

Post by Schedule 12 » 14 Sep 2016 18:12

Tuco wrote:
We have a similar situation now in one of the HCEO claims, where they removed a car for a debt of £111.
Is that £111.75 the execution fee?

The enforcement will fail on Paragraph 6(3) of Schedule 12 and liability is under Paragraph 66(5). Andrew Wilson & co, Murgatroyd, Feb 2015.
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#26 Re: Test of reasonableness

Post by Justanotherperson » 14 Sep 2016 18:15

Michelle, the regulations are applicable before, during or after any contract or service has been entered into/agreed, so it would cover instances for example, bailiffs and debt collectors hence the 2014 amendments to the regulations and thus provided for civil redress - prior to this date there was no redress for the consumer other than reporting to trading standards who would decide whether to take enforcement action.

Undue influence by definition is very wide and further guidance on the 2014 regs makes this clear they were specifically amended to allow for an action to be brought even if it is the agent who is conducting the aggressive practices. I am not sure I can agree with you on the undue influence point being an element of any enforcement, if that is the current practice then all the more to challenge it.

The regulations define a consumer as a person who is not acting in the course of business, so unless the debtor was parking in the course of business, they fall within the definition. Regardless of whether there is a contract between the third party and the bailiff who is instructed, they are still treated as the trader for the purposes of the regulations.

Like I said, just a suggestion as a potential argument but by no means guaranteed.

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#27 Re: Test of reasonableness

Post by Michelle » 14 Sep 2016 19:44

Enforcement is forcing people to do doing or not to do something. Law enforcement allows authorised people (generally the police), to forcibly remove people from certain places or to take them somewhere (such as the police station), against their will (arrest). Civil enforcement means forcing people to pay their debts in one way or other. It could be by taking money from their wages (attachment of earnings), asking the DWP to make deductions from benefits or seizing goods to be sold. Excessive use of force is not allowed but "undue influence" is in its very nature.

Undue influence in the context of the regulations does not refer to enforcement, which is a last resort, to be used when all else has failed. It's very different from exercising undue influence to get you to enter into a contract, buy a product or service, etc.
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#28 Re: Test of reasonableness

Post by Justanotherperson » 14 Sep 2016 23:05

I accept that bailiffs have legal powers to seize and sell goods, but the regulations are very wide in scope. Sure, if the car covers the debt in question then I guess there is no argument about it and the goods are seized and sold for recovery of payment. What if the goods do not cover the cost of the money owed, can the bailiff sell what they see and then come back again or must they do it in one go?

As bailiffs are supposed to act in the interests of the creditor and not themselves, if deliberately refuse to take further instructions of any offers of reasonable instalments in order to further their own gains by adding on additional fees, then I would say there is potential for it to be deemed an aggressive practice. The European Directive which the regulations were enacted under was aimed to cover all payment collections. It also confirmed that aggressive demands which distorts a consumer's decision to pay or not to pay or give priority over one payment compared to another would fall within the scope.

So because a bailiff could fall into the category of an agent on behalf of the trader and is demanding payment, does that mean they are covered under the regulations? That is a point to be determined by a court I think, but It is a question of fact as to whether there are any aggressive commercial practices and just because there is no reference to enforcement does not necessarily prevent the argument from being raised.

You may be right, it could be a long stretch but it also surprising sometimes how far the courts are willing to stretch.

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#29 Re: Test of reasonableness

Post by stopbailiff » 15 Sep 2016 12:41

Since the Regs come from EU law, there is normally statutory guidance.

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#30 Re: Test of reasonableness

Post by stopbailiff » 15 Sep 2016 12:46

Justanotherperson wrote:Michelle, the regulations are applicable before, during or after any contract or service has been entered into/agreed, so it would cover instances for example, bailiffs and debt collectors hence the 2014 amendments to the regulations and thus provided for civil redress - prior to this date there was no redress for the consumer other than reporting to trading standards who would decide whether to take enforcement action.

Undue influence by definition is very wide and further guidance on the 2014 regs makes this clear they were specifically amended to allow for an action to be brought even if it is the agent who is conducting the aggressive practices. I am not sure I can agree with you on the undue influence point being an element of any enforcement, if that is the current practice then all the more to challenge it.

The regulations define a consumer as a person who is not acting in the course of business, so unless the debtor was parking in the course of business, they fall within the definition. Regardless of whether there is a contract between the third party and the bailiff who is instructed, they are still treated as the trader for the purposes of the regulations.

Like I said, just a suggestion as a potential argument but by no means guaranteed.
Undue influence is a likely to be an influence so strong that it will to some extent conflict with their normal rights and interests to their serious detriment. So, in my view it's not how the term is defined but rather its effect on the person. I studied undue influence in contract law and Wills' law.

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#31 Re: Test of reasonableness

Post by stopbailiff » 15 Sep 2016 12:48

jasonDWB wrote:I have a client with 5 unpaid PCN's, she admits them but didnt deal with them buried her head in the sand, infant chldren, lives with mum and on benefits, hardship etc..

Bailiff demanding £1500 (I haven't done a detailed assessment yet) and has clamped the car. The car needs a gearbox (Clutch OK but stuck in neutral) and cannot be driven, but the bailiff is unaware.

Client has offered a controlled goods agreement, and pay the demand according to a schedule is £70 a month until everything is paid off including 5 x £75 and £235 enforcement stage fee, at £70 a month.

Bailiff is refusing and wants to charge a sale stage fee and storage fees by removing the vehicle.

Schedule 12 doesn't dictate which order the four powers under Paragraph 16(1) the bailiff must follow.

Question:

  • Can the client bring an action because the client offered a CGA but instead, took a step to load the client with storage fees when he could anyway, take that step if the CGA was breached.
I'd like to bring this proceeding so others can follow when the debtor wants to pay but needs more time.

Comments anyone?
Jason, if the woman is vulnerable in some way it may be grounds to stop the bailiff action. Who employed the bailiff as agent, I suppose is the first question to ask.

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#32 Re: Test of reasonableness

Post by Pote Snitkin » 15 Sep 2016 12:55

stopbailiff wrote: Jason, if the woman is vulnerable in some way it may be grounds to stop the bailiff action. Who employed the bailiff as agent, I suppose is the first question to ask.
Drocca, the OP has had the car taken and the vulnerability route is a no-go. Read the previous posts before posting.
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#33 Re: Test of reasonableness

Post by stopbailiff » 15 Sep 2016 13:15

The vulnerability route is the only way any action can be stopped. So, I do not understand the premise.

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#34 Re: Test of reasonableness

Post by Schedule 12 » 15 Sep 2016 13:16

stopbailiff wrote:
Jason, if the woman is vulnerable in some way it may be grounds to stop the bailiff action. Who employed the bailiff as agent, I suppose is the first question to ask.
Its Marston and a council, but being vulnerable doesn't revoke enforcement. Only postpones it.

I couldn't find anything in Schedule 12 to get her off the hook. The bailiff has followed the law.

I just wanted to know whether rejecting a offer of installments is unreasonable and an action can be brought to recover the excess charges above the ones otherwise payable if the CGA option was exercised.
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#35 Re: Test of reasonableness

Post by Pote Snitkin » 15 Sep 2016 13:18

stopbailiff wrote:The vulnerability route is the only way any action can be stopped. So, I do not understand the premise.
Vulnerability stops any action?

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