Test of reasonableness, Increasing the amount outstanding after enforcement has been completed.

Justanotherperson
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#36 Re: Test of reasonableness, Increasing the amount outstanding after enforcement has been completed.

Post by Justanotherperson » 19 Sep 2016 15:46

Well ultimately, the criminal route does carry some form of expense, just a little confused by what you mean by an arrest warrant to bring the suspect to answer information.

Are you referring to laying of information which the person can obtain a summons requiring the accused to attend court on a fixed date to answer information or have an arrest warrant issued for the same?

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#37 Re: Test of reasonableness, Increasing the amount outstanding after enforcement has been completed.

Post by Schedule 12 » 19 Sep 2016 15:51

Section 1 of the Magistrates Courts Act 1980. The JP does the rest and has the CPS prosecute it.

Most suspects don't attend a fixed date. That requires an arrest warrant.
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#38 Re: Test of reasonableness, Increasing the amount outstanding after enforcement has been completed.

Post by stopbailiff » 19 Sep 2016 16:51

Justanotherperson wrote:Stopbailiff, your spouting so much drivel its beyond belief. There is a thing as civil fraud i.e. fraudulent misrepresentation (but also covers other causes of action) Para. 80 of Eco 3 Capital v Ludsin Overseas:

"It is quite true, as the appellants point out, that the judge does not expressly state:
"I find that there was an intention to deceive."
This is not a mantra which the judge must recite before holding a defendant liable for the tort of deceit. That tort can equally well be described as fraudulent misrepresentation. Regardless of what label is applied, the defendant will be liable if the four ingredients set out above are established. On the judge's findings of fact those four ingredients have been established in this case."

There does not always need to be a contract for fraudulent misrep although it is usual. You are also wrong about the remoteness of damage, it is not applicable in deceit cases and the claimant can be awarded damages/losses that would ordinarily be too remote.
Drivel...do you have to react so emotionally, can you not persuade your view reliant on points of law without resorting to ad hominem. I studied contract law, criminal law, Tort law, and relevant Commercial transaction law. I cited Poole because this was the main textbook on the contract course. Lunny & Oliphant provided the Tort text; Elliot and Woods (2013), the criminal law and case text. Sealy and Hooley, the Commercial law, case, and materials' text. So, how is this drivel? This stuff that you're quoting comes under Poole's Contract law at Chapter 14 Misrepresentation.

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#39 Re: Test of reasonableness, Increasing the amount outstanding after enforcement has been completed.

Post by Justanotherperson » 19 Sep 2016 17:01

It's drivel because you are incorrect. You might want to also look at Street on Torts and Clerk and Lindsell on Torts under the heading deceit / misrepresentation.

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#40 Re: Test of reasonableness, Increasing the amount outstanding after enforcement has been completed.

Post by stopbailiff » 19 Sep 2016 17:21

2 UNDISCLOSED AGENCY

(a) Relations between principal and third party

(i) The general rule:

- Siu Yin Kwan v Eastern Insurance Co Ltd [1994] 2 AC 199, Privy Council

"(b) Relations between agent and third party

(i) The general rule:

- Montgomerie v United Kingdom Mutual Steamship Association
[1891] 1 QB 370, Queen’s Bench Division."

(ii) When will the agent be liable on the contract made on behalf of his principal?

Contracts in writing:

- Universal Steam Navigation Co Ltd v James McKelvie & Co [1923] AC 492, House of Lords

(iv) Breach of warranty of authority:

Fraudulent representation cases:

- Buckley LJ, in Yonge v Toynbee [1910] 1 KB 215, Court of Appeal

- Lord Hoffmann, in Standard Chartered Bank v Pakistan National Shipping Corporation (Nos 2 and 4) [2002] UKHL 43,

(Sealey and Hooley, at p.160).

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#41 Re: Test of reasonableness, Increasing the amount outstanding after enforcement has been completed.

Post by stopbailiff » 19 Sep 2016 17:41

Justanotherperson wrote:It's drivel because you are incorrect. You might want to also look at Street on Torts and Clerk and Lindsell on Torts under the heading deceit / misrepresentation.
Do you know how much a case like this would cost? Do you know how difficult it would be to prove? Do you know the prospects of the op being forced into more debt by a costs' order, or wasted costs' order against their lawyer?

"519. Deceit.

On proof of the following matters a claim in tort (often called an 'action of deceit') is maintainable for
damages in respect of fraudulent misrepresentation at the suit of the person to whom the representation is
made1:
(1) that the alleged representation consisted of something said, written or done which amounts in law to a representation2;
(2) that the defendant was the person who made the representation3;
(3) that the claimant was the person to whom the representation was made4;
(4) that the representation was false5;
(5) that the representation was a material inducement to the claimant to act on it6;
(6) that the claimant in fact altered his position by it7;
(7) that the representation was fraudulent8; and
(8) that the claimant thereby suffered damage9."

There are clearly several elements to this tort. Please don't call what am posting drivel.

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#42 Re: Test of reasonableness, Increasing the amount outstanding after enforcement has been completed.

Post by Justanotherperson » 19 Sep 2016 20:54

Why would there be a costs order if there are reasonable grounds for deceit? There are 4 ingredients to a claim for fraudulent misrepresentation as I've explained and providing those ingredients are satisfied then an action will be found. Just because one element might be considered missing or the judge overall does think that there was any deceit does not automatically mean that a costs order will be granted. They are reserved for those with vexatious and hopeless claims, each person has a right to a fair trial without the threat of an adverse costs order against them, especially under the small claims track.

I call it drivel because you initially said that there's no such thing as a civil fraud, but here you are chatting about fraudulent misrepresentation... You also suggested malicious prosecution on the basis that if the fraud could not be proved, yet for malicious prosecution to occur there has to be no reasonable or probably cause of action. So again, if some of the elements are found to be true bt others are not, that does not give rise to a claim for malicious prosecution - there has to be Malice for a start e.g. An intention to cause deliberate harm

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#43 Re: Test of reasonableness, Increasing the amount outstanding after enforcement has been completed.

Post by stopbailiff » 20 Sep 2016 09:20

No, costs' orders don't work like that....lawyers cost lots of money...they will make a claim for costs as soon as the claim is made for the tort. It's not just a case of a vexatious litigant. Any type of tort would do, for losses; it does not have to be tort via deceit. No, fraud = criminal, so there has to be a criminal element of fraud to satisfy the criteria for 'fraudulent' representation. See (7), as above.

This is not the same as saying 'civil fraud'...there may be a civil action: tort: but for the tort of deceit, there at least has to be criminal proceedings or fraud made out on the facts. Fraud is simply hard to prove. The Enforcement Agency's defence will argue that it wasn't fraudulent representation but in fact a mistake (a criminal law defence), by 'innocent representation.' Reasonable is very subjective, put yourself in a lawyer's shoes. If the enforcement agent uses a lawyer and no doubt they would, why wouldn't they, the client will want their money back.

A lawyer will argue it was malicious....if it benefits their client, if there's a remote possibility. Playing devil's advocate: 'my client is merely undertaking their job with the benefit that statute (statutory function) affords him. Notwithstanding this, the Bailiff industry since TCEA 2007 has simply been reshaped to be the respected profession that this country cannot do without. There is no evidence save anecdotal, to suggest that Enforcement Agents are not professionals in their approach. Parliament clearly recognised the requirement for bailiffs - it's a job that needs doing but only some individuals could in fact do, obviously owing to the emotional trauma, for example where necessary evicting families or taking their goods. If my client were to be sued for this tortious deceit as per the claimant's statement, it would simply create an impediment to the Enforcement Agency, which is course is necessary to preserve and certainly not to impede the current economy.

It's clearly obvious furthermore the current economy is unstable/ volatile, owing to the complications of the Br-exit effect, however, at some point there will be a fall-out indeed, where persons in this harsh but true reality will not be able to retain their property and so the enforcement agents will have to undertake the necessary deed, to in fact keep the economy buoyant. It will be a case of the American model, that is property and goods (assets) will require rapid disposal so the market doesn't crash. Without the Enforcement Agency, the courts will be blocked and important resources will be diverted elsewhere, to defend claims against the Enforcement Agents where any Tom, Dick, or Harry will argue a point of law or point of fact, which will be a never ending process, and the potential for the market to simply crash. My client may in fact owe a statutory or even a common law duty of care to whomever were he to cross their path, or he theirs, but this simply does not mean that a breach is inevitable. A good lawyer will argue along these lines.

Why do lots of LIPs lose their case, is it because they're legally incompetent, not necessarily, but they don't understand the court system. The lawyers make them look stupid, so that they're not credible.

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#44 Re: Test of reasonableness, Increasing the amount outstanding after enforcement has been completed.

Post by Justanotherperson » 20 Sep 2016 09:52

There does not have to be criminal proceedings for deceit, it is a civil action not a criminal one, so again you are wrong. The House of Lords have already confirmed on a number of times and more recently in 2009 that there is only one standard of proof in a civil claim, and that is the balance of probabilities. You do not need to bring criminal proceedings before you can bring a claim for deceit.

Who cares if lawyers cost lots of money, if someone wants to hire a lawyer for an action in the small claims route then he ought to understand that he will not recover costs as they are limited. That is the whole purpose of this track, for those who want to bring a claim under a certain amount without the fear of having costs against them. and the only time the court should really exercise discretion and award costs against a party, is when there is unreasonable conduct and/or vexatious or frivolous claims being brought, otherwise the normal costs rules apply.

And for innocent misrepresentation to apply, they need to prove that they honestly believed the statement was true, which I would say puts the bailiffs in a catch 22. If they claim it was on the system then surely they will have a claim against them that car was sold at a massive undervalue or if they don't then an action for fraud will be found. I find it difficult to not disapprove any recorded evidence which they confirmed twice that the car was sold at £56, there would have been an opportunity to check the system and verify that this was accurate or inaccurate and the person from the bailiff company is at least reckless on that part when he could have taken steps or measures to find out if the statement was true.

Malicious prosecution requires 2 elements: (1) proceedings were brought without reasonable and probable cause, and (2) the claimant had brought the proceedings maliciously.

Limb 1 is satisfied if there was no proper case to bring i.e. vexatious claim and limb 2 is satisfied if the claim was brought in the claimant's knowledge that there was no actual foundation to the claim.

So clearly, if the debtor is told a car is sold for X when it sold for much more, and the creditor says you still owe Y, and the debtor relies on this which causes loss to him then that is reasonable and probable cause and fails the first limb on malicious prosecution, it also fails the second limb because there is a cause of action.

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#45 Re: Test of reasonableness, Increasing the amount outstanding after enforcement has been completed.

Post by stopbailiff » 20 Sep 2016 11:43

Even a court application costs around £255. The claim at best is what around, £500. This is a drop in the ocean to lawyers with liability insurance, is what you're not appreciating. The Enforcement Agent could counter sue for defamation.' Is there a precedent for suing an enforcement agent? If not, start at the Donoghue v Stevens, or Caparo's test: proximity, breach, public interest. Have you studied law, may I ask? The value is so low that no lawyer would take this on any basis. With the potential for so many counter claims, it's just not worth the risk.

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#46 Re: Test of reasonableness, Increasing the amount outstanding after enforcement has been completed.

Post by Michelle » 20 Sep 2016 12:47

stopbailiff wrote: It's clearly obvious furthermore the current economy is unstable/ volatile, owing to the complications of the Br-exit effect, however, at some point there will be a fall-out indeed, where persons in this harsh but true reality will not be able to retain their property and so the enforcement agents will have to undertake the necessary deed, to in fact keep the economy buoyant. It will be a case of the American model, that is property and goods (assets) will require rapid disposal so the market doesn't crash.
A very interesting theory, but how does it apply to the issue of reasonableness discussed here? The client's car was sold to recover a debt, not to avoid a crash in the market, whatever market that may be. :roll:
stopbailiff wrote:Without the Enforcement Agency, the courts will be blocked and important resources will be diverted elsewhere, to defend claims against the Enforcement Agents where any Tom, Dick, or Harry will argue a point of law or point of fact, which will be a never ending process, and the potential for the market to simply crash. My client may in fact owe a statutory or even a common law duty of care to whomever were he to cross their path, or he theirs, but this simply does not mean that a breach is inevitable. A good lawyer will argue along these lines.
A lawyer will not argue using purey hypothetical assumptions based on something that may not even happen, such as a "market crash" at some future date triggered by events we know nothing about. What market are we talking about here? The stock market? The used car market? :? Courts work on evidence and solid facts.
stopbailiff wrote:Why do lots of LIPs lose their case, is it because they're legally incompetent, not necessarily, but they don't understand the court system. The lawyers make them look stupid, so that they're not credible.
LIPs lose for many reasons, but lack of understanding of the court system isn't the most common. You don't need to know the ins and outs of the judiciary and the appeals and precedent hierarchy to bring or defend a claim. You need to know what is a valid cause of action as a claimant or a valid defence as a defendant and also know how to make your points. Judges are not specialists in every area of law, nor are they familiar with every single schedule, section, article and paragraph. You often need to make them aware of what a certain item of legislation says. When it comes to case law, most LIPs wouldn't have a clue where to begin. Lawyers who deal in similar matters on a daily basis will know exactly where to go. That is the difference.
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#47 Re: Test of reasonableness, Increasing the amount outstanding after enforcement has been completed.

Post by Michelle » 20 Sep 2016 12:55

stopbailiff wrote:Even a court application costs around £255. The claim at best is what around, £500. This is a drop in the ocean to lawyers with liability insurance, is what you're not appreciating. The Enforcement Agent could counter sue for defamation.
Defamation? For bringing proceedings against them? If that was the case, every individual or company who has had a claim issued against them and has been discontinued or the claimant has lost would be suing for defamation.
Enforcement agents already have a bad reputation amongst the majority of the population, it could hardly get much worse as a result of what one debtor has to say. Furthermore, there is the requirement for financial loss as a result of the alleged defamation, and what damages would they expect a debtor in that position to be able to pay? Even if they had a cause of action, they just wouldn't bother.
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#48 Re: Test of reasonableness, Increasing the amount outstanding after enforcement has been completed.

Post by stopbailiff » 20 Sep 2016 13:55

A lawyer will use rhetoric... if it gets his client the remedy he wants. It's still a public interest argument to protect bailiffs. I didn't say I agreed with it, I was just playing devil's advocate, so to speak.

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#49 Re: Test of reasonableness, Increasing the amount outstanding after enforcement has been completed.

Post by stopbailiff » 20 Sep 2016 13:57

If the debtor couldn't pay the damages... they'd likely put a charge on their home (if they owned it). Even for legal aid now, there is a caveat for a property charge.

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#50 Re: Test of reasonableness, Increasing the amount outstanding after enforcement has been completed.

Post by stopbailiff » 20 Sep 2016 13:59

An LIP could visit any central library in their city and immediately access Halsburys Laws, which is provided in a concise manner. They could literally find anything they desire.

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#51 Re: Test of reasonableness, Increasing the amount outstanding after enforcement has been completed.

Post by Michelle » 20 Sep 2016 14:12

stopbailiff wrote:A lawyer will use rhetoric... if it gets his client the remedy he wants. It's still a public interest argument to protect bailiffs. I didn't say I agreed with it, I was just playing devil's advocate, so to speak.
Rhetoric based on facts. One thing is to twist and turn the facts to your/your client's advantage, which is precisely what lawyers get paid to do, another is to put forward speculative theories.
stopbailiff wrote:If the debtor couldn't pay the damages... they'd likely put a charge on their home (if they owned it). Even for legal aid now, there is a caveat for a property charge.
Yes, I'm familiar with charging orders, however, an enforcement company would hardly waste time and resources suing a debtor for defamation for the sake of obtaining a charge on their property. It's just not worth it and they wouldn't do it just for the sake of revenge against the debtor so to speak. Proper businesses make commercial decisions as opposed to pursuing personal vendettas against anyone who dares to criticise or challenge them. They leave that sort of behaviour to wannabe celebrities. ;)
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#52 Re: Test of reasonableness, Increasing the amount outstanding after enforcement has been completed.

Post by stopbailiff » 20 Sep 2016 14:27

Of course they would....if the party is not worth suing, ie the worker, they'd sue the employer (vicarious liability, for instance for a personal injury matter). If the party has property, land, the lawyer will get a charge on the property, and obtain interest on it, with a view to ask the court for an Order of sale. How else would they pay their expensive lawyer's costs?

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#53 Re: Test of reasonableness, Increasing the amount outstanding after enforcement has been completed.

Post by Michelle » 20 Sep 2016 14:34

stopbailiff wrote:Of course they would....if the party is not worth suing, ie the worker, they'd sue the employer (vicarious liability, for instance for a personal injury matter).
You were talking about defamation, how many cases do you know involving enforcement companies suing debtors for defamation?
stopbailiff wrote:If the party has property, land, the lawyer will get a charge on the property, and obtain interest on it,
A lot of people facing bailiff action don't even own any property. Not everyone is a homeowner.
stopbailiff wrote:with a view to ask the court for an Order of sale. How else would they pay their expensive lawyer's costs?
I play the Lotto with a view to win the jackpot but, so far, I haven't.

Orders for sale are hardly ever granted by the courts against family homes as opposed to commercial property.
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#54 Re: Test of reasonableness, Increasing the amount outstanding after enforcement has been completed.

Post by stopbailiff » 20 Sep 2016 14:52

What am saying, if the debtor tries to sue the EA, don't be so surprised if the creditor/ lawyer/ Marston's / whomever, surprises with a nice counter claim, be that defamation or anything else. If the person has property, they could have a charge put on it. The courts are clamping down now, one such thing is employment tribunals and costs' orders or time prep etc. Defamation does not require an EA precedent, it just requires defamation precedents, where there are plenty. Orders for Sale are rarely granted, true, but they acquire interest over the years, they restrict the home owner from moving, unless the debt is paid first. A charge also survives the debtor's bankruptcy and is a main commercial law remedy, and although a Guarantee (by a bank etc) survives the debtor's bankruptcy, it makes no difference if the person is insolvent. The charge however is real security.

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#55 Re: Test of reasonableness, Increasing the amount outstanding after enforcement has been completed.

Post by Michelle » 21 Sep 2016 11:18

stopbailiff wrote:An LIP could visit any central library in their city and immediately access Halsburys Laws, which is provided in a concise manner. They could literally find anything they desire.
I doubt the majority of the UK population would have heard about Halsbury’s Laws to start with, and even if they had, they wouldn't know what to search for, let alone how to apply it to their particular case. :(

No offence intended, but a lot of the people who have to deal with bailiffs can barely speak English, they are often recent immigrants, poorly educated people or individuals with mental health problems, suffering after family break-up, etc. and those were the reasons why they got into trouble in the first place and/or were not able to deal with the debts before they reached the enforcement stage. :cry:

I can just imagine what would happen if someone turned up in court quoting snippets from Halsbury's Laws they don't understand at all nor apply to the matter in question, they would make a similar impression to those who have been using the FMOTL route and asking for "deeds of novation" without having the faintest idea what a deed is, let alone the meaning of "novation" and how it relates to their case. :shock:
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#56 Re: Test of reasonableness, Increasing the amount outstanding after enforcement has been completed.

Post by Michelle » 21 Sep 2016 11:27

stopbailiff wrote:What am saying, if the debtor tries to sue the EA, don't be so surprised if the creditor/ lawyer/ Marston's / whomever, surprises with a nice counter claim, be that defamation or anything else.
A bailiff company suing for defamation, that would make front page news! You are more likely to be sued by a consumer forum! ;)
stopbailiff wrote:If the person has property, they could have a charge put on it. The courts are clamping down now, one such thing is employment tribunals and costs' orders or time prep etc.
What are the courts clamping down on? Employment Tribunals are separate from the courts and your average ET claimant wouldn't want a charge on the employer's property but a more liquid asset (hard ca$h).
stopbailiff wrote:Defamation does not require an EA precedent, it just requires defamation precedents, where there are plenty. Orders for Sale are rarely granted, true, but they acquire interest over the years, they restrict the home owner from moving, unless the debt is paid first. A charge also survives the debtor's bankruptcy and is a main commercial law remedy, and although a Guarantee (by a bank etc) survives the debtor's bankruptcy, it makes no difference if the person is insolvent. The charge however is real security.
I'm aware of all this but have not come across many people who have charges on their properties in favour of bailiff companies as a result of being sued by them for defamation. You must admit this scenario is academic if not purely fictitious.
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#57 Re: Test of reasonableness, Increasing the amount outstanding after enforcement has been completed.

Post by stopbailiff » 21 Sep 2016 11:29

They have legal librarians who tell them which Halsbury sources/ text to use, which Volume etc. For a case, they don't need to cite Halsbury, the only legal source required is the case's name, and citation, ie EWCA (Court of Appeal)/ EWHC (High Court), and court number. I mainly had online databases such as Westlaw and Lexis Library, with the OU. However, there is a wealth of legal sources in the city's central library. This It's good to have an idea of the law if it's feasible for the person, is all am saying. It's not a perfect source for everyone but at least it's real law, rather than CAB diluted law.

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#58 Re: Test of reasonableness, Increasing the amount outstanding after enforcement has been completed.

Post by stopbailiff » 21 Sep 2016 11:40

if the person cannot afford to pay costs, and they possess property/ land/ homes, even where a Conditional Fee Agreement (CFA) fails, there's still a prospect the lawyers will for a charge. It's simply a commercial law remedy and is the most secure (security) remedy I know of. Is it underhand/ unfair, yes of course, but someone has to pay for the lawyers' time, through conventional means or underhand tactics. Some commercial lawyers are so far right if it were up to them they wouldn't permit consumers any rights whatsoever. Welcome to staunch capitalism, as Marx would say.

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#59 Re: Test of reasonableness, Increasing the amount outstanding after enforcement has been completed.

Post by Dizzychick » 17 Dec 2016 14:39

I'm sure you know that when a person is LIP, the Judge is obliged to explain points of law and generally assist, although not make a case for them, as are opposing counsel/solicitor (less of a duty as a solicitor) as the LIP is not trained in law and therefore must not be disadvantaged. Rarely works in practice, have to say, but that is the overriding principle

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