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

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

Post by Schedule 12 » 15 Sep 2016 13:38

A client had a vehicle taken by Newlyn for an unpaid PCN

The warrant of control is for £202

The vehicle was ANPR’d out of the blue. The PCN is not disputed.

I spoke to Newlyn in a recorded call and they sold the vehicle for £56.

They now say the amount outstanding is £560 and later increased that to £587.

I spoke to the vendor, a Mr Sanders, he said he was entitled to retain his auctioneers costs from the proceeds.

The vehicle was sold on Ebay for £601. Mr Sanders was the vendor and not the auctioneer. His only disbursement is the Ebay sellers fee is the standard£10 for a vehicle auction.

The client doesn’t want to bring a detailed assessment. He wants to use the small claims track because the risk of Newlyn’s MO of misleading a court about the true nature of a point of law or making an error of fact. He wants to be LIP so the court advocates for him.

I can’t find anything on Paragraph 66 that enables an action to be brought for a bailiff increasing the amount outstanding after taking and selling a vehicle to pay the debt. Fraud by making a false representation is not civil law.

Newlyn has not restarted action. They don't know the vehicle has been found and has damage not there before it was taken, but this anly provides a Paragraph 35 claim.

Does anyone have any suggestions on what I can give the client?
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#2 Re: Test of reasonableness, Increasing the amount outstanding after enforcement has been completed

Post by Justanotherperson » 15 Sep 2016 20:56

Can you clarify two things:

You said the client doesn't wish to use small claims court but wants to be a LIP, how does that work?

You said there is no civil equivalent of fraud by false representation, but there is and it's called the tort of deceit - unless that's not what you meant

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

Post by Justanotherperson » 15 Sep 2016 20:57

Sorry forget the small claims bit, I misread the post. Derry v Peek is the case on deceit which is fraudulent misrepresentation. It's deliberate or reckless/careless as to the false statement and is judged by the civil standard not a criminal standard.

If you need more info about it let me know.

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

Post by Michelle » 15 Sep 2016 21:03

Justanotherperson wrote: You said the client doesn't wish to use small claims court but wants to be a LIP, how does that work?
LIP = Litigant In Person, without legal representation. The small claims track is largely intended for unrepresented people (LIPs).

What makes your client think the court will advocate for him just because he is a LIP? The court has to remain neutral.
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#5 Re: Test of reasonableness, Increasing the amount outstanding after enforcement has been completed.

Post by Justanotherperson » 15 Sep 2016 21:32

Michelle wrote:
Justanotherperson wrote: You said the client doesn't wish to use small claims court but wants to be a LIP, how does that work?
LIP = Litigant In Person, without legal representation. The small claims track is largely intended for unrepresented people (LIPs).

What makes your client think the court will advocate for him just because he is a LIP? The court has to remain neutral.
I know what LIP is I just misread the post thinking why does he want to represent himself if he does t want to go down the small claims route! But yes I agree the court can't be biased just because he's a LIP.

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

Post by Michelle » 15 Sep 2016 21:59

Justanotherperson wrote: I know what LIP is I just misread the post thinking why does he want to represent himself if he does t want to go down the small claims route! But yes I agree the court can't be biased just because he's a LIP.
Sorry, started reading your first response and didn't see your other post before posting this. :oops:
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#7 Re: Test of reasonableness, Increasing the amount outstanding after enforcement has been completed.

Post by Pote Snitkin » 15 Sep 2016 22:07

Ebay motor fees are £10 listing fee, plus 1% of the selling price with a minimum of £20. If Paypal is used there's another (I think) 3.4% + 20p.

Re the price, part 66 of the national standards must come into play:
  • Enforcement agents should take all reasonable steps to satisfy themselves that
    the value of the goods taken into control to cover the sum outstanding is
    proportional to the value of the debt and fees owed.
I don't understand - did the car sell for £601 or £56?
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#8 Re: Test of reasonableness, Increasing the amount outstanding after enforcement has been completed.

Post by Schedule 12 » 15 Sep 2016 22:40

Pote Snitkin wrote:Ebay motor fees are £10 listing fee, plus 1% of the selling price with a minimum of £20. If Paypal is used there's another (I think) 3.4% + 20p.
A1 Environmental Ltd does not use paypal. It uses card machine.
Pote Snitkin wrote:
I don't understand - did the car sell for £601 or £56?
Newlyn: £56
Ebay: £601
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#9 Re: Test of reasonableness, Increasing the amount outstanding after enforcement has been completed.

Post by Michelle » 15 Sep 2016 22:42

Pote Snitkin wrote:Ebay motor fees are £10 listing fee, plus 1% of the selling price with a minimum of £20. If Paypal is used there's another (I think) 3.4% + 20p.
PayPal fees depend on volume:
Merchant Rate fee table
Your monthly sales Transaction fee
Up to £1,500 3.4% + 20p
£1,500.01 - £6,000.00 2.9% + 20p
£6,000.01 - £15,000.00 2.4% + 20p
£15,000.01 - £55,000.00 1.9% + 20p
Pote Snitkin wrote: Re the price, part 66 of the national standards must come into play:
  • Enforcement agents should take all reasonable steps to satisfy themselves that
    the value of the goods taken into control to cover the sum outstanding is
    proportional to the value of the debt and fees owed.
I don't understand - did the car sell for £601 or £56?
Was wondering the same thing, I thought Newlyns had said £56 but Mr Sanders, who listed the car on eBay, had said £601, hence the element of fraudulent misrepresentation by Newlyns.
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#10 Re: Test of reasonableness, Increasing the amount outstanding after enforcement has been completed.

Post by Pote Snitkin » 15 Sep 2016 22:56

jasonDWB wrote: Newlyn: £56
Ebay: £601
Why on earth would they think they could lie about it? Newlyn are definitely saying it sold for just £56?

You sure they're not saying there was £56 remaining after fees have been deducted? It seems completely idiotic to claim it sold for such a low price when it can be so easily checked.

Was it a Ford Focus?
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#11 Re: Test of reasonableness, Increasing the amount outstanding after enforcement has been completed.

Post by Schedule 12 » 16 Sep 2016 08:07

I recorded the call and the Newlyn said the sold the car for £56. I asked them again to be sure. They only commented it was sold at auction and couldn't say where.

I didn't tell Newlyn the client found it on Ebay.

Client wants to go in small claims track so I'll give him the 'Mr Bennison/Peter Bailiff-can-take-my-hire-purchase-car Modus Operandi' pack to go in his witness statement. That is to make the court aware that Peter will be defending and has a history of encouraging risky enforcement, make snide digs about me personally, saying things like a sale of a car is a 'sham' and a hirer has beneficial interest in goods, etc.
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#12 Re: Test of reasonableness, Increasing the amount outstanding after enforcement has been completed.

Post by Michelle » 16 Sep 2016 10:51

There is no such thing as wanting to "go in small claims track". Claims are allocated by the court mostly according to their value, if under £10k they go to small claims unless they are very complex which would be unusual. The obvious advantage of the small claims track is that there is very little potential for costs against you.

If your client wants to bring a claim for damages, it has to be set out properly to show financial loss. Ideally there should be a written statement saying how much they realised from the car and why they argue £587 is still outstanding after the sale of the car. What would be the grounds for the claim? That Newlyns sold the car for peanuts or that they misrepresented the amount realised from the car? If the latter, they'll need evidence from the eBay "auctioneer" as well.

Peter's character and history isn't the key, your client needs to build a strong case that stands up by itself. If this wasn't a HP car, then Peter's views on beneficial interest are not likely to be relevant to the case.
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#13 Re: Test of reasonableness, Increasing the amount outstanding after enforcement has been completed.

Post by Schedule 12 » 16 Sep 2016 12:18

The Peter Bailiff-can-take-my-hire-purchase-car kit is give evidence and pre-notify the claimant and the court his MO is to encourage risky enforcement then mislead the court when defending the claim that follows.

In this case, its expected he will try to convince the judge that I lied about speaking to Newlyn, or say the eBay listing is a "sham". The client can play the recording aloud on a device.

The client might go to a local solicitor. Many clients do and its the local solicitor that consults me. I can just sell him a Lawsuite subscription and give the client's .xml file from DWB and evidence bundle and he compile his own court documents.
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#14 Re: Test of reasonableness, Increasing the amount outstanding after enforcement has been completed.

Post by Michelle » 16 Sep 2016 12:30

A solicitor will want to be paid and, in the small claims track, your client will have no recourse to costs. The sums involved are very small to make it worthwhile paying a solicitor. How much is he thinking of claiming in damages? The difference between the quoted sale price (which was a joke) and the eBay sale price is under £600. A solicitor would easily swallow that up in fees. Not long ago I was quoted £450 just for a consultation. :o
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#15 Re: Test of reasonableness, Increasing the amount outstanding after enforcement has been completed.

Post by Michelle » 16 Sep 2016 12:32

jasonDWB wrote: In this case, its expected he will try to convince the judge that I lied about speaking to Newlyn, or say the eBay listing is a "sham". The client can play the recording aloud on a device.
Isn't there any written evidence of this? Can't he get a written statement saying how much they sold the car for? The eBay listing, even if ended, would still be available to print off.
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#16 Re: Test of reasonableness, Increasing the amount outstanding after enforcement has been completed.

Post by Pote Snitkin » 16 Sep 2016 12:46

You can see the completed listings - member baldrick333
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#17 Re: Test of reasonableness, Increasing the amount outstanding after enforcement has been completed.

Post by Schedule 12 » 16 Sep 2016 12:53

That's not how the client searched it.

I made a program on the backend of DWB case management system to monitor ebay for client's vehicles and emails the client when its is listed. I based it on a free open source eBay sniper script. It doesn't yet scan Auto trader and others. I haven't had time to program the software. Thats still done manually.
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#18 Re: Test of reasonableness, Increasing the amount outstanding after enforcement has been completed.

Post by Michelle » 16 Sep 2016 15:33

Pote Snitkin wrote:You can see the completed listings - member baldrick333
I can't see anything sold for £601 :? there is a Ford Focus for £1,601: http://www.ebay.co.uk/itm/2009-FORD-FOC ... Sw-KFXf4Hb
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#19 Re: Test of reasonableness, Increasing the amount outstanding after enforcement has been completed.

Post by Schedule 12 » 16 Sep 2016 15:43

I think it'll be over 30 days. I only took it as a new client a couple of days ago.
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#20 Re: Test of reasonableness, Increasing the amount outstanding after enforcement has been completed.

Post by Pote Snitkin » 16 Sep 2016 15:54

The only one that came close was a Focus for £609.01
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#21 Re: Test of reasonableness, Increasing the amount outstanding after enforcement has been completed.

Post by Michelle » 16 Sep 2016 16:19

jasonDWB wrote:I think it'll be over 30 days. I only took it as a new client a couple of days ago.
It goes back to June 19th.
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#22 Re: Test of reasonableness, Increasing the amount outstanding after enforcement has been completed.

Post by stopbailiff » 18 Sep 2016 10:12

Justanotherperson wrote:Sorry forget the small claims bit, I misread the post. Derry v Peek is the case on deceit which is fraudulent misrepresentation. It's deliberate or reckless/careless as to the false statement and is judged by the civil standard not a criminal standard.

If you need more info about it let me know.
Hello, Justanotherperson

I think you got confused with negligent misstatement, which is a tort (remedy against a wrong done), at the civil standard, usually. Fraud = criminal, ie Fraud Act 2006. So even if this 1800s case you posted was relevant back then, the law has changed massively. For instance, Reckless = careless. Reckless = criminal intention (mens rea, ie guilty mind), an element, including the criminal act (actus reus, or guilty act), in criminal law, generally. Fraud may or may not require intention. Fraud offences were created where theft was the more difficult offence to prove, so the Theft Act 1968 led to said Fraud Act to extend the theft related offences. Fraud = false misrepresentation (lie), for a gain or another person's loss, in general. Even an attempt of fraud normally is still fraud, whether or not the person goes through with it.

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

Post by stopbailiff » 18 Sep 2016 10:26

I tell you who could be liable for EA (agent), is the Principal their self. Even if a tort were permissible it does not mean it's feasible for these small amounts. However, if they were to self represent (LIP), they could claim the main damages (transaction at an under value), including charging £18/19 per hour for their time to have to bring the case either against the principal creditor and possibly the Enforcement Agent. Only one or the other.

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

Post by Justanotherperson » 18 Sep 2016 18:51

Stopbailliff, I am not confused with negligent misstatement. There is a civil action for fraudulent misrepresentation and that is the tort of deceit, the criteria set out in Derry v Peek was affirmed in a recent Court of Appeal case Eco 3 Capital Ltd v Ludsin Overseas 2013 (para. 77).

Quite often people confuse negligent misstatement with deceit which is a separate cause of action.

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

Post by Michelle » 18 Sep 2016 19:00

Yes, there is such a thing as fraudulent misrepresentation which gives you cause of action for damages in tort and damages and rescision in contract where appropriate. However, for it to be fraudulent, you'd need to show that the misrepresentation was deliberate. A phone conversation where someone said the car had been sold for £56, even if recorded, could be easily explained as a mistake on the part of whoever provided the info over the phone.
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#26 Re: Test of reasonableness, Increasing the amount outstanding after enforcement has been completed.

Post by Justanotherperson » 18 Sep 2016 19:29

It doesn't need to be deliberate, it can be either deliberate or reckless. To prove deceit, it would need to be shown either that they deliberately said it or they were reckless as to the amount stated. For recklessness to apply, it would be enough to show that the person who made the statement suspected it might not be accurate or even failed to make further inquiries as to the amount it had sold for.

I am not aware of a defence of general mistake in misrepresentation claims, but there is innocent misrepresentation. For that to apply though, the person who made the representation must give some evidence that it honestly believed the statement was true.

Not sure how you can easily explain that the car had been sold for £56 was a mistake, certainly reckless in my eyes. Unlike criminal, the standard of proof in civil fraud is the balance of probabilities, so you just need to convince the judge more likely than not based on the evidence.

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

Post by Schedule 12 » 18 Sep 2016 19:35

I asked twice just be sure there is no mistake. The client also heard it - live at it all happened.
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#28 Re: Test of reasonableness, Increasing the amount outstanding after enforcement has been completed.

Post by Michelle » 18 Sep 2016 20:22

Justanotherperson wrote:It doesn't need to be deliberate, it can be either deliberate or reckless. To prove deceit, it would need to be shown either that they deliberately said it or they were reckless as to the amount stated. For recklessness to apply, it would be enough to show that the person who made the statement suspected it might not be accurate or even failed to make further inquiries as to the amount it had sold for.

I am not aware of a defence of general mistake in misrepresentation claims, but there is innocent misrepresentation. For that to apply though, the person who made the representation must give some evidence that it honestly believed the statement was true.

Not sure how you can easily explain that the car had been sold for £56 was a mistake, certainly reckless in my eyes. Unlike criminal, the standard of proof in civil fraud is the balance of probabilities, so you just need to convince the judge more likely than not based on the evidence.
Yes, misrepresentation can be innocent, fraudulent or negligent. I didn't mean that selling the car for £56 was a mistake, what I meant was that they could argue saying that was a mistake. Surely there should be a written statement of some sort... :roll:
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#29 Re: Test of reasonableness, Increasing the amount outstanding after enforcement has been completed.

Post by Schedule 12 » 18 Sep 2016 21:00

He didn't get a notice of sale, which means enforcement fails on paragraph 39,40 of Schedule 12.

The creditor is already on the hook along with other breaches. The client wants to know his options for making a section 1 complaint before a JP for offences section 2 of the Fraud Act and section 993 of the Companies Act 2006.

I can give him a section 1 pack and he can it before a court, but I need to know the test of reasonableness for increasing the amount outstanding by carrying out enforcement regardless whether or not, any provision was breached.
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#30 Re: Test of reasonableness, Increasing the amount outstanding after enforcement has been completed.

Post by Justanotherperson » 19 Sep 2016 13:31

Jason can you confirm exactly which route the client wants to take? Your last post suggests criminal action not civil.

Also, in what way would the client want to bring an action for offences under s.993 CA '06? It's intent is to defraud the company's creditors, and the client is a debtor not a creditor. Even so, this implies that criminal action is to be taken not civil.

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

Post by stopbailiff » 19 Sep 2016 13:38

Michelle wrote:
Justanotherperson wrote:It doesn't need to be deliberate, it can be either deliberate or reckless. To prove deceit, it would need to be shown either that they deliberately said it or they were reckless as to the amount stated. For recklessness to apply, it would be enough to show that the person who made the statement suspected it might not be accurate or even failed to make further inquiries as to the amount it had sold for.

I am not aware of a defence of general mistake in misrepresentation claims, but there is innocent misrepresentation. For that to apply though, the person who made the representation must give some evidence that it honestly believed the statement was true.

Not sure how you can easily explain that the car had been sold for £56 was a mistake, certainly reckless in my eyes. Unlike criminal, the standard of proof in civil fraud is the balance of probabilities, so you just need to convince the judge more likely than not based on the evidence.
Yes, misrepresentation can be innocent, fraudulent or negligent. I didn't mean that selling the car for £56 was a mistake, what I meant was that they could argue saying that was a mistake. Surely there should be a written statement of some sort... :roll:
If the Op were to sue (in tort) for fraudulent misrepresentation but could not prove it, the Enforcement Agent's lawyer could use a counter claim for malicious prosecution (cause of action), that previously only required a criminal element, but is now also a civil cause of action where it's made maliciously. Taking court action against an Enforcement Agent could give rise to a malicious prosecution in the civil context.

Fraudulent misrepresentation is linked to contract law, so 1) it's likely there's a contract; 2), there has to be a representation, 3) it has to be fraudulent. For a comparative context, the Offence Against the Person Act was made law in 1861. Poole's Contract law text at p. 16-18 cites Jacob J. (judge) 'fraudulent representation' test: Thomas Witter Ltd v TBP Industries Ltd [1996] 2 All ER 573.

1) Where is the fraudulent representation? 2) The Op has the burden of proving fraudulent representation in tort. The Op can only claim for actual losses stemming from what was foreseeable by the Enforcement Agent. There is no such thing as civil fraud, it actually means nothing. It's usually a claim where contract exists and the terms were fraudulently misrepresented as in Derry, and in Thomas Witter Ltd [1996]. I think the Enforcement Agent's lawyer would argue, well the applicable law for fraud is the Fraud Act 2006 for the fraudulent element.

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

Post by Schedule 12 » 19 Sep 2016 13:59

Justanotherperson wrote:Jason can you confirm exactly which route the client wants to take? Your last post suggests criminal action not civil.

Also, in what way would the client want to bring an action for offences under s.993 CA '06? It's intent is to defraud the company's creditors, and the client is a debtor not a creditor. Even so, this implies that criminal action is to be taken not civil.
Its a criminal route, and he is not concerned by the money aspect. He knows Newlyn are penny pinchers but he hasn't asked for a civil remedy. He knows that will hit them in the pocket win or lose.

I have not taken his instructions to prepare a prosecution bundle because I don't think the evidence is enough to pass the test of reasonableness and meet the burden of proof for a criminal prosecution.

When a client lays the information before a JP and its dismissed, the case dies. There is no appeal and no further bite at the cherry. It has to be one-shot kill.
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#33 Re: Test of reasonableness, Increasing the amount outstanding after enforcement has been completed.

Post by Justanotherperson » 19 Sep 2016 14:32

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.

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

Post by Justanotherperson » 19 Sep 2016 14:32

P.s. Jason, I agree the criminal route would be difficult but also potentially far more expensive than civil. If anything, the civil route may be a better course of action.

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

Post by Schedule 12 » 19 Sep 2016 14:36

The criminal route doesn't carry any expense. When a JP decides the suspect is to answer the information, an arrest warrant is given to a constable to bring the suspect in to answer the information.

A private prosecution is only when a JP does not accept a case to answer, and hires solicitors to prosecute it privately. I don't do them. I just render the skeleton arguments, assemble the evidence and take statements, then bundle it all up and the client can source a solicitor to action it.
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