HELP! Marstons Removal Notice?

Stop or Suspend Enforcement. Appeal the PCN. Claim Damages for Unlawful Interference with Vehicles.
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sr2014
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#1 HELP! Marstons Removal Notice?

Post by sr2014 » 29 Nov 2016 10:32

Hi,

Thanks in advance for any help you can provide.

The door went this morning, and I answered to a man requesting £600 odd or he would take my car :shock: I asked why, and he said it was for unpaid dart charges from May this year. I asked to see information relating to this and he said he had a warrant. So I asked for the warrant, and he gestured to a tablet in his hand saying it's here. He then said are you going to pay, I said I'm confused, and whatever the case, I don't have that sort of money. He said to ask someone to lend it to me.....?! Cue me saying there is no one and general "what on earth is going on here?" (it's 8am, I'm in my dressing gown, just out of the shower with my baby who'd projectile vomited all over me before then, even less prepared to think clearly) talk, asking who I can call to discuss the matter as this is all new to me, and where is this warrant. Eventually he obliged and showed me the electronic warrant document, but wouldn't give me anything on paper to properly look at (they "never" do that, apparently?) or have for my records. I thanked him for finally showing me that at least, which is when he got a bit shirty, saying I hadn't asked before, and him asking "so are you going to sort it then?" ("sort it" meaning get the money, when asked for clarification). I said I physically cannot pay, so he said my car will be clamped for the next 2hrs then he'll take it away.

So I'm at 2hrs now as I've been juggling said sick baby, calling Dart Charge (they told me to file a TE7 and call this guy back to let him know that's what I'm doing), calling Marstons guy back to tell him this, try to trace payment (can't find one, so and trying to figure out what I'm meant to do next.

I'm confused about all this as I use dart charge several times a year - if I forgot to pay (which it's looking like is what's happened) and I know I've used dart charge 2/3 times (twice each time) since June - nothing's come up about any outstanding amount due any time when I've done my online payments? How is that possible?! And how would I go about settling this now? Ideally with Dart Charge themselves rather than this other group.

Also, the guy from Marstons posted a Removal Notice through letter box, "Despite previous visits and notices this matter has not been settled" - how are they allowed to issue me this when they have never visited me before and I've received no correspondence except this notice? And how do they get a warrant without me knowing it's happening?

Sorry for all the questions, and thanks again. Hoping my car won't be taken, as I'm self employed and it's the only vehicle I can use for my job. And it's got thousands of pounds worth of work materials in there that I can't physically remove with a sick baby in tow :cry:

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Schedule 12
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#2 Re: HELP! Marstons Removal Notice?

Post by Schedule 12 » 29 Nov 2016 12:53

You are the 2nd Dart charge I have had today. This morning, someone complained their car was registered with Dart charge, but when he used the crossing, instead of debiting the charge, they postponed taking the payment and imposed a penalty charge.

They had no choice but to pay, but are recovering it in the small claims track from Highways England. His account was well in credit do I am interested to see why they misfiled the charge.

It appears Highways England send bailiffs first, ask questions later.

The process of obtaining a warrant is the same for traffic debts. Part 75 of the Civil Procedure Rules.

Let's make a start and run the compliance check: http://www.dealingwithbailiffs.co.uk/fo ... p?id=42200

These are some steps you can take to stop a PCN: http://www.dealingwithbailiffs.co.uk/St ... ailiff.htm

And you can take steps to protect yourself in case the bailiff returns: http://www.dealingwithbailiffs.co.uk/Ex ... liffs.html
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sr2014
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#3 Re: HELP! Marstons Removal Notice?

Post by sr2014 » 29 Nov 2016 18:23

Hi, thanks for your reply. Husband's home from work now, and car has been clamped, so I can't move it to private land! I can't find how I file a te7 either (searching on phone, as internet service in my area has been down all afternoon!) and am terrified my car is going to be taken.

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#4 Re: HELP! Marstons Removal Notice?

Post by Schedule 12 » 29 Nov 2016 22:34

This sounds familiar. Did you consult me today? And the fact-find discovered enforcement is a fail on P.7(2), P.11(2) and P.14(6) of Schedule 12.

If not, here is how to appeal a PCN: http://www.dealingwithbailiffs.co.uk/St ... ailiff.htm
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sr2014
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#5 Re: HELP! Marstons Removal Notice?

Post by sr2014 » 30 Nov 2016 11:10

Yes I did. Coming back here for advice going forwards as the car has not been released as yet, and I've also settled the PCNs with dart charge and informed the bailiff of this.

I need access to my car for work (I have a large car which fits all of my equipment in it, so not like I can use public transport), so need to get this sorted asap, as I don't have a safety net or other options work wise! As well as obviously WANTING access to it too.....

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#6 Re: HELP! Marstons Removal Notice?

Post by Schedule 12 » 30 Nov 2016 11:32

If you want to use a rental car. It's all recoverable. Don't spend beyond £10k. Until then you can claim £150 a day and damages for taxis taking the children to school.
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sr2014
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#7 Re: HELP! Marstons Removal Notice?

Post by sr2014 » 30 Nov 2016 17:20

I can't get a hire car with no money, and I'm quite frankly way more confused now than I was yesterday, as I have no idea what is happening with the interpleader claim you said you were filing, whether it holds any legal ground if I haven't filed it myself, and haven't had replies to the texts and emails I've sent throughout today. It also seems that I've lost £215 as I was given incorrect information from Dart Charge, as the 2 PCNs I was told were registered to my vehicle were actually an ADDITIONAL two that had gone to enforcement (so there were FOUR registered to my vehicle which I didn't know about - how is that even possible?!), and they cannot transfer or refund the money that I had to borrow to try and settle the matter. It seems I'm in a much worse position now than I was yesterday, as I have no more options for borrowing money, and that my vehicle will be taken away, rendering me unemployed until I can save up for a replacement vehicle.

Just want this out there as a caution to others who may find themselves in a similar situation. Not so Merry Christmas :xmas_sad:

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#8 Re: HELP! Marstons Removal Notice?

Post by Schedule 12 » 30 Nov 2016 18:10

You cannot file the interpleader claim yet. As discussed yesterday, you must give the bailiff company three days to consider your grounds and look over your evidence.

The creditor, Highways England, has seven days, after that, you can file the application at your home court.

I gave the bailiff company and Highways, England the grounds and evidence yesterday, so to record the time the evidence was given and commencement of the statutory time limits. I have retained a copy of the auto-generates acknowledgement emails from the recipients.

There is also the issue whether the car is situated on land where the debtor lives or carries on trade of business. Yours is an unusual case because, looking at the land registry title plan, your car is parked half and half on your land and land belonging to another.

Its not situated on a highway. I think the court would award a claim under paragraph 66 of Schedule 12 but may divide the total sum claimed by 50%, representing the half of the car that is situated on someone elses land.

I can't get you off a PCN - unless there is an irregularity with the law. In this case, you have three. One if not being given a Notice of Enforcement, but I explained to you that I am uncomfortable about going into court and pleading a case that you have not received a NOE let alone four of them.

I am not sure how you lost £215. Can you explain where you paid £215.

The third irregularity is the bailiff confessing to have not properly recorded the time the NOE was given. He was also obstructive with me about producing evidence of the PCN numbers. This would not stand in the defendant's favour when that is given in evidence.

Have you managed to obtain the PCN numbers? You can appeal them, but I am at a loss on what your appeal grounds are. The crossing incurs a charge and a penalty if the charge is not paid according to a deadline.
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sr2014
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#9 Re: HELP! Marstons Removal Notice?

Post by sr2014 » 30 Nov 2016 19:03

As I've said before, I'm not looking to appeal the pcn's - like I said last night, I looked up the date, found the business trip and have no record of paying the fee, so have obviously crossed and forgotten to pay.

This was what I was attempting to resolve today - paying what I owed to dart charge. If I legitimately owe something, I will of course pay. I'm not looking to work my way out of a valid debt.

The information dart charge gave me this morning was the 2 PCN's on my account, which I duly paid. I then called in the afternoon to ask why the clamp hadn't been released as payment had been made, to be told that I had paid off ANOTHER 2 PCN's on my account that I wasn't aware of and hadn't been told of this am. The 2 that had been passed to enforcement weren't revealed to me this morning when I asked for "the PCN's registered against my vehicle".

So the £215 I paid for the pcn numbers given to me is gone. I would also have paid those, but in a few weeks time when I scrape together some more money, if these are valid too. I am "out of £215" because I cannot move that money to where it was supposed to go to, therefore do not have that £215 to put against what is owed for the PCN's with enforcement.

I was also advised by the courts that the amount owed to dart charge for the enforced PCN's would be more than this amount anyway.

With regards to where the car is parked, it's half on our land and half on council owned land, so I can't see how that could be upheld as both are ok by law, it's just half on mine half on council's.

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#10 Re: HELP! Marstons Removal Notice?

Post by Schedule 12 » 30 Nov 2016 19:25

sr2014 wrote:
The information dart charge gave me this morning was the 2 PCN's on my account, which I duly paid.
Now you must give notice to the bailiff and the company the "amount outstanding" has been paid.

The Template you need is in the pack and called: DebtPaidNotifyBailiffCompany



sr2014 wrote: I then called in the afternoon to ask why the clamp hadn't been released as payment had been made, to be told that I had paid off ANOTHER 2 PCN's on my account that I wasn't aware of and hadn't been told of this am.
Enforcement on the other 2 PCN's have failed.

Just because a clamp is on the car, or it's already in the bailiffs possession when it ceased to be bound under Paragraph 6(3)(a) of Schedule 12 of the Tribunals Courts and Enforcement Act 2007. The bailiff and the creditor remain jointly and severally liable for everything that follows.

Another bailiff company, Newlyn PLC recently lost a case where a car in its compound ceased to be bound, but they retained possession of it when another PCN came to their attention. The enforcement failed because the procedure requires the debtor to be given notice before taking control of goods.




sr2014 wrote: The 2 that had been passed to enforcement weren't revealed to me this morning when I asked for "the PCN's registered against my vehicle".
Phone the Traffic Enforcement Centre on 0300 123 1059 and get the dates the warrants were issued.

The bailiff company may be trying to execute multiple enforcement powers against the same debtor consecutively, and the law explicitly prohibits that (unless extenuating circumstances arise) under regulation 11 of the Taking Control of Goods (Fees) Regulations 2014, which states:

  • More than one enforcement power available against the same debtor

    11.—(1) This regulation applies for the purpose of calculating the fees and disbursements payable to the enforcement agent in accordance with regulations 4, 8, 9 and 10 in a case where—

    • (a)the enforcement agent receives instructions to use the procedure under Schedule 12 in relation to the same debtor but in respect of more than one enforcement power; and

      (b)those enforcement powers can reasonably be exercised at the same time.


    (2) In paragraph (1)(b), “can reasonably be exercised at the same time” means in particular—

    • (a)taking control of goods in relation to all such enforcement powers on the same occasion; and

      (b)selling or disposing of all goods so taken into control on the same occasion,


    except where it is impracticable to do so.

    (3) The enforcement agent may recover the compliance stage fee in respect of each enforcement power to which the instructions relate.

    (4) Where paragraph (1) applies, the fee recoverable in respect of the enforcement stage (or stages) and the sale or disposal stage respectively is to be calculated as follows—

    (a)the fixed fee for each stage may be recovered only once regardless of the number of enforcement powers to which the instructions relate;

    (b)the amount in relation to which the percentage fee for each stage, if any, is to be calculated is the total amount of the sums to be recovered under all enforcement powers to which paragraph (1) applies.


    (5) Where this regulation applies, the enforcement agent must, as far as practicable, minimise the disbursements recoverable from the debtor under these Regulations by dealing with the goods taken into control pursuant to the instructions together and on as few occasions as possible.


The bailiff company is trying to circumvent this rule to obtain the enforcement stage fee £235 for each PCN when the law only provides a single £235 enforcement stage fee for all the PCNs.





So the £215 I paid for the pcn numbers given to me is gone.
Not necessarily. If you have evidence of money transfer, it will be deducted from the sum of your claim. (if you choose to bring one).



I would also have paid those, but in a few weeks time when I scrape together some more money, if these are valid too. I am "out of £215" because I cannot move that money to where it was supposed to go to, therefore do not have that £215 to put against what is owed for the PCN's with enforcement.

I was also advised by the courts that the amount owed to dart charge for the enforced PCN's would be more than this amount anyway.



With regards to where the car is parked, it's half on our land and half on council owned land, so I can't see how that could be upheld as both are ok by law, it's just half on mine half on council's.
Council land is not a highway, because the court recognise Parliament's definition of a highway:

  • 2 What is a highway? By statutory definition a private or unadopted street is a road not maintainable at public expense. However, a private road is not necessarily a road to which the public does not have access. Nor is it a road exempt from the law. Most of the offences committed under the 1980 Act are designed to punish those who endanger or interfere with users of a ‘highway’ or who damage or obstruct a ‘highway’. There is no statutory definition of a highway, only a common law one. That definition is quite clear: a "highway is a way over which all members of the public have the right to pass and repass. Their use of the way must be as of right, not on sufferance or by licence".1 Some private roads are highways, but not all, and the position is not always easy to determine. A private road can either become a highway through statutory procedures after which it becomes an adopted road (i.e. a road maintainable a public expense), or through the common law process of dedication and acceptance. This latter process is explained as follows: Under the common law of England and Wales, public rights of way were – and may still be – created by a process known as ‘dedication and acceptance’. A way becomes a highway when: • The owner dedicates it to the public as a highway, by allowing them to use it; and • The public accepts the dedication, by using the way. Then, after a period of time, the length of which depends upon the circumstances, a public right of way arises; or (in other words) as highway is created. 2 While the principle is straightforward, the law is more complicated. One example of how the process can happen is given in section 31(1) of the 1980 Act which provides that after 20 years use as of right and without interruption the land is deemed to have been dedicated, unless there is evidence that there was no intention, on the part of the owner, to dedicate the land. Under section 31(2) the period of 20 years must be measured backwards from the date when the public’s right is challenged.3 The owner of a private road can take action in several different ways to prevent the road becoming a highway through the process of dedication and acceptance. These consist either of making clear that there is no intention to dedicate, or of interrupting use by the public. For example, the owner could put up a notice indicating that the road is not for use by the public, thus demonstrating that there is no intention to dedicate it to the public. While a notice is sufficient in itself, it is also possible to rely on closing the road, by means of a barrier or gate of some kind. The existence of a barrier or gate may be significant, even when not closed. 1 Sweet & Maxwell, Encyclopaedia of Highway Law and Practice, March 2002, para 2-335 2 A.W & C. Barsby, Private Roads: The Legal Framework (4th ed.), 2007, para 1.3 3 ibid., paras 3.23-3.30 3 The point of a gate is to interrupt use by the public, so that interference of an intention to dedicate can be drawn.

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sr2014
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#11 Re: HELP! Marstons Removal Notice?

Post by sr2014 » 30 Nov 2016 20:18

OK, the 2 PCN numbers given to me this morning, which I then entered into the dart charge site and paid, were the 2 PCN's that weren't passed onto enforcement (which is strange in and of itself, as they were dated 2015, and the enforced ones are 2016). So I have paid the 2 PCN's that hadn't been passed on to enforcement. This is what all avenues (DC, HE, TEC) are saying - I paid the "wrong" PCN's, and the monies cannot be transferred to the "right" ones, nor refunded.

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#12 Re: HELP! Marstons Removal Notice?

Post by Schedule 12 » 30 Nov 2016 20:37

You would have had to pay them in any case, but if you intended to pay the warrant PCN's then the enforcement power has ceased.

I think you need to get to the bottom of all the PCNs you have and kill them off as soon as possible.

I cannot see how Highways, England can enter a defence when their records show 2015 PCNs when they have sent 2016 PCN's to enforcement. I expect the 2015 PCN's might well be out of time and Highways England breached CPR 75 by failing to issue a warrant for the earlier PCN's and misfiled your payments intended for the 2016 PCNs for which a warrant has been issued.

I think you are going to have to unravel all this in the small claims track. You have some grounds pleading a cause of action under paragraph 66 because the bailiff is on record admitting he failed to record the time the Notices were given, and that his behaviour is obstructive.

I'd statement it all up. Gather the evidence and put it before the court and apply for damages. The bailiff company and Highways, England will have to swallow their own solicitor's costs defending it -regardless the outcome of the proceedings.
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