Notice of Enforcement and High Court Writ received with errors I think...

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dragontail
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#1 Notice of Enforcement and High Court Writ received with errors I think...

Post by dragontail » 12 Oct 2017 11:48

Hi

I would really appreciate any advice people are able to offer regarding a Notice Of Enforcement I have received and the Writ of Control it refers to as they appear to contain errors and therefore want to know how, if at all, they affect the validity of those documents.

I have a number of questions I would like answered if possible. Many thanks in advance for any clarification you are able to offer me!

Very brief background:

I and another person brought a case against someone but unfortunately it turns out we made a technical error in issuing the claim (we brought the claim in the County Court and it should have been the High Court). As a result, he made a successful interim application to have the case struck out and was awarded his legal costs for doing so, which I nor the other person have been able to pay him. As a result, he has obtained a High Court writ and we have each been sent a Notice of Enforcement.

My questions are:

1. On the Notice of Enforcement (‘NoE’) the amount of the debt it says I owe is £130.25 more than the amount of the judgement (The judgement was for £4,755, the NoE states I owe £4,885.25). This difference appears to be £117.75 which is the fee the enforcement agents (High Court Enforcement Group Ltd) charge for obtaining the writ as their website states “When a High Court Writ is issued there is a cost of execution fee of £117.75 which is payable, this fee is to cover your issuing costs.” The remaining £12.50 difference is shown in the “Interest” box of the NoE. There was no mention of being able to claim interest in the judgement, nor was it applied for by the other party so can interest be applied? I noticed on their website on the page for a client to apply for them to obtain a writ, the form has the “Interest” option pre-filled with 8%. I would hazard a guess the person I owe has completed this form but hasn’t altered this to 0% to reflect the judgement. Am I right in thinking that he can’t apply any interest because there’s no mention of being able to do so on the judgement and if so, does this have any effect on the validity of the writ obtained or the NoE? A sub-question of this would be is he able to apply for interest from the time of applying for the writ or something and if so therefore this may be valid?

2. In the “Enforcement details” section of the NoE, it states the writ to which the NoE applies, and the details of the judgement for which that writ of control was obtained. There is a glaring error in the details of the judgement. It states the correct claim number but it states the wrong city’s county court. So there will be no claim number with the claim reference at the county court stated on the writ and in this box of the NoE. Does this mean the writ and/or NoE is invalid or does such an error have no effect?

3. In the “Sum Outstanding” section of the NoE, it has a cost of £90 against the “Compliance stage fee”. However, further on in the NoE, within the “Possible additional fees and expenses of enforcement” box, it states “In addition to the Compliance Fee of £75.00 noted overleaf:” Now, I’m guessing this is probably meant to be “75.00 + VAT” but that’s not what it states so I am confused as 2 different figures are stated within the NoE. Is the figure of £90 shown in the “Sum Outstanding” fee therefore valid, i.e. just ignore what they’ve written in the later box, or would this be a reason for the NoE to be unenforceable?

4. Both I and the other person who made the initial claim against the person we now owe have received separate NoEs which are identical except for our names on them. Neither makes any reference to the other of us so it looks as though we both owe £4,885.25, making the total owed double this. The enforcement agents’ reference number is identical so I would hope this means they would not actually be trying to collect nearly £10,000. My question arising from this is are we jointly and severally liable or jointly or severally only and what legislation/rule governs this? My initial thought was that we’d be severally liable so have to pay half each but this doesn’t appear to be the case and wondered what basis this is on?

Thank you again in advance for any answers you are able to provide or clarity you can give. If any of the points I’ve raised make the writ or NoE invalid/unenforceable I’d appreciate any advice on what that means I need to do next, i.e. would I just need to draw it to the attention of the claimant and his enforcement agents or do I need to apply to court for anything. Thanks again!

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#2 Re: Notice of Enforcement and High Court Writ received with errors I think...

Post by Schedule 12 » 12 Oct 2017 16:58

dragontail wrote:
12 Oct 2017 11:48
Hi

I would really appreciate any advice people are able to offer regarding a Notice Of Enforcement I have received and the Writ of Control it refers to as they appear to contain errors and therefore want to know how, if at all, they affect the validity of those documents.

I have a number of questions I would like answered if possible. Many thanks in advance for any clarification you are able to offer me!

Very brief background:

I and another person brought a case against someone but unfortunately it turns out we made a technical error in issuing the claim (we brought the claim in the County Court and it should have been the High Court). As a result, he made a successful interim application to have the case struck out and was awarded his legal costs for doing so, which I nor the other person have been able to pay him. As a result, he has obtained a High Court writ and we have each been sent a Notice of Enforcement.

My questions are:

1. On the Notice of Enforcement (‘NoE’) the amount of the debt it says I owe is £130.25 more than the amount of the judgement (The judgement was for £4,755, the NoE states I owe £4,885.25). This difference appears to be £117.75
Its a statutory fee, half is paid by the creditor and the other half is the court fee. You only escape it if the writ is stayed. The creditor then pays it.



which is the fee the enforcement agents (High Court Enforcement Group Ltd) charge for obtaining the writ as their website states “When a High Court Writ is issued there is a cost of execution fee of £117.75 which is payable, this fee is to cover your issuing costs.” The remaining £12.50 difference is shown in the “Interest” box of the NoE. There was no mention of being able to claim interest in the judgement,
It might not be a judgment, it could be an order which attracts interest by default.


nor was it applied for by the other party so can interest be applied? I noticed on their website on the page for a client to apply for them to obtain a writ, the form has the “Interest” option pre-filled with 8%. I would hazard a guess the person I owe has completed this form but hasn’t altered this to 0% to reflect the judgement. Am I right in thinking that he can’t apply any interest because there’s no mention of being able to do so on the judgement and if so, does this have any effect on the validity of the writ obtained or the NoE? A sub-question of this would be is he able to apply for interest from the time of applying for the writ or something and if so therefore this may be valid?
It is valid until the order is stayed or set aside.


2. In the “Enforcement details” section of the NoE, it states the writ to which the NoE applies, and the details of the judgement for which that writ of control was obtained. There is a glaring error in the details of the judgement. It states the correct claim number but it states the wrong city’s county court. So there will be no claim number with the claim reference at the county court stated on the writ and in this box of the NoE. Does this mean the writ and/or NoE is invalid or does such an error have no effect?
Its invalid because the NOE must enable the debtor to identify the origin of the debt. If the court name is absent, then it fails.

Regulation 7 of the Taking Control of Goods Regulations 2013 gives the statutory requirements which a NOE must contain.




3. In the “Sum Outstanding” section of the NoE, it has a cost of £90 against the “Compliance stage fee”. However, further on in the NoE, within the “Possible additional fees and expenses of enforcement” box, it states “In addition to the Compliance Fee of £75.00 noted overleaf:” Now, I’m guessing this is probably meant to be “75.00 + VAT” but that’s not what it states so I am confused as 2 different figures are stated within the NoE. Is the figure of £90 shown in the “Sum Outstanding” fee therefore valid, i.e. just ignore what they’ve written in the later box, or would this be a reason for the NoE to be unenforceable?

If the creditor is VAT registered, then he reclaims it as input tax. Otherwise the VAT is paid by the debtor who cannot reclaim it.

If you are charged VAT in services performed by a VAT registerted creditor, then you can reclaim it in the small claims track. Otherwise the bailiff is paid the VAT twice and your VAT goes straight in his pocket.




4. Both I and the other person who made the initial claim against the person we now owe have received separate NoEs which are identical except for our names on them. Neither makes any reference to the other of us so it looks as though we both owe £4,885.25, making the total owed double this. The enforcement agents’ reference number is identical so I would hope this means they would not actually be trying to collect nearly £10,000. My question arising from this is are we jointly and severally liable or jointly or severally only and what legislation/rule governs this? My initial thought was that we’d be severally liable so have to pay half each but this doesn’t appear to be the case and wondered what basis this is on?
The bailiff cannot collect it twice, it can be paid by one debtor or by the other, or a combination of both. The enforcement power ends when the amount outstanding is paid. The expression "sum outstanding" is not prescribed in regulations, so I don't know how that sum is accounted for.


Thank you again in advance for any answers you are able to provide or clarity you can give. If any of the points I’ve raised make the writ or NoE invalid/unenforceable I’d appreciate any advice on what that means I need to do next, i.e. would I just need to draw it to the attention of the claimant and his enforcement agents or do I need to apply to court for anything. Thanks again!
Apply to get the enforcement power stopped. That will debunk the fees. Here is a list of options: http://www.dealingwithbailiffs.co.uk/St ... r-HCEO.htm
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dragontail
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#3 Re: Notice of Enforcement and High Court Writ received with errors I think...

Post by dragontail » 12 Oct 2017 23:46

Many thanks for your points. So in conclusion, my next step needs to be to complete an N244 to have the writ stayed. I will also include asking for a variation of the order to enable us to pay monthly instalments. The total owing on the order is £4,755 so I was going to propose £300 per month for 15 months and a final payment of £255. From your past experience, do you think this will be an acceptable timetable for repayment or does the court usually want it paid in full in a shorter period. Ideally we could really do with it being paid over 2 - 3 years but I can't see the court accepting this?

Do I need to explain on the N244 why I am asking for the writ to be stayed (i.e. in our case the county court stated on the writ for where the order against us was made is stated as Bradford County Court whereas the interim hearing was heard, and the order made, at Leeds County Court. Therefore no order has ever been made against us at Bradford County Court meaning we can't identify the origin of the debt from the writ)?

In the link you have sent, it states we should write "The Defendant applies for: " In our original case, we were the Claimants so should we substitute Claimants instead or stick with Defendant (i.e. have we become the Defendant by virtue of the transfer up to the High Court)? Or maybe should I simply write our names instead?

I assume having to travel from Leeds to Bradford will not be considered a great enough distance to claim travel expenses at the prescribed rate?

Lastly, do I need to prepare a draft order or will the judge be able to do this at the time? Will I need to leave with this in my hand as proof to the enforcement agents/creditor?

Thanks again! I need to head to the High Court in the morning asking for an emergency hearing to sort this as the 7 day notice period runs out at 23.59pm tomorrow (Friday) night.

dragontail
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#4 Re: Notice of Enforcement and High Court Writ received with errors I think...

Post by dragontail » 12 Oct 2017 23:54

Sorry another couple of quick questions about the N244 form...

1. Do I fill it in with us as the Claimants still? (i.e. in the 'Claimant's name' section and the person we owe in the 'Defendant's name' section)

2. Will there be a warrant number and if so where will I find this (I can't see anything other than their own references on the NoE)

3. I assume the 'Name of Court' will be "Bradford High Court" where I am presenting the application rather than Leeds County Court where the order was originally made?

Thank you very much!!!

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#5 Re: Notice of Enforcement and High Court Writ received with errors I think...

Post by Schedule 12 » 13 Oct 2017 12:48

1. without seeing the writ I don't know if you are the claimant or the defendant. Usually, defendants pay the claimants unless its a reverse writ.

2 Leave the warrant number blank. Make sure the claim number is on there.

3. Bradford District registry.

You can claim travel costs and your time administering the proceedings as well as your court application fees. Claim everything, the court will always discount it. If I claim £1500 for a client, its discounted by rounding down to £1000.

You don't have to attach a draft order, but I always do when preparing clients applications. The court just seals the order, even if it says "draft order" on it.

If the time expires at 23.59, then you can add one business day. Court is not open at 23.59 and the next post is the next morning. Make sure the time between the date of the notice includes 4 business days for 2nd class postage plus 7 clear days excluding Sundays as well. Its 12 clear days in total, more if there is a bank holiday and postage times exclude Saturdays.
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#6 Re: Notice of Enforcement and High Court Writ received with errors I think...

Post by John The Baptist » 13 Oct 2017 19:02

Dragontail

Of course you need to explain why you are asking for the writ to be stayed. Not being able to afford the repayments is not a valid reason by the way.

You remain what you were in the case so if you were the claimant, you remain the claimant.

You really are clutching at straws asking if the NoE is invalid.

What you need to do here is email the HCEOs before the 23.59 deadline (you haven't told us the date btw) and inform them that you are:
1. Contacting the creditor to ask them to accept your repayment offer, unless the HCEO would prefer to relay the offer back
2. In the alternative, submitting an N245

In either instance, you should ask the HCEO to bear this in mind before continuing with enforcement, that will only serve to add further needless fees to the account.

Provided you are named as private individuals, rather than limited companies, the HCEO will not be allowed to force entry to your home. Anything outside your home will be vulnerable if a HCEO visits though.

Please be aware that if you enter into a repayment plan with the HCEO, he will add another £550+ for the privilege. If he visits without you agreeing a repayment plan, it will cost you a grand.

High Court enforcement fees are out of control. The companies have no incentives to help you repay, when they can charge you a grand just for visiting. You may be best seeing if you can borrow this money to pay them before they visit. Bear this in mind as they will be looking to visit you asap rather than relaying any offers back to the creditor.

Please do tell us the date of the NoE

dragontail
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#7 Re: Notice of Enforcement and High Court Writ received with errors I think...

Post by dragontail » 16 Oct 2017 16:11

Thanks Schedule 12! I submitted an N244 to the counters at Bradford and the writ was stayed whilst I sat and waited in the reception (a member of counter staff saw a judge whilst I waited). He also transferred the case back to Leeds saying it should never really have been transferred to Bradford in the first place as Leeds is my home court (and Leeds is also the home court of the person we owe). He said I should now get a hearing date through from Leeds at which I can present my case for a permanent stay of the writ and variation of the order to allow payment by instalments. The fee for this was £255 though, not the £50 as suggested on the dealing with bailiffs website. I don't mind, that's still far cheaper than the enforcement officer turning up but just thought it might be worth letting people know.

In terms of the writ, I phoned the enforcement agents and asked for a copy of the writ and they refused to send/email me one saying it's against their company policy and that I could only request this by email. I replied that their company policy is irrelevant and that I am entitled to a copy upon request and repeated my request numerous times. The lady I was speaking to put what I assume was her superior on the phone who stated their company policy isn't irrelevant and when I asked again, just hung up on me. But, to be thorough, I immediately sent a request for the writ via email (at 9.23 am on Friday 13 October) but still have received no response or copy of the writ.

I'd only allowed 2 days for 1st class post when counting days, not 4 for 2nd class. What impact does this have? (I realise they cant take any action at the moment with it being stayed, but would it mean they have to issue a new NOE if I'm unsuccessful with my application?)

John The Baptist, thanks for your comments as well... I'm not sure which date your after but for clarity, the date of issue of the NOE was 03/10/2017 and the date stated to make payment by is 23:59hrs on 13/10/2017. Prior to submitting my application, we have contacted the person we owe on 3 separate occasions but he is clearly ignoring our messages and not engaging with us (the repayment schedule I've requested to the court is the same as one we previously offered him and he accepted at the time... We then didn't start making payments on that due to some further actions he carried out attacking the business, but in hindsight we realise that was probably wrong not to do so despite his actions and instead we should have made payments anyway.)

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#8 Re: Notice of Enforcement and High Court Writ received with errors I think...

Post by Pote Snitkin » 16 Oct 2017 21:50

I thought the fee for a stay was only £50? Seems to me you used the N244 rather than the N245 as advised in post #6. The court staff should have realised this - seems that they've just used the general form and charged the default £255. I'd get in touch with the court manager.

The N244 carries a fee of between £50 - £255 depending on what you want (some imbeciles seem to think it's a set £255). The N245 you needed is £50 (again some uneducated clowns believe it is £100, lord knows why).

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#9 Re: Notice of Enforcement and High Court Writ received with errors I think...

Post by Schedule 12 » 17 Oct 2017 10:16

Its £100 in the High Court, £50 in the county court. There is no fee for an N245, but it must be accompanied by an N244. It £255 for file an N244 with notice to the other parties.
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dragontail
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#10 Re: Notice of Enforcement and High Court Writ received with errors I think...

Post by dragontail » 17 Oct 2017 12:18

Thanks Schedule 12 for that info. Sorry to keep asking questions, I feel I've already taken up more than enough of your time, but one (hopefully final) question... Should I therefore go to the Leeds counters (as this is where Bradford have transferred the case back to) and inform them this should have been a without notice hearing and should only be £50/£100 depending which court is hearing it? I assume that Bradford will have already sent notice to the other party as the other Claimant has already received a copy of the application. Are Leeds counters just likely to tell me it's tough and too late as he already has notification of my application and there's nothing that can now be done about it, or will they more likely correct there mistake somehow (if it is a mistake of course)?

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#11 Re: Notice of Enforcement and High Court Writ received with errors I think...

Post by dragontail » 18 Oct 2017 14:57

This afternoon (18 Oct) I have just received a visit from the enforcement agent. Last week on 13 Oct I had already informed both the agents and person we owe by email that we have had the writ stayed. The person we owe will have also received notification of this from the court via post. Do I have any action against the creditor (as I know they are acting as his agents so he's wholly responsible for their actions)? Would this be actionable harassment or any other civil claim? I have further counts of harassment against this man unrelated to this debt (i.e. whilst I was at college studying last year he posted about me on the college's facebook page, wholly unrelated to my reasons for ever having had contact with him and in his defamatory articles he referenced me wholly unrelated to my contact with him as an employee of the company he was unhappy with).

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#12 Re: Notice of Enforcement and High Court Writ received with errors I think...

Post by Schedule 12 » 18 Oct 2017 15:56

You can make a harassment action is you got it on video and you asked the bailiff to leave quietly. If they refused, then you have redress.

Make a file note and add your costs at £19 per hour for your time on your form N260.
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