Bailiffs – Help and advice on dealing with Bailiffs

http://johnnyvoid.wordpress.com/2013/04/27/blockade-the-bailiffs-take-on-the-sewer-rats-set-to-profit-from-welfare-reforms/

bailiff-scum

 

Over the next few months hundreds of thousands of people face losing their homes due to the Bedroom Tax whilst others will be driven into debts they can never pay by the endless tsunami of cuts to benefits.

Already some companies are salivating at the prospect of dragging families from their homes and stealing the few remaining possessions of those with least. Little more than a privatised police force to protect the profits of bankers and landlords, bailiffs will be just one of the many sectors getting rich on the back of the brutal and shambolic welfare reforms.

In the North West of England, Jacobs Bailiffs, one of the largest firms in the area, are chomping at the bit to get started.  A post on their website details how they have been actively promoting their vile services to make every last penny they can from the misery to come.  Whilst exhibiting at a trade show for local authorities recently, Jacobs Bailiffs boasted that “with Welfare Reforms taking effect from 1st April the Jacobs team can talk you through our recovery strategies for maximising collections.”

A communications blockade against the company has been called for this Monday (29th April) in what will hopefully be the first of many attempts to hold these scum to account for their actions.

For more details join the facebook page or visit: http://www.indymedia.org.uk/en/2013/04/508885.html

 

http://www.adviceguide.org.uk/wales/debt_w/debt_action_your_creditor_can_take_e/debt_bailiffs_e.htm

Bailiffs (picture from: http://johnnyvoid.wordpress.com/)

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If you owe money, your creditor has various options to try and get their money back. Instructing bailiffs to take your things away is one of these options.

These pages tell you more about what to do if you get a visit from bailiffs, including when you’ll have to let them into your home, what bailiffs can and can’t do, your rights if a bailiff calls at your home and what happens if a bailiff takes your things.

 

There are many ways to deal with Bailiff’s at the door. I for one like many others never let things get this far. However, if the Government keep taking money away from the poorest, and their agents on remote control blindly follow orders and take the money away or prevent money from being given to the poor, you can see how things may soon change. It is worth always to do your own research and seek legal or professional advice. However, never be bullied. It is all paper at the end of the day. Paper says you owe paper, or paper saying you should be evicted, because it says so on this piece of paper. Paper dictates how Council workers treat you, and paper tells you how much scarcity you have. It is a paper based reality and wow, when you think of it, paper rules our existence, it can dictate how we live, where we live, what we do, wear, sleep on, amazing when you stand back and think about it. So never be bullied as you are a human being and worth more than any paper anywhere on this planet and any where else! Be lucky.

Debbie Simmons, Council Tenant, CITA. Picture ab0ve fr0m: http://evictionresistance.squat.net/

 

http://www.youtube.com/watch?v=RbAejKMivek&feature=player_embedded14979214-hand-show-almost-empty-wallet

http://www.youtube.com/watch?v=hNvXpiMWW5Q

http://www.youtube.com/watch?v=ebUDIqXuA7E

http://www.youtube.com/watch?v=3uIjtKeluVo

 

Exposure – a current affairs programme which puts the spotlight on various hard hitting issues – shows undercover footage of the lengths bailiffs from Rossendales Collect go to in order to claim money from millions of householders and car owners each year. The show asks whether the voluntary guidelines that bailiffs are meant to follow are enough to protect the public as it is thought it shows the rough handling and brutal tactics shown by the bailiffs. Details are still under wraps, but a source close to the programme did hint that bailiffs working in Wigan were featured heavily.

While a spokesman from Wigan Council could not fully comment until he had seen the footage, he did admit that the Metro has used and still uses the firm to collect council tax and business rates. He added that it was standard procedure for councils and most other companies to use bailiffs to claim back money or property owed.

Rossendales Collect, which was formed in 2004, has more than 300 clients and is used by a large number of councils and even has positive testimonials on its website. A spokesman was unable to give a full explanation until he had seen the programme, but did state that the company was leading a campaign for proper legislation to be introduced and is working with the Ministry of Justice on this.

Its website also offers the following mission statement: “We are highly experienced in both the public and private sectors and by adopting a consultative approach to the recoveries process, we are able to maintain successful partnerships with our clients. “We are committed to taking a fair, sensitive and ethical approach to debt recovery. (Yeah right!)

“We are fully compliant with the CSA Code of Practice, OFT Debt Collection Guidance, Data Protection Legislation and all other regulatory requirements. (Utter Rubbish) “All of our processes and procedures exceed the standard required.” (Don’t make me laugh!)

 

More You Tube on Bailiffs  (viewer discretion as some bad language maybe used during these films and treat these videos as you would when watching You Tube)

http://www.youtube.com/watch?v=5yZRtrPLDaI&feature=player_embeddedbth_depression_help

http://www.youtube.com/watch?v=BjUTVMQwcE0

http://www.youtube.com/watch?v=u8g_tNimjEo

http://www.youtube.com/watch?v=6ywGyUxL1bM

http://www.youtube.com/watch?v=u8g_tNimjEo

This is information I got on Bailiffs from:

Kent Freedom Movement Bringing truth to the people of Kent

What is written down is for research purposes but as always we encourage you to do your own research as with everything, you need to personalise your own case and situation as well as it being the opinion of someone, which may or may not be accurate. However, very informative and worth a read.

Debbie Simmons,

 

http://kentfreedommovement.ning.com/forum/topics/help-and-advice-on-dealing-with-bailiffs

(picture from: http://evictionresistance.squat.net/)

Useful bailiff case law and citations

It strengthens your complaint or dispute when you quote the relevant case law. These can be Formal Complaint letters, any statements or claim particulars in civil proceedings and in Form 4 complaints.BCSNf5kCAAA-2ZKBCSNf5kCAAA-2ZK

Attending – without a levy on goods or vehicle

Forced entry Entering through a window Using a key Improper conduct Warrants Bailiffs without a certificate

Seizure of goods & vehicles

Multiple levies Debtor bankrupt or insolvent Excessive levies No goods to seize Exempt Goods Articles for basic household needs Fixtures and fittings Tools of trade Vehicles Levy Abandonment Walking-possession Agreements

Re-Attending with a levy on goods & vehicles

Removal of goods & vehicles Sale of goods & vehicles

Bailiffs Fees Bailiff’s liabilities Police involvement Miscellaneous citations you may include

Attending – Without a Levy on Goodsimagesff

Forced Entry

A bailiff in execution of a warrant or a writ CANNOT make forcible entry to a dwellinghouse unless and until he has completed seizure of the goods in consequence of the first entry, Halsbury’s Laws of England loose leaf edition vol.1 paragraph 9.128 and originally from Semayne v Gresham [1604] Yelverton 29 or Seyman v Gresham [1604] Croke, Elizabeth 809 or P.18 Ed.IV fo.4 pl.19

 

If a bailiff breaks into your property without a valid levy the bailiff has a civil and criminal liability Khazanchi & Anor v Faircharm Investments Ltd & Ors, Court of Appeal

 

Bailiffs cannot break open a door but can open one if it is unlocked, Budd v Pyle [1846] 10 JP 203

 

A debtor can lawfully resist a bailiff without a levy from entering the home if entry is being made against his will, Vaughan v McKenzie [1969] 1 QB 557

 

Otherwise a door left open is an implied license for a bailiff to enter, Faulkner v Willetts [1982] Crim LR 453 likewise a person standing back to allow the bailiff to walk through but the bailiff must not abuse this license by entering by improper means or by unusual routes, Ancaster v Milling [1823] 2 D&R 714 or Rogers v Spence [1846] M&W 571

 

Bailiffs can force entry to premises that are not a dwelling house nor connected to one. Only a debtor’s home is protected by law, Hodder v Williams [1895] 2 QB 663

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Bailiffs cannot force their way into a private dwelling but can in the case of a commercial or business premises, Grove v Eastern Gas [1952] 1 KB 77

 

Contrast: A bailiff breaking down a door of a commercial warehouse is unlawful – Bowen LJ and the bailiff’s appeal was dismissed. American Concentrated Must Co v Hendry [1893] 68 LT 742.

 

Provided a bailiff enters a property peacefully and without breaking in, he can break open inner doors inside the property, Lee v Gansel [1774] 1 Cowp 1

 

A bailiff entering through an unlocked door can break the lock if the door is subsequently locked while still inside, Pugh v Griffith [1838] 7 A&E 827

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A debtor can remove right of implied access by displaying a notice at the entrance. This was endorsed by Lord Justice Donaldson in the case of Lambert v Roberts [1981] 72 Cr App R 223 – and placing such a notice is akin to a closed door but it also prevents a bailiff entering the garden or driveway, Knox v Anderton [1983] Crim LR 115 or R. v Leroy Roberts [2003] EWCA Crim 2753

 

Debtors can also remove implied right of access to property by telling him to leave: Davis v Lisle [1936] 2 KB 434 similarly, McArdle v Wallace [1964] 108 Sol Jo 483

 

A bailiff must leave the premises when told to do so, Robson & Another v Hallett [1967] 2 QB 939

 

A person having been told to leave is now under a duty to withdraw from the property with all due reasonable speed and failure to do so he is not thereafter acting in the execution of his duty and becomes a trespasser with any subsequent levy made being invalid and attracts a liability under a claim for damages, Morris v Beardmore [1980] 71 Cr App 256.

 

If the bailiff has already started to make a levy, he can no longer be made to leave and he cannot be assaulted, Southam v Smout [1964] 1 QB 308.

 

Bailiffs cannot force their way into a private dwelling, Grove v Eastern Gas [1952] 1 KB 77

 

Ringing a doorbell is not causing a disturbance, Grant v Moser [1843] 5 M&G 123 or R. v Bright 4 C&P 387 nor is refusing to leave a property causes a disturbance, Green v Bartram [1830] 4 C&P 308 or Jordan v Gibbon [1863] 8 LT 391

 

Permission for a bailiff to enter may be refused provided the words used are not capable of being mistaken for swear words, Bailey v Wilson [1968] Crim LR 618 or Snook v Mannion [1982] Crim LR 601 or R (Roalfe) v Woking Magistrate’s Court [2005] EWHC 2922 (Admin).

 

If the entry is peaceful but without permission then a request to leave should always be made first. Tullay v Reed [1823] 1 C&P 6 or an employee or other person can also request the bailiff to leave, Hall v Davis [1825] 2 C&P 33

 

Excessive force must be avoided, Gregory v Hall [1799] 8 TR 299 or Oakes v Wood [1837] 2 M&W 791

 

A debtor can use an equal amount of force to resist a bailiff from gaining entry, Weaver v Bush [1795] 8TR, Simpson v Morris [1813] 4 Taunt 821, Polkinhorne v Wright [1845] 8QB 197. Another occupier of the premises or an employee may also take these steps: Hall v Davis [1825] 2 C&P 33.

 

Also wrongful would be an attempt at forcible entry despite resistance, Ingle v Bell [1836] 1 M&W 516

 

Bailiffs cannot apply force to a door to gain entry, and if he does so he is not in the execution of his duty, Broughton v Wilkerson [1880] 44 JP 781, likewise placing an arm inside the door, Rossiter v Conway [1893] 53 JP 350

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If a bailiff enters a property and makes a noise and disturbs the peace it is lawful for the occupier to eject him and if he refuses to leave the police may be called, Green v Bartram [1830] 4C&P 308 or Shaw v Chairtirie [1850] 3 C&K 21

 

A bailiff may not encourage a third party to allow the bailiff access to a property (i.e. Workmen inside a house or a police officer), access by this means renders everything that follows invalid, Nash v Lucas [1867] 2 QB 590

 

The debtor’s home and all buildings within the boundary of the premises are protected against forced entry, Munroe & Munroe v Woodspring District Council [1979] Weston-Super-Mare County Court, (unreported)

 

“A fence intended to keep people out by interposing a serious obstacle into their getting in and, that being so, the entry was illegal”, Judge Byles in Scott v Buckley [1867] 16 LT 573 The Times June 12, 11a

 

A fence that is on a boundary is a barrier, Stokes v British Mutual Banking Co Ltd [1886] The Times July 18, 6c

 

Contrast: A bailiff may climb over a wall or a fence or walk across a garden or yard provided that no damage occurs, Long v Clarke & another [1894] 1 QB 119

 

It is not contempt to assault a bailiff trying to climb over a locked gate after being refused entry, Lewis v Owen [1893] The Times November 6 p.36b (QBD)

 

If a bailiff enters by force he is there unlawfully and you can treat him as a trespasser. Curlewis v Laurie [1848] or Vaughan v McKenzie [1969] 1 QB 557

 

A debtor can lawfully use reasonable force in removing a bailiff without a levy that has refused to leave, the bailiff resisting is the person guilty of a breach of the peace, Green v Bartram [1830] 4 C&P 308 and if police are present, the bailiff is the person that police should arrest, Foulkes v Chief Constable of Merseyside Police [1998] 3 All ER 705

 

A debtor cannot be sued if a person enters a property uninvited and injures himself because he had no legal right to enter, Great Central Railway Co v Bates [1921] 3 KB 578

 

If a bailiff jams his boot into a debtor’s door to stop him closing, any levy that is subsequently made is not valid: Rai & Rai v Birmingham City Council [1993] or Vaughan v McKenzie [1969] 1 QB 557 or Broughton v Wilkerson [1880] 44 JP 781, likewise an arm, Rossiter v Conway [1893] 53 JP 350

 

If a bailiff refuses to leave the property after being requested to do so or starts trying to force entry then he is causing a disturbance, Howell v Jackson [1834] 6 C&P 723 – but it is unreasonable for a police officer to arrest the bailiff unless he makes a threat, Bibby v Constable of Essex [2000] Court of Appeal April 2000.

 

Vaughan v McKenzie [1969] 1 QB 557 if the debtor strikes the bailiff over the head with a full milk bottle after making a forced entry, the debtor is not guilty of assault because the bailiff was there illegally, likewise R. v Tucker at Hove Trial Centre Crown Court, December 2012 if the debtor gives the bailiff a good slap.

 

If a person strikes a trespasser who has refused to leave is not guilty of an offence: Davis v Lisle [1936] 2 KB 434

 

License to enter must be refused BEFORE the process of levy starts, Kay v Hibbert [1977] Crim LR 226 or Matthews v Dwan [1949] NZLR 1037

 

A bailiff rendered a trespasser is liable for penalties in tort and the entry may be in breach of Article 8 of the European Convention on Human Rights if entry is not made in accordance with the law, Jokinen & Jokinen v Finland [2009] 37233/07

 

Bailiffs and windows

 

Bailiffs can climb in through a window if one is open Tutton v Darke [1860] 5 H&N 647 or Nixon v Freeman [1860] or through a skylight – Miller v Tebb [1893]

 

A bailiff cannot break a window or window pane to gain entry, Attack v Bramwell [1863] and breaking a pane of glass in order to open a fastened window is indisputably unlawful, Porter v Chapman [1855] The Times January 25th 9c QBD.

 

Opening a closed but unlocked window is unlawful, Arkins v Brunton [1867] 4 Bar Reports 84 (Ireland, QB)

 

Opening a closed window is certainly unlawful and cannot be justified by any sort of implied license, Lenty v Hunt [1894] 2 PMR 663 or Ancaster v Milling [1823] 2 D&R 714 or Arkins v Brunton [1867] 4 Bar Reports 84 (Ireland, QB) or Villeneuva v Clarke [1890] 35 EG 458

 

A bailiff may open an unlocked or closed door, but cannot open a closed but unfastened window, Nash v Lucas [1867] 2 QB 590

 

A bailiff cannot open a closed latched window, Hancock v Austin [1863]

 

The fastening that secures a window may not be removed, Bell v Oakley [1814]

 

Opening a closed window is unlawful and cannot be justified by any sort of implied license, Ancaster v Milling [1823] 2 D&R 714.

 

Bailiffs can enter through a broken window not broken by the bailiff, Sandon v Jervis [1859] EB & E 935; 27 LJ (QB) 279; 28 LJ (Ex) 156

 

Bailiffs and use of keys

 

A bailiff cannot put his hand in a hole (e.g. a cat flap) in order to pull back a bar or fastening to open the door or window because this amounts to burglary and trespass, Ryan v Shilcock [1851] 7 Exch 72

 

The use of a landlord’s key to gain entry is unlawful, Miller v Curry [1893] likewise if the key is found but is not in the lock, entry would be unlawful, Welch v Krakovsky [1919]

 

Improper use of keys to gain entry is illegal, Alford v Thrupp [1906] 67 EG 226

 

If a key is in the lock, the bailiff may gain entry using the key, Ryan v Shilcock [1851] 7 Exch 72

 

Bailiffs and improper conduct

 

Unfit behaviour on the part of the bailiff or an assistant is illegal, abuse of position or improper conduct can all lead to revocation of a certificate:

 

Deceiving a debtor, Mutton v Sheppard [1905] 66 EG 806

 

Illegal Distress, London Central Meat Co v Rae [1905] 13 PMR

 

Assaulted a debtor, Woodward v Day [1894] 2 PMR 753

 

Drunk bailiff, Gurden Re [1894] 1 PMR 872 or Villenueva v Clark [1890] 33 EG 458

 

Bailiffs and distress warrants

 

The bailiff must carry the warrant with him when he attends the debtor’s premises, Section 126 of the County Courts Act 1984 but this does not invalidate seizure but the debtor can claim damages for trespass, Percival v Stamp [1853] 9 Exch 167

 

If the debtor asks to see the warrant, the bailiff should produce it, if no request is made it doesn’t have to be shown voluntarily however it should be available to be shown if need be. Buller’s Case [1587] 1 Leonard 50.

 

If you ask the bailiff to see the warrant then he should produce it. Andrews v Bolton Borough Council [2011] HHJ Holman, Bolton county court, June 2011 but in any event, the bailiff has to carry it. But there is a Ministry of Justice Guideline what says if the warrant is not carried with him then “state where the warrant is and what arrangements may be made to allow the Defaulter to inspect it”.

 

A bailiff that says the warrant that is at the bailiff’s office is NOT in possession of the warrant and is too remote a possession, Codd v Cabe [1876] 1 Ex D 352 or Galliard v Laxton [1862] 2 B&S 363 or R. v Chapman [1870] Cox CC 4 or Horsfield v Brown [1932] 1 KB 355 or De Costa Small v Kirkpatrick [1979] 68 Cr App R 186 or Rhodes v Hull [1857] 26 LJ Ex 265.

 

A warrant kept in the bailiff’s van nearby is readily available and should be produced on demand, R v Purdy [1974] 1 QB 288

 

A bailiff executing a warrant having another bailiffs name on it is illegal, Collins v Yewens [1838] 10 A&E 570 but this case excludes Distress Warrants for Magistrates Court fines under Section 78 of the Magistrates’ Courts Act 1980 and Section 125 of the County Courts Act 1984 (enforcement of county court judgments).

 

If a bailiff is named on the warrant but is being executed by another then it is illegal, Symonds v Kurtz [1889] 61 LT 559 or R v Whalley [1835] 7 C&P 245 or R v Patience [1837] 7 C&P 775 but not if there is a mere typo in the bailiffs name, Section 78 of the Magistrates Courts Act 1980 or Section 125 of the County Courts Act 1984

 

Bailiffs can only enforce payment of a debt at the address shown on the warrant or writ: Huntress Search Limited (Claimant) v Canapeum Limited (Defendant) a… (Interpleader Claimant) [2010] EWHC 1270

 

A bailiff does not need to carry the warrant if he attends an address only to deliver a letter or verify or inspect the address without intending to call on the debtor, Robins v Hender 3 Dowl PC 543

 

Bailiff without a certificate

 

A person not a certificated bailiff conducting levy is trespass, Bray v Naldred [1894] 2 PMR 227

 

A person not a certificated bailiff conducting levy is trespass, Hawes v Watson [1892] 94 LT 191 ;[1890] 29 LJ 556; contrast Varden v Shread [1890] 36 EG 449 or 25 LJ 363, Harker v Browne [1890] 36 EG 59, [1892] 40 EG 402, Thomas v Millington [1894] 2 PMR 472, Bray v Naldred [1894] 2 PMR 227 and Rodgers v Webb [1912] 20 PMR 186

 

Seizure (levying on) of goods or vehicles

 

Bailiffs can consider at first sight “prima facie” any goods are the property of the debtor and the burden of proof who owns seized goods lies with the debtor or the owner: Observer Ltd v Gordon [1983] – but does not apply to vehicles, paragraph 8 of the Local Government Ombudsman on 10 July 2012 in a report into complaint no 11 007 684 that says it “considers it reasonable for the BAILIFF to check ownership with the DVLA”

 

A bailiff entering a debtor’s home and merely discusses repaying a debt does not constitute making a levy: Brintons Ltd v Wyre Forest District Council [1977] QB 178

 

A valid seizure has taken place when the bailiff announces his intention, walks around the premises and makes a list of goods, Swann v Earl of Falmouth [1828] 8 B&C 456

 

An inventory of goods on its own does not complete the levy process because a levy consists of “seizure” and “impounding” of goods, Ward v Haydon [1797] 2 Esp 553 or Davies v Property & Reversionary Investments Co Ltd [1929] 2 KB…

 

Bailiffs must be precise and “not vague” as to what goods are being seized, Wilson v Nightingale [1846] 8 QB 1034 or Skene v Midland Railway Co [1911] The Times, February 28, 3b KBD

 

Goods seized must be properly manifested, Thomas v Harries [1840] 1 M&G 695

 

Separate items must be listed on the inventory, Wilson v Ducket [1675] 2 MR 61

 

Bailiffs cannot levy on someone else’s goods or vehicles for your debt, the Local Government Ombudsman’s decision of 10 July 2012 complaint no 11 007 684 paragraphs 44 & 45.

 

Rented goods or goods on hire purchase cannot be distrained, Carter v Vestry of St Mary [1900] 64 JP 548 or Prudential Mortgage Co v St Marylebone (Mayor) [1910] 8 LGR 901 or Potts v Hickman [1941] AC 212 or Hutchins v Chambers [1758] 1 Burr 579 or Steel Linings Ltd v Bibby & London Borough of Hammersmith and Fulham [1993] EWCA WL 964281

 

If a finance company cooperates with a bailiff to transfer a financed vehicle or goods away from the debtor’s possession, the debtor can sue for the finance company for breach of contract and recover “consequential damages” to pay for the replacement cost of the vehicle or goods Hadley v Baxendale [1854] EWHC J70

 

Items such as perishable foods cash (unless in a cashbox because the identical goods have to be restored to the debtor) and loose food items, bedding and clothing are all exempt from levy, Davies v Property Reversionary Investments Co Ltd [1929] 2 KB 222

 

The levy was made by looking at your goods through a window, the levy is not valid. This is called a “constructive levy”. Evans v South Ribble Borough Council [1991].

 

Producing a warrant and demanding payment does not amount to a seizure, Nash v Dickenson [1867] 2 CP 252; [1877] 2 Ex 459 & on appeal, [1873] e Ex 174

 

Bailiffs do not have to physically touch the goods to levy on them, on the other hand, contact with the goods alone does not amount to a seizure, Gladstone v Padwick [1871] 6 Exch. 203 or Halsbury’s Laws Of England 3rd Ed. [1956], p.55

 

Claims for wrongful distress must be made against the creditor (e.g. The council) and the bailiff who acted as the enforcement agent, Preston v Peeke [1895] EB&E 336.

 

Bailiffs cannot levy on a caravan occupied by a person because it is wrongful execution imprisonment and trespass against the person, Cave v Capel [1954] 1 QB 367

 

Goods impounded by a bailiff is said to be “in the custody of the law”, Abingdon RDC v O’Gorman [1968] 2 QB 811 but if distress is abandoned, the custody of the law ceases, Jones v Bernstein [1900] 1 QB 100

 

“Distraining” or “impounding” goods does not necessarily mean their sale, Alton v James [1708] 11 MR 144, likewise, seizure of goods is not necessarily their sale, Cheston v Gibbs [1843] 12 M&W 111

 

The court ruled a levy on goods on third party premises is ineffective, Balls v Pink [1845] 4 LTOS 356/9 Jur 304

 

A levy that includes exempt goods does not invalidate the whole levy, Canadian Pacific Wine Company v Tuley [1921] 2 AC417 or Elias v Pasmore [1934] 2 KB 164 or Owen & Smith v Reo [1934] 151 LT 274

 

It is important that ALL enforcement agents should make enquiries about possible insolvencies but it is especially important that officers levying execution should do so, Balme v Hutton [1833] 9 Bing 471 or Cooper v Chitty [1753] 1 Kenyon 395 or Dillon v Langley [1831] 2 B&A 131 or Garland v Carlisle [1837] 4 Bing VC 7 HL.

 

NOTE: a debtor who is bankrupt has his goods placed in charge of a trustee and therefore is no longer the property of the debtor and cannot be seized. The same is true if the debtor has died because his goods are now in charge of the executor or trustee.

 

A debtor’s right to the enjoyment of his own goods ends when they have lawfully been seized, Barraclough v Brown [1897] AC 615.

 

Levies which include “all goods levies” at the property global levies – are not valid, Kerby v Harding [1851] 6 Exch 234 or Wakeman v Lindsey [1850] 14 QB 625

 

Levying on your goods in your absence is not valid Ambrose v Nottingham City Council [2004]

 

An inventory of goods distrained, every article ought to be particularised and not be under such general head such as “sundries”, Lord Chief Justice, Lord Tenterden in the case of Green v Chapman [1827] February 20 1830 6a, KBD

 

A Notice of seizure or the walking-possession Agreement must be clearly particularised, Jones v Davies [1892] 40 EG 372

 

It is the duty of bailiffs to list all the articles being distrained on the inventory, Lord Chief Justice, Lord Tenterden in the case of Streek v Gill [1829] The Times July 13 3c, KBD

Levying on somebody else’s goods or on the wrong vehicle: The fees must be refunded, page 6 and 7 of 11 of the Local Government Ombudsman report on 29 November 2012

A defective Notice of Distress may be invalid, Green v Brown [1852] 13 Ir LR 329 QB

The locking up of goods on the debtor’s premises is lawful provided the debtor is ejected entirely from possession, Purcell v Nolan [1839] LR Ir 1 CL 258 or Josephs v London and County Stores & Evans [1911] 77 EG 170

Bankruptcy & insolvency

 

Note: Individuals and businesses subject to Individual Voluntary Arrangements (IVA’s)’s Debt Relief Orders (DRO’s) and county court administration orders are substantially protected from recovery action and persons facing enforcement action must notify their practitioner or trustee. Property of a bankrupt’s estate vested in a trustee can still be seized especially for the recovery of a statutory debt.

 

If a debtor is facing imminent business failure then an extensive levy and quick sale is justified, Skene v Midland Railway [1911] 78 EG 170

 

All enforcement agents are required to make enquiries about possible insolvency, Balme v Hutton [1833] 9 Bing 471

 

Multiple levies

 

A second levy is wrongful if the original levy is abandoned without good cause, Dawson v Cropp [1845] 1 CB 961

 

A second levy is justified if the debtor’s violent obstruction prevented completion of the first, Lee v Cooke [1857] 27 LJ Exch 337

 

Bailiffs cannot make a second levy on different goods if he fails to levy on them the first time he attended and they were visible to the bailiff at the time, Clooney v Watson [1851] LR Ir 2 CL 373

 

Second levies are oppressive and excessive and should be avoided. If a second levy is made without good reason the debtor can claim damages, Lear v Caldecott [1843] 4 QB 123

 

It is vexatious to levy twice unless there is some legal reason to do so, but the debtor has to show the value of the goods from the first levy is sufficient to cover the debt and costs – Bagge v Mawby [1853] 8 Exch 64 or Lear v Edmonds [1817] 1 B&A 157 or Lingham v Warren [1820] 2 B&B 37 or Hudd v Ravenor [1821] 2 B&B 662.

 

The Local Government Ombudsman decided in a report into complaint no 11 007 684 against Blaby District Council that multiple levies amounts to maladministration, paragraphs 43 & 46 multiple fee-charging is wholly unreasonable.

 

A debtor has to show the value of the goods (or vehicle) distrained on the first occasion was sufficient to cover the debt and costs, Lear v Edmonds [1817] 1 B&A 157

 

It is wrongful when a bailiff seeks to make a second levy when he had a fair opportunity to seize sufficient goods when it was available, Anon [1550] Moore KB p.7 pl.26 or Anon [1583] Cro Eliz p.13 pl.8.

 

It is wrongful when a debt is split between two separate levies even if the first levy is not sufficient to clear the debt, Wallis v Saville [1701] 2 Lutw 1532

 

Excessive levy

 

Excessive levy or seizure (explained here) is wrongful at common law and a debtor may issue a claim for damages or a claim under Statute of Marlborough 1267 c.15 – but remember that debtors may have a tendency to over-value their own goods, Cyril Morgan (Holdings) v Dyer [1995] 11 CL 193 and Bhatnagar & Elanrent v Whitehall Investments [1996] 5 CL 166

 

There is case law that has allowed bailiffs to make excessive levied when only one item is available such as a vehicle, but this cannot be used in a defence because Statute of Marlborough 1267 c.15 is a statute, and  these cannot be rebuked by a court. Only a new Act of Parliament can repeal a statute.

 

Bailiffs have a longstanding duty to conduct a thorough and diligent levy to ensure it is not an excessive levy, Doe d Haverson v Franks [1847] 2 C&K 678 or Mullett v Challis [1851] 16 QBD 239

 

Levies on the entire contents of houses, “global levies” are excessive, Leyland v Benson & Hartley [1894] 2 PMR 130 or Redmond v Ward [1910] The Times May 4 3e

 

Levying on goods worth 35 and selling them for 5 for a 1 debt is excessive levy, Josephs v London County Stores & Evans [1911] 78 EH 170

 

A levy on goods worth 175% of the debt would be treated as excessive levy, Merry v Lovell [1888] The Times November 16 3g QBD

 

Goods worth 602 sold for 73 resulted in damages of 350 being awarded, Webb v Pennell [1907] The Times December 5 10a

 

A levy on a single article (e.g. a vehicle) having a value that is more than 300% of the debt being recovered is excessive levy, Sullivan v Bishop [1826] 2 C&P 359

 

11 in goods were levied and valued at 6 but the debtor valued them at 100 and sued, The court awarded 50 reduced to 30 on appeal, Lowry v Read [1889] The Times March 9 5b & 33 EG 139

 

Levying on goods or a vehicle having a significantly higher value than the debt and fees being recovered. Steel Linings Limited, Mark Harvey v Bibby & Co [1993] EWCA WL …

 

A slight excess (3.5% over the sum recovered) is not excessive, Fitzgerald v Longfield [1850] 7 Ir Jur 21

 

If a claim for excessive levy is made, there is no need for the claimant to prove malice on the part of the bailiff, Field v Mitchell [1806] 6 Esp 71

 

A claim for excessive distress and interference of goods cannot be awarded for both and the claimant must decide one for judgment, Clarke & Roe [1954] 4 Ir Ch R 1

 

Excessive distress is a wrongful act, Gawler v Chaplin [1848] 2 Exch. 593 unless no actual loss results, Watson v Murray & Co [1955] 2 QB 1

 

If the bailiff is uncertain of the value of a single item and wishes to avoid a claim for excessive levy then he should take a number of small inventories. Hutchins v Chambers [1758] 1 Burr 579 or Bagge v Mawby [1853] 8 Exch 64

 

A debtor has to show the value of the goods (or vehicle) distrained on the first occasion was sufficient to cover the debt and costs, Lear v Edmonds [1817] 1 B&A 157

 

Second levies are oppressive and excessive and should be avoided. If a second levy is made without good reason the debtor can claim damages, Lear v Caldecott [1843] 4 QB 123

 

It is wrongful for a bailiff to levy on goods (or vehicles) for more than is lawfully due, Wilkinson v Terry 1 M&R 377 or McGuckin v Dobbin [1863] 15 Ir Jur 311

 

Debtors having no goods of value

 

If the debtor’s goods do not meet the debt recovered, the bailiff is excused from levying distress, or if the fees and expenses of the levy absorb the proceeds of sale the bailiff can make a return of nulla bona, Dennis v Whetham [1874] 9 QB 345

 

Seizing goods just to pay the fees of distraint is wrongful, Nargett v Nias [1859] 1 E&E 439

 

Exempt goods

 

Bailiffs have a longstanding duty to conduct a thorough and diligent levy to ensure it does not contain exempt goods, Doe d Haverson v Franks [1847] 2 C&K 678 or Mullett v Challis [1851] 16 QBD 239

 

Sofas without the fire safety labels are exempt from seizure because they cannot be re-sold commercially. Section 10 and others of the Furniture and Furnishings (Fire) (Safety) Regulations 1988 (as amended in 1989 and 1993) and are worthless. As such, these items fall into the remit of insufficient levy. Ambrose v Nottingham City Council [2004] and it is appropriate for the bailiff to abandon the levy following Dennis v Whetham [1874] 9 QB 345 and can return nulla bona.

 

Items such as perishable foods cash (unless in a cashbox because the identical goods have to be restored to the debtor) and loose food items, bedding and clothing are all exempt from levy, Davies v Property Reversionary Investments Co Ltd [1929] 2 KB 222

 

Basic household tools cannot be distrained, Levy v Robins [1891] 38 EG 60 or Haines v Adams 33 EG 476 or Brown v Atkins [1894] 2 PMR 491 or Bushbridge v Harvey [1897] 49 EG 254 or Jones Sewing Machine Co v Porter & Sons [1897] 49 EG 955 or The Times February 2, 1906 3f.

 

The bailiff should invite the debtor to select items to be treated as exempt, Singer Manufacturing Co v Butterfield [1902] 114 LT 39; [1905] 13 PMR 963; [1910] 129 LT 578

 

A levy that includes exempt goods does not invalidate the whole levy, Canadian Pacific Wine Company v Tuley [1921] 2 AC417 or Elias v Pasmore [1934] 2 KB 164 or Owen & Smith v Reo [1934] 151 LT 274

 

Rented goods or goods subject to a hire purchase cannot be seized, Potts v Hickman [1941] AC 212 or Hutchins v Chambers [1758] 1 Burr 579 or Steel Linings Ltd v Bibby & London Borough of Hammersmith and F…

 

Domestic appliances are not exempt from seizure, Quinlan v Mayor & Burgesses of London Borough of Hammersmith & Fulham [1989] EWCA 19 WL 649926

 

Articles for basic needs

 

Domestic appliances are not “fixtures” and are not exempt from levy unless it is for basic needs, Allan v Lane [1942] 1 DLR 731

 

Distraining basic tools and household items is illegal, Brown v Atkins [1894] 2 PMR 491 or Haines v Adams [1889] 22 EG 476 or Levy v Robbins [1891] 38 EG 60 or Brown v Atkins [1894] 2 PMR 491, or Bushbridge v Harvey [1897] 49 EG 254 or Jones Sewing Machine Co v Porter & Sons [1897] 49 EG 955, The Times February 2nd 1906 3f.

 

Fixtures and fittings

 

The test of whether or not an item is a fixture is the purpose and degree of permanence of installation, Botham & others v TSB Plc [1996] EGCS 149/ 73 R&CR D1 CA.

 

Items fixed solely by their own weight such as a commercial washer or a drier are not fixtures, Hulme v Brigham [1943] KB 152; Re: Richards ex p. Astbury [1869] 4 Ch app 630 (this case may exclude wall-mounted flat TV’s and monitors from seizure because they are not fixed by their own weight).

 

Fixtures removed by bailiffs is trespass and the levy is illegal, Moore v Drinkwater [1858] 1 F&F 134

 

Tools of trade

 

Tools of trade cannot be seized unless the debtor signs the inventory consenting to a seizure. Atkinson v Lyons [1905] 13 PMR 963

 

Tools of the debtor’s trade cannot be seized and exempt from distress because they are “protected goods”, Brookes v Harris [1995] The Times April 22, p17 (Ch D)

 

A claim for distraining tools of trade should be brought with reasonable promptness, Moffatt v Lemkin [1995] The Times April 22, p.17 (Ch D)

 

The definition of “protected goods” is borrowed from Section 283 of the Insolvency Act 1986.

 

Exempt Vehicles

 

A vehicle used by the debtor for commuting to work is not exempt: Thompson v Bertie and another [2007] EWHC 2238 (QB) and House of Lords June 22 2010

 

Vehicles rented or on hire purchase cannot be distrained, Carter v Vestry of St Mary [1900] 64 JP 548 or Prudential Mortgage Co v St Marylebone (Mayor) [1910] 8 LGR 901 or Potts v Hickman [1941] AC 212 or Hutchins v Chambers [1758] 1 Burr 579 or Steel Linings Ltd v Bibby & London Borough of Hammersmith and Fulham [1993] EWCA WL 964281

 

A trade vehicle ceases to be exempt from seizure if there is evidence of use by another person: Toseland Building Supplies Ltd V Bishop [1993]

 

The debtor carries the burden of proving the goods or vehicle is used FOR his employment and not just for travelling TO his employment, Gonsky v Durrell [1918] 2 KB 71

 

It is common the value of the seized vehicle may well amount to excessive levy, check also Excessive levy

 

Levy Abandonment

 

What makes an abandoned levy is explained here

 

– and the Judge in Bannister v Hyde [1860] 2 E&E 627 summed it up well by saying – “If the bailiff levies on goods then leaves the premises without a signed walking-possession agreement is evidence the levy has been abandoned”.

 

Seizure must be maintained and continued by personal possession, Blades v Arundale [1813] 1 M&S 711

 

Levy is abandoned when the bailiff leaves possession to get a drink and the goods can be re-levied by another bailiff, White v Chapple [1847] 4 CB 628

 

Contrast – Bannister v Hyde [1860] 2 E&E 627 – but not if the bailiffs leaves the premises briefly for example “to get a drink”.

 

Any abandonment of levy or possession without a walking-possession agreement must be justified otherwise debtor can treat the seized goods to be abandoned, Bagshawes v Deacon [1898] 2 QB 173

 

A letter from a debtor acknowledging possession and a right to re-enter and retake possession is not enough to prevent levy abandonment, Bower v Hett [1895] 2 QB 337

 

It is wrongful when a perfectly lawful levy is made but is abandoned without good cause, Smith v Gordon [1833] 4 B&A 413 or Dawson v Cropp [1845] 1 CB 961 or Bagge v Mawby [1853] 8 Exch 64

 

If distress is abandoned, the custody of the law ceases, Jones v Bernstein [1900] 1 QB 100

 

A valid levy and possession taken can be achieved without a walking-possession agreement provided levy is protected from abandonment, Lloyds & Scottish Finance v Modern Cars & Caravans (Kingsto…

 

Bailiffs cannot break in and remove goods when a levy has been abandoned, Russell v Rider [1834] 6 C&P 416

 

Walking-possession Agreements

 

Bailiffs must be precise and “not vague” as to what goods are being seized, Wilson v Nightingale [1846] 8 QB 1034 or Skene v Midland Railway Co [1911] The Times, February 28, 3b KBD

 

A possession agreement is a license for the bailiff to re-enter the premises, Hill, Clerk v Ramm [1843] 5 M&G 789

 

Walking-possession agreements prevents levy abandonment and the bailiff does not need a closed possession, Ackland v Paynter [1820] 8 Price 95.

 

An unsigned walking-possession agreement is not valid: Evans v South Ribble Borough Council [1992] QB 757

 

A decision of the Decisional Court (Watkins LJ and Kennedy J) – An unsigned walking-possession agreement is ineffective, Brown v London Borough of Haringey [1986] Unreported, 03 October 1986.

 

If the debtor did not sign the walking-possession agreement the levy may be invalid: National Commercial Bank of Scotland Ltd v Arcam Demolition & C….

 

The walking-possession agreement is invalid if it was signed by a person without the debtor’s permission Lumsden v Burnett [1898] 2 QB 177

 

A walking-possession agreement signed by a debtor’s 13 year old daughter is manifestly worthless, Lloyds & Scottish Finance Ltd. v Modern Cars & Caravans (Ki…

 

A walking-possession agreement is void if it was signed under duress or a misrepresentation is made or pressure exerted upon a person to coerce that person to perform an act that he ordinarily would not perform, Barclays Bank v O Brien [1994] 1 AC 180 House of Lords

 

A spouse cannot sign a walking-possession agreement for the other: H v Sandwell MBC [1992] Legal Action August P15. Held by Magistrates that process was irregular so far as the other spouse was concerned

 

Bailiffs cannot charge “poundage” on goods left on the debtor’s premises, Bissicks v Bath Colliery [1877] 2 Ex 459 and on appeal [1878] 3 Ex 174

 

A bailiff cannot make a debtor agree to charges for walking-possession and any such charges cannot be enforced, the bailiff can ONLY charge walking-possession fees prescribed by the legislature, Cowan v Milbourne [1867] 2 Ex 230

 

A Notice of seizure or the walking-possession Agreement must be clearly particularised, Jones v Davies [1892] 40 EG 372

 

A valid levy and possession taken can be achieved without a walking-possession agreement provided levy is protected from abandonment, Lloyds & Scottish Finance v Modern Cars & Caravans (Kingsto…

 

Re-attending – With a levy on goods

 

Check to see if the bailiff levy is invalid

 

Bailiffs can break into homes provided they have a valid levy over the goods contained inside and has previously entered the same property peacefully – McLeod v Butterwick [1996] 3 All ER 236, [1996] 1 WLR 995. Bailiffs cite this judgment in their defences after breaking into homes. Easily defeated in court if the bailiff has an invalid levy or there is a procedural impropriety with the original debt.

 

A bailiff can force re-entry by if he has a valid levy and is being ejected from the property, Stubbings v Stokes [1840] LT 123

 

Re-entry may be forced but with the minimum of force and the bailiff should avoid acting in a matter that may constitute a breach of the peace, R. v Lockwood [1856] The Times April 23 10f QBD.

 

A bailiff with a valid walking-possession agreement can re-enter the property by force, Lavell v O’Leary [1933] 2 KB 200 or Watson v Murray [1955] 2 QB 1

 

The debtor previously allowed the bailiff into your home to make that levy in respect of the same debt: Brintons Ltd v Wyre Forest District Council [1977] QB 178. Easily defeated on the grounds of invalid levy

 

If a debtor deliberately avoids the bailiff having a valid levy, the bailiff may only force re-entry by appointment with an order signed by a judge. Khazanchi & Anor v Faircharm Investments Ltd & Ors [1998]. In order to effect forced re-entry in light of the above High Court Case, the bailiff must give prior notice that he will be re-attending on a specific day and time frame to remove previously seized goods. Should the debtor choose to ignore the notice and go out or refuse entry to the bailiff, the above case supports the right of the bailiff to force entry for the purpose of removing previously seized goods.

 

A bailiff forcibly rejected after starting to make a levy can lawfully force re-entry to continue the levy, Francombe v Pinche [1766] Espinasse’s Digest 3rd ed., p.132

 

If a bailiff having made a levy is forcibly removed he can make forcible re-entry to regain possession, Eagleton v Gutteridge [1843] 11 M&W 465 or Eldridge v Stacey [1863] 15 CB(NS) 458 – and the bailiff can resume possession as if they had just been distrained for the first time, Fishwick v Milnes [1850] 4 Exch. 845

 

If a bailiff wants to return and make a second levy, the debtor has to show the value of the goods distrained on the first occasion was sufficient to cover the debt and costs, Hudd v Ravenor [1821] 2 B&B 662 or Lear v Edmonds [1817] 1 B&A 157 or Lingham v Warren [1820] 2 B&B 37

 

Removal of goods and vehicles

 

A trade vehicle ceases to be exempt from seizure if there is evidence of use by a third party: Toseland Building Supplies Ltd V Bishop [1993]. Easily defeated in court because of the judge’s comment – “necessary to that person for use personally by him in his business”. There appears to be a misconception on the part of the bailiff companies who frequently cite this judgment in defending vehicle seizure claims because the judgment does not say whether the vehicle must, or must not be for the exclusive use of the debtor for the vehicle to be exempt.

 

Once an inventory is made (on a Form 7 or a Form 55) the bailiff cannot add to it later. If such items are taken the debtor can sue for damages, Bishop v Bryant & Others [1834] 6 C&P 484 even if the over-seizure was a mistake, Smith v Torr [1862] 3 F&F 505

 

Bailiffs cannot retrospectively levy vehicles after seizing or clamping it: Evans v South Ribble Borough Council [1992] QB 757

 

A person removing an illegal clamp is not guilty of criminal damage, R. v Ali Bromley Magistrates Court [2011] unreported April 18 2011, and a person who pushes a clamper away from the clamp while it is being removed is not guilty of assault.

 

There must be a delay between seizure and removal, especially vehicles, Culligan v Simkin & Marston Group Ltd [2008]

 

Removing goods in your absence unless it is by appointment or a judge has given permission, is unlawful – paragraph 36 of the Judge’s summing up in the case of Khazanchi & another v Faircharm Investments Ltd & another […

 

Removing goods not distrained (not listed on a Form 7 or Form 55) is wrongful, Bishop v Bryant & Others [1834] 6 C&P 484 or Sims v Tuffs [1834] 6 C&P 207. See also the Theft Act 1968 and the debtor can take court action to claim damages, Davies v Property & Reversionary Investments Co Ltd [1929] 2 KB…

 

The bailiff is liable to the owner of the goods (including vehicles) if they are damaged while in possession, Featherstonehaugh v Steinway [1887] The Times February 3rd, 3b, QPD or White v Heywood [1888] The Times December 5th 11c, QBD

 

Bailiffs are liable for negligence in handling seized goods and their proceeds, Forrester v Caswell [1906] 14 PMR 497 or Mills v Langford [1911] 99 Property Owner’s Journal 12

 

It is wrongful for possession of goods (or vehicles) to be retained and payment being refused, Holland v Bird 2 LJCP 201

 

Sale of goods and vehicles

 

It is illegal for goods to be sold for a fraction of their worth, Gray v Cole [1856] The Times February 11 p.11a

 

The sale of goods is illegal if they were never subject to a lawful levy, Gray v Cole [1856] The Times February 11 p.11a

 

If a bailiff seizes and sells more than is required to satisfy the debt, it is not trespass, Hughes v Brown [1845] 7 Ir LR 492 Ex.

 

A bailiff charging double the permitted percentage for an auctioneer can lose his certificate, Longstaffe ex. p Robinson [1897] 49 EG 60

 

A reasonable time to arrange appraisal and sale of seized goods is eight days, Pitt v Shew [1821] 4 B&A 206

 

Bailiffs must wait five clear days before proceeding to the sale of levied goods, excluding the day of seizure and sale, Wallace v King [1788] 1 H Bl 13

 

But any time longer than that amounted to trespass, Winterbourne v Morgan [1809] 11 East 395

 

Bailiff’s Fees

 

Bailiffs have a duty to take care not to make unreasonable or improper charges, Longstaffe ex. p Robinson [1897] 49 EG 60 or Duncombe v Hicks [1898] 42 Sol Jo 343

 

A bailiff commits fraud under Sections 1 to 5 of the Fraud Act 2006 if he charges for work he has not done, HM Government in the House of Lords April 20 April 2007 and the police cannot treat such complaints as a civil matter.

 

A debtor can sue to recover unlawful fees and all the following cases resulted in fees not permitted by the scale to be refunded – Phillips v Viscount Canterbury [1843] 11 M&W 619 or Braithwaite v Marriott [1862] 1 H&C 591 or Halliwell v Heywood [1862] 10 WR 780

 

Seizing goods just to pay the fees of distraint is wrongful, Nargett v Nias [1859] 1 E&E 439

 

Fees are only permissible if they are for work that was VERIFIABLY and JUSTIFIABLY undertaken, Haydon v Barton [1849] 5 Ir LR 410 Ex.

 

Bailiffs must show what work has been done if he is charging unregulated fees, Davies v Edmonds [1841] 7 M&W 413/ 9 Dowl 221

 

Charges that go beyond the standardised fee schedules should require the Court’s sanction to be certain the fees are lawful, Bernard Loynes v Beswicks Solicitors [2010] Queens Bench Division.

 

High Court Enforcement Officers are required to make an application for costs to be allowed by the Court and cannot simply be taken out of the sums received. R v Jones [1814] 1 Price 205 or R v Fereday [1817] 4 Price 131.

 

A fee charged must be reasonable and proportionate to the debt recovered. The work done must be justified and must have been undertaken before a fee can be charged. Arnison & others ex parte [1868] 3 Exch 56

 

Fees charged for possession when no such work has been done have been repeatedly struck out by the courts, Baldry v Caine [1906] 14 PMR 808 or Edwards v Morey [1905] 13 PMR 460 or Scott v Denton [1906] 212 LT 95 or Warden v Richardson [1888] 33 EG 143 or Mutter v Speering [1905] 119 LT 134/ 13 PMR 392 – et-al.

 

If a bailiff charges “excessive and extortionate” fees the courts will take a very dim view and the debtor can recover them along with costs and interest, Masters v Lowther [1852] 11 CB 948 or Smith v Mall [1623] 2 Rolle 263 or Nash v Allen [1843] 4 QB 784 or Wrightup v Greenacre [1847] 10 QB 1 or Pilkington v Cooke [1847] 16 M&W 615 or Ellison v Fazakerley [1848] the Times April 11 7c or King v Milne 1 LJKB 108 or R. v Villers 11 Price 579 et-al.

 

Fees that are far higher than the sums permitted or which are not allowed by the fee scale should not be charged, Stokes v British Mutual Banking Co Ltd [1886] The Times July 18, 6c

 

A bailiff’s certificate is cancelled because he charged an illegal possession fee, Dunscombe v Hicks [1898] 42 Sol Jo 393

 

Bailiffs cannot charge a VAN fee, “ATR” fee or “porterage” without a levy on goods. Paragraph 62 of Complaint numbers 95A01890 and 95A04826 against London Borough of Ealing the Local Government Ombudsman decided the bailiff is not entitled to charge a van fee when no goods have been levied.

 

Van fees must be the actual cost of using the van. Flanagan v John Crilley & Sons [1987] Birmingham County Court, unreported, Adviser Magazine No. 7 p29

 

It is no defence for bailiffs to say the fees are “universal custom of the trade” or claim that statutory fees are too low so to permit deliberate over-charging, Black v Standage & Price [1831], The Times June 27, 6e.

 

Fees for doormat levies are not allowed, charging a fee to levy on goods of insignificant value e.g. a doormat, page 6 of 11 of the Local Government Ombudsman report on 29 November 2012

 

Bailiffs cannot charge a fee for using a wheel clamp: Culligan v Simkin & Marston Group Ltd [2008] because there are no costs or disbursements involved in using a wheel clamp already in the bailiffs possession.

 

Non-statutory charges benefiting the bailiff (such as for clamping) might not be lawful, Lumsden v Burnett [1898] 2 QB 177

 

Bailiffs cannot charge multiple fees for multiple debts at the same address on the same vehicle: Throssell vs. Leeds City Council [1993]

 

The bailiff can only charge one fee regardless of the number of warrants involved at the same location: Glasbrook v David & Vaux [1905] 1 KB 615 or Throssell vs. Leeds City Council [1993] but can make separate charges for levies at different locations, Wells ex parte The Sheriff of Kent [1893] 68 LT 231

 

Contrast: Broster Re: ex parte Pruddal [1897] – Separate levies attract separate fees, similarly separate levies on separate groups of goods should attract separate fees, Re Morgan [1904] 1 KB 68.

 

The Local Government Ombudsman decided in a report into complaint no 11 007 684 against Blaby District Council that multiple levies is Maladministration, paragraphs 43 & 46 multiple fee-charging is wholly unreasonable.

 

Levying on somebody else’s goods or on the wrong vehicle: The fees must be refunded, page 6 and 7 of 11 of the Local Government Ombudsman report on 29 November 2012

 

A High Court Enforcement Officer is not entitled to claim “Rule 12” costs and disbursements for gain, the House of Lords 03 November 2009

 

A bailiff cannot make a debtor agree to charges for walking-possession other than those prescribed by the legislature and any such charges cannot be enforced, Cowan v Milbourne [1867] 2 Ex 230

 

No person shall be entitled to any fees, charges or expenses for levying a distress, or for doing any act or thing in relation thereto, other than those specified in a prescribed fee schedule, Walker v Retter [1911] 1 KB 1103

 

Local Taxation only, bailiffs cannot charge a “head H” fee if goods have not been removed, Wilson v South Kesteven District Council [2001] 1 WLR 387

 

Bailiffs unable to seize, or the seizure is unlawful or he is unable to obtain payment the bailiff is not entitled to poundage (fees % on sums recovered), Nash v Dickenson [1867] 2 CP 252

 

A posession fee may only be charged if the debtor refuses to pay and refuses to allow levied goods to be removed forthwith, Ex parte Sims, in Re Grubb [1877] 4 Ch D 521

 

A business (HCEO firm) can reduce costs by standardising its charges provided it is not in an unreasonable way, Bernard Loynes v Beswicks Solicitors [2010] Queens Bench Division

 

Bailiffs cannot sue you for his fees if you pay the debt directly to the creditor or authority: JBW Enforcement Ltd v City of Westminster [2009] EWHC 2697 (QB)

 

Bailiffs cannot sue the creditor for their fees if he is unable to recover them from the debtor, Legal Observer [1849] vol 45, p279 or Smith v Broadbent [1892] 66 LT 260

 

Once fees have been cancelled by order of the Court, there is no scope for their retrospective endorsement, Omega Logic v Clive Oddy, Mrs Susan Oddy (interpleader) [2010] County Court claim number 9QB00071, Queens Bench claim WF001820/99.

 

The bailiffs choice of remedy or court is not the exclusive remedy: Steel Linings Limited, Mark Harvey v Bibby & Co [1993] EWCA WL …

 

A debtor can opt to recover the bailiffs fees paid under protest in a civil court claim, Veale v Atwood [1833] The Times February 2, 5g, CP

 

Unlawful bailiffs fees are recoverable: Day v Davies [1938] 2 KB 74

 

The council, and not the bailiff, is liable for refunding unlawful bailiffs fees, Paragraph 24 of complaint number 12 005 084 by the Local Government Ombudsman 13 March 2013, and paragraph 44 confirms you can you can also make a formal complaint and claim damages, disbursements and compensation if the council is malfeasant.

Bailiffs and liabilities

 

The bailiff is liable for any unlawful damage caused to property even if it was an accident: Huntress Search Limited (Claimant) v Canapeum Limited (Defendant) a… (Interpleader Claimant) [2010] EWHC 1270

 

The bailiff is liable to the owner of the goods (including vehicles) if they are damaged while in possession, Featherstonehaugh v Steinway [1887] The Times February 3rd, 3b, QPD or White v Heywood [1888] The Times December 5th 11c, QBD

 

The bailiff is liable if he damages your business reputation: Skidmore v Booth [1834] 6 C&P 777

 

Damages in replevin are not limited to the immediate pecuniary losses occasioned by the distress but extend to damages for annoyance and injury to credit and reputation in trade, Smith v Enright [1894] 69 LT 724

 

Bailiffs have a duty to protect the creditor AND the debtor as well as having a duty to protect the poor from abuse and should normally err on the side of caution and generous treatment of debtors, Taylor v Ashworth [1910] 129 LT 578 or Harrison v Mearing [1843] The Times May 10 8b Exch.

 

Substantial damages can be claimed for illegal distress even without any proof of actual damage, the levy only needs to be shown to have been illegal, Interoven Stove Co Ltd v F.W.H Hibbard and another [1936] 1 All ER 263

 

Bailiffs and police involvement

 

By common law police officers owe to the general public a duty to enforce the criminal law, 1968 CA Lord Denning re: Commissioner of Police of the Metropolis, Ex parte Blackburn [1968] 2 QB 118

 

A bailiff may not encourage a third party to allow the bailiff access to a property (i.e. Workmen inside a house or a police officer), access by this means renders everything that follows invalid, Nash v Lucas [1867] 2 QB 590

 

If a police officer is in attendance and assists the bailiff to gain entry or persuades the debtor to open the door then any levy the bailiff makes is void and the debtor can sue for damages. Skidmore v Booth [1834] 6 C&P 777

 

There must be very good reasons for arresting a debtor on the grounds of preventing a breach of the peace, only a serious and imminent threat justifies arrest, Foulkes v Chief Constable of Merseyside Police [1998] 3 All ER 705

 

A debtor can lawfully use reasonable force in removing a bailiff that has refused to leave, the bailiff resisting is the person guilty of a breach of the peace, Green v Bartram [1830] 4 C&P 308 and if police are present, the bailiff is the person that police should arrest, Foulkes v Chief Constable of Merseyside Police [1998] 3 All ER 705

 

If a police officer arrests a debtor after throwing a bailiff off the premises who had refused a request to leave, the officer is guilty of false arrest because no offence was committed and the bailiff was there illegally: Green v Bartram [1830] 4 C&P 308.

 

A police officer must arrest a bailiff for breach of the peace if he places the debtor in fear of violence or harm if that offence is made in the presence of that officer, R v Howell (Errol) [1982] 1 QB 427.

 

A police officer must apprehend and arrest the party that is threatening violence, Redmond-Bate v Department of Public Prosecutions, The Times July 28 1999, Lord Justice Sedley

 

If a bailiff causes a disturbance but does not make a threat, it is unreasonable for the police to arrest him. Bibby v Constable of Essex [2000] Court of Appeal April 2000.

 

If a person is arrested for non payment of a debt, he can “buy” his freedom by paying the debt stated on the warrant, Plomer v Ball [1837] 5 A&E 823 (council tax and court fines).

 

Other useful citations

 

Bailiffs cannot make a debtor agree to waive his rights under an Act of Parliament that protects the rights of the debtor, Bisgood v Hendersons Transvaal Estates Ltd [1908] 1 Ch 743

 

A callous or negligent attitude on the part of the bailiff to the basic protection afforded to debtors may lead to the loss of a certificate, Smith v Thomas & Wilberforce [1899] 53 EG 710 or Black v Moore & Thompson [1908] 59 Property Owners Journal 4.

 

A certificated bailiff can lose his certificate for wrongful acts while doing uncertificated work, James v Proctor [1905] 13 PMR 442

 

The bailiff company is vicariously liable for wrongful acts of its bailiffs and other persons working under it, Lister and Others v. Hesley Hall Limited [2001] UKHL 22, 3rd May, 2001 (see paragraph 65) and the company may also be criminally liable if a crime is proven, Dubai Aluminium Co Ltd v Salaam [2002] UKHL 48, and the council is liable for the bailiff company Rylands v Fletcher [1868] UKHL 1, [1868] LR 3 HL 330.

 

When a government department publishes “guidelines” on how it should operate, then those guidelines must be followed unless contrary legislation is provided. Demonstrated in paragraph 29 and onwards in the judicial review R v South Western Magistrates’ Court [2013] EWHC 64 (admin)

 

The courts must never appear to approve of an unlawful action against a debtor no matter how unsympathetic his record, R v Purdy [1974] 1 QB 288, 1 QB 292F

 

See also: List of offences committed by bailiffs and HCEOs

Reporting offences to the police

 

If you need to report bailiff crime to the police it must always be in writing because police do       not have an obligation to act on verbal complaints. You should take notes as soon after the offence took place.

 

After making your complaint the police  may telephone you and get you to abandon your complaint.   Your complaint stands and you escalate it to the IPCC if  the police start resisting your complaint.

 

The litmus test on whether the police are trying to resist your complaint is when they refuse to       give you a crime number; instead, they pass you off with an ‘incident number’ and this is the       signal to prepare to approach the IPCC with your complaint  against the police officer resisting a complaint or  “perverting  the course of justice“:

 

A non-exhaustive list of offences that  can be committed by bailiffs and HCEO’s

  • Charging fees not provided by law – Section 2 of the Fraud Act 2006
  • A bailiff executing a distress warrant for an unpaid magistrate’s court fine commits an offence if he makes an improper charge, Section 78(5) of the Magistrates’ Courts Act 1980
  • Threatens to charge a fee or obtain a further money transfer or goods if you fail to pay an existing debt or charge according to a deadline, Section 21 of the Theft Act 1968
  • The bailiff turns up at your property with a  locksmith with an invalid levy – Section 25 of the Theft Act 1968 and contrary to Khazanchi v Faircharm 1998
  • If a bailiff company is  training it’s bailiffs to commit any of the above, the                  directors of the bailiff company are guilty of an offence under  Section 993 of the Companies Act 2006

 

 

Source

http://www.facebook.com/BailiffMediationHelpAndAdviceInDealingWithB…

 

 

 

 

 

 

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