The One Year Review (2 years late)

[John The Baptist]

My first impression is that it's a bit tame and almost completely influenced by the thoughts of the bailiff companies. Much of it, I believe is a load of baloney.

https://www.gov.uk/government/uploads/s ... rm-web.pdf

My thoughts:

1. Interestingly, the finding was that almost a third more debts were recovered in the first year (so we should presume that this will be the new average. This is a very big positive and a good reason to justify the new(ish) regime.

2. Compliance stage collections have been lower than expected. Are we supposed to be surprised? No money in compliance fees guvnor. Enforcement stage is the way to go.

3. No prescribed notice at enforcement stage. So what? A debt avoider would just deny receipt in any case. Most EAs wear body cams so it would be fairly easy to prove these days. Bailiff companies also have GPS technology to prove where an agent has been.

4. Definition of a highway? Probably needs further clarification. Bailiffs push it to one extreme of the spectrum, debtors to the other.

5. Police not knowing the law has always been a problem. That is not a knock at the police, it is because there are muddy waters where civil matters cross over to criminal matters. Police should not intervene unless a crime is committed. Police need to be aware as to what constitutes obstructing an EA. For example, failing to identify yourself does not constitute obstruction, nor does lawfully refusing an EA access to a property. Sitting inside a car that is about to be removed DOES constitute obstruction.

6. Whinging about social media sites. Bailiff companies do not care about debtors. Let's not be fooled that they have any genuine concerns over debtors being given wrong advice. Bailiff companies hate social media because of the power it has in exposing their wrongdoings. Social media sites cost the enforcement industry £1000s every year by helping debtors. This is what the bailiff industry are afraid of, not that poor old granny Jones up the road has been told to pay the creditor directly.

7. Enforcement agent behaviour:
Misrepresentation of power. Has happened for decades. It always will in an industry/profession where someone is working on commission/paid by
results. Complaints to agencies fall on deaf ears so what is the solution?
Overcharging of fees: Still happens but is at an epidemic level in the HCEO sector. I see one of our favourite "celebrity" HCEOs who is particularly
fond of the sale fee is driving around in a brand new £60k Merc.
Threatening behaviour and unnecessary force. I see very few examples and put this down as another positive to justify the new regime.

8. Treatment and identifying vulnerable debtors. Has improved drastically. I don't know who has had input to help construct these tables but I see no problems with the way the vulnerable are approached and dealt with.

9. Complaints about bailiffs: The EAC2 needs to have any reference of "complaint" taken out. People are confused and misled into thinking that an EAC2 is a complaint like one would make to the IPCC etc. They have no idea that they are risking being exposed to costs orders by making these "complaints".

10. Direct payments:

4.7.3. Direct payment of debt
One issue raised by enforcement agents is that debtors are sometimes erroneously
advised (mainly by informal online sources) to pay their creditor directly after receiving
notice that the enforcement process has begun, in an attempt to avoid the enforcement
fees. In this situation, the creditor is supposed to pay the compliance fee to the
enforcement agent out of the debtor’s payment and the shortfall remains outstanding. If
the debt has reached the enforcement stage it becomes more complicated as the
enforcement fee is paid pro rata from the amount paid off. This leads to an administrative
burden on the Local Authority as they have to separate the fees and a portion of the debt
still remains requiring enforcement.
Although the simple solution to this problem would be to reject direct payments, many
Local Authorities have systems that do not allow a payment to be rejected, particularly
when the debt is paid online. Some have said that the extra burden of dealing with this
has equated to a full time member of staff.

This is the MOJ in all its splendour. They do not comment themselves on whether direct payments is a loophole (although it's widely accepted that there isn't a loo[hole) They simply quote what enforcement agents are saying. Unsurprisingly, the agencies are stating that the compliance fee should be paid be the creditor regardless. There is of course nothing in any legislation that states such a thing. There is guidance in the NS but nothing compelling a creditor to pay the compliance fee. The same with the division of payments. If you want to talk about unintended consequences then the pro-rata stuff is up there at the top of the list. Again, there is nothing within legislation that compels a creditor to divide payments and the creditor can (and indeed regularly does) pocket the entire payment.

So really, a lot of hot air for nothing.

[John The Baptist]

What the real issues are:

1. HCEOs overcharging. Clarification on when ES1 escalates to ES2. and certainly more scrutiny on when sale fees are charged. We are talking hundreds if not thousands of pounds a time that debtors are being overcharged for a single visit. Often, the fees are double the original debt. Alternatively, consider raising the current £600 minimum required to transfer up. How can someone who owes £600 be expected to pay over £2,000 for a single bailiff visit? It happens and I've seen it happen.

2. EAC2 complaints - Need the word "complaint" dropping and clear information to anyone considering an EAC2 that there is a risk involved.

3. Clear information on what must be done (P85 info) when goods are removed. As there is only a potential 7 day window, people need to be pointed in the direction that they must go in, in order to retrieve wrongly taken goods or 3rd party ownership. I've seen cases where people have taken 2 weeks or more before they discover the P85 procedure.

4. Valuation of vehicles used for business. As with everything in the enforcement industry, the bailiffs want the best of both worlds. They value vehicles using tip, top prices. For example a mint condition, low mileage van in auto trader could be for sale for £2k. The auction value of the van might be £500 at best but the bailiff uses the auto trader valuation. On the flip side, when asked to pay damages in cases of wrongful taking, the bailiff industry argue that the auction price is the price that should be used.

5. Stricter terms of the use of "reasonable belief" when HCEOs visit private homes for business debt. For example, HCEOs will say they have "reasonable belief" that an office with computer equipment that a lady uses for dressmaking belongs to the building company of her husband that owes the debt. Tjis kind of thing happens all the time. Private residents who are directors of limited companies need greater protection from these greed driven HCEOs.

[Syd Snitkin]

I noticed that about the direct payment comments. The bailiffs usuallu refer to part 13 of the 2014 regs but as we all know, as does Newlyn's barrister, this is nothing to do with direct payments, but the procedure to follow when the proceeds of sale are less than the amount outstanding. If I recall correctly, the barrister said that to argue that direct payments are bound by p13 is a 'legal nonsense'.

[Syd Snitkin]

This latest comment made me chuckle:

If it wasn’t for the fact that it is April 2nd, I would have dismissed this post of Nigel Bennison’s as an April fools joke.

Posted today.... April 3rd. What a fool.

[John The Baptist]

I don't know what the barrister said but it is a legal nonsense to argue that payments must be divided. However, I'm convinced that the intention was for payments to be divided and this is supported by what is written in the explanatory note of the Fees Regs.

[John The Baptist]

This latest comment made me chuckle:

If it wasn’t for the fact that it is April 2nd, I would have dismissed this post of Nigel Bennison’s as an April fools joke.

Posted today.... April 3rd. What a fool.

Doesn't time fly when you're a complete airhead?

[Syd Snitkin]

I don't know what the barrister said but it is a legal nonsense to argue that payments must be divided. However, I'm convinced that the intention was for payments to be divided and this is supported by what is written in the explanatory note of the Fees Regs.

I don't see where that's written in the notes.

[John The Baptist]

8.3 The consultation response stated that in cases where the proceeds of enforcement are less
than the amount outstanding, they should be distributed on a pro-rata basis between
creditor and enforcement agent (regarding the outstanding debt and the enforcement fees
and disbursements respectively). However, it has since been demonstrated that this would
cause enforcement agents to operate at a loss for some time before they recovered their
fees, undermining the fee structure model by significantly delaying remuneration and
preventing the necessary investment in enforcement businesses required to provide a
sustainable service. Without this, successful enforcement could potentially decline
significantly and enforcement agents may be encouraged to act in an aggressive manner in
order to try and recoup the entire debt. It was therefore decided that enforcement agents
should be paid the compliance stage in full first, followed by a pro-rata division of
proceeds between enforcement agent and creditor.

[Syd Snitkin]

Still only refers to this being the case from the proceeds of enforcement, not direct payments. To me it reads that if the bailiff has done the job, taken goods, made sale arrangments etc then yes, he should be paid something first rather than be at the end of the queue. But to apply that logic to one letter and one knock on the door (even if no-one answers) is madness.

You know I won't let this one go.

[delta157]

I didn't realise someone else had posted the review, I have also with some highlights,your thoughts?

[delta157]

I didn't realise someone else had posted the review, I have also with some highlights,your thoughts?

Also look here>>

http://www.government-world.com/press-r ... -bailiffs/

[John The Baptist]

The point being made in the memorandum is that making the bailiff wait for his fees will encourage bad practice. A bailiff does not have to wait after goods have been sold.

The INTENTION must have been that ALL payments be split pro-rata, not just those received from a sale.

There wouldn't be a concern over a bailiff waiting for his fees and also an option to evade fees by paying the creditor directly. As stated in the memorandum, there was emphasis on making enforcement sustainable, something that was not possible pre-2014 unless "short cuts" were made.

By ensuring that the bailiff gets paid, the theory is that innocent debtors do not subsidise for the "won't pays", as was often the case before.

[zeke]

The review found the need for a statutory definition of a highway, vulnerable debtors, and for better procedures for police officer at the scene of bailiff confrontations.

As discussed on TalkRADIO yesterday, my main argument is police protection of bailiffs unwittingly giving them immunity from criminal liability, leaving an unchecked enforcement industry free to commit fraud and violence with impunity. Without an ombudsman, It leaves DWB the sole provider of bailiff remedy. As I don't have government funding, I am vulnerable to troll wars from the bailiff industry aggrieved by cases being passed to solicitors who bring proceedings against them.




Highways. I had a client last year who decided not to bring a proceeding for clamping on private land, because the legal definition of a highway was obscure I used the following:

• There is a common law highway definition used in bailiff claims, taken from 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.

  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".
  
  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.
  
  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.
  
  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.

Sheila Harding skipped to the back and came out with this:

4.7.3. Direct payment of debt

One issue raised by enforcement agents is that debtors are sometimes erroneously advised (mainly by informal online sources) to pay their creditor directly after receiving notice that the enforcement process has begun, in an attempt to avoid the enforcement fees. In this situation, the creditor is supposed to pay the compliance fee to the enforcement agent out of the debtor’s payment and the shortfall remains outstanding. If the debt has reached the enforcement stage it becomes more complicated as the enforcement fee is paid pro rata from the amount paid off. This leads to an administrative burden on the Local Authority as they have to separate the fees and a portion of the debt still remains requiring enforcement.

Although the simple solution to this problem would be to reject direct payments, many Local Authorities have systems that do not allow a payment to be rejected, particularly when the debt is paid online. Some have said that the extra burden of dealing with this has equated to a full time member of staff.

The MOJ says the creditor to pay the £75 fee to the bailiff.

It doesn't say the enforcement power is revived, and neither does Marstons RETMAR letter.

If Parliament wanted bailiffs to enforce their fees using Schedule 12, then it would amend Paragraph 50(3) adding fees to the amount outstanding. Its the debt and costs of enforcement, and "enforcement" is defined in section 62 of the TCEA 2007.

The MOJ wants to keep the bailiff companies happy, so it gives guidelines. An Act of Parliament still supersedes guidelines putting them at the bottom of the food chain in legislation hierarchy. Therefore no change in DWB procedures.



The following comment also contradicts an Act of Parliament, which I think the report author misunderstood.

Although the simple solution to this problem would be to reject direct payments, many Local Authorities have systems that do not allow a payment to be rejected, particularly when the debt is paid online.

Any programmer can write software to reject payment. A council rejecting payment revokes enforcement. Paragraph 12A of Schedule 4 of the Local Government Finance Act 1992 states;

• Termination of proceedings
  
  17(1)Regulations under paragraph 1(1) above may provide that in a case where—
  
  (a)proceedings under the regulations have been taken as regards the recovery of any sum mentioned in paragraph 1(1) above; and
  
  (b)the outstanding amount is paid or tendered to the authority to which it is payable;
  the authority shall accept the amount, no further steps shall be taken as regards its recovery, and any person committed to prison in pursuance of the proceedings shall be released.
  
  (2)The outstanding amount is an amount equal to the sum concerned or to so much of it as remains outstanding (as the case may be).
  
  (3)In a case where costs and charges are relevant the outstanding amount shall be treated as augmented by a sum (of a prescribed amount or an amount determined in accordance with prescribed rules) in respect of costs and charges incurred in the proceedings up to the time of payment or tender.

[Syd Snitkin]

The point being made in the memorandum is that making the bailiff wait for his fees will encourage bad practice. A bailiff does not have to wait after goods have been sold.

I don't read it like that. To me it's just saying that after goods are sold (or money taken by the bailiff) then the bailiff should be at the front of the queue rather than ending up with the dregs after everyone else has taken their slice. It decided that a fair way would be to pay the compliance fee first, no matter what was recovered - be it £100 or £2000 with the rest split accordingly.

To apply this to a direct payment where the bailiff has done almost nothing cannot have been the intention. If the intention was to compensate the bailiff even when he doesn't actually collect anything then it would also apply to times he failed to enforce at all.

[John The Baptist]

The point being made in the memorandum is that making the bailiff wait for his fees will encourage bad practice. A bailiff does not have to wait after goods have been sold.

I don't read it like that. To me it's just saying that after goods are sold (or money taken by the bailiff) then the bailiff should be at the front of the queue rather than ending up with the dregs after everyone else has taken their slice. It decided that a fair way would be to pay the compliance fee first, no matter what was recovered - be it £100 or £2000 with the rest split accordingly.

To apply this to a direct payment where the bailiff has done almost nothing cannot have been the intention. If the intention was to compensate the bailiff even when he doesn't actually collect anything then it would also apply to times he failed to enforce at all.

I thought you might.

The regs are clear that the fees are payable at the start of a particular stage. This means they become payable if the bailiff does almost nothing.

If a person pays after bailiff involvement, it is money taken in the exercise of the power. Therefore the fees are payable. Furthermore, bailiff action becomes part of the amount outstanding (Par 62[5])

If the creditor recalls the warrant before its 12 month expiry, then the intention is for the bailiff to be compensated. If the 12 months expire or creditor and bailiff mutually agree to terminate the warrant, the bailiff won't get paid.

[Syd Snitkin]

It's never been about whether fees are due, rather how they are paid. Legislation is clear in that a bailiff is paid from proceeds enforcement from using the schedule 12 procedure. A direct payment hasn't been taken using the procedure.

At best, the only point I'll concede to is that perhaps, in the spirit of fair play, the £75 should be paid to the bailiff. However at present there is nothing in legislation that compels this to happen if a direct payment is made.

As has been pointed out, this review did not clarify the position either way but only stated what the bailiffs say should happen.

[John The Baptist]

Legislation is anything but clear.

I would say that proceeds are either money from a sale or money taken in the exercise of power. That is money taken whilst the power is live. It doesn't say that the money must be taken by the EA, only that it is taken. Likewise, it doesn't say that the money is taken by using the procedure, only that it is taken whilst the ability to use the procedure exists.

Fees may then be recovered out of proceeds.

[Syd Snitkin]

Legislation is anything but clear.

I would say that proceeds are either money from a sale or money taken in the exercise of power. That is money taken whilst the power is live. It doesn't say that the money must be taken by the EA, only that it is taken.

Only the bailiff can exercise the power, which must be done using the sch12 procedure. The creditor has the power, but cannot exercise it themselves, ie go taking goods. They must use the services of a bailiff if they want to exercise it. (Obviously this is the case when bailiffs are used, attachments etc is a different matter).

[John The Baptist]

It's not about who exercises the power. The money is taken whilst the power is in force. The money isn't taken via the power but it is taken during the (lifespan of the) power

[Syd Snitkin]

But it is taken via the power - it says taken in the exercise of the power. The creditor has the power, the bailiff exercises the power. The creditor cannot exercise the power themselves.

If you walked up to the creditor and handed them the cash, they haven't exercised the power.

Proceeds can only be collected using the sch12 procedure and only the bailiff can exercise the procedure. A creditor cannot use the procedure.

[John The Baptist]

It is not taken by the power. A voluntary payment is just that. The creditor is not exercising the power. However the money is taken in the exercise of the power.

You are mistaking the accepting of a voluntary payment to be exercising of power. It doesn't have to be. Any money taken in the exercise of power (doesn't have to be under the exercise of power) is proceeds.

There is nothing anywhere within legislation that states that money must be taken by the person exercising the power, only that it's proceeds of enforcement if it is taken during the lifespan of the power.

[Syd Snitkin]

That's right, but only money taken in the exercise of the power can be classed as proceeds of enforcement. Money taken by any other means cannot be proceeds. The fact remains that only the bailiff can exercise the power - a council clerk cannot exercise the power.

I'll say it again - the creditor is given the power to enforce a debt but only a bailiff can exercise that power. The bailiff then recovers his fee from the proceeds of exercising the power. If money is recovered by the creditor personally then that has not been collected in, under, with (or however you want to phrase it) the power.

There are no references to lifespans of the power.

[John The Baptist]

OK - I'll try it another way:

Yes, only the bailiff can exercise the power. Forget about this, it is irrelevant. I'm not suggesting that the council clerk exercises the power when (s)he receives payment. However, you may wish to consider Section 63(4) of the TCEA which could well mean that a council clerk can exercise the power;

An individual is exempt if he acts in the course of his duty as an officer of a government department.

An exercise is the putting into practice of a power. The minute that the matter is passed to bailiffs, the exercising of the power begins. So even at compliance stage we are in the exercise of power.

"in" can mean the period of time in which something happens.

So, if a payment is made to a council clerk, it is money taken in the exercise of power. The bailiff can be exercising his power at Lands End at the precise moment the debtor pays the debt to his local council in the north of England and it will still be classed as money taken in the exercise of power.

"in the exercise of power" does not mean that the bailiff has to physically enforce. It means during the period that the power is live (in the case of a warrant, 12 months)

Therefore, any money paid during the exercise of power (the period that the power is live) is classed as proceeds. It makes no difference whether the money is paid to the creditor or bailiff.

You think that the bailiff has to exercise his power in order for proceeds to be applicable but that is not what is written in legislation. There is a big difference between "the exercise of power" (which is what you think is written) as opposed to what is actually written, which is "in the exercise of power".

[Syd Snitkin]

I doubt that we'll agree on the interpretations. I'm absolutely resolute in saying that 'in the exercise of power' means when the power is being physically exercised, and certainly not meaning when the power is live whether it's being exercised or not.

Certainly schedule 12 relates to everything governing only the bailiff's actions and it follows that 'in the exercise of power' means when the bailiff exercises the power. It's also certain that a bailiff's fees can only come from the proceeds of enforcement from the exercise of the sch12 procedure, which only the bailiff has the authority to do.

Money paid directly falls outside of sch12 - it hasn't been collected using sch12. If it was to be included then it should be stated, something like 'money paid to the creditor whilst the EA is exercising the power'. Don't forget, the bailiff doesn't ask you to pay the creditor, he asks you to pay him - the money has to go through him.

In any case, at present there is no obligation for the creditor to apportion any direct payments no matter how hard the bailiffs and their friends bleat about it.

[zeke]

I agree with this.

Any effort by bailiffs or a creditor to circumvent it should be challenged.

For unpaid court fines, its CPR 52.8(5) which states:

(5) The warrant no longer has effect if—

(a) there is paid to the person executing it the sum for which it was issued and any extra sum
payable in connection with its execution;

(b) those sums are offered to, but refused by, that person; or

(c) that person—

• (i) is shown a receipt given under rule 52.3 for the sum for which the warrant was issued, and
  
  (ii) is paid any extra sum payable in connection with its execution.

If the warrant has not been executed, then no sums in connection with its execution is owing.

To execute a warrant, the bailiff must take control of goods and sell them to pay the debt. "executed goods".




Section 76 of the Magistrates Courts Act 1980 has been amended so a defaulter cannot be committed to prison if he does not pay bailiffs fees. It now states:

• (2)A warrant of commitment may be issued as aforesaid either—
  
  • (a)where it appears on the return to a warrant of control that the money and goods of the defaulter are insufficient to pay the amount outstanding, as defined by paragraph 50(3) of Schedule 12 to the Tribunals, Courts and Enforcement Act 2007; or
    
    (b)instead of a warrant of control.

Paragraph 50(3) of Schedule 12 to the Tribunals, Courts and Enforcement Act 2007 says:

• (3)The amount outstanding is the sum of these—
  
  • (a)the amount of the debt which remains unpaid (or an amount that the creditor agrees to accept in full satisfaction of the debt);
    
    (b)any amounts recoverable out of proceeds in accordance with regulations under paragraph 62 (costs)
  .

I know Marston has been putting pressure on the MOJ to amend this section to add a third option being the fees under the Schedule of the 2014 fees regulations. The fact they have not passed an amendment suggests the MOJ is only concerned about taxpayer interests, not the profits of a company.



This is further afforded by a spin-doctor (a QC and a Member of Parliament) coming out with this comment:

One issue raised by enforcement agents is that debtors are sometimes erroneously advised (mainly by informal online sources) to pay their creditor directly after receiving notice that the enforcement process has begun, in an attempt to avoid the enforcement fees.

...

Although the simple solution to this problem would be to reject direct payments, many Local Authorities have systems that do not allow a payment to be rejected, particularly when the debt is paid online.

Marston kicked up about direct payment is because it's defending a raft of claims for post-cessation enforcement. Parliament won't change the law to suit them.


The legislation I have given above only deals with direct payment of court fines and council tax. Not traffic debts or Writs

Traffic debts. The enforcement is suspended with a TE9 or PE3 (at no charge to the client) then the client can defend or settle and DWB gets to refer a case for damages or injunction against the authority.

High Court writs are simple. I put a stop on the writ and put the bailiff out along with his astronomical fees. The client decides to pay the judgment, or defend it.


One thing the One Year Review omitted, addressing the policy of drive-by clamping which is enforcement without notice and taking control of non-debtor goods. It would appear the enforcement industry is happily shelling out defending interpleader claims and injunctions, indicating drive-by clamping is profitable.

[John The Baptist]

I doubt that we'll agree on the interpretations. I'm absolutely resolute in saying that 'in the exercise of power' means when the power is being physically exercised, and certainly not meaning when the power is live whether it's being exercised or not.

Certainly schedule 12 relates to everything governing only the bailiff's actions and it follows that 'in the exercise of power' means when the bailiff exercises the power. It's also certain that a bailiff's fees can only come from the proceeds of enforcement from the exercise of the sch12 procedure, which only the bailiff has the authority to do.

Money paid directly falls outside of sch12 - it hasn't been collected using sch12. If it was to be included then it should be stated, something like 'money paid to the creditor whilst the EA is exercising the power'. Don't forget, the bailiff doesn't ask you to pay the creditor, he asks you to pay him - the money has to go through him.

In any case, at present there is no obligation for the creditor to apportion any direct payments no matter how hard the bailiffs and their friends bleat about it.

No, we will never agree. I just try to look at it logically. Even under the old laws, there was always an intention for bailiffs to be paid for their work. The explanatory note makes it clear that there was concerns that delays in bailiffs being paid would encourage bad practice. By the same token, giving people a loophole to avoid fees would not only encourage bad practice but would also provide no incentive whatsoever for people to pay court fines, PCNs, etc. The MOJ are on the side of the enforcement industry here and they want to support them. With all that in mind, it really is pointless trying to interpret what is written in any other way than that the intention is for bailiffs to be paid.

I'd wager that if you ever had a fine and bailiffs were involved, you wouldn't pay the court directly. I know I wouldn't. In fact, I'll go one step further, I would never allow it to reach the stage where bailiffs are involved. I (like you) know a lot about bailiff law but even with that knowledge, I don't think I could get out of the fine and bailiff fees.

Personally, I have little sympathy for these people anyway. If they can afford to pay the fine, why allow it to reach crisis point before doing so? Why think that the bailiffs are expected to administer the account and visit the property and not get paid? How many businesses could sustain that? As with the old regime, it would mean an unsustainable industry where the funding comes from those who do pay. Visiting people to chase them for money costs money. The creditor doesn't want to pay for unsuccessful visits (quite rightly) so the burden of paying should fall on the person who has provoked the visit by refusing to pay. Encouraging people to avoid paying bailiff fees only puts at risk the genuine debtors. It is the genuine debtors that I want to help, not the ones who can afford to pay all along but are just digging their heels in the ground because they feel aggrieved.

A very tiny percentage may slip the net. Marstons will almost certainly not settle out of court as Nigel claims. It is an avenue we all explored in the early days of the new regime. It doesn't work and I see little point in flogging a dead horse. I spoke with JK at around the time you contacted him, although he may have accepted your arguments as valid, I can tell you that privately, he doesn't see any loophole by paying the creditor directly.

[zeke]

ees.

Personally, I have little sympathy for these people anyway. If they can afford to pay the fine, why allow it to reach crisis point before doing so?

I think that is unfair. They don't allow it to reach crisis point.

Nearly all court fine clients that approach us have a reason. Usually, because they have moved and the bailiff breached regulations by tracing the debtor and ambushed enforcement without notice.

I have no sympathy for companies that seek to profit by breaking the rules.

[Syd Snitkin]

I want to make it clear that I've never been looking for a loophole - my argument is solely that a creditor has no obligation to apportion a direct payment. It is an interpretation that the EA industry has forced and it angers me when I see disinterested numpties in council offices simply rolling over, or self-confessed non legally trained HMCTS staff providing legal 'advice' incorrectly. That said, if a loophole exists in any part of the legislation then until it's rectified, it can be used.

I don't buy into the argument that there would be no incentive to pay the original debt if a loophole exists on the fees - any loophole won't void the original debt and there are many other ways to coerce payment, the ultimate method being imprisonment. It sounds more like one of Sheila's arguments, like when she bemoans debtors for trying to avoid fees - why is that something to frown at?

JK's name often gets thrown into debates, yet depending on the argument he is either the most knowledgable person on the planet or an ex-CAB volunteer who decided he was the worlds expert on bailiffs. I certainly question whether he states one thing in public but has opposite private thoughts that he'd share with a stranger from a forum.

The truth is that none of our interpretations mean shit in the broader world until they have been tested in court, not yours, mine, Nigel's, Sheila's, Charlie the Chimp's, creepy Craig's, or even JK's. Our knowledge is all self taught and open to error, even if some twonks can never admit they're wrong. Sometimes even when we know we're right, a senile old judge can misunderstand and create problems such as the HP debacle.

[John The Baptist]

ees.

Personally, I have little sympathy for these people anyway. If they can afford to pay the fine, why allow it to reach crisis point before doing so?

I think that is unfair. They don't allow it to reach crisis point.

Nearly all court fine clients that approach us have a reason. Usually, because they have moved and the bailiff breached regulations by tracing the debtor and ambushed enforcement without notice.

I have no sympathy for companies that seek to profit by breaking the rules.

Well in that case there is no need to urge them to pay the court directly is there?

If there is a genuine reason why the debtor hasn't received a NoE then that is completely different to someone who just ignores the matter, waits for the bailiff to turn up and then starts plotting different ways to get out of the fees.

I too have no sympathy for companies who seek to profit by breaking rules and regulations. I have no sympathy for those who seek to avoid what is rightfully owed either. I help where I can, in matters where there is a genuine need for help, I do not gain financially from this so don't really have any incentive to help those who can afford to pay but are just trying it on.

[John The Baptist]

I want to make it clear that I've never been looking for a loophole - my argument is solely that a creditor has no obligation to apportion a direct payment. It is an interpretation that the EA industry has forced and it angers me when I see disinterested numpties in council offices simply rolling over, or self-confessed non legally trained HMCTS staff providing legal 'advice' incorrectly. That said, if a loophole exists in any part of the legislation then until it's rectified, it can be used.

I don't buy into the argument that there would be no incentive to pay the original debt if a loophole exists on the fees - any loophole won't void the original debt and there are many other ways to coerce payment, the ultimate method being imprisonment. It sounds more like one of Sheila's arguments, like when she bemoans debtors for trying to avoid fees - why is that something to frown at?

JK's name often gets thrown into debates, yet depending on the argument he is either the most knowledgable person on the planet or an ex-CAB volunteer who decided he was the worlds expert on bailiffs. I certainly question whether he states one thing in public but has opposite private thoughts that he'd share with a stranger from a forum.

The truth is that none of our interpretations mean shit in the broader world until they have been tested in court, not yours, mine, Nigel's, Sheila's, Charlie the Chimp's, creepy Craig's, or even JK's. Our knowledge is all self taught and open to error, even if some twonks can never admit they're wrong. Sometimes even when we know we're right, a senile old judge can misunderstand and create problems such as the HP debacle.

Nobody denies that creditors are not bound to divide payments (Except Harding who quite frankly is a lost cause). Many councils do not divide payments, as you know.

Of course there isn't an incentive to pay the original debt ON TIME if there is no financial deterrent placed on late payments. Why would anybody pay on time if all they had to do was wait for the bailiff to come knocking before making payment?

JK never actually supported your opinion, he merely stated that it was "an interesting argument". He simply commented "nor do I" when I stated that I didn't think that paying a creditor directly would alleviate a debtor from bailiff fees.

The paying direct has failed in court. It doesn't matter who interprets what, the bottom line is that paying directly does not work. It doesn't matter how many times we go around the circle, the bottom line is that paying directly does not work. Judges in lower courts are very "anti-debtor" in the first place, there is absolutely zero chance that you are ever going to find one who will determine that paying bailiff fees is an option.

[Syd Snitkin]

JK never actually supported your opinion, he merely stated that it was "an interesting argument". He simply commented "nor do I" when I stated that I didn't think that paying a creditor directly would alleviate a debtor from bailiff fees.

What he said was that it very persuasive but he doesn't have a strong opinion either way. Again, my argument is not that paying direct voids the fees - that's Nigel's argument - my argument is that the fees should not be deducted from the direct payment leaving the original debt still in arrears. Whether or not the bailiff can then enforce for just his outstanding fees is the contentious issue and until evidence is provided by Nigel that they cannot then it can't be endorsed.

The paying direct has failed in court.

There's been no high court precedent as yet just lower courts making opposite decisions. As you know, we've even had Newlyn's barrister saying that direct payments must not be apportioned.

[John The Baptist]

That's fine. I agree that currently there is no requirement to divide payments (although I'm convinced that it was the intention to provide such a provision)

As the fees become part of the amount outstanding, the bailiff can and does enforce for them. This is what we must assume until Nigel provides evidence to the contrary, which we both know is never going to happen.

[delta157]

Since I'm just an ordinary poster without much knowledge or liked by either side of this squabble.

I have dealt with just a few cases (debts that have been to Court) and have all gone to enforcement.

Not once has the debtor had to pay any EA fees nor the compliance fee, but have had creditor agree to have the debts returned in house, then an affordable payment plan set up.

These are listed below and are just for a few people.

4 Magistrate cases,

27 Pc's

6 County Court judgments

1 High Court case too.

1 Magistrate Court fine was dealt with on the day the EA turned up, a call placed to the Clerks office, some section or other was used, I can't remember which now, but was posted on here somewhere. Even that one was recalled, no fees added. plan set up and paid in full over a year.

Either I have been very lucky, or very persuasive in my arguments. So given the statement above fees don't have to be included nor enforced once the power ceases to exist, either by the debt being written off, or the creditor cancels the enforcement power.

Or am I wrong on this matter?

[Syd Snitkin]

Since I'm just an ordinary poster without much knowledge or liked by either side of this squabble.

What? You've certainly blooded a few noses over there but I know nobody thinks like that over here.

I'd be interested to know the arguments you've used and whether you've had experience of Nigel's position on 'the sum adjudged' and all that, and the high court case must be shared. Personally, I think you should contribute much more to these boards but appreciate that's not always possible.

You obviously do have much knowledge otherwise you wouldn't be having the successes. Whatever happened with the water bills fiasco?

[delta157]

The water fiasco is still a work in progress, suffice to say my LA have already started to make incorrect refunds.

They were Incorrect as in no interest has been paid until recently, when it was found that I was correct in notifying them that interest is actually due to the tenant.


The Magistrate cases, the arguments used were either a failure to submit a MC100 form, this is vital in as much as any financial penalty must be correctly set, the collection order set by the bench in absence of the said defenant can see them setting the amount based on a full time worker. If unemployed they can ask for a review of the said order with the newer information that was not available at the hearing.

If the amount was based on a standard income, I.e. someone working they would possibly pay a higher amount. But, someone on benefits can and should be allowed too ask for a means hearing. This happens often in this neck of the woods.

In our local Courts this happens often and a new amount is set at this hearing. Then complications can now arise because of the full role out of Universal Credit (UC) were a person could have no money for up to seven (7) weeks. (Different issue but very useful to know about)).

This rollout is not being taken in to account by the bench in the remaining areas that are about to complete the changes to UC. This can and does cause significant issues for the Courts, defendant and collection Officers.

There are also arguments the defendant must do is to inform the Fines Officer (FO) asap if they are sanctioned. I recommend that they do so very next day of being notified.

By doing this it allows the Courts to review to current amount to be collected reviewed sharpish, thus saving the debtor £310 in the 1st place.

I'm currently on a mobile device so typing is a litte harder. So if any typing errors I'll say sorry now.

More to follow tomorrow. If I've made any errors I'll correct them tomorrow when I'm on my desktop.

I haven't posted in many months 20 I think, this is because the way people had been and taking the mickey way too much.